JUDGMENT
S.K. Choudhuri, J.
1. In this writ application filed under Articles 226 and 227 of the Constitution of India, the petitioner prays for issue of a writ of certiorari quashing the order of the State Government (respondent No. 1) dated 28th of Nov., 1980, which is said to have been passed by the Minister of Local Self Government, Bihar, as contained in Annexure 1 by which a direction has been issued to issue the licence of Shri Krishna Talkies, Samastipur, in the name of Chandradeo Singh (respondent No. 4), and a writ of mandamus commanding on the respondents to renew the cinema licence of the aforesaid Shrikrishna Talkies, Samastipur in the name of the petitioner.
2. It may be stated here that the petitioner’s husband Shri Surajdeo Singh started the aforesaid cinema business sometime in the year 1958 in a Hall (building) belonging to the Bengali Hindu Theatrical Club, Samastipur, which was taken on rent by him. It is not disputed that said Shri Surajdeo Singh was exhibiting the cinema in the said Hall under an appropriate licence granted by the licensing authority.
The petitioner, who is the wife of said Surajdeo Singh, as already stated above, claims the said cinema business with all it appliances on the basis of a document executed by her husband in favour of the petitioner. It is said that since the date of transfer, the petitioner is running the cinema business in her own right. The petitioner’s further claim is that all the appliances, furnitures and projectors etc., were sold by the petitioner’s husband on payment of price for which a stamped receipt was granted to the petitioner by her husband on 2-2-1978. A copy of the transfer deed and the receipt have been made Annexures 3 and 4 respectively of this writ application. According to the petitioner, after the aforesaid transfer of the cinema business by her husband in her favour, her husband informed several authorities in writing about the aforesaid transfer. She has claimed to have made payment of ail taxes relating to the cinema business including the income-tax, sales tax and entertainment tax. In proof of these facts, the petitioner has annexed copies of various documents as annexures. A copy of the affidavit sworn by the petitioner’s husband for presenting it before the Superintendent of Commercial Taxes, Samastipur, dated the 30th Dec., 1978 has been quoted in full in para 11 of the writ application. The purport of the said affidavit sworn by the petitioner’s husband is that he has sold the Motion Pictures Exhibiting Old Projectors including all appliances, furniture etc., located in Shri Krishna Talkies, Samastipur to the petitioner for a sum of Rs. 10,000/-, and the said price was received by him in cash for which a receipt was granted on 2-2-1978. He has also admitted in that affidavit that he has already transferred his ownership in the aforesaid cinema business to his wife for all purposes with its all belongings. It has also been stated therein that the contents of the petition sent by the petitioner’s husband to the Superintendent of Commercial Taxes for amendment of the registration (a copy of which is Annexure 5) are true to the best of the deponent’s knowledge and belief. Annexure 6 dated 30th Dec., 1978 is a copy of the letter purported to be written by the petitioner’s husband to the District Magistrate, Samastipur for substitution of the name of his wife in his place as licensee of the cinema business of M/s. Krishna Talkies, Samastipur and in it a prayer was made to renew the licence in her name. The petitioner has also claimed that in Jan., 1979, the cinema show was stopped as the dues of the District Board, Samastipur was not paid, and, accordingly, the petitioner arranged for payment of the dues of the District Board in instalments and made part payment of the dues by two cheques. Thereafter, according to the petitioner, the Magistrate in charge Cinema of Samastipur (respondent No. 3) allowed the petitioner to run the cinema from 3rd Feb., 1979. A true copy of the aforesaid letter has been annexed as Annexure 8 to the writ application. The petitioner also claims to have obtained clearance certificate from the Sales Tax Department in her name which was required for renewal of the cinema licence, a copy of which is Annexure 9. The petitioner also claims to have deposited renewal fee of the cinema licence for the year 1980 amounting to Rs. 1,400/-in the Treasury through Chalan in her own name and also made an application for renewal of the cinema licence. A copy of the treasury chalan is Annexure 10 and a copy of the application for renewal of the cinema licence is Annexure 11 to the writ application.
3. The matter was dealt with by the District Magistrate, Samastipur (respondent No. 2), who after examining and perusing all relevant papers was satisfied that the renewal of the cinema licence be made in favour of the petitioner. This is to be found in the recommendation of the District Magistrate as contained in Annexure-12 sent to the State Government dated 18th March’, 1980. On receipt of the said recommendation, the Stale Government (in the Urban Development and Housing Department) wrote to the District Magistrate, Samastipur, that the renewal of the permanent licence from 1-1-1980 to 31-12-1982 (i.e. for three years) of Shrikrishna Talkies, Samastipur, is being granted on the condition that the licence for the year 1980 is being renewed whereas for the years 1981 and 1982 it would be done after examination of the relevant papers. A direction was also issued to the District Magistrate that he would examine all the relevant papers, take opinion of the Government Pleader and thereafter send the matter to the Government for consideration as to whether the licence will be issued in the name of the petitioner or not. A copy of the aforesaid Government letter dated 9th April, 1980 has been annexed as Annexure-13 to the writ application. After Annexure-13 was received by the District Magistrate, he examined the matter, took opinion of the Government Pleader, Samastipur and sent his recommendation to the Government (Urban Development and Housing Department) on the 16th June, 1980 recommending renewal of the licence in favour of the petitioner. Annexure-14 is the true copy of the said letter and Annexure-15 is the true copy of the opinion of the Government Pleader, Samastipur. However, the State Government (Urban Development and Housing Department) did not choose to pass order in consonance with the District Magistrate’s recommendation, but took opinion from the then Advocate General, Bihar and ultimately by order dated 28th Nov., 1980 directed renewal of the licence in the name of Chandradeo Singh (respondent No. 4), who is the son of Suraj-deo Singh and step son of the petitioner. The petitioner has, therefore, moved this writ application for the aforesaid reliefs.
4. It will be relevant to state here that a counter-affidavit has been filed by respondent No. 4, who has, in it, stated his claim. It appears that he has claimed the cinema business under a registered deed of lease for five years purported to have been executed by Surajdeo Singh on 27th May, 1977. Respondent No. 4 has, in the counter-affidavit, denied the claim of the petitioner and has stated that the payment of dues and taxes by the petitioner and applications to various authorities and the action taken thereon were merely an effort on the part of the petitioner to create documents in her favour. Respondent No. 4 has, accordingly contested the claim of the petitioner.
5. A reply to the counter-affidavit has been filed in which the petitioner has reiterated her stand already taken in the main writ application and has also annexed with the reply various copies of papers showing payment of entertainment tax from time to time and purchase of adhesive stamps for the same. It will also not be out of place to mention that apart from denying the claim of the petitioner, respondent No. 4 has enclosed a copy of the deed of [ease for five years as Annexure-A, and has not filed anything else in proof of his claim that it was he who was running the cinema business since the date of the lease and that he was in possession of the said business and the Hall
6. Mr. Basdeo Prasad learned counsel for the petitioner in the first instance contended that the order of the State Government as contained in Annexure-1 dated 28th Nov., 1980 is illegal and without jurisdiction as the licensing authority is the District Magistrate, Samastipur (Respondent No. 2) who only could grant licence to the petitioner. According to the learned counsel, the District Magistrate, Samastipur having found everything in favour of the petitioner ought to have granted the renewal of the licence instead of sending the same to the State Government for its consideration and passing orders thereon.
7. Mr. Prabha Shankar Mishra appearing on behalf of respondent No. 4, on the other hand, tried to counter-act the argument of Mr. Prasad by contending that the licensing authority being under the control of the State Government, it cannot be said that the order of the State Government directing issue of licence in the name of respondent No. 4 is illegal and/or without jurisdiction.
8. In order to examine the respective arguments aforesaid, it is necessary to indicate the provisions of the Bihar Cinemas Regulation Act, 1954 (Bihar Act XV of 1954) (hereinafter referred to as ‘the Act’) consists of 11 sections. It is an Act to make provision for regulating exhibition by means of cinematographs in the State of Bihar. Section 2 contains the definition of some of the words. The heading of Section 3 is ‘Cinematograph exhibition to be licensed’. The important provisions are Sections 4 and 5 which are required for consideration and therefore quoted below. Section 4 reads as follows :–
“4. Licensing Authority.– The authority having power to grant licences under this Act (hereinafter referred to as the Licensing Authority) shall be the District Magistrate :
Provided that the State Government may, by notification in the Official Gazette, constitute for the whole or any part of the State, such other authority as it may specify in the notification to be the Licensing Authority for the purposes of this Act.”
Section 5 without Sub-section (4) which is not relevant for the present purpose, is quoted below :–
“5. Restriction of powers of Licensing Authority.– (1) The Licensing Authority shall not grant a licence under this Act, unless it is satisfied that —
(a) the rules made under this Act have been substantially complied with; and
(b) adequate precautions have been taken in the place in respect of which the licence is to be given, to provide for the safety of persons attending exhibition therein.
(2) Subject to the foregoing provisions of (his section and to the control of the State Government, the Licensing Authority may grant licences under this Act to such persons as that authority thinks fit and on such terms and conditions and subject to such restrictions as it may determine.
(3) Any person aggrieved by the decision of a Licensing Authority refusing to grant a licence under this Act may, within such time as may be prescribed appeal to the State Government or to such officer as State Government may specify in this behalf, and the State Government or the officers, as the case may be, make such order in the case as it or he thinks fit.”
Section 6 gives power to the State Government or the District Magistrate concerned to suspend exhibition of films for reasons recorded in that section. Section 7 imposed penalty for contravention of the provisions of the Act or of the rules made thereunder, or, for violation of the conditions and restrictions of the licence etc. Section 8 given power to the Licensing Authority to revoke or suspend licence where the holder of a licence has been convicted for offences mentioned in that section. It also gives right to appeal from such revocation or suspension of licence to the State Government. Under Section 9 the State Government may by notification in the Official Gazette make rules for the purpose of carrying into effect the provisions of the Act, and such rules may provide for matters which are mentioned is Clauses (a) to (f) of Sub-section (2) of that section. Section 10 gives power to the State Government to exempt any cinematograph exhibition or class of cinematograph exhibition from any of the provisions of the Act or of any rules made thereunder. By Section 11 of the Act, Cinematograph Act 1918 in its application to the State of Bihar and in so far as it relates to matters other than the sanctioning of cinematograph films for exhibition, has been repealed. This is shortly, the framework of the Act. It is not necessary to indicate the contents of the Rules which is called the Bihar Cinemas (Regulation) Rules, 1974, except Rule 8 as it was referred to at the time of hearing by Mr. Basdeo Prasad learned counsel appearing on behalf of the petitioner, and as such I think it appropriate to quote the said Rule :–
“8. Grant of Licence.– (i) On completion of permanent cinema house to his satisfaction, the Licensing Authority may grant a licence for permanent cinema after he has ensured that the applicant has complied with the provision of these rules and instructions issued from time to time by the State Government and has taken all precautions to provide for the safety of persons attending exhibition in the cinema house;
Provided that nothing contained in these rules shall apply to the case of a permanent cinema house which has already been constructed wholly or partly before the commencement of these rules, and in such cases, the Licensing Authority, may on an application made to him in this behalf grant a licence for a permanent cinema even if these rules have not been complied with :
Provided further that the Licensing Authority may require the licencee of such cinema houses to make certain alterations or improvements in the building if in his opinion, the same is necessary for the safety of the cine-goers.
(ii) All such licences will be given subject to the approval of the State Government.”
I indicate here that this Rule has no application in the present case, as the first proviso to Sub-rule (i) of the said Rules excludes its applicability to a permanent cinema hall which has already been constructed wholly or partly before the commencement of these Rules. As already indicated above the cinema business in the present permanent building is being run from the year 1958. Thus Sub-rule (ii) of Rule 8 has no application to the present case.
9. The main argument hinges upon Sub-section (2) of Section 5 of the Act, already quoted above, wherein the words ‘…….. the control of the State Government …….” are to be found. It cannot be disputed that Section 4 of the Act gives power to the District Magistrate as the authority to grant licences under the Act, and it is the District Magistrate who is the Licensing Authority under that section. However, under the proviso to that section, the State Government may by notification in the Official Gazette constitute for the whole or any part of the State, such other authority to be the Licensing Authority for the purpose of this Act, but we are not concerned with this proviso. Section 5 gives power to the said authority to grant a licence on being satisfied with the conditions laid down under Sub-section (1). Sub-section (2) gives power to the Licensing Authority to grant licences under this Act to such persons as that authority thinks fit and on such terms and conditions and subject to such restrictions as it may determine. However, this power is subject to the control of the State Government. It is contended by Mr. Prasad that this power of control by the State Government would be exercised only after an order is passed by the Licensing Authority in favour or against the person concerned. If it is against the person concerned, then under Sub-section (3) of Section 5 of the Act, he will have a right of appeal to the State Government, but if it is in favour of the person concerned, then there is no question of preferring an appeal under Sub-section (3), but in a case where the State Government is of the opinion that the licence has been granted not in accordance with the provisions of the Act and the Rules and to a person not entitled to have the said licence, then the State Government in such a case can exercise its power of control and pass such orders as it thinks fit and in such a case exercise of power by the State Government would amount to exercising power in revisional jurisdiction. According to the learned Counsel that is the true import and meaning of the word ‘the control of the State Government’ used in Sub-section (2) of Section 5 of the Act. In support of the contention, learned Counsel referred to a decision of the Supreme Court in the case of State of Punjab v. Hari Kishan Sharma (AIR 1966 SC 1081). This decision shows that the provisions of the Punjab Cinemas (Regulation) Act 1952 are in pari materia with the provisions of the present Act, namely, the Bihar Cinemas (Regulation) Act, 1954, and it appears that there is no difference between Sections 4, 5 and other sections of the Act with the aforesaid Punjab Act. As such, in my view after perusing the judgment of the Supreme Court, the principles laid down in that case will fully apply in the present case. The question before the Supreme Court was the construction of Section 5 (2) of the Punjab Cinemas (Regulation) Act. While considering that sub-section which uses inter alia the words ‘control of the Government’ and which is in pari materia with Section 5 (2) of the present Act, it has been held in para 14 of the report as follows :–
‘The control of Government contemplated by Section 5 (2) may justify the issue of general instructions or directions which may he legitimate for the purpose of the Act, and these instructions and directions may necessarily guide the licensing authority in dealing with applications for licences. The said control may, therefore, take the form of the issuance of general directions and instructions which are legitimate and reasonable for the purpose of the Act. The said control may also involve the exercise of revisional power after an order has been passed by the licensing authority. It is true that Section 5 (2), in terms, does not refer to the revisional power of the Government; but having regard to the scheme of the section, it may not be unreasonable to hold that if the Government is satisfied that in a given case, licence has been granted unreasonably, or contrary to the provisions of Section 5 (1), or contrary to the general instructions legitimately issued by it, it may suo motu exercise its power to correct the said order by exercising its power of control. In other words, in the context in which the control of the Government has been provided for by Section 5 (2), it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders if they are found to be erroneous; but in any case, Government has to function cither as an appellate authority or as a revisional authority, for that is the result of Section 5 (2) and (3). Government cannot assume for itself the powers of the licensing authority which have been specifically provided for by Section 5 (1) and (2) of the Act. To hold that the control of the Government contemplated by Section 5 (2) would justify their taking away the entire jurisdiction and authority from the licensing authority, is to permit the Government by means of its executive power to change the statutory provision in a substantial manner; and that position clearly is not sustainable.”
In para 16 of the report it is said that “Section 5 clearly requires that such applications must be dealt with by the licensing authorities in their respective areas in the first instance, and if they are granted, they may be revised by Government under Section 5 (2); and if they are rejected, parties aggrieved by the said orders of rejection may prefer appeals under Section 5 (3) of the Act. The basic fact in the scheme of the Act is that it is the licensing authority which is solely given the power to deal with such applications in the first instance, and this basic position cannot be changed by Government by issuing any executive orders, or by making rules under Section 9 of the Act”
10. The arguments of Mr. Prasad is thus well founded and has to be accepted. The interpretation put in the judgment of the Supreme Court in Section 5 (2) of the aforesaid Punjab Act will fully apply to Section 5 (2) of the present Act, as there is no difference in the language used in the two Acts; rather it appears from the decision of the Supreme Court where the provisions of the Punjab Cinemas (Regulation) Act, 1952 have been briefly indicated that the provisions of the Bihar Cinemas Regulation Act, 1954 are also similar. Therefore, in my view under the guise ‘control of the State Government’ as used in Sub-section (2) of Section 5 of the Act the State Government could not usurp the power of the licensing authority which had the exclusive jurisdiction to deal with the original application for grant and/or renewal of a cinema licence and dispose of the same in accordance with law. I may state here that other points were canvassed at the Bar, but in my opinion, it is neither necessary nor appropriate to refer and discuss other points raised at the Bar as the licensing authority has yet to apply its mind and dispose of the original application of the petitioner for renewal of the licence in her name. In the circumstances it would be open to the parties to raise such points as may be available to them before the licensing authority. I do not wish to prejudice the licensing authority by referring and answering those points at this stage.
11. An argument was advanced by Mr. Mishra that the order and/or note under Annexure 1 is not an instruction of the Government and as such it was not necessary to be communicated to the petitioner. That may be so, but it is certainly a direction issued to the District Magistrate the licensing authority to issue licence in the name of respondent No. 4, and no discretion in any manner is left to the District Magistrate to be exercised in the matter of grant and/or renewal of the licence in question. Though the petitioner may not be entitled to communication of Annexure 1 but, in fact, the petitioner has been affected and prejudiced by the said issuance of Annexure 1 by the licensing authority and is, therefore, entitled to challenge in this writ application any interference by the State Government in the decision of the question at issue. Therefore, the order and/or note as contained in Annexure 1 should be considered to be non est.
12. Mr. Mishra during the course of arguments referred to the decisions in the case of Arya Pratinidhi Sabha v. The State of Bihar an unreported decision of the High Court in C. W. J. C. No. 1120 of 1966 disposed of on 13th April, 1967 which went to the Supreme Court on special leave being granted. This decision of the Supreme Court is reported in 1968 Pat LJR 28 A and was cited before us. The report shows that before the Supreme Court two points were raised; one was that the District Magistrate the licensing authority did not consult the Cinema Advisory Committee set up under the direction of the State Government, but consulted a body comprising of different persons. This point has been negatived by the Supreme Court wherein it has been held that a properly constituted advisory committee had met on 16th June, 1961, and it recommended the grant of licence subject to certain conditions being imposed. The other point that was raised before the Supreme Court was that the State Government interposed its authority contrary to law because the District Magistrate alone was entitled to grant a licence. The Hon’ble Judges of the Supreme Court declined to consider on the ground that this point was never raised at any time before, and the settled practice of the Supreme Court is that no new point shall be allowed to be taken unless specially permitted. This decision, therefore, does not help any of the parties.
13. In the result, the writ application is allowed. Let a direction issue to the licensing authority to dispose of the application of the petitioner in accordance with law uninfluenced by any order and/or note of the State Government as contained in Annexure 1, which may be taken to be non est. In the circum-stances of the case, there will be no order as to costs,
Yadunath Sharan Singh, J.
14. I agree.