JUDGMENT
1. These writ appeals are filed against the common order of the learned Single Judge dated 6-11-2001 passed in W.P. Nos. 26379 to 26384 of 2001 and connected matters, dismissing the writ petitions and rejecting the prayer to declare that the appellant-petitioners hold ‘deemed licence’ under Clause 4(8) of the licensing order.
2. The necessary facts in brief as stated by the appellants-petitioners are that they are carrying on the business of running video game shops on the basis of licence granted from time to time or on deemed licence from last several years in the city of Bangalore. As the licences granted to the appellants were going to expire on 15-11-2001, they applied to the 2nd respondent in time for renewal of licence, under the Licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989 (for short ‘the Licensing Order’), for a period of five years on 12-4-2001 (vide Annexures-A1 to A8). In the applications, appellants-petitioners had mentioned the fact that they were carrying on the said business for the last so many years. Along with the six respective applications in the prescribed Form I, Challan for Rs. 250/- along with respective DDs, plan of the premises, ‘NOC’ of the landlord and copy of the licence, were also enclosed. As the same was not considered by the 2nd respondent within the stipulated time they filed the above said writ petitions seeking for the relief as stated above.
3. The respondents had filed statement of objections denying the allegations as alleged. It was submitted that even though the petitioners were issued with acknowledgment as if they have filed applications seeking for licence, the 2nd respondent had not received any applications on 12-4-2001. However, the office of the 2nd respondent received two sets of applications (seven each) dated 12-4-2001, on 14-7-2001 by speed post and on 16-7-2001 by registered post, and they were required to be considered within 30 days from the date of receipt of the application and as such the question of holding ‘deemed licence’ under Clause 4(8) did not arise.
4. In the rejoinder to the statement of objections it is stated that the appellants-petitioners submitted applications on 12-4-2001 and produced the copies of the acknowledgment for having received the applications on 12-4-2001, at Annexures-H1 to H7. It was also stated that the plea that no applications were received on 12-4-2001 is totally false and rather to deprive the petitioners of the benefit of the deemed licence, the respondents have taken the false plea, that the applications were received on 14-7-2001 and 16-7-2001, after filing the writ petition on 9-7-2001. It was also stated that there was no occasion for the appellants-petitioners again to send their applications dated 12-4-2001, for which they had already got an endorsement for having submitted the applications on 12-4-2001, which is apparent from the record.
5. The learned Single Judge on 24-7-2001 directed the Registrar (Vigilance) of the High Court to hold an enquiry and to submit his report with regard to the allegation and counter-allegations made for proper appreciation of the material on record. On the basis of the report of the Registrar (Vigilance), the learned Single Judge dismissed the writ petitions. Hence, these writ appeals.
6. The questions of law and fact involved in these appeals are similar and identical. As agreed by the learned Counsels for the parties, they are taken up and heard together.
7. Learned Counsel for the appellants-petitioners submits that the applications were made in time along with necessary requirements, as required under law, but without appreciating the same, the learned Single Judge erred in dismissing the writ petitions. He submits that the Registrar (Vigilance) has not considered the entire material in spite of the fact that applications were accompanied by other documents including the Demand Draft which was drawn much prior to 12-4-2001. He also submits that the Registrar (Vigilance) cannot give a finding on the factual aspect, which is required to be gone into by another Department, that too, without affording any opportunity to the appellants-petitioners, and therefore, merely on the basis of the report of the Registrar. (Vigilance), the learned Single Judge erred in concluding that there were no applications made on 12-4-2001. He also submits that the learned Single Judge has not taken into account that the respondents had admitted in their objections that two sets of applications dated 12-4-2001 were received on 14-7-2001 and 16-7-2001. Learned Counsel submits that as soon as the applications were received, they should have been considered, but the same were not considered. He therefore submits that the order of the learned Single Judge is liable to be set aside. He also submits in the facts of the given case, the appellants-petitioners are entitled for being declared as holders of deemed licence. He relied on the decision of the Supreme Court in the case of M.J. Sivani and Ors. v. State of Karnataka and Ors.,
8. Sri M.N. Sheshadri, learned Government Advocate has not disputed the fact that the duly filled in applications dated 12-4-2001, along with Demand Drafts, were received on 14-7-2001 and 16-7-2001, as per the counter. He has also not disputed that the Registrar (Vigilance) has not given the opportunity. However, he submits that no applications were received on 12-4-2001, but seven applications were received on 14-7-2001 and seven more applications on 16-7-2001 and hence the appellants-petitioners are not entitled for being declared as holders of ‘deemed licence’ under Clause 4(8) of the Licensing Order. Hence, no interference is called for in these appeals.
9. In rejoinder, learned Counsel for the appellants-petitioners submits that on earlier occasion, when despite the applications made before the Police Commissioner on 25-9-1996, permission was not accorded, a number of writ petitions were filed and this Court in W.P. Nos. 30733 to 30746 of 1996 declared that petitioners will be deemed to have licence for carrying on the business of video games in the premises in question, as per order dated 15-11-1996. Thus, the licence was granted upto 2001. The respective applications in Form I for a period of 5 years by paying fees at the rate of Rs. 50/- per year, by challan with Demand Draft of Rs. 250/-, dated 7-4-2001 along with necessary documents were made. This Court further continued the status quo order dated 8-1-2002 till further orders and thereby the appellants-petitioners arc running the video games shops.
10. We have heard the learned Counsels for the parties and perused the materials on record.
11. So far as the legal position is concerned, it is not disputed that grant or refusal of licence is governed by Clause 4 of the Licensing Order and as per this clause, the Licensing Authority, on being satisfied that the application is in order, is required to forward application to the authorities having jurisdiction over the area, where the public amusement is proposed to be conducted, for their reports or certificates, within 15 days therefrom and on getting the same, within 15 days, the Licensing Authority, on inspection, if satisfied, may grant the licence or refuse the same in the interest off public. As per Clause 4(8), if the Licensing Authority does not dispose off the applications within the time specified, the licence shall be deemed to have been granted to the applicant.
12. Keeping in mind the above legal position and applying the same to the facts of the given case, it is clear that the Licensing Authority is required to dispose off the application for grant of licence within 30 days from the date of receipt of the application and if the same is not disposed off within stipulated time the licence shall be deemed to have been granted. In other words, if the application made in time is not disposed off within the stipulated time, one can invoke the provision of Clause 4(8) of the Licensing Order.
13. No doubt, the concerned authority is free to verify the factual aspects and deal with the matter as per the provisions of the Licensing Order and there is no bar to make separate applications by one person at two different places. However, each case depends on the facts of its own. Now, what is to be seen is whether the applications for grant of licence were made in time or not. In the instant case, the fact that appellants-petitioners made respective applications for renewal of licence on 12r4-2001 is in dispute. It is also settled that this Court cannot go into the facts, which needs investigation. But in the given case, the fact remains that as per the counter the applications which were alleged to have been made on 12-4-2001 were received by the 2nd respondent in two sets on 14-7-2001 and 16-7-2001, and they contain the information regarding the duration since when they were carrying on their business and the relevant documents enclosed by them as required under law. On a perusal of the same, it reveals that the applications for grant of licence as provided under the provisions of the Licensing Order i.e., Form I were in order and they had applied for licence for a period of 5 years to run the business from 9 A.M. to 9.30 P.M. and the same is not in dispute. The appellants-petitioners have also annexed copy of the receipt of challan and Demand Draft of Rs. 250/- much prior to filing of the application along with copy of licence and NOC from the landlords of the respective premises. The learned Single Judge, based on the report of the Registrar (Vigilance), has found that prima facie, no applications were there on 12-4-2001, but the learned Single Judge has not considered the fact, as admitted by the respondents that applications were received by it on 14-7-2001 and 16-7-2001. It cannot also be lost sight of the fact that a person, who has drawn a Demand Draft well in advance, for the purpose of making an application, will not submit application in Form I so as to take advantage of the deemed clause particularly when they have got an acknowledgement receipt. Be that as it may. A perusal of the record reveals that Registrar (Vigilance) has not given opportunity to the applicants to file their objections or to have their say. Further, Registrar (Vigilance) has also not taken note of the fact that the applicants have annexed necessary documents after completing all the formalities and particularly depositing of amount by Demand Draft well in advance. Under the circumstances, when no opportunity was given to rebut the fact-situation, it cannot be said that no application in Form I was filed on 12-4-2001 and the finding based on such report is not proper and sustainable.
14. As per the argument of the learned Counsel for the respondents, applications of the appellants-petitioners dated 12-4-2001 were received on 14-7-2001 and one more set on 16-7-2001 after filing of writ petitions on 9-7-2001 and that has not been denied. Those applications were neither considered nor any reasons were assigned for not considering the same. In view of this, once the fact of receipt of applications in Form I on 14-7-2001 and 16-7-2001, by the concerned authority, is not in dispute except rejecting the application of one Gaganan Gholkar made on 27-1-2000 for grant of
licence at Shop No. 2, Property No. 28, Church Street, Bangalore, it is not
necessary to remit the matter. Once it is admitted that other applications in
Form I along with necessary documents were received on 14-7-2001 and
16-7-2001, the concerned authorities should have considered, but admittedly
they have not been considered, meaning thereby, the concerned authorities
allowed the appellants-petitioners to invoke the right under Clause 4(8) of the
Licensing Order. The learned Government Advocate has not been able to
dispute the earlier decision of this Court in W.P. Nos. 30733 to 30746 of
1996. Therefore, in our opinion, the appellants-petitioners are entitled, at
least after 30 days from the date of receipt of the applications, to invoke and to
hold ‘deemed licence’ under Clause 4(8) of the Licensing Order, except the
person whose application for deemed licence has been rejected for that
particular premises.
15. In view of what we have discussed above, the order of the learned Single Judge is set aside as not sustainable and also imposing the costs is set aside. We hold that the appellants-petitioners are entitled for deemed licence. It is declared that the appellants-petitioners will be deemed to have licence for carrying on the business in video games in the respective premises in question for a period of five years. Accordingly, the respondents are directed to issue licence, if necessary.
The writ appeals are allowed as indicated above, with no order as to costs.