Bombay High Court
Deepak vs Hon'Ble State Minister (Home on 27 October, 2010
Bench: B. P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 672 OF 1999
1. Deepak s/o Mahadeorao Joshi,
aged about 45 years, occupation
Business, r/o Jagannath Ward,
Hinganghat, District - Wardha.
2. Shri Ravi K. Appu (through LRs)
(1) Smt. Meera wd/o Ravindra Kottai
Appu, aged about 51 years,
occupation - Household work.
(2) Smair s/o Ravindra Kottai Appu,
aged about 25 years, occupation
Student.
(3) Kum. Sapna d/o Ravindra Kottai
Appu, aged about 23 years,
occupation - Student and
Household. ... PETITIONERS
Versus
1. Hon'ble State Minister (Home),
State of Maharashtra,
Mantralaya Annex, Mumbai - 32.
2. Rajlakshmi Theaters Pvt. Ltd.,
through its Director Shri S.S.
Landge with office at Mohata
Nagar, Akola.
3. The Collector, Wardha. ... RESPONDENTS
::: Downloaded on - 09/06/2013 16:34:48 :::
2
Shri U.S. Dastane, Advocate for the petitioner.
Shri Mrs. K.R. Deshpande, AGP for respondents No. 1 & 3.
Shri Z.A. Haq, Advocate for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI, J.
OCTOBER 26 & 27, 2010.
ORAL JUDGMENT :
By this petition filed under Article 226 of Constitution
of India, the petitioners challenge the order dated 28.01.1999
passed by Respondent No. 1 - Hon'ble Minister in proceedings
under Section 8A of Bombay Cinemas (Regulation) Act, 1953
(hereinafter referred to as 1953 Act). By said order, Respondent
No. 1 has canceled the license given to father of Petitioner No. 2
and directed all concerned to apply under the provisions of Rule
100 and 101 of Maharashtra Cinemas (Regulation) Rules, 1966,
(hereinafter referred to as 1966 Rules), for grant of fresh license.
The said orders are stayed by this Court. This appeal under
Section 8A of above mentioned 1953 Act in turn challenge the
orders of the Collector dated 30.07.1997 and by said orders, the
Collector has found that the applicant before it viz. present
Respondent No. 2 should approach appropriate Civil Court for
redressal of its grievance about possession of premises of Cinema
Theater viz. Laxmi Theater and in interregnum the situation then
prevailing would continue. It, therefore, rejected the application
for suspension of Cinema license or for canceling license moved
by Respondent No. 2 and permitted present petitioner No. 2
through legal representatives to enter name of petitioner No. 1
as its nominee. It is not in dispute that by this order, the
Collector has disposed of three applications or objections filed
before him by the parties. The first one is dated 14.06.1996 by
which Respondent No. 2 raised objection to introduction of
petitioner No. 1 as its nominee by the deceased petitioner No. 2.
The second one is dated 25.06.1996 by which Respondent No. 2
sought cancellation of its license as per provisions of Section 6 of
1953 Act and the last one is dated 28.05.1996 by present
petitioner No. 1 to grant license to him.
2. The controversy has been considered in the light of
earlier litigation between the parties. Civil Suit No. 145 of 1970
was filed by present Respondent No. 2 against father of deceased
petitioner No. 2 for injunction. In that suit the contention was
defendant therein viz., K. Appu was appointed as Manager
sometime in the year 1946 and initially he was being paid
Rs.150/- per month which was later on raised to Rs.225/- per
month. His services were terminated vide order dated
06.06.1970. The prayer was to restrain said K. Appu from
entering premises of Laxmi Talkies and from acting or
representing himself as Manager of said firm/company. A prayer
for temporary injunction was made there and ultimately that
dispute came before this Court in Civil Revision Application No.
520 of 1971. Vide judgment dated 19.10.1972, this Court found
that admittedly K. Appu was continuing to manage the Theater
which was in the name of Respondent No. 2 company and,
therefore, during the pendency of suit, it made certain
arrangement. The deceased was directed to maintain accounts
of daily collection, to supply statement thereof to plaintiff,
plaintiff was given right to enter and to inspect accounts and to
watch the working. The collections were directed to be
deposited in State Bank of India at Hinganghat. These orders
were passed in revision filed by present Respondent No. 2. The
suit then remained pending and defendant K. Appu expired on
27.11.1982. The suit was then disposed of as abated on
23.04.1984.
3. On 17.03.1994, K. Ravi Appu s/o defendant in
Regular Civil Suit No. 145 of 1970 filed Writ Petition No. 761 of
1994 before this Court against State of Maharashtra and its other
officers for quashing of demand of Rs.1,93,300/- on account of
land revenue. Petitioner No. 1 therein was Manager of Laxmi
Talkies while petitioner No. 2 was K. Ravi Appu. Petitioner No. 3
was shown as M/s. Rajlakshmi Pictures Pvt. Ltd., Akola, as
proprietors of Laxmi Talkies through its Manager Shri K. Ravi
Appu. In the said petition, in para 2, K. Ravi Appu (deceased
petitioner No. 2 in present matter) has described himself as
Manager of Petitioner No. 1 Laxmi Talkies belonging to
petitioner No. 3 - Company. On the basis of this material, Shri
Dastane, learned counsel for the petitioners has contended that
Respondent No. 1 has overlooked several material facts which
has resulted in failure to exercise jurisdiction. He has invited
attention to relevant provisions of 1953 Act as also 1966 Rules
and urged that position prevailing after death of Shri K. Appu on
27.11.1982 till 1996 has not been evaluated at all by Respondent
No. 1. He states that license was renewed on six occasions from
1983 till 1989 and Respondent No. 2 - Company never raised
any objection to the same. The inclusion of name of Ravi K.
Appu in license after the death of K. Appu was never challenged
and in 1996, the challenge was only to proposed nomination of
petitioner No. 1 - Deepak as his nominee by Ravi K. Appu.
Respondent No. 3 - Collector has rightly understood the nature
and scope of controversy and has applied the mind correctly
leaving rest of the dispute for adjudication in Civil Suit.
4. Shri Dastane, learned counsel for the petitioners has
invited attention to the provisions of Section 8-A to urge that
appeal as filed was not tenable and at this stage the learned
counsel for respondent No. 2 stated that the order of Respondent
No. 1 impugned before this Court is not under Section 8A but in
fact the said order needs to be read as an order under Section 8B
of 1953 Act. In view of this position, Shri Dastane, learned
counsel then has urged that in proceedings before Respondent
No. 2, there was no challenge to license standing in the name of
the deceased K. Appu or then as transferred to Ravi K. Appu. In
the absence of such challenge, the findings on said aspect are
recorded to the prejudice of the petitioners and without hearing
them. He has urged that even under Section 8B, such grounds
could not have been looked into suo motu by Respondent No. 1.
In any case, the issues settled several years back could not have
been looked into and the limitation of 30 days prescribed for
preferring a revision also applies when power is exercised suo
motu. The learned counsel urged that the cognizance in any
case could have been taken in reasonable time and hear the
cognizance of factors not expressly raised has been taken after
12 to 13 years. The reliance has been placed upon the
judgments in the case of Shahabad Coop. Sugar Mills Ltd. vs.
Secretary to Government of Haryana Corporation, reported at
(2006) 12 SCC 404, Vijayabai vs. Shriram Tukaram, reported at
(1999) 1 SCC 693, Madhukar Rao vs. Claims Commissioner,
reported at (1998) 8 SCC 544, State of H. P. vs. Rajkumar
Brijender Singh, reported at (2004) 10 SCC 585 and Mohamad
Kavi Mohamad Amin vs. Fatmabai Ibrahim, (1997) 6 SCC 71.
5. The attention has been invited to form prescribed in
Rules for grant of Cinema license i.e. Form - E. The original
register of license made available by learned AGP is also shown
to this Court to urge that such register is required to be
maintained as per Rule 3 of 1966 Rules and in its column No. 3
while recording its proprietor or manager, name of the deceased
Shri K. Appu has been recorded as Manager, Laxmi Talkies,
Hinganghat. The argument is form of Cinema license does not
require name of Manager to be disclosed. Clause 21 in Cinema
license is relied upon to show that it specifically requires names
of persons nominated as Managers under Rule 116 to be added
in Clause 21. Attention is also invited to the license placed as
Annexure IV with writ petition to urge that names of persons
appointed later on as Managers are required to be included at
the end after clause 29 therein. As name of K. Appu never
figured either in Clause 21 or at the end of Clause 29, he was
never a Manager. Contention is, finding in this respect reached
by Respondent No. 3 - Collector has been erroneously interfered
with by Respondent No. 1.
6.
The learned counsel states that after the death of K.
Appu in 1982, Respondent No. 2 did not move any application
for grant of Cinema license or for its renewal in its name. He has
further urged that it was nowhere the case of Respondent No. 2
that the deceased K. Appu was nominated by it as a Manager
under Rule 116. The provisions of Rule 2(f) of 1966 Rules are
relied upon to show that Manager also includes a licensee.
7. The finding by Respondent No. 1 about lapsing of
license is also challenged by contending that the same runs
counter to law on the point as declared by Division Bench of this
Court in the case of Ramalaxmi Chimanlal Raval vs. State of
Maharashtra, reported at 1997 (6) LJ 1187. Attention has been
invited to provisions of Rule 128 as also Rule 103 read with Rule
105 of 1966 Rules to show that after death of licensee, there is
an express provision for renewal of such license and the license
never lapsed. According to learned counsel, harmonious reading
of Rule 128 with Rule 103 show that only transfer inter vivos is
prohibited. In these circumstances, learned counsel argues that
the impugned order passed by Respondent No. 1 needs to be
quashed and set aside and the order passed by Respondent No. 3
- Collector needs to be restored.
8. On Civil Application No. 4270 of 2002, learned
counsel has urged that as per interim orders of this Court,
amount of Rs.10,000/- per month has been deposited by the
petitioners but as Respondent No. 2 does not own the license,
they are not entitled to recover any amount from the petitioners
and the amount in deposit with the Registry of this Court,
therefore, be allowed to be withdrawn by the petitioners.
9. Mrs. Deshpande, learned Assistant Government
Pleader appearing for Respondents No. 1 & 3 has supported the
order passed by Respondent No. 1 - the Hon'ble Minister. The
reference has been made to stand on affidavit taken before this
Court to show that the impugned order has been passed by
Respondent No. 1 only on an appeal under Section 8A of 1953
Act. In the alternative and without prejudice, the learned AGP
has urged that time limit of 30 days prescribed in Section 8B is
only for filing of revision by aggrieved party and there is no time
limit for exercise of suo motu power by the respondents.
10. Shri Haq, learned counsel for respondent No. 2 has
relied upon the stand in Regular Civil Suit No. 145 of 1970 or
finding in Civil Revision Application No. 520 of 1971 to urge that
nowhere a finding that deceased K. Appu was not the Manager
has been recorded. Attention is also invited to stand of the
deceased K. Appu in written statement in that suit to show that
deceased K. Appu also accepted his position as a Manager. The
findings of Respondent No. 1 are stated to be based upon this
material available on record and, therefore, not either erroneous
or perverse. Similarly, stand of Ravi K. Appu in Writ Petition No.
761 of 1994 is pointed out to this Court to urge that such status
as Manager was also accepted by him and he never claimed as a
licensee. In this background, contention is, for the first time in
May 1996, effort was made by Ravi K. Appu to claim ownership
over license and hence at that time appropriate objection was
immediately raised by Respondent No. 2. The mischief was
sought to be prohibited by requesting Respondent No. 3 to
suspend/ cancel license. Attention has been invited to findings
recorded by the Collector with contention that there for the first
time the finding that Ravi K. Appu was licensee has come. The
provisions of Section 8B of 1953 Act are pressed into service to
show that revision against the same can be filed within 30 days
and hence appeal though styled under Section 8A, the
proceedings can also be treated as revision under Section 8B.
The various grounds raised in said memo are pressed into service
to urge that in view of the findings recorded by the Collector ,
necessary grounds to meet the same were expressly raised in that
memo and contention that the petitioners had no notice thereof
is argued to be misconceived. The finding by Respondent No. 1
about status of K. Appu is sought to be justified by pointing out
that the material on record including old entry in register of
licenses mentions K. Appu as Manager and interpretation or
acceptance of that record by State Government is, therefore,
neither erroneous nor perverse.
11. The Division Bench judgment of this Court in the case
of Ramalaxmi Chimanlal Raval vs. State of Maharashtra, (supra)
is stated to be not laying down correct law as provisions of Rule
128 of 1966 Rules were not pointed out to that Division Bench.
The learned counsel argues that Rule 103 and Rule 128 both
operate in different spheres and there is no inconsistency inter
se. According to him, the renewal contemplated by Rule 103 is
only for the remaining period of license issued to the deceased.
To illustrate his contention further, he states (hypothetical
illustration) that here Ravi K. Appu expired on 18.04.2002 and
hence his Legal representatives (if entitled) could have sought
renewal for remaining period i.e. up to 31.12.2003. He has
further urged that Respondent No. 1 has correctly looked into
violations which have occurred earlier and has ordered
cancellation of license to take care of those violations. He
further states that because of peculiar facts, all concerned have
been given liberty to apply under Rule 100 and 101 for fresh
license. He has also relied upon the judgment in the case of
Municipal Corporation of Delhi vs. Gurnam Kaur, reported at
(1989) 1 SCC 101, to urge how the principle of sub silentio
works while interpreting and understanding the Division Bench
of this Court (supra).
12. The learned counsel has further urged that when this
Court granted interim stay to the impugned order passed by the
Hon'ble Minister, that stay cannot and does not have the effect of
restoring the position prevailing on 30.07.1997 when
Respondent No. 3 - Collector passed the orders impugned before
Respondent No. 4. The judgment of the Hon'ble Apex Court in
the case of Shree Chamundi Mopeds Ltd. vs. Church of South India
Trust Association, reported at 1992 (3) SCC 1, is pressed into
service for the said purpose.
13. During hearing, it became clear that the petitioners as
also Respondent No. 2 were accepting that the impugned order
passed by Respondent No. 1 on 28.01.1999 cannot be viewed as
an order under Section 8A of 1953 Act. By placing reliance upon
the judgment in the case of Regional Medical Research Centre,
Tribals vs. Gokaran, reported at (2004) 13 SCC 125, Shri Haq,
learned counsel contended that when Respondent No. 1 had
authority and jurisdiction to take cognizance under Section 8B,
the order needs to be read as an order under Section 8B of 1953
Act. Shri Dastane, learned counsel has urged that when
authority which has passed the order, itself is insisting that it has
exercised jurisdiction under Section 8A, it is not open to this
Court to read that order as under Section 8B & attempt to
uphold it. He urged that if Respondent No. 2 has got any
grievance against the order of the Collector, Respondent No. 2
has to file fresh proceedings in accordance with law. He also
expressly opposed even a possibility of remand to Respondent
No. 1 to treat and decide the matter as revision by urging that it
would be indirectly causing prejudice to the petitioners by
denying them the advantage of opportunity to raise grounds like
delay, latches , waiver etc. He has invited attention to plaint as
filed in Regular Civil Suit No. 145 of 1970 to urge that there no
plea that license was of plaintiff company was taken. His
contention is, Respondent No. 2 before this Court is estopped
from claiming ownership of license. He has relied upon
judgment in the case of Hindustan Cooperative Housing Building
Society Ltd. vs. Registar, Cooperative Societies, reported at (2009)
14 SCC 302 to explain properties of deeming fiction
contemplated under Rule 128 and argued that renewal granted
under Rule 103 is, therefore, perfectly in accordance with law.
14. The rival arguments reproduced above clearly show
that the business of Theater was going on since 1946 and in any
case as per the license, since 1953, the deceased K. Appu was
associated with that business. The first document available on
record to show relationship between the parties in plaint in
Regular Civil Suit No. 145 of 1970. That plaint mentions K.
Appu as a Manager and further states that he was terminated by
order dated 06.06.1970. The observations of this Court in the
matter are reflected in Civil Revision Application No. 520 of
1971 which came to be decided on 19.10.1972. Those
observations expressly show that in spite of his termination, the
deceased K. Appu continued to manage the Theater though
Theater was in the name of the Company. In view of this
peculiar position, during the pendency of suit, some
arrangements were made by this Court. That arrangement
attained finality and no other arrangement or orders to the
contrary are available on record. This arrangement continued
till 23.04.1984 when suit itself was dismissed as abated at the
instance of present respondent 2 because of death of K. Appu.
Whether this arrangement was followed or not, protests or
grievances about implementation and other facts relevant in this
respect are not available anywhere.
15. The most important event which is available on
record is the continuation of the Cinema license in the name of
the deceased petitioner No. 2 i.e. Ravi K. Appu. The renewal in
his name from 1983 till 1996 is not in dispute. For one to
presume that after death of K. Appu, the dispute between parties
to civil suit came to an end, there is no such plea anywhere
either by present petitioners or by Respondent No.2. The mode
and manner or understanding with which business of Cinema
Theater has been managed after 23.04.1984 till 1996 has not
been brought on record. The subsequent grievance and interim
orders passed by this Court as also application filed vide Civil
Application No. 4270 of 2002 in this petition clearly show that
the situation had remained the same.
16. Petitioner No. 1 - Deepak applied on 28.05.1996 to
Respondent No. 3 - Collector for grant of license to exhibit
cinema at Laxmi Talkies, Hinganghat. In that application he has
mentioned that as per agreement dated 28.02.1995 between
himself and Ravi K. Appu, he secured permission, control and
management of cinema. He further disclosed that he was
already appointed as a nominee in cinema license as per said
agreement dated 28.02.1995. It is also mentioned that Ravi K.
Appu had no objection to grant of license in his favour. This
application at its bottom carries signature of K. Ravi Appu with
wordds "confirmed in toto". It, therefore, appears that K. Ravi
Appu gave his no objection for such grant or transfer.
Respondent No. 2 has on 14.06.1996 raised objection before the
Collector pointing out that they are the owners of Laxmi Talkies
and exhibition license issued to it was misused by Ravi K. Appu.
This communication also discloses knowledge of agreement
between Deepak and Ravi K. Appu and expressed apprehension
that either said Deepak or any third person might apply to the
Collector for transfer of that license in his name. The
communication states that Respondent No. 2 had no intention to
transfer the exhibition license to any third person and they were
not interested in transferring the possession of Laxmi Talkies to
any third person. The Collector was, therefore, called upon not
to entertain any such application. The other communication
dated 25.06.1996 by Respondent No. 2 is on the subject of
exhibition license of Laxmi Talkies and it mentions the previous
history & is in continuation of earlier communication dated
14.06.1996. It states that the deceased K. Appu was appointed
as a Manager by it and his son Ravi K. Appu was claiming to be
appointed as a Manager by his father and looking after the
exhibition of cinema at Laxmi Talkies. Then similar apprehension
about unauthorized effort to nominate some third person
including Shri Deepak are reiterated and it is urged that at the
relevant time, said Deepak was unauthorizedly exhibiting cinema
films in their premises. The communication states that premises
are in possession of Respondent No. 2 and they were issuing
necessary legal notice to him. As Deepak was not entitled to
represent Respondent No. 2 as nominee, exhibition of films was
stated to be illegal and therefore the Collector was requested to
suspend its license immediately. Some grievances about
violation of provisions of entertainment duty are also reflected in
it. In this representation ultimately request was made not to
renew the license as Respondent No. 2 was not intending to
exhibit the cinema.
17. On the basis of these three communications, office of
Respondent No. 3 Collector initiated enquiry which was
registered as C.R. No. 350 of 1996. The present Respondent No.
2 has been shown as applicant therein while deceased petitioner
No. 2 was non-applicant No. 1 and present Petitioner No. 1 was
non-applicant No. 2. The Collector has made reference to
documents filed by respective parties and found that Respondent
No. 2 established his title to the premises i.e. structure of Laxmi
Theater. The Collector also found that though Respondent No. 2
claimed to be a license holder for exhibiting films at Laxmi
Theater, Hinganghat, it produced no documentary proof in
support. The documents produced by the petitioner are found to
support their claim that license to exhibit films and other
relevant license were in the name of Ravi K. Appu. The Collector
then found that as per provisions of 1953 Act, even an occupier
can be given a license to exhibit cinema in theater. In the
process, the Collector has also found that office record revealed
that Laxmi Talkies was first licensed in the year 1953 and license
was issued in the name of K. Appu. There was no mention of
any firm in the office records and on the basis of this, a finding
that license issued to Shri K. Appu was in his personal capacity
has been drawn. The order also shows a finding that after expiry
of Shri K. Appu, license was granted to his son Ravi K. Appu in
the year 1983 and at that juncture, no objection was raised by
Respondent No. 2 and Respondent No. 2 allowed Ravi K. Appu to
carry out licensed business at Hinganghat. From this also
inference that license was issued to K. Appu in his personal
capacity has been drawn. Then there is reference to
arrangement evolved during the pendency of Regular Civil Suit
No. 145 of 1970, rejection of revision by High Court and
ultimately in this situation Respondent No. 2 was advised to
approach appropriate Civil Court for redressal of its grievances as
regards the possession of premises of Laxmi Theater. The
situation then prevailing was ordered to continue ie directed to
be maintained till adjudication of such Civil Suit.
th
27 OCTOBER 2010
18. Section 8 of 1953 Act confers power upon respondent
No.3 Collector to revoke or cancel or suspend the license.
Section 8-A enables the person aggrieved by his order refusing to
grant a license or the order revoking or suspending any license
made under Section 8 to file appeal. In present matter order
passed by respondent No.3 Collector is not an order refusing to
grant license or then revoking or suspending the license. It is,
therefore, obvious that appeal under Section 8-A is not available.
Section 8-B permits filing of revision and against any order
passed by respondent No.3 said remedy and forum is available.
Respondent No.2, who filed said proceedings before the State
Government has expressly stated before me that the same should
be treated as revision under Section 8-B. The stand is being
opposed by the petitioner as also respondent No.1. Perusal of
the judgment of the Hon'ble Apex Court, reported at (2004) 13
SCC 125 (Regional Medical Research Centre, Tribals Vs. Gokaran)
shows that the appellant before the Hon'ble Apex Court had not
pointed out in the application that their right to appear in the
proceedings was under Section 50 of Land Acquisition Act. The
Hon'ble Apex Court has observed that right does not arise from
the fact that the party has or has not mentioned a particular
section in the application. If under law the party has a right then
irrespective of the fact that a particular section is not mentioned,
that right does not get defeated. In application it was mentioned
by applicants that it is the body on whose behalf land was
acquired and the Hon'ble Apex Court noted that this was
admitted position. In view of this position the Hon'ble Apex
Court noted that it was absolutely necessary to implead them
and to notice them. In AIR 1983 SC 537 (Municipal Corporation,
Ahmedabad Vs. Ben Hiraben), Hon. Apex Court holds that a
notice under Section 260 (1) (a) of Bombay Provincial Municipal
Corporation Act (59 of 1949) in respect of an unauthorised
construction would not be illegal because the construction was
not made by the noticee but was in existence when she
purchased the premises. The expressions used in Section 260 by
themselves were found to be not quite clear, as to whether it is
directed against the person who has commenced or carried out
the construction contrary to the provisions of the by-laws or the
rules or whether in view of the language used in sub-cl. (a) of
sub-section (1) of Section 260 namely "has erected such
building" notice could also be issued to any person other than
one who actually built the unauthorised structure as the power
to take action against the persons who had not built the
infringing constructions is available when S. 260 (1) (a) is read
in conjunction with S. 478. The question involved being one of
construction of a provision of a statute that construction must be
so made as to be in conformity with the other provisions of that
particular statue and the provisions must be read as a whole.
This being a question of law, Section 478 can be relied upon in
support of the notice under Section 260 (1) (a). Section 478
comprehends both the owner or the occupier who has actually
constructed and as well as the owner or occupier of the building
which has been unauthorizedly constructed & the action of the
Corporation can be supported. Hon. Apex Court states that it is
well settled that the exercise of a power if there is indeed a
power, will be referable to a jurisdiction, when the validity of the
exercise of that power is in issue, which confers validity upon it
and not to a jurisdiction under which it would be nugatory
though the correct section was not referred, and a different or a
wrong section was mentioned. The notice as issued was held
legal though the notice impugned in this case was not issued
under Section 478.
19. In 2002(1) Mh.L.J. 350 (Tejbai Tejshi Vs. Smt.
Gangubai) this Court (learned Single Judge) has found in
paragraph 6 that when the impugned order makes a specific
reference to a particular provision under which the subordinate
Court proceeded to pass the same, it is not open to the superior
Court before which the matter is in appeal to infer that said
order is not passed under that provision but some other
provision. These observations are made after noticing that ex
parte decree was passed by the trial Court in exercise of powers
under Order 8 Rule 5 of the Code of Civil Procedure and remedy
to the aggrieved party against it was by way of appeal. The
notice of motion filed under Order 9 Rule 13 was not
maintainable. The appeal from order rejecting that motion was
also, therefore, not maintainable. The questions, whether the
trial Court was justified in invoking order 8 Rule 5 was not gone
into and it has been held that such question can be gone into in
their appeal only. In somewhat similar circumstances when the
judgment and decree delivered by the trial Court was found to
be not an ex parte decree, while holding that it cannot be set
aside as ex parte judgment and decree under Order 9 Rule 13,
similar observations are made by me in 2005 (2) Mh.L.J. 623
(Ramchandra Vs. Kamalkishore). However, these observations
clearly show that the exercise of jurisdiction by the trial Court
under a particular Section conferred upon the aggrieved party a
specific statutory remedy and because of that remedy, the
contention to treat order impugned as passed under other
relevant provisions (or correct provisions) to justify recourse to
jurisdiction invoked has been rejected. Thus, the consequences
of mentioning a particular provision created some rights and
opened a particular forum, & therefore, those observations came
to be made. Here, it is obvious that appeal under Section 8-A or
revision under Section 8-B lies before the same authority. The
facts clearly show that by impugned order, at the most it can be
said that a license forming subject matter of controversy being
claimed by respondent No.2 stood transferred to deceased
petitioner No.2. Order, therefore, could not have been assailed
in appeal and as the appeal is not provided, remedy of revision
was/ is the only remedy. There is no argument of prejudice, if
any, by petitioners to oppose such reading of the impugned order
of respondent 1. I, therefore, do not find any substance in
objection of the learned counsel for the petitioner that the
impugned order dated 28th January, 1999 cannot in these facts
be treated as an order passed under Section 8-B of 1952 Act.
20. Perusal of the judgment of the Division Bench of this
Court in Ramalaxmi Chimanlal Raval vs. State of Maharashtra,
(Supra) reveals that the petitioners before this Court were legal
representatives of deceased Chimanlal who was carrying on
business of cinema talkies and there was no dispute that he was
holding a valid cinema license. The dispute arose between
Chimanlal and owners of the property and Chimanlal filed a suit
for declaration of his status as a tenant. The contention was,
after expiry of Chimanlal, heirs and legal representatives had no
right to the property wherein cinema business was run. In the
impugned order the Minister held that the agreement between
the parties expired in 1977 and as the claim of heirs of
Chimanlal was subjudice in Civil Court, the building was held to
be in possession of the owners and hence, finding was given that
cinema license could not be renewed. This Court, in this
background, has found that during pendency of the dispute the
appellate Court declared heirs of Chimanlal to be tenants and
hence, it is held that the petitioners / tenants were protected by
Bombay Rent Act and were entitled to carry cinema business.
While distinguishing the judgment of Madras High Court, cited
before it, the Division Bench of this Court noticed that as per
Rule 30 of Madras rules, the applicant for license were required
to satisfy the Licencing Authority with regard to their lawful
possession. In the case between Gopalprasad Vs. State of Andhra
Pradesh, the Supreme Court was found dealing with Andhra
Pradesh Cinema Rules and the Hon'ble Apex Court there had
held that after expiry of lease the tenant continued to be in
possession but his possession cannot be treated as lawful for the
purposes of grant of cinema license. In the background of these
precedence and facts in paragraph 10 of the report, the Division
Bench has found that Rule 103 of 1966 Rules gives right to heirs
and legal representatives of licensee to apply for renewal of the
license. It is found that unlike Madras and Andhra Pradesh
Rules, it is not necessary for the licensee to satisfy that he is in
lawful possession as even an occupier can apply for renewal of
license. It is held that till such tenant is evicted by a decree
passed by the competent Court in accordance with the provisions
of law, he has right to apply for renewal of license. It is therefore
evident that Rule 128 was not relevant in said controversy. This I
am required to undertake scrutiny of this aspect in more details
little later while finding out the nature & extent of deeming
fiction as contained in said Rule in the scheme of 1966 Rules.
Here also, deceased K. Appu, after him his legal heir R. Appu
and thereafter legal heirs of R. Appu (substituted in WP &
representing R. Appu) have been using license from 1970 till
today, getting it renewed without any express protest from
respondent 2 at least from 1984 till 1996. They are also in
possession of theater building. This possession can be safely
presumed to be unobstructed since 1982 atleast for now. Hence,
the entitlement of legal heirs of R. Appu as of now to apply for &
secure renewal appears to be within four corners of law. Law as
explained by this Division Bench clinches the facts as on record
now and helps these legal heirs.
21. It is apparent that the attention of the said Division
Bench was not invited to the provisions of Rule 128 of the 1966
Rules. Rule 103 is specifically on the subject of death or
disability of licensee. While Rule 128 declares that license
granted is not transferable. Rule 128 stipulates that license
granted is personal for the benefit of person to whom it is
granted and on the death of licensee, the license shall be deemed
to be revoked. In 2004 the proviso had been added to it and it
states that the said rule shall not apply to a registered company.
Rule 103 states that if such licensee dies or becomes mentally
incapable or otherwise disabled, the person carrying on the
business shall not be liable to any penalty if during reasonable
time he makes application for renewal of the license. Again in
2004 similar proviso had been added to it. It is, therefore, clear
that emphasis in Rule 128 is on the personal character of such
license and its lapsing in case of death. However, Rule 103
incorporates a procedure which enables business to continue and
permits a person carrying on business to make an application for
its renewal within a reasonable time. The renewal of licenses is
dealt with by Rule 105. Opening part of Rule 105 states that
upon application for renewal the licensing authority may renew
it for requisite period subject to Rule 103. The procedure
prescribed for renewal is different and all formalities required to
be complied with while applying for fresh license are not
required to be fulfilled again. It is, therefore, apparent that after
death or insanity or other similar disability of licensee, law
envisages renewal obviously by his legal heir or representative.
This renewal can not be for remainder of the term of license as
then in case of death, legislature would not have made this
provision applicable. Thus though in case of death, the license
originally granted lapses, legal representative is entitled to apply
for renewal under Rule 103. Deeming fiction in Rule 128
therefore can not be used to curtail otherwise very clear
arrangement in Rule 103 or control its obvious sweep. Its extent
is limited to situation specifically prescribed in Rule 128.
Whenever in-spite of death of licensee the business continues &
is continued by legal heir or representative, deeming fiction is
not attracted. Thus license can not be transferred after death but
investment or labour of licensee/his family does not go waste
and his legal representative gets right to apply for renewal of
license.
22. In present matter, perusal of the order passed by
respondent No.1 reveals that in paragraph 3 the provisions of
Rule 128 are looked into and then it is noticed that the order of
the Collector does not disclose, how license in the name of K.
Appu, Manager was transferred to Ravi K. Appu. After perusal of
records respondent No.1 has found that license had expired on
29.04.1983 and its renewal has been done till 29.12.1989, vide
orders of Collector dated 02.12.1989. The renewal for
intervening six years was not looked into by the Collector. In this
situation the provisions of Rule 107 of 1966 Rules are relied
upon to hold that as renewal was not sought within one year,
application ought to have been treated as application for fresh
license and hence, all formalities relevant for such fresh grant
entitled to be complied with. The procedure prescribed in Rule
100 and 101 is then pointed out and respondent No.1 has held
that before grant, approval of the State Government was
essential but then, though the Collector has taken steps to
transfer the license, previous permission of State Government
was not obtained.
23. The challenge raised before the Collector is briefly
mentioned by me above while commenting upon the
applications/ representations dated 14.06.1996 and 25.06.1996.
There was no challenge to transfer or grant of license to Ravi K.
Appu in 1983 or thereafter. Even the order of the Collector
dated 02.12.1989 was not assailed even remotely. Respondent
No.1 has overlooked the fact that it was nowhere the case of
either respondent No.2 or then the Department that after 1983
the license was renewed for the first time on 02.12.1989. The
absence of discussion in the order of Collector, therefore, could
not have been relied upon to reach of such conclusion. The
recourse to provisions of Rule 100, 101 and 107 is therefore,
unwarranted & misconceived.
24. Respondent No.1 has, because of these findings
recorded in paragraph 4 of its order, then proceeded further and
found that subsequent transfer or agreement between Ravi K.
Appu and petitioner No.1 Deepak is also vitiated. The terms and
conditions of agreement between Ravi K. Appu and Deepak are
noted and it is found that Ravi K. Appu was claiming adverse
possession against respondent No.2. This claim is found to be
inconsistent after holding that Cinema license was in the name of
K. Appu because of his capacity as manager and Collector could
not have acted under impression that it was personally the
property of K. Appu. It is noticed that the Collector was right in
holding that the ownership of Cinema Theater and the right to
carry on business in its were independent and distinct aspects
and were of civil nature cognisable by Civil Court. Filing of
Regular Civil Suit No.145 of 1970 is then mentioned and it is
found that necessary evidence about that suit was not produced
by respondent No.2. The contents of the plaint are noted and
then fact of abatement of suit is also noticed. The statement by
Ravi K. Appu before the Collector on 02.05.1997 that it was not
necessary to file civil suit is also considered. Ultimately, at the
end of paragraph 5 respondent No.1 has concluded that
ownership of cinema theater needed to be adjudicated by
competent Civil Court. Because of these findings, ultimately in
paragraph 8 it has allowed the appeal and set aside the orders of
the Collector.
25. It can therefore be seen that the facts relevant for
adjudication have been totally lost sight of by respondent No.1.
The order of the Collector shows that the controversy as raised
was looked into and decided. Respondent No.1 has traveled
beyond that controversy. However, while so doing, the fact that
after disposal of the civil revision by this Court on 19th October,
1972, the management of theater continued with the deceased
K. Appu, has been overlooked. The giving up of suit because of
death of K. Appu in 1984 and implications flowing therefrom are
again overlooked. The fact that respondent No.2 did not come
up with a case that after death of K. Appu it was running cinema
business in that theater is also ignored. It was never the case of
respondent No.2 that it appointed Ravi K. Appu as Manager or
authorized him as licensee after death of K. Appu. This position
and management of the entire business by Ravi K. Appu
continued till 1996 and thereafter till his death in 2002. The
interpretation of entry in cinema license mentioning K. Appu,
Manager as licensee was not done by any competent authority
and in civil suit 145/1970 that was not done. The facts reveal
that after his alleged termination in 1970, K. Appu continued in
possession of cinema theater and was excessively managing the
business. This exclusive management of the business or use of
license has continued even after his death by his son without any
hindrance till 1996 as far as present records show. As already
observed above, whether interim arrangement made by this
Court was obeyed or not has not been disclosed by parties on
record. If after death of K. Appu, Ravi K. Appu stepped in to his
shoes, was there any other arrangement or agreement between
the parties has also not come on record. In so far as this
litigation is concerned, it can safely be said that when
respondent No.2 learnt that Ravi K. Appu is handing over not
only the license, but also possession of the theater to petitioner
No.1, an objection has been raised and then effort was made to
have cinema license itself canceled / revoked so as to indirectly
dispossess or discourage either Ravi K. Appu or petitioner No.1.
These facts, therefore, are sufficient in present litigation to hold
that earlier K. Appu and after his death Ravi K. Appu has
continued to use the cinema license to the exclusion of
respondent No.2 and hence, was authorised and competent to
claim its renewal or to exercise other powers in relation thereto
within framework of 1966 rules. The interpretation of entry in
the name of K. Appu raises questions of facts also which warrant
an investigation into disputed facts. Such complex issue could
not have been resolved by respondent No.1 and by respondent
No.3. Respondent 3 Collector has rightly left it for adjudication
by the competent Civil Court. The said interpretation cannot be
attempted even in this petition by this Court.
26. I, therefore, find the impugned order passed by
respondent No.1 unsustainable. However, it is made clear that
during pendency of this petition petitioner No.2 Ravi K. Appu
has also expired and thereafter the license in dispute is being
renewed in the name of his legal representatives. In accordance
with the scheme of 1966 Rules or 1953 Act, as presently there is
no declaration that building of cinema theater does not belong to
respondent No.2, said legal heirs can continue with its use & use
of license. They have to maintain & preserve position prevailing
as directed by Collector and can not transfer the possession or
license to either petitioner 1 or any third person. Respondent 2
can file appropriate civil dispute if it is still open to it, for
ventilation and redressal of its grievances in the matter. In view
of these findings, I have not considered the arguments of
Advocate Shri Dastane about absence of specific challenge in
memorandum of appeal/ revision or then absence of notice to the
petitioners before recording findings thereon by respondent No.1.
27. Subject to these observations, the impugned order
dated 29th January, 1999, passed by respondent No.1, is hereby
quashed and set aside. Writ petition is, thus, partly allowed.
However, in the circumstances of the case there shall be no order
as to costs.
28. As this stage. this Court has found that the petitioners
have been using the license exclusively and there is no
declaration that cinema theater (building) does not belong to
respondent No.2, the amount in deposit with the Registry of this
Court is allowed to be withdrawn by respondent No.2. However,
this shall not affect the rights and contentions of the parties in
the civil matter, if any civil matter is filed. The liberty given to
respondent No.2 to withdraw the amount shall be exercised only
after 30th November, 2010.
29. At this stage it is pointed out to the Court by
respective learned counsel that the question whether legal
representatives of petitioner No.2 can be brought on record to
prosecute this writ petition also needs to be adjudicated. It is
apparent that the license after death of K. Appu was in the name
of deceased petitioner No.2. The impugned order is against his
interest and the order of the Collector impugned before
respondent No.1 was in his favour. They are enjoying benefits of
that license. It is, therefore, clear that his legal representatives
needed to be brought on record to prosecute that cause further.
The question whether, because of their capacity as legal heirs
they are entitled to any civil rights in the said/such license needs
to be adjudicated upon by the competent Civil Court. This Court
has already found them entitled to apply for renewal under Rule
103 and appropriate directions in the matter are already issued
above. I, therefore, do not find any substance in the objection to
their impleadment, being raised by respondent No.2.
30. The impugned order dated 29th January, 1999, passed
by respondent No.1, is hereby quashed and set aside.
Accordingly, the legal heirs are held entitled to continue with
use of theater & use of license as per 1953 Act & 1966 Rules. But
they are directed to maintain & preserve position prevailing as
ordered by Collector and shall not transfer the possession or
license to either Petitioner no. 1 or any third person. Respondent
2 may file appropriate civil dispute if it is still open to it, for
ventilation and redressal of its grievances in the matter. The
writ petition is, thus, partly allowed. However, in the
circumstances of the case there shall be no order as to costs. Rule
made absolute in above terms.
JUDGE
*******
*GS/RR.
