JUDGMENT

Satish Chandra, J. - The petitioners want that the permission granted by the District Magistrate of Etah, for constructing a cinema building by the third respondent be quashed and for a direction to the District Magistrate to decide the petitioners application for such permission in accordance with the law.

2. It appears that the petitioner are carrying on the business of exhibition of cinema films in the town of Kasganj, and that is the only cinema house in the town.

3. The petitioners wanted to built another cinema hall. For that purpose they purchased a piece.of land in June, 1962 and another piece of land in August. 1962. On 25-8-1962 they made an application for permission to construct a building under rule 3 of the U. P. Cinematograph Rules, 1951. The application was made to the District Magistrate, Etah, who was the licencing authority. Respondent No. 3 had also made a similar application to the District Magistrate. On 5-2-1963 the District Magistrate rejected both the applications. The order stated that because of national emergency it will be difficult to procure huge quantity of building materials which would be needed for constructing such a building. Kasganj is not a growing industrial town, nor a flourishing Mandi. The permission to construct a cinema building hence cannot be granted so long as the national emergency lasts.

4. Against this order the third respondent made a representation or appeal to the State Government. There appears to have been certain objections to the situation of the site proposed by the third respondent. The State Government asked the District Magistrate to make enquiries and report. Certain reports were sent by the District Magistrate. It is stated that under political and personal pressure exerted by the third respondent on the authorities concerned in the State Government, the State Government relaxed the rules and granted exemption to the third respondent. The allegations on this point of mala fides are vague and indiscriminate. They have been denied in the counter-affidavit. At the hearing the learned counsel did not press them. It is, therefore, not necessary to deal with them in detail.

5. Coming to know that the State Government is likely to grant the application of the third respondent the petitioner also filed an appeal to the State Government and prayed that they may also be granted the permission. It is stated in the counter-affidavit filed on behalf of the State Government. that the site proposed by the petitioners contravened rule 7 and it was not considered advisable to relax the restrictions of that rule, in the petitioner is case.

6. The site proposed by the third respondent was, on the other hand, a better site. Consequently the District Magistrate was advised to relax the restrictions in the case of the third respondent. It is further stated that the Government acted on the advice given by the District Magistrate in the matter of relaxation of the restrictions under the rules. The Government did not issue any order of relaxation itself.

7. In the counter-affidavit filed on behalf of the District Magistrate it is stated that the Government by a letter of 1-8-1966 informed the District Magistrate that it had no objection to the relaxation of the restrictions contained in rule 7 (2) of the U. P. Cinematograph Rules on the fulfilment of the following conditions:

(i) The cinema hall is completely sound proof,

(ii) The licence shall erect a suitable buffer wall between the cinema house and the arms and ammunition shop.

8. It is further stated that the Government directed the District Magistrate to reconsider the cases according to the provisions of the Act and the rules because the earlier order of the District Magistrate was passed on consideration of national emergency and not of the provisions of the Act and the rules. The District Magistrate considered the matter and by an order passed on 5-7-1966 rejected the petitioner's application. The petitioners filed an appeal