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Judgment
S. Nagamuthu, J.—Whether, non observance of the principle, ""Audi Alteram Partem"", a fundamental maxim of the concept of ""natural
justice,"" would vitiate an order made by the Government under the Tamil Nadu Cinemas (Regulation) Act? A procedure, unknown to law, being
followed for years, is put under challenge in this writ petition by the aggrieved.
The petitioner is the Proprietor of a cinema theatre known as ""M/s. Mani''s Theatre"" at Peelamedu, Coimbatore. On 10.11.2007, according to
the respondents, a surprise inspection was made by the Revenue Divisional Officer, Coimbatore during which, it was found that the petitioner had
sold tickets for higher rates than the prescribed rates. The petitioner is alleged to have given a statement admitting his guilt. Thereafter, the Revenue
Divisional Officer submitted a report in this regard to the third respondent for necessary action as per the provisions of the Tamil Nadu Cinemas
(Regulation) Act, 1955 (hereinafter referred to as ""the Act""). A show cause notice was issued by the third respondent to the petitioner calling upon
him to explain as to why action should not be taken against him to suspend the licence for which, denying the allegations, the petitioner submitted
an explanation. Rejecting the same, by his proceedings in Na.Ka. No. 54502/2007/U2 dated 20.12.2007, the District Collector, Coimbatore
imposed a punishment of suspension of licence for a period of seven days.
Challening the same, the petitioner preferred an appeal and the same was rejected by the second respondent by order dated 28.04.2008.
Aggrieved over the same, the petitioner preferred a revision before the first respondent u/s 9(B) of the Act. Rejecting the same, the first respondent
has issued G.O.(D) No. 1188 Home (Cinema) Department dated 04.11.2008. Challenging the said G.O., the petitioner is now before this Court
with this writ petition.
Though several grounds have been raised, the learned Counsel for the petitioner would mainly contend that the impugned order has been passed
by the first respondent without following the principles of natural justice and without following the due process of law as provided in the Act itself,
inasmuch as the revision petition was heard by an Additional Secretary in the Department whereas, the impugned order was passed by the
Principal Secretary to Government. He would submit that this procedure is illegal and on this ground alone, the impugned order is liable to be set
aside.
The learned Special Government Pleader appearing for the respondents has produced the entire file of the first respondent relating to this case.
One Mr. A. Mani, presently, the Additional Secretary to the Government, Home Department, is also present in Court to instruct the learned
Special Government Pleader.
On the basis of the original records and on instructions, the learned Special Government Pleader would fairly submit that the arguments were
heard by the Additional Secretary, but the impugned order was passed only by the Principal Secretary to Government. However, she would
contend that the principal Secretary has passed the impugned order only after thoroughly analysing the entire case and so there is no question of
violation of principles of natural justice. She would therefore pray for dismissal of the writ petition.
On my part, I have perused the file thoroughly which reveal the following facts:
(i) The revision memorandum was submitted by the petitioner on 22.05.2008 with prescribed fees.
(ii) The hearing was fixed on 10.01.2008. As per the note made by a Section Officer, the records were placed before the Joint Secretary
(Cinema) for hearing. Mr. A. Mani, present today before this Court, the then Joint Secretary to Government, heard the oral submissions made by
the learned Counsel for the petitioner on 10.09.2008 and recorded the notes of arguments in the file. At the end of the day''s proceedings, he had
issued an instruction to the Office to prepare a detailed note and put up the same for orders by the Principal Secretary.
(iii) In pursuance of the said instruction of the Joint Secretary, the Section Officer has prepared an office note wherein he has narrated the facts
relating to the order of the Appellate Authority and the notes of arguments as taken down by the then Joint Secretary. In paragraph No. 5 of the
note, he has stated as follows:
In the circumstances, it is for orders - Whether the revision petition submitted by the licensee M/s. Mani''s Theatre, Coimbatore may be rejected
confirming the orders of the Assistant Commissioner (Cinema)
Or
Whether the request of the revision petitioner to set aside the orders of the Collector, Coimbatore may be accepted. After orders are passed, a
circulation note will be put up.
(iv) Based on the above office note, the Principal Secretary to Government has passed the following order:
XX above may be done
(v) Pursuant to the said order of the Principal Secretary, which is a non speaking order, another office note for circulation was prepared by the
Section Officer. The same was approved by the Under Secretary (Citizenship), Joint Secretary (Cinema & Prisons), Principal Secretary and finally
by the Hon''ble Minister for Information. Thereafter, the impugned order has been issued.
The above narration of facts culled out from the records would go to show that the first respondent has misdirected herself as though the matter
being dealt with by her relates to an administrative function whereas, indeed the same is only a quasi judicial function. It need not be over
emphasised that there is a world of difference between an administrative function and a quasi judicial function by any public authority. It is, now,
beyond any controversy that an order u/s 9(B) of the Act, is a quasi judicial order and it can never be treated either as an administrative or an
executive order.
At this juncture, it would be useful to refer to sub Clauses 1 and 2 of Section 9-B of the Act which read as follows:
9-B. Powers of revision by Government.- (1) The Government may on their own motion or on application, call for and examine the record of the
appellate authority in respect of any proceeding u/s 5(7) or Section 9-A to satisfy themselves as to the legality of such proceeding or the
correctness, legality or propriety of any decision passed or order made therein, and if, in any case, it appears to the Government that any such
proceeding, decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly;
Provided that every application to the Government for the exercise of the powers under this section shall be preferred within such time as may be
prescribed and shall be accompanied by such fee as may be prescribed.
(2) No order prejudicial to any person shall be passed under Sub-section (1) unless such person has been given an opportunity of making his
representations.
(Emphasis supplied)
Sub Clause 2 of Section 9B leaves no doubt that the statute itself mandates that before passing any adverse order against any individual,
opportunity of making representation should be afforded to.
In G. Alagiri Vs. Collector of Thanjavur and Others, , while dealing with more or less an identical situation, this Court has held as follows:
The entire scheme of the provisions of Section 9A of the Act and Rule 47A of the Rules posits judicial procedure and hence it has to be stated that
the Government, while dealing with the revision under the Act read with rules, acts as a quasi-judicial tribunal. Hence, the Government while
disposing of a revision petition must assign reasons for the decision. The necessity for giving reasons arises because the decision of the Revisional
Authority is likely to be subject to scrutiny by the High Court under Article 226 of the Constitution.
(Emphasis supplied)
Subsequently, approving the view taken in Alagiri''s case (cited supra), another Division Bench of this Court in N.R. Chinnasamy Chettiar and
Another Vs. The State of Tamil Nadu and Others, has emphasized the need for passing a speaking order by the revisional authority which would
reflect the application of mind into the factual and legal aspects of the matter.
In yet another judgment of a Division Bench of this Court in Mariappan v. State of Tamil Nadu 1991 (1) MLJ 427, it has been held as follows:
Viewed from a broad perspective, the provisions of the Act and the Rules are intended to regulate exhibition of cinematograph films. Any error
which requires correction, or any impropriety which has crept into the proceeding, the decision or the order or any illegality which has tainted such
proceeding, decision or order could be set aright and rectified, only if the revisional authority possesses the power to review the entire case both
from the factual and legal angle. If a restraint is to be put on the revisional authority with regard to the appraisal or fresh appraisal or reappraisal of
the factual materials relating to the relevant aspects, which should govern and weigh with it, the very power of revision will become nugatory.
Thus, the law is very clear that the power of the revisional authority under the Act is a quasi judicial power and so the revisional authority
should follow the principles of natural justice inasmuch as sufficient opportunity of representation should be given to the parties. Such opportunity
should be real and the same should not be treated as an empty formality. Finally, a speaking order should be passed reflecting application of mind
and stating the reasons for the conclusions arrived at.
As it has been narrated supra, admittedly, the learned Counsel for the petitioner had advanced his arguments before the then Joint Secretary to
Government. The Principal Secretary had no occasion to hear the arguments nor had she passed a speaking order. As extracted above, she has
passed a one line order viz., ""XX above may be done"" thereby indicating that the revision may be rejected. The reason for the conclusion that the
revision deserved to be dismissed have not been stated by her. Ultimately, another order was drafted rejecting the revision and the same was
signed by the Principal Secretary and that is how the impugned Order has been passed. The Additional Secretary Mr. A. Mani who is present in
the Court explained that this is the procedure invariably followed in the office in all cases relating to Cinema licence right from the year 2006.
The learned Counsel for the petitioner would submit that in many other cases, in which he has appeared, though, he advanced arguments either
before the Deputy Secretary or the Joint Secretary, the orders were passed only by the Principal Secretary without hearing the parties and thus it is
the practice of the first respondent.
As I have already stated, the said procedure is not only irregular but it is opposed to law. One of the fundamental maxims, ""Audi Alterm
Partem"" came to be considered in depth by the Hon''ble Supreme Court in Swadeshi Cotton Mills Vs. Union of India (UOI), wherein in paragraph
Nos. 25 and 30 it has been held as follows:
But two fundamental maxims of natural justice have now become deeply and indelibly ingrained in the common consciousness of mankind, as
pre-eminently necessary to ensure that the law is applied impartially, objectively and fairly. Described in the form of latin tags these twin principles
are: (i) audi alteram partem and (ii) nemo judex in re sua. For the purpose of the question posed above, we are primarily concerned with the first.
This principle was well-recognised even in the ancient world. Seneca, the philosopher, is said to have referred in Medea that it is unjust to reach
decision without a full hearing. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, Bhagwati, J emphasised that audi alteram partem is
a highly effective Rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy
check on the abuse or misuse of power. Hence its reach should not be narrowed and its applicability circumscribed.
The maxim audi alteram partem has many facets. Two of them are: (a) notice of the case to be met; and (b) opportunity to explain. This Rule is
universally respected and duty to afford a fair hearing in Lord Loreburn''s oft-quoted language, is ""a duty lying upon every one who decides
something"", in the exercise of legal power. The Rule cannot be sacrificed at the altar of administrative convenience or celerity; for, ""convenience
and justice""-as Lord Atkin felicitiously put it-"" are often not on speaking terms"" General Council of Medical Education v. Spackman (1943) AC
627 at p.638.
As held by the Hon''ble Supreme Court, the principle audi alteram partem should be meticulously observed by quasi judicial authorities. When
the statute has empowered an authority with certain quasi judicial powers, the same should be exercised properly to achieve the object of the
enactment of the legislature. If there is any practical difficulty in implementing the same, as claimed by the learned Special Government Pleader, it
may be addressed to the legislature so as to make a specific provision in the Act itself excluding the application of the principles of natural justice.
But, in the instant Act, there is an express provision u/s 9(B)(2) making the principles of natural justice applicable. So long as there is a procedure
prescribed in a statute or Rule providing for opportunity of representation, the authority under the Act is obliged to follow the said procedure
scrupulously. Any deviation in this regard will render the ultimate order as invalid. In the case on hand, the first respondent has not at all followed
the prescribed procedure as indicated above and on this ground alone, the impugned order is liable to be quashed.
On several occasions, the Hon''ble Supreme Court as well as this Court had to set aside such non speaking orders passed by the quasi judicial
authorities for want of recording of reasons. As stated above, though the practice of passing non speaking orders has been deprecated by Courts
of law, such practice still continue to exist. The impugned order does not reflect application of mind by the first respondent. The case on hand is a
classic example for such a non speaking order. For this reason also, the impugned order is liable to be quashed.
Normally, while setting aside an order on technical grounds like the one in the instant case, this Court would remit the matter back to the
authority concerned for fresh disposal. But, for the reasons stated infra, I do not propose to do so.
The learned Counsel for the petitioner would submit that instead of remitting the matter back to the first respondent, the entire facts and law
involved in the case may be analysed by this Court and appropriate orders may be passed. But in my considered opinion, the same cannot be
done as appraisal, fresh appraisal or re-appraisal of facts could be done only by the revisional authority. Alternatively, the learned Counsel would
further submit that he may not insist for setting aside the impugned order and instead, he would pray for modification of the quantum of punishment
already imposed. According to him, the suspension of licence for a period of seven days is highly disproportionate to the gravity of the
contravention said to have been committed by the petitioner. He would further submit that the petitioner has got a clean past record. Subsequent to
the order of the appellate authority, the impugned order of suspension was given effect to and the petitioner''s theatre was closed for three days
viz., on 18.12.2008, 19.12.2008 and 22.12.2008. He would further submit that the same may be considered as sufficient punishment.
Admittedly, there is no other complaint that the petitioner ever committed, either before or after the occurrence, any such contraventions. The
incident involved in this case is a solitary one. In a similar circumstance, a Division Bench of this Court in Theatre Ram Balaji Vs. State of Tamil
Nadu has proceeded to hold thus: ""Taking note of the explanation offered relating to both the irregularities and in the absence of any
information/details about the violation of similar nature in the earlier years, we are of the view that ends of justice would be met by reducing the
period of suspension from ten days to two days."" Having regard to all the above, in my considered opinion, the suspension of licence, in this case,
for a period of four days would meet the ends of justice.
In the result, the writ petition is partly allowed, the impugned order is modified thereby reducing the punishment of suspension of licence from
seven days to four days. Since the petitioner''s theatre was already kept closed for three days, it will be sufficient that the petitioner''s theatre shall
be closed for one more day i.e., on 07.04.2009. No costs. Consequently, connected miscellaneous petitions are closed.