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SCA/9345/2010 24/ 24 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9345 of 2010
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PRATAP
TALKIES & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
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Appearance
:
MR
SP MAJMUDAR for
Petitioners
MS JIRGA JHAVERI AGP for Respondent No.1
None for
Respondent(s) : 2 -
7.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/08/2010
ORAL
ORDER
1. Heard
learned advocate Mr.S.P.Majmudar for petitioners and learned AGP
Mr.Jirga Jhaveri for respondent No.1.
2. In
present petition, petitioners have challenged the order passed by
Revisional Authority dated 3.7.2010 (Annexure-L, Page-267) whereby
Revisional Authority has remanded matter back to the District
Magistrate, Baroda for re-considering matter within a period of 45
days from the date of order and certain guidelines / directions have
been issued by Revisional Authority to the District Magistrate,
Baroda.
3. Brief
facts of present case, according to petitioners, are that the
petitioner No.1 is a partnership firm within meaning of the Indian
Partnership Act, 1932 and petitioner Nos.2 and 3 are partners of
petitioner No.1-firm. The petitioner-firm is a tenant of the premises
known as Pratap
Talkies . The said premises are owned by petitioners, amongst
others. The petitioner-firm is doing business of exhibition of
cinemas in the premises popularly known as Pratap Talkies since
1949.
3.1
The respondent Nos.5,
6 and 7 are the heirs and legal representatives of brother of
petitioner Nos.2 and 3 filed Civil Suit No.322 of 2006 wherein they
claimed certain rights, title and interest in the premises of Pratap
Talkies and also in partnership firm which is petitioner No.1 herein.
The respondent No.5, 6 and 7 have never been partners of tenant firm
and are even presently not partners thereof. An application for
interim relief was preferred by respondent Nos.5, 6 and 7 in the
aforesaid civil suit which came to be rejected.
3.2 Against
aforesaid order of rejection, the said respondents preferred an
Appeal from Order No.98 of 2007 before this Hon ble Court wherein a
consent order came to be passed to the effect that petitioners would
not transfer alleged shares of the respondents in the properties in
question, which included the property known as Pratap Talkies.
3.3 It
is pertinent to note that the ownership rights of petitioner Nos.2
and 3 and tenancy rights of petitioner No.1-firm are not disputed in
the said proceedings and it is an admitted position that petitioners
collectively have right to use the premises in question.
3.4 The
respondent Nos.5, 6 and 7 have also preferred another Civil Suit
No.198 of 2007 before learned Civil Judge (S.D.), Vadodara with a
prayer to the effect that cinema license for property known as Pratap
Talkies may not be renewed without the consent of respondent Nos.5, 6
and 7. It is pertinent to note that till date no interim relief or
final relief has been granted to the respondents in said Civil Suit.
Since respondent Nos.5, 6 and 7 have never been partners of
petitioner-firm which is a tenant and which is carrying on business
of running a cinema, respondent Nos.5, 6 and 7 have absolutely no
right to restrain firm from carrying on their business of running a
cinema house.
3.5 The
petitioners have applied to respondent Nos.1, 2, 3 and 4 for renewal
of license under Bombay Cinema (Regulations) Act, 1953 and Bombay
Cinema Rules, 1954. The petitioners have fulfilled all the requisite
conditions which are required to be fulfilled under said Act and
Rules for renewal of entertainment license. Various correspondences
have been exchanged between aforesaid respondent authorities and
petitioners in this regard. It is submitted that as on today no
further action requires to be taken by petitioners and no further
requirements need to be fulfilled by the petitioners for renewal of
said license. Respondent Nos.5, 6 and 7, through their advocate,
filed certain objections against renewal of license of petitioners
before aforesaid respondent authorities. The
objections were made by respondent Nos.5, 6 and 7 with a mala fide
intention to harass the petitioners to damage the business and
reputation of petitioners and to extract money out of petitioners.
Respondent Nos.5, 6 and 7 have no locus standi and no right
whatsoever to make said objections. Pursuant to said objections, a
show cause notice was issued to petitioners by Additional District
Magistrate, Vadodara and petitioners were asked to tender their
written submissions on 02.07.2007.
3.6 That
pursuant to said show cause notice petitioners have already tendered
their written submissions on 02.07.2007. Earlier
petitioners had preferred Special Civil Application No.18735 of 2007
before this Hon’ble Court challenging show cause notice issued by
District Magistrate, which came to be rejected and while rejecting
the said petition this Hon’ble Court in Paragraph No.9 had observed
as under:
9. xxx
xxx xxx Even otherwise also the contentions and submissions made
herein and grievance raised, can be raised before the competent
licensing authority while answering the show cause notice and
contents therein. At the same time, this Court cannot presume that
authority will pass an order by not considering relevant facts
submitted by the petitioners in reply to show cause notices.
Thereafter also if an adverse order is passed, the remedy of appeal
and revision is available under the statute.
3.7 Letters
Patent Appeal No.2272 of 2007 was preferred by petitioners against
aforesaid order passed by learned Single Judge, which was withdrawn
vide order dated 20.02.2008. Learned Magistrate, after considering
all aspects of the matter, renewed license of petitioner and
informed the same to respondent No.5. Against said order, Revision
Application was filed before respondent No.1 wherein petitioners gave
their reply.
3.8 Respondent
No.1 herein by considering totally new documents, which were not even
part of record, partly allowed said revision application. It is
submitted that the impugned order is contrary to facts and evidence
on record. It is submitted that respondent No.1 has exceeded his
jurisdiction while passing impugned order. It is submitted that
respondent No.1 has considered certain new documents, which is not
permissible in exercise of his revisional jurisdiction. It is
submitted that petitioners were fulfilling requirements under
Chapter-7 and Rules 101 to 107 of Bombay Cinema Rules, 1954. It is
submitted that respondent No.1 has completely misread and
misinterpreted the order dated 18.10.2007 passed by this Hon’ble
Court in Special Civil Application No.18735 of 2007. It is submitted
that order of Collector renewing license in favour of present
petitioner was just and proper order and required no interference. It
is submitted that respondent Nos.5, 6 and 7 have filled different
proceedings before different forum, including civil court and had
failed to establish even prima facie case in the property of Pratap
Talkies. It is submitted that directions given by respondent No.1
are beyond the scope of Bombay Cinema Regulations Act, 1953 and
Bombay Cinema Rules, 1954. It is submitted that impugned order is
passed in violation of Articles 14 and 19(1)(g) of Constitution of
India. It is submitted that though respondent No.1 has used the word
remand in his order, practically, he has decided all aspects of
the matter and has thus preempted the decision on remand. It is
submitted that licensing authority in any case cannot decide the
issue with regard to rights of a partner in a partnership firm. It is
submitted that if learned Magistrate is to act as per direction
issued by respondent No.1, the same would amount to encroaching upon
jurisdiction of civil court where civil suits are already pending.
Hence, present petition warranting kind interference of this Hon ble
Court.
4. Learned
advocate Mr.S.P.Majmudar challenging this order on the ground that
Revisional Authority has wrongly interpreted decision of this Court.
The decision of this Court is based on challenge by petitioners
against show cause notice and therefore, this Court has not gone into
merits of case. He relied upon Page-127 of compilation where this
Court has made observations which can be raised by petitioners before
competent licensing authority while answering show cause notice and
contents therein. At the same time, this Court cannot presume that
authority will pass an order by not considering relevant facts
submitted by petitioners in reply to show cause notices. However, in
case if any adverse order is passed, remedy of appeal and revision is
available under the statute to petitioners. Therefore, learned
advocate Mr.Majmudar submitted that rather emphasized it that there
is no observations made by this Court in SCA No.18735 of 2007 dated
18.10.2007 on merits. He relied upon order passed by licensing
authority (Page-133) where licence of Pratap Cinema has been renewed
subject to final out come of Regular Civil suit No.198 of 2007. He
further submitted that Addl. District Magistrate, Baroda by order
dated 15.5.2008 rightly renewed licence of Pratap Cinema after
considering objection raised by Smt. Virmatiben Dipakbhai Mistri
dated 27.12.2006. he submitted that this order has been passed by
Addl. District Magistrate, Baroda after giving personal hearing to
respective parties on 12.5.2008. He also referred Page-267 where
order has been passed by Revisional Authority on 3.7.2010 and
referring Page-271 submitted that Revisional Authority has almost
directed to District Magistrate, Baroda how to pass the order and
what facts and material is required to be considered is specified.
Therefore, it amounts to determination of facts by Revisional
Authority and thereafter, matter has been remanded back to District
Magistrate, Baroda. Therefore, such remand order is illegal and
contrary to principles of natural justice. He submitted that certain
directions have been issued as to what are the materials is required
to be considered before renewing licence of petitioners in respect to
Pratap Cinema, Baroda. Therefore, no discretion is remained with
District Magistrate, Baroda for renewal of licence ignoring such
direction which has been issued by Revisional Authority. Therefore,
such order is bad. He also submitted that direction which has been
issued by Revisional Authority in respect to dispute raised by
respondents in Civil suit and same observations which has been made
by Revisional Authority which exceeds its jurisdiction and though
specific contentions have been raised before Revisional Authority
(Page-135) new facts and documents do not require to be considered,
even though Revisional Authority has considered new facts and
evidence while deciding revision application. Therefore, order passed
by Revisional Authority is bad and illegal and therefore, order of
remand to District Magistrate, Baroda by Revisional Authority is
illegal and contrary to basic principles of natural justice. He
submitted that Rule 107 of the Rules for renewing licence has been
complied with by petitioners and subject to Rule 102 105, the
petitioners have complied with it by filing application which
required to be followed under the provisions of the Bombay Cinema
Rules,1954 have also been complied with by petitioners. Therefore,
District Magistrate, Baroda, having a limited jurisdiction whether
Rule for having licence of renewal under Bombay Cinema Rules,1954 has
been complied with by petitioners or not and District Magistrate,
Baroda has no jurisdiction to decide merits or rights of either
parties in respect to civil suit which is pending before the Civil
Court, Baroda. He relied upon the decision of Apex Court in case of
Krishna Kishore Fir v. The Govt. of A.P. And Others, reported in AIR
1990 SC 2292. Relevant observations of aforesaid decision are in
Para.4 and 5 which are quoted as under :
4.
True the appellant was neither owner nor lessee. Yet was his
possession forbidden in law? Was there no excuse for his possession?
The error committed by High Court was to equate lawful with legal.
Legal and lawful, normally, convey same sense and are usually
interchangeable. What is legal is lawful. But what is lawful may be
so without being formally legal. “The principal distinction
between the terms ‘lawful’ and ‘legal’ is that former contemplates
the substance of law, the latter the form of law. To say of an act
that it is lawful implies that it is authorised, sanctioned or at any
rate not forbidden by law”9. Same thought about lawful has been
brought out by Pollock and Wright by explaining that “Lawful
Possession” means a legal possession which is also rightful or
at least excusable. Thus that which is not stricto legalo may yet be
lawful. It should not be forbidden by law. In fact legal is
associated with provisions in the Act, rules etc. whereas lawful
visualises all that is not illegal against law or even permissible.
Lawful is wider in connotation than legal. Although provision in
Specific Relief Act empowering a person or tenant to recover
possession if he has been evicted forcibly by the Landlord may be
juridical and not lawful or a tenant holding over is not in lawful
possession unless landlord agrees or acquiesces expressly or
impliedly but that does not alter the legal position about possession
of a person not legal yet not without interest. The provision in
specific Relief Act is founded more on public policy than on
jurisprudence. But concept of lawful as opposed or in
contradistinction to litigious assumes different dimension. M. C.
Chockalingam v. M. Manichavasagam, (1974) 2 SCR 143: (AIR 1974 SC
104) is of no help as it was concerned with possession which could
not be said to be warranted or authorised by law. Distinction between
nature of possession of a lessee after expiry of period of lease can
better be explained by resorting to few illustrations. For instance a
lessee may before expiry of lease acquire entire lessor’s interest
resulting in “drowning” or “sinking” of inferior
right into superior right. That is right of one merges into Another.
It has been statutorily recognised by Section 111 (d) of Transfer of
Property Act. Similarly a tenant after expiry of period of lease may
be holding over and the lessor may acquiesce in his continuance
expressly or impliedly. That is from conduct of lessor the tenant’s
possession may stand converted into lawful. The other may be where
lessor may not agree to renew the lease nor he may acquiesce in his
continuance. Such a lessee cannot claim any right or interest. His
possession is neither legal nor lawful. Such was the Chockalingam’s
case (supra). The Court held that continuance of lessee’s possession
after expiry of period of lease was not lawful for purposes of
renewal of licence under Madras Cinema Regulation Act 1955 obviously
because lessee was left with no interest which could furnish any
excuse or give it even colour of being legal.
5.
Yet another illustration may be, not very common where lessee
acquires some interest in part of the undivided property as in
present case. Can it be said in such a case on ratio of
Chockalingarm’s (AIR 1974 SC 104) authority that possession of such
lessee or to be more specific of appellant was unwarranted or
contrary to law: Share of V. V. in 7000 sq. yds. was half. He had
agreed to sell his half interest. V. V. was joint owner with his son
and grandson. He had “both single possession and a single joint
right to possess”. Whether such joint owner could transfer his
share even when he was not in exclusive possession and what would be
effect of such transfer need not be gone into as title suit is
pending between parties but when a person having physical control
acquires an interest to hold or continue by virtue of an agreement of
sale it cannot be said that he had no interest and his possession was
forbidden by law. The High Court lost sight of the fact that by
virtue of the transaction entered between V. V. and appellant which
was not challenged by him nor any cloud was cast over it by creating
any subsequent interest the appellant may not have become owner but
he could certainly claim that he was in lawful possession. In law he
was entitled to file suit for specific performance if there was any
threat to his right or interest by V. V. Such right or interest could
not be termed as litigious. It was at least not without any excuse or
forbidden by law. In Words and Phrases Permanent Edition Vol. 25A,
2nd reprint 1976 a somewhat similar situation was described as not
litigious:
“Where
client conveyed undivided half-interest in land to attorney in
consideration of attorney’s rendering services and paying court
costs, giving irrevocable power of attorney to sue, settle, or
compromise, attorney received good title as third person purchasing
upon faith of public records, precluding reformation as against
attorney, on the strength of an instrument recorded after deed to
attorney and client claimed title, as against contention that
attorney acquired a “litigious right”.”
4.1 Learned
advocate Mr.Majmudar also relied upon another decision of Apex Court
in case of Union of India through Dy. Salt Commissioner, Bombay v.
Shri Puranmal Lalchand Mundra and Anr., reported in AIR 1996 SC 3195.
Relevant observations of aforesaid decision are in Para.6 which is
quoted as under :
6.
In view of the fact that the title is yet to be decided, the
respondents are directed to make an application before the District
Collector. The District Collector is directed to enquire whether the
respondents have title to the property taking into account the
statutory vesting under the provision of the Act as also any other
documents to be produced by the respondents or the State Government
or the appellant, as the case may be. After hearing the parties and
giving opportunity, the matter will be disposed of within a period of
six months from the date of the receipt of this order. Until then,
the appellant is directed to renew the licence under the Salt Act.
It will be subject to the result in those title suits.
4.2 In
short, his submission is that details reasons have been given by
Revisional Authority discussing the merits of matter for which civil
suit No.198 of 2007 is pending before Civil Court, Baroda and
therefore, subject to rights of the respective parties from outcome
of civil proceedings, licence must have to be renewed by authority,
even though Revisional Authority has not considered it and exceeded
its jurisdiction while issuing certain directions to District
Magistrate, Baroda while remanding back matter to District
Magistrate, Baroda. He also submitted that Revisional Authority has
committed gross error in coming to conclusion that order which has
been passed by District Magistrate, Baroda dated 15.5.2008 is without
any detailed reasons and being a short order granted renewal of
licence in favour of present petitioners without considering dispute
raised by Smt.Virmatiben Dipakbhai Mistri. He also submitted that
observations, which have been considered by Revisional Authority, of
this Court in Para.9 of the order dated 18.10.2007 are irrelevant
consideration made by Revisional Authority which having adverse
effect to the rights of respective parties in respect to civil
proceedings which are pending before Civil Court, Baroda. Except
that, no other submissions is made by learned advocate Mr.Majmudar
before this Court.
5. Learned
AGP Ms.Jirga Jhaveri appearing for respondent No.1 submitted that
Revisional Authority by order dated 3.7.2010 rightly examined matter
having its jurisdiction to consider objection raised by
Smt.Virmatiben D. Mistri and it is also necessary to examine certain
aspects of merits while renewing licence by competent authority. She
submitted that order passed by this Court in SCA No.15361 of 2007
has observed certain aspects on merits which has been rightly
appreciated and considered by Revisional Authority which is otherwise
binding to Revisional Authority and that decision of this Court has
remained intact because LPA No.2272 of 2007 has been withdrawn by
petitioners on 20.12.2007. She also submitted that it is open for
petitioners to make their submissions or to raise all the objections
before District Magistrate, Baroda against representation made by
Smt.Virmatiben D. Mistri. Therefore, according to her submission, at
this stage, any presumption made by learned advocate Mr.Majmudar has
no place because after all, all respective parties must have to
submit their case before the District Magistrate, Baroda and after
considering it, as per directions issued by Revisional Authority,
District Magistrate, Baroda must have to pass reasoned order and if
decision of District Magistrate, Baroda is against present
petitioners, then petitioners are having remedy to again file
revision before Revisional Authority against order of District
Magistrate, Baroda. Therefore, petitioners are not remediless but
entitled to challenge it in case if adverse order is passed by
District Magistrate, Baroda against present petitioners. She also
submitted that no error is committed by Revisional Authority in
passing such order dated 3.7.2010 and there is no jurisdictional
error committed by Revisional Authority and there is no determination
on merits is made by Revisional Authority in respect to rights of
either parties pending in civil suit No.198 of 2007. Therefore, no
interference is required by this Court while exercising powers under
Articles 226/227 of the Constitution of India.
6. I
have considered submissions made by both learned advocates and also
perused order passed by District Magistrate, Baroda dated 15.05.2008
and order passed by this Court in Special Civil Application No.18735
of 2007 dated 18.10.2007 as well as order dated 20.02.2008 passed in
SCA No.15361 of 2007 and also order passed in Special Civil
Application No.4157 of 2010 dated 09.04.2010. The question is that
there is a dispute between the parties- Smt.Virmatiben D.Mistri and
present petitioners in respect to property which is the subject
matter of Regular Civil Suit No.198 of 2007. The Revision Application
has been preferred by Smt.Virmatiben D.Mistri on 16.06.2008
challenging order passed by District Magistrate, Baroda dated
15.05.2008. According to facts, Smt.Virmatiben D.Mistri, Shri Vijay
Mistri and Shri Subhash Mistri are the members of one family. The
management of Pratap Cinema was initially managed by husband of
Smt.Virmatiben D.Mistri being a partner of partnership firm as per
partnership agreement dated 15.04.1965. Unfortunately, Shri Dipak
Mistri has expired on 19.05.1979 and thereafter according to
allegation made by Smt.Virmatiben D.Mistri, entire property has been
illegally and with collusion taken away in their hands by
petitioners. One forged / fake partnership deed has been created in
the year 1979 without consent and informing to Smt.Virmatiben
D.Mistri, against which civil proceedings are going on. The
petitioners have obtained licence of Pratap Cinema, against which
objection was filed by Smt.Virmatiben D.Mistri which has not been
considered by District Magistrate, Baroda and District Magistrate,
Baroda has renewed it by order dated 15.5.2008 subject to result of
Civil Suit No.198 of 2007. The petitioners preferred SCA No.18735 of
2007 wherein certain directions have been issued by this Court by
order dated 18.10.2007 which are relevant and therefore, same have
been considered by Revisional Authority. According to Smt.Virmatiben
D.Mistri, this partnership firm of Pratap Cinema started w.e.f.
1.1.1948 and deed was made on 2.12.1949. Thereafter, it was amended
on 28.9.1951 and 7.10.1956 where Shri Naranbhai Bhaichandbhai Mistri
and Bhikhubhai Naranbhai Mistri were taken up as a partners and owner
of Pratap Cinema has decided to obtain monthly rent from owner of
Pratap Cinema. These facts have been proved on the basis of
income-tax order produced by Smt.Virmatiben D.Mistri. On 15.4.1965,
because of the death of Naranbhai Bhaichandbhai Mistri, new
partnership has come into existence between Shri Bhikhubhai Narandas
Mistri, Shri Dipakbhai Bhikhubhai Mistri and Vijaybhai Bhikhubhai
Mistri. This fact is also proved by Smt.Virmatiben D.Mistri on the
basis of income-tax order for the year 1966-67. On 19.5.1979, Shri
Dipakbhai Mistri died and thereafter, another amendment is made in
the partnership firm or new partner has been taken up in partnership
firm or not, for that no documents have been produced by petitioners
before District Magistrate, Baroda inspite of demanding it and facts
are not disclosed by petitioners before District Magistrate, Baroda
as to what happened to partnership firm after death of Shri Dipakbhai
Mistri on 19.5.1979. Therefore, a doubt is created by
Smt.Virmatiben D.Mistri that in light of this, in respect to
ownership of Pratap Cinema and parterns as well as licensee who are
concerned persons, that fact is not made clear by petitioners before
District Magistrate, Baroda and whether subsequent to the death of
Shri Dipakbhai Mistri, any new partnership agreement has been arrived
or not and if it is arrived, between whom. The Revisional Authority
has fixed hearing on 16.4.2009, at that occasion Smt.Virmatiben
D.Mistri remained present and in writing, submission is made on
6.4.2009. At that occasion, Shri Subhashbhai Mistri and Shri
Vijaybhai Mistri also remained present and written submissions also
made by them on 6.4.2009. That Smt.Virmatiben D.Mistri has also
produced certain documents, orders as well as property card No.20446
to 20457, 27981, 16871, 18689 as well as record produced of city
survey office, Baroda. According to Shri Subhashbhai Mistri and Shri
Vijaybhai Mistri in respect to property belonged to Pratap Cinema and
also in respect to licence of cinema, one Civil Suit No.322 of 2006
is pending and another Civil Suit No.198 of 2007 in respect to
renewal of licence is also pending before the Civil Court, Baroda.
Therefore, according to them, licence is to be renewed subject to
final outcome of civil proceedings and revision which has been filed
by Smt.Virmatiben D.Mistri is required to be rejected. The
Revisional Authority has demanded new partnership deed or subsequent
partnership deed after death of Shri Dipakbhai Mistri on 19.5.1979
from both petitioners. But both petitioners have made clear before
Revisional Authority that they do not have any subsequent partnership
deed of the year 1979 and as and when it will be available, they will
produce before the Revisional Authority. That Smt.Virmatiben
D.Mistri has made written submission to Revisional Authority that
Shri Subhashbhai Mistri and Vijaybhai Mistri have produced one
document dated 19.5.1979 before the Civil Court in Special Suit
No.322 of 2006 that has been considered to be a draft document, then
on the basis of draft document, new entry can not be made before the
Registrar of Firms in G form. Therefore, in the aforesaid G
form, it has been made clear that because Shri Dipakbhai Mistri has
tendered resignation, one Shri Subhash Mistri has been taken as a new
partner w.e.f. 20.5.1979. So entry which has been made before
Registrar of Firm in the year 1979 must be made on the basis of
original partnership deed and without having valid partnership deed
and considering draft partnership deed, such entry cannot be made in
Registrar of Firm in the year 1979. Therefore, Smt.Virmatiben
D.Mistri has made representation to Revisional Authority that let
Shri Subhashbhai Mistri may file affidavit against letter dated
29.3.2010 in the department of Revisional Authority. Thereafter, Shri
Subhashbhai Mistri has filed affidavit on 14.5.2010 before Revisional
Authority and according to facts narrated in the affidavit, after
death of his brother Shri Dipakbhai Mistri, on what basis said entry
has been made in Registrar of Firm, he is not having any knowledge
and dispute which has been raised by Smt.Virmatiben D.Mistri cannot
be taken into account because it is a subject matter of Civil Suit
No.322 of 2006. But Revisional Authority must have to consider
provisions of Clause-8 of the Bombay Cinema Rules,1954 and no new
document has been considered by Revisional Authority.
7. In
light of this factual background, whether after death of Shri
Dipakbhai Mistri, any subsequent new partnership deed has been
arrived at between partners and whether any new partners have been
incorporated in partnership firm or not, for that no documents have
been produced by petitioners before Revisional Authority. The main
aspect is that Smt.Virmatiben D.Mistri having any right over the
property of Pratap Cinema and this being a family dispute between
heirs of respective partners, for that the matter is pending before
the Civil Court in respect to Civil Suit No.322 of 2006 and Regular
Civil Suit No.198 of 2007. The petition which was filed by
petitioners before this Court being SCA No.18735 of 2007 wherein
certain observations made by this Court on 18.10.2007 and
observations made in Para.9 has been considered by Revisional
Authority. Thereafter, appeal preferred before the Division Bench of
this Court being LPA No.2272 of 2007 where on 20.12.2007, petitioners
were directed to produce on record the partnership deed which was
re-constituted upon death of husband of Smt.Virmatiben D.Mistri and
that be produced within 3 days. That said LPA was withdrawn by
petitioners on 20.2.2008. Therefore, order passed by this Court on
18.10.2007 and 20.12.2007 remained intact and in light of facts,
according to Revisional Authority while considering application for
renewal of licence of Pratap Cinema, at least District Magistrate,
Baroda must have to consider observations made by this Court in
aforesaid two orders. In respect to legal rights of Smt.Virmatiben
D.Mistri in the property of Pratap Cinema being a subject matter of
civil proceedings but, Revisional Authority has rightly come to
conclusion that before granting renewal of licence of Pratap Cinema,
two orders which have been passed by this Court in SCA No.18735 of
2007 dated 18.10.2007 and order dated 20.12.2007 in LPA No.2272 of
2007 which remained intact and not set aside by higher authority.
Therefore, on the basis of aforesaid facts keeping in mind without
determining any rights of either party, certain directions have been
issued while exercising powers under Section 10 of the Gujarat Cinema
Act,2004 and also directed to District Magistrate, Baroda to decide
within 45 days while remanding matter back to District Magistrate,
Baroda. The Revisional Authority has directed to pass appropriate
orders after giving reasonable opportunity of hearing to respective
parties and also require to file affidavit by respective parties and
also to consider observations made by this Court as referred above
dated 18.10.2007 and order which was passed by District Magistrate,
Baroda while giving renewal of licence on 15.5.2008 which amounts to
unreasoned order. Therefore, District Magistrate, Baroda must have to
pass reasoned order considering what is the position of
Smt.Virmatiben D.Mistri in light of partnership deed after the death
of Shri Dipak Mistri, which has not been produced on record and what
happened to partnership deed and whether Smt.Virmatiben D.Mistri
having any right in place of her husband in the partnership firm or
not and looking to entry of retirement of Shri Dipakbhai Bhikhubhai
Mistri in Form G dated 26.2.1980 and on basis of this entry,
what is the status of partnership firm in the year 1979 is required
to be examined by District Magistrate, Baroda and whatever agreement
has been produced by petitioners in the year 1979, this being a draft
documents of partnership firm and whether it has been registered
before Registrar of Firm or not and what would be the legal effect
of partnership deed or agreement for the year 1979 which required to
be considered by District Magistrate, Baroda and to examine whether
because of death of Shri Dipak Mistri husband of Smt.Virmatiben
D.Mistri, what would be the legal position or status of
Smt.Virmatiben D.Mistri in the partnership firm of Pratap Cinema, is
also required to be considered by District Magistrate, Baroda while
considering application made by petitioners for renewal of licence of
Pratap Cinema.
8. The
relevant discussion made by this Court on the basis of facts and
after considering submission made by respective parties before this
Court in SCA No.18735 of 2007 dated 18.10.2007, are in Para.9, 9/1 to
9/4 which are quoted as under :
9. Having
heard learned counsels for the parties and considering the facts and
circumstances of the case and on perusal of the record, I am not
inclined to accept the submissions of learned counsel appearing for
the petitioners on the ground that to claim the license under Bombay
Cinema Rules, 1954 is simply a fundamental right subject to
reasonable restrictions. Article 19(1)(g) of the Constitution of
India which gives citizens freedom to trade anywhere in the country
is also subject to reasonable restrictions. Issuance of show cause
notice and asking the petitioners to appear before the authority to
explain the case indicate that there is no violation of principles of
natural justice. According to this Court, while issuing/renewing the
license, the concerned authority conduct a bonafide preliminary
inquiry in the nature of fact finding about the right, title etc. of
the petitioners seeking renewal of license cannot be said an exercise
without jurisdiction and illegal. Not only that but it is bounden
duty of the licensing authority to ascertain the genuine and existing
title of the applicant in whose name license is to be issued or
granted. Even otherwise also the contentions and submissions made
herein and grievance raised, can be raised before the competent
licensing authority while answering the show cause notice and
contents therein. At the same time, this Court cannot presume that
authority will pass an order by not considering relevant facts
submitted by the petitioners in reply to show cause notices.
Thereafter also if an adverse order is passed, the remedy of appeal
and revision is available under the statute.
9.1. It
is true that the petitioners has not challenged the notice dated
23/27.7.2007 by which the authority has asked the petitioners to show
cause why license granted to the petitioners should not be cancelled
and even after submitting to the jurisdiction of the authority under
the Act, without any challenge to the above notice the petitioners
have raised various issues for which this Court cannot render any
decision.
9.2. So
far as exercise of power under Article 226 and 227 of the
Constitution of India is concerned and where writ of certiorari is to
be issued in exercise of the above power, the Apex Court has laid
down certain principles in the case of Surya Dev Rai v. Ram
Chander Rai and Ors. reported in AIR 2003 SC 3044.
9.3. In
view of the principles laid down by the Apex Court and particularly
para 38, this is not a fit case were writ of certiorari can be issued
in as much as show cause notice issued by the authority for seeking
explanation about objections raised by the objector cannot be said to
be an exercise undertaken by the authority without there being any
jurisdiction. The above show cause notice is only with a view to
arrive at a satisfaction about status of the applicant and any
preliminary inquiry in this regard is not outside the preview of
powers of the licensing authority as envisaged under the Rule 101 to
107 of the Bombay Cinema Rules, which requires any interference by
this Court in exercise of powers under Article 226 and 227 of the
Constitution of India.
9.4. The
above decision of the Apex Court rendered in context of writ
petitions filed against interlocutory orders passed by the Court,
subordinate to High Courts and exercise of power under Article 226
and 227 of the Constitution of India, is equally applicable where
writ of certiorari is sought to be issued by the Court against the
statutory authorities exercising power under the statute.
9. The
aforesaid observations made by this Court wherein it is made clear by
this Court that licensing authority while issuing or renewing licence
must conduct a bonafide preliminary inquiry in the nature of fact
finding about the right, title etc. of petitioners seeking renewal of
licence cannot be said an exercise without jurisdiction and illegal.
Not only that but it is bounden duty of licensing authority to
ascertain genuine and existing title of applicant in whose name
licence is to be issued or granted. This Court has also further
observed that this show cause notice is only with a view to arrive
at a satisfaction about status of applicant and any preliminary
inquiry in this regard is not outside the preview of powers of the
licensing authority as envisaged under the Rule 101 to 107 of Bombay
Cinema Rules. Therefore, in view of aforesaid observations made by
this Court, licensing authority must have to consider status of
petitioners, for that limited preliminary inquiry is permissible and
within jurisdiction of authority. The aforesaid order remained intact
though challenged in LPA by petitioners as said appeal was withdrawn
by petitioners. Therefore, in light of aforesaid observations made by
this Court and accordingly, relying upon it, because decision of this
Court is binding to petitioners, now the petitioners cannot challenge
observations made by this Court in aforesaid decision because it is
binding to them. The Revisional Authority has not exceeded its
jurisdiction because Revisional Authority has simply directed to
District Magistrate, Baroda to consider observations made by this
Court and also observations made by this Court in LPA NO.2272 of 2007
dated 20.12.2007 where direction was issued to petitioners to produce
on record partnership deed which was re-constituted upon death of
husband of Smt.Virmatiben
D.Mistri. But that document was not produced before this Court and
ultimately, appeal was withdrawn on 20.2.2008 by petitioners.
Therefore, merely giving some guidelines how to consider renewal
application for licence submitted by petitioners, that does not mean
that Revisional Authority decided merits of the matter while
remanding back matter to District Magistrate, Baroda. The Revisional
Authority merely discussed it which cannot consider to be
determination. Therefore, contentions which have been raised by
learned advocate Mr.Majmudar in light of observations made by this
Court as well as Revisional Authority, cannot be accepted. The
decisions which have been relied upon by learned advocate Mr.Majmudar
are not applicable to
facts of present case because both decisions are based on different
facts which are not relevant considering submissions made by learned
advocate Mr.Majmudar. Therefore, aforesaid both decisions are not
applicable and helpful to him.
10. In
view of above observations made by this Court and considering detail
reasons given by Revisional Authority, according to my opinion,
Revisional Authority having jurisdiction to have some preliminary
inquiry as considered by this Court in Para.9 of order dated
18.10.2007 and for that, it cannot consider that such kind of
preliminary inquiry about considering the status of present
petitioners and also status of Smt.Virmatiben D.Mistri, for that
limited preliminary inquiry is not outside the purview or powers of
licensing authority under Rule 101 to 107 of Bombay Cinema Rules.
Therefore, same aspect has been considered by Revisional Authority
while remanding back matter to District Magistrate, Baroda. For that
according to my opinion, Revisional Authority has not committed any
error which requires interference by this Court. The Revisional
Authority has rightly dealt with matter and also properly considered
the issues and legal order has been passed by Revisional Authority
which will not adversely affect right of either party while
considering renewal of licence application submitted by petitioners
and after giving reasonable opportunity of hearing to all respective
parties to pass a reasoned order while keeping in mind observations
made by this Court as referred above. For that, according to my
opinion, Revisional Authority has not committed any error which
requires interference by this Court while exercising powers under
Article 226/227 of the Constitution of India. Hence,
there is no substance in present petition. Accordingly, present
petition is dismissed.
11. It
is also necessary to note that whatever grievance has been raised by
petitioners before this Court, they may also entitle to raise before
District Magistrate, Baroda when matter will be examined by District
Magistrate, Baroda after receiving remand order from Revisional
Authority. Therefore also, there is no scope to interfere with the
order passed by Revisional Authority. In case if, after remand the
District Magistrate, Baroda will pass any order against petitioners
or petitioners will be aggrieved by it, then also remedy of revision
is available to petitioners. Therefore, this being an additional
ground for not interfering with the order passed by Revisional
Authority.
(H.K.RATHOD,J.)
(vipul)
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