# "'- . \. \ to2i STATE OF U.P. AND ANR v. RAJA RAM JAISWAL AND ANR

- **Citation:** [1985] 3 S.C.R. 1021
- **Court:** Supreme Court of India
- **Decided:** 1985-04-29
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/to2i-state-of-u-p-and-anr-v-raja-ram-jaiswal-and-anr-8891
- **Pages:** 21

## Headnote

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STATE OF U.P. AND ANR.
v.
RAJA RAM JAISWAL AND ANR.
April 29, 1985
[D. A. DBSAI AND V. BALAKRISHNA ERADI, JJ.],
Constitution of India 1950, Artide 226 Writ of Mondamus-lssuance ofTo statutory "authority under Q licensing statute to grant a licencC-Whether per·
missible.
U.P. Cinema <Regulation) Act, 1955, sections 3 and 5 & U.P. Cinematograph Rules 1951Rules3 and 7.
Licence for location and construction of Cinema under Rule 3-Licence for
exhibition of films
in cine1na building under section 3-Grant of-Determination
of'public intere.~t'-Stages of consideration-Explained.
A
B
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D
Administrative Law Licensing powers-Indisputable adjunct of controlled
econo1ny-Exercise in oppressive or arbitrary manner-Avoidance of-Vigilance
E
by courts-Necessity of.
Construction of Cinema theatre-Grant of licence-Objection of Hindi
Sahitya Somme/an-Refusal of Licence-Whether justified.
The respondent desired to construct a cinema theatre on a plot of land.
He submitted an application under Rate 3 of tho. U.P. Cinematograpb Rules
1951 to the District Magistrate. for obtaining a certificate signifying his approVal of the site selected for constructing a permanent building to be used for
cinematograpb exhibition. The District Magistrate as the licensing Authority
issued a public notice specifying the request of the respondent for grant of a
certificate and calling objections. An organisation called the Hindi Sahitya
Sammelan alone submitted its objection, The District Magistrate referred the
application of the respondent to the State Government, which directed the District Magistrate to carefully examine the matter. The District Magistrate was
of the opinion that the Sammelan can neither be styled as an edllcational institution nor a residential institution with~n the contemplation of Rule 7(2)(b) because it was an institution wedded to and working for the propagation of Hindi
language, and even though it may provide some research facility on its campus,
it has no regular programme of class teaching, and that having regard to all the
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SUPREME CUORT REPORtS
(1985] 3 s.c.R..
relevant circumstances, the construction of a cinema building at the proposed
site was not against public interest. On the contrary, it was held that a modern
beautiful fully air-conditioned cinema building apart from adding to the beautification of the city would enrich the coffers of the State exchequer in 1he form
of entertainment tax. The District Magistrate granted the certificate informed
the respondent that construction of a cinema hou.se and be completed within
two years from the date of the issuance of the order. Chagrined by the grant of
the certificate, the Sammelan initiated action for acquisition of the plot over
which the cinema building was being constructed, should uoder the Land Acquisition Act. The respondent successfully assailed the acquisition order in the
High Court.
In the meantime as the period of two years specified in the certificate
issued under Rule 3 was about to expire, the respondent moved an application
for extension of time for completion of the construction of cinema building, and
during the pendency of this application, the building was completed.
The respondent made an application under section 3 of the U.P. Cinema
(Regulation) Act, 1955 for a licence to exhibit films in the cinema building. The
District Magistrate refused to grant the licence. The respondent preferred an
appeal under Sec. 5(3) of the 1955 Act to the State GOvernment, which allowed
the appeal and remitted the matter to the District Magistrate with a dire.:tion to
re-examine the grounds on which he had refused to grant licence to run the
cinema in accordance with the rules and pass suitable and legal order after
giving an opportunity of hearing.
Against the aforesaid order of remand the respondent filed a Writ Petition in the High Court. A Division Bench held that even thoug_h the order
under challenge was one of remand, as the respondent

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STATE OF U.P. AND ANR.
v.
RAJA RAM JAISWAL AND ANR.
April 29, 1985
[D. A. DBSAI AND V. BALAKRISHNA ERADI, JJ.],
Constitution of India 1950, Artide 226 Writ of Mondamus-lssuance ofTo statutory "authority under Q licensing statute to grant a licencC-Whether per·
missible.
U.P. Cinema <Regulation) Act, 1955, sections 3 and 5 & U.P. Cinematograph Rules 1951Rules3 and 7.
Licence for location and construction of Cinema under Rule 3-Licence for
exhibition of films
in cine1na building under section 3-Grant of-Determination
of'public intere.~t'-Stages of consideration-Explained.
A
B
c
D
Administrative Law Licensing powers-Indisputable adjunct of controlled
econo1ny-Exercise in oppressive or arbitrary manner-Avoidance of-Vigilance
E
by courts-Necessity of.
Construction of Cinema theatre-Grant of licence-Objection of Hindi
Sahitya Somme/an-Refusal of Licence-Whether justified.
The respondent desired to construct a cinema theatre on a plot of land.
He submitted an application under Rate 3 of tho. U.P. Cinematograpb Rules
1951 to the District Magistrate. for obtaining a certificate signifying his approVal of the site selected for constructing a permanent building to be used for
cinematograpb exhibition. The District Magistrate as the licensing Authority
issued a public notice specifying the request of the respondent for grant of a
certificate and calling objections. An organisation called the Hindi Sahitya
Sammelan alone submitted its objection, The District Magistrate referred the
application of the respondent to the State Government, which directed the District Magistrate to carefully examine the matter. The District Magistrate was
of the opinion that the Sammelan can neither be styled as an edllcational institution nor a residential institution with~n the contemplation of Rule 7(2)(b) because it was an institution wedded to and working for the propagation of Hindi
language, and even though it may provide some research facility on its campus,
it has no regular programme of class teaching, and that having regard to all the
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SUPREME CUORT REPORtS
(1985] 3 s.c.R..
relevant circumstances, the construction of a cinema building at the proposed
site was not against public interest. On the contrary, it was held that a modern
beautiful fully air-conditioned cinema building apart from adding to the beautification of the city would enrich the coffers of the State exchequer in 1he form
of entertainment tax. The District Magistrate granted the certificate informed
the respondent that construction of a cinema hou.se and be completed within
two years from the date of the issuance of the order. Chagrined by the grant of
the certificate, the Sammelan initiated action for acquisition of the plot over
which the cinema building was being constructed, should uoder the Land Acquisition Act. The respondent successfully assailed the acquisition order in the
High Court.
In the meantime as the period of two years specified in the certificate
issued under Rule 3 was about to expire, the respondent moved an application
for extension of time for completion of the construction of cinema building, and
during the pendency of this application, the building was completed.
The respondent made an application under section 3 of the U.P. Cinema
(Regulation) Act, 1955 for a licence to exhibit films in the cinema building. The
District Magistrate refused to grant the licence. The respondent preferred an
appeal under Sec. 5(3) of the 1955 Act to the State GOvernment, which allowed
the appeal and remitted the matter to the District Magistrate with a dire.:tion to
re-examine the grounds on which he had refused to grant licence to run the
cinema in accordance with the rules and pass suitable and legal order after
giving an opportunity of hearing.
Against the aforesaid order of remand the respondent filed a Writ Petition in the High Court. A Division Bench held that even thoug_h the order
under challenge was one of remand, as the respondent has journeyed to and fro
on numerous occassions, it was necessary to dispose of the petiiion on merits,
and held that while granting a certificate under Rule 3 of the 1951 Rules, it was
open to the licensing authority to take into consideration whether it would be in
public interest to grant the necessary certificate or to refuse the same, but after
the grant of certificate when a fulftedged cine!J1a building comes up and is
shown to comply with the relevant rules and regulations, cinematograph licence ·
cannot be refused on the vague consideration that it would not be in public
interest to grant the _licence.
It was also held that the failure to complete the
construction of the cinema building within the prescribed time, if properly explained would not be a ground to refuse the cinematog:raph licence, more. so
because the requirement of rule 3(3) is directory and not mandatory. The High
Court accordingly 1nade the rule absolute and in modification of the order of the
State Government, it directed the District Magistrate-Licensing Aut!1ority to
forthwith grant to the petitioner the requisite licence subject to reasonable condition and restrictions.
Jn the appeal to this Court it was contended on behalf of the appellant~
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5tate that the scheme of the U.P. Cinema (Regolation) Act, 1955 and the U.P.
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Cinematograph Rules 1951 reveal that the licensing authortiy has to take into
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consideration public interest both at the thne of granting a certificate of approval as contemplated by Rule 3 as also public interest while granting a cinema
licence under Sec. 3 read with Sec. 5, and that the High Court was in error in
holding· that once while granting a certificate of approval under Rule 3, public
interest has been taken into consideration. The question of examining whether
such building should be licenced for. exhibition of cinem8.tograph does not call
for a re-examination· whether the grant is not otherwise contrary to public
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interest. Public interest cannot be fitted into a stratight jacket formula ·and
what relevant considerations would constitute public interest at the time of
granting. a certificate of approval under Rule 3 may materially very or differ
from the relevant considerations which may constitute public interest while
licensing the cinema theatre for exhibitiOn of a cine1natograph under Sec. 3.
Dismissing the appeal,
· HELD : 1 The High Court was, clearly in error in issuing a mandamus directing the District Magistrate to grant a licence. The High Court was
hearing a Writ Petition praying for a Writ of Certiorari for quashing the order
of removal. The High Court should have quashed 1he order of re111and if it was
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satisfied that the order of suffers from an error apparent on the record. But
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there its jurisdiction would corrie to an end. The High Court cannot then proceed to take over the functions of the lieensing authority and direct the
licensing authority ~Y .a mandamus to grant a licence, To that extent the
judgment of the High Court is set aside. [10400,FJ
2 Where a statute confers power and casts a duty to perform any function
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before the power is exercised or the function is J)Crformed, to the Court cannot
in exercise of writ jurisdiction supplant the licensing authority and take upon
itself the function of the licensing authority. [1040 E]
3. The High Court was in error in holding that once the public interest
has been taken into consideration
1while granting certificate of approval, consideration of public interest would not arise and cannot be countenanced while
granting a cinenlatograph licence under Sec. 3 read with Sec. 5. [1037H, 1038J
4.
Licensing powers, an indisputable adjunct of controlled economy,
take various forms and they are numerous. They are generally couched in a
language giving wide scope for exercise of powers. Therefore the Courts have
been vigilant to see thJt they are not exercised in an oppressive or arbitrary
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manner. The Powers being wide, the question of its.exercise on relevant or
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considerations gern1ane to the determination more often arises. If the licence
is refused on grounds which appear to be irrelevant, the court can legitimately
interfere. [1039H ,!040A]
S. The scheme manifested by U.P. Cinema (Regulation) Act, 1955 and
the U.P. Cinematograph Rulos 1951 establish the legislative intention that the
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licensing authority bas to keep in view public interest both at the time of granting the certificate of approval under Rule 3 and granting·a cinematograph
licence under Sec. 5. While granting a certificate of approval under Rule 3, the
licensing authority may take into consideration the various aspects set out- in
Rule 4 as well as the conditions prescribed in Rule 7. But even where all the
conditions prescribed in Rule 4 and Rule 5 as well as various other relevant
rules are satisfied still the licensing authoritr may refuse to grant the·certificate
of approval, if it is satisfied that the location of cinema at the site in question is
not a public interest. [1034G-, 1035A]
6.
Rule 7(2)(c) casts an obligation to record the re3.son in writing which
must necessarily sufficient reasons for refusing to grant the certificate on the
ground that the location of a cinema at the site of the building is not in public
interest. The licensing authority has not an absolute discretion but it is hedged
in by relevant considerations as also by the proviso that if the licensing authori .... is inclined to refuse the licence on the ground that the location of a cinema
at the site of the building is not in public interest, it cannot do so except without
the prior approval of the State Government. [1035C-D]
In the instant case, the District Magistrate white granting the certificate of
approval on March 24, 1972 had in terms held that Hindi Sahitya San1n1elan is
neither an educational institution nor a residential institution nor it bas a public
hospital and that it cannot be styled as an educational institution for the purpose of Rule 7(2)(b)(i). This determination is final and conclusive. [1035F)
7.
While granting the cinema licence under Sec. 3 the licensing authority
bas to keep in view the provision of Sec. 5. Sec. 5(1)(c) provides that no licence
shall be granted unless the licensing authority iS satisfied that the grant of
licence is not otherwise contrary to public interest. Undoubtedly, the para·
meters of public interest while refusing to grant licence under Sec. 5(l)(c) for
exhibition of cinematograph would be materially different than the one which
would enter the verdict while considering the application forg ranting a certificate
of approval under Rule 7(2)(c). [1035G-1036]
CIVIL APPEALLATB JURISDICTION : Civil Appeal No. 2437 of
1981
From the Judgment and Order dated 25.8.1981 of the Allaha·
bad High Court in C.M.W.P.No. 324l of 1980.
R.N. Trivedi, Addi. Adv. Genl., Gopal Subramaniam and Ms.
Shobha Dikshit for the Appellants.
F.S. Nariman, Raja Ram Agarwal, Yogeshwar Prasad, Rani
:g . 'ahhabra and Ms. Suman Bagga for the Respondents.
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ti.P. STA.Ta v. RA.IA. RAM i besal, /.\
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The Judgment of the Court was delivered by
DESA.I, J. Respondent Raja Ram ·Jaiswal alongwith the
members of his family ('respondent' for short) purchased premises
No. 26/30, a plot of land with a small structure standing on it
admeasuring 2978 sq. yd5. situated at K.P:Kakkar Road, somewhere
in March 1970. The respondent desired to construct a cinema theatre
on the plot of land after demolishing the existing structure. As a first
step, he got prepared the plans for a modern air· conditioned, sound
proof cinema building and got the same approved by the Local
Municipal Corporation and the District Magistrate. Subsequently,
on July 6, 1971, the·respondent submitted an application as required
by Rule 3 of the U.P.Cinematograph Rules, 1951 (1951 Rules'
for short) to the District Magistrate for obtaining a certificate
signifying his approval of the site selected for constructing a
permanent building to be used for cinematograph exhibition. Before
granting tbe requisite certificate the District Magistrate as the
Licensing Authority has to ·be satisfied that the requirements of the
1951 Rules have been fully complied with. Inter alia it must be
satisfied that any recognised educational institution (other than
primary school) or any -residential in·stitution attached thereto is
not situated within a radius of 75 metres from the proposed cinema
· building. There were other conditions to be satisfied but this one
is being referred to by us because the allegation is that this condition has been contravened. It also appears that before granting the
requisite certificate, with a view to giving au opportunity to the
public in the locality to express thdr opinion for or against the
grant of the certificate, if they so desired; a public notice was issued
-specifying the request by •the respondont for issue of a certificate
of approval of the site for constructing a cinema theatre. An
organistion called The Hindi Sahitya Sammelan ('Sammelan' for
short) alone submitted its objection. The District Magistrate
referred the application of the respondent to the State Government.
The State Government directed the District Magistrate to carefully
examine the matter and determine whether it would or would not be
in public interest to grant the certificate. There. ensued some correspondence· between the District Magistrate and the State Government,
the query centering round the question whether the Sammelan was
a recognised educational institution as envisaged by Rule 7(2)(b)
of 1951 Rules. The District Magistrate iii his letter dated March
24,1972 inter alia stated that Sammelan can neither be styled as an
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educational institution nor a residential institution
within the
contemplation of Rule 7(2)(b) because it is an institution wedded to
and working for the propagation of Hindi language and even though
it may provide some research facility on
it~ campus, it has no
regular programme of class teaching. The District Magistrate was
also of the opinion that having regard to all the relevant circumstances, the construction of cinema building at the proposed site was
not against public interest. On the contrary according to him, a
modern beautiful fully air-conditioned cinema building apart from
adding to the beautification of the city would enrich the coffers of
the State exchequer in the form of entertainment tax. He concluded
by observing that in his opinion public interest will not be adversely
affected if the per mission is granted for construction of the cinema
house at the proposed site and that he proposed to grant the permission. Accordingly, on March 28,1972, the District Magistrate
informed the respondent that 'with reference to his application
dated July 6,1971 in connection with the construction of a cinema
h~use over Plot No. 26, Crosthwaite Road, the site plans checked and
sign,ed by the Executive Engineer, P.W.D. Allahabad have been
approved on certain conditions including that the construction of
the cinema house will be completed within two years from the date
of the issue of the order and the c,inema house wiil be fully airconditioned and according to the plans and specifications submitted
to him.' There was a small building over the plot in respect of
which the certificate signifying the approval of the District
Magistrate was granted. This building was demolished and construction of the cinema building according to the plan was commenced.
Chagrined by the grant of the certificate, Sammelan initiated action
for acquisition of the plot over which the cinema building was being
constructed somewhere in August, 1973. As the various steps taken for
acquisition of land form part of a separate controversy to be dealt
with in Civil Appeal No. 2458/80, the same may be skipped over
here. Suffice it to state that a notification under Sec. 4(1) of the
Land Acquisition Act, 1894 was issued by the Collecfor, Allahabad
on January 31, !974 notifying that Plot No. 26 admeasuring 2865
Sq. Yds. was proposed to be acquired for a public purpose viz.
for extension of Hindi Sangrahalaya of Hindi Sahity a Sammelan
The respondent challen.ged ·this notification in Writ Petition No.
1932/74 in the High Court of Allahabad. In the meantime as the
period of two years specified in the certificate issued under r. 3 was
about to expire, the respondent moved an application, on March
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U.P. STATE v. RAJA RAM (Desai, J.)
1027
26,1974 before the District Magistrate for extenison of time for
completion of the construction of cinema building. The State
Government withdrew the notification dated
January~'31,1974 with
the result that the writ petition filed by the respondent was dismissed on January 30,1975 as having become infructuous. Within a
period of six days on February 6,1975, the Collector of Allahabad
issued a fresh notification under Sec. 4(1} of the Land Acquisition
Act for acquiring land described as bearing Plot No. 62 admeasur·
ing 8265 sq. yds. for the same purpose: The respondent questioned the
validity and legality of the second notification in Writ Petition No.
3174/75. During this period, the application for extension of time
for the construction of cinema building was pending with the
District Magistrate. By Letter dated July 25,1975, the District
Magistrate informed the respondent that 'with reference to his
application dated March 26,1974 praying for extension of time, it is
not possible to grant the extension as the matter is pending before
the High Court at the instance of the respondent and as they have
obtained stay against the land acquisition proceedings, it would not
be proper for the District Magistrate to pass any order regarding
this very land so long as the stay order granted by the High Court
is in force. It was also noticed that the period of two years initially
granted had expired in March, 1974 and the same cannot be extended. It appears, however, that during the time the application for
extension of time for completion of the cinema building was pending
with the District Magistrate, the work of construction was going
a pace and it was completed presumably sometime before the
District Magistrate declined to grant extension of time. As the
cinema building was complete, the respondent made an application
on May 25,1979 under Sec. 3 of the U.P. Cinema (Regulation) Act,
1955 ('1955 Act' for short) for a licence to exhibit films in the
cinema building. Though the District Magistrate is a statutory
authority for grant or refusal of licence under the 1955 Act, surprisingly, he referred the application of the respondent for grant of
licence to the State Government specically in view of the pendency
of the Writ Petition No. 3174/75 challenging the notification for
'acquisition of the land on which the cinema building was constructed. A communication from the .Joint Secretary of the State
Government to the District Magistrate concerning the question of
grant of cinema licence has a material bearing on the issue involved
in the writ petition. Therefore the
relevant portion. of the
~o~munication may be extracted, It reads as under:
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"With reference to your letter No. 23/MAOKA./79-80
dated June 27, 1979, I have been directed to say that you
may grant licence to Chandralok Cinema constructed by
Sri Raja Ram Jaiswal on the Hindi Sahitya Sammelan
Marg, for one year if you are satisfied that this cinema
complies with the requirements of the Uttar Pradesh
Chalchitra Niyamawali, 195! with the condition that if in
the mean time the case pending before the Hon'ble High
Court is decided in favour of the Government, the licence
would automatically stand cancelled."
It would thus appear that the District Ma istrate had to
consider the application for licence uninfluenced by another litigation pending between the respond~nt and the State Government.
On receipt of this letter the Di!trict Magistrate after obtaining
reports from various authorities vis-a-vis the building reiterated his
view to the State Government on October 19, 1979 that as the writ
petition of the respondent challenging the notification for acquisition
of land is pending, it would not be proper to grant cinema licence
to the respondent. On December 7,1979, writ petition filed by the
respondent challenging the notification for acquisition of land on
which the cinema building was constructed was allowed by a Division Bench of the High Court and the notification dated February.
6,1975 was quashed. On December 9,1975, the respondent made a
representation to the State Government for issuance of a cinema
licence. By the notification dated December 13,1979, the State
Government directed the first respondent to contact the Distirct
Magistrate in this behalf. Accordingly, on December 18, 1979, the
respondent wrote to the District Magistrate that all the concerned
authorities had inspected the building and reported that the building
complies with all the rules and regulations and recommended grant
of licence. By its communication dated December 24, 1979, the
Additional District
Magistrate informed the
respondent that
'with reference to his application for cinema licence dated May
4, 1979 to run Chandralok Cinema he has to inform him that the
District Magistrate' by his order dated December 24, 1979 has
refused to grant the licence.' The respondent preferred an appeal
under Sec. 5(3) of the 1955 Act to the State Government against
the order of the District Magistrate refusing to grant the licence.
The reasons which weighed with the District Magistrate in rejectiQi
the application will he de11lt witli a little while after. The
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UcP, STATE v, RAJA RAM (Desai, J)
1029
Government called for the comments of the District Magistrate
with regard to the contentions raised by the respondent in his appeal
and after· taking into consideration the
comments, the State
Government as per its order dated February 15, 1980 allowed the
appeal and remitted the matter to the District Magistrate with a
direction, to re-examine the grounds on which he had refused to
grant licence to run the Chandralok cinema in accordance with the
rules and pass suitable and legal order after giving them an opportunity of hearing. If the District Magistrate feels necessary to seek
prior approval, of the Government to refuse to grant licence in
public interest, he may express his opinion and send full facts
through the Commissioner for prior approval.' This order of remand
wa~ questioned by the respondent in Writ Petition No. 3241/80 in
the,Allahabad High Court. ·
A. Division Bench of the High Court held that even though
the, order under challenge was one of remand, as the respondent has
journeyed to and fro on numerous occasions, it is necessary to
dispose· of the petition on merits. It was further held that while
granting a certificate under Rule 3 of the 1951 Rules, it was open
to. the licensing authority to take into consideration whether it
would be in public interest to grant the necessary certificate or to
refuse the same, but after the grant. of the certificate when a full
lleqged cinema building comes up and is shown to comply with the
relevant rules and regulations, cinematograph licence cannot be
refused on the vague consideration that it would not be in public
interest to grant the licence. It was also held that the failure to
complete the construction of cinema building within the prescribed
time, if properly explained would not be a ground to refuse cinematograph licence, more so because the requirement of rule 3(3) is
directory and not mandatory. The High Court accordingly made the
rule absolute and in modification of the order of the State Government dated February 15,1980 it directed the District MagistrateLicencing Authority-to forthwith grant to the petitioner the requisite
licence·subject to reasonable conditions. and restrictions. An order
in the nature of mandamus was issued accordingly. Bence this
appeal by the State of Uttar Pradesh and the District Magistrate
by special leave.
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Before we advert to the contentions canvassed before us on
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SU~REME COURT REPORTS
[19 SS] 3 S.C.R;
the proceedings journeyed in this Court may be mentioned. The
petition for special leave came up for admission on September 17,
1981 when special leave to appeal was granted and the operation of
the judgment of the High Court was stayed. Consequently, the
mandamus directing the District Magistrate to grant licence stood ·
suspended. CMP 26710/81 was moved on behalf of the present
respondent for vacating the stay granted by this Court. The proceedings dated December 15, 1981 as recorded show that after the
arguments were heard at some length, the Court in the interest of
justice thought it expedient to modify the stay order dated September
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17,1981 to the effect that the stay order granted by the Court will
be in operation for a further period of two months only and that
the hearing of the appeal may be expedited. The present. appeal
and the cognate Appeal No. 2458/81 came up together for hearing
and the cognate appeal was first taken up for hearing for the
obvious renson that if the challenge to the notification for acquisition of the plot on which the cinema building is con~tructed failed
in the appeal on behalf of the State of U.P., it would have an impact
on the present appeal because if the land was to be acquired, the
question of granting licence for running a cinema on the land under
acquisition could hardly be envisaged. The hearing as usual in this
Court went on merrily. Therefore, after bearing the parties, we
made the order on January 20, 1983 directing the District Magistrate
to comply with the remand order. It may be recalled that the order
under challenge in this appeal was the order of remand made by
. the State Government to the District Magistrate for considering
and diposing of the application for a cinema licence on merits. We
had some h4'Sitation whether the court can grant a mandamus
directing a statutory authority to grant a licence at a stage when the
District Magistrate was yet to apply his mind and examine the
application on merits because doing so would tantamount to the
court substituting itself as a licensing authority without the licensing
authority performing its duty, which would be impermissible. We
were conscious of the fact that the District Magistrate was bound
to take some time in processing and disposing of the application for
a cinema licence pending with him. Accordingly, we directed the
District Magistrate to proceed to consider the application of the
respondent for grant of a cinema licence and dispose of it in the
light of the observations made in the order. Pursuant to this order,
the District Magistrate, Allahabad proceeded to examine the
application of the respondent for cinema licence on merits and
having given him an opportunity of being heard, by his onler dated
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U.P. STATE v. RAJA RAM (Desai, J.)
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February 20, !983 rejected the application for licence observing
that it would not be in public interest io grant the cinem•tograph
licence applied (or by the respondent. The appeal was again placed
on board for further directions on March JO, 1983. After giving
anxious consideration to the order of t.he District Magistrate, the
Court made an order vacating interim stay granted by this Court
staying the operation of the judgment of the High Court. The effect.
of this order was that the mandamus· granted by the State became
operative. Accordingly, on March 19, 1983, the. District Magistrate
granted the licence to run Chandralok cineina. Two CMPs Nos.
12718-19/83 were moved in this Court, one of them being for .taking
action for contempt and another for certain directions. They were
~
a sequel to the granting of a 1'.c.e11ce and public annoyance demons-
.
'·trably exhibited by the authonhes of the Sammelan. While dispos·
ing of ·these ·petitions, we directed that the City Magistrate .would
withdraw the impugned order under Sec. 144, Cr.P.C. within a
fortnight- from the date of the order and the District Magistrate
shall renew the licence of Chandralok cinema to be operative and
in force till the decision of appeal by this Court and the City.
Magistrate shall make necessary arrangements tci. maintain public ·
order near and around Chandralok cinema if necessary by posting
additional police force and grant necessary protection to the licensee
enabling him to run the cinema house peacefully. Regretably, it
must be concluded from this resume that the dispute is hardly
between the State Government and the respondent, but it is a
proxy fight consequent upon the clash of ego between the Sammelan
and Jaiswal. Unintluenced by this irrelevant aspect, the apoeal may
be disposed of on merits.
•
It may be mentioned that even though the Sammelan had
moved an application for being joined as a party to the writ petition·
in the High Court which was rejected, we, without the slightest
hesitation, granted the request for intervention made by Shri S.N .
Kacker, learned coun.sel for 'the Sammelan to intervene and SUS·
pending the normal procedure that the interventionist is not entitled
to address oral arguments, we heard Mr. Kacker on all points he
wanted to canvass and at some length and permitted him to put
his written submissions on record.
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While the introduction has become somewhat long, the
contentions canvassed in the dispute are relatively of an insignificant
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SUPREME COUltT REPORTS
(1985) 3 S.C.R.
nature save and except" the one whe_ther the statutory· Iicencing
authority _acting within the parameters of the statute under which it
is set up can be sui>planted in exercise of the writ jurisdiction before
the statutory authority has yet to discharge its functions under the
statute. Ihcidently, whether public interest has a relevance at the
time of issuance of a certificate of approval under Rule 3 or at the .
time· of grant of licence under Sec. 3 is another important question 7
Other contentions are minor and of incidental nature.
The peresent situation viewing the background of public
interest have a direct bearing on the rival contentions in this appeal.
A cinema building in which for the purposes of the record, we may
note that Rs. 60 lakhs have been .sunk stares into our face.
Admittedly, it is a modern air-conditioned sound-proof cinema
building. It abuts on a road named K.K.Marg, a very prominent
locality in Allahabad town. It is equally true that Hindi Sahitya
Sammelan. has its campus at a distance of roughly 95 feet from the
outer boundary of the cinema building. Hindi Sahitya Sammelan was founded for the development and propagation of Hindi, and
certainly it "is a prestigious institution . devoted to making Hiridi the
Lingua Pranca of India. Though Hindi Films have contributed
immeasurably to the propagation of Hindi yet
the Sammelan
championing Hindi appears not to have taken kindly to the modern
·m.·ss media communication and detested the existence of a theatre
somewhere near its campus. That is the genesis of the present litigation. Sincere efforts were made to assuage all the authorities in charge
of the Sammelan, but they proved of no avail.° May be an institution devoted to research may consider cinema theatre a nuisance but
F
in an urban area like Allahabad, the Sammelan cannot hope to live
in isolation of the existence of theatre as also the noise of transport
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vehicles.
Let us have a glance at the relevant prov1s10ns of the 1955
Act and the 1951 Rules which should be our starting point., 1955
Act. was enacted as its long title shows for making provisions and
regulating exhibitions by means of cinematographs in the State of
U. P. Sec. 3 provides that 'save as otherwise provided in the Act, no
person shall give an exhibition by
means of a cinematograph
elsewhere than in a place licensed under this Act or otherwise than
in compliance with conditions and restrictions imposed by such
licence.' Sec. 4 constitutes District Magistrate to be the Licensing
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U.P. STATE v. RAJA RAM (Desai, J.)
1033
Authority. There are two provisos conferring power on the State
Governm~nt to constitute other licensing authority._ They are hardly
material for the peresent purpose. Sec. 5 prescribes restrictions on
the power of the licensing ·authority and inter alia provides that 'the
licensing authority has to· be satisfied that the building or other
place in which cinematograph exhibition proposed to be given
-(i) ......... (ii) is situated at such minimum distance as may be
prescribed from other public buildings and from recognised educational and other public institutions and public hospitals ..... .' Sec. 5
(1 )"( c) provides that the licensing authority must be satisfied that the
-...,.. ·grant of licence otherwise is not contrary to public interest. Sub-sec.
'-, (3) of Sec. 5 confers right of appeal to the State Government, on
.
any person aggrieved by the decision of ·the licensing authority
I
refusing to grant licence. Sec. 13 confers power on the State
Government to make rules fot carrying out the purposes of the
Act. 1951 Rules were framed in exercise of the power conferred by
Sec. 9 of the Cinematograph Act, 1918 and by the deeming fiction
enacted in Sec. 12 of the 1985 Act they remain in force. Rule 3
provides as under :
"3. Application for constructing a building-
(1) A person desirous of constructing a permanent
building to be used for cinematograph exihibition
shall submit an application specifying the site on
which the proposed ·building is to ,be constructed together with a plan and specifications thereof to the
officer authorised in this behalf by Government.
(2) The plan mentioned in the aforesaid sub-rule
shall contain the elevations and sections of the build-
. ings, the f'roposed electrical installations, arrangements for ventilation, sanitation and parking of vehicle and the position of the premises in relation to
adjacent premises and public thoroughfare on which
the building abuts, within a radius of one furlong.
(3) The Licensing Authority may, if it is satisfied
that the site plans and specifications fully conform t\)
the rules, grant to the applicant a certificate signifying his approval thereto. The period within which
the construction shall be completed shall also be
stated in the certificate."
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Rule 4. provides for the contents of an application for a
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SUPREME COURT REPORTS
(1985) 3 S.C.R
licence.
Rule. 7 prescribes conditions for granting and renewal
of a licence, the one to be noted for the present purpose is the
one prescribed. in Rule 7(2)(b)(i) which is to the effect that 'no
building shall be so licensed, if it is situated within a radius of 75
metres from any recognised educational institution (other than
primary school) or any residential institution attached thereto.'
Rule 7(2)(c) provides that 'no building shall be so licensed, if for
any other sufficient reason.to be recorded, the licensing authority is
satisfied that the location of a cinema at the site of that building is·
not in public interest.'
.
Learned Advocate General of Uttar Pradesh who appeared for
the appellant urged that the scheme of the Act and the relevant
rules reveal that the licensing authority has to take into consideration public interest both at the time of granting a certificate of
approval as contemplated by Rule 3 as also public interest while
granting a cinema licence under Sec. 3 read with Sec. 5.
It was
urged tha!the High Court was in error in holding that once while
granting a certificate of approval under Rule 3, public interest has
been taken into consideration and it has been found that the location of a cinema at the site of the building is not shown to be not
in public interest, the question of examining whether such building .should be licenced for exhibition of a cinematograph does not
call for a re-examination whether the grant is not otherwise contrary to public interest. It was urged that public interest cannot
be fitted into a straight jacket formula and what relevant considerations would constitute public interest at the time of granting
a certificate of approval under Rule 3 may materially vary or
differ from the relevant considerations which 1iay costitute public
interest while licensing the cinema theatre · for exhibition .of a
cinematograph under Sec. 3. The scheme manifested by the relevant
provisions of the Act and the Rules would demonstrably establish the legislative intention that the licensing authority has to
keep in view/public interest both at the time of granting the certificate of approval under Rule 3 and granting a cinematograph
licence under Sec. 3. While granting a certificate of approval
under Rule 3, the lic.ensing authority may take into consideration
the various aspects set out in Rule 4 as well as the conditions
prescribed in Rule 7. But even where all the conditions prescribed in rule 4 and Rule 5 as well as various other relevant rules
are satisfied still the licensing authority may refuse to grant the
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U.P. STATE v. RAJA RAM (l>esai, J.)
1035
certificate of approval, if it is satisfied that the location of cinema
· at the site in question is not in public interest. What constitutes
public . interest at the time of consideration for granting certi·
ficate of approval may be culled out from the various conditions
prescribed in the various statutes as well.as all other considerations
which may enter the verdict. while granting the certificate. But it
will be a paper compliance with the relevant rules if it is merely
stated that even though all other conditions are satisfied and complied with the licensing authority would refuse to grant the .certificate as it is not in public interest to do so. Rule 7(2)(c) casts an
obligation to record the reasons in writing which must necessarily
be sufficient reasons for refusing to grant the certificate on the
""""'
ground that the location of a cinema at the site of the building
"-, is not in public interest. The licensing authority has not an abso-
'• lute discretion but it is hedged in by relevant considerations as
also by the proviso that if the licensing authority is nclined to
refuse the licence on the ground that the location of a cinema at
the site of the building is not in public interest, it cannot do so
except without the priOr approval· of the State Government. There
is an explanation which provides that 'for the purpose of the
sub-rule, the licensing authority shall, subject to the general control of the State Government, determine what is a public hospital
or a recognized educational institution, and its decision shall be
final and conclusive.' It will be presently pointed out that the
District Magistrate while granting the certificate of approval on
March 24, 1972 had in terms held that Hindi Sahitya Sammelan is
neither an educational institution nor a residential institution ·nor
it has a public hospital and that it cannot be styled as an educational institution for the purpose of Rule 7(2)(b)(i). In view of
the explanation herein extracted, this determination is final and
conclusive.
Now while granting the cinema licence under ·sec. ~.the
licensing authority has to keep in view the provisions of Sec. 5,
Sec. 5(l)(c) provides that no licence shall be granted unless the .
licensing authority is satisfied that the. grant of licence is not
otherwise contrary to public interest. One has to compare the
language of Rule 7(2)(c) with the language implied in Sec.
5(l)(c). Undoubtedly the· parameters of public interest while refusing to grant licence under Sec.