SARALA ENTERPRISERS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner is partnership firm and own a show house under the name and style of M/s. Laxmi Talkies. It has been granted licence under the Orissa Cinemas(Regulation) Act, 1954 (for short 'the Act') for exhibitions of films. The first such licence was given on 13 -10 -1983 which was being renewed from time to time as required by the provisions of the Act read along with the Rules framed thereunder. On the petitioner applying for renewal of licence in the office of opp. party No. 2 on 2 -4 -1990, as at Annexure 3, the communication dated 14 -6 -1990 (Annexure -2)was issued informing the petitioner that the licence could not be renewed or extended for want of tax clearance certificate. The communication further stated that if tax would not be paid, steps would be taken to close down the show house. This communication owes its origin to Annexure -1 by which Rule 9 of the Orissa Cinemas (Regulation) Rules, 1964 as amended by substituting Sub -rule (2) thereof in the following language : 'The application for renewal shall be accompanied by copies of the certificates of inspection last conducted by Public Works Department, Public Health Department, Electrical Authorities and a certificate in support of clearance of tax including surcharge, if any, payable under the Orissa Entertainment Tax Ac, obtained from the Commercial Tax Officer within whose jurisdiction the licensed premises is located.' (Emphasis ours) The petitioner has assailed the validity of Annexure -1 and the legality of Annexure -2.

(2.) IN so far as the validity of Rule 9 (2) as amended is concerned,the same is assailed on the ground that the provision for filing certificate in support of clearance of tax including surcharge as a condition precedent along with the application for renewal is ultra vires inasmuch as the same is beyond the scope of the Act. The submission of Shri Ray is that the rule -making power conferred by Section 9 of the Act can only be used for the purpose of bringing into effect the provisions of the Act apart from the specific purpose mentioned in Sub -section (2), Clause (a) of which speaks of the terms subject to which licence may be granted under the Act. According to Shri Ray, the terms of which Clause (a) speaks, or for that matter about which reference has been made in Section 5(2) of the Act, has to be a term which has nexus with the purpose of grant of licence. A term which is irrelevant or is no way connected with the goal sought to be achieved by the requirement of obtaining licence cannot be imposed by the rule -making authority.

(3.) THERE can be no dispute that the rule -making authority can frame rules relating to t'rms on which licence may be granted, and that applies for grant of licence may also apply for renewal of licence. But then, as already stated, the term should have nexus with the grant of licence. The Act was enacted to regulate exhibition by means of cinemas in the State. So, the object of the Act is to regulate exhibition, and for this purpose licence is required. A perusal of the relevant sections of the Act shows that before licence is granted, adequate precautions are to be taken to provide safety to persons attending exhibitions. In the rules as framed, provision has been mada for inspection before grant or renewal of licence, when the Executive Engineer is to examine the structural features and the Electrical Inspector is to examine the electrical1 equipments etc. as mentioned in Rule 12. We are, therefore, inclined to think that the term which may be imposed by framing rules has to be one which operates primarily on the field of safety of the persons attending exhibitions. It is for this purpose that licensing is insisted upon. If the Act is thus viewed, we are of the opinion that tax clearance certificate ceases to have relevance and, according to us, cannot form a part of the term the satisfaction of which is necessary for grant or renewal of licence. It really seems that this provision has been inserted not for the purpose of safety of the persons attending exhibitions, but to ensure collection of entertainment tax, for which purpose there is an Act called the Orissa Entertainment Tax Act, 1946, which has its own mechanism. So according to us, instead of pressing into service the provisions of that Act, the present rule -making authority almost trespassed into the field carved out for that Act by imposing the condition in question.