RUDRA TALKIES Vs. PREM SAGAR AND CO

JUDGEMENT

(1.) ON 30th of October 1968, respondent No. 1, Messrs. Prem Sagar and Company, applied to the District Magistrate, Karnal, the licensing authority under the Punjab cinemas (Regulation) Act, 1952, (Punjab Act No. 11 of 1952), hereinafter referred to as the Act, for permission to construct a cinema house outside the city of thanesar on the road leading to Birla Mandir. On inspection of the site by the authorities it was found that it was low lying area, was only 130 feet from the centre of railway track and 500 feet from the local Arya High School. As Rule 19 (1) (a) (ii) of the Punjab Cinemas (Regulation) Rules, 1952, framed under Section 9 of the Act, hereinafter referred to as the Rules, provided that the site of a building licensed for cinematograph exhibition shall not be within a radius of one furlong (660 feet) from a recognised educational institution etc. , the District magistrate declined to grant the license by his order dated the (sic) of September 1964 (copy of which is Annexure 'd' to Civil Writ No. 2819 of 1965 on the record.)Aggrieved by this decision, Messrs. Prem Sagar and Company appealed under sub-section (3) of Section 5 of the Act, but the appeal was rejected as neither the licensing nor the appellate authority had any power to relax the provisions of Rule 19 (1) (a) (ii) of the Rules referred to above. Taking advantage of the provisions of Section 10 of the Act, which empowers the Government to exempt any premises intended to be used for cinematograph exhibition from any of the provisions of the Act or of any rule made thereunder, Messrs-Prem Sagar and company moved the Government for exemption from the provisions of the rule relating to the distance between the proposed cinema building and am educational institution viz. , Rule 19 (1) (a) (ii ). In this representation Prem Sagar, owner of the concern, stated inter alia that on the promulgation of the Gold 'control Order he had been thrown out of the jewellers' business, which he was previously carrying on, and had thus to engage himself in some other business to support his large family. He further pointed put that the cinema, known as 'rudra Talkies', which already existed in the town, was even less than 500 feet from the Gita High School. On due consideration of the matter, the Government by its order dated the 17th of September 1965 (copy annexure 'g' to the abovementioned writ petition) granted exemption to Messrs. Prem Sagar and Company from the provisions of Rule 19 (1) (a) (ii ). Being thus faced with the prospect of a competing business, Messrs. Rudra Talkies, through their partner Rameshwar Dass Gupta, approached this Court under Article 226 of the Constitution for quashing the Government's orders exempting Messrs. Prem sagar and Company from compliance with the provisions of Rule 19 (1) (a) (ii) of the Rules.

(2.) IT was pleaded that the respondent-company could not be exempted from complying with the provisions of the rules regarding cinema buildings, which were mandatory, and the rule or provision of law under which the Government had granted exemption was itself ultra vires the Constitution of India as it contained no guiding principle for the grant or refusal of such exemptions, but gave unguided and uncontrolled power to the Government and was thus discriminatory and in conflict with the provisions of Article 14 of the Constitution. The learned Single Judge, before whom the petition came up for hearing, besides observing that it was extremely doubtful if an executive order of this kind could be challenged by a writ petition, held that the petitioners were not entitled to any relief as the impugned order did not infringe any of their legal rights. The learned judge further observed that it was for the Government to decide whether exemption should or should not be granted in respect of a particular site. The petition of Messrs. Rudra Talkies was accordingly dismissed, but the parties were left to bear their own costs. It may be mentioned here that in the course of the proceedings, on the 4th of april 1966, an application under Order 1, Rule 10 read with Section 151, Civil procedure Code, for adding them as petitioners in the ease was made by three residents of Thanesar on the plea that their children were studying in the Arya high School which is at a distance less than the prescribed distance of 660 feet from the proposed cinema building, and the construction of cinema on that site would seriously affect "the education and career of the children". This application was granted subject to just exceptions, but it appears that it was not even brought to the notice of the contesting respondents when the writ petition was finally disposed of. Aggrieved by the order of the learned Single Judge dated the 17th of may 1966, Messrs. Rudra Talkies and the three gentlemen who had applied for being impleaded as petitioners in the case and whose application had been granted subject to just exceptions, have come up in appeal under Clause 10 of the letters Patent.

(3.) MR. G. C. Mittal, learned counsel for the appellants, has contended---