Skip to content


M.K. Basha Sahib Vs. the Divisional Commissioner Bangalore Division, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2158 of 1972
Judge
Reported inAIR1973Kant183; AIR1973Mys183; (1973)1MysLJ139
ActsMysore Cinemas (Regulation) Act, 1964 - Sections 10
AppellantM.K. Basha Sahib
RespondentThe Divisional Commissioner Bangalore Division, Bangalore and ors.
Appellant AdvocateS.K. Venkataranga Iyengar, Adv.
Respondent AdvocateK.R. Karanth, Adv.
DispositionPetition dismissed
Excerpt:
.....liability on the appellant/insurer to indemnify the employer/owner of the vehicle. therefore, the order under challenge does not require any interference. - thereafter, the petitioner as well as the 3rd respondent made separate applications for issue of a licence under section 5 for a touring cinema. 8. in our opinion, the submission made by sri karanth for the 3rd respondent is well founded......prescribed, appeal to the prescribed authority and where no such authority is prescribed, to the state government. the decision of the appellate authority on the appeal shall be final.' section 18 which confers revisional powers on the state government provides that 'the state government may call for and examine the record in respect of any original order passed under the provisions of the act against which no appeal lies under section 10 or 17, for the purpose of satisfying itself as to the legality or propriety of such order, and may pass such order in reference thereto, as it thinks fit.'6. a bench of this court (sadan-and aswamy and jagannatha shetty. jj.) in jayaramappa v. state of mysore. w. p. no. 411 of 1972. d/- 24-10-1972 (mys) on a consideration of the scheme of the act has.....
Judgment:

Govinda Bhat, J.

1. This writ petition preferred under Article 226 of the Constitution raises the question whether in an appeal preferred under Section 10 of the Mysore Cinemas (Regulation) Act, 1964 hereinafter called the Act the Appellate Authority has jurisdiction to set aside the licence granted to a rival applicant under Section 5 of the Act. The question arises in this way: In Thirhtahalli town there is a permanent cinema theatre run by the 3rd respondent B. S. Prabhakar. The population of Thirthahalli town, according to the last census is stated to be 22.836 and therefore the number of cinemas to be permitted in Thirthahalli town cannot exceed two,

2. The petitioner who is the owner of a touring talkies applied to the District Magistrate. Shimoga who is the Licensing Authority under the Act. for grant of a touring cinema licence in the year 1969. The 3rd respondent filed objections to the grant prayed for on the ground that the population of Thirthahalli town does not justify the grant of another licence. The District Magistrate rejected the petitioner's application on the sole ground that the population was less than 10.000. The petitioner thereupon approached this Court for relief by filing Writ Petition No. 74 of 1970 which was allowed and the order of the District Magistrate was set aside with a direction to the District Magistrate to consider the petitioner's application in accordance with law. Thereafter the District Magistrate reconsidered the matter and held in his order dated 30th November. 1970 that there is no objection for granting a licence for the additional touring talkies in the place having regard to the population figures subject to the other formalities prescribed under the Act and the Rules being complied. Thereafter, the petitioner as well as the 3rd respondent made separate applications for issue of a licence under Section 5 for a touring cinema. The District Magistrate inspected the sites of the petitioner in respect of which he had applied for a licence and passed an order granting a 'no objection certificate'. By the same order he rejected the application of the 3rd respondent. That order is dated 6th May 1972. The reason given in the order for rejecting the application of the 3rd respondent was that the District Magistrate would prefer the petitioner rather than the 3rd respondent as he is having a permanent theatre in the place. A copy of the order was served on the 3rd respondent as required under Sub-section (3) of Section5 of the Act.

3. Aggrieved by the said order, the 3rd respondent preferred an appeal before the Divisional Commissioner. Bangalore Division under Section 10 of the Act. The petitioner was impleaded as respondent No. 2 in the said appeal. An objection was raised before the Divisional Commissioner on behalf of the 2nd respondent that the appeal against the grant of the licence to the petitioner was not maintainable under Section 10 of the Act That objection was overruled without assigning reasons and on a consideration of the merits of the case, the Divisional Commissioner set aside the order of the District Magistrate and remanded the matter to the District Magistrate for consideration of both the applications. The reason given by the Divisional Commissioner for setting aside the grant end remanding the matter was that the District Magistrate did not inspect the site of the 3rd respondent, but had inspected only the site of the petitioner, that he did not appear to have examined the existence of a storm water drain and its diversion by the side of the sites of the petitioner and the fact that the 3rd respondent is the owner of a permanent theatre at Thirthahally is not a relevant consideration for rejecting his application. Aggrieved by the order of the Divisional Commissioner the petitioner has preferred the above writ petition in which the only contention urged by the petitioner's counsel Sri S. K. Venkataranga Iyengar was that in the appeal preferred by the 3rd respondent under Section 10 of the Act against the decision of the District Magistrate refusing to grant the licence to the 3rd respondent it was not competent for the Appellate Authority to set aside the grant of the licence in favour of the petitioner as no appeal lay against the grant of the licence.

4. The Act was passed in 1964 in order to make provision for regulating exhibitions by means of cinematographs and the licensing of places in which cinematograph films are exhibited in the State of Mysore. Section 4 provides that 'no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under the Act', Section 3 provides that the Licensing Authority under the Act shall be the District Magistrate. Section 5 provides for grant of licence for exhibition of cinematograph films. That section reads thus:--

'5. Licence for exhibition of cinematograph films-- (1) Any person who intends to give exhibition by means of a cinematograph in a place shall make an application in writing to the licensing authority for a licence therefor, together with such particulars as may be prescribed.

(2) The licensing authority may, thereupon, after consulting such authority or officer as may be prescribed and subject to the provisions of this Act, and the rules made thereunder, grant the licence to such person and on such terms and conditions and subject to such restrictions as it may determine.

(3) Where the licensing authority refuses to grant the licence, it shall do so by an order communicated to the applicant, giving the reasons for such refusal.'

5. The next Section to be referred is Section 10. It reads thus:--

'10. Appeal against decisions under Sections 5 and 9.-- Any person aggrieved by the decision of the licensing authority under Section 5 or Section 9 may within thirty days from the date on which such decision was communicated to him. and subject to such conditions as may be prescribed, appeal to the prescribed authority and where no such authority is prescribed, to the State Government. The decision of the appellate authority on the appeal shall be final.' Section 18 which confers revisional powers on the State Government provides that 'the State Government may call for and examine the record in respect of any original order passed under the provisions of the Act against which no appeal lies under Section 10 or 17, for the purpose of satisfying itself as to the legality or propriety of such order, and may pass such order in reference thereto, as it thinks fit.'

6. A Bench of this Court (Sadan-and aswamy and Jagannatha Shetty. JJ.) in Jayaramappa v. State of Mysore. W. P. No. 411 of 1972. D/- 24-10-1972 (Mys) on a consideration of the scheme of the Act has held that 'a mere objector to the grant of a licence under Section 5 has no right of appeal under Section 10 and the right of appeal conferred by Section 10 can be availed of only against the order of a Licensing Authority refusing to grant the licence. Belying on the said decision Sri Venkataranga Iyensar argued that there were two applications before the Licensing Authority -- one application by the petitioner and another application by the 3rd respondent; that the 3rd respondent wag an objector to the grant of the application of the petitioner and that the petitioner was an objector to the grant of the application of the 3rd respondent; that against the grant of licence on the application of the petitioner, the 3rd respondent who was an objector to the grant has no right to prefer an appeal under Section 10 and his remedy lies in preferring a revision petition under Section 18 of the Act to the State Government and simultaneously preferring an appeal under Section 10 against the refusal of his application for a licence. In such a situation learned counsel argued that the Appellate Authority should await the decision of the State Government in revision petition under Section 18 and could proceed with the appeal if the State Government allows the revision petition and sets aside the grant of the licence to the petitioner. Learned counsel also sought reliance on the decision of the Supreme Court in State of Punjab v. Hari Kishan, : [1966]2SCR982 . That was a case arising under the Punjab Cinema (Regulation) Act. 1952. Under the Punjab Act, the Government is constituted as the Appellate Authority against the orders of the Licensing Authority refusing to grant the licence applied for. The Government has also the revisional powers under Section 5 (2) of the Punjab Act. Purporting to exercise the power of control under Section 5 (21 of the Punjab Act, the Punjab Government issued directions to the Licensing Authorities in the State to forward all applications received for grant of licences to the State Government. In compliance with the said directions, the Licensing Authority in the said case had forwarded the application of the respondent to the State Government who rejected the application for licence. The question raised in the said case was whether the State Government had jurisdiction to deal with an application for grant of a licence when it is the Appellate Authority constituted under the Act. The Supreme Court held in the appeal that 'however wide the power under Section 5 (2) may be, the said Section did not empower the State Government to act as the original Licensing Authority.' We are unable to find any relevance of the said decision to the case before us.

7. Sri K. R. Karanth for the 3rd respondent submitted that in the circumstances of the case. only one licence could be granted in view of the provisions of Rules 27 and 107 of the Rules; that when there are two or more applicants for a licence, the grant of a licence to one applicant would automatically mean the refusal of the permit to the other or others and in such a situation the right of appeal conferred under Section 10 against the refusal of the licence could be effective only if the Appellate Authority could set aside the order granting the licence to the petitioner. In support of his submission, Sri Karanth relied on the decision of the Supreme Court in Ram Gopal v. Anant Prasad. : AIR1959SC851 a case arising under the Motor Vehicles Act. 1939. The appellant Ram Gopal was the holder of a permit to run a stage carriage on the route 'Rewa Singrauli.' He made an application for a renewal of the permit. The respondent Anant Prasad made a representation against the renewal of the appellant's permit and he also applied for the grant of the permit to himself. The State Transport Authority. Vindhva Pradesh made an order renewing Ram Gopal's permit for three years. No express order was made on the application of Anant Prasad rejecting his application. Anant Prasad preferred an appeal against the said order granting the renewal. It was contended before the Appellate Authority that the appeal against the order of renewal was not competent which contention was rejected. The matter was taken to the High Court in a writ petition. The High Court upheld the view of the Appellate Authority and against the decision of the High Court. Ram Gopal preferred an appeal to the Supreme Court. Under Section 64 of the Motor Vehicles Act which is the provision for appeal, any person aggrieved by the refusal of the State or the Regional Transport Authority to grant a permit may prefer an appeal to the prescribed authority. It was urged before the Supreme Court that Clause (a) of Section 64 of the Motor Vehicles Act does not confer any power on the Appellate Authority to set aside the renewal of permit and that the right of appeal is given only to a person who is aggrieved by the refusal by the State or Regional Transport Authority to grant a permit The Supreme Court rejected that contention on the ground that so to hold would result in making the right of an appeal given by Clause (a) wholly infructuous in those cases where no relief can be given in the appeal except by setting aside the order granting or renewing a permit, for example, where there was only one permit to grant. The Supreme Court observed that if an appeal lies, such an appeal must be an effective appeal and the Appellate Authority must therefore have all powers to give the relief to which the appellant is found entitled.

8. In our opinion, the submission made by Sri Karanth for the 3rd respondent is well founded. Having regard to the population statistics of Thirthahalli town only one licence for a touring cinema can be granted. If there are two applicants for such a licence and the Licensing Authority grants the licence to one of the applicants viz., the petitioner, it automatically means the refusal of the licence to the 3rd respondent. Against the refusal of his application, the 3rd respondent has undoubtedly the right of an appeal provided under Section 10 of the Act. That he has such a right has rightly not been disputed. In order to render the right of appeal effective, the Appellate Authority must have all powers to give the relief to which the 3rd respondent-appellant is found entitled. An affective appeal necessarily means the power to set aside the grant of the licence to the rival applicant. Therefore, in our judgment the 1st respondent the Appellate Authority was competent to set aside the order of grant of the licence in favour of the petitioner. On the merits of the case as to whether the 1st respondent could have set aside the order of grant and remanded the matter, there is no error of jurisdiction calling for interference in this writ petition.

9. In the result, for the reasons stated above, this writ petition fails and is dismissed but in the circumstances without costs. Respondent No. 2 is directed to dispose of the matter expeditiously.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //