{"id":102141,"date":"2010-08-11T00:00:00","date_gmt":"2010-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pratap-vs-state-on-11-august-2010"},"modified":"2018-07-29T06:30:39","modified_gmt":"2018-07-29T01:00:39","slug":"pratap-vs-state-on-11-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pratap-vs-state-on-11-august-2010","title":{"rendered":"Pratap vs State on 11 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pratap vs State on 11 August, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/9345\/2010\t 24\/ 24\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9345 of 2010\n \n\n \n \n=========================================================\n\n \n\nPRATAP\nTALKIES & 2 - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 6 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nSP MAJMUDAR for\nPetitioners \nMS JIRGA JHAVERI AGP for Respondent No.1 \nNone for\nRespondent(s) : 2 -\n7. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 11\/08\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.S.P.Majmudar for petitioners and learned AGP
\nMr.Jirga Jhaveri for respondent No.1.\n<\/p>\n
2.\tIn
\npresent petition, petitioners have challenged the order passed by
\nRevisional Authority dated 3.7.2010 (Annexure-L, Page-267) whereby
\nRevisional Authority has remanded  matter back to the District
\nMagistrate, Baroda for re-considering  matter within a period of 45
\ndays from the date of order and certain guidelines \/ directions have
\nbeen issued by Revisional Authority to the District Magistrate,
\nBaroda.\n<\/p>\n
3.\tBrief
\nfacts of present case, according to petitioners, are that the
\npetitioner No.1 is a partnership firm within  meaning of the Indian
\nPartnership Act, 1932 and petitioner Nos.2 and 3 are partners of
\npetitioner No.1-firm. The petitioner-firm is a tenant of the premises
\nknown as  Pratap
\nTalkies . The said premises are owned by petitioners, amongst
\nothers. The petitioner-firm is doing business of exhibition of
\ncinemas in the premises popularly known as  Pratap Talkies  since
\n1949.\n<\/p>\n
3.1
\nThe respondent Nos.5,
\n6 and 7 are the heirs and legal representatives of brother of
\npetitioner Nos.2   and 3 filed Civil Suit No.322 of 2006 wherein they
\nclaimed certain rights, title and interest in the premises of Pratap
\nTalkies and also in partnership firm which is petitioner No.1 herein.
\n The respondent No.5, 6 and 7 have never been partners of tenant firm
\nand are even presently not partners thereof. An application for
\ninterim relief was preferred by respondent Nos.5, 6 and 7 in the
\naforesaid civil suit which came to be rejected.\n<\/p>\n
3.2\tAgainst
\naforesaid order of rejection, the said respondents preferred an
\nAppeal from Order No.98 of 2007 before this Hon ble Court wherein a
\nconsent order came to be passed to the effect that petitioners would
\nnot transfer alleged shares of the respondents in the properties in
\nquestion, which included the property known as Pratap Talkies.\n<\/p>\n
3.3\tIt
\nis pertinent to note that the ownership rights of petitioner Nos.2
\nand 3 and tenancy rights of petitioner No.1-firm are not disputed in
\nthe said proceedings and it is an admitted position that petitioners
\ncollectively have right to use the premises in question.\n<\/p>\n
3.4\tThe
\nrespondent Nos.5, 6 and 7 have also preferred another Civil Suit
\nNo.198 of 2007 before learned Civil Judge (S.D.), Vadodara with a
\nprayer to the effect that cinema license for property known as Pratap
\nTalkies may not be renewed without the consent of respondent Nos.5, 6
\nand 7. It is pertinent to note that till date no interim relief or
\nfinal relief has been granted to the respondents in said Civil Suit.
\nSince respondent Nos.5, 6 and 7 have never been partners of
\npetitioner-firm which is a tenant and which is carrying on business
\nof running a cinema, respondent Nos.5, 6 and 7 have absolutely no
\nright to restrain firm from carrying on their business of running a
\ncinema house.\n<\/p>\n
3.5\tThe
\npetitioners have applied to respondent Nos.1, 2, 3 and 4 for renewal
\nof license under Bombay Cinema (Regulations) Act, 1953 and Bombay
\nCinema Rules, 1954. The petitioners have fulfilled all the requisite
\nconditions which are required to be fulfilled under said Act and
\nRules for renewal of entertainment license. Various correspondences
\nhave been exchanged between aforesaid respondent authorities and
\npetitioners in this regard.  It is submitted that as on today no
\nfurther action requires to be taken by petitioners and no further
\nrequirements need to be fulfilled by the petitioners for renewal of
\nsaid license.  Respondent Nos.5, 6 and 7, through their advocate,
\nfiled certain objections against renewal of license of petitioners
\nbefore aforesaid respondent authorities. The
\nobjections were made by respondent Nos.5, 6 and 7 with a mala fide
\nintention to harass the petitioners to damage the business and
\nreputation of petitioners and to extract money out of petitioners.
\nRespondent Nos.5, 6 and 7 have no locus standi and no right
\nwhatsoever to make said objections. Pursuant to  said objections, a
\nshow cause notice was issued to  petitioners by Additional District
\nMagistrate, Vadodara and petitioners were asked to tender their
\nwritten submissions on 02.07.2007.\n<\/p>\n
3.6\tThat
\npursuant to said show cause notice petitioners have already tendered
\ntheir written submissions on 02.07.2007. Earlier
\npetitioners had preferred Special Civil Application No.18735 of 2007
\nbefore this Hon’ble Court challenging show cause notice issued by
\nDistrict Magistrate, which came to be rejected and while rejecting
\nthe said petition this Hon’ble Court in Paragraph No.9 had observed
\nas under:\n<\/p>\n
  9.\txxx
\nxxx xxx Even otherwise also the contentions and submissions made
\nherein and grievance raised, can be raised before the competent
\nlicensing authority while answering the show cause notice and
\ncontents therein. At the same time, this Court cannot presume that
\nauthority will pass an order by not considering relevant facts
\nsubmitted by the petitioners in reply to show cause notices.
\nThereafter also if an adverse order is passed, the remedy of appeal
\nand revision is available under the statute.\n<\/p>\n
3.7\tLetters
\nPatent Appeal No.2272 of 2007 was preferred by petitioners against
\naforesaid order passed by learned Single Judge, which was withdrawn
\nvide order dated 20.02.2008. Learned Magistrate, after considering
\nall aspects of the matter, renewed  license of petitioner and
\ninformed the same to respondent No.5.  Against said order, Revision
\nApplication was filed before respondent No.1 wherein petitioners gave
\ntheir reply.\n<\/p>\n
3.8\tRespondent
\nNo.1 herein by considering totally new documents, which were not even
\npart of record, partly allowed said revision application.  It is
\nsubmitted that the impugned order is contrary to facts and evidence
\non record.  It is submitted that respondent No.1 has exceeded his
\njurisdiction while passing impugned order. It is submitted that
\nrespondent No.1 has considered certain new documents, which is not
\npermissible in exercise of his revisional jurisdiction. It is
\nsubmitted that petitioners were fulfilling requirements under
\nChapter-7 and Rules 101 to 107 of Bombay Cinema Rules, 1954. It is
\nsubmitted that respondent No.1 has completely misread and
\nmisinterpreted the order dated 18.10.2007 passed by this Hon’ble
\nCourt in Special Civil Application No.18735 of 2007. It is submitted
\nthat order of Collector renewing license in favour of present
\npetitioner was just and proper order and required no interference. It
\nis submitted that respondent Nos.5, 6 and 7 have filled different
\nproceedings before different forum, including civil court and had
\nfailed to establish even prima facie case in the property of Pratap
\nTalkies.  It is submitted that  directions given by respondent No.1
\nare beyond the scope of Bombay Cinema Regulations Act, 1953 and
\nBombay Cinema Rules, 1954. It is submitted that  impugned order is
\npassed in violation of Articles 14 and 19(1)(g) of Constitution of
\nIndia. It is submitted that though respondent No.1 has used the word
\n remand  in his order, practically, he has decided all aspects of
\nthe matter and has thus preempted the decision on remand. It is
\nsubmitted that licensing authority in any case cannot decide the
\nissue with regard to rights of a partner in a partnership firm. It is
\nsubmitted that if  learned Magistrate is to act as per direction
\nissued by respondent No.1, the same would amount to encroaching upon
\njurisdiction of civil court where civil suits are already pending.
\nHence, present petition warranting kind interference of this Hon ble
\nCourt.\n<\/p>\n
4.\tLearned
\nadvocate Mr.S.P.Majmudar challenging this order on the ground that
\nRevisional Authority has wrongly interpreted decision of this Court.
\nThe decision of this Court is based on challenge by petitioners
\nagainst show cause notice and therefore, this Court has not gone into
\nmerits of case. He relied upon Page-127 of compilation where this
\nCourt has made observations which can be raised by petitioners before
\ncompetent licensing authority while answering show cause notice and
\ncontents therein. At the same time, this Court cannot presume that
\nauthority will pass an order by not considering relevant facts
\nsubmitted by petitioners in reply to show cause notices. However, in
\ncase if any adverse order is passed, remedy of appeal and revision is
\navailable under the statute to petitioners. Therefore, learned
\nadvocate Mr.Majmudar submitted that  rather emphasized it that there
\nis no observations made by this Court in SCA No.18735 of 2007 dated
\n18.10.2007 on merits. He relied upon order passed by licensing
\nauthority (Page-133) where licence of Pratap Cinema has been renewed
\nsubject to final out come of Regular Civil suit No.198 of 2007. He
\nfurther submitted that Addl. District Magistrate, Baroda by order
\ndated 15.5.2008 rightly renewed licence of Pratap Cinema after
\nconsidering objection raised by Smt. Virmatiben Dipakbhai Mistri
\ndated 27.12.2006. he submitted that this order has been passed by
\nAddl. District Magistrate, Baroda after giving personal hearing to
\nrespective parties on 12.5.2008. He also referred Page-267 where
\norder has been passed by  Revisional Authority on 3.7.2010 and
\nreferring Page-271 submitted that Revisional Authority has almost
\ndirected to District Magistrate, Baroda how to pass the order and
\nwhat facts and material is required to be considered is specified.
\nTherefore, it amounts to determination of facts by Revisional
\nAuthority and thereafter, matter has been remanded back to District
\nMagistrate, Baroda. Therefore, such remand order is illegal and
\ncontrary to principles of natural justice. He submitted that certain
\ndirections have been issued as to what are the materials is required
\nto be considered before renewing licence of petitioners in respect to
\nPratap Cinema, Baroda. Therefore, no discretion is remained with
\nDistrict Magistrate, Baroda for renewal of licence ignoring such
\ndirection which has been issued by Revisional Authority. Therefore,
\nsuch order is bad. He also submitted that direction which has been
\nissued by Revisional Authority in respect to dispute raised by
\nrespondents in Civil suit and same observations which has been made
\nby Revisional Authority which exceeds its jurisdiction and though
\nspecific contentions have been raised before Revisional Authority
\n(Page-135) new facts and documents do not require to be considered,
\neven though Revisional Authority has considered new facts and
\nevidence while deciding revision application. Therefore, order passed
\nby Revisional Authority is bad and illegal and therefore, order of
\nremand to District Magistrate, Baroda by Revisional Authority is
\nillegal and contrary to basic principles of natural justice. He
\nsubmitted that Rule 107 of the Rules for renewing  licence has been
\ncomplied with by petitioners and subject to Rule 102   105, the
\npetitioners have complied with it by filing application which
\nrequired to be followed under the provisions of the Bombay Cinema
\nRules,1954 have also been complied with by petitioners. Therefore,
\nDistrict Magistrate, Baroda, having a limited jurisdiction whether
\nRule for having licence of renewal under Bombay Cinema Rules,1954 has
\nbeen complied with by petitioners or not and District Magistrate,
\nBaroda has no jurisdiction to decide merits or rights of either
\nparties in respect to civil suit which is pending before the Civil
\nCourt, Baroda. He relied upon the decision of Apex Court in case of
\nKrishna Kishore Fir v. The Govt. of A.P. And Others,<\/a> reported in AIR
\n1990 SC 2292. Relevant observations of aforesaid decision are in
\nPara.4 and 5 which are quoted as under :\n<\/p>\n
 4.
\nTrue the appellant was neither owner nor lessee. Yet was his
\npossession forbidden in law? Was there no excuse for his possession?
\nThe error committed by High Court was to equate lawful with legal.
\nLegal and lawful, normally, convey same sense and are usually
\ninterchangeable. What is legal is lawful. But what is lawful may be
\nso without being formally legal. “The principal distinction
\nbetween the terms ‘lawful’ and ‘legal’ is that former contemplates
\nthe substance of law, the latter the form of law. To say of an act
\nthat it is lawful implies that it is authorised, sanctioned or at any
\nrate not forbidden by law”9. Same thought about lawful has been
\nbrought out by Pollock and Wright by explaining that “Lawful
\nPossession” means a legal possession which is also rightful or
\nat least excusable. Thus that which is not stricto legalo may yet be
\nlawful. It should not be forbidden by law. In fact legal is
\nassociated with provisions in the Act, rules etc. whereas lawful
\nvisualises all that is not illegal against law or even permissible.
\nLawful is wider in connotation than legal. Although provision in
\nSpecific Relief Act empowering a person or tenant to recover
\npossession if he has been evicted forcibly by the Landlord may be
\njuridical and not lawful or a tenant holding over is not in lawful
\npossession unless landlord agrees or acquiesces expressly or
\nimpliedly but that does not alter the legal position about possession
\nof a person not legal yet not without interest. The provision in
\nspecific Relief Act is founded more on public policy than on
\njurisprudence. But concept of lawful as opposed or in
\ncontradistinction to litigious assumes different dimension. M. C.
\nChockalingam v. M. Manichavasagam, (1974) 2 SCR 143: (AIR 1974 SC\n<\/p>\n
104) is of no help as it was concerned with possession which could
\nnot be said to be warranted or authorised by law. Distinction between
\nnature of possession of a lessee after expiry of period of lease can
\nbetter be explained by resorting to few illustrations. For instance a
\nlessee may before expiry of lease acquire entire lessor’s interest
\nresulting in “drowning” or “sinking” of inferior
\nright into superior right. That is right of one merges into Another.
\nIt has been statutorily recognised by Section 111 (d) of Transfer of
\nProperty Act. Similarly a tenant after expiry of period of lease may
\nbe holding over and the lessor may acquiesce in his continuance
\nexpressly or impliedly. That is from conduct of lessor the tenant’s
\npossession may stand converted into lawful. The other may be where
\nlessor may not agree to renew the lease nor he may acquiesce in his
\ncontinuance. Such a lessee cannot claim any right or interest. His
\npossession is neither legal nor lawful. Such was the Chockalingam’s
\ncase (supra). The Court held that continuance of lessee’s possession
\nafter expiry of period of lease was not lawful for purposes of
\nrenewal of licence under Madras Cinema Regulation Act 1955 obviously
\nbecause lessee was left with no interest which could furnish any
\nexcuse or give it even colour of being legal.\n<\/p>\n
5.
\nYet another illustration may be, not very common where lessee
\nacquires some interest in part of the undivided property as in
\npresent case. Can it be said in such a case on ratio of
\nChockalingarm’s (AIR 1974 SC 104) authority that possession of such
\nlessee or to be more specific of appellant was unwarranted or
\ncontrary to law: Share of V. V. in 7000 sq. yds. was half. He had
\nagreed to sell his half interest. V. V. was joint owner with his son
\nand grandson. He had “both single possession and a single joint
\nright to possess”. Whether such joint owner could transfer his
\nshare even when he was not in exclusive possession and what would be
\neffect of such transfer need not be gone into as title suit is
\npending between parties but when a person having physical control
\nacquires an interest to hold or continue by virtue of an agreement of
\nsale it cannot be said that he had no interest and his possession was
\nforbidden by law. The High Court lost sight of the fact that by
\nvirtue of the transaction entered between V. V. and appellant which
\nwas not challenged by him nor any cloud was cast over it by creating
\nany subsequent interest the appellant may not have become owner but
\nhe could certainly claim that he was in lawful possession. In law he
\nwas entitled to file suit for specific performance if there was any
\nthreat to his right or interest by V. V. Such right or interest could
\nnot be termed as litigious. It was at least not without any excuse or
\nforbidden by law. In Words and Phrases Permanent Edition Vol. 25A,
\n2nd reprint 1976 a somewhat similar situation was described as not
\nlitigious:\n<\/p>\n
“Where
\nclient conveyed undivided half-interest in land to attorney in
\nconsideration of attorney’s rendering services and paying court
\ncosts, giving irrevocable power of attorney to sue, settle, or
\ncompromise, attorney received good title as third person purchasing
\nupon faith of public records, precluding reformation as against
\nattorney, on the strength of an instrument recorded after deed to
\nattorney and client claimed title, as against contention that
\nattorney acquired a “litigious right”.”\n<\/p>\n
4.1\tLearned
\nadvocate Mr.Majmudar also relied upon another decision of Apex Court
\nin case of Union of India through Dy. Salt Commissioner, Bombay v.
\nShri Puranmal Lalchand Mundra and Anr.,<\/a> reported in AIR 1996 SC 3195.
\nRelevant observations of aforesaid decision are in Para.6 which is
\nquoted as under :\n<\/p>\n
 6.
\nIn view of the fact that the title is yet to be decided, the
\nrespondents are directed to make an application before the District
\nCollector. The District Collector is directed to enquire whether the
\nrespondents have title to the property taking into account the
\nstatutory vesting under the provision of the Act as also any other
\ndocuments to be produced by the respondents or the State Government
\nor the appellant, as the case may be.  After hearing the parties and
\ngiving opportunity, the matter will be disposed of within a period of
\nsix months from the date of the receipt of this order.  Until then,
\nthe appellant is directed to renew the licence under the Salt Act.
\nIt will be subject to the result in those title suits.\n<\/p>\n
4.2\tIn
\nshort, his submission is that details reasons have been given by
\nRevisional Authority discussing the merits of matter for which civil
\nsuit No.198 of 2007 is pending before Civil Court, Baroda and
\ntherefore, subject to rights of the respective parties from outcome
\nof civil proceedings, licence must have to be renewed by authority,
\neven though Revisional Authority has not considered it and exceeded
\nits jurisdiction while issuing certain directions to District
\nMagistrate, Baroda while remanding back matter to District
\nMagistrate, Baroda. He also submitted that Revisional Authority has
\ncommitted gross error in coming to conclusion that order which has
\nbeen passed by District Magistrate, Baroda dated 15.5.2008 is without
\nany detailed reasons and being a short order granted renewal of
\nlicence in favour of present petitioners without considering dispute
\nraised by Smt.Virmatiben Dipakbhai Mistri. He also submitted that
\nobservations, which have been considered by Revisional Authority, of
\nthis Court in Para.9 of the order dated 18.10.2007 are irrelevant
\nconsideration made by Revisional Authority which having adverse
\neffect to the rights of respective parties in respect to civil
\nproceedings which are pending before Civil Court, Baroda. Except
\nthat, no other submissions is made by learned advocate Mr.Majmudar
\nbefore this Court.\n<\/p>\n
5.\tLearned
\nAGP Ms.Jirga Jhaveri appearing for respondent No.1 submitted that
\nRevisional Authority by order dated 3.7.2010 rightly examined matter
\nhaving its jurisdiction to consider objection raised by
\nSmt.Virmatiben D. Mistri and it is also necessary to examine certain
\naspects of merits while renewing licence by competent authority. She
\nsubmitted that  order passed by this Court in SCA No.15361 of 2007
\nhas observed certain aspects on merits which has been rightly
\nappreciated and considered by Revisional Authority which is otherwise
\nbinding to Revisional Authority and that decision of this Court has
\nremained intact because LPA No.2272 of 2007 has been withdrawn by
\npetitioners on 20.12.2007. She also submitted that it is open for
\npetitioners to make their submissions or to raise all the objections
\nbefore District Magistrate, Baroda against representation made by
\nSmt.Virmatiben D. Mistri. Therefore, according to her submission, at
\nthis stage, any presumption made by learned advocate Mr.Majmudar has
\nno place because after all, all  respective parties must have to
\nsubmit their case before the District Magistrate, Baroda and after
\nconsidering it, as per directions issued by Revisional Authority,
\nDistrict Magistrate, Baroda must have to pass reasoned order and if
\ndecision of District Magistrate, Baroda is against present
\npetitioners, then petitioners are having remedy to again file
\nrevision before Revisional Authority against order of District
\nMagistrate, Baroda. Therefore,  petitioners are not remediless but
\nentitled to challenge it in case if adverse order is passed by
\nDistrict Magistrate, Baroda against present petitioners. She also
\nsubmitted that no error is committed by Revisional Authority in
\npassing such order dated 3.7.2010 and there is no jurisdictional
\nerror committed by Revisional Authority and there is no determination
\non merits is made by Revisional Authority in respect to rights of
\neither parties pending in civil suit No.198 of 2007. Therefore, no
\ninterference is required by this Court while exercising powers under
\nArticles 226\/227 of the Constitution of India.\n<\/p>\n
6.\tI
\nhave considered submissions made by both learned advocates and also
\nperused order passed by District Magistrate, Baroda dated 15.05.2008
\nand order passed by this Court in Special Civil Application No.18735
\nof 2007 dated 18.10.2007 as well as order dated 20.02.2008 passed in
\nSCA No.15361 of 2007 and also order passed in Special Civil
\nApplication No.4157 of 2010 dated 09.04.2010. The question is that
\nthere is a dispute between the parties- Smt.Virmatiben D.Mistri and
\npresent petitioners in respect to property which is the subject
\nmatter of Regular Civil Suit No.198 of 2007. The Revision Application
\nhas been preferred by Smt.Virmatiben D.Mistri on 16.06.2008
\nchallenging order passed by District Magistrate, Baroda dated
\n15.05.2008. According to facts, Smt.Virmatiben D.Mistri, Shri Vijay
\nMistri and Shri Subhash Mistri are the members of one family. The
\nmanagement of Pratap Cinema was initially managed by husband of
\nSmt.Virmatiben D.Mistri being a partner of partnership firm as per
\npartnership agreement dated 15.04.1965. Unfortunately, Shri Dipak
\nMistri has expired on 19.05.1979 and thereafter according to
\nallegation made by  Smt.Virmatiben D.Mistri, entire property has been
\nillegally and with collusion taken away in their hands by
\npetitioners. One forged \/ fake partnership deed has been created in
\nthe year 1979 without consent and informing to Smt.Virmatiben
\nD.Mistri, against which civil proceedings are going on. The
\npetitioners have obtained licence of Pratap Cinema, against which
\nobjection was filed by  Smt.Virmatiben D.Mistri which has not been
\nconsidered by District Magistrate, Baroda and District Magistrate,
\nBaroda has renewed it by order dated 15.5.2008 subject to result of
\nCivil Suit No.198 of 2007. The petitioners preferred SCA No.18735 of
\n2007 wherein certain directions have been issued by this Court by
\norder dated 18.10.2007 which are relevant and therefore, same have
\nbeen considered by Revisional Authority. According to Smt.Virmatiben
\nD.Mistri, this partnership firm of Pratap Cinema started w.e.f.
\n1.1.1948 and deed was made on 2.12.1949. Thereafter, it was amended
\non 28.9.1951 and 7.10.1956 where Shri Naranbhai Bhaichandbhai Mistri
\nand Bhikhubhai Naranbhai Mistri were taken up as a partners and owner
\nof Pratap Cinema has decided to obtain monthly rent from owner of
\nPratap Cinema. These facts have been proved on the basis of
\nincome-tax order produced by  Smt.Virmatiben D.Mistri. On 15.4.1965,
\nbecause of the death of Naranbhai Bhaichandbhai Mistri, new
\npartnership has come into existence between Shri Bhikhubhai Narandas
\nMistri, Shri Dipakbhai Bhikhubhai Mistri and Vijaybhai Bhikhubhai
\nMistri. This fact is also proved by  Smt.Virmatiben D.Mistri on the
\nbasis of income-tax order for the year 1966-67. On 19.5.1979, Shri
\nDipakbhai Mistri died and thereafter, another amendment is made in
\nthe partnership firm or new partner has been taken up  in partnership
\nfirm or not, for that no documents have been produced by petitioners
\nbefore District Magistrate, Baroda inspite of demanding it and facts
\nare not disclosed by petitioners before District Magistrate, Baroda
\nas to what happened to partnership firm after death of Shri Dipakbhai
\nMistri on 19.5.1979. Therefore, a doubt is created  by
\nSmt.Virmatiben D.Mistri that in light of this, in respect to
\nownership of Pratap Cinema and parterns as well as licensee who are
\nconcerned persons, that fact is not made clear by petitioners before
\nDistrict Magistrate, Baroda and whether subsequent to the death of
\nShri Dipakbhai Mistri, any new partnership agreement has been arrived
\nor not and if it is arrived, between whom. The Revisional Authority
\nhas fixed hearing on 16.4.2009, at that occasion  Smt.Virmatiben
\nD.Mistri remained present and in writing, submission is made on
\n6.4.2009. At that occasion, Shri Subhashbhai Mistri and Shri
\nVijaybhai Mistri also remained present and written submissions also
\nmade by them on 6.4.2009. That  Smt.Virmatiben D.Mistri has also
\nproduced certain documents, orders as well as property card No.20446
\nto 20457, 27981, 16871, 18689 as well as record produced of city
\nsurvey office, Baroda. According to Shri Subhashbhai Mistri and Shri
\nVijaybhai Mistri in respect to property belonged to Pratap Cinema and
\nalso in respect to licence of cinema, one Civil Suit No.322 of 2006
\nis pending and another Civil Suit No.198 of 2007 in respect to
\nrenewal of licence is also pending before the Civil Court, Baroda.
\nTherefore, according to them, licence is to be renewed subject to
\nfinal outcome of civil proceedings and revision which has been filed
\nby  Smt.Virmatiben D.Mistri is required to be rejected. The
\nRevisional Authority has demanded new partnership deed or subsequent
\npartnership deed after death of Shri Dipakbhai Mistri on 19.5.1979
\nfrom both petitioners. But both petitioners have made clear before
\nRevisional Authority that they do not have any subsequent partnership
\ndeed of the year 1979 and as and when it will be available, they will
\nproduce before the Revisional Authority. That  Smt.Virmatiben
\nD.Mistri has made written submission to Revisional Authority that
\nShri Subhashbhai Mistri and Vijaybhai Mistri have produced one
\ndocument dated 19.5.1979 before the Civil Court in Special Suit
\nNo.322 of 2006 that has been considered to be a draft document, then
\non the basis of draft document, new entry can not be made before the
\nRegistrar of Firms in  G  form. Therefore, in the aforesaid  G
\nform, it has been made clear that because Shri Dipakbhai Mistri has
\ntendered resignation, one Shri Subhash Mistri has been taken as a new
\npartner w.e.f. 20.5.1979. So entry which has been made before
\nRegistrar of Firm in the year 1979 must be made on the basis of
\noriginal partnership deed and without having valid partnership deed
\nand considering draft partnership deed, such entry cannot be made in
\nRegistrar of Firm in the year 1979. Therefore,  Smt.Virmatiben
\nD.Mistri has made representation to Revisional Authority  that let
\nShri Subhashbhai Mistri may file affidavit against letter dated
\n29.3.2010 in the department of Revisional Authority. Thereafter, Shri
\nSubhashbhai Mistri has filed affidavit on 14.5.2010 before Revisional
\nAuthority and according to facts narrated in the affidavit, after
\ndeath of his brother Shri Dipakbhai Mistri, on what basis said entry
\nhas been made in Registrar of Firm, he is not having any knowledge
\nand dispute which has been raised by  Smt.Virmatiben D.Mistri cannot
\nbe taken into account because it is a subject matter of Civil Suit
\nNo.322 of 2006. But Revisional Authority must have to consider
\nprovisions of Clause-8 of  the Bombay Cinema Rules,1954 and no new
\ndocument has been considered by Revisional Authority.\n<\/p>\n
7.\tIn
\nlight of this factual background, whether after death of Shri
\nDipakbhai Mistri, any subsequent new partnership deed has been
\narrived at between partners and whether any new partners have been
\nincorporated in partnership firm or not, for that no documents have
\nbeen produced by petitioners before Revisional Authority. The main
\naspect is that Smt.Virmatiben D.Mistri having any right over the
\nproperty of Pratap Cinema and this being a family dispute between
\nheirs of respective partners, for that the matter is pending before
\nthe Civil Court in respect to Civil Suit No.322 of 2006 and Regular
\nCivil Suit No.198 of 2007. The petition which was filed by
\npetitioners before this Court being SCA No.18735 of 2007 wherein
\ncertain observations made by this Court on 18.10.2007 and
\nobservations made in Para.9 has been considered by Revisional
\nAuthority. Thereafter, appeal preferred before the Division Bench of
\nthis Court being LPA No.2272 of 2007 where on 20.12.2007, petitioners
\nwere directed to produce on record the partnership deed which was
\nre-constituted upon death of husband of Smt.Virmatiben D.Mistri and
\nthat be produced within 3 days.   That said LPA was withdrawn by
\npetitioners on 20.2.2008. Therefore, order passed by this Court on
\n18.10.2007 and 20.12.2007 remained intact and in light of facts,
\naccording to Revisional Authority while considering application for
\nrenewal of licence of Pratap Cinema, at least District Magistrate,
\nBaroda must have to consider observations made by this Court in
\naforesaid two orders. In respect to legal rights of Smt.Virmatiben
\nD.Mistri in the property of Pratap Cinema being a subject matter of
\ncivil proceedings but, Revisional Authority has rightly come to
\nconclusion that before granting renewal of licence of Pratap Cinema,
\ntwo orders which have been passed by this Court in SCA No.18735 of
\n2007 dated 18.10.2007 and order dated 20.12.2007 in LPA No.2272 of
\n2007 which remained intact and not set aside by higher authority.
\nTherefore, on the basis of aforesaid facts keeping in mind without
\ndetermining any rights of either party, certain directions have been
\nissued while exercising powers under Section 10 of the Gujarat Cinema
\nAct,2004 and also directed to District Magistrate, Baroda to decide
\nwithin 45 days while remanding matter back to District Magistrate,
\nBaroda. The Revisional Authority has directed to pass appropriate
\norders after giving reasonable opportunity of hearing to respective
\nparties and also require to file affidavit by respective parties and
\nalso to consider observations made by this Court as referred above
\ndated 18.10.2007 and order which was passed by District Magistrate,
\nBaroda while giving renewal of licence on 15.5.2008 which  amounts to
\nunreasoned order. Therefore, District Magistrate, Baroda must have to
\npass reasoned order considering what is the position of
\nSmt.Virmatiben D.Mistri in light of partnership deed after the death
\nof Shri Dipak Mistri, which has not been produced on record and what
\nhappened to partnership deed and whether Smt.Virmatiben D.Mistri
\nhaving any right in place of her husband in the partnership firm or
\nnot and looking to entry of retirement of Shri Dipakbhai Bhikhubhai
\nMistri in Form  G  dated 26.2.1980 and on basis of this entry,
\nwhat is the status of partnership firm in the year 1979 is required
\nto be examined by District Magistrate, Baroda and whatever agreement
\nhas been produced by petitioners in the year 1979, this being a draft
\ndocuments of partnership firm and whether it has been registered
\nbefore  Registrar of Firm or not and what would be the legal effect
\nof partnership deed or agreement  for the year 1979 which required to
\nbe considered by District Magistrate, Baroda and to examine whether
\nbecause of death of Shri Dipak Mistri husband of Smt.Virmatiben
\nD.Mistri, what would be the legal position or status of
\nSmt.Virmatiben D.Mistri in the partnership firm of Pratap Cinema, is
\nalso required to be considered by District Magistrate, Baroda while
\nconsidering application made by petitioners for renewal of licence of
\nPratap Cinema.\n<\/p>\n
8.\tThe
\nrelevant discussion made by this Court on the basis of facts and
\nafter considering submission made by respective parties before this
\nCourt in SCA No.18735 of 2007 dated 18.10.2007, are in Para.9, 9\/1 to
\n9\/4 which are quoted as under :\n<\/p>\n
 9.\tHaving
\nheard learned counsels for the parties and considering the facts and
\ncircumstances of the case and on perusal of the record, I am not
\ninclined to accept the submissions of learned counsel appearing for
\nthe petitioners on the ground that to claim the license under Bombay
\nCinema Rules, 1954 is simply a fundamental right subject to
\nreasonable restrictions.  Article 19(1)(g) of the Constitution of
\nIndia which gives citizens freedom to trade anywhere in the country
\nis also subject to reasonable restrictions.  Issuance of show cause
\nnotice and asking the petitioners to appear before the authority to
\nexplain the case indicate that there is no violation of principles of
\nnatural justice.  According to this Court, while issuing\/renewing the
\nlicense, the concerned authority conduct a bonafide preliminary
\ninquiry in the nature of fact finding about the right, title etc. of
\nthe petitioners seeking renewal of license cannot be said an exercise
\nwithout jurisdiction and illegal.  Not only that but it is bounden
\nduty of the licensing authority to ascertain the genuine and existing
\ntitle of the applicant in whose name license is to be issued or
\ngranted.  Even otherwise also the contentions and submissions made
\nherein and grievance raised, can be raised before the competent
\nlicensing authority while answering the show cause notice and
\ncontents therein.  At the same time, this Court cannot presume that
\nauthority will pass an order by not considering relevant facts
\nsubmitted by the petitioners in reply to show cause notices.
\nThereafter also if an adverse order is passed, the remedy of appeal
\nand revision is available under the statute.\n<\/p>\n
9.1.\tIt
\nis true that the petitioners has not challenged the notice dated
\n23\/27.7.2007 by which the authority has asked the petitioners to show
\ncause why license granted to the petitioners should not be cancelled
\nand even after submitting to the jurisdiction of the authority under
\nthe Act, without any challenge to the above notice the petitioners
\nhave raised various issues for which this Court cannot render any
\ndecision.\n<\/p>\n
9.2.\tSo
\nfar as exercise of power under Article 226 and 227 of the
\nConstitution of India is concerned and where writ of certiorari is to
\nbe issued in exercise of the above power, the Apex Court has laid
\ndown certain principles in the case of Surya Dev Rai v. Ram
\nChander Rai and Ors.<\/a> reported in AIR 2003 SC 3044.\n<\/p>\n
9.3.\tIn
\nview of the principles laid down by the Apex Court and particularly
\npara 38, this is not a fit case were writ of certiorari can be issued
\nin as much as show cause notice issued by the authority for seeking
\nexplanation about objections raised by the objector cannot be said to
\nbe an exercise undertaken by the authority without there being any
\njurisdiction.  The above show cause notice is only with a view to
\narrive at a satisfaction about status of the applicant and any
\npreliminary inquiry in this regard is not outside the preview of
\npowers of the licensing authority as envisaged under the Rule 101 to
\n107 of the Bombay Cinema Rules, which requires any interference by
\nthis Court in exercise of powers under Article 226 and 227 of the
\nConstitution of India.\n<\/p>\n
9.4.\tThe
\nabove decision of the Apex Court rendered in context of writ
\npetitions filed against interlocutory orders passed by the Court,
\nsubordinate to High Courts and exercise of power under Article 226
\nand 227 of the Constitution of India, is equally applicable where
\nwrit of certiorari is sought to be issued by the Court against the
\nstatutory authorities exercising power under the statute.\n<\/p>\n
9.\tThe
\naforesaid observations made by this Court wherein it is made clear by
\nthis Court that licensing authority while issuing or renewing licence
\nmust conduct a bonafide preliminary inquiry in the nature of fact
\nfinding about the right, title etc. of petitioners seeking renewal of
\nlicence cannot be said an exercise without jurisdiction and illegal.
\nNot only that but it is bounden duty of licensing authority to
\nascertain genuine and existing title of applicant in whose name
\nlicence is to be issued or granted. This Court has also further
\nobserved that this show cause notice is only with a view to arrive
\nat a satisfaction about status of applicant and any preliminary
\ninquiry in this regard is not outside the preview of powers of the
\nlicensing authority as envisaged under the Rule 101 to 107 of Bombay
\nCinema Rules. Therefore, in view of aforesaid observations made by
\nthis Court, licensing authority must have to consider status of
\npetitioners, for that limited preliminary inquiry is permissible and
\nwithin jurisdiction of authority. The aforesaid order remained intact
\nthough challenged in LPA by petitioners as said appeal was withdrawn
\nby petitioners. Therefore, in light of aforesaid observations made by
\nthis Court and accordingly, relying upon it, because decision of this
\nCourt is binding to petitioners, now the petitioners cannot challenge
\nobservations made by this Court in aforesaid decision because it is
\nbinding to them. The Revisional Authority has not exceeded its
\njurisdiction because Revisional Authority has simply directed to
\nDistrict Magistrate, Baroda to consider observations made by this
\nCourt and also observations made by this Court in LPA NO.2272 of 2007
\ndated 20.12.2007 where direction was issued to petitioners to produce
\non record partnership deed which was re-constituted upon death of
\nhusband of  Smt.Virmatiben
\nD.Mistri. But that document was not produced before this Court and
\nultimately, appeal was withdrawn on 20.2.2008 by petitioners.
\nTherefore, merely giving some guidelines how to consider renewal
\napplication for licence submitted by petitioners, that does not mean
\nthat Revisional Authority decided merits of the matter while
\nremanding back matter to District Magistrate, Baroda. The Revisional
\nAuthority merely discussed it which cannot consider to be
\ndetermination. Therefore, contentions which have been raised by
\nlearned advocate Mr.Majmudar in light of observations made by this
\nCourt as well as Revisional Authority, cannot be accepted. The
\ndecisions which have been relied upon by learned advocate Mr.Majmudar
\nare not applicable to
\nfacts of present case because both decisions are based on different
\nfacts which are not relevant considering submissions made by learned
\nadvocate Mr.Majmudar. Therefore, aforesaid both decisions  are not
\napplicable and helpful to him.\n<\/p>\n
10.\tIn
\nview of above observations made by this Court and considering detail
\nreasons given by Revisional Authority, according to my opinion,
\nRevisional Authority having jurisdiction to have some preliminary
\ninquiry as considered by this Court in Para.9 of order dated
\n18.10.2007 and for that, it cannot consider that such kind of
\npreliminary inquiry about considering the status of present
\npetitioners and also status of Smt.Virmatiben D.Mistri, for that
\nlimited preliminary inquiry is not outside the purview or powers of
\nlicensing authority under Rule 101 to 107 of Bombay Cinema Rules.
\nTherefore, same aspect has been considered by Revisional Authority
\nwhile remanding back matter to District Magistrate, Baroda. For that
\naccording to my opinion, Revisional Authority has not committed any
\nerror which requires interference by this Court. The Revisional
\nAuthority has rightly dealt with matter and also properly considered
\nthe issues and legal order has been passed by Revisional Authority
\nwhich will not adversely affect right of either party while
\nconsidering renewal of licence application submitted by petitioners
\nand after giving reasonable opportunity of hearing to all respective
\nparties to pass a reasoned order while keeping in mind observations
\nmade by this Court as referred above. For that, according to my
\nopinion, Revisional Authority has not committed any error which
\nrequires interference by this Court while exercising powers under
\nArticle 226\/227 of the Constitution of India. Hence,
\nthere is no substance in present petition. Accordingly, present
\npetition is dismissed.\n<\/p>\n
11.\tIt
\nis also necessary to note that whatever grievance has been raised by
\npetitioners before this Court, they may also entitle to raise before
\nDistrict Magistrate, Baroda when matter will be examined by District
\nMagistrate, Baroda after receiving remand order from Revisional
\nAuthority. Therefore also, there is no scope to interfere with the
\norder passed by Revisional Authority. In case if, after remand the
\nDistrict Magistrate, Baroda will pass any order against petitioners
\nor petitioners will be aggrieved by it, then also remedy of revision
\nis available to petitioners. Therefore, this being an additional
\nground  for not interfering with the order passed by Revisional
\nAuthority.\n<\/p>\n
(H.K.RATHOD,J.)<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pratap vs State on 11 August, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/9345\/2010 24\/ 24 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9345 of 2010 ========================================================= PRATAP TALKIES & 2 – Petitioner(s) Versus STATE OF GUJARAT & 6 – Respondent(s) ========================================================= Appearance […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-102141","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPratap vs State on 11 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pratap-vs-state-on-11-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pratap vs State on 11 August, 2010 - 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