IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.04.2009
CORAM
THE HONOURABLE MR. JUSTICE K.N. BASHA
W.P.No.3062 of 2001
W.M.P.No.4217 of 2001
Karmegam Theatre,
Rep. by its Proprietor,
Mr.Udayakumar,
Karmegam Illam, Karmegam Theatre Road,
Vellakoil 638 111. .. Petitioner
Vs.
1. The Secretary to Government,
Home (Cinema) Department,
Fort St. George,
Chennai 9.
2. The Joint Commissioner,
Cinema, Chepauk, Chennai 5.
3. The District Collector,
Erode District, Erode. .. Respondents
* * *
Prayer : Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records in G.O.(D) No.55 Home (Cinema-2) Department dated 17.01.2001 passed by the first respondent herein and quash the same and set aside the punishment of suspension of 7 days of C-Form licence of the petitioner theatre.
* * *
For Petitioner : Mr.A.E.Kalaiselvan
For Respondents : Mrs.Lita Srinivasan, Govt. Advocate
O R D E R
The petitioner has come forward with this petition seeking for the relief of quashing the proceedings of the first respondent in G.O.(D) No.55 Home (Cinema-2) Department dated 17.01.2001 and setting aside the punishment of suspension of C-Form licence of the petitioner theatre for a period of 7 days .
2.1. The petitioner is the Cinema Theatre functioning under the name and style as Karmegam Theatre and it is represented by its proprietor. The inspecting authority under the Tamil Nadu Cinemas Regulation Act, 1955 (hereinafter referred to as the Act) inspected the petitioner Theatre on 30.12.1999 and alleged to have found the following irregularities :
(a)Electrician was not present at the time of inspection, violation of Sec.74(2) of the Act ;
(b)Toilets have not been maintained properly, violation of Sec.55(1) of the Act ;
(c)Pesticides were not sprayed in the theatre, violation of Sec.86(6) of the Act ;
(d)Lightning rods not installed, violation of Sec.74(a) of the Act ;
(e)Exit doors was not closed at the time of inspection, violation of Sec.83(2) of the Act ; and
(f)Licensee collected additional amount of Rs.2/- from the viewers for fourteen tickets ;
2.2 Thereafter, a show-cause notice was issued by the third respondent to the petitioner as contemplated under the Act and the petitioner sent a reply dated 20.01.2000 denying the allegations as false. The case of the petitioner is that the third respondent without conducting proper enquiry and without examining a single witness held that the charges are proved and awarded the punishment of suspension of C Form Licence for a period of 15 days. Against the said order the petitioner preferred an appeal in C.A.No.110 of 2000 before the second respondent herein and the second respondent reduced the punishment to 7 days by order dated 28.02.2000 and against the said order the petitioner preferred a revision before the first respondent and the first respondent passed the impugned order dated 17.01.2001 under G.O.(D) No.55 Home (Cinema-2) Department confirming the punishment awarded by the second respondent herein and the said order is under challenge in this writ petition.
3. Mr.A.E.Kalaiselvan, learned counsel for the petitioner vehemently contended that the respondents have not followed the procedure contemplated under the Act by giving reasonable opportunity to the petitioner to put forth his objections and contentions. It is contended that the respondents placed reliance on the statements recorded from the viewers of the Cinema behind the back of the petitioner and none of the viewers have been examined during the course of conducting the enquiry by the third respondent. The learned counsel for the petitioner would further contend that the third respondent placed reliance on the report submitted by the Revenue Divisional Officer (for short, R.D.O.), but the said report was not furnished to the petitioner herein and as such the respondents passed the said order in violation of principles of natural justice. It is contended that the second respondent dismissed the appeal without assigning any valid reason merely stating that the inspecting officer has personally found the irregularities and the Booking Clerk of the Theatre, who was present at the time of inspection, accepted the irregularities. The learned counsel for the petitioner would submit that the second respondent merely placed reliance on the statements recorded behind the back of the petitioner. It is contended that the first respondent also passed the impugned order dated 17.01.2001 without assigning any reason again placing reliance on the report submitted by the inspecting officer as well as the statements recorded from the viewers of the cinema Theatre behind the back of the petitioner. Therefore, it is contended that the impugned orders are liable to be set aside.
4. Per contra, learned Government Advocate contended that there is no infirmity or illegality in the impugned orders passed by the respondents. It is contended that the petitioner was given opportunity to put forth his objections by serving the show-cause notice and his objections were considered by the respondents and as such there is absolutely no violation of principles of natural justice. The learned Government Advocate would further contend that the respondents have given reasons for their conclusions and as such it cannot be stated that such orders are passed without any valid reasons.
5. I have carefully considered the rival contentions put forward by either side and also perused the materials available on record including the orders passed by the respondents herein.
6. A perusal of the materials available on record discloses that the inspecting officer during his inspection in the petitioner Theatre said to have been found certain irregularities as stated earlier. Now the question arises for the consideration of this Court is to the effect that whether the authorities concerned, namely, the respondents herein have followed the procedure contemplated under the provisions of the Act.
7. Before proceeding to consider the said question, it is relevant to refer the provision under Section 9(B)(1)(2) of the Act which reads hereunder :
9-B. Powers of Revision by Government – (1) The Government may, on their own motion or on application call for and examine the record of the appellate authority in respect of any proceeding under section 5(7) or section 9-A (1) to satisfy themselves as to the legality of such proceedings or the correctness, legality or propriety of any decision passed or order made therein ; and , if in any case, it appears to the Government that any such proceedings, decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly :
Provided that every application to the Government for the exercise of the powers under this section shall be preferred within such time as may be prescribed and shall be accompanied by such fee as may be prescribed.
(2) No order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representations.
A reading of the above said provision makes it crystal clear that the said provision itself mandates that before passing any order against any individual, such person shall be given an opportunity of making his objections and contentions as it goes without saying that the authorities shall give a reasonable opportunity to the persons against whom an adverse order would be passed.
8. There is no doubt that it is the quasi judicial function of the respondents to conduct enquiry by giving reasonable opportunity to the person concerned and those orders should be on merits and in accordance with law. Therefore, it is for the authorities to follow audi alteram partem meticulously as they have been empowered under the Statutes with certain quasi-judicial powers. It is needless to state that the power of the first respondent, who is a revisional authority under the Act, is a quasi judicial power and as such the said authority should follow the principles of natural justice by affording effective and reasonable opportunities to the parties and after affording such opportunities to the respective parties, the revisional authority is expected to pass a speaking order reflecting application of mind to the materials available on record.
9. Now coming to the case on hand, it is seen that the inspecting officer is the R.D.O. and after inspection he has submitted his report to the third respondent and the third respondent passed the order dated 28.02.2000 holding that the charges are proved and awarded punishment of suspension of Form C licence for a period of 15 days. A perusal of the said order discloses that the third respondent by placing reliance on the report submitted by the R.D.O. and by placing reliance on the statements said to have been recorded by the R.D.O. during the course of his inspection from the viewers of the Cinema arrived at the conclusion that the charges are proved against the petitioner. It is pertinent to note that neither the said report of the R.D.O. was served on the petitioner nor the so-called statements said to have been recorded by the R.D.O. during inspection of the Theatre in the presence of the petitioner. Therefore, the third respondent by merely placing reliance on the R.D.O. report and the statements recorded behind the back of the petitioner held that the charges are proved. On appeal, the appellate authority, namely, the second respondent herein, passed an order dated 28.08.2000 again placing reliance on the report of the inspecting officer/R.D.O. and on the statements said to have been recorded by the inspecting officer behind the back of the petitioner herein holding that the irregularities noticed by the inspecting Officer were proved beyond doubt and only modified the order by reducing the punishment of suspension of C Form Licence from 15 days to 7 days. Lastly, the revisional authority passed the impugned order – a cryptic and non-speaking order, dated 17.01.2002 holding that the charges against the petitioner are proved on the basis of the inspection report as well as on the basis of the statements recorded from the viewers of the cinema behind the back of the petitioner.
10. This Court is constrained to state that the said impugned order is bereft of any reasons except holding arbitrarily and mechanically that the charges were proved against the petitioner on the basis of the inspection report and the statements recorded from the viewers as stated above. A reading of the said order discloses that the said order is nothing but the re-production of the conclusions arrived at by the third and second respondents through their orders and the said order does not reflect the application of mind of the revisional authority. Therefore, this Court has no hesitation to hold that the entire proceedings is vitiated by flagrant violation of principles of natural justice and constrained to allow this writ petition.
11. Accordingly, this writ petition is allowed and the impugned order of the first respondent passed in G.O.(D) No.55 Home (Cinema-2) Department dated 17.01.2001 is hereby quashed. This Court is constrained to remit the matter to the third respondent for fresh disposal by giving effective and reasonable opportunity to the petitioner to put forth his contentions and objections by following the procedure contemplated under the provisions of the Act and to pass orders on merits and in accordance with law. Consequently, connected miscellaneous petition is closed.
gg
To
1. The Secretary to Government,
Home (Cinema) Department,
Fort St. George,
Chennai 9.
2. The Joint Commissioner,
Cinema, Chepauk, Chennai 5.
3. The District Collector,
Erode District,
Erode