R. A. MEHTA, J. ( 1 ) THIS petition regarding cinema licence is essentially a private dispute amongst partners and the public authority like the licensing authority has failed to appreciate the same and has taken too narrow and technical view of the matter. ( 2 ) THERE was all old partnership firm known as M/s. Chandrabhanu Exhibitors formed in 1975 and it constructed Chandrabhanu Theatre at village Hansol near Ahmedabad. A cinema licence under Rule 103 of the Bombay Cinema Rules was issued in the name of Bhanuprasad Prahladbhai Patel (respondent No. 3 herein) one of the partners of the old firm. He is also a partner of the new firm but he is contesting the present petition. The old firm was dissolved by a deed dated 24 April 1983 which is produced at Annexure B in this petition. On the same day i. e. 24th April 1983 a new partnership firm was formed by the partners of deed (Annexure A to the petition) wherein the present 10 petitioners were joined as partners. Bhanuprasad and his two brothers are also other partners. These three brothers are called parties of the First Part and they have 10% share each in the profit and loss of the firm. The parties of the Second Part are the petitioners and their share in the profit and loss of the firm is 70%. As per paragraph 5 of the partnership deed the entire management of the business of the film of M/s. Chandrabhanu Exhibitors is vested in the parties of the Second Part i. e. the petitioners and the parties of the First Part (respondent No. 3 and his brothers) have not to obstruct or interfere with the management by the petitioners. The petitioners as per Clause 4 of the partnership deed have taken overall the past liabilities and in consideration thereof the petitioners are made 70% owners of the moveable and immoveable properties of the firm and the other three partners are together owners of the 30 ( 3 ) AFTER the formation of the new partnership firm the 10 partners (the present petitioners) authorised one of 3 them the petitioner No. 1 to apply and obtain a new cinema licence on behalf of the firm. Respondent No. 3 and his brothers were not party to that authorisation. Respondent No. 3 and his brothers were not party to that authorisation. In fact they seem to be contesting the right claimed by the petitioners for obtaining a new cinema licence. The application to the Police Commissioner dated 26th May 1983 is produced at Annexure F. In that application it is shown that the interest of the old partners (respondent No. 3 and his two brothers) in the business of the new firm was only 30% while that of the petitioners is 70%. It is also pointed out that the partners of the First part had invested a sum of Rs. 51 0 only as against the huge investment of about Rs. 25 lakhs by the present petitioners and because of such huge investment and consideration the petitioners were given the entire management of the theatre. In para 3 of the application it is mentioned that petitioner No. 1 Chinubhai Ambalal Choksi was authorised to approach the Licensing authority with a view to grant a new cinema licence in his name on behalf of the new firm and it was therefore prayed that new cinema licence under Rules 103 and 110 in the name of Shri Chinubhai Ambalal Choksi as nominee of the partners be issued and the old one be cancelled. ( 4 ) THE Police Commissioner by his order dated 21st June 1983 (Annexure C to the petition) rejected that application on the ground that the cinema licence already stood in the name of Bhanuprasad Prahladbhai Patel (respondent No. 3) and if that licensee wants any change to be made or wants new licence to be issued it is for him to apply for the same and if he wanted to have his licence cancelled then also it is for him to give that intimation and only thereafter proceeding can be taken for issuance of a fresh cinema licence. Being aggrieved thereby the petitioner No. 1 preferred an appeal under Section 8 of the Bombay Cinemas (Regulation) Act 1953 on 20th July 1983. Copy of that appeal is at Annexure C to the petition. The Appellate Authority also dismissed the appeal by order dated 11-1-1985 which is Annexure D to the petition. ( 5 ) THE petitioners challenge these orders of the Police Commissioner and of the Appellate Authority refusing the cinema licence in respect of Chandrabhanu Theatre. Copy of that appeal is at Annexure C to the petition. The Appellate Authority also dismissed the appeal by order dated 11-1-1985 which is Annexure D to the petition. ( 5 ) THE petitioners challenge these orders of the Police Commissioner and of the Appellate Authority refusing the cinema licence in respect of Chandrabhanu Theatre. ( 6 ) ORIGINALLY this petition was filed against the licensing authority and the State of Gujarat. But the respondent No. 3 had already filed a caveat stating that Let nothing be done unknown to the caveator hereinabove in any Special Civil Application that may be preferred by the opponent herein against the judgment and order and resolution No. BSR/2783/3373/a dated 11-1-1985 passed by the Deputy Secretary Information Broadcasting and Tourism Department Sachivalaya Gandhinagar Gujarat confirming the order of the Commissioner of Police dated 21-6-1983. That caveat on behalf of Bhanuprasad Prahladbhai Patel was filed by advocates M/s. S. V. Raju and V. M. Dhotre. The petition was moved for admission hearing on 21st January 1985 The caveator was not a party and no copy was served on him. Therefore the petitioners were required to serve a copy to the caveator and the same was served on 21-1-1985 and the hearing was adjourned to 22-1-1985. On 22-1-85 the petition was admitted and fixed for hearing in April 1985 and respondent No. 3 was added as a party. ( 7 ) THIS matter came up for hearing on 1st April 1985. The advocates Mr. S. V. Raju and Mr. V. M. Dhotre stated that soon after the admission of the petition respondent No. 3 had taken 4 away the papers from them and they had no instructions to appear in the matter and they wanted to withdraw their appearance. They had pointed out their difficulty to the Court. They were told to produce a writing from the client that he withdrew their authority; or if they wanted to withdraw their appearance they should intimate to the client that they were withdrawing their appearance. It was pointed out that lawyers cannot unilaterally and without intimation to the client withdraw the appearance. However if the client has taken away the papers and has not instructed them to continue to appear they may not appear and defend the matter. It was pointed out that lawyers cannot unilaterally and without intimation to the client withdraw the appearance. However if the client has taken away the papers and has not instructed them to continue to appear they may not appear and defend the matter. Since the client did not instruct them and in order to enable him to effectively withdraw the appearance they were granted time day before yesterday and yesterday again. However they have not produced any evidence to show that the client has been intimated about their motion of withdrawal of their appearance. Therefore they cannot be allowed to withdraw their appearance. They have however expressed their inability to appear in the matter in absence of any papers and instructions from the client. Thus the matter had to be decided exparte against respondent No. 3. ( 8 ) THE licensing provisions are contained in Chapter VII of Bombay Cinema Rules 1954 Rule 101 provides that No place shall be open or allowed to remain open for use of a cinema unless a person being the owner tenant or occupier thereof shall have obtained. a cinema licence therefor. Thus any person who has a substantial interest in the cinema whether as an owner tenant or occupier is entitled to apply for cinema licence. Rule 102 provides that the application for cinema licence shall contain a statement as to the nature and extent of the interest of the applicant in the cinema. The present petitioners have 70% interest and ownership rights in the assets of the cinema and by Clause (5) of the partnership deed they are in 100% management and actual occupation of the cinema. In fact they have been runing the cinema from the date of commencement of the new partnership in April 1983. There was a dispute about the liability of payment of entertainment duty and the matter had come up to the High Court by way of Special C. A. No. 6203/83 which was disposed of by the High Court on 30th January 1984 and after hearing all parties including respondent No. 3 it was agreed that the authorities shall hear all the parties and fresh decision shall be taken by the authorities. Consequent thereon a fresh decision has been taken on 21st July 1984 which is Annexure H to the petition and the Mamlatdar Entertainment Duty has upheld the claim made by the petitioners and the objections of the third respondent were rejected. The Mamlatdar was satisfied that the petitioners were in the effective control and management of the theatre and the inter se disputes regarding civil rights of the parties could be decided by appropriate Court or forum however there could not be any bar to the present petitioners in filing the returns and sending the tickets for approval and paying the entertainment duty. The Mamlatdar has also observed that when respondent No. 3 was in the management of the theatre he was not regular in payment of the duty whereas after the new management of the petitioners there has not been any such infringement and there was no occasion of imposing any penalty. The Mamlatdar also held that the provisions of the Bombay Cinema (Regulations) Act and the Rules did not come in the way of the petitioners in respect of the questions under the Entertainment Duty Act. 5 ( 9 ) ONE document is required to be referred to which is affidavit in reply filed by Popatlal Prahladbhai Patel in Misc. C. A. No. 455/84. He is the brother of respondent No. 3 and partner of the first part. That Misc. C. A. is for contempt filed by one workman Shaikh Mohmadbhikhan Hussainbhai for disobeying the order of the Labour Court. In that affidavit they have thrown the entire burden and liability on the present petitioners and it is contended that the present petitioners are liable to comply with the judgment and award of the Labour Court. They have also relied on Clauses 4 and 5 of the partnership deed and it is contended that these three brothers should not be held responsible for not complying with the award of the Labour Court. They have also contended that they were not in a position to implement the said order and the new partners of the said firm (the petitioners) should be proceeded against. They have also contended that they were not in a position to implement the said order and the new partners of the said firm (the petitioners) should be proceeded against. ( 10 ) AT the hearing of this petition the learned counsel for the petitioners has made a categorical statement and after obtaining instructions from the petitioners has assured this court that the award of the Labour Court in respect of the workman concerned in that Misc. C. A. No. 455/84 will be fully complied with within one week and relying on that assurance hearing of this petition is continued on that basis. ( 11 ) THE original licence in favour of the respondent No. 3 was valid till 31st December 1984 and it has expired and it is not renewed and no application for renewal seems to have been made till to-day by respondent No. 3. ( 12 ) THE authorities have relied on the fact that the cinema licence in respect of the same theatre has been is sued in the name of Bhanuprasad Prahladbhai Patel and that that licence is in his personal capacity and not on behalf of the firm and the licence is not transferable and so long as that licence is not cancelled the petitioners cannot be given a new licence. It is undisputed position as revealed from dissolution deed (Annexure B) that the respondent No. 3 and his brothers had brought the land as stock-in-trade of the firm on which the theatre was constructed out of the monies of the old firm. Therefore even before the theatre was constructed the old firm had come into existence and the theatre was constructed by the old partnership firm. Thereafter the new partnership was created on the same day of dissolution of the old firm and it appears that the new partners had brought substantial finance and made investment of about 25 lakhs of rupees. The other group is having the share of 30% only in the profit loss and assets of the firm as against 70% share of the group of the petitioners. The entire management of the cinema theatre and business exclusively vests in the petitioners and the third respondent and his two brothers have expressly agreed not to obstruct or interfere with the management of the business by the petitioners. The entire management of the cinema theatre and business exclusively vests in the petitioners and the third respondent and his two brothers have expressly agreed not to obstruct or interfere with the management of the business by the petitioners. In view of this clear and undisputed position it is obvious that the petitioners are the substantial owners of the theatre and actual occupiers of the theatre. Under Rule 103 they are entitled to apply for a cinema licence. Merely because one of the partners interested in the theatre had obtained a cinema licence earlier is no bar or disqualification to the other partners entitled to apply and obtain the same. It is true that the licence in favour of a person is not transferable under Rule 129. But that does not mean that a new licence cannot be granted to a person entitled to the same. Strictly speaking it may not be necessary even to cancel the existing licence and even if that was necessary the prayer was made in the licence 6 application itself. In any case that licence in favour of respondent No. 3 has expired on 31st December 1984 and therefore there is no impediment whatsoever in granting the licence to the present petitioners. Since the present petitioners are owners and occupiers in respect of the Chandrabhanu Theatre they are entitled to apply for and obtain a cinema licence. Since Bhanuprasad Prahladbhai Patel himself has expressly agreed in the partnership deed that the entire management was vested in the petitioners he has no locus standing or reason to object to the same. He has expressly agreed not to obstruct or interfere with the running of the theatre by the petitioners. The licencee of a cinema theatre incurs certain statutory obligations. The petitioners group is in occupation management and running of the theatre and therefore they are required to be made liable and to comply with the responsibilities and obligations of the licensee. As against that respondent No. 3 even though he was having the licence had no control whatsoever over the management and running of the theatre. Thus there was an anomalous situation. As against that respondent No. 3 even though he was having the licence had no control whatsoever over the management and running of the theatre. Thus there was an anomalous situation. The persons who were already running the cinema and who have been in actual management of the cinema did not have the licence and perhaps could not be held liable for complying with the obligations of the licensee; on the other hand the licensee would not comply with those obligations. The licensing provisions for a cinema are not meant to create such anomalous and awkward situation. On the contrary when it is found that respondent No. 3-the licensee of the theatre is not in management and not in it position to comply with the statutory obligations he could not have been continued as a licensee. The petitioners group could not have been denied the licence on the ground that the licence stands in the name of someone else. ( 13 ) IN view of the above discussion the orders of the authorities refusing the cinema licence to the petitioners are clearly illegal and based on erroneous grounds. Since the grounds for refusing the licence to the petitioners mentioned in the impugned orders are not valid this petition is required to be allowed. ( 14 ) HOWEVER it is clarified that observations made in this judgment are made only with a view to decide the question about the cinema licence and no observations made in this judgment shall be taken as final in respect of partnership disputes and as and when those questions arise between them the same shall be decided by the proper forum in accordance with law on their merits. ( 15 ) THE learned counsel for the petitioners as already mentioned above has agreed that the workman concerned in the award of the Labour Court shall be given all benefits as per the award within one week. He shall produce an acknowledgement by the workman in this court within ten days. ( 16 ) IN the result the petition is allowed and rule is made absolute by quashing and setting aside the impugned orders Annexures C and D passed by the licensing authority and the Appellate Authority and it is directed that the first respondent shall issue a fresh cinema licence in favour of the petitioners in respect of Chandrabhanu Theatre Hansol. Rule is made absolute with no order as to costs. ( 17 ) A writ of this judgment to issue to first respondent after the petitioners place on record the acknowledgement of the workman regarding full compliance with the award of the Labour Court. 15 April 1985 ( 18 ) AFTER the aforesaid judgement was dictated and pronounced on 3rd April 1985 the learned Advocate Mr. N. J. Mehta orally requested the court on 5 April 1985 that the judgment be not signed and he may be heard on behalf of the third respondent. With the consent of the other advocates the matter was reheard at length during this week and the learned counsel for the third respondent has also produced the record filed by the third respondent before the Appellate Authority along with 17 documents. That compilation runs into 96 pages. The assistance of the other side has been really helpful on facts as well. as on law. He has pointed out that the licence granted to the third respondent has been renewed on 1st January 1985 for a period upto 31st December 1987. He has made it clear that this was not pointed out to the Appellate Authority at the time of hearing and this is being pointed out for the first time and being produced in this case. In view of these facts the observations made in para 11 above would no longer survive; so also the observation in para 12 that in any case that licence in favour of respondent No. 3 has expired on 31st December 1984 and therefore there is no impediment whatsoever in granting the licence to the present petitioners would also not survive. ( 19 ) HE has also pointed out that the claim of investment of 25 lakhs of rupees by the petitioners was not correct and according to the third respondent their investment was of about 21 lakhs of rupees only. He has also pointed out that the investment of the third respondent and his two brothers is not a sum of Rs. 51 0 only as contended by the petitioners. That sum of Rs. 51 0 was the value of the land brought as stock-in-trade in the earlier partnership firm and the value of the land in 1975 cannot be the basis for valuing the shares of three brothers in 1983 when the new partnership was formed. 51 0 only as contended by the petitioners. That sum of Rs. 51 0 was the value of the land brought as stock-in-trade in the earlier partnership firm and the value of the land in 1975 cannot be the basis for valuing the shares of three brothers in 1983 when the new partnership was formed. It would appear that even if what is contended by the third respondent is taken as true there is no doubt that at least a sum of Rupees Twenty-one lakhs is invested in 1983 by the petitioners in this partnership firm and they have 70% share in the profit loss and assets of the firm. In that proportion the value of 30% share of the third respondents group can be estimated at 9 lakhs instead of Rs. 51 0 only. ( 20 ) THE learned counsel for the third respondent referred to the documentary evidence to the effect that: (1) the third respondent was the owner of the land; (2) had obtained no objection certificate in his name; (3) had obtained the permission to build theatre in his own name; (4) had obtained cinema licence in his own name and was continuing one till 1987; (5) Civil Aviation Department had also issued no objection to the third respondent; (6) Urban Land Ceiling Authority had also issued order in favour of the third respondent; (7) N. A. permission has been granted to the third respondent; (8) revenue record in respect of the land also stands in the name of the third respondent; (9) his licence application itself mentioned that he was a partner of the cinema and the cinema licence should not be granted to any one except himself; 8 (10) the partnership deed did not provide for issuance of a fresh licence in the name of the firm or to any partner; (11) partnership deed Clause (12) reads as follows: . ( 21 ) IN view of these facts the third respondent has submitted that the licence has been granted and renewed upto 1987 in his name and the petitioners are not entitled to similar cinema and booking licence in their names. No doubt it is true that the cinema licence has been granted and renewed in the name of the third respondent and the petitioners were not in the picture till the new partnership was formed. No doubt it is true that the cinema licence has been granted and renewed in the name of the third respondent and the petitioners were not in the picture till the new partnership was formed. An owner who is person interested in the theatre is not prevented from transferring or dealing with the the theatre or his interest therein. Although the licence is a personal right and is not transferable in view of Rule 129 of the Rules there is no prohibition whatsoever against contracting the private rights of such owner occupier and licence-holder. Even though the licence itself is not transferable the right title and interest in the theatre and management are capable of being transferred. In fact in course of commercial transaction a new partnership is formed on the same day on which old partnership firm is dissolved on 24th April 1983 The dissolution deed shows that the land was brought as stock-in-trade in the old firm and thereafter out of the monies of the old firm the theatre was constructed and the value of the land was credited in the firm as Rs. 51 0 being the capital of the three brothers. When the firm was dissolved on 24th April 1983 (with effect from 31st March 1983 on the same day a new partnership was formed wherein the present petitioners were taken as new partners and as admitted by the third respondent they had brought in at least Rs. 21 lakhs in the firm and they have undertaken all the liabilities of the old firm and they have been given ownership rights and shares to the extent of 70% in the rights and assets of the firm and moveable and immoveable properties of the firm. The important terms of new partnership deed are Clauses 3 4 5 and 11 which read as follows: ( 22 ) THE learned counsel for the third respondent submitted that even it partowner of a theatre can apply for and hold a cinema licence under Rule 102 and he need not hold majority share 9 or belong to majority side. The important terms of new partnership deed are Clauses 3 4 5 and 11 which read as follows: ( 22 ) THE learned counsel for the third respondent submitted that even it partowner of a theatre can apply for and hold a cinema licence under Rule 102 and he need not hold majority share 9 or belong to majority side. The third respondent along with his two brothers has 30% share in the assets and theatre of the firm and therefore he is a person who being an owner or coowner is entitled to apply for and obtain a cinema licence and therefore the licence having been granted renewed and continued in his favour is not required to be cancelled and no one else could be granted the said licence in respect of the said theatre. It is true that he is a co-owner and also a person interested to a substantial extent of 30%. Therefore he is eligible for applying for the licence and its renewal. At the same time it is to be remembered and noted that the petitioners are also co-owners to the extent of larger share of 70% (more than double) in the assets and properties and theatre of the firm. Moreover as far as management is concerned the management has been given to the petitioners by the third respondent himself while entering into the new partnership and inducing the petitioners to bring Rs. 21 lacs. Between two rival claims the question is who should be and could be granted the cinema licence. ( 23 ) THE learned counsel for the third respondent has submitted that having regard to the past and having regard to the existence of a valid renewed licence in favour of the third respondent there is no question of considering the claim for any other licence by the present petitioners. ( 23 ) THE learned counsel for the third respondent has submitted that having regard to the past and having regard to the existence of a valid renewed licence in favour of the third respondent there is no question of considering the claim for any other licence by the present petitioners. He has also submitted that the present petitioners are not in a position to comply with Rule 102 which requires that the application for licence shall be accompanied by true copy of noobjection certificate issued under Rule requirements if after once the licence 6 and the true copy of building permission issued under Rule 93 both of which have been issued in the name of the third respondent; the third respondent had produced the same along with his original application whereas the present petitioners are not in a position to produce the same and therefore their application itself is incompetent. The requirement of provisions of these documents is for the purpose of seeing that such documents are in existence and they do not serve any other purpose. Once a theatre has been duly constructed after obtaining a noobjection certificate and a building permission those documents have served the purpose and they are required to be accompanied with the application which is made for the first time in respect of a theatre for obtaining cinema licence. When the ownership or theatre has changed subsequently even if these documents are not produced by a subsequent owner would not make the application of the subsequent owner incompetent in any way if otherwise the authorities are satisfied that documents do exist and there is no other infirmity in the application. These requirements are essentially the requirements of first application for licence; and these documents are also required to be produced for renewal of the licence (Rule 107 ). They are not essential having been issued in favour of one person an application is made in respect of the same theatre by any other person for a new licence. ( 24 ) THE licensing authority had before it the application to grant fresh licence in favour of the petitioners and to cancel the existing licence in favour of the third respondent. ( 24 ) THE licensing authority had before it the application to grant fresh licence in favour of the petitioners and to cancel the existing licence in favour of the third respondent. This was contested by the third respondent who insisted that the licence should be in his name only and to continue the same and not to cancel it and no new licence should be granted to the petitioners. Admittedly both rival claimants are co-owners and have substantial interest in the theatre and both of them are eligible to apply for and to have the cinema and booking licence. Therefore the question is as to who is to be granted that licence and who is to be preferred and who is to be denied that licence. ( 25 ) THE learned counsel for the petitioners has submitted that a licensee is under several statutory obligations and the third respondent is not in a position to discharge those obligations. The entire management vests in the petitioners. The respondent No. 3 and his brothers have induced the petitioners to invest a huge amount of Rs. 21 lakhs on the basis that the entire management would vest in the petitioners and the group of the third respondent would not in any way obstruct or interfere with that management. Thus the third respondent has voluntarily transferred all rights and obligations of management to the petitioners. Therefore he is not in a position to comply with the duties of a licensee. Under Rule 115 a licensee is required to remain present at the cinema at all times when the cinema is kept open to public for business and he shall not remain absent therefrom except with the permission of the licensing authority endorsed on the licence nor shall he permit any other person to act on his behalf except with the permission of the licensing authority endorsed on the licence. Admittedly the third respondent does not present himself at the cinema nor is he in management of the cinema after the new firm is constituted in April 1983. Rule 118 requires that the licensee shall have the licence displayed prominently on the walls of the office of the cinema. The third respondent does nothing of the sort and the licence all along is being kept by him with himself. Rule 118 requires that the licensee shall have the licence displayed prominently on the walls of the office of the cinema. The third respondent does nothing of the sort and the licence all along is being kept by him with himself. (At the hearing of this petition he has shown his willingness to display the licence as per Rule 118.) Chapter VIII of the Rules provides for the obligation of a licensee in respect of tickets etc. They provide for booking and sale of tickets only at the booking office approved by the licensing authority price list showing the various rates charged for tickets for different classes and the hours of business. The licensee is required to print tickets in the manner prescribed; he is required to maintain true and accurate records of sale of tickets their rates and to produce on demand for inspection by the police officer. There are certain secondary and other obligations such as providing for facilities spittoon prohibiting smoking etc. ( 26 ) ALL these obligations can be complied with by a person who has the right to manage the theatre. The third respondent having transferred the right of management is not in a position to compy with all the oblilgations of a a licensee. Since the licence could not be transferred the authority is dutybound to consider whether a fresh licence can be granted to the petitioners. At that stage the rival contentions such as suitability eligibility and relevant considerations are required to be taken into account. This aspect is not at all considered by the authorities. The petitioners submit that they have been put in the management and they are in management of the theatre since April 1983. They are 70% owners of the theatre and its assets and they are the actual occupiers of the theatre and they have a right to manage the theatre and they are in a position to comply with the obligations of the licence and therefore they are entitled to the licence and the authorities have erred in proceeding on the basis that the petitioners could not be granted the licence and it would amount to transfer of the licence. This is clearly a misconception. There is no request of transfer of the licence. This is clearly a misconception. There is no request of transfer of the licence. The request was that the petitioners be granted the cinema licence and the existing licence in favour of the third respondent be cancelled on the ground that the third respondent is not entitled to the same and is not entitled to continue the said licence. ( 27 ) THE learned counsel for the third respondent submitted that cancellation of the licence is provided for 11 in Rule 131 and section 8 of the Act and such cancellation can be only in the event of any contravention by the holder of the licence of any of the provisions or rules or the conditions of the licence or restrictions upon or subject to which the licence has been granted to him. It is to be noted that here are two claimants for a licence. In principle it does not make any difference whether two rival claims arise in absence or presence of an existing licence. If a licensee dies and thereafter rival claims for a fresh licence arise both or all of whom are independently eligible for a licence the licensing authority will have to consider as to which person is more suitable or more in a position to comply with the statutory provisions of the licence and to prefer one and reject the other. Similarly after grant of a licence if such questions were to arise and rival claims were to be decided mere existence of a licence in favour of one party would not and cannot defeat by itself the right of the other persons who are entitled to obtain and apply for a licence under Rules 101 and 102. Existence of a licence in favour of one coowner (or even a renewal during the pendency of appeal and behind back of the rival) cannot defeat the right of the other co-owner to have the licence in his name; of course. the other coowner has to show the nature and the extent of his interest and also his position and ability to comply with the statutory obligations of a licensee. the other coowner has to show the nature and the extent of his interest and also his position and ability to comply with the statutory obligations of a licensee. When it is shown to the satisfaction of the authority that one of the rival claimants is in a position to fulfil the obligations of the licence and the other party is not it would be justified in granting the licence to persons who are in a position to fulfil such conditions and refuse the same to the persons not fulfilling the conditions and if necessary to cancel the licence in his favour if there is one already existing. ( 28 ) THE learned counsel for the third respondent has also drawn my attention to the nature of order to be passed by the High Court and he has submitted that the jurisdiction of the court under Article 226 of the Constitution is restricted and the High Court ought not to direct the licensing authority to issue the licence. But to direct the licensing authority to consider the matter afresh in the light of the observations of the High Court and leaving the authority to decide question in accordance with law. He has invited reference to the judgment reported in G. Veerappa Pillai v. Raman and Raman Ltd. AIR 1952 SC 192 . In that case the High Court did not content itself with merely quashing the proceedings under the Motor Vehicles Act it went further and directed the Regional Transport Authority to grant to the petitioner permits and the Supreme Court held that such a direction was in excess of its powers and jurisdiction. In the case of Y. Mahaboob Sheriff and Sons v. Mysore Transport Authority Bangalore and Others AIR 1960 SC 321 the Supreme Court observed:it is therefore open to us to issue a direction in the nature of mandamus requiring the Authority to follow the law as laid down by this court in respect to the order of renewal granted by it in accordance with Section 58 (1) (a ). It is true that where it is a case of discretion of an authority this court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised. It is true that where it is a case of discretion of an authority this court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised. But in this case the discretion is not absolute; it is circumscribed by the provision of Section 58 (1) (a) which lays down a duty on the Authority which grants a renewal to specify a period which is not less than three years and not more than five years. The duty being laid on the Authority which has in this case decided to grant a renewal to specify a period not less than three and 12 not more than five years as the duration of the renewal it is in our opinion open to this court to direct the authority to carry out the duty laid on it by Section 58 (2) when it has granted the renewal. In the case of State of Mysore v. C. R. Seshadri and Others AIR 1974 SC 460 the question was promotion in government service and the Supreme Court observed:the power to promote an officer belongs to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The court may issue direction but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of government or order reconsideration on correct principles. In the case of M/s. Chingleput Bottlers v. M/s. Majestic Bottling Co. AIR 1984 SC 1030 the court came to the conclusion that there was an error apparent on the face of record in rejecting one of the applications and hence quashed the order of the Commissioner but the High Court could not have further directed that the licence be granted to that particular applicant and the Supreme Court observed that the proper course for the High Court would be to issue a writ of mandamus to the Commissioner to re-determine the question as to the grant of such privilege. The decision of the Supreme Court is based on the fact that the grant of the licence by the licensing authority was further subject to the approval by the State Government. The decision of the Supreme Court is based on the fact that the grant of the licence by the licensing authority was further subject to the approval by the State Government. ( 29 ) IN para 16 of this judgment dated 3rd April 1985 I had issued a direction to the first respondent that he shall issue cinema licence in favour of the petitioners. That direction is required to be modified in the light of the legal position discussed above and especially because the authorities have not appreciated the true controversy and not do decided the same. ( 30 ) IN view of the aforesaid discussion the petition is allowed and rule is made absolute by quashing and setting aside the impugned orders Annexures C and D passed by the licensing authority and the Appellate Authority and it is directed that the first respondent (licensing authority) shall decide afresh the application of the petitioners for cinema licence in favour of the petitioners in respect of Chandrabhanu Theatre Hansol and also to decide the request for cancellation of the existing licence in favour of the third respondent. The licensing authority shall give reasonable opportunity of hearing and placing relevant material before it to both the parties and thereafter decide the controversy and the application in the light of the observations made in this judgment and in accordance with law. The licensing authority shall decide the question within six weeks from the date of the receipt of the writ. The direction in para 16 will stand modified and substituted by this direction. Directions in paras 14 15 and 17 shall be operative. Rule made absolute with no order as to costs. Rule made absolute .