Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL JURISDICTION Civil Appeal No 77 of 2023 (Arising out of SLP(C) No 20784 of 2018) K C Cinema (Correct Name K C Theatre) .... Appellant(s) Versus State of Jammu and Kashmir & Ors ....Respondent(s) WITH Civil Appeal No 78 of 2023 (Arising out of SLP(C) No 20904 of 2018) Civil Appeal No 79 of 2023 (Arising out of SLP(C) No 21924 of 2018) Transferred Case No 28 of 2019 Transferred Case No 29 of 2019 8 the cloakroom at a railway station. At the time of depositing them, he received a ticket which had the words “see back” printed on it. The reverse side of the ticket contained a term stating, “the company will not be responsible for any package exceeding the value of 10l .” A placard with the same condition printed on it was also hung on the wall. The plaintiff’s belongings were lost or stolen and he brought an action against the defendant for the value of the lost articles. The plaintiff had not seen the condition regarding the defendant’s liability for any articles deposited, either on the ticket or on the placard on the wall. The question before the court in that case was whether the respondent was liable for the loss of the plaintiff’s belongings . 12. In Olley’s case (supra), the plaintiff was a paying guest in the defendant’s hotel. After paying for the room, she received her keys and went to her room. There, a notice containing numerous terms and conditions was displayed. One of the conditions w as “The proprietors will not hold themselves responsible for articles lost or stolen, unless handed to the manageress for safe custody .” The plaintiff’s possessions were later stolen from her room. The plaintiff instituted a suit against the defendant and claimed the value of the goods stolen from her. The court was required to adjudicate whether the defendant could rely on the terms of a contract to exempt itself from liability under common law. In other words, the question that arose for determination was whether the defendant was responsible for the loss suffered by the plaintiff. 9 13. In McCutcheon ’s case (supr a), the plaintiff engaged an agent to have his car delivered to another town by sea. The agent paid the defendant, received a receipt, and delivered the car. The car was loaded onto the ship which set sail. Before it could reach its destination, however, i t sank due to the negligence of the defendant’s employees. The plaintiff sued the defendant for the value of his car. The defendant disclaimed liability on the ground that it usually asked customers to sign a risk note which contained certain terms and conditions regarding its liability for damage to the goods shipped by customers. No such risk note was signed by the plaintiff’s agent in this case, but he had signed risk notes on previous occasions when he had used the defendant’s shipping services. The def endant argued that it would not be liable for the loss of the car because the plaintiff’s agent was aware of the terms and conditions in the course of their dealings with one another. In this case, too, the question which arose for the court’s considerati on was whether the defendant could be held liable for the loss of the plaintiff’s car. 14. Finally, in Thornton’s case (supra), the plaintiff drove to an automatic car park owned by the defendant. The charges for availing of this service were displayed outside the car park . The plaintiff drove to the entrance and a machine dispensed a ticket which said, “ This ticket is issued subject to the conditions of issue as displayed on the premises .” The plaintiff parked his car in the car park. When he later returned there to collect his car, he suffered an accident and was severely injured. He instituted proceedings against the defendant seeking damages for his injuries. The question before 10 the court was whether the defendant would be liable for the injuries sustained by the plaintiff. 15. All four cases concern the issue of whether liability can be affixed on one of the parties based on the terms and conditions of the contract in question. Each of the decisions addresses when the contract was entered into and what the terms of the contract were. The court considered whether a particular term which was intended by one of the parties to form a part of the contract, would in actuality form a part of the contract and bind the other part y, thereby exempting the first party from liability for the loss suffered. 16. The case before us differs from the four cases relied upon by the respondents in that the original petitioners before the High Court did not file a suit for damages or other relief for a loss or injury suf fered by them. They instituted a Public Interest Litigation and invoked the High Court’s jurisdiction under Article 226 of the Constitution. They claimed the following relief in their petition before the High Court: “(ii) Writ of prohibition prohibiting Re spondents No. 3 – 6 from restraining the movie goers for taking with them out side eatables inside Cinema Halls required to be consumed during the time they see the feature film in the cinema hall” 17. By instituting a writ petition, Respondents 3 and 4 have invited an adjudication on whether the terms of entry determined and enforced by theatre owners are just and fair. The test to be applied by this Court would therefore not address which of the terms and conditions between the theat re owners and the movie goers are binding upon them and whether the 11 prohibition on carrying outside food within the theatre premises is a binding term. Similarly, this Court is not called upon to decide whether Respondents 3 and 4 suffered any injury due to the enforcement of the prohibition on outside food and whether they are entitled to damages, as a result of the injury suffered. Rather, this Court will evaluate whether this was a case fit for the exercise of the High Court’s writ jurisdiction under Ar ticle 226 of the Constitution. 18. If it was the case of Respondents 3 and 4 that they had suffered some injury due to the prohibition on carrying food and beverages into the movie hall or that the terms of the contract were made known to them only at the ti me of its enforcement and they sought a refund of the amount paid for the ticket because they did not assent to such a term or damages , the proper remedy would be to file a suit and not to seek the issuance of a writ . The decisions in Parker (supra), Olley (supra) , McCutcheon (supra), and Thornton (supra) which the respondent s rel y on do not have a bearing on the issue before this Court i.e., whether the High Court was justified in exercising its jurisdiction under Article 226 of the Constitution. It is therefore not necessary for this Court to address itself to the ratio decidendi of these cases any further . C. The High Court has transgressed its jurisdiction under Article 226 of the Constitution 19. Article 19(1)(g) of the Constitution recognizes the right of citizens to practice any profession, or to carry on any occupation, trade or business. This right includes all activities which enable citizens to generate economic benefits 12 and earn a livelihood. 2 The right recognized in Article 19(1)(g) is not an unfettered right and the state may impose reasonable restrictions on the exercise of that right, in terms of Article 19(6). 20. The fundamental aspect which needs to be noted is that the trade and business of operating cinema theatres is subject to regulation by the state . In this case, the State Government has framed the 1975 Rules to regulate the industry . Admittedly, the 1975 Rules do not contain a rule compelling the owner of a cinema theatre to allow a movie goer to bring food or beverages from outside within the precinct s of the theatre. Similarly, other enactments and rules which regulate the industry, namely, the Cinematograph Act 1952, the Cinematograph (Certification) Rules 1983, the Jammu and Kashmir Cinematograph Act 1989, and the Jammu and Kashmir Cinematograph Rules 1989 do not contain a provision which requires theatre owners to permit movie goers to carry food and bev erages of their own into the cinema hall. The rule making power of the state must be exercised consistent with the fundamental right of the cinema hall owner to carry on a legitimate occupation, trade, or business within the meaning of Article 19(1)(g) of the Constitution. 21. The majority opinion of a nine judge bench of this Court in Mafatlal Industries Ltd. v. Union of India 3 was authored by Jeevan Reddy, J. who held that the High Court must have regard to legislative intent while exercising its jurisdiction under Article 226: 2 Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, (2016) 6 SCC 82 3 (1997) 5 SCC 536 13 “108 (i). While the jurisdiction of the High Courts under Article 226 — and of this Court under Article 32 — cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act … This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. ” 22. The legislatur e’s omission of a provision requiring the cinema owner to allow eatables and beverages to be brought from outside is significant. In the absence of a specific mandate in the 1975 Rules (or any other applicable law) in this regard, the High Court was not justified i n issuing a direction prohibiting theatre owners from disallowing food and beverages to be brought in by persons entering a movie theatre who enter it for viewing a film. The High Court has erred in the exercise of its writ jurisdiction under Article 226 of the Constitution. The exercise of its jurisdiction was not consistent with the provisions of the enactments regulating 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 long as they are not contrary to public interest, safety and welfare. Like with any other business, the proprietor or the management is entitled to determine the business model that is to be followed and to give effect to their own concept ions of the economic viability of a particular business model. The owner of a cinema hall is entitled to determine whether she will set up or engage an entity for setting up counters for the sale of food and beverages and to regulate the terms on which such sale should take place. A prohibition on carrying food and beverages from outside into the precinct s of the movie hall is not contrary to 14 public interest, safety or welfare. 24. Of late, m ultiplexes or movie halls are not operated or envisaged solely as plac es where movies are screened. A more accurate characterization of a movie hall is as an entertainment centre or as an entertainment bundle. The sale of different kinds of food and beverages forms a portion of the entire package of entertainment available at the cinema hall . In other words, a movie hall is not a movie hall alone but also doubles up as an eatery when food and beverages are sold within its premises . Viewed from this lens, it is immediately evident that patrons of a movie hall cannot demand to bring their own food to eat there when a condition to the contrary is enforced by the cinema hall owners. This would be akin to permitting a customer who visits a restaurant to carry their own food to that restaurant and eat it within the premises of that restaurant. 25. Respondents 3 and 4 have urged that the y ought to be permitted to carry their own food because the cinema halls sell exorbitantly priced food and beverages, which are also not nutritious. The High Court was persuaded to issue the direction which has been noted earlier based on the consideration that what is offered for sale is “junk food”. Theatre owners may decide the contents of the menu they offer, similar to restaurants deci ding their menu or similar to theatre owners themselves deciding which movies to screen. As mentioned above, this is a commercial decision which the theatre owners are entitled to make. The price point at which the goods and services will be sold is likewise subject to being fixed by the movie theatre. Whether or not 15 the cost of a good or service is affordable or exorbitant is unrelated to the conditions of entry enforced by a business. 26. The second level of argumentation in the judgment of the High Court is that the prohibition in question impinges upon the right to choice of food, the right not to eat “junk ” food, and the right to good health. However, this line of reasoning fails to notice that movie goer s are not compelled to buy food at the cinema hall . Whether or not to purchase food or beverages after gaining admission to the cinema hall is entirely within the choice of the movie goer. Viewers visit cinema hall s for the purpose of entertainment . The transaction of purchasing a ticket permits them to view the movie they have opted to watch. If the food and beverages on sale at the movie hall are not to their taste, they are free to refrain from purchasing them. In this way, they are not being prevented from exercising their right to choice of food. We also note that the right of movie goers to purchase or eat a dish of their choice is unfettered 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 choice of viewer s. If viewers seek to enter a cinema hall, they must abide by the terms and conditions subject to which entry is granted. Having reserved the right of admission, it is open to theatre owner s to determine whether food from outside the precinct s of the cinema hall should be permitted to be carried inside . 28. We are therefore of the view that the High Court transgressed its jurisdiction 16 under Article 226 of the Constitution by directing the cinema hall owners not to prohibit movie goer s from carrying eatables and beverages from outside within the precinct s of a cinema hall and by directing the state to enforce this direction to the cinema hall owners . Absent a statutory regulation which regulates the right to co nduct the business of operating a cinema hall , the imposition of such a restraint would affect the legitimate rights of a theatre owner. 29. However, this is not to say that the terms and conditions imposed by cinema owners or other commercial entities bind t he consumer or the customer in every case. As held by a catena of decisions of this Court , when one party has unequal bargaining power relative to the other party, any terms and conditions which are unreasonable may not be enforced as against the party wit h lower bargaining power. 4 In Central Inland Water Transport Corpn. v. Brojo Nath Ganguly 5, this Court held that whether parties can be said to have unequal bargaining power and whether a bargain is unfair or unreasonable must be decided on 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 unreasonable contract, or an unfair and unreasonable clause in a contract, entere d into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. … It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or mean s of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that 4 Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986) 3 SCC 156; IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241; Jacob Punnen v. United India Insurance Co. Ltd., (2022) 3 SCC 655 5 (1986) 3 SCC 156 17 contract or form or rules may be. … there can be myriad situations which result in unfair and unreasonable bargains between partie s possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge 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 power relative to one another but also to ascertain whether a contractual term or a contract is unfair, unreasonable or unconscionable. A contract (or a term 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, although theatre owners may unilaterally determine the conditions of entry into cinema 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 the exercise of the right of cinema owners to carry on a business or trade under Article 19(1)(g) of the Constitution . The commercial logic of prohibiting movie goers from carrying their own food to the cinema hall is to stimulate and boost a vital aspect of the business – the sale of food and beverages. If business owners are not permitted to determine the various facets of their business (in accordance with law), economic activity would come to a grinding halt. While movie goer s may have no choice but to sign on the proverbial dotted line (and thereby not carry any food of their own into the theatre) in order to enter th e cinema hall and watch a movie of their choice, this does not by itself render the condition of entry unfair, unreasonable or unconscionable. 32. Most businesses impose some or the other condition which the customer 18 may find less than ideal. For instance, many private museums do not permit customers to take photographs of the objects on display. This is also true of many clothing boutiques or jewellery stores. Audience members are often banned from recording musical performances at concerts. Music festivals, much like movie theatres, do not permit attendees to carry their own food or beverages to the venue. Similar is the case with stand- up comedy shows or plays that are conducted in collaboration with eateries or bars. Although the customer is paying for a ti cket to watch the music performance (or the stand- up act or the play, as the case may be), the essence of the business model is to provide a fillip to the revenue generated by another arm of the business. This being the case, movie goers are bound by the condition of entry determined by the theatre owners in the instant case i.e., the prohibition on carrying food and beverages from outside into the precinct s of the movie hall . 33. We note that during the course of arguments, statements were made on behalf of the appellants that in order to obviate any inconvenience to movie goer s, due arrangements are made for the supply of hygienic drinking water without levying any charge within the precinct s of the cinema hall. Moreover, it has also been stated that when an infant or young child accompanies a parent, as a matter of practice, the cinema hall owners have no objection to a reasonable amount of food or beverages being carried inside the cinema hall to serve the nutritional requirements of the infant or child. 34. As for movie goers with chronic diseases who may have received dietary 19 instructions from their doctors or who may otherwise be under dietary restrictions due to their medical condition, we request cinema hall owners to consider requests from such movie goers on a case- by-case basis. 35. In view of the above position, we allow the appeals and set aside the impugned judgment and order of the High Court dated 18 July 2018 in regard to direction (i) which has been referred to above. The remaining directions of the High Court do not form the subject matter of the 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 the 1975 Rules is in the following terms: “87. (i) The licensing authority shall ensure that the sale price of tickets in all the cinemas of the State holding licence under these rules in uniform. (ii) The licensing authority shall ensure that reduced rates are charged by the licensee for any picture screened for the second time in any auditorium.” 37. The validity of Rule 87 was not in challenge before the High Court. The High Court in paragraph 8(iii) of its judgment issued the following directions in regard to sub -clauses (i) and (ii) of Rule 8 7: “iii. The Government of J&K as well as Licensing Authority/every District Magistrate in the State is directed to ensure proper uniformity be maintained with respect to the sale price of tickets in all the cinemas of the State in terms of Rule 87(i) & (ii ) of the Jammu & Kashmir Cinemas (Regulation) Rules, 1975.” 38. The above direction of the High Court shall not be construed as imposing any requirement over and above Rule 87 as it currently stands. 20 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 in TC (C) No 28 of 2019 and the Bombay High Court in TC (C) No 29 of 2019 are dismissed. The Transferred Cases are accordingly disposed of. 41. Pending applications, if any, stand disposed of. ..………..…....…........……………….…........CJI. [Dr Dhananjaya Y Chandrachud] ………. …..…....…........……………….…........J. [Pamidighantam Sri Narasimha] New Delhi; January 03, 2023