1. Application for cinema license — Government instructions requiring applications be forwarded to it for disposal — Rejection of application — Challenge to jurisdiction under Punjab Cinemas (Regulation) Act, 1952. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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1965 Supreme(SC) 347
SUPREME COURT OF INDIA
P.B.Gajendragadkar, C.J.I., K.N.Wanchoo, M.Hidayatullah, Satyanarayan Raju R., V.Ramaswami, JJ.
State Of Punjab
Versus
Hari Kishan Sharma
Case No. : 768 of 1968
Date of Decision : 12/9/65
Advocates Appeared: Andley S.N. : Narain Bishan : Narain Rajindar : Sachthey R.N.
Advocates:
BISHAN NARAIN, R.N.SACH, RAJINDAR NARAIN, S.N.ANDLEY
BISHAN NARAIN, R.N.SACH, RAJINDAR NARAIN, S.N.ANDLEY
The 'control of the government' over a statutory licensing authority does not empower the government to usurp the authority's original jurisdiction or decide applications in the first instance, as executive instructions cannot override statutory provisions establishing a distinct licensing authority.
Headnote:(A) Punjab Cinemas (Regulation) Act, 1952 - Sections 5(1), 5(2) and 5(3) - Grant of license for cinema hall - Jurisdiction of licensing authority versus control of government - Power of government to issue instructions - Whether government can assume original jurisdiction of licensing authority - "Control of the government" under Section 5(2) does not justify the government completely ousting the licensing authority and usurping its functions - Legislature contemplates a licensing authority distinct from the government - Government cannot by executive power change statutory provisions in a substantial manner (Paras 12, 13, 14).
(B) Administrative Law - Scope of "control" - Control may include issuance of general instructions, directions, or exercise of revisional power to correct erroneous orders, but cannot convert an appellate authority into the original authority (Paras 14, 16).
Facts of the case:
An applicant sought a license to construct a cinema hall. While the application was pending, the government issued instructions requiring all such applications to be referred to it for orders. The licensing authority, following these instructions, referred the application to the government, which subsequently rejected it. The applicant challenged this rejection, contending that the government lacked the jurisdiction to decide the application in the first instance.
Findings of Court:
The government had no authority to require all applications for licenses to be forwarded to it for disposal in the first instance. Such applications must be dealt with by the licensing authorities in their respective areas.
Issues: Whether the government, by virtue of the power of control under Section 5(2) of the Act, is justified in assuming the jurisdiction conferred on the licensing authority to deal with applications for licenses in the first instance.
Ratio Decidendi: The statutory scheme distinguishes between the licensing authority (original jurisdiction) and the government (appellate/revisional jurisdiction). The "control" mentioned in Section 5(2) allows for general guidance or revision of orders but does not permit the government to obliterate the licensing authority from the statute-book or usurp its primary functions.
Result: Appeal fails and is dismissed with costs.
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2. Whether the power of control under Section 5(2) allows the government to assume original jurisdiction to dispose of license applications instead of the licensing authority. (Para 6 , 7 , 8 )
3. The government functions as an appellate or revisional authority; it cannot use executive power to obliterate the statutory role of the licensing authority as the primary decision-maker. (Para 12 , 13 , 14 , 15 , 16 , 17 )
4. Government control under Section 5(2) allows for general instructions or revisional power but does not permit usurping the licensing authority's primary jurisdiction to grant or reject licenses. (Para 13 , 14 , 16 )
5. Appeal dismissed with costs; High Court order upholding the lack of government jurisdiction to deal with applications in the first instance affirmed. (Para 18 )
6. Does the power of control under Section 5(2) of the Punjab Cinemas (Regulation) Act, 1952, allow the government to decide license applications in the first instance?
No. While the power of control is wide, it cannot justify the government completely ousting the licensing authority and usurping its functions. The government must function as an appellate or revisional authority, not as the original authority. (Para 13 , 14 )
7. What are the permissible ways the government can exercise control over the licensing authority under Section 5(2)?
The government may issue general instructions or directions to guide the licensing authority in dealing with applications or exercise revisional power to correct erroneous orders after they are passed by the licensing authority. (Para 14 )
8. How does the statutory scheme of Section 5 distinguish between the licensing authority and the government?
The licensing authority is the primary body for granting or rejecting licenses under Section 5(1) and (2), while the government acts as the appellate authority under Section 5(3) for aggrieved parties. (Para 12 , 16 )
P.B.GAJENDRAGADKAR, C.J.I.
(1) THE short question of law which arises in this appeal relates to the construction of section 5(2) of the Punjab Cinemas (Regulation) Act, 1952 (No. 11 of 1952) (hereinafter called the Act). The respondent, Hari Krishan Sharma, who claims to be the owner of a certain site in the town of Jhajjar, desired to construct a cinema hall at the said place for the purpose of exhibiting cinematography. On 16/12/1956, he submitted an application to appellant No. 2, the Subdivisions Officer, Jhajjar, for the grant of the licence to construct and run a permanent cinema hall on his site. On 22/02/1957, appellant No. 2 forwarded the said application to the Tehsildar for inspection of the site. It appears that on 24/04/1957, the government of appellant No. 1, the State of Punjab, had issued instructions in regard to the grant of licences under the relevant provisions of the Act. These instructions required that all requests for the grant of permission for opening all new permanent cinemas should be referred to appellant No. 1 for orders. On 26/09/1957, the Tehsildar made a report that the site was in accordance with the provisions of the Act and that the respondent was its owner. On 30/09/1957, another memorandum was issued by appellant No. 1 addressed to all the District Magistrates and the Sub-Divisional Officers conveying the decision of appellant No. 1 that when an application for grant of permission to construct a permanent cinema was referred to the government, it should be accompanied by the particulars enumerated in the memorandum. Amongst the items thus enumerated were the population-of the town where the permanent cinema is proposed to be constructed; whether there are any permanent cinemas already in existence in the town, and if so, how many; whether the applicant/applicants has/have been taking any part in any activity undermining the security of the State; and whether the financial position of the applicant/applicants is/are sound. These notifications were issued by appellant No.1 while the application made by the respondent was pending co; sideration.
(2) ON 24/04/1958, appellant No. 2 informed the respondent that the site proposed by him for the construction of the cinema hall had been approved. The respondent was required to submit a plan of the building within a month and he was warned not to transfer the ownership of the site without the previous sanction of the licensing authority. On 23/05/1958, the respondent submitted the building plans. These plans were forwarded by appellant No. 2 to the Executive Engineer, Provincial Division, Rohtak, for scrutiny. While forwarding the plans to the Executive Engineer, appellant No. 2 had stated that the respondent had been allowed to construct a permanent cinema hall at Jhajjar and the site plans were being submitted for proper scrutiny and approval at an early date.
(3) MEANWHILE, it appears that one Mohan Lal had also applied for grant of a licence for construction of a cinema hall in June, 1958, but he was informed that permission had already been granted to one person, and there was no scope for a second cinema hall. That is why he was told that his application could not be considered. Yet another person, Sultan Singh by name, made a similar application on 26/08/1958. On 7/10/1958, the Provincial Town Planner, Punjab, wrote to the Executive Engineer that the building plans submitted by the respondent had been checked and they appeared to satisfy the rules framed under the Act so far as the structural features of the building were concerned. On 6/10/1958, however, appellant No. 2 addressed a memorandum to the respondent informing him that the site plans prepared by him for the construction of a permanent cinema hall would be referred to appellant No. 1 for approval `according to the latest instructions`.
(4) THEN followed a report made by appellant No. 2 to appellant No. 1/10/1958, mentioning all the relevant facts in regard to
