IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 369 of 1998 in SPECIAL CIVIL APPLICATION No 359 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- JANTA TOURING TALKIES Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR GM JOSHI for Appellant MR RC KODEKAR AGP for Respondent Nos. 1 and 2 MR PJ KANABAR for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE A.M.KAPADIA Date of decision: 27/03/2000 ORAL JUDGEMENT (Per J.M. Panchal, J.): 1. Judgment under challenge in this appeal which is filed under clause 15 of the Letters Patent is rendered by the learned Single Judge on March 5, 1998 in Special Civil Application No. 359 of 1998 whereby prayer made by the appellant to set aside decision of the Licensing Authority of not renewing licence for its touring cinema beyond January 31, 1998, is turned down. 2. The appellant had established a Janta Touring Cinema at village Babra, on February 11, 1986 pursuant to a licence issued by the Licensing Authority and Executive Magistrate-cum-Mamlatdar, Babra. The licence was renewed from time to time upto December 31, 1997. The respondent No.3 was earlier operating another touring cinema at Babra which was subsequently converted into a permanent cinema. As the licence granted to the appellant was to expire on December 31, 1997, the appellant had made an application for renewal of the licence. The appellant was informed by the respondent No.2 that because of the fact that a permanent cinema was established at village Babra, the appellant's licence was not liable to be renewed. According to the appellant, it had taken up the matter with the State of Gujarat as a result of which its touring cinema licence was renewed upto January 31, 1998. This decision of the State of Gujarat was challenged by the respondent No.3 before the High Court by way of filing Special Civil Application No. 122 of 1998. On the date of hearing of the petition, the learned A.G.P. appearing for the Additional Chief Secretary as well as the Licensing Authority had made a statement that the Government would not renew the licence granted to the appellant beyond January 31, 1998. In view of that statement, the respondent No.3 had sought permission to withdraw the petition. The respondent No.3 was accordingly permitted to withdraw the petition but Court had also reserved liberty to the appellant to challenge the decision of the Licensing Authority of not renewing touring cinema licence. The petition was accordingly disposed of by order dated January 17, 1998. The decision not to renew the licence beyond January 31, 1998 was communicated to the appellant which was challenged by it in Special Civil Application No. 359 of 1998. What was pleaded by the appellant in the petition was that the respondent authorities had failed to exercise jurisdiction vested in them on a misconception of law by proceeding on the basis that if a permanent cinema is set up, licence for touring cinema cannot be renewed and, therefore, the impugned decision was liable to be set aside. It was also averred that the word "place" in the proviso to Rule 107 of the Bombay Cinema Rules, 1954 means a site and not an area in the sense of a town or village as construed by the respondents and, therefore, the respondents should be directed to renew touring cinema licence of the appellant. By filing the petition it was prayed to issue a writ of mandamus or any other appropriate writ, order or direction declaring that the action of the respondents Nos.1 and 2 in not renewing the licence beyond January 31, 1998 was ultra vires the provisions of the Bombay Cinema (Regulation) Act, 1953 ('the Act' for short) and the Bombay Cinema Rules 1954 ('the Rules' for short) as well as Articles 14, 19 (1) (g) and 21 of the Constitution. The appellant had also prayed to direct the respondents Nos.1 and 2 to renew the licence beyond January 31, 1998. 3. Reply affidavit was filed by respondent No.3 controverting the averments made in the petition. In the said reply it was pleaded that permanent cinema of the respondent No.3 having been established in Babra village, touring cinema licence of the appellant was not liable to be renewed and, therefore, the petition should be rejected. 4. Mr. P. G. Vyas, Secretary to the Government of Gujarat, Information, Broadcasting and Tourism Department, Sachivalaya, Gandhinagar, had filed affidavit in reply disputing the claims raised in the petition. What was stated in the reply was that in view of the provisions of the Rules, licence of a touring cinema at a place can be renewed from time to time until such time as a permanent cinema, a Janta Cinema or, as the case may be, a drive-in cinema is opened, or allowed to remain open, at the place and, therefore, the word "place" obviously refers to an area and not to site as was contended by the appellant. It was further mentioned in the reply that in view of the representation made by the respondent No.3 the District Magistrate, Amreli as well as Mamlatdar, Babra were advised by the State Government by a letter dated December 17, 1997 not to renew the licence of the appellant after December 31, 1997 and, therefore, the decision of the licensing authority being in consonance with the provisions of the Act and Rules, the petition should be dismissed. 5. The learned Single Judge has construed the word "place" to mean the area comprising a village or a town and not site or place of exhibition of a touring cinema. In view of this interpretation, the learned Single Judge has dismissed the petition by judgment dated March 5, 1998 giving rise to the present appeal. 6. Mr. G.M. Joshi, learned counsel for the appellant, urged that the object and the scheme of the Act provides for regulating exhibitions by means of cinematographs and the licensing of places in which cinematograph films are exhibited and thus the word "place" has a definite meaning i.e., site or place of exhibition and, therefore, the impugned judgment should be set aside. According to the learned counsel, the word "place" is defined to include a house, building, tent and any description of transport whether by sea, land or air and if a wider meaning to the said word is given as is done by the learned Single Judge it would amount to legislation by the Court which is not permissible. What was emphasised was that the meaning of the word "place" as construed by the learned Single Judge does not fit in with the object of the Act but has rendered the whole Act meaningless and, therefore, the appeal should be accepted. After referring to the statutory definition of the word "place" it was stressed on behalf of the appellant that the word 'place' used in the definition clause of the Act should be given the same meaning all throughout and different meanings to the said word should not be given. The claim advanced by the learned counsel for the appellant was that the word "place" should be understood in the context of site or place of exhibition which includes the place which is static as well as mobile and, therefore, the petition ought to have been accepted by the learned Single Judge. It was asserted on behalf of the appellant that Rule 107 of the Rules relates to renewal of licence at the same place and the purpose of this rule being to prevent the possibility of establishment of two different cinemas of the same kind at the same place, the word "place" should not have been construed to mean an area. The learned counsel for the appellant drew the attention of the Court to the original proviso to Rule 107 of the Rules which was subsequently amended by the legislature and pleaded that the reference to the word "place" is in respect of location but not the area as is construed by the learned Single Judge. What was highlighted by the learned counsel for the appellant was that it was never the intention of the legislature to prohibit establishment of touring cinema where a permanent cinema is set up and if the interpretation placed by the learned Single Judge is accepted it would be violative of the rights of the appellant guaranteed under Article 19 (1) (g) of the Constitution. It was also submitted that the Licensing Authority has to take decision for renewal of licence on its own without being guided by the mandate of the State Government and, therefore, the decision of the licensing authority taken at the behest of the State Government should be set aside. In support of these submissions, learned counsel for the appellant placed reliance on decisions rendered in (i) M/s. Krishna Cinema, a partnership firm, Rajkot and others v. The State of Gujarat and another, AIR 1971 Gujarat 103; (ii)Junagadh Cinema Association and another v. State of Gujarat and others 1991 (2) GLH 100 and (iii) Collector of Customs, Calcutta v. M/s. Sun Industries, 1988 (Supp.) SCC 342. 7. Mr. R.C. Kodekar, learned A.G.P., contended that the definition of the word "place" as given in the Act is inclusive and having regard to the subject and context in which the said word has been used in rule 107 of the Rules it cannot be said that the interpretation placed by the learned Single Judge on the said word is erroneous in any manner so as to warrant interference of the Court in the present appeal. After emphasising that the right conferred by Article 19 (1) (g) of the Constitution is always subject to reasonable restraints and restrictions, the learned A.G.P. submitted that no right of the petitioner is violated when the licence of its touring cinema is not renewed on the ground that a permanent cinema has been set up in village Babra by respondent No.3. According to the learned A.G.P., subject to the control of the State Government the Licensing Authority is expected to grant licence under the Act and, therefore, direction given by the State Government to the Licensing Authority in the matter of renewal of licence cannot be regarded as either illegal or arbitrary. In support of his submission, learned A.G.P. placed reliance on the decision rendered in the case of R.N. Vallinayagam Pillai, Proprietor of Sri Shanmugananda Touring Talkies v. State of Madras and another, AIR 1952 Madras 528. 8. We have considered the arguments advanced at the bar as well as the provisions of the Act and the Rules. It seems to us apposite to advert first to the relevant provisions of the Act and the Rules to better understand and appreciate the rival contentions. The title of the Act suggests that it is a Regulatory Act. Preamble to the Act generally serves as a key to discuss the purpose and object of the Act. The dual purpose of the Act envisaged in the preamble are to provide for regulating exhibition of cinematograph films and the licensing of the places in which cinematograph films are exhibited. Sections 1 and 2 deal with the title, commencement and definition of certain terms used in the Act. Section 3 prohibits anyone from exhibiting cinematograph films in any place other than a place licenced under the Act or otherwise than in compliance with the conditions and restrictions imposed by such licence. Section 4 prescribes the authority that can issue the licence under the Act. Section 5 provides restrictions on the powers of licensing authority and inter alia stipulates that subject to the control of the State Government the licensing authority may grant licence under the Act of course subject to the restrictions as may be prescribed and fulfillment of substantial compliance with the provisions of the Act and the Rules. Section 6 of the Act enables the State Government or the Licensing Authority to suspend the exhibition of films in certain cases whereas Section 7 provides for penalties for contravention of the provisions of the Act. Section 8 empowers the competent authority to revoke or suspend the licence in the event of any contravention by the holder of the licence of any of the provisions of the Act or the Rules whereas Section 8A enables an aggrieved person to file an appeal before the State Government against an order of the Licensing Authority refusing to grant licence or revoking or suspending any licence. Powers of Revision and Review are also conferred on the State Government under Section 8B and 8C of the Act respectively. Section 9 of the Act enables the State Government to make rules for the purpose of carrying into effect the provisions of the Act and enumerates particular matters with reference to which Rules can be made by the State Government without prejudice to the generality of the powers to make such rules. In exercise of rule making powers, the State Government has made rules called the Bombay Cinema Rules, 1954. Rule 2 of the Rules deals with definition of certain terms used in the Rules. Rule 3 provides for granting of No Objection Certificate whereas Rule 8 relates to Building Rules which inter alia provides that Rules 9, 13, 14, 15, 16, 17, 20 (1), 20 (2), 21, 22 and 23 only shall apply in the case of touring cinemas. Rule 9A relates to building material to be used in touring cinema and states that in the case of a touring cinema, the external walls shall consist of tarpaulin or thick hession soaked in fire resisting solution and such cinema need not have a roof over the auditorium. Rule 26 deals with sanction of the Electric Inspector to be obtained for all electrical work but the first proviso to the said rule makes a concession in favour of a touring cinema and stipulates that in case of a touring cinema no fresh sanction shall be necessary if the electrical installation is carried out in accordance with the plans sanctioned at any previous camp of such cinema. Rule 92 relates to building permission to be obtained by the person who proposes to put up a cinema. Rule 102 of the Rules prescribes as to how an application for licence should be made and it should contain what. According to the said rule, an application for cinema licence has to be made to the Licensing Authority and should contain a statement as to the nature and extent of the interest of the applicant in the cinema and also his name or names of the Manager or Managers nominated by the applicant as referred to in Rule 117. The application has to be accompanied by documents such as (i) a true copy of the No Objection Certificate issued under Rule 6, (ii) a true copy of the Building permission issued under Rule 93, (iii) a certificate from an authorised architect or a qualified engineer and countersigned by the Executive Engineer concerned to the effect that the construction of the Cinema is sound and in accordance with the requirements laid down in Chapter III and that all directions given or conditions specified by the Executive Engineer concerned have been complied with and that precautions against fire have been taken as laid down in Chapter V, (iv) a certificate from the Government Electrical Inspector or the Assistant Electrical Inspector concerned to the effect that the electrical installation in the cinema is in order and has been inspected and passed by him and conform to the requirements of the Rules under the Indian Electricity Act, 1910 and to the Rules specified in Chapter IV and Rules 79, 80(3), 82, 83, 84 and 87 in Chapter V, (v) a certificate to the effect that there is no objection from the health point of view for the grant of a licence and (vi) a certificate from the Authority concerned that a telephone in working order has been duly installed in the cinema. 9. In this appeal, the Court is concerned with interpretation of Rules 103 and 107 of the Rules and, therefore, we propose to quote them in extenso which are as under: "103. Grant of Cinema Licence: The Licensing Authority on receipt of documents and certificate referred to in rule 102 being satisfied that all the necessary Rules have been complied with may grant a Licence for a cinema to the applicant on such terms and conditions and subject to such restrictions as the Licensing Authority may determine. The cinema licence shall be in Form "E". Provided that a touring cinema licence shall not be valid beyond the district of issue and ordinarily touring cinema licenses shall not be granted for places where there is already a permanent or quasi permanent cinema but the Licensing Authority may in his discretion permit a touring cinema, to operate at a place where there is already a permanent or quasi-permanent cinema on occasions such as fairs and melas or when the touring cinema exhibits film of a kind different from those exhibited by non-touring cinema e.g. educational films or where it caters for a different public." "107. Renewal of Licenses: The Licensing Authority may on application being made to him in that behalf renew the Cinema licence for the requisite period subject to Rule 105 above. An application for the renewal of a licence shall be made in the manner laid down in Rule 102 but it shall not be necessary to attach to the application for renewal the true copy of the No Objection Certificate and the true copy of the Building Permission unless specifically required by the Licensing Authority: Provided that in the case of the touring cinemas and of premises in any area duly licensed for use for Cinematograph exhibition before the coming into force of these rules in that area a certificate of the nature referred to in sub-rule (3) of rule 102 from the Executive Engineer concerned in lieu of such certificate from an authorised architect or a qualified engineer, may be attached. Provided further that the licence of a touring cinema at a place may be renewed, from time to time, until such time as a permanent cinema, a Janta Cinema or, as the case may be a drive-in-cinema is opened, or allowed to remain open, at the place, in accordance with the provisions of these rules." 10. A close examination of the provisions of the Act reveals that definition of the word "place" as given in Section 2 of the Act is inclusive and not exhaustive. The Legislature has power to define a word even artificially. So the definition of a word in the definition Section may either be restrictive of its ordinary meaning or it may be extensive of the same. Where the term "mean" is used, it normally means what is stated in the definition unless the context otherwise requires. Where the term "includes" is used, the word not only bears its ordinary popular and natural meaning but in addition to that it also bears its external statutory meaning. Use of the expression "includes" supposes that the term is not complete or exhaustive but enumerative. The expression "includes" is very generally used in the interpretation clause in order to enlarge the meaning of the words or phrases occurring in the body of the statute. Where these words are used then the term defined must be considered as comprehending such things as they signify according to their natural import as well as also those things which the interpretation clause declares that they shall include. According to the dictionary meaning, the word "place" also means an area, village or town and, therefore, it would be incorrect to suggest that natural import of the said meaning of the word is given go-by by the Legislature while defining the word "place" in the Act. The contention that the word "place" means one thing and has been used throughout to mean 'site', cannot be accepted. It is well settled principle of interpretation of statute that same word may mean one thing in one context and another in a different context. For this reason, the same word used in different Sections of a statute or even when used at different places in the same clause or Section of a statute may bear different meaning. Language which on its construction results in absurdity, inconsistency, hardship or strange consequences is not readily accepted as unambiguous because the Courts are not always prepared to concede as plain language which involves absurdity and inconsistency. It is true that when the language is fairly and reasonably open to only one meaning, hardship or inconvenience or surprising results are no considerations for refusing to give effect to that meaning. But such cases are rare for absurd and unreasonable results are not intended by the Legislature and the language used is seldom so plain or inflexible that the Courts are not able to avoid them. It is specifically provided in Section 2 of the Act that unless there is anything repugnant in the subject or context, the word "place" includes a house, building, tent and any description of transport, whether by sea, land or air. The meaning of the words and expressions used in an Act must take their colour from the context in which they appear and the subject matter they deal with. When the context makes meaning of a word quite clear it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers. Where the context makes the definition given in the interpretation clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause. All definitions given in an interpretation clause are, therefore, normally enacted subject to the qualification - "unless there is anything repugnant in the subject or context", or 'unless the context otherwise requires'. Even in the absence of an express qualification to that effect such a qualification is always implied. It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. Normally, in finding out the meaning of a word in various Sections of the Act the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section i.e., 'unless there is anything repugnant in the subject or context'. In view of this qualification, even if the provisions of the Act are strictly construed as is laid down in M/s. Krishna Cinema, a partnership firm, Rajkot and others (supra), the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances.