IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.10.2008 CORAM: THE HONOURABLE MR. JUSTICE K. CHANDRU Writ Petition Nos.19089 of 1998 and 21107 of 2000 & WPMP No.28948 of 1998 K.A.Duraisamy .. Petitioner in W.P.No.19089/1998 P.D.Chockalingam .. Petitioner in W.P.No.21107/2000 Vs. 1. The Government of Tamilnadu rep. by its Secretary Home Department, Chennai 9. .. 1st respondent in both W.Ps. 2. The District Collector Dharmapuri .. 2nd respondent in W.P.No.19089/1998 3. The District Collector Erode District Erode .. 2nd respondent in W.P.No.21107/2000 Prayer in W.P.No.19089/1998: Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus to call for the records of the respondents relating to G.O.Ms.No.1118, Home (Cinema -II) dated 18.8.1998 and quash the same in so far as it affects the petitioner and direct the respondents herein to forthwith renew the licence of the petitioner herein to continue to run Balaji Video Theatre at Bye pass road, Karimangalam, Palacode Taluk, Dharmapuri District. Prayer in W.P.No.21107/2000: Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus to call for the records of the respondents relating to G.O.Ms.No.1118, Home (Cinema -II) dated 18.8.1998 and quash the same in so far as it affects the petitioner and direct the respondents herein to https://hcservices.ecourts.gov.in/hcservices/ forthwith renew the licence of the petitioner herein to continue to run Saravana Video Theatre at Punnam Post, Bhavani Taluk, Erode District. For Petitioner in both W.Ps. : Mr. K.Doraisami, Sr.counsel for Mr.Kandavadivel Doraisami For Respondents : Mr. A.Arumugam, Special Govt.Pleader O R D E R Heard Mr.K. Doraisami, learned Senior Counsel leading Mr.Kandan Doraisami and Mr.A.Arumugam, learned Special Government Pleader for the respondents and perused the records. 2. Both the writ petitioners challenges the order of the State Government in G.O.Ms.No.1118, Home (Cinema -II) dated 18.8.1998 and after setting aside the same, they want renewal of the licence granted to the petitioners' video theatres. 3. while in the first Writ Petition, notice was ordered on 3.8.1998, the second Writ Petition was admitted on 15.12.2000. Interim orders were also granted in favour of the petitioners and they are still in currency. On the strength of the interim order, the first petitioner is still running the video theatre as per the Tamil Nadu Exhibition of Films on Television Screen through Video Cassette Recorders and Cable Television Network (Regulation) Act, 1984 (for short 'Tamil Nadu Act 7 of 1984). On notice from this court, the respondents have filed a counter affidavit dated nil. 4. It is stated by the petitioners that the State had promulgated Tamil Nadu Ordinance 11 of 1984, which was subsequently replaced by the state legislation in the form of Tamil Nadu Act 7 of 1984. Pursuant to the power granted under section 22 of the Act, Rules have been framed known as the Tamil Nadu Exhibition of Films on Television Screen through Video Cassette Recorders and Cable Television Network (Regulation) Rules, 1984 on 30.1.1984. 5. The object of the Act was set out in the preamble of the Act, which reads as follows: "An Act to provide for the regulation of exhibition of films on Television Screen through video cassette Recorders (and through Cable Television Network) in the State of Tamil Nadu and for matter incidental or ancillary thereto." https://hcservices.ecourts.gov.in/hcservices/ 6. Under the provisions of the Act, no person shall be given exhibition of films on television screen through Video Cassette Recorders (VCR) except in accordance with the licence granted under section 6 read with Section 5 of the Act. This was to be exhibited in place for which permission has been granted under section 7 r/w 5 of the Act. Section 5 provides for grant or for refusal of licence. Under section 6, restrictions have been imposed on the powers of licensing authorities. Apart from various guidelines therein, regarding the materials to be exhibited, the State Government is given power to grant direction under section 8(1), which reads as follows: "1. The Government may issue such orders and directions of a general character as they may consider necessary, in respect of any matter relating to licences for the exhibition of film on television screen through Video Cassette Recorder (or through Cable Television Network) or the keeping of Video Library, to licensing authorities; and every licensing authority shall give effect to such orders and directions." 7. Section 11 provides the power of the State Government to suspend exhibition of film in certain cases where there is likelihood of breach of peace. In case of revocation or suspension of licence made under section 12 by the licensing authority, an appeal lies under section 13 to the appellate authority prescribed therein. Section 14 gives revisional power to the State Government. Except for the above referred provisions, there is no general power vested with the Government except the power of exemption granted under section 21 of the Act. That may not have any relevance to the present case . 8. The rules framed therein set out the guidelines for the licensing authorities to grant licence in terms of the conditions imposed by the Act. It is stated that both the petitioners are having licences under the Act. Subsequently, when the question of renewal came, the petitioners were surprised with the issuance of the Government's order in G.O.Ms.No.1118 (Home (cinema-II) Department dated 18.8.1999. 9. The said order which was issued in Tamil, if freely translated, reads as follows: "(1) The Joint Commissioner for Land Administration informed the Government that insofar as Tamil Nadu is concerned, under the Tamil Nadu Exhibition of Films on Television Screen through Video Cassette Recorders and Cable Television Network (Regulation) Act, 1984 and the Rules framed thereunder, 3 Video Theatres have been granted licences and they are functioning and that several applications for grant of licence to Video Theatres are pending consideration by the various District Collectors. https://hcservices.ecourts.gov.in/hcservices/ 2. In a meeting held on 3.7.1998 before the Hon'ble Chief Minister with the cinema producers, cinema theatre owners, cinema directors and technical artists belonging to the cine world and their representatives, it was assured that no licence will be granted for any new video theatres and for the Video theatres, which are already having licence, their licences will not be renewed. In the light of the decision taken in the said meeting, the Government may advice or pass appropriate orders to the licensing authorities as suggested by the Joint Commissioner for Land Administration. 3. In the light of the note submitted by the Joint Commissioner of Land Administration, it is ordered by the Government that no renewal of the licence shall be granted to the Video Theatres by the Licensing Authorities." Aggrieved by this omni bus direction issued by the State Government, the present Writ Petitions have been filed. 10. Mr.K.Doraisami, learned Senior Counsel for the petitioners submitted that since the legislature has enacted the Tamil Nadu Act 7 of 1984 and proper Rules have been framed therein, there is no question of any general direction issued by the State Government, which will kill the very purpose of the enactment. Such a power cannot be gleansed from the provisions of the Act more particularly from Section 8 of the Act. Under Section 8 of the Act, the State Government has power to give directions of a general character in respect of any matter relating to licence. But, in this case, the decision not to grant licence or refusal of renewal of licence goes contrary to the provisions of the Act and the Rules framed thereunder. Once the legislature makes a general enactment and framed the Rules, it is for the appropriate licensing authority to consider the applications in accordance with the Rules and the Act and the Government cannot stop the authorities from granting licence of renewal of existing licence on a general policy basis. 11. Further, it is submitted that the issue relating to renewal of licence or grant of fresh licence cannot be considered at the instance of certain groups of persons and so long as the Act is in statute book, the authorities will have to function within the four corners of the law. 12. The learned Special Government Pleader after relying upon the counter affidavit submitted that the decision has been taken since there may be unauthorised exhibition of recently released films in the video theatres. Further collection in cinema theatres may decline considerably and as it poses a major threat and will cause loss of revenue to the Government, the decision was taken in public interest. He also attempted to justify the impugned Government Order as a reasonable restriction referable to Article 19(6) of the Constitution of India. Therefore, the impugned order cannot held to be arbitrary or violative of the Constitutional right of the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 13. Thus, in the light of these submissions, the case of the petitioners will have to be examined. The first reason that it may affect the cinema theatres cannot be accepted because the very object of the Act is to regulate the exhibition of films on Television Screen through Video Casseete Recorders and Cable Television Network. Therefore, the legislature in its wisdom thought that apart from the regular cinema theatre houses, such video theatres can also be permitted and elaborate Rules have been framed for the purpose of licensing and controlling such exhibition of films. 14. For any violation of the provisions of the Act, penalties have been prescribed under section 15 of the Act. In violation of the license if any unauthorised exhibition of a film is done, theatre owners are not only liable for prosecution and confiscation proceedings is also provided under section 18 of the Act. Therefore, when the State legislature in its wisdom thought fit to provide an alternate form of entertainment through video theatres, it is not open to the executive Government to issue a general order and then commit an "hara-kiri" of the Act by the said order. If the demands of the persons belonging to the regular cinema world are genuine or acceptable, then the question of enacting a legislation may not arise. If such grievances are genuine, it is for the legislature to repeal the Act. Once the Act is in the statute book, then the State has to exercise the power only in terms of the Act ant not outside the Act by issuing the present order, which is impugned in these Writ Petitions. 15. Even for argument sake if there was a likelihood of loss of revenue for the persons involved in cinema production, that cannot be a ground for the State Government to stop the video theatres in the form of an Executive fiat, which goes contrary to the provisions of the Act. In respect of violations pointed out, the Act completely safeguard such violations. It may not be out of place to mention and by taking note of judicial notice of the fact that the State itself has distributed free television sets to every eligible household in Tamil Nadu and that could also result in reduction of collection of entertainment tax from the theatres. Any restriction imposed, referable to Article 19(6) must have nexus to the right guaranteed under Article 19(1)(g) of the Constitution of India. Inasmuch as the petitioners are regular licence holders under the Act, their right guaranteed under Article 19(1)(g) cannot be taken away by an arbitrary exercise of power by the State Government. If the State pleads any public interest, such public interest has to be truly reflected either in the impugned order or in the counter affidavit. The only reason adduced regarding revenue loss cannot be a ground to deny licence to run video theatres. Even under this Act, there are various other restrictions imposed on the video theatre owners. https://hcservices.ecourts.gov.in/hcservices/ 16. Section 8 of the Act does not empower the State Government to issue an omni bus order to stop licensing of any video theatres and the reason adduced does not find constitutional acceptance. So long as the power has been entrusted by the licensing authorities to grant licence or renew licence or refuse licence, which are also subject to Appeal and a Revision provided under the Act, by the impugned order the State cannot take away the power granted to the statutory authorities. 17. In this context, it is necessary to refer to the decision of the Supreme Court in (1996) 3 SCC 15 (Thirumuruga Kiurupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust vs. State of Tamil Nadu and others). In that case the question arose that the State Government, which has power to issue an essentiality certificate for opening a Medical College, on the basis of a policy decision can refuse to exercise that power. The Supreme Court rejected the plea of the State Government and held that the essentiality certificate cannot be withheld by the State on any policy considerations. 18. Subsequently, the Supreme Court in Jaya Gokul Educational Trust vs. Commissioner & Secretary to Government, Higher Education Department, Thiruvananthapuram and another reported in AIR 2000 SC 1614 reiterated the same view. 19. Once again, the Supreme Court in Government of Andhra Pradesh and another v. Medwin Educational Society and others reported in AIR 2004 SC 613, after referring to the aforesaid two decisions reiterated the view. It was held that if a power to grant certificate vests with the Government, the power will have to be exercised within the four corners of law and it cannot be denied on any policy considerations. 20. In Consumer Action Group and another vs. State of Tamil Nadu and others reported in (2000)7 SCC 425, the question came up for consideration was the nature of power to be exercised under section 113 of the Tamil Nadu Town and Country Planning act, 1971, by which the State Government was given power to grant exemption from the provisions of the Act. While construing the said power, the Supreme Court held that if the legislature has given a wider discretion and if the power is exercised in an arbitrary fashion, such power of the state can be judicially scrutinised. https://hcservices.ecourts.gov.in/hcservices/ 21. In the present case, the power of the State Government to exempt the provisions of the Act is limited by Section 21. Even that power is not to exclude the provisions of the Act. On the contrary, it only exempts certain provisions of the Act for the operators to exhibit the film through Video Cassette Recorders. Apart from that, Section 8 only deals with directions to be issued is of a general character and by which it cannot make the Act totally unworkable. As noted already, the object of the Act is to regulate the exhibition of film in Video theatres through Video Cassette Recorders and in the name of Regulation, they cannot totally curtail the right of the exhibitors to exhibit films in licensed Video Theatres. 22. The Supreme Court had an occasion to consider the provisions of the Bombay City Police Act, which empowers the Commissioner of Police to promulgate the regulatory orders in respect of conduct of public meeting and processions. When the question of vires of rule 7 of the Bombay City Police Rules came up for consideration, the Supreme Court in the judgment reported in Himat Lal K.Shah vs. Commissioner of Police, ahmedabad and another reported in (1973) 1 SCC 227 held that the power of Regulation cannot empower the authority to deny the very existence of the right to be exercised by a citizen and such discretion will be an uncontrolled decision violative of the constitutional right of a Citizen. In fact, the Rule 7 conferring arbitrary power on the officer or the Commissioner of Police was struck down. In arriving at such a conclusion, the Supreme Court dealt with the term 'regulate as found in para 15 of the judgment, which may be usefully extracted below: "15. Coming to the first point raised by the learned counsel, it seems to us that the word 'regulating' in Section 33(a) would include the power to prescribe that permission in writing should be taken a few days before the holding of a meeting on a public street. Under section 33(c) no rule could be prescribed prohibiting all meetings or processions. The section proceeds on the basis that the public has a right to hold assemblies and processions on and along streets though it is necessary to regulate the conduct and behaviour of action of persons constituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. The word 'regulate' according to Shorter Oxford Dictionary, means "to control, govern, or direct by rule or regulation; to subject to guidance or restrictions." The impugned Rules does not prohibit the holding of meetings but only prescribe that permission should be taken although it is not stated on what grounds permission could be refused." https://hcservices.ecourts.gov.in/hcservices/ 23. In the light of the aforesaid discussion, it can be clearly seen that the impugned Government Order cannot be said to be a reasonable restriction referable to Article 19(6) of the Constitution of India. Such a power is not vested by the Tamil Nadu Act 7 of 1984 on the State Government to deprive all the licensing authorities from acting in accordance with the Act and Rules framed thereunder. 24. In the circumstances, both the Writ Petitions will stand allowed. The impugned Government Order is set aside and the authorities are directed to consider the application of the petitioners for renewal of licences strictly in accordance with the Act and the Rules framed under the Tamil Nadu Act 7 of 1984 without reference to the impugned order. No costs. The connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Secretary, Government of Tamilnadu Home Department, Chennai 9. 2. The District Collector, Dharmapuri 3. The District Collector, Erode District 1 cc To M/s.Muthumani Doraisamy, Advocate, SR.57323. W.P.Nos.19089 of 1998 and 21107 of 2000 TS(CO) RVL 23.10.2008 https://hcservices.ecourts.gov.in/hcservices/