Smt. Siddamma Mallappa Managuli vs The State of Karnataka and Others

Chidananda Ullal, J.—The petitioner herein has challenged the Government Order dated 9-9-2003, copy at Annexure-''C'' to writ petition, in passing whereof, the respondent No. 1 -State had granted exemption from the application of the provisions of Rule 27(2)(a)(ii) of the Karnataka Cinemas Regulations Rules, 1971, in favour of the respondent No. 3. The said exemption was granted by exercising powers vested in it u/s 20 of the Karnataka Cinemas (Regulation) Act, 1964.

The brief facts of the case are as hereunder:

The respondent No. 3 has applied for grant of no objection certificate for establishing a permanent cinema in property bearing TMC No. 752/8 in Sindagi town, before the respondent No. 2-District Magistrate, as required under Rule 26 of the Karnataka Cinemas (Regulation) Rules, 1971 (for short hereinafter referred to as the Rules).

That the respondent No. 1 - State had earlier issued what was termed by it as notification, for relaxation of the provisions of Rule 27 (2)(a)(ii). The said notification came to be challenged by the petitioner in filing W.P.No. 22208/2002 before this Court. At the same time, the respondent No. 3 had filed Writ Petition No. 26806/ 2002, wherein he had challenged the rejection of the NOC by the respondent No. 2, copy at Annexure-''J'' to that writ petition. Both the said petitions were heard commonly by the Learned Single Judge of this Court and the Learned Single Judge had passed common order in both the WPs. The orders passed therein are as follows:

"20. In the result, I pass the following order:

(a) Writ Petition No. 22208/2002 is allowed. Impugned order/ notification dated 29-4-2002 as per Annexure-''E'' is quashed, reserving liberty to the Government to reconsider the matter, if necessary in accordance with law.

(b) Writ Petition No. 26806/2002 is allowed. Impugned order dated 5-7-2001 as per Annexure ''J'' is quashed. The matter is remanded back to the District Magistrate to decide the request of the petitioner to grant ''No Objection Certificate'' afresh, after hearing the petitioner in accordance with law."

Furthermore, there was proceeding in Writ Appeal No. 3012/ 2002 filed against the order passed in Writ Petition No. 46372/2001. While allowing the appeal, the Division Bench had passed the orders as follows:

"Therefore, we allow this appeal as follows:

(i) we set aside the order of the learned single Judge dated 12-4-2002 in Writ Petition No. 46372 of 2001.

(ii) As a consequence, Writ Petition No. 46372 of 2001 is allowed in part and the communication dated 3-12-2001 (Annexure-S) from the 4th respondent to the 1st respondent is quashed.

(iii) Nothing stated above, shall be construed as expression of any opinion on the contentions of either party in regard to the entitlement of the second respondent to seek NOC or in regard to the validity of the exercise of power by the State Government u/s 20 of the Act. The contention of the second respondent in regard to the locus-stand of the appellant to challenge the grant of NOC is also left open.

Subsequent to the above orders passed by this Court, the petitioner herein had filed the instant writ petition to challenge the Government Order, copy at Annexure ''C'' to writ petition, mainly on the ground that the same was passed without application of mind. The petitioner had also alleged therein, malafides on the part of the respondent No. 4 who had authenticated the G.O. in question. It was alleged by the petitioner that the same was done not by the respondent No. 1 -State, but by the respondent No. 4 to confer illegal benefits on the respondent No. 3. It was further alleged by the petitioner in filing the writ petition that the impugned order is naked, fraud on power and that the impugned order is not passed in a way to advance the object underlining the Act for the benefit of the public and further that with the issuance of the earlier notification which came to be quashed by this Court, the respondent No. 1 -State had become functus officio and as such, the impugned order is wholly void and that the same was done without any sanction of any formal authority of the Government under Article 162 read with Article 163 of the Constitution of India. The petitioner had also contended that the respondent No. 1-State would have heard the petitioner before passing the impugned Government Order. I do not find any substance in the said limb of the argument, for while disposing of the writ appeal, this Court had only directed the respondent No. 1 -State to pass fresh orders in the matter of grant of exemption and nothing more. If the petitioner wanted that she be heard before passing the impugned order, she would have as well urged this Court to give her that liberty in the writ appeal. Hence, in my considered view, question of hearing the petitioner before passing the impugned order by the respondent No. 1-State did not arise at all. Therefore, I have got no hesitation to reject the said limb of the argument.

Now therefore all that I have to see in the instant writ petition is, whether the respondent No. 1 -State had applied its mind before passing the impugned order as directed by this Court in the writ appeal. In this context, I feel it appropriate to observe that the Respondent No. 4 was only an Officer in the concerned department and as such he had only authenticated the impugned Government Order and that he appeared to have done in the discharge of his official duty and that being the position, it is unfortunate that the petitioner chose to pass allegations as against him alleging personal interest to confer certain official favours to the Respondent No. 3. I for one, do not find that the respondent No. 4 did that in any way; probably the petitioner made the said wild allegation due to heart burning, for, she failed in her attempt to remove hurdles on her way so that she would be having total monopoly in the cinematograph business-the cinema exhibition business, which has for long remained as if was monopolised by her without there being any business rivalry. As such, I fully endorse the submission of the Learned Counsel for the respondent No. 3, Sri Sreedharan, that the period has got no locus standi to challenge the impugned Government Order passed by the respondent No. 1-State in favour of the respondent No. 3.

Now I have to examine as to whether the respondent No. 1-State had passed the impugned Government Order by application of its mind to the facts and circumstances of the case.

The Learned Government Pleader who appeared for respondent No. 1 and 4 in the case had not only filed detailed statement of objections, but as per the direction of the Court he had also secured the records/file from the department and placed the same before the Court. As I see, the said file contains pages 1 to 382 (pages 1 to 382 are correspondences and it also contains note sheets from note sheet 1 to note sheet No. 50).

I have gone through the entire case file carefully and in detail, and meticulously examined the file before passing the instant orders in the writ petition. As I see, before passing the impugned Government Order, the Department had processed the papers, commencing with the representation given by the respondent No. 3 to the Hon''ble Minister in charge of the Department, on 14-11-2000 and the Hon''ble Minister had directed the Secretary in the Department to examine and put up the file. In the said representation, the Minister had endorsed on the left hand side of the said letter and the same reads as follows:

''Secretary to examine and put up''

and beneath the said endorsement, the Minister had also put his short initial in lieu of his signature as ''M.K.'', probably for his name Mallikarjun Kharge. As I further see, it is thereafter, that the file was processed and built up. From the note sheets it is clear that the papers had been processed by respondent No. 4 and others and therefore, it is totally untenable for the petitioner to contend that the respondent No. 1-State gave relaxation to the respondent No. 3 in the matter of application of Rule 27 of the Rules and relaxation as per Section 20 of the Act. As I further see, the respondent No. 1-State in response to the above representation given by the respondent No. 3, the respondent No. 4 had called for a report from the respondent No. 2-Deputy Commissioner, in respect to which, the respondent No. 2-Deputy Commissioner had also sent a detailed report to the respondent No. 1- State, copy found at page Nos. 324 to 330 in the file. In addition to the above, I have also noticed that the respondent No. 1-State had also considered the representation of the general public of Sindagi town, requesting the State to give relaxation to the respondent No. 3 in the matter of starting new theatre, for according to them, such a relaxation was in their interest. While processing the papers in the department, respondent No. 4 had not only processed the papers as he was supposed to do, and in doing that he had placed the file before the Secretary of his Department, his official superior and further more, I have noticed that the concerned Minister Sri Mallikarjun Kharge, as he then was, had also given his nod, inasmuch as he had also done that officially and approved the action of the Department to give relaxation to the respondent No. 3, in the matter of grant of relaxation. In the said facts and circumstances, it does not occur to me, even remotely, that the respondent No. 4 had in any way acted to show or confer any personal or official favour to the respondent No. 3. Since, I had the benefit of going through the entire file, I feel it proper to observe here that the matter had been duly processed in the Department in the ordinary course of business and there is no artificiality or specialty attached thereto, whatsoever. All that I can say here is, that the Department headed by the concerned Minister Hon''ble Sri. Mallikarjun Kharge had considered case simpleton in the matter of giving sanction for relaxation of the rule to the respondent No. 3 and therefore, in my considered view, the impugned order came to be passed by the respondent No. 1-State by total application of its mind to the facts and circumstances of the case and that it did after the case was examined by the Department independently right from the lower rung to the highest level, i.e. Secretary of the Department.

In support of the argument of Sri. Subramanya Jois, he had cited the following decisions under a citation memo, indicating there below the points involved. The same are as follows:

1983 (1) KLJ 25 - The decision rendered in violation of the principle of auditorium partem is void and no decision at all and is liable to be set aside solely on that ground. The order cannot be sustained on the ground that the failure had not occasioned miscarriage of justice. (3rd para from the beginning).

Tata Cellular Vs. Union of India, - Head note ''C'' and ''E''. This judgment is cited to show that the Courts have power to review the decisions of the Government (Judicial Review).

Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, . This judgment is also cited to show that the Courts have power to judicial review to decide whether a Government Order is arbitrary or not (para 21) and also to say that the affidavit filed on behalf of the Government by a person who is not competent should be viewed seriously (paras 34 and 35).

Adhiyaman Educational and Research Institutions Vs. The State of Tamil Nadu and others, - Head Note ''C''. Validity of an order is to be judged by the reasons given in the order. Reasons cannot be supplemented in the shape of an affidavit.

Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, - Head Note ''B''. Power of High Court under Article 226 of writ can affect private individual and hence alternative remedy is not an absolute bar.

The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, - Head Note ''A'' and ''B''.

D. Ramaiah Vs. The District Magistrate, Bangalore and Another, - Head Note ''A'' and ''B''. This judgment is cited to show that notice to both the applicant and the objector must necessarily be issued in the proceedings for grant of N.O.C.

On the other side, the Learned Counsel for the respondent No. 3, Sri B.C. Sreedharan had argued as hereunder:

a) At the outset, he totally supported the Government Order. That is obvious, for the Government Order came to be passed by the respondent No. 1 -State in favour of his party, the respondent No. 3.

b) That the petitioner has got no locus standi to challenge the Government Order since the same came to be passed by the respondent No. 1 -State in exercise of the statutory powers vested in it u/s 20 of the Act."

c) That the interest of the petitioner was only a business interest to maintain her monopoly on the cinematograph business in Sindagi Town, without there being any let or hindrance from any quarters including from the side of the respondent No. 3.

d) That the respondent No. 1 - State was within its power to grant exemption as contemplated u/s 20 of the Act and as such, the petitioner cannot have any say in the matter.

In support of the argument of Sri. Sreedharan, he had cited the following decisions together with the points thereunder. They are as follows:

1965 (1) MLJ 337- Right to run cinema is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India.

Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, - Petitioner being a rival operator running two cinema theatres in Sindagi Town is not a person aggrieved to maintain the writ petition and she has no locus standi to challenge the correctness of the impugned order passed by the State Government.

1966(1) MLJ 723 - What is required under the Act and Rule is only a substantial compliance of the Rules. In order to exercise jurisdiction under Article 226 of the Constitution of India there must be overwhelming reasons to quash the impugned order especially when it is in the matter of grant of exemption.

D. Ramaiah Vs. The District Magistrate, Bangalore and Another, - The applicant for grant will have special interest as against an objector who has ordinary interest in the proceedings. The person with special interest alone is entitled to be heard and person with ordinary interest is not required to be heard.

1977 (2) MLJ 478 - The phrase ''person aggrieved'' is explained. Petitioner does not fall into that category.

H.C. Bhogegowda Vs. District Magistrate, Mandya District, Mandya, - While interpreting the Karnataka Cinemas (Regulation) Act, 1964 and the Rules framed thereunder, progressive rule of construction has to be adopted i.e. the interpretation of the provision must be made in such a manner so as to achieve the object of the Act, namely to educate and entertain the members of the public.

That the respondent No. 3, no matter he is an elected member of the Legislative Assembly, is a free citizen as any body else. As such, he has got fundamental right to get into cinematograph business and as such, the petitioner has got no business to restrain the respondent No. 3 from exercising his fundamental right guaranteed under the Constitution. I also add here that the petitioner should not be allowed to invoke the writ jurisdiction of this Court to curb a co-citizen''s fundamental right. As I see, that is what she had attempted to do in filing this writ petition. That being the case I think that this Court has to discourage the petitioner by not granting the relief she sought for in the petition, so that she mends her way and thinking in the future.

Having heard both sides, I feel that the argument advanced by the Counsel for the respondent No. 3, Sri. B.G. Sreedharan outweighs the argument of the Counsel for the petitioner, Sri. Subramanya Jois and I am of the considered view that the instant writ petition does not merit any consideration and therefore the same is liable to be dismissed. I am also of the view that in doing that, the respondent No. 3 is also entitled for compensatory cost, which I assess at Rs. 25,000/-.

Let the petitioner pay the said cost to the respondent No. 3 within three months from this date. In the event the petitioner fails in that regard, the respondent No. 3 is at liberty to recover the same in the process known to law as if the respondent No. 3 holds a money decree as against the petitioner.

In the result, the instant writ petition fails and accordingly dismissed with cost as above. The cost of Rs. 25,000/- may appear to be exemplary, nevertheless, I have assessed at that, for I was convinced that the respondent No. 3 was a harassed person and he should be properly and adequately compensated and at the same time giving message to the litigant as that of the petitioner herein, that a litigant cannot take it for granted that a litigant can go merrily litigating with no consequence at all. As I see, the petitioner was litigating all through for one reason or other, before one forum or other. I term her as a ''hard-core litigant'', and she started litigating when the respondent No. 3 applied before the respondent No. 2-Licensing Authority for grant of N.O.C. to him to enter into cinematograph business in Sindagi Town, being an objector opposing the grant of N.O.C. to the respondent No. 3 by the Licensing Authority.

To depart from the judgment, I take liberty to tender a piece of advice to the petitioner, which I hereby do, to change her attitude towards men and matters, for, I observed her attitude totally stubborn and litigious; let her imbibe in her, ''live and let live'' attitude, for, I feel, that will do good to all, including herself and the society at large.

In the result, this writ petition fails and accordingly stands dismissed with cost as above; the Registry is directed to return the records of the respondent No. 1, now in the file to the learned Government Pleader, upon taking proper acknowledgment thereto, in the order sheet.