T K. Muraleedharan vs State and others

K. T. Thomas, J.—Petitioner it the proprietor of a Cinema Theatre called ''Bose theatre'' at Valakem Panchayat (Muvattupuzha Taluk). A license was issued to him under the provisions of Kerala Cinema Regulation Act (for short ''the Act''), On the allegations of certain malpractices, the said Licenses was later suspended by the Executive Officer of the Panchayat who is the licensing Authority under the Act. Ext P5 is the order pasted by the aforesaid Executive Officer. (He is the second respondent in this Original Petition), Petitioner preferred an appeal against Ext. P5 before the Panchayat Committee (third respondent). At the Panchayat did not dispose of the appeal, petitioner had approached this court with O. P. No. 2273/''92. By Ext P8 judgment, this court directed the Panchayat Committee to dispose of the appeal. The Panchayat Committee passed Ext. P9 order holding that appeal before the Panchayat Committee is not maintainable. Thereupon petitioner filed Ext. P10 appeal before the Revenue Divisional Officer (4th respondent in this O. P.) By Ext P11 order, 4th respondent rejected the appeal as barred by time prescribed in Role 29 of the Kerala Cinema Regulation Rules. 1988 (for short ''the Rules''). Rule 29 provides that an appeal u/s 5 (7) of the Act shall be preferred "within 30 days of the date of receipt of the communication conveying the decision or order appealed against" Learned Government Pleader contended that since there is no provision for condo nation of delay, the Revenue Divisional Officer had to reject the appeal on the ground of limitation.

Petitioner had filed the appeal before the Panchayat Committee on 10-2-1992. But the Panchayat Committee held that the said appeal was not maintainable That finding was made by the Panchayat Committee only on 5 5 1992. It is contended that the said period should be excluded from the period of appeal, it is admitted that Ext. P10 appeal would be within time if the said-period is so excluded. Then the question is whether the aforesaid period can be excluded from counting the prescribed time of thirty days contemplated in Rule 29 of the Rules.

Section 5 (7) of the Act read originally like this:

Any person aggrieved by the decision or order taken or passed by the licensing authority under this Act may, within such time as may be prescribed, appeal-

(i) Where the licensing authority is the executive authority of a local authority, to that local authority: and

(ii) in any other case, to such officer or authority as the Government may, by notification, specify in this behalf.

Subsequently, the sub-section was amended by Act 22 of 1975. After the amendment, the sub-section reads like this:

Any person aggrieved by the decision or order taken or passed by the licensing authority under this Act may, within such time as may be prescribed appeal

(1) where the licensing authority is the executive authority or a local authority and such executive authority has taken the decision or pasted the order without the previous concurrence of that local authority, to that local authority, and

(ii) in any other case, to such officer or authority as the Government may., by notification, specify in this behalf.

Originally the rule which governed the filing of appeal was Rule 22A. of too Cinema Regulation Rules, 1958. After the amendment of sub-section (7) of the Act, new rules have been framed. The present rules governing the subject are Kerala Cinema Regulation Rules, 1988. Under Rule 29 (1), it is provided that where the licensing authority is the executive authority of local authority, such an appeal may be preferred to that local authority. In other cases appeal may be preferred before other authorities depending on the officer who passes the order.

With such changes in the appellate forums and by providing different types of appeals depending on the nature of the order passed by the same Licensing Authority a layman cannot be blamed entirely if he gets confused as to where he shall go with the appeal. A laymen may be able to discern precisely as to the appellate forum, whether it is local authority or to such officer or authority as the Government by notification specify in this behalf only if he adopts utmost care. Even for a legal mind the task is not so easy to fix up the appellate forum in view of the circumlocutory exercise employed in the frame of section 5(7) as well as Rule 29. At the same time it is rather difficult to understand the Jurisprudential sense in not providing a provision for condo nation of delay if an appeal could not be filed within the period of 30 days on account of sufficient causes. It would be advantageous to all concerned it Government would incorporate a provision for condoning delay in appropriate cases, by amending the rules.

Be that as it may the period of 30 days fixed in Rule 29 of the rules is qualified with the words "of the date of receipt of the communication conveying the decision or order appealed against". The rule in the aforesaid context, must receive a vary liberal construction and to the extent possible its rigour should be relaxed. The aggrieved person must have the entire period of 30 days available for exercising his right of appeal. If by a mistake he preferred the appeal before a forum which is different from the one where be should rightly have approached, it can be deemed that he was not in receipt of the communication during the interregnum when his appeal was lying in the wrong forum. Adopting a pragmatic view I am inclined to think that the time during which the appeal was pending before the wrong forum must be excluded from the period fixed in Rule 29. If a different approach is adopted in the context it may defeat the object in providing a statutory remedy of appeal for the aggrieved party.

This is a case where petitioner did not all idle and in fact he filed the appeal under the assumption that Panchayat Committee has got appellate powers over every order passed by the Executive Officer of the Panchayat. There cannot be two opinions that the appeal would have been maintainable before the Panchayat Committee as per section 144 of the Kerala Panchayat Act, had the impugned order been pasted by the Executive Authority of the Panchayat without being a licensing authority under the Act. The difficulty arose in this case on account of the fusion of two offices in the same person (Executive Officer and licensing authority under the Act). I do not think that petitioner had resorted to a wrong authority in a Baste. I am inclined to think that petitioner must be deemed to be not in receipt of the communication during the period when communication was produced before the Panchayat Committee along with the appeal which he preferred before it. The result of the above discussion is that the appeal filed, by the petitioner before the 4th respondent cannot be rejected as barred by time. For the aforesaid, reasons, I quash Ext. P11 and direct the 4th respondent to dispose of the appeal on merits in accordance with law after affording a reasonable opportunity to the petitioner for a hearing. The appeal shall be disposed of within two months from the date of receipt of a copy of this judgment.

A copy of this judgment shall be forwarded to the Chief Secretary, Kerala State to consider whether a provision for condo nation of delay should be included in the Rules.