HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. 4. Case :- MISC. BENCH No. - 10127 of 2015 Petitioner :- M/S Bharat Palace A Registered Partenership Firm Through Par Respondent :- State Of U.P. Through Prin. Secy. Taxes & Registration Lko. Counsel for Petitioner :- Ashish Chaturvedi Counsel for Respondent :- C.S.C. CONNECTED WITH: Case :- MISC. BENCH No. - 9120 of 2015 Petitioner :- M/S Bharat Palace Thru. Its Partner Sri Manu Sahgal Respondent :- State Of U.P. Thru. Prin.Secy.,Taxes & Registration & 2 Ors. Counsel for Petitioner :- Ashish Chaturvedi Counsel for Respondent :- C.S.C. Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Attau Rahman Masoodi,J.
( By Hon'ble Attau Rahman Masoodi, J. ) Writ Petition No. 9120 (MB) of 2015 is directed against the notice dated 26.9.2015 coupled with the relief for renewal of the petitioner's licence granted for running a cinema hall.
Writ Petition No. 10127 (MB) of 2015 is directed against the final orders dated 15.10.2015 (Annexure nos. 1 & 2) passed in furtherance of the notice dated 26.9.2015 which was assailed in the earlier writ petition, mentioned above coupled with relief for renewal of cinema licence.
Both the writ petitions have arisen under a similar set of facts and circumstances, therefore, were heard together and are being decided by a common judgement.
The petitioner, a licencee for running a cinema hall in the name of 'Bharat Palace', was issued a notice dated 26.9.2015 by the Assistant Entertainment Commissioner, Sitapur i.e. respondent no. 2 for removal of a mobile tower that has been admittedly installed on the roof of the cinema hall in relation to which an application for renewal of licence had been applied for.
The contention of the learned counsel for the petitioner is that different stands at variance with each other were taken by the respondents from time to time for directing him to remove the cellular tower resting on the roof of the cinema hall. Initially the notice was issued indicating the tower being unsafe to the structure of the building and subsequently an objection raised by the fire department became the cause, and lastly the notice was issued in public interest due to exposure of harmful radiations. The notices which were purportedly issued in exercise of the powers under Rule 18 of the U.P. Cinematograph Rules, 1961, were duly replied by the petitioner. The reply submitted by the petitioner was not considered favourably and by means of the impugned order, the tower was directed to be removed failing which it has further resulted into refusal on the part of the respondents to renew the petitioner's cinematograph licence.
Counter affidavit has been filed in Writ Petition No. 10127 of 2015 whereas no counter affidavit was filed in the writ petition directed against the notice dated 26.9.2015.
The respondents have taken a clear stand in the counter affidavit on the premise of Rule 18 of U.P. Cinematograph Rules, 1951 according to which the use of cinema building for the purpose other than that of cinema is impermissible and on account of violation on the part of the petitioner to use the building for other purpose, the impugned action is sought to be justified.
The entire defence adopted in the counter affidavit rests on the premise of Rule 18 of the U.P. Cinematograph Rules, 1951 which for ready reference is reproduced below:
"18. Prohibition of use of building for purposes other that of a cinema - No portion of a cinema shall be used as a restaurant, boarding house, shop, factory, workshop or manufactory, or for the purposes of storage or for the preparation or sale of food, drink except with the sanction of Licensing Authority and subject to such conditions and restrictions as may be imposed and specified by him in this behalf nor shall any portion of the cinema be used for residential purpose by day or night."
In the light of aforementioned rule, the contention of the learned counsel for the petitioner is that neither the notice issued on the strength of the aforesaid rule is within the true scope of the statutory provisions, nor the validity of the impugned order can be justified on the strength of the aforesaid rule, particularly in a situation where the petitioner was granted deemed permission to install the cellular tower on the basis of making requisite compliance of the government order dated 10.12.1999 i.e. submission of the sanctioned plan and fulfilling other requisite formalities including deposit of prescribed fee. According to the government order dated 20.12.1999, permission to install a mobile tower would be deemed to have been granted once a person files the sanctioned plan alongwith the safety certificate coupled with the deposit of licence fee. The compliance of all these conditions, according to the learned counsel for the petitioner, is not disputed by the respondents.
Per contra, learned Standing Counsel, in order to justify the impugned notice giving rise to the impugned order passed by the respondents, has argued that the conditions stipulated under Rule 18 are merely illustrative and are not exhaustive, therefore, the District Magistrate is well within his authority to direct for removal of the cellular tower even though the same is installed in accordance with the provisions of government order dated 10.12.1999.
Before considering the validity of the impugned orders, it is necessary to make a reference to the relevant provisions of the statute and the rules framed thereunder, which regulate the grant of licence for running a cinema hall. The licence for running a cinema hall is regulated under the Act known as U.P. Cinema (Regulation) Act, 1955. Section 3 of the said Act provides for licence which clearly stipulates that no person shall exhibit films by means of cinematograph at a place other than licensed under the Act on compliance of the conditions and restrictions imposed by such licence. Section 5 (3) confers power on the licencing authority to grant licence on such terms and conditions and subject to such restrictions as it may determine, subject to the control of the State Government. Section 5 being relevant for the purpose of present controversy, is reproduced hereunder:
"Restrictions on the powers of licensing authority - (1) The licensing authority shall not grant a licence under this Act, unless it is satisfied that -
(a) the rules made under this Act have been substantially complied with, and (aa) the building or other place in which cinematograph exhibition proposed to be given-
(i) is situated at a distance of not less than 200 maters from the Raj Bhawan, the state Government Secretarial, the High Court, the State Public Service Commission or the Board of Revenue;
(ii) is situated at such minimum distance as may be prescribed from other public building and from recognized educational and other public institutions and public hospitals;
(iii) is not situated in a locally which is exclusively residential in character or is reserved exclusively for residential purposes; and
(b) adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of persons attending exhibitions therein:
(bb) no restaurant is run in the place in which exhibition by means of video is proposed to be given.
Explanation - Nothing contained in this clause shall be constructed so as to prevent licence being granted to any hotel for exhibition by means of video in the room to be occupied by the ledgers.]
(c) the grant of licence is not otherwise contrary to the public interest].
[Explanation - (1) Different minimum distances may be prescribed under sub-clause (ii) of clause (aa) in relation to different clauses of public buildings, institutions and hospitals.
(2) For the purposes of clause (aa), the distance shall be measured from the outer boundary of the compound of the cinema building to the outer boundary of the compound, if any, of the building mentioned in that clause.] (3) Subject to the foregoing provisions of this section and to the control of the State Government and the interests of the general public, the licensing authority may grant licences under this Act on such terms and conditions and subject to such restrictions as it may determine and on payment of such fees as may be prescribed.
(4) Any person aggrieved by the decision of a licensing authority refusing to grant a licence under this Act may, within such time as may be prescribed, appeal to the State Government and the State Government may make such order in the case it thinks fit."
(5) The State Government may from time to time, issue directions to licensees generally or to any film or class of films, so that scientific films, films intended for educational purposes, films dealing with news and opportunity of being exhibited and where any directions have been issued, those directions shall be deemed to be additional conditions and restrictions subject to which the licence has been granted.
From a perusal of Section 5 extracted above, it is clear that in the eventuality of refusal to grant licence, which certainly would include the renewal of licence as well, an appeal would lie to the State Government and the State Government may make such order in the case it thinks fit. The above provision also empowers the State Government to issue directions to the licencees generally or any licencee in particular for the purpose of regulating the exhibition of any film or class of films and any such direction issued by the State Government would be deemed to be an additional condition and restriction, subject to which the licence is granted.
It may be relevant to note that the petitioner in response to the notices issued, has already placed on record safety certificate in relation to the structural strength of the building as well as 'no objection certificate' of fire department, which meets the previous objections raised by the authorities.
The notice in question recites the objection of radiation effect and the same is said to have been issued in public interest. The issuance of notice is sought to be justified on the ground of public interest asserted in the background of the harmful effect of radiations as was communicated to the petitioner by notice dated 26.9.2015. The petitioner certainly has replied to the said notice on the strength of a report dated 12.4.2012 contained in Annexure-13 to the writ petition, which shows that the effect of radiation is within the norms.
It is also pointed out in the reply submitted by the petitioner that several other cellular towers are installed at many other commercial buildings as well as on the roofs of cinema halls. The impugned action being selective and discriminatory is sought to be objected specifically on the aforementioned grounds, coupled with the fact that the government order dated 10.12.1999 placed reliance upon, does not forbid, rather regulates, the installation of such towers on the buildings which satisfy the norms for the purpose and the construction whereof is duly approved under a sanctioned plan. It is urged that once the criteria in respect of the buildings is laid down in a government order, according to which the petitioner has fulfilled the requisite conditions, the restrictions contained in Section 5 of the Act, not being in conflict with the government order disentitling the petitioner for the grant/renewal of its existing licence, particularly when the alleged tower was installed in the year 2005 and since then it has never been a cause for any kind of alleged violation, therefore, the impugned action is arbitrary and violative of Article 14 and 19 (1) (g) of the Constitution of India. Learned Counsel for the petitioner also cited some decisions on the point.
We are conscious of the fact that the installation of tower for the purpose of telecommunication relates to a subject which falls in List I entry 31 of the VII schedule of the Constitution of India and the State Government may not have, for that reason, the legislative competence to regulate the installation of towers but in the absence of any restrictions placed by the Central Government and any such objection not pointed out by the State Government, it is difficult to hold that issuance of the impugned notice is otherwise justified on the strength of any statutory provisions or a government order issued in this behalf.
On the contrary, when the impugned order is tested in the light of government order dated 10.12.1999 issued by the State Government, the impugned action is clearly hit by the provisions of the government order which does not maintain any distinction between a building housing a cinema as compared to other buildings fulfilling the requisite norms.
It is not a case where the government order dated 10.12.1999 is said to be violative of Rule 18 or in conflict with any restrictions imposed and specified by the licencing authority in the licence issued in prescribed format, therefore, the licencing authority being a functionary of the State Government, is equally bound by the government order issued on 10.12.1999. The installation of cellular towers being specifically regulated under a government order is neither pleaded nor shown to be violative of Rule 18, therefore, the stand adopted by the respondents does not appear to be legally well-founded. The reason of public interest and exposure of harmful radiations has been assigned very selectively and this ground is clearly made out from the material placed on record. A restrictive measure in public interest may rest within the administrative power of the State Government but in that case, the exercise of power is bound to be implemented fairly and equally in respect of all. The ground of public interest adopted in the impugned order appears to be discriminatory and does not appear to reflect any objective or subjective consideration of Section 5 of the U.P. Cinema (Regulation) Act, 1955 read with the relevant Rules particularly when the alleged violation cannot be restricted to a particular case but would be applicable to all buildings in populate areas. A cellular tower in the event of a natural calamity like an earthquake or a storm (see letter dated 28.1.2015), if can cause damage and would be against public interest, then in such an event any cellular tower whether installed atop a cinema house or any other building would affect in the same way. It would, therefore, be not reasonable to selectively apply this logic of the licensing authority on the petitioner only.
Having given an anxious consideration to the scope of Rule 18 of the Cinematograph Rules, 1951 read with Section -5 of the U.P. Cinema (Regulation) Act, 1955 we are unable to sustain the justification pleaded by the respondents either in the impugned notice or in the order passed in furtherance thereof but the general application being technical can also not be lost sight of once the element of public interest is alleged to be involved.
We are also conscious of the fact that the general powers of the State can also not be curtailed but looking to the government order dated 10.12.1999 and its benefit being extended to other similarly situated persons, we would not allow the State Government to act in a discriminatory manner.
From a perusal of Section -5 (4) of the U.P. Cinema (Regulation) Act, 1955, it is seen that the petitioner has an alternative remedy of appeal open to him against the refusal to grant licence before the State Government, therefore, it would be appropriate if the matter is relegated to the State Government under Section -5 (4) of the U.P. Cinema (Regulation) Act, 1955, in as much as the licence of the petitioner, in view of the impugned notice and order, virtually amounts to refusal to grant licence which includes renewal. The State Government while deciding the appeal would, of course, be obliged to consider and decide the matter in the light of Statute as well as the government order dated 10.12.1999 as well as the observations made hereinabove. While deciding the issue, the State Government shall clearly spell out the policy of public interest so as to uniformly apply it to every case where cellular towers are installed within human habitations and the necessary clarification in this regard may also be obtained from the Central Government.
In the result, the petitioner is permitted to file an appeal against the impugned orders dated 15.10.2015 within a period of 15 days from today which shall not be rejected merely on the ground of limitation and the State Government in the event of an appeal being filed, shall decide the matter within a period not later than six weeks from the date an appeal alongwith a certified copy of this order is filed. For a period of six weeks or till the appeal is decided whichever is earlier, it is hereby provided that the impugned orders shall remain in abeyance and the petitioner shall not be restrained to carryout his business merely on the ground of impugned orders dated 15.10.2015 contained in annexure nos. 1 and 2 to the writ petition which shall be subject to the out come of appeal.
It is made clear that the time stipulate above for filing the appeal and its decision shall be strictly adhered to by the respective parties. In case the petitioner fails to file an appeal within the time period prescribed, the benefit of this order shall not be available to him and in case the State fails to decide the appeal, it shall be open to the petitioner to make an application in the matter and seek necessary directions against the erring authority but continuity of this order shall not be construed as automatic by any of the authorities.
With the aforesaid observations, the petition is disposed of finally. No orders as to costs.
Order Date :- Nov. 26, 2015 MFA/-
Court No. -4 Case :- MISC. BENCH No. - 10127 of 2015 Hon'ble Amreshwar Pratap Sahi, J.
Hon'ble Attau Rahman Masoodi, J.
The writ petition is disposed of vide our orders of date, on separate sheets.
Order Date :- Nov. 26, 2015 MFA/-