ORDER
1. This petition is directed against the order dated May 20, 1997, passed by the Divisional Commissioner, Bangalore in No. CIN. Appeal 2 of 1997-98, and the petitioner has sought the quashing of that order.
2. The facts of the case as appears from the record are that earlier that is in 1991, in pursuance of proceedings in Arbitration No.l of 1971, finally registered Sale Deed dated 29-8-1991, was executed in favour of
Respondent No.3 by the other partners and the application for grant of permit was made by the petitioner and the respondent alleges to have made the application for permit, while the fact that is respondents having moved the application, is denied by the petitioner. This is not very material fact at this juncture. The main application for re-grant of licence made by the petitioner has not been disposed of till today, instead the Licensing Authority granted a temporary permit that is temporary licence in favour of the present petitioner vide, order dated 12-4-1997, Annexure-B to the writ petition for the period from 15th of May, 1997 to 15th of August, 1997.
3. Having felt aggrieved from the order of the Licensing Authority granting temporary permit which Rule-86 of the Karnataka Cinemas (Regulation) Rules, provides that such Temporary Permit also will be deemed to be a licence for the purpose of the rules and the respondent 3 filed an appeal under Section 10 of the Act. The appeal was heard by the Divisional Commissioner and the Appellate Authority – The Divisional Commissioner allowed the appeal taking the view as under:
“It is clear from the order sheet that the District Magistrate had passed the impugned order on 6-5-1997 without hearing the appellant and that the case was posted for hearing on merits on 27-5-1997. It is further observed that appellant and respondent No.3 in the appeal were involved in a series of bitter litigation involving this theatre over many years, and also that the theatre had not run for a year, the Divisional Commissioner observed, it was necessary for the District Magistrate to have heard both the parties before passing the interim order”.
4. The Divisional Commissioner therefore, stayed the operation of order dated 6-5-1997 passed by the District Magistrate, whereunder a temporary licence was granted and in pursuance of which Annexure-B was issued, that is the order granting temporary permit was stayed by the Divisional Commissioner till the final decision of the case and the Divisional Commissioner directed the Licensing Authority/District Magistrate, to hear both the parties and then take a decision, as he deemed just and necessary in the matter.
5. Feeling aggrieved from this order of the Divisional Commissioner, the petitioner has come up before this Court, by petition under Article 226 of the Constitution.
6. Notice was issued to the respondents and the counter affidavit and rejoinder have been exchanged.
7. On behalf of the petitioner it has been contended that appeal from this order of temporary permit was untenable, as no appeal is provided from order of temporary permit or licence and therefore, the order impugned is bad and without jurisdiction. It was further contended that the temporary licence that had been granted has expired on 15th of August, 1997, during the pendency of this writ petition and writ petition may be taken to have become infructuous.
8. These contentions have been contested. The respondent pressed for decision if his appeal was maintainable or not.
9. I have applied my mind to the contentions made by parties Counsel. No doubt writ petition had been filed on 26-5-1997, from the order dated 20th May, 1997 and the petitioner obtained interim order of stay and under interim order continued to run the picture. To avoid such a situation, though the temporary permit (temporary licence) had expired and writ has become infructuous on 15th of August, 1997, I think it proper to decide the question whether an order of temporary permit or licence issued under Rule 86 of the Rules, is appealable or not?
10. Rules are framed under the Act and have to be read harmoniously with the Act. Under Section 5 of the Karnataka Cinemas (Regulation) Act, the power has been conferred on the Licensing Authority either to grant the licence or to refuse to grant the licence. Section 10 of the Act under which the appeal is provided, it has been provided that 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 a decision was communicated to him and subject to the conditions as may be prescribed, appeal to the prescribed authority and where no such authority prescribed, to the State Government and the decision of the Appellate Authority on the appeal shall be final, Section 18 of the Act provides revisional power to the Government and in cases where orders cannot be said to be appealable under Sections 10 or 17 of the Act, the revision may lie. The question before me is whether the order granting temporary permit/temporary licence has been appealable or not under Section 10 of the Act.
11. Rule-86(4) of the Rules framed under Act No.23 of 1964, clearly provides that the temporary permit granted under Rule-86, shall for the purpose of the Rules be deemed to be a licence. When once a deeming clause is applied and the order of temporary licence is deemed to be a licence, then we have to take the deeming clause and presume thereunder to its fullest extent and not to boggle down in between. The principal power to grant the licence is under Section 5 of the Act. Granting of licence may also include the power to grant temporary licence, that is this power is under Section 5, read with Rule-86, framed under the Act.
12. Section 10 of the Act reads as under.-
“10. Appeal against decision under Sections 5 and
9.–Any person aggrieved by the decisions 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”.
13. The right to appeal has been given to an aggrieved person, aggrieved from the decision of Licensing Authority under Section 5 or 9 of the Act. The decision may be one, either granting (regular or temporary)
Licence or order and decision refusing to grant such licence. The material expressions used in Section 10 of the Act are “Any person aggrieved by decisions……under Section 5 or 9”. The expression “Person aggrieved”
has been defined in Black’s Law Dictionary, Sixth Edition, at Page 1143, as under:
“To have standing as a “person aggrieved” under equal employment opportunities provisions of Civil Rights Act, or to assert rights under any federal regulatory statute, a plaintiff must show (1) that he has actually suffered an injury and (2) that the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute in question”.
It further mentions at page 1143, as under:
“Test of whether a petitioner is a “person aggrieved” and thereby entitled to seek review of an order of referee in bankruptcy is whether his property may be diminished, his burden increased or his rights detrimentally affected by order sought to be reviewed”.
At page 65 of the above noted Dictionary, it is stated . . . “The word “aggrieved” refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation”.
14. In the case of Cyril E. Fernandes v Maria Lydia and Others, at page 97, Hon’ble Supreme Court has laid down. . . “A person can claim to be aggrieved if his legal rights are directly affected. That in the case of Babu Ram and Others v State of Uttar Pradesh and Another, at page 708, their Lordships of the Supreme Court have observed.-
“…….The person aggrieved, therefore, in the context, would
mean a person who had suffered legal injury or one who has been unjustly deprived or denied of something, which he would be interested to obtain in the usual course …….,.”.
15. The person must therefore, be one who has suffered a legal grievance because of a decision. The Hon’ble Supreme Court in the case of Northern Plastics Limited v Hindustan Foto Films Manufacturing Company Limited and Others, has been pleased to hold as under:
“…..But in order to earn locus standi as “person aggrieved” other than the arraigned party before the Collector of Customs as an adjudicating authority it must be shown that such a person aggrieved being third party has a direct legal interest in the goods involved in the adjudication process. It cannot be general public interest or interest of a business rival as is being projected by the contesting respondents before us”.
16. A person may be aggrieved from the grant of a licence, if his vital interest is adversely affected, such as, who is exclusive owner of the property and he does not consent that any Cinema may be allowed to be run by any person in his building, or he desires and seek that he himself may be allowed to run the Cinema. In such a case of grant of licence to one who is not the owner of building concerned, the objector i.e., the owner of such a building opposing, can well be said to be a person aggrieved, as his legal right to enjoy his property concerned is jeopardised and is being adversely affected. Therefore, when a temporary permit is granted to the person other than the owner of the building and the owner of the building is opposed to the grant, then by the grant of temporary licence or permanent licence, definitely such a owner can be said to be an aggrieved person or person aggrieved by the order granting temporary permit. The order granting temporary permit or permanent licence can be said to be a licence issued under Section 5 of the Act, read with Rule 86 and such an order of granting temporary permit/temporary licence is appealable under Section 10 of the Act. In this view of the matter, in my opinion, the appeal has been maintainable.
17. From a reading of the Section, as it appears to me, that it confers no doubt a right of appeal, to any aggrieved person and for the purpose of computing the limitation for filing appeal, the policy of the Legislature is to indicate the date from which thirty days is to be counted, that is from the date of decision being communicated to the person so aggrieved as above. So no doubt that may be a case where application of the applicant for licence is rejected and the licence prayed for refused. The applicant on refusal may be a person aggrieved beyond doubt. A person who has got certain rights, title and interest in the property, with reference to which licence is sought for using the same as Theatre/Cinema by someone else and, that title holder of that property objects to the granting of licence for cinema being allowed to be run in his premises and if licence yet is granted to some one i.e., applicant, such an objector can beyond doubt be said to be an aggrieved person or person aggrieved from the grant of the licence as his legal right to use his property is being illegally and adversely affected, i.e., injury in law is being affected to such an owner of property. Section 10 of the Act used the expression “any person aggrieved” and not “party aggrieved”. The expression “any person aggrieved” is a term of wide connotation than “party aggrieved”. What is required in order to be “person aggrieved”, one must show that he has or is likely to suffer directly the substantial legal injury, “injury to his legal rights” from the order. When Legislature has used term of wider connotation to interpret it, otherwise would be subversive of Legislative intent.
18. The expression used in later part of Section 10 of the Act “Within thirty days from the date on which the decision is communicated to him” is only indicative of period of Limitation, for filing the appeal that is within thirty days from the date of communication of the order. In other words it means within thirty days of the decision or order being brought to the notice or information of such an aggrieved person, may it have been brought to his notice by person other than Licensing Authority.
The Legislature when uses the expression “decision”, it appears as per Section 10 of the Act read with Section 5, to contemplate “decision” either allowing the application and granting the licence as well as decision rejecting the application and refusing the licence. If the contention of Shri B.G. Sridharan, the counsel for the petitioner, to the effect that here “decision” means decision refusing the licence and rejecting the application, then it would result in adding in, Section 10 of the Act after the expression “decision”, the expression “refusing to grant licence” or expression “rejecting the application” which if Legislature would have intended to add would itself have done to confine the right of appeal to persons whose application for licence is rejected. Such a course is course of interpretation, is not ordinarily permissible. See P.K. Unni v Nirmala Industries and Union of India v Deoki Nandan Aggarwal.
19. The learned Counsel for the petitioner Sri B.G. Sridharan, contends that Section 5(3) makes it obligatory on authority to communicate it to the applicant for licence on authorities refusing to grant licence. So read with Section 10 later part, it would indicate that right to appeal is confined to and with reference to “decision of refusal to grant licence”, I am unable to accept the contention. The expression used in Section 10 is not communication of decision by Licensing Authority. The communication may be through and from the person in whose favour licence has been granted to and the objector as well. When licensee under the licence wants to use the building not belonging to him, he will have to inform the owner of the building of the licence, expressly or impliedly thereof in using the building that may also amount to communication of the decision granting licence and from that date person aggrieved therefrom can appeal. These expressions in later part are material only to indicate that limitation for filing an appeal in cases of appeal from the order of grant or refusal to grant licence, is 30 days and it will be computed from the date of communication. So no doubt right of appellant is there and right to file the appeal when so far it is conferred on the applicant, it is confined by the period of limitation within which the appeal should be filed. So the order of both the natures are included and the person really aggrieved by that order has been conferred right. Aggrieved in the sense that his direct right to the property is adversely and illegally affected, but not the persons having any indirect effect on them. When I so observe, I find support from the decision of Madras High “Court in the case of Sri Mutugal Theatre, Maduari v The Commissioner of Land Revenue and of this Court in the case of N.R. Gangavathy v District Magistrate, Dharwad and Others.
Sri B.G. Sridharan, Learned Counsel for the petitioner has referred to the decision of this Court in the case of K. Jayaramappa v State of Mysore and Others.
This decision nodoubt renders support to the contention of Sri B.G. Sridharan, but it also lays down–“The objector may be a person aggrieved within the meaning of the first part of Section 10; but, in searching for the policy that under-lines the provision, we think it must be borne in mind that, whatever meaning may be given to the words “Any person aggrieved” in Section 10, the provision is controlled by the latter part of the said Section, which in turn, has a direct reference to Section 5(3) of the Act”.
20. There can be no dispute with this proposition and it means that appeal can be filed by person aggrieved from the decision refusing the licence, within 30 days of its communication by the authority concerned and by any other person aggrieved from the decision, within thirty days from the date of communication thereof, either by Licensing Authority itself if it does so communicate or communication or intimation of such decision may be from other sources may be from the grantee or licence.
21. In the above case the Bench has taken the view it delimits to scope of appeal and expression “against decision of Licensing Authority” to mean and to confine itself to “decision to refuse licence under Section 5. It observes:-
“…… But reading Sections 10 and 5(3) together, our conclusion
is that the appeal is against the decision of the Licensing Authority and that decision is a decision to refuse to grant a licence under Section 5. It is thus available only to the applicant and not to an objector”.
22. I would have preferred to refer this matter for consideration by larger Bench with my reasoning as above, as if the expression “aggrieved person” would be given restricted meaning to mean only applicant whose application for licence has been rejected and none else, then remedy or revision and writ may it be argued be not available to a person who is really prejudiced in respect of his legal rights, directly by grant of licence, but he will be rendered without remedy. So, I have preferred to follow the latter decision of this Court in the case of Gan-gauathy, supra, which is a later decision of this Court and specially when Writ Petition can also be disposed of on other basis.
23. Thus considered in my opinion, the person aggrieved from the order of grant of temporary licence is entitled to file an appeal. The Division Bench decision no doubt is for the proposition that order granting no objection certificate is first stage in the grant of licence and appeal is not maintainable.
24. Apart from the observations as above, even if it be taken that the appeal was not maintainable in this case, the order impugned i.e., order of the Divisional Commissioner passed in appeal appears to be doing
substantial justice as the temporary permit was granted or temporary licence was granted by the Licensing Authority without hearing the respondents before him, whose interest was going to be vitally affected as it appears that respondent No.3 was exclusive owner of property by virtue of purchase of Cinema Theatre in Ex.Case.143 of 1986 vide., sale deed dated 29-8-1991, Annexure-E to CA. The Appellate Authority, on this basis, has set aside that order and has stayed the order of temporary licence and its operation, it had directed the District Magistrate to consider that matter, in the light of the provisions of law. In the matter of granting of temporary licence also, prima facie the authorities are expected to look to the basic ingredients and requirements of law, including Section 6 of the Act and one of the ingredients that a person must be in lawful possession of the property where he wants to run the cinema. The lawful possession means, the person in possession must have a lawful title or having semblance atleast of lawful possession. The Appellate Authority has rightly observed that application could have been finally disposed of. But the authority in the present case, has after granting the application for grant of temporary licence has not cared to dispose of the application for grant of licence and this is rather a sad case. The authority was excepted to dispose of the matter of grant of licence, keeping in view the principles of law under Sections 5 and 6 of the Act and other relevant provisions, including the question of lawful possession, expeditiously, in every case within a period of 2 weeks from the date of communication of this order. As the order passed by the Appellate Authority appears to be just, even if technically it may be suffering from error of law or jurisdiction, this Court is not bound to interfere with the order in every case, specially when the order is just one. The Court is not bound to interfere under Article 226, of Constitution on mere ground of technicalities and this Court as such is not inclined to interfere with that order as well, for the further reason that the period temporary licence has exhausted as pointed out on 15-8-1997 and writ has itself become infructuous and even by allowing writ petition effective relief can he granted.
25. Thus considered the writ petition is hereby disposed off as dismissed with no orders as to costs, but, subject to the following observations:-
(A) Let the District Magistrate/Licensing Authority dispose of the main application for grant of licence, moved by the petitioner and if any by the respondent 3 as well, within the period of 2 weeks from the date of communication of the order, without going into the question of granting temporary licence or permanent licence.
(B) The petitioner may be allowed to run the cinema under the Interim Order, pending disposal of the application of permanent licence, within a period of 15 days or in no case beyond three months from the date of communication of this order and during this period, when under this order the petitioner is allowed to run the Cinema, he will deposit a sum of Rs. 5,000/- payable to respondent as mesne probit, or he will deposit at the rate of Rs. 200/- per day, whichever is high.
The petitioner shall make the first deposit of Rs. 5,000/- by or before 17th of this month. If this is not done, the benefit of Interim Order will not be available. If there is any delay in disposal beyond 15 days, then petitioner may be saddled with damages at the rate of Rs, 200/- per day, once in a week. But in any case, benefit of this Interim Order will be available for three months from the date of communication of this order. Beyond that, he will not be allowed to run the Cinema, unless regular licence is granted. The amount so deposited shall be paid to respondent 3, without any objection from the petitioner.