STATE OF KARNATAKA Vs. JAVEED HYDER

JUDGEMENT

(1.) the facts leading to this appeal are as follows : the respondent (javeed hyder) made an application on or about 23-12-1977 for grant of no objection certificate for locating a semi permanent cinema in kolar town. The said application was made before the district magistrate, kolar district, kolar. The substance of the said application was notified. Representations and objections were called for from all the concerned including the members of the public. Reports from the concerned officers were also sought. Apprehending that the district magistrate, kolar, would enforce Rule 111g of the Karnataka cinemas (regulation) rules, 1971, (for short 'the rules') framed under sec. 19 of the Karnataka cinemas (regulation) Act, 1964, (for short 'the act'), the respondent filed writ petition No. 8086/78 challenging the constitutional validity of the said rule. The application, however, was rejected by application of Rule 111g on 3-4-1980. The respondent contended that the said Rule was not to promote the object of the act and therefore it was ultra vires and beyond the rule-making power under sec. 19 of the act. It was also contended that that Rule was violative of articles 14 and 19 (1) (g) of the fundamental rights guaranteed to him under the constitution. The writ petition came up before puttaswamy, j about the vires of the Act, he rejected the contention oi the respondent. However, he held that clause (a) of Rule 111g of the rules, in so far as it prevented the respondent from establishing a semi permanent cinema if the population is more than 50,000, would be bad. He was of the view that the reasoning which prevailed the learned judges in sujatha touring talkies v state of Karnataka (ilr 1985-2 kar. 2477) in striking down Rule 107 (1) (b) of the rules, would equally apply to the present case. Accordingly, he struck down Rule 111g (a) of the rules and quashed the endorsement dated 3-4-1980. In this view, he issued a direction to restore the application of the respondent for grant of no objection certificate for locating a semi permanent cinema in kolar town and to dispose of the same without reference to the said rule. Aggrieved by the judgment of the learned single judge the state of Karnataka has preferred this appeal.

(2.) the learned government Advocate submits that first and foremost this is a case of regulation regulating the conduct of the business with reference to location of cinema houses. With regard to such location if the policy of the government is to prevent the location of semi permanent cinema where the population exceeds r. 14 50000 it cannot be held to be an unreasonable regulation. This is because, the question whether a particular regulation is reasonable or not cannot arise since such a regulation is founded on the policy conceived in the interest of public health and competition in the business etc. There is a good deal of difference between a restriction and a regulation. In the case of regulation what has to bo looked at is, does it in the guise of regulation prohibit the business altogether? On the contrary, if it is a case of restriction, then alone it has to be found out whether it is reasonable or not. Art. 19 (1) (g) of the Constitution confers the fundamental right to carry on any occupation, trade or business. With regard to such occupation, trade or business, if any restriction is imposed, that has to be tested on the touchstone of reasonableness. Therefore, the considerations that prevail with regard to the restrictions cannot be applied eo instanti to regulations. The learned judge had approached the matter as if this particular Rule restricts the establishment of a semi permanent cinema if the population is more than 50000 and thereby offends the fundamental right to carry on business of exhibition of cinema. It is submitted that the proper way to approach the matter is, where the Rule merely regulates the location of a semi permanent cinema in towns where the population is below 50000, it does not altogether restrict the fundamental right of carrying on business in exhibition of cinema. In other words, if a town has a population of more than 50000 and if it could admit a permanent cinema, there is no justification for insisting on the location of a semi permanent cinema. It is not open to the respondent to say that even though the population is more he would insist on the establishment of a semi permanent cinema disregardfu of this regulation and on that basis it is not open to him to contend that he will exercise his fundamental right only in the manner he conceives best for him. That is precisely what is urged before the learned single judge which found acceptance at his hands. In state of Karnataka v Sri laxmi touring talkies (ilr 1984-2 kar. 1192) the question arose whether Rule 107 (1) (b) of the rules as it stood then was valid or not. That Rule placed a restriction with reference to grant of licence for a touring cinama in towns or cities having a population of 25000 or more wherein such a location was prohibited. A full bench of this court upheld the said Rule, stating that the act was intended to regulate and not to prohibit or discourage any one of the said cinemas, and the Rule in question does not prohibit touring cinemas from exhibit ing cinematograph but only carves out places or localicites for exhibition perhaps having regard to the element of mobility and the smallness of investments involved. In so doing it dissented from the ruling in laxmi touring talkies v state of Karnataka (1975 1 k l.j. 419). Ths same principles must be held to be applicable to this case. In minerva talkies v state of Karnataka (AIR 1988 SC 526) and in narendra kumar v union of India (AIR 1960 SC 430} the restriction conceived in the interest of public was upheld in t.b. ibrahim v regional transport authority (AIR 1953 SC 79) it was held at page 82 that there is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience the same principle must be held to be applicable here. For all these reasons it is submitted that the order of the learned single judge cannot be held to be correct end therefore the appellants are entitled to succeed.

(3.) in supporting the judgment of the learned single judge, the learned counsel for the respondent sri.b.g. sridharan submits that the right to carry on cinematograph business is a fundamental right guaranteed under art. 19 (1) (g) of the constitution. This is a case in which the respondent is prohibited from locating a semi permanent cinema in a town in which the population is more than 50000. By such an unreasonable restriction his fundamental right cannot be curtailed. Where, therefore, the restriction with reference to location of a semi permanent cinema is based on population it cannot but be an unreasonable restriction. The reasoning which prevailed in sujatha touring talkies case (ilr 1985 2 kar. 2477) in sinking down Rule 107 (1) (b) of the rules as violative of articles 14 and 19 of the constitution, would squarely apply to this case. No doubt that Rule as came up for decision in that case is no longer in vogue, yet the reasoning would squarely apply. In narendra kumar's case (AIR 1960 SC 430) it was held that if a restriction cast by law is more than was necessary in the interest of general pubiic it would be bad. The same is tha position here, and therefore there is no scope for interference with the judgment of the learned single judge.