K C CINEMA (CORRECT NAME K C THEATRE) versus STATE OF JAMMU AND KASHMIR & ORS on 3 January 2023

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SUPREME COURT REPORTS

[2023] 6 S.C.R.

AK C CINEMA (CORRECT NAME K C THEATRE)

v.

STATE OF JAMMU AND KASHMIR & ORS

(Civil Appeal No 77 of 2023)

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JANUARY 03, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI ANDPAMIDIGHANTAM SRI NARASIMHA, J.]

Constitution of India – Article 226, 19(1)(g) – PIL was filedCwith the grievance that cinema theatres in J&K were prohibitingmovie goers from bringing eatables inside cinema halls – High Courtinter alia directed the Multiplexes/Cinema Halls Owners of the Stateof J&K not to prohibit cinema goers/viewers from carrying his/herown food articles and water inside the theatre – Legality of – Held:Trade and business of operating cinema theatres is subject toDregulation by the State – In the present case, State Government hadframed the 1975 Rules to regulate the industry– In the absence of aspecific mandate in the 1975 Rules (or any other applicable law) inthis regard, High Court was not justified in issuing a directionprohibiting theatre owners from disallowing food and beverages toEbe brought in by persons entering a movie theatre who enter it forviewing a film – Cinema hall is a private property of the owner ofthe hall – The owner of the hall is entitled to stipulate terms andconditions so long as they are not contrary to public interest, safetyand welfare – A prohibition on carrying food and beverages fromoutside into the precincts of the movie hall is not contrary to publicFinterest, safety or welfare – Further, whether or not to watch a movieis entirely within the choice of viewers – If viewers seek to enter acinema hall, they must abide by the terms and conditions subject towhich entry is granted – The condition of entry is imposed as adirect result of the exercise of the right of cinema owners to carryGon a business or trade u/Article 19(1)(g) – High Court transgressedits jurisdiction u/Article 226 by issuing the impugned direction –Impugned judgment in regard to the said direction set aside – Jammuand Kashmir Cinemas (Regulation) Rules 1975 – CinematographAct 1952 – Cinematograph (Certification) Rules 1983 – Jammu andKashmir Cinematograph Act 1989 – Jammu and KashmirHCinematograph Rules 1989.

Contract – Unfair and unreasonable contract/clause in acontract – Test laid down in Central Inland Water Transport Corpn.case – Held: When one party has unequal bargaining power relativeto the other party, any terms and conditions which are unreasonablemay not be enforced as against the party with lower bargainingpower – Central Inland held that whether parties can be said to haveunequal bargaining power and whether a bargain is unfair orunreasonable must be decided on the facts and circumstances ofeach case – The test in Central Inland is not only to assess whetherthe parties have unequal bargaining power relative to one anotherbut also to ascertain whether a contractual term or a contract isunfair, unreasonable or unconscionable – A contract (or a term ina contract) can be said to be unfair or unreasonable if it is one-sided or devoid of any commercial logic – However, in the presentcase, although theatre owners may unilaterally determine theconditions of entry into cinema hall, the condition imposed in thisinstance is not unfair, unreasonable or unconscionable – Jammuand Kashmir Cinemas (Regulation) Rules 1975.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1.1 The trade and business of operating cinematheatres is subject to regulation by the state. In this case, theState Government has framed the 1975 Rules to regulate theindustry. Admittedly, the 1975 Rules do not contain a rulecompelling the owner of a cinema theatre to allow a movie goerto bring food or beverages from outside within the precincts ofthe theatre. Similarly, other enactments and rules which regulatethe industry, namely, the Cinematograph Act 1952, theCinematograph (Certification) Rules 1983, the Jammu andKashmir Cinematograph Act 1989, and the Jammu and KashmirCinematograph Rules 1989 do not contain a provision whichrequires theatre owners to permit movie goers to carry food andbeverages of their own into the cinema hall. The rule makingpower of the state must be exercised consistent with thefundamental right of the cinema hall owner to carry on a legitimateoccupation, trade, or business within the meaning of Article19(1)(g) of the Constitution. The legislature’s omission of aprovision requiring the cinema owner to allow eatables andbeverages to be brought from outside is significant. In the absence A

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Aof a specific mandate in the 1975 Rules (or any other applicablelaw) in this regard, the High Court was not justified in issuing adirection prohibiting theatre owners from disallowing food andbeverages to be brought in by persons entering a movie theatrewho enter it for viewing a film. The High Court has erred in theexercise of its writ jurisdiction under Article 226 of theBConstitution. The exercise of its jurisdiction was not consistentwith the provisions of the enactments regulating movie theatres.[Paras 20, 22][583-G-H; 584-A-C, F-G]

Mafatlal Industries Ltd. v. Union of India(1997) 5 SCCC536 : [1996] 10 Suppl. SCR 585 – followed.

1.2 The cinema hall is a private property of the owner ofthe hall. The owner of the hall is entitled to stipulate terms andconditions so long as they are not contrary to public interest,safety and welfare. Like with any other business, the proprietorDor the management is entitled to determine the business modelthat is to be followed and to give effect to their own conceptionsof the economic viability of a particular business model. The ownerof a cinema hall is entitled to determine whether she will set upor engage an entity for setting up counters for the sale of foodand beverages and to regulate the terms on which such sale shouldEtake place. A prohibition on carrying food and beverages fromoutside into the precincts of the movie hall is not contrary topublic interest, safety or welfare. A movie hall is not a movie hallalone but also doubles up as an eatery when food and beveragesare sold within its premises. Patrons of a movie hall cannot demandFto bring their own food to eat there when a condition to the contraryis enforced by the cinema hall owners. This would be akin topermitting a customer who visits a restaurant to carry their ownfood to that restaurant and eat it within the premises of thatrestaurant. [Paras 23, 24][584-G-H; 585-A-E]

G1.3 Whether or not to purchase food or beverages aftergaining admission to the cinema hall is entirely within the choiceof the movie goer. Viewers visit cinema halls for the purpose ofentertainment. The transaction of purchasing a ticket permitsthem to view the movie they have opted to watch. If the food and H

beverages on sale at the movie hall are not to their taste, theyare free to refrain from purchasing them. In this way, they are notbeing prevented from exercising their right to choice of food.Whether or not to watch a movie is entirely within the choice ofviewers. If viewers seek to enter a cinema hall, they must abideby the terms and conditions subject to which entry is granted.Having reserved the right of admission, it is open to theatreowners to determine whether food from outside the precincts ofthe cinema hall should be permitted to be carried inside. TheHigh Court transgressed its jurisdiction under Article 226 of theConstitution by directing the cinema hall owners not to prohibitmovie goers from carrying eatables and beverages from outsidewithin the precincts of a cinema hall and by directing the state toenforce this direction to the cinema hall owners. Absent astatutory regulation which regulates the right to conduct thebusiness of operating a cinema hall, the imposition of such arestraint would affect the legitimate rights of a theatre owner.The condition of entry is imposed as a direct result of the exerciseof the right of cinema owners to carry on a business or tradeunder Article 19(1)(g) of the Constitution. The commercial logicof prohibiting movie goers from carrying their own food to thecinema hall is to stimulate and boost a vital aspect of the business– the sale of food and beverages. If business owners are notpermitted to determine the various facets of their business (inaccordance with law), economic activity would come to a grindinghalt. [Paras 26–28, 31][586-B-F; 587-G-H]

1.4 For movie goers with chronic diseases who may havereceived dietary instructions from their doctors or who mayotherwise be under dietary restrictions due to their medicalcondition, cinema hall owners are requested to consider requestsfrom such movie goers on a case-by-case basis. [Para 34][588-G]

1.5 The impugned judgment and order of the High Court inregard to direction (i) is set aside. [Para 35][588-H]

Parker v. The South Eastern Railway Co (1877) 2 CDP416; Olley v. Marlborough Court Ltd(1949) 1 KB 523;McCutcheon v. David Macbrayne Ltd(1964) 1 WLR

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A125; Thornton v. Shoe Lane Parking Ltd (1970) EWCACiv 2 – distinguished.

Central Inland Water Transport Corporation v. BrojoNath Ganguly, (1986) 3 SCC 156: [1986] 2 SCR 278– relied on.

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Alagaapuram R. Mohanraj v. T.N. Legislative Assembly,(2016) 6 SCC 82 : [2016] 6 SCR 611;IREO GraceRealtech (P) Ltd. v. Abhishek Khanna,(2021) 3 SCC241; Jacob Punnen v. United India Insurance Co. Ltd.,(2022) 3 SCC 655 – referred to.

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Case Law Reference

CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil AppealNo.77 of 2023.

From the Judgment and Order dated 18.07.2018 of the High CourtEof Jammu & Kashmir and Ladakh at Jammu in PIL No.11 of 2018.

With

Civil Appeal Nos.78 And 79 Of 2023, Transferred Case Nos.28And 29 of 2019F

K. V. Viswanathan, Niranjan Reddy, Bimal Roy Jad, Sr. Advs.,Abhinav Shrivastava, Rahul Gupta, R. P. Singh, Shivang Rawat, MsRadhika Jalan, Sumeer Sodhi, Arjun Nanda, Sahil Narang, DhritimanRoy, Madhavam Sharma, Ayushman Kacker, Ms. Sania Abbasi, Akhila,M/s. Khaitan & Co., Shivam Sharma, Diwas Kumar, Ms. Twinkle, RajGKishor Choudhary, Munawwar Naseem, Aditya Sharma, Dr. NilakshiChoudhury, Atul Mahan, Ms. Purnima Jauhari, Ms. TarunaArdhendumauli Prasad, Mrs. Mrinal Elker Mazumdar, Shailesh Madiyal,Vaibhav Sabharwal, Akshay Kumar, Vinayaka. S. Pandit, SiddharthDharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Ms. KirtiDadheech, Advs. for the appearing parties.

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K C CINEMA (CORRECT NAME K C THEATRE) v. STATE OF JAMMUAND KASHMIR

By Courts Motion

The following Judgment of the Court was delivered:

Table of Contents*

A. Background...................................................................3

B. Cases relied upon by the respondents.............................7

C.The High Court has transgressed its jurisdiction under Article 226 of the Constitution.................................11

D. Parting remarks.......................................................... 19

DR. DHANANJAYA Y CHANDRACHUD, CJI

Civil Appeal Nos 77, 78 and 79 of 2023

1. Leave granted.

A. Background

2. This batch of appeals arises from a judgment dated 18 July2018 of a Division Bench of the High Court of Jammu and Kashmir. Apublic interest litigation was instituted before the High Court by twopracticing advocates with the grievance that cinema theatres in Jammuand Kashmir were prohibiting movie goers from bringing eatables insidecinema halls. In this context, it was averred that cinema owners paste anotice outside the hall indicating the prohibition and that security personnelsearch the belongings of every cinema goer with a view to enforce theprohibition. In the event that movie goers are found in possession ofeatables, they are (it was alleged) prevented from entering the cinemahall.

3. The submission which was urged before the High Court wasthat, as a consequence of the prohibition, movie goers are compelled toconsume food and beverages which are made available within theprecincts of cinema halls resulting in the audience being required topurchase food at “highly exorbitant rates.” Moreover, it was submittedthat the food which is sold is not necessarily of a nutritious quality andthat persons with chronic diseases (such as diabetes) may be requiredto eat a specific type of food which would not be available at the moviehall.

*Ed. Note : Pagination in the Table of Contents is as per the original judgment.

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A4. The High Court was persuaded to grant relief in the publicinterest litigation on the basis of its findings in paragraph 6, which isextracted below:

“6. A perusal of these rules reveals that no where it has beenprovided that cinemagoers can be prohibited from carrying theirBown food articles and water bottles to multiplexes or private vendorsare allowed to sell food inside such multiplexes/cinema hallpremises at highly exorbitant prices. Therefore, in absence of anysuch provision, cinema goers cannot be forced or compelled bythe multiplexes/cinema hall owners to purchase food and waterfrom theatre premises nor they can be prohibited from carryingCfood items into malls and multiplexes from outside. Even theviewers, who come along with their infants/babies, also need milkto feed them because they cannot be kept empty stomach forabout three long hours. The restrictions on bringing outside foodto theatres and compelling/forcing to purchase junk food, sold atDthe food stalls inside theatre premises, that too at exorbitant rates,particularly affect young generation, senior citizens, diabeticpatients and those who cannot eat for medical reasons. Such kindof acts on the part of Multiplex/Cinema Hall owners are againstthe right to choice of food, including the right not to eat junk foodEand right to good health, which comes under the purview of Article21 of the Constitution of India guaranteeing protection of life andpersonal liberty of every citizen.”

5. The High Court noted that the State Government had notifiedthe Jammu and Kashmir Cinemas (Regulation) Rules 1975.[1] The HighCourt held that:F

a.The 1975 Rules do not prohibit cinema goers from carryingtheir own food articles and water bottles to multiplexes orcinema halls; b.As a consequence of the prohibition which is imposed byGcinema hall owners, viewers are compelled to purchase foodof such nature as is offered for sale within the precincts ofthe theatre; H

1 “1975 Rules”

c.Infants who are required to be fed at periodic intervalscannot as a consequence, be given food by accompanyingparents or guardians; d.Viewers are compelled to purchase “junk” food at the foodstalls within the theatre and are required to pay exorbitantcharges for the food which is purchased. This particularlyaffects the younger generation, senior citizens, patients withdiabetes, and those who are unable to eat the food soldwithin the theatre premises for medical reasons; and e.The prohibition on carrying outside food and beverages intothe movie theatre violates the right to choice of food,including the right not to eat “junk” food and the right togood health, under Article 21 of the Constitution.

6. The High Court, while accepting the grievances, issued a slewof directions in the impugned judgment and order. The challenge to thejudgment of the High Court is confined to direction (i) which is extractedbelow:

“i. Multiplexes/Cinema Halls Owners of the State of J&K aredirected not to prohibit cinema goers/viewers henceforth fromcarrying his/her own food articles and water inside the theatre.”

7. Mr K V Viswanathan, senior counsel, appearing with MrNiranjan Reddy, senior counsel and Mr Sumeer Sodhi, on behalf of theappellants submitted that:

a.The precincts of a cinema hall constitute private propertyinto which admission is reserved by the owner of the theatre; b.The 1975 Rules which have been framed by the StateGovernment do not provide that the movie goer should beallowed to bring eatables or beverages from outside intothe precincts of the cinema hall;

c.There is no compulsion on any person either to visit thetheatre or to purchase food within the precincts of the theatreonce they have bought a ticket to view a movie; d.As regards the sale of drinking water, cinema halls makeadequate provisions to ensure that hygienic drinking wateris made available free of cost within the precincts of the A

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580SUPREME COURT REPORTS

Amovie theatre for movie goers so that they are not compelledto pay for packaged drinking water; e.As a matter of practice, the prohibition of bringing food orbeverages from outside the hall is not enforced in the caseof infants and babies, for whom the parents orBaccompanying guardians are allowed to bring a reasonablequantity of food or beverages which may be required forthe duration of their visit to the theatre; and f.The cinema tickets issued by the appellant theatre in CivilAppeal No. 78 of 2023 to the movie goers stipulate thatCeatables from outside as well as bottles (empty or filled)are not allowed inside the cinema hall. The tickets alsomention that the cinema reserves the right of admission.

8. On the other hand, Mr Bimal Roy Jad, senior counsel appearingon behalf of the original petitioners before the High Court (RespondentsDNo. 3 and 4 in these proceedings), submitted that:

a.The cinema ticket which is issued by the cinema hallrepresents a contract with the movie goer and in the absenceof any prohibition on the printed terms of the ticket, a moviegoer cannot be prevented from bringing eatables orEbeverages inside the theatre; b.As a consequence of the prohibition which is imposed bythe cinema hall, the movie goers are placed at a substantialinconvenience since they are required to purchase food andbeverages at exorbitant rates within the movie halls; and

Fc.The 1975 Rules do not contain any prohibition on bringingfood or beverages from outside within the precincts of thecinema halls.

B. Cases relied upon by the respondents

9. Counsel for the respondents has relied on the following judgmentsGin support of the directions issued in the impugned judgment:

a.Parker v. The South Eastern Railway Co (1877) 2CDP 416; b.Olley v. Marlborough Court Ltd (1949) 1 KB 523;H

c.McCutcheon v. David Macbrayne Ltd (1964) 1AWLR 125; and d.Thornton v. Shoe Lane Parking Ltd (1970) EWCACiv 2.

10. In order to understand whether the rulings in these judgmentsare applicable to the case before us, it is necessary to advert to thecontext in which they originated, the question(s) of law which fell for thecourt’s determination, and the relief claimed therein.

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11. In Parker’s case (supra), the plaintiff deposited some of hisbelongings with the cloakroom at a railway station. At the time ofdepositing them, he received a ticket which had the words “see back”printed on it. The reverse side of the ticket contained a term stating, “thecompany will not beresponsible for any package exceeding thevalue of 10l.” A placard with thesame condition printed on it was alsohung on the wall. The plaintiff’s belongings were lost or stolen and hebrought an action against the defendant for the value of the lost articles.The plaintiff had not seen the condition regarding the defendant’s liabilityfor any articles deposited, either on the ticket or on the placard on thewall. The question before the court in that case was whether therespondent was liable for the loss of the plaintiff’s belongings.

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12. In Olley’s case (supra), the plaintiff was a paying guest inthe defendant’s hotel. After paying for the room, she received her keysand went to her room. There, a notice containing numerous terms andconditions was displayed. One of the conditions was “The proprietorswill not hold themselvesresponsible for articles lost or stolen, unlesshanded to the manageress for safe custody.” The plaintiff’s possessionswere later stolen from her room.The plaintiff instituted a suit against thedefendant and claimed the value of the goods stolen from her. The courtwas required to adjudicate whether the defendant could rely on the termsof a contract to exempt itself from liability under common law. In otherwords, the question that arose for determination was whether thedefendant was responsible for the loss suffered by the plaintiff.

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13. In McCutcheon’s case (supra), the plaintiff engaged an agentto have his car delivered to another town by sea. The agent paid thedefendant, received a receipt, and delivered the car. The car was loadedonto the ship which set sail. Before it could reach its destination, however,it sank due to the negligence of the defendant’s employees. The plaintiff H

Asued the defendant for the value of his car. The defendant disclaimedliability on the ground that it usually asked customers to sign a risk notewhich contained certain terms and conditions regarding its liability fordamage to the goods shipped by customers. No such risk note was signedby the plaintiff’s agent in this case, but he had signed risk notes onBprevious occasions when he had used the defendant’s shipping services.The defendant argued that it would not be liable for the loss of the carbecause the plaintiff’s agent was aware of the terms and conditions inthe course of their dealings with one another. In this case, too, the questionwhich arose for the court’s consideration was whether the defendantcould be held liable for the loss of the plaintiff’s car.C

14. Finally, in Thornton’s case (supra), the plaintiff drove to anautomatic car park owned by the defendant. The charges for availing ofthis service were displayed outside the car park. The plaintiff drove tothe entrance and a machine dispensed a ticket which said, “This ticketis issued subject to theconditions of issue as displayed on theDpremises.” The plaintiff parked hiscar in the car park. When he laterreturned there to collect his car, he suffered an accident and was severelyinjured. He instituted proceedings against the defendant seeking damagesfor his injuries. The question before the court was whether the defendantwould be liable for the injuries sustained by the plaintiff.

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15. All four cases concern the issue of whether liability can beaffixed on one of the parties based on the terms and conditions of thecontract in question. Each of the decisions addresses when the contractwas entered into and what the terms of the contract were. The courtconsidered whether a particular term which was intended by one of theFparties to form a part of the contract, would in actuality form a part ofthe contract and bind the other party, thereby exempting the first partyfrom liability for the loss suffered.

16. The case before us differs from the four cases relied upon bythe respondents in that the original petitioners before the High Court didGnot file a suit for damages or other relief for a loss or injury suffered bythem. They instituted a Public Interest Litigation and invoked the HighCourt’s jurisdiction under Article 226 of the Constitution. They claimedthe following relief in their petition before the High Court:

“(ii) Writ of prohibition prohibiting Respondents No. 3 – 6 fromHrestraining the movie goers for taking with them outside eatables inside Cinema Halls required to be consumed during the time theysee the feature film in the cinema hall”

17. By instituting a writ petition, Respondents 3 and 4 have invitedan adjudication on whether the terms of entry determined and enforcedby theatre owners are just and fair. The test to be applied by this Courtwould therefore not address which of the terms and conditions betweenthe theatre owners and the movie goers are binding upon them andwhether the prohibition on carrying outside food within the theatrepremises is a binding term. Similarly, this Court is not called upon todecide whether Respondents 3 and 4 suffered any injury due to theenforcement of the prohibition on outside food and whether they areentitled to damages, as a result of the injury suffered. Rather, this Courtwill evaluate whether this was a case fit for the exercise of the HighCourt’s writ jurisdiction under Article 226 of the Constitution.

18. If it was the case of Respondents 3 and 4 that they had sufferedsome injury due to the prohibition on carrying food and beverages intothe movie hall or that the terms of the contract were made known tothem only at the time of its enforcement and they sought a refund of theamount paid for the ticket because they did not assent to such a term ordamages, the proper remedy would be to file a suit and not to seek theissuance of a writ. The decisions in Parker (supra), Olley (supra),McCutcheon (supra), and Thornton (supra)which the respondentsrely on do not have a bearing on the issue before this Court i.e., whetherthe High Court was justified in exercising its jurisdiction under Article226 of the Constitution. It is therefore not necessary for this Court toaddress itself to the ratio decidendi of these cases any further.

C. The High Court has transgressed its jurisdiction underArticle 226 of the Constitution

19. Article 19(1)(g) of the Constitution recognizes the right ofcitizens to practice any profession, or to carry on any occupation, tradeor business. This right includes all activities which enable citizens togenerate economic benefits and earn a livelihood.[2] The right recognizedin Article 19(1)(g) is not an unfettered right and the state may imposereasonable restrictions on the exercise of that right, in terms of Article19(6).

20. The fundamental aspect which needs to be noted is that thetrade and business of operating cinema theatres is subject to regulation 2 Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, (2016) 6 SCC 82

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Aby the state. In this case, the State Government has framed the 1975Rules to regulate the industry. Admittedly, the 1975 Rules do not containa rule compelling the owner of a cinema theatre to allow a movie goer tobring food or beverages from outside within the precincts of the theatre.Similarly, other enactments and rules which regulate the industry, namely,the Cinematograph Act 1952, the Cinematograph (Certification) RulesB1983, the Jammu and Kashmir Cinematograph Act 1989, and the Jammuand Kashmir Cinematograph Rules 1989 do not contain a provision whichrequires theatre owners to permit movie goers to carry food and beveragesof their own into the cinema hall. The rule making power of the statemust be exercised consistent with the fundamental right of the cinemaChall owner to carry on a legitimate occupation, trade, or business withinthe meaning of Article 19(1)(g) of the Constitution.

21. The majority opinion of a nine judge bench of this Court inMafatlalIndustries Ltd. v. Union of India[3]wasauthored by JeevanReddy, J. whoheld that the High Court must have regard to legislativeDintent while exercising its jurisdiction under Article 226:

“108 (i). While the jurisdiction of the High Courts under Article226 — and of this Court under Article 32 — cannot becircumscribed by the provisions of the said enactments, they willcertainly have due regard to the legislative intent evidenced bythe provisions of the said Acts and would exercise their jurisdictionEconsistent with the provisions of the Act … This is for the reasonthat the power under Article 226 has to be exercised to effectuatethe rule of law and not for abrogating it.”

22. The legislature’s omission of a provision requiring the cinemaowner to allow eatables and beverages to be brought from outside isFsignificant. In the absence of a specific mandate in the 1975 Rules (orany other applicable law) in this regard, the High Court was not justifiedin issuing a direction prohibiting theatre owners from disallowing foodand beverages to be brought in by persons entering a movie theatre whoenter it for viewing a film. The High Court has erred in the exercise ofGits writ jurisdiction under Article 226 of the Constitution. The exercise ofits jurisdiction was not consistent with the provisions of the enactmentsregulating movie theatres.

23. The cinema hall is a private property of the owner of the hall.The owner of the hall is entitled to stipulate terms and conditions so longH3 (1997) 5 SCC 536

as they are not contrary to public interest, safety and welfare. Like withany other business, the proprietor or the management is entitled todetermine the business model that is to be followed and to give effect totheir own conceptions of the economic viability of a particular businessmodel. The owner of a cinema hall is entitled to determine whether shewill set up or engage an entity for setting up counters for the sale of foodand beverages and to regulate the terms on which such sale should takeplace. A prohibition on carrying food and beverages from outside intothe precincts of the movie hall is not contrary to public interest, safety orwelfare.

24. Of late, multiplexes or movie halls are not operated or envisagedsolely as places where movies are screened. A more accuratecharacterization of a movie hall is as an entertainment centre or as anentertainment bundle. The sale of different kinds of food and beveragesforms a portion of the entire package of entertainment available at thecinema hall. In other words, a movie hall is not a movie hall alone butalso doubles up as an eatery when food and beverages are sold withinits premises. Viewed from this lens, it is immediately evident that patronsof a movie hall cannot demand to bring their own food to eat there whena condition to the contrary is enforced by the cinema hall owners. Thiswould be akin to permitting a customer who visits a restaurant to carrytheir own food to that restaurant and eat it within the premises of thatrestaurant.

25. Respondents 3 and 4 have urged that they ought to be permittedto carry their own food because the cinema halls sell exorbitantly pricedfood and beverages, which are also not nutritious. The High Court waspersuaded to issue the direction which has been noted earlier based onthe consideration that what is offered for sale is “junk food”. Theatreowners may decide the contents of the menu they offer, similar torestaurants deciding their menu or similar to theatre owners themselvesdeciding which movies to screen. As mentioned above, this is acommercial decision which the theatre owners are entitled to make.The price point at which the goods and services will be sold is likewisesubject to being fixed by the movie theatre. Whether or not the cost of agood or service is affordable or exorbitant is unrelated to the conditionsof entry enforced by a business.

26. The second level of argumentation in the judgment of theHigh Court is that the prohibition in question impinges upon the right to AB

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Achoice of food, the right not to eat “junk” food, and the right to goodhealth. However, this line of reasoning fails to notice that movie goersare not compelled to buy food at the cinema hall. Whether or not topurchase food or beverages after gaining admission to the cinema hall isentirely within the choice of the movie goer. Viewers visit cinema hallsfor the purpose of entertainment. The transaction of purchasing a ticketBpermits them to view the movie they have opted to watch. If the foodand beverages on sale at the movie hall are not to their taste, they arefree to refrain from purchasing them. In this way, they are not beingprevented from exercising their right to choice of food. We also notethat the right of movie goers to purchase or eat a dish of their choice isCunfettered outside the confines of privately operated movie theatres(subject to safety and public welfare).

27. Whether or not to watch a movie is entirely within the choiceof viewers. If viewers seek to enter a cinema hall, they must abide bythe terms and conditions subject to which entry is granted. HavingDreserved the right of admission, it is open to theatre owners to determinewhether food from outside the precincts of the cinema hall should bepermitted to be carried inside.

28. We are therefore of the view that the High Court transgressedits jurisdiction under Article 226 of the Constitution by directing the cinemaEhall owners not to prohibit movie goers from carrying eatables andbeverages from outside within the precincts of a cinema hall and bydirecting the state to enforce this direction to the cinema hall owners.Absent a statutory regulation which regulates the right to conduct thebusiness of operating a cinema hall, the imposition of such a restraintwould affect the legitimate rights of a theatre owner.F

29. However, this is not to say that the terms and conditionsimposed by cinema owners or other commercial entities bind theconsumer or the customer in every case. As held by a catena of decisionsof this Court, when one party has unequal bargaining power relative tothe other party, any terms and conditions which are unreasonable mayGnot be enforced as against the party with lower bargaining power.[4] InCentral Inland Water Transport Corpn. v. Brojo Nath Ganguly[5], 4 Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986) 3 SCC156; IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241; JacobPunnen v. United India Insurance Co. Ltd., (2022) 3 SCC 655H5 (1986) 3 SCC 156

this Court held that whether parties can be said tohave unequal bargainingpower and whether a bargain is unfair or unreasonable must be decidedon the facts and circumstances of each case:

“89. … This principle is that the courts will not enforce and will,when called upon to do so, strike down an unfair and unreasonablecontract, or an unfair and unreasonable clause in a contract,entered into between parties who are not equal in bargainingpower. It is difficult to give an exhaustive list of all bargains of thistype. … It will apply to situations in which the weaker party is ina position in which he can obtain goods or services or means oflivelihood only upon the terms imposed by the stronger party or gowithout them. It will also apply where a man has no choice, orrather no meaningful choice, but to give his assent to a contract orto sign on the dotted line in a prescribed or standard form or toaccept a set of rules as part of the contract, however unfair,unreasonable and unconscionable a clause in that contract or formor rules may be. … there can be myriad situations which result inunfair and unreasonable bargains between parties possessingwholly disproportionate and unequal bargaining power. These casescan neither be enumerated nor fully illustrated. The court mustjudge each case on its own facts and circumstances.”

30. The test in Central Inland Water Transport Corpn. (supra)is not only to assess whether the parties have unequal bargaining powerrelative to one another but also to ascertain whether a contractual termor a contract is unfair, unreasonable or unconscionable. A contract (or aterm in a contract) can be said to be unfair or unreasonable if it is one-sided or devoid of any commercial logic. In the present case, althoughtheatre owners may unilaterally determine the conditions of entry intocinema hall, the condition imposed in this instance is not unfair,unreasonable or unconscionable.

31. The condition of entry is imposed as a direct result of theexercise of the right of cinema owners to carry on a business or tradeunder Article 19(1)(g) of the Constitution. The commercial logic ofprohibiting movie goers from carrying their own food to the cinema hallis to stimulate and boost a vital aspect of the business – the sale of foodand beverages. If business owners are not permitted to determine thevarious facets of their business (in accordance with law), economicactivity would come to a grinding halt. While movie goers may have no A

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Achoice but to sign on the proverbial dotted line (and thereby not carryany food of their own into the theatre) in order to enter the cinema halland watch a movie of their choice, this does not by itself render thecondition of entry unfair, unreasonable or unconscionable.

32. Most businesses impose some or the other condition whichBthe customer may find less than ideal. For instance, many privatemuseums do not permit customers to take photographs of the objects ondisplay. This is also true of many clothing boutiques or jewellery stores.Audience members are often banned from recording musicalperformances at concerts. Music festivals, much like movie theatres, donot permit attendees to carry their own food or beverages to the venue.CSimilar is the case with stand-up comedy shows or plays that areconducted in collaboration with eateries or bars. Although the customeris paying for a ticket to watch the music performance (or the stand-upact or the play, as the case may be), the essence of the business modelis to provide a fillip to the revenue generated by another arm of theDbusiness. This being the case, movie goers are bound by the condition ofentry determined by the theatre owners in the instant case i.e., theprohibition on carrying food and beverages from outside into the precinctsof the movie hall.

33. We note that during the course of arguments, statements wereEmade on behalf of the appellants that in order to obviate anyinconvenience to movie goers, due arrangements are made for the supplyof hygienic drinking water without levying any charge within the precinctsof the cinema hall. Moreover, it has also been stated that when an infantor young child accompanies a parent, as a matter of practice, the cinemahall owners have no objection to a reasonable amount of food orFbeverages being carried inside the cinema hall to serve the nutritionalrequirements of the infant or child.

34. As for movie goers with chronic diseases who may havereceived dietary instructions from their doctors or who may otherwisebe under dietary restrictions due to their medical condition, we requestGcinema hall owners to consider requests from such movie goers on acase-by-case basis.

35. In view of the above position, we allow the appeals and setaside the impugned judgment and order of the High Court dated 18 July2018 in regard to direction (i) which has been referred to above. TheH

remaining directions of the High Court do not form the subject matter ofthe appeals and are, therefore, not dealt with in the present judgment.

D. Parting remarks

36. Before concluding, it needs to be noticed that Rule 87 of the1975 Rules is in the following terms:

“87. (i) The licensing authority shall ensure that the sale price oftickets in all the cinemas of the State holding licence under theserules in uniform.

(ii) The licensing authority shall ensure that reduced rates arecharged by the licensee for any picture screened for the secondtime in any auditorium.”

37. The validity of Rule 87 was not in challenge before the HighCourt. The High Court in paragraph 8(iii) of its judgment issued thefollowing directions in regard to sub-clauses (i) and (ii) of Rule 87:

“iii. The Government of J&K as well as Licensing Authority/everyDistrict Magistrate in the State is directed to ensure properuniformity be maintained with respect to the sale price of ticketsin all the cinemas of the State in terms of Rule 87(i) & (ii) of theJammu & Kashmir Cinemas (Regulation) Rules, 1975.”

38. The above direction of the High Court shall not be construedas imposing any requirement over and above Rule 87 as it currentlystands.

39. Pending applications, if any, stand disposed of.

TC (C) Nos 28 of 2019 and 29 of 2019

40. In view of the judgment delivered above in Civil Appeal No.77 of 2023, the writ petitions transferred from the High Court of Delhi inTC (C) No 28 of 2019 and the Bombay High Court in TC (C) No 29 of2019 are dismissed. The Transferred Cases are accordingly disposedof.

41. Pending applications, if any, stand disposed of.

Divya Pandey

Appeals allowed.

(Assisted by : Roopanshi Virang, LCRA)

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