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TMI Blog1988 (12) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... or lessees of cinema theatres holding licences to exhibit cinematograph films. The petitioners have all along been exhibiting only first run pictures. The Government of Karnataka, by Notification No. HD 69 CNA dated 6-7-1979 published in the Karnataka Gazette dated 7-7-1979, amended the Rules. According to the said notification, Form-F prescribed under the Rules has been amended by including the aforesaid condition 12A. In these petitions, the petitioners have pleaded that the Amendment Rules are beyond the competence of the State Government, that the Amendment Rules are ultra vires Section 5(2) of the Karnataka Cinemas (Regulation) Act, 1964, (hereinafter referred to as 'the Act'), that the Government through Rules cannot impose conditions and restrictions subject to which the licence is to be granted as the imposition of conditions and restrictions is within the exclusive jurisdiction of the Licensing Authority, that the Licensing Authority has no jurisdiction to impose conditions embodied in the Rules while regranting the licence as the petitioners have got a vested right to run the cinema under the conditions and restrictions imposed on them while granting the licence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with this object in mind the State Government has framed the Amendment Rules. It is further averred that the restriction imposed by the Amendment Rules is in public interest, that the Rule is intended to benefit the majority of the people of the State, that the assumption of the petitioners that by exhibiting Kannada films they would incur financial loss is unfounded, that Kannada films can be exhibited without any difficulty for 12 weeks in a year, and that by requiring exhibition of Kannada films for 12 weeks in a year it cannot be said that the producers or distributors of Kannada films want imposition of unreasonable demand on the exhibitors. It is also averred that the restriction imposed by the Amendment Rules is not unreasonable nor would it affect trade and commerce, that the Government had enough material to frame the Rules and objections were called before effecting amendments and there was no opposition from the Members of the public and on the contrary certain demands were made that adequate provision should be made to encourage exhibition of Kannada films in the interest of the majority of the people of the State, and that the Amendment Rules have been made validly by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Achar and in support thereof also made his submissions. 8. Before finding out as to which of the arguments is more plausible and convincing it is necessary to notice certain provisions of the Act and the Rules made thereunder. 9. The Preamble states that the Act is to provide for regulating exhibition by means of cinematographs and the licensing of places in which cinematograph films are exhibited in the State of Karnataka and for other matters. Section 2 provides definitions. Cinematograph is defined thus:- 2(1) Cinematograph includes any apparatus for the representation of moving pictures or series of pictures. Section 4 provides that, save as otherwise provided in this 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 any conditions and restrictions imposed by such licence. Section 5 is in the following terms:- 5. LICENCE FOR EXHIBITION OF CINEMATOGRAPH FILMS: (1) Any person, who intends to give exhibition by means of a cinematograph in a place shall make an application in writing to the Licensing Authority for a licence therefore together with su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in certain cases. Section 16 makes a provision for imposing penalties. Section 17 gives power to the Licensing Authority to revoke or suspend a licence. Section 18 makes a provision for the exercise of revisional powers by the State Government. Section 19 which gives power to the State Government to make rules, reads thus:- 19. POWERS TO MAKE RULES. (1) The State Government may by notification, after previous publication, make rules to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for- (a) the particulars to be given an application for a licence and the terms, conditions and restrictions, subject to which a licence may be granted under this Act and the fees to be paid in respect of such licence; (b) the conditions on the basis of which the number has to be determined under Section 7; (c) the limitation of the period for which licences in respect of any place may be granted for touring cinemas, and prescribing the distance from a permanent cinema beyond which licences in respect of any place for touring cinemas may be granted; (d) the regulation of cinematograph exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the petitioners is that the impugned Rule cannot be said to carry out any of the purposes of the Act and such a rule could not competently be framed by the State Government. According to the learned Counsel, a rule cannot be made beyond what is provided for. While developing his argument the learned Counsel drew our attention to the definition of 'cinematograph' and submitted that exhibition of films does not fall in that definition. According to the learned Counsel, the State Government can make rules regulating the means, that is, the cinematographs, by which the films are to be exhibited, and the licensing of places wherein cinematograph films are exhibited; but the State Government cannot make any rule by which a licensee could be asked to exhibit films of a particular type. In support of his contention the learned Counsel made reference to Section 12 which makes a provision empowering the State Government to issue directions to a licensee or to licensees generally requiring them to exhibit (a) such film or a class of films having a scientific or educational value; (b) such films dealing with news and current events; and (c) such documentary films, indigenou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it should have a limited application. Similarly in TRIBHUBAN PARKASH v. UNION OF INDIA [1970]2SCR732 it is stated as follows: ....A Preamble is a key to open the mind of the legislature but it cannot be used to control or qualify precise and unambiguous language of the enactment. It is only when there is a doubt as to the meaning of a provision that recourse may be had to the Preamble to ascertain the reasons for the enactment and hence the intention of the Parliament, If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the Preamble. In other words, Preamble may assist in ascertaining the meaning but it does not affect clear words in a statute. The Courts are thus not expected to start with the Preamble for construing a statutory provision nor does the mere fact that a clear and unambiguous statutory provision goes beyond the Preamble give rise by itself to a doubt on its meaning, In the instant case, learned Counsel for the petitioners sought to build his argument mainly on the language of the Preamble assuming that the provisions of the Act do not specifically pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' and the word exhibition only goes with films. It cannot go with cinematographs. Thus, we find no substance in the contention of Mr. Srinivasan, learned Counsel that the Preamble clearly indicates that the purpose of the Act is to regulate cinematographs and the licensing of places. 15. Having dealt with the contention of the learned Counsel on the basis of the language of the Preamble, it is still necessary to test the plausibility of the argument of the learned Counsel in the light of the provisions of the Act. Although in the earlier part of the Judgment we have noticed the relevant provisions, which broadly indicate as to how the regulation of exhibiting cinematograph starting from construction and ending with the appeals including the imposition of terms, conditions and restrictions subject to which licensees are to carry their trade or business thereunder, are controlled, yet it would be useful to notice again some of the relevant provisions. Section 3 of the Act specifies the Authority which grants licence. Under Section 4, a person is to give exhibition by means of a cinematograph only at a place for which licence is given under the Act and also subject to any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority may after carrying out the formalities, grant licence to such person and on such terms and conditions and subject to such restrictions as it may determine. Even this Section clearly indicates that the licence is granted for exhibition of films by means of cinematograph in a place. The Licensing Authority while granting licence under this Section, is empowered to impose such terms and conditions as it may determine. The provisions and scheme of the Act clearly indicates that it not only regulates the exhibition of films, but also provides for regulation of all other allied matters which are incidental, or necessary to the exhibition of cinematograph film in a licenced premises. If we agree with Mr. Srinivasan then the effect of the suggested construction would be that the exhibitors after obtaining a licence would be free to exhibit any type of film at any time and that the authority under the Act cannot impose any restrictions in this regard. In our view, such could never be the intention of the legislature and by putting such an interpretation the whole purpose of the Act would be frustrated. 16. In the instant case the stand of the respondent is that the exhibito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder. In an unreported Judgment of the Supreme Court in MINERVA TALKIES, BANGALORE AND ORS. v. STATE OF KARNATAKA AND ORS. the appellants challenged the Vires of Rule 41-A which was framed by the State Government, putting a restriction on the licensee not to exhibit more than four cinematograph shows in a day. The Writ Petitions filed in this Court were dismissed and the validity of the Rule was upheld. In the appeals before the Supreme Court it was contended on behalf of the appellants that the provisions of the Act do not confer any power on the State Government to regulate the number of shows and the restriction imposed by the impugned Rule 41-A limiting the number of shows to four, did not fall within the purview of Section 19 of the Act. The aforesaid contention, after noticing the relevant provisions of the Statute, was repelled by the Supreme Court thus: 7, Section 19 of the Act confers power on the State Government to frame rules for carrying out the purposes of the Act. Sub-section (2) of Section 19 requires the State Government to frame rules in respect of the matters specified in Clauses (a) to (h). While Section 19(1) confers general power on the State Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies out the purposes of the Act, It is, therefore, referable to the State Government's general power under Section 19(1) of the Act. Rule 41A is further referable to Clauses (a) and (d) of Section 19(2) of the Act. Clause (a) confers power on the State Government to frame rules prescribing terms, conditions and restrictions subject to which a licence may be granted, in exercise of that power. The State Government may lay down conditions and impose restrictions prescribing hours during which films may be exhibited and also the number of shows in the licensed premises. Similarly, Clause (d) confers power on the State Government to frame rules regulating the exhibition of cinematograph films for the purpose of securing public safety. Any rule regulating the exhibition of the cinematograph films if reasonably connected with public safety would be justified under the aforesaid provision. Rule 41-A adds a condition to the licence that exhibition of films will be limited to four shows in a day. No licensee can claim to have unrestricted right to exhibit cinematograph films for all the 24 hours of the day. Such a claim would obviously be against public interest. Right to exhibit cinema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be exercised subject to the provisions of the Act and the Rules made thereunder. 19. We have already held that the rule has been validly framed by the State Government. Such a Rule automatically becomes a condition of a licence and any terms and conditions which are imposed by the Licensing Authority would be besides the condition that is required to be complied with under the Rules. It is beyond our comprehension that the Legislature could ever intend to give an exclusive power to the Licensing Authority to impose such terms and conditions as it may determine. Such an intention is not even spelt out from Section 5(2) of the Act or any other provision of the statute. In this view of the matter, we find no substance in the contention of the learned Counsel that the condition of the type envisaged in Rule 7A could only be imposed by the Licensing Authority. 20. It was also submitted by Mr. Srinivasan, learned Counsel, that the petitioners have a Fundamental Right to carry on their trade or business in exhibition of films, that they have absolute power to exhibit films or their choice, that the impugned rule has unreasonably trenched upon their fundamental free right to bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State tc make a law imposing reasonable restrictions under Clause (6). The principle underlying in Clauses (5) and (6) of Article 19 are now well settled and ingrained in our legal system in a number of decisions of this Court, and it is not necessary to burden this Judgment with citations. The expression 'reasonable restriction' signifies that the limitation imposed on a person enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases. The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be want ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le is to place one set of traders i.e., producers or distributors in an advantageous position to the detriment of the interests of the petitioners. In the reply filed on behalf of the respondents the stand taken is that the calculations made by the petitioners are imaginary, that 94 cinema theatres in Bangalore were not screening Kannada films simultaneously, that exhibitors can exhibit films in their languages and have ample option to exhibit Kannada films in their theatres at their convenience, that on an average each film is printed in ten copies and in all 500 copies of Kannada films will be available for screening in a year, and that if the exhibition is spread throughout the year it will not be difficult for the exhibitors to exhibit Kannada films 12 weeks in a year in their theatres. 23. As we look at the pleadings of the respondents, we find that except by making a bald assertion that the mathematical calculation of the petitioners is imaginary, they have not cared to specifically deny the categorical averment made in the Writ Petition, with the result that the authenticity of the averments made in para-16 of the Writ Petition has to be accepted. It is not denied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 12 weeks in a year, remains unexplained. We agree with the learned State Counsel that the impugned rule has been made in public interest and a very laudable object is sought to be, achieved in the interest of the State. But without ascertaining and finding out (as no material in this regard has been placed on the record) whether all the theatres in the State would, fairly and without incurring loss, be able to exhibit Kannada films for 12 weeks in a year, a provision is made for exhibition of Kannada films for 12 weeks, which, on the face of it, appears to be wholly arbitrary and unreasonable. The learned State Counsel had very emphatically argued that the object of the impugned rule is to propagate Kannada language and culture. May be so, but the question is whether such an object is reflected or has been achieved by the impugned rule? Whether by such a rule, maintenance of minimum standard in Kannada films would be achieved? The answer has to be in the negative as there is no material available in this regard on the record. Under Section 5 of the Act the Licensing Authority grants licence for exhibition of cinematograph films on such, terms and conditions and subject to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question whether it is within the contemplation of the Act that-educational and instructional films should be shown and whether the holder of a cinema licence may be compelled to exhibit such films as falling within the scope of the Act, the question still arises for consideration is whether the impugned conditions amount to reasonable restrictions within the meaning of Article 19(6). Approved films are those films which are either produced by the Government or are purchased from the private producers. As the private producers do not possess any machinery for marketing their films the Government purchases them from such producers and charges hire from the Cinema licensees for showing such films. Condition 4(a) compels a licensee to exhibit at each performance one or more approved films of such length and for such length of time as the Provincial Government or the Central Government may direct. Neither the length of the film nor the period of time for which it may be shown is specified in the condition and the Government is vested with an unregulated discretion to compel a licensee to exhibit a film of any length at -its discretion which may consume the whole or the greater par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrary and unreasonable and is violative of Article 19(1)(g) of the Constitution and has to be struck down. 28. No other point requires consideration in these petitions. 29. To sum up, our conclusions are:- (1) That the Preamble does not indicate that the purpose of the Act is to regulate cinematographs and the licensing of places only. (2) That the provisions and the scheme of the Act clearly indicate that it not only regulates the exhibition of films but also provides for regulation of all other allied matters which are incidental or necessary to the exhibition of cinematograph films in a licensed premises. (3) That Rule 7A framed by the State Government carried out the purpose of the Act and is not beyond its competence and has been made in the interest of general public. (4) That a rule like Rule 7A framed by the State Government automatically becomes a condition of a licence and that it is not the exclusive power of the Licensing Authority alone to impose such terms and conditions as it may determine; and (5) That Rule 7A and Condition -12 to the extent they provide a period of 12 weeks for screening Kannada films is arbitrary and unreasonable and is viola ..... X X X X Extracts X X X X X X X X Extracts X X X X
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