K NARAYANA Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) There is a long drawn litigation in this case. The petitioner is the owner of a semi-permanent theatre by name Srinivas Talkies situate at Kodumuru in Kurnool District. The third respondent, Nab Saheb is also proprietor of a temporary theatre in the same village. The said temporary theatre was existing since a long time. Admittedly, the distance between the petitioner's theatre and the third respondent's theatre is below 800 meters. The Joint Collector cancelled the latter's licence granted under Rule 11(b) of the Andhra Pradesh Cinemas (Regulation) Act, and Rules, 1970, for short, "the Rules". This was done on expiry of the period of licence granted earlier in exercise of power under sub-rule 5 of Rule 7 thereof. The third respondent filed an appeal before the Government who in their G.O. Rt. No. 3273 dated November 24, 1984 allowing the appeal directed the Joint Collector to renew the licence. This was impugned in W.P. No. 13216/1984 by the petitioner which was allowed by this Court on September 25, 1984 and directed the Government to dispose of the application filed by the 3rd respondent under Section 12 of the Act which was pending before the Government. The Government in exercise of power under Section 12 of the Act accorded exemption in G.O. Rt. No. No. 3273 dated November 24, 1984, exempting from the operation of Rule 7(5). Again this was assailed in W.P. No. 16230 of 1984 which was allowed on February 7, 1985 setting aside the order of exemption. Against the said order, the third respondent filed W.A. No. 200 of 1985 and the same was dismissed on February 22, 1985 confirming the order in W.P. No. 16230 of 1984. Thereafter, in G.O Ms. No. 187 dt. March 27, 1985, sub rule (5) of Rule 7 was amended and it was recasted. Again in exercise of rule making power, G.O. Ms. No. 474 dated September 24, 1985 was issued introducing a proviso to sub-rule (5) to Rule 7. The petitioner is assailing the proviso in this writ petition.

(2.) The contention of the learned counsel for the pettitioner is that Rule 7 imposes restriction with regard to the distance between permanent or semi-permanent theatre and temporary theatre. Originally sub-rule 5 with notwithstanding clause includes operation of sub-rule 2 of Rule 7, thereby sub-rule 5 encourages for coming up of permanent and semi-permanent theatres and prohibits permission for temporary theatres. But the existing theatres shall stop exhibiting cinemas on expiry of licence granted prior to that period as a result the petitioner got vested right to exhibit cinemas in bis semi-permanent theatre. The third respondent is devoid of any right to claim any exemption in the light of operation of sub-rule 5 of Rule 7. The proviso cuts at the applicability or efficacy of sub-rule 5 of Rule 7. Therefore, the Government cannot make rules defeating the purpose of sub-rule 5 of Rule 7. It is also contended that the Government is devoid of power to make rules with retrospective effect. The first question, therefore, is whether the Government has power to amend the rules. It is not in dispute that under Section 11 of A.P. Cinemas (Regulation) Act, government is empowered to make rules to carry out the purpose of the Act. Under sub-section 2(a) of the Act, it provides that in particular and without prejudice to the generality of the foregoing power, such rules may provide for the terms, conditions and restrictions if any, subject to which licences and permissions may be granted under the Act. Section 12 also gives power to the Government to accord exemption when reasonable grounds exist for doing so. Therefore, the Government is clearly empowered by operation of Sections 11 and 12 either to impose conditions or to exempt from such conditions for the purpose of carrying out the purpose of the Act or to impose restrictions and also to relieve from the restrictions so imposed by operation of the exercise of the power under Section 12 of the Act. Sub-rule 5 originally unamended read as follows :

(3.) It is undoubtedly clear that this rule was unamended at the date when the Writ appeal was dismissed by this Court on February 22, 1985. But it must be remembered that the right acquired by the petitioner is only a statutory right under the provisions of the Act and the Rules. The petitioner has no independent right except the statutory right. Therefore, the right will be subject to the law. It is now well settled that the Government by operation of Section 11 is empowered to make rules. It includes to amend the rules from time to time. No doubt, rule making authority is not expressly empowered to make rule with retrospective effect. But it has got power to make rules and the rules would be with prospective operation from the date they come into force. Rule 5 was amended as stated earlier in G.O. Ms. No. 187 dated March 27, 1985 which reads thus : "Licence shall not be granted for construction of permanent or semi-permanent or temporary cinema buildings within the distance of 800 metres in place where temporary cinema theatres exist on the date of application of the applicants." Therefore, by operation of this rule amended sub-rule 5 of Rule 7 with effect from March 22, 1985, where there exists an application was pending for grant of temporary theatre, licence shall not be granted for construction of permanent or semi-permanent or temporary theatres within the distance of 800 metres. Thereby the intendment is the distance of 800 metres shall be adhered to and maintained, and in no case it could be relaxed. But what is happened to the existing temporary theatres has come up before the Government for consideration on a representation made by the Association of temporary theatres owners. The Government have considered and issued the impugned G.O. Ms. No. 474 with effect from September 24, 1985 which reads as follows :