Ramanlal Hemlal Bhatiya and Others vs State of Maharashtra and Others

D.S. Zoting, J.—Heard Mr. Nitin R. Bhavar, Advocate holding for Mr. R. N. Dhorde, learned counsel for the petitioners, Mr. N. H. Borade, learned A.G.P. for the respondents No. 1 to 3 and 5 and Mr. A. H. Kasliwal, learned counsel for respondent No. 4.

The petition is directed against the order dated 22-10-1992 passed by respondent No. 1, in an appeal preferred by the present petitioners.

Facts relevant for the decision of this petition, may be briefly stated as under:

The petitioners are running Cinema Theatre at Dharangaon, in Erandol Taluka of Jalgaon District, in the premises bearing Municipal House No. 3176, since the year 1961. The respondent No. 4 is the landlord of the petitioners. The District Magistrate/Collector, Jalgaon respondent No. 2 passed an order dated 18th April, 1990 suspending the licence of the petitioners for a period of three months commencing from the date of the order i.e. 18-4-1990, on the ground that the petitioners have not provided the facility of telephone in theatre, the toilet in theatre are of old type etc. as mentioned in the said order.

It is not disputed that the District Magistrate/Collector, Jalgaon, is the Licencing Authority to grant licence under the Bombay Cinemas (Regulation) Act, 1953 (Hereinafter referred to as "the Act"). It is also not disputed that the Licencing Authority has power to revoke or suspend the licence in view of the provisions of Section 8 of the Act.

Section 8 of the Act, is as under :--

"Section 8. In the event of any contravention by the holder of a licence of any of the provisions of this Act or the rules made thereunder or of any of the conditions or restrictions upon or subject to which the licence has been granted to him under this Act (or of any of the conditions or restrictions imposed by an order of exemption made u/s 10), or in the event of his conviction of an offence u/s 7 of this Act or Section 7 of the Cinematograph Act, 1952, (or on receipt of recommendation from the Collector u/s 9D of the Bombay Entertainments Duty Act, 1923,) (the licensing authority may by order revoke the licence or suspend it for such period as it may think fit) (but such order shall not take effect until the period of appeal prescribed against such order has expired:)

(Provided that, no licence shall be revoked or suspended, unless the holder thereof has been given reasonable opportunity to show cause.)

The learned counsel for the petitioners, submits that though as per provisions of Section 8 of the Act, the order of suspension shall not take effect until period of appeal prescribed against such order has expired. The learned District Magistrate/Collector gave effect to the order from the date of his order i.e. 18-4-1990, which is contrary to the provisions of the law. It is the fact that the order u/s 8 of the Act, has been passed on 18-4-1990 and petitioners were immediately directed to close down the theatre from the date of the order, though there is a specific provision u/s 8 of the Act, itself to that effect that if any order has been passed u/s 8 of the Act, the same should not take effect unless and until the period of appeal has been expired, and the period of appeal is of 30 days.

Rule 132 of the Maharashtra Cinemas (Regulation) Rules, 1966, reads as under:

"Rule 132. Period within which appeals u/s 8A and applications for revision u/s 8B shall be made. -- An appeal against an order of a licensing authority refusing to grant a licence or revoking or suspending any licence u/s 8 or an application for revision of such order shall be made within thirty days from the date of receipt of such order by the appellant or the applicant, as the case may be."

Thus, the provisions of Section 8 of the Act read with Rule 132 of Maharashtra Cinemas (Regulation) Rules, 1966 clearly show that the effect of the order of the District Magistrate/Collector should not have been given before expiry of the 30 days. The effect of the order of suspension of licence is given before expiry of thirty days. Thus apparently, the directions giving immediate effect to the order of suspension is contrary to the mandatory provisions of Section 8 of the Act.

Section 8A of the Act, deals with an appeal. It is as under :

"Section 8A : Any person aggrieved by an order of a licensing authority refusing to grant a licence, or revoking or suspending any licence u/s 8, may, within such period as may be prescribed, appeal to the State Government; and the State Government shall on such appeal, make such order as it thinks just and proper, and such order shall be final."

It is to be noted that the petitioners have filed the appeal to the respondent No. 1 against the order of suspension of licence passed by the District Magistrate/Collector, challenging the said order. Therefore, it was necessary on the part of the respondent No. 1 either to allow the appeal or to dismiss the appeal upholding the order of the District Magistrate/Collector, of suspension of licence. However, it is surprising to note that the respondent No. 1 cancelled the licence of the petitioners, it is apparently contrary to the provisions of the Act. It is to be noted that the power of cancellation vests in the District Magistrate/Collector as per provisions of Section 8 of the Act. The respondent No. 1 was expected to either to accept the prayer of the petitioners as made in the appeal or to reject the prayer. But a very strange course is adopted by the respondent No. 1 thereby cancelling the licence of the petitioners. The order is, therefore, illegal and deserves to be set aside.

For the reasons already stated above, the order dated 22-10-1992 passed by the respondent No. 1 - The State of Maharashtra is hereby quashed and set aside.

It is to be noted that at the time of the admission of the petition, interim relief in terms of prayer clause "C" and "D" pertaining to stay to the operation of the order dated 22-10-1992 passed by respondent No. 1 was granted and that relief was in force during the pendency of the petition. It is to be noted further that the period of suspension of the licence of the petitioners was for a period of 3 months. Interim protection was already granted in favour of the petitioners and that period has elapsed. That interim relief is made final and the rule is made absolute to that extent only.