Civil Appeal No 2437 of 1981 From the Judgment and Order dated 2581981 of the Allahabad High Court in CMWPNo 3241 of 1980 RN Trivedi Addl
Genl Gopal Subramaniam and Ms Shobha Dikshit for the Appellants
FS Nuriman Raja Ram Agarwal Yogeshwar Prasad Rani Chhabra and Ms Suman Bagga for the Respondents 1025 The Judgment of the Court was delivered by DESAI J
Respondent Raja Ram Jaiswal alongwith the members of his family  respondent  for short purchased premises No 2630 a plot of land with a small structure standing on it admeasuring 2978 sq yds
situated at KPKakkar 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 UPCinematograph 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 the 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 institution 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 an opportunity to the public in the locality to express their opinion for or against the grant of the certificate if they so desired a public notice was issued specifying the request by the respondent for issue of a certificate of approval of the site for constructing a cinema theatre
An organisation 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 72b of 1951 Rules
The District Magistrate in his letter dated March 241972 inter alia stated that Sammelan can neither be styled as an 1026 educational institution nor a residential institution within the contemplation of Rule 72b 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 its 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 281972 the District Magistrate informed the respondent that with reference to his application dated July 61971 in connection with the construction of a cinema house over Plot No 26 Crosthwaite Road the site plans checked and signed by the Executive Engineer PWD 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 cinema house will be fully air condition 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 245880 the same may be skipped over here
Suffice it to state that a notification under Sec
41 of The Land Acquisition Act 1894 was issued by the Collector Allahabad on January 311974 notifying that Plot No 26 admeasuring 2865 Sq
was proposed to be acquired for a public purpose viz for extension of Hindi Sangrahalaya of Hindi Sahitya Sammelan The respondent challenged this notification in Writ Petition No 193274 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 1027 261974 before the District Magistrate for extension of time for completion of the construction of cinema building
The State Government withdrew the notification dated January 311974 with the result that the writ petition filed by the respondent was dismissed on January 301975 as having become infructuous
Within a period of six days on February 61975 the Collector of Allahabad issued a fresh notification under Sec
41 of the Land Acquisition 13 Act for acquiring land described as bearing Plot No 62 admeasuring 8265 sq
for the same purpose
The respondent questioned the validity and legality of the second notification in Writ Petition No 317475
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 251975 the District Magistrate informed the respondent that with reference to his application dated March 261974 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 251979 under Sec
3 of the UP 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 specially in view of the pendency of the Writ Petition No 317475 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 communication may be extracted
It reads as under 1028 With reference to your letter No 23MAOKA79 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 Magistrate had to consider the application for licence uninfluenced by another litigation pending between the respondent and the State Government
On receipt of this letter the District Magistrate after obtaining reports from various authorities vis a vis the building reiterated his view to the State Government on October 191979 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 71979 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 61975 was quashed
On December 91975 the respondent made a representation to the State Government for issuance of a cinema licence
By the notification date December 131979 the State Government directed the first respondent to contact the District 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
53 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 rejecting ll the application will be dealt with a little while after
The State 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 151980 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 was questioned by the respondent in Writ Petition No 324180 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 hut after the grant of the certificate when a full fledged 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 33 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 151980 it directed the District Magistrate Licencing 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
Hence this appeal by the State of Uttar Pradesh and the District Magistrate by special leave
Before we advert to the contentions canvassed before us on behalf of the appellants a brief resume of the stages through which 1030 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 2671081 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 171981 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 245881 came up together for hearing and the cognate appeal was first taken up for hearing for the obvious reason that if the challenge to the notification for acquisition of the plot on which the cinema building is constructed failed in the appeal on behalf of the State of UP 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 hearing the parties we made the order on January 201983 directing the District Magistrate to comply with the remind 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 disposing of the application for a cinema licence on merits
We had some hesitation 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 order dated 1031 February 20 1983 rejected the application for licence observing that it would not be in public interest to grant the cinematograph licence applied for by the respondent
The appeal was again placed on board for further directions on March 10 1983
After giving anxious consideration to the order of the 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 cinema
Two CMPs Nos
12718 1983 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 licence and public annoyance demonstrably exhibited by the authorities of the Sammelan
While disposing of these petitions we directed that the City Magistrate would withdraw the impugned order under Sec 144 Cr
PC 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 to 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
Regrettably 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
Uninfluenced by this irrelevant aspect the appeal 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 SN Kacker learned counsel for the Sammelan to intervene and suspending 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
While the introduction has become some what long the Contentions canvassed in the dispute are relatively of an insignificant 1032 nature save and except the one whether the statutory licencing authority acting within the parameters of the statute under which it is set up can be supplanted in exercise of the writ jurisdiction before the statutory authority has yet to discharge its functions under the statute
Incidently 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  Other contentions are minor and of incidental nature
The present 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 KKMarg 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 Hindi the Lingua Franca 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 mass 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 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 vehicles
Let us have a glance at the relevant provisions 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 UP 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 1033 Authority
There are two provisos conferring power on the State Government to constitute other licensing authority
They are hardly material for the present purpose
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 Ii prescribed from other public buildings and from recognised educational and other public institutions and public hospitals  Sec 5 1c 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 refusing to grant licence
13 confers power on the State Government to make rules for carrying out the purposes of the Act
1951 Rules were framed in exercise of the power conferred by Sec 9 of the 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 exhibition 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 buildings the proposed 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 to 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
 Rule 4 provides for the contents of an application for a 1034 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 72bi 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 72c 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 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 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 p differ from the relevant considerations which may constitute 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 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 authority may refuse to grant the 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 certificate 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 72c 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 absolute discretion but it is hedged in by relevant considerations as also by the proviso that if the licensing authority 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
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 term s 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 72bi
In view of the explanation herein extracted this determination is final and conclusive
Now while granting the cinema licence under Sec 3 the licensing authority has to keep in view the provisions of Sec
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 72c with the language implied in Sec
51c
Undoubtedly the parameters of public interest while refusing to grant licence under Sec 51c for exhibition of cinematograph would be materially different than the one which would 1036 enter the verdict while considering the application for granting a certificate of approval under Rule 72c
It must however be made absolutely clear so as to put it beyond the pale of controversy that the relevant aspects required to be kept in view as prescribed under Rule 7 while granting or refusing to grant certificate of approval under Rule 3 cannot be reviewed in The name of public interest for rejecting an application for cinematograph licence under Sec
3 read with Sec 5 of the Act
To wit if while granting the certificate of approval the question whether a particular institution is an educational institution and is within or outside the prohibited distance is examined and a decision is reached that the institution is held not to be an educational institution within the contemplation of the relevant rule nor it is within the prohibited area this aspect cannot be reviewed to refuse to grant a licence under Sec
3 read with Sec 5 in the name of public interest
If any other view is taken it would lead to startling results
Again to wit if the Sammelan was held not to be an educational institution with in the contemplation of Rule 72bi and the necessary certificate of approval is granted the licensing authority cannot turn round in the name of public interest and hold at the time of considering the application for a cinematograph licence that the Hindi Sahitya Sammelan is an educational institution and it is also situated within the prohibited area because such an approach would do irreparable and irreversible harm to the person to whom certificate of approval is granted because by the time he applies for a cinematograph licence under Sec 3 he has sunk a large sum of money in constructing a cinema building
To refer to the facts of this case if now the District Magistrate chooses not to grant licence on the ground that it would be contrary to public interest to grant licence only because the authorities of the Sammelan may act in a manner so as to disturb public peace and that it is an educational institution Rs 60 lakhs sunk by the respondent would go down the drain and would be an irreparable wastage affecting both the national interest and the public interest
Therefore while accepting the submission of the learned Advocate General that the concept of public interest statutorily recognised has to be kept in view both at the time of granting certificate of approval under Rule 3 and licence under Sec
3 read with Sec
5 of the 1955 Act permitting exhibition of a cinematograph the relevant parameters of public interest would differ and they cannot overlap each other and have to be justified on the relevant grounds stricter view about the parameters of public interest has to be taken at the 1037 second stage because by that time the person who has been granted certificate of approval has sunk a fortune in the venture
Before we conclude on this point we may refer to the two decisions to which our attention was drawn by the learned Advocate General
In The King vs London Country Council Exparte London and Provincial Electric Theatres Limitedl it was held that the statutory authority was justified in exercise of their discretion to sefuse to grant licence to a company the majority of whose shareholders were alien enemies
A submission was made on the basis of the ratio of this decision that even if a cinema building is constructed licence can be refused on the ground that it is not in public interest to do so
The decision in R vs
Barnstaple justices Exparte Carder8 is hardly of any assistance because it proceeds on the scheme of the Cinematograph act 1909
The Act empowered County Councils or justices where the power have been delegated to them to grant licences to persons to use premiss specified In the licence  for the purposes of a cinema subject to certain conditions terms and restrictions
The practice was stated to be in existence whereby in cases where it was intended to erect premises for use as a cinema justices were asked to approve the plans of the building to be erected and thereby honourably to commit themselves or their successors to grant the licence after completion of the premises
Disapproving this practice it was held that the practice was beyond the powers given by the Act and is unenforceable
It was observed that it was improper for justices by a gentlemen s agreement to fetter limit control or in any way affect their own future decisions or those of their successors or of other justices
The scheme of the Act and the rules at present under examination envisages two stages when the licensing authority has to examine the application i at the stage of grant of certificate Of approval of the site and ii at the stage of grant of cinema licence
In view of this difference in the scheme the decision is hardly of any assistance
We have reached the conclusion purely on the examination and interpretation of the scheme merging from the Act and the Rules
The High Court was therefore in our opinion in error in holding that once the public interest has been taken into cosidera 1 2 1038 tion while granting certificate of approval consideration of public interest would not arise and cannot be countenanced while granting a cinematograph licence under Sec
3 read with Sec 5
The next question is whether the District Magistrate in this case was justified in refusing to grant the licence in public interest on relevant consideration
The District Magistrate initially refused to grant licence against which in the appeal preferred by the respondent the order impugned in the writ petition was made by the State Government The State Government called for the comments of the District Magistrate qua the contentions raised by the respondent in his appeal
Briefly summarised the view expressed by the District Magistrate in his comments which was the view that prevailed with him while rejecting the application for license was that the relevant rules having not been complied with i inasmuch as the cinema hall has been constructed in the restricted area a d educational institutions are situated within 100 yards of cinema house ii there is no provision to give conditional licence under the cinema rules iii the allegation that the District Magistrate has some bias against the respondent was not correct iv the licence has been refused in public interest on consideration of public peace and order v the construction of cinema building was not completed within the prescribed period of two years vi if the licence is granted there is apprehension of breach of peace
These comments provide a peep into the mind of the District Magistrate while rejecting the application for licence
The State Government while quashing the order of the District Magistrate refusing to grant licence held that the reasons on the basis on which the licence to run cinema was rejected do not fall within the cinematograph Rules and violation of no specific rule is shown
That sets at naught ground Nos
i v and vi
The charge of bias was shown to be not merited and failure to complete the construction within the specified time did not merit rejection of the application for licence
Location of educational institutions within the prohibited area would not enter the verdict at the stage granting cinematograph licence because the same was taken care of and rejected while granting the certificate of approval
It is even factually not correct
Accordingly the State Government remitted the matter to the incensing authority to consider whether licence could be refused in public interest and if it is to be so refused the prior appro 1039 val of the State Government may be obtained
Therefore the remand order limited the enquiry by the District Magistrate to question of grant or refusal of licence in public interest
Other aspects are concluded by the remand order
Therefore the only question that survives for consideration is whether the District Magistrate is now justified in refusing to grant licence on the ground that it is not in public interest to do so
Reading the order dated February 20 1983 as a whole the influence of the Sammelan permeates through the order
Curiously after the direction given by the Court that the District Magistrate shall process and dispose of the application for licence the District Magistrate give a public notice inviting objections to the grant of cinematograph licence
The only objector again appears to have been the Sammelan and it has repeated all those objections which it had preferred at the time of granting of certificate of approval
The objections of the Sammelan were founded on two environmental aspects i that the surroundings of the campus of Sammelan are calm and quiet and there is such an atmosphere as would be conducive to the research work conducted on the campus of the Sammelan ii granting of a cinematograh licence would disturb the cultural and educational environment of the locality and would be a traffic nuisance
In our opinion both are irrelevant considerations for the obvious reasons that they are deemed to have been disposed of while granting certificate of approval and affirmed by the State Government in appeal
They ought to be rejected for the additional reason that the cinema building is an air conditioned sound proof building
It is not possible to believe that conducting cinematograph exhibition in a sound proof building will add to the noise
The grievance was that once a cinema theatre comes up tea stalls will spring up hawers would crowd the locality and traffic would increase is hardly relevant
There is nothing special about it
Anyone living in a developing urban area has obviously to put up with this situation
Noise can be mitigated not wholly obliterated
Therefore the District Magistrate rejected the application on extraneous and irrelevant considerations not germane to the issue at the stage of granting the licence
Licensing powers an indisputable adjunct of controlled economy take various forms and they are numerous
They are generally couched in a language giving wipe scope for exercise of powers 1040 Therefore the courts have been vigilant to see that they are not exercised in an oppressive or arbitrary manner
The powers being wide the question of its exercise on relevant or considerations germane to the determination more often arises
If the licence is refused on grounds which appear to be irrelevant the court can legitimately interfere
In this case the sole ground of refusal of licence is that it is not in public interest to grant it
Lifting the veil of public interest what transpires is that the license should not be granted because the Sammelan is not reconciled to the existence of a cinema theater in its vicinity
In other words public interest is shown to be co extensive with the likes and dislikes of the authorities in charge of the Sammelan
This cannot be countenanced
Dislike of a body howsoever prestigious it may be is not an adequate substitute for public interest
The licensing authority has clearly acted on irrelevant consideration in refusing the licence
The High Court was of course clearly in error in issuing a mandamus directing the District Magistrate to grant a licence
Where a statute confers power and casts a duty to perform any function before the power is exercised or the function is performed the Court cannot in exercise of writ jurisdiction supplant the licensing authority hearing a writ petition praying for a wit of certiorari for quashing the order of remand
The High Court could have quashed the order of remand if it was satisfied that the order suffers from an error apparent on the record
But there its jurisdiction would come to an end
The High Court cannot then proceed to take over the functions of the licensing authority and direct the licensing authority by a mandamus to grant license
To that extent the judgment of the High Court is set aside
However as pointed earlier while narrating the chronology of events through which the appeal proceeded in this Court the present situation is that the District Magistrate by its order dated February 20 1983 refused to grant licence on extraneous and irrelevant considerations and it has failed to exercise jurisdiction vested in it
This Court therefore on March 10 1983 vacated the interim stay of the operation of the judgement of the High Court
Within a week thereafter the District Magistrate granted license and lt was renewed for a further period of one year in April 1984
That licence is valid and in force and holds good subject to the application for its renewal at prescribed intervals
The order dated 1041 February 20 1983 refusing to grant license in public interest is quashed and set aside
The District Magistrate as licensing authority shall examine the application for renewal of licence whenever made on relevant and legally valid considerations germane to the determination and in the light of the observations made in this judgment
Subject to the modifications set out in this judgment the appeal fails and is dismissed but with no order as to costs
NVK Appeal dismissed


Summary:
The respondent desired to construct a cinema theatre on a plot of land
He submitted an application under Rule 3 of the UP Cinematograph 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 cinematograph 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 educational institution nor a residential institution within the contemplation or Rule 72b 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 1022 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 the form of entertainment tax
The District Magistrate granted the certificate informed the respondent that construction of a cinema house 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 under 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 UP 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
53 of the 1955 Act to the State Government which 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 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 though the order under challenge was one of remand as the respondent has journeyed to and fro on numerous occasions it was necessary to dispose of the petition 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 full fledged 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 the cinema building within the prescribed time if properly explained would not be a ground to refuse the cinematograph licence more so because the requirement of rule 33 is directory and not mandatory
The High Court accordingly made the rule absolute and in modification of the order of the State Government it directed the District Magistrate Licensing Authority to forthwith grant to the petitioner the requisite licence subject to reasonable condition and restrictions
In the appeal to this Court it was contended on behalf of the appellant state that the scheme o f the UP Cinema Regulation Act 1955 and the UP 1023 Cinematograph Rules 1951 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 See 5 and that the High Court was in error in holding that one 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 licensed for exhibition of cinematograph does not call for a re examination whether the grant is not otherwise contrary to public interest
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 may constitute public interest while licensing the cinema theatre for exhibition of a cinematograph under See
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 the order of remand if it was satisfied that the order of suffers from an error apparent on the record
But there its jurisdiction would come to an end
The High Court cannot then proceed to take over the functions of the licensing authority and direct the licensing authority by a mandamus to grant a licence
To that extent the judgment of the High Court is set aside
1040DF 2
Where a statute confers power and casts a duty to perform any function before the power is exercised or the function is performed 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 while granting certificate of approval consideration of public interest would not arise and cannot be countenanced while granting a cinematograph licensee under See
3 read with Sec 5
1037H 1038 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 that they are not exercised in an oppressive or arbitrary manner
The powers being vide the question of its exercise on relevant or considerations germane to the determination more often arises
If the licence is refused on grounds which appear to be irrelevant the court can legitimately interfere
1039H1040A The scheme manifested by UP Cinema Regulation Act 1955 and the UP Cinematograph Rubs 1951 establish the legislative intention that the 1024 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 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 authority 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 72c casts an obligation to record the reason 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 authority 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 while granting the certificate of approval on March 241972 bad 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 72bi
This determination is final and conclusive
1035F 7
While granting the cinema licence under Sec 3 the licensing authority has to keep in view the provision of Sec
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
51c for exhibition of cinematograph would be materially different than the one which would enter the verdict while considering the application for granting a certificate of approval under Rule 72c
1035G 1036