Restrictions on power of licence authority

(1) The licensing authority shall not grant a license under this Act unless it is satisfied that- (a) the rules made under this Act have been complied with , and (b) adequate precautions have been taken in the place, in respect of which the license is to be given to provide for the safety of the persons attending exhibitions therein. (2) Subject to the foregoing provisions of this section and to the control of the Government, the licensing authority may grant licenses under this Act to such persons as it think fit, on such terms and condition as it may determine. Provided that it shall be deemed to be a condition of every licence whether granted before or after the commencement of the Punjab Cinemas (Regulation) Haryana Amendment Act, 1968, that if a licensee fails, without sufficient cause, to give exhibition, by means of a cinematograph, for a period of fifteen days in a month whether consecutively or otherwise, his licence shall be liable to cancellation under clause(b) of sub-section(1) of section 8 (3) Any person aggrieved by the decision of the licensing authority refusing to grant a license under this Act may, within such time as may be prescribed, appeal to the Government or to such officer as the Government may specify in this behalf and the Government or the officer, as the case may be, may make such order in the case as it or he thinks fit. (4) The Government may, from time to time, issue directions to licensees generally or to any licensee in particular for the purpose of regulating the exhibition of any film or class of films, so that scientific, films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films secure an adequate opportunity of being exhibited and where any such directions have been issued those directions shall be deemed to be additional conditions subject to which the license has been granted Thus the State Government has the power to give directions to the licensing authority. These directions can be with regard to the person or to the terms and conditions and restrictions. AIR 1957 A.P. 513. The control contemplatd by section 5 is wide enough to empower the state Government to issue appropriate instruction to the licensing authority. It is however not within the competence of State Governement to issue executive instruction which if these were issued as a statutory rule would be beyond the rule making power. AIR 1955. A.P 123. 2. Control and issusnce of directions:- Thus if a rule cannot be framed then instructions cannot be issued on the same subject. However, the state Government has the power to interface after the District Magistrate has himself exercised his discretion. AIR 1956 All 99. The power of the licensing authority to issue licences is subject to the control of the State Government and the State has the power to direct the licensing authority to grant a license to a particular individual. the State Government may set aside the orders of the licensing authority and issue and direction in this respect which it may consider fir or proper. AIR 1955 ALL 82. The State Government may issue directions at variance with their own prior orders when such orders have not assumed the shape of statutory rules. AIR 1957 A.P 513. 3.Requirements as to building of a particular structure:- The provisions requiring a theatre to be constructed in accordance with regulation made under the Act has to be complied with R.v Hannery, 1891 (2) Q.B.709 . It was held that such provision would apply to building which were errected or come into existence after the passing of the Act. London County council v. Hall of Arts. 1913 (110) LT. 28. The requirement to keep gangways and passages is mandatory and its breach can be punished . Putters v. watt . 1914 (84) LJ KB 394. The refusal of the Corporation to sanction the plan on the ground that the adjoining streets were narrow was quashed in Exparte Cambrige Picture Play House Ltd. 1922 (1) KB. 250. The authorities are to grant licences on such terms and conditions and under such restrictions as the authority may by respective licenses determine . Such terms must be reasonable and may be formulated generally subject to the right of each applicant to contend when applying for licence that they should not be imposed in his case. A licence was issued subject to a condition that no film should be exhibited to which objection was taken by any three of the licensing justices, it was held that the condition was unreasonable and invalid . R. v. Burnley, 1916 (85) LJ KB . 1565. In this case however the condition that children attending the school are to be excluded in case the medical officer notifies the prevalence of any infectious disease was held to be valid. where the licensing authority notifies that a particular films is not to be shown then a licensee or a cinema owner has got no locus standi to come to the court and challenge that the condition is unreasonable. Ex-parte Stort 1916 ( 1, KB 7.) 4. Licensing authority and State Government are two distinct entities:- Under section 5(2) of the Punjab Cinemas ( Regulation) Act, 1952 the licensing authority is to grant license subject to the provisions of section 5(1) and subject the control of the government . It is true that the control which the government exercises is very wide but this does not justify that the state Government can completely oust and obliterate the licensing authority by usurping its functions. The legislature contemplates that the licensing authority would be a distinct entity from government . This view to the was expressed in State of Punjab v. Hari Krishan , AIR 1966. S.C 1081, The view to the contrary expressed by the Rajasthan High Court in Vishan Takies v. State. ILR 1962 (12) Raj 44 and K. Rajgiah v. Sultan Mohidin & ors. AIR 1957 A.P 513 and Bharat Bhushan v. Cinema and City Magistrate, AIR 1956 All. 99 was over-ruled. 5.Appeal, who can file:- Section 5(3) provides for an appeal at the instance of the party which is aggrieved by the rejection of its application for the grant of licence. No appeal is provided for against as order granting the license. But in case it appears to the government that an application has been granted erroneously or unfairlly it can exercise its control specfied under section (5) and set aside such an erroneous order. This view was expressed in State of Punjab v Hari Krishan , AIR 1966 S.C 1081. 6. Power of State Government to order that a licence may be issued: - State Government can grant of a licence in specific case ILR 1962 ( Raj 44. It may however be mentioned that the view expressed in this judgment o the Rajasthan was doubted in AIR 1966 S.C 1081. 7. Cancellation when change in ownership- Direction or condition was that the licence shall be terminated forthwith if the licensee ceases to own or hold on lease or to manage the licenced premises. The licence form prescribed these conditions . This condition was held to be valid in ishar Dass and Bros. v. Distt. Magistrate, AIR 1972 All 83. 8. Notice before issuing direction- The State government is not bound to issue notices to the parties before issuing directions . The direction are neither judicial nor quasi judicial. They are purely administrative direction . Unless the statute requires there is no necessity to give notice. AIR 1955 All 99 . It may however be mentioned here that this may not be the correct position in law now because the latest trend of the judicial decisions is that opportunity has to be given whenever any civil right is sought to be interfered with. Thus in S.L. Kapuri v. Jagmohan, AIR 1981 SC 136 even though the statute did not embody in itself the rules of natural justice the court held that it was imperative to give hearing. 9.Instruction to restrict number of talkies- The instructions issued by the government to the licensing authority to restrict the number of touring in places were there were permanent cinemas in order to prevent unhealthy competition and to erasure public safety are not volatile of article 19 of the Constitution. AIR 1952 Mad. 528. 10. Direction to close cinema at a particular time- A direction was given that the cinema should be closed at 12.3. A.M. and no show should be run beyond that hour. It was held that this direction is not unreasonable. 1955 (21) Cuttack Law Times 468. 11. Compulsory exhibition:- An order relating to compulsory exhibition of approved films of certain minimum length constitutes a serious encrcachment on the right of an exhibitor. 1955 (21) Cuttack Law Times 468. 12. Power of state government to assume jurisdiction of licensing authority:- The state government is not justified in assuming jurisdiction which has been conferred on the licensing authority under section 5 of the Punjab Cinemas ( Regulation ) Act, 1952. The scheme of the statute is that when an application for licences is made it has to be considered by the licensing authority and dealt with under section 5 of the Act. If therefore the state government requires all applications for licences to be forwarded to it really converts itself to be the real authority itself. This is not permissible because State Government has been given the right to hear an appeal against the order of rejection of the applications for licence. This view was expressed in State of Pb. v. Hari Krishan , AIR 1966 SC 1081 affirming the view expressed by Punjab High Court in ILR 1961 (2) Pb. 831. 13 Authority which is to grant licences acting on the direction of higher authorities:- In a case arising under the Punjab excise Act, it was held that if any authority has been vested with the power to grant a liecence it is that authority which must exercise that power and if power is exercised by some other authority , the exercise of that power would be showy void. Kans Raj v. Dy. E.T.O., AIR 1965 Pb. 284 . The Divsion Bench of the High Court placed reliance on the decision given by the Supreme Court in Commissioner of Police v. Goverdhan Dass , AIR 1952 SC 16. It may be mentioned here that the decision given in Hari Krishan Shasrma v. Pb. State ILR 1961 (2) Pb. 831 was also relied upon. This decision in Hari Krishan Sharma case has since been approved by the Supreme Court in AIR 1966 SC 1081. see also Novelty Talkies. v. Pb. State, ILR 1960 (2) Pb. 276 and Pb. State v. Mehar Chand , AIR 1959 Pb. 222. In cases where a licence is granted under the instructions of the State Government , it mattaer very little as to who signed the order or the licence. The authority granting the licence in such a case is really the State Government and the function of the licensing authority becomes merely an ministerial function. AIR 1955 All. 82. 14. Notice before grant of licence:- There is no statutory provision for a notice before the grant of a licence to a new entrant. There is also no reason that the state Government or the District Magistrate can not exercise the power to grant licence to a new entrant without notice to the other licencees. AIR 1957 A.P. 513. 15. Order is executive:- The order of the Government granting a licence is executive. It is not incumbent on the State Government to afford hearing to persons who want licences for running cinema houses. AIR 1955 ALL 82. 16. Locus standi:- If a person has no right to obtain a licence in his favour it is not for him to question whether the licence granted to an another person is valid or invalid. AIR 1956 ALL 99. It may however be mentioned here that where permission was granted to effect a cinema in violation of the building rules it was held that the residents can compel the authorities to see that building is constructed in accordance with rules. K.R Shenoi v. Municipality, AIR 1974 SC 2177. 17. Requirement to show cultural film:- While granting a licence a condition imposed was that the licensee shall exhibit an approved film. (i) Every application for the grant or renewal of a licence shall be in writing and shall be signed by the applicant. (ii) Applications for the grant as distinct from the renewal of a three years licence shall be accompanied by;- (a) full particulars regarding the ownership of, and all rights in, the premises and in the cinematograph apparatus to be used therein; (b) complete plans, elevations and sections in duplicate, of the premises and all erections or buildings thereon drawn correctly to the scale of one-eighth of an inch to one foot and showing the width of all stairways and the number of steps in each, the width of corridors, gangway and doorways, the height of the cinematograph and of the plant for the generation or conversion of electrical energy; (c) a site plan in duplicate a separate sheet drawn to the scale of one-fortieth of an inch to one foot showing the position of the premises in relation to any adjacent premises and to the public thorough-fares upon which the site of the premises abuts, and the arrangements proposed for the parking of motor cars and others vehicles; (d) specifications of the various materials proposed to be used in the construction of the buildings. (iii) The cardinal points of the compass shall be shown on the plans and the plans shall be so coloured as to distinguish the materials used in the construction of the buildings. (iv) Application under sub-section (ii) of this rule shall subject to the condition mentioned in Rule 31A be submitted to the licensing authority before any alteration necessary for the adaptation of the premises for cinematographic exhibition are taken in hand, or in the case of a new building, before its construction is begun. The work shall not be commenced unless the Executive Engineer certifies that the proposed construction, addition or alteration of the premises is in accordance with these rules and the buildings bye-laws of the local authority, if any. (v) The licensing authority may require an applicant for a temporary licence to furnish such plans of the premises and such specifications as he may consider necessary.