P N FILMS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition is presented by petitioner No. 1, a private limited company, and petitioner No. 2, who is a director of that company challenging the validity of a certain order dated 7-4-1954, emanating from the Ministry of Information and Broadcasting and signed by the Under Secretary to the Government of India exercising powers under Section 5, Sub-section (4) of the Cinematograph Act, 1952, on behalf of the Central Government directing that certain parts of a film "Prisoner of Golconda" should be excised from all copies of the film and for production of the certificate granted by the Central Board of Film Censors for a proper amendment. This order was served on petitioner No. 2 in Bombay. According to the petition, the petitioners produced a certain film called "Prisoner of Golconda" at a very heavy cost and thereafter approached the Central Board of Film Censors in Bombay. That Board made certain cuts and amendments. Aggrieved by that the petitioners went to the Revising Committee of the Central Board under Rule 29. The film was then examined by the Revising Committee of the Central Board of Film Censors on 4-t3-1954, and that Committee passed the film subject to certain cuts, reductions and deletions. A "U" certificate as contemplated by the Rules was issued on 9-3-1954. It appears that thereafter the Ministry of Information and Broadcasting intervened under Section 5 of the Act and passed the order which I have just set out above under the signature of the Under-Secretary calling upon petitioner No. 2 to excise certain sequences specified in the schedule to that order and intimating to him that in the event of non-compliance the film would be declared as an uncertified film. This notification is issued under Section 6(c) of the Cinematograph Act suspending the exhibition of this picture for a month. It appears that the petitioners subjected themselves to this requisition and the film was dealt with in accordance with this order whereafter a certificate was duly issued and thereafter they have been releasing this film in a truncated form at several places, including Bombay and Nagpur. In the petition the petitioners have challenged the validity of Section 5, Subsection (4), and Section 6 of the Act and contended that these sections are void as un-controlled, unfettered and unregulated power has been, conferred by this statute and this is an unreasonable limitation on the freedom of speech and proprietary rights of the petitioners. In para. 22 the petitioners set out that the administrative office of the respondent is in Bombay, the film was produced in Bombay and was examined and certified by the Central Board of Film Censors in Bombay, the censor certificate was issued in Bombay and the order complained of, namely, of 7-4-1954. was served upon petitioner No. 2 in Bombay and therefore they contend that this High Court has jurisdiction to entertain this petition. The relief asked for is that the Court should issue an appropriate writ under Article 226 of the Constitution of India, to cancel, withdraw or set aside the said order of 7-4-1954, and restraining the Union of India from giving effect to the said order. Other alternative writs are prayed for as set out in prayer (b) against the Union of India.

(2.) At the hearing of the petition, the Attorney General on behalf of the Union of India has raised a preliminary point, namely, whether this Court has jurisdiction to entertain this petition, because it is contended that this Court has no jurisdiction and that goes to the root of the matter and that in that event it would be unnecessary for the Court to embark upon an investigation on the other issues raised on the face of the petition. It may be noted that, as I have indicated above, the relief asked for is only against the order of the Ministry of Information, Ex. E. to the petition, whoso Order dated 7-4-1954, is challenged. At the same time I may note that it was conceded on behalf of the respondent that the office of the Central Board of Film Censors is situated in Bombay. The question has been raised whether I should try this preliminary issue and Mr. Gupte on behalf of the petitioners has resisted that application made on behalf of the respondent on the ground that this Court should answer as a trial Court should all issues arising on the face of the pleadings. I was also referred to a decision of the Supreme Court in this connection in -' Dominion of India v. Shirinbai A. Irani', for the purpose of arguing that this question should not be tried as a preliminary issue. Now, in my opinion, there is a clear distinction between a Court raising several issues on fact and law and considering one of the issues important enough to dispose of the whole matter. In that case as was done in Irani's case (A) one of the issues was considered as sufficient to disentitle the plaintiff or the petitioner from maintaining the action. But that is riot really a preliminary point. A preliminary point is one which if answered negatives either the jurisdiction of the Court or negatives any came of action on the face of the plaint as in the case of issue of limitation and in my opinion in fact if this preliminary point is answered then it would be unnecessary for the Court to go into the facts and other issues arising thereon. My attention has been drawn in this connection to certain observations of the Court of Appeal in the case of --'Sowkabai Pandharinalh v. Tukojirao Holkar', AIR 1932 Bom 128 (B), the observations of Chief Justice Beaumont being at p. 129, where it is stated that under Order 14, Civil P. C. it is the duty of the Judge at the first hearing of the suit to frame issues based upon the differences between the parties and under Rule 2 of that Order the Judge may frame a preliminary issue of law and that introduces the practice which used to be known in England prior to the passing of the Judicature Act as pleading "on demurrer" namely, that assuming the truth of all the allegations in the plaint the defendant may say, that the statement of claim in point of law discloses no cause of action and therefore the suit should be dismissed. In fact unless in Certain cases the Court is empowered to go into this there would be no meaning In the Code of Civil Procedure expressly providing for this procedure under Order 14, Rule 2. In these circumstances I have decided despite the objection on the part of counsel appearing on behalf of the petitioners to try this preliminary issue of jurisdiction. Therefore, the question before m0 will be dealt with on the footing of a demurrer, namely, accepting all the facts on the face of the petition for that purpose whether this Court has jurisdiction to entertain this petition.

(3.) Strictly speaking, for this purpose I have to look at para 22 of the petition and Ex. A and Ex. B annexed to the petition and nothing more, but since counsel on behalf of the petitioners has invited my attention expressly to the affidavit in reply para. 19 and affidavit in rejoinder para. 18, I will set out the resume of those paragraphs. I have set out what is set out in para. 22 of the petition already above, In para. 19 of the affidavit in reply the respondent states as follows: "With reference to paragraph 22, the Central Government have no administrative office in Bombay and the order dated 7-1-1954 was issued by the Central Government in New Delhi." In para. 18 of the affidavit in rejoinder it is stated that the petitioners deny that the Central Government have no administrative office in Bombay and say that the Central Government have several administrative offices and officers in Bombay including the office of the Central Board of Film Censors.