BALDEVBHAI AMBALAL PATNI v. STATE — 1986 DIGILAW 142 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) PETITIONER in this petition under Article 226 of the Constitution of India has challenged the legality of various orders at Annexures A `b C D E and `h passed by the authorities functioning under the Bombay Cinemas (Regulation) Act 1953 and the Rules framed thereunder. In order to appreciate the grievances of the petitioner a few relevant facts will have to be noted at the out set. ( 2 ) THE petitioner claims to be a Licence holder entitled to run a cinema theater named VISHNU CINEMA at village Mansa taluka Vijapur district Mehsana. The petitioner was issued Cinema Licence under the provisions of Bombay Cinemas (Regulation) Act 1953 (hereinafter referred to as the Bombay Cinema Act ). He was also holding the Booking Licence which is a consequential licence based upon the Cinema Licence. The said licence was also issued to him under the very same Act. Under these licences the petitioner was doing the business of exhibiting films at Vishnu Cinema at Mansa taluka Vijapur district Mehsana. ( 3 ) THE respondents herein are the authorities entrusted with the task of enforcing the provisions of the Act and the Rules. The respondent No. 3 Collector and Collector of Entertainment Tax is the licensing authority who is empowered to revoke or suspend the Cinema Licence on the ground indicated by the relevant provisions of the Act and the Rules. It appears that the petitioner ran into arrears of Entertainment Tax which was leviable under the provisions of the Gujarat Entertainments Tax Act 1977 (hereinafter referred to as `the Entertainments Tax Act) read with the Gujarat Entertainments Tax Rules 1979 (hereinafter referred to as the Entertainments Tax Rules ). There were certain other infractions of the Bombay Cinema Act and the Bombay Cinema Rules 1954 which were alleged against the petitioner during the time he was conducting the cinema business at Mansa In light of the aforesaid irregularities alleged against petitioner a show cause notice was issued against the petitioner by the concerned authority and thereafter by an order dated 1-7-1984 passed by the respondent No. 3 herein the cinema licence of the petitioner was suspended as per Rule 131 of the Bombay Cinema Rules 1954 till further orders. By the very same order it was directed that the complaint be filed for the breach of sub-rule (3) of rule 3 of the Gujarat Entertainments Tax Rules 1979 It was also directed that complaint be filed under Rule 130-C of the Bombay Cinema Rules 1954 for the breach of Rule 123 thereof. The aforesaid order at Annexure A is the first order which has been challenged in these proceedings which is followed by the second order at Annexure B whereby the 3rd respondent has cancelled the Cinema Licence of the petitioner as per provision of Rule 131 of the Bombay Cinema Rules. By the very same order complaint is ordered to be filed against the petitioner as per Rule 130-C of the Bombay Cinema Rules 1954 for infraction of Rules 115 117 and 118 of the Bombay Cinema Rules and also as per sec. 16 of the Gujarat Entertainments Tax Act 1977 for the breach of Rule 3 (2) of the Gujarat Entertainments Tax Rules 1979 The third impugned order is at Annex. C which is dated 29 This order is also passed by the respondent No. 3-Licensing Authority. By this order the Cinema Licence of the petitioner is revoked on the ground that the petitioner has committed breach of Rule 128 of the Bombay Cinema Rules inasmuch as he failed to procure and produce Certificate from the Electrical Inspector about the electric installation in the Theatre being in proper condition so far as the year 1984 was concerned. The fourth impugned order is Annexure `d dated 26 1984 The said order seeks to suspend the Cinema Licence given to the petitioner for running Vishnu Cinema on the ground that the proprietor of that cinema namely the petitioner had committed breach of the sec. 123 of the Bombay Cinema Rules 1951 and Rule 3 (2) of they Gujarat Entertainments Tax Rules 1979 ax well as Rules 7 and 10 thereof. The 5 impugned order is at Annexure `e to the petition which is dated 1985 This order is passed by the Deputy Secretary to the Government of Gujarat Information Broadcasting and Tourism Department Sachivalaya Gandhinagar in the name of the Governor of Gujarat. It is an appellate order which seeks to dismiss the appeals of the petitioner against the orders at Annexures `a and `b respectively. It is an appellate order which seeks to dismiss the appeals of the petitioner against the orders at Annexures `a and `b respectively. The last impugned order is at Annexure `h dated 1-5-1985 passed by the respondent No. 3- Licensing Authority refusing to renew the Cinema Licence and Booking Licence of the petitioner for the subsequent year on the ground that the Cinema Licence and the Booking Licence of the petitioner were already cancelled by earlier orders dated 1-7-1984 and 22-7-1984 and consequently there was no question of renewing these revoked licences. Learned Counsel Mr. S. R. Shah for the petitioner raised the following submissions in support of the petition: (1) So far as the impugned order at Annexure A is concerned the 3rd respondent had patently erred in suspending the Cinema Licence and the Booking Licence of the petitioner and that the said order has been passed contrary to the relevant provisions of the Bombay Cinemas (Regulation) Act 1953 and the Bombay Cinema Rules 1954 (2) The impugned order at Annexure B revoking the cinema licence and booking licence of the petitioner also suffers from the patent error of law and jurisdiction inasmuch as these licences have been revoked by the respondent No. 3 in exercise of the power under sec. 8 read with Rule 131 of the Bombay Cinemas (Regulation) Act and the Bombay Cinema Rules respectively on a ground which is totally irrelevant and extraneous to the provisions of the said Act and the Rules the revocation order is therefore null void and without jurisdiction. (3) As orders at Annexures A and B are null and void the appellate order at Annexure E confirming these two orders is also rendered null and void on the same ground. (4) The order at Annexure C is patently erroneous inasmuch as the third respondent while exercising his powers under sec. (3) As orders at Annexures A and B are null and void the appellate order at Annexure E confirming these two orders is also rendered null and void on the same ground. (4) The order at Annexure C is patently erroneous inasmuch as the third respondent while exercising his powers under sec. 8 of the Bombay Cinemas Act and Rule 131 of the Bombay Cinema Rules has imposed too harsh a penalty on the petitioner without considering the nature of the irregularities alleged against the petitioner that the only irregularity alleged was that the petitioner failed to furnish the certificate issued by the Electrical Inspector about the electric installation in the theatre for the year 1984 when such refusal on the part of the Electrical Inspector proceeded on a totally misconceived ground that the petitioner had not appointed a permanent operator for running the projector in the theatre when all that Rule 74 of the Bombay Cinema Rules required was to the effect that the Licence holder must provide for a qualified operator and it was no bodys contention that the part time operator appointed by the petitioner was not a duly qualified person. Thus on a totally extraneous ground the Electrical Inspector had refused to issue the requisite Certificate for the year 1984. Consequently infraction of Rule 28 becomes a mere technicality and for such insignificant technical breach the third respondent ought to have imposed penalty of suspending the Licence for some time and directing the petitioner to get the Certificate of the Electrical Inspector in the meantime. Thus the order at Annexure `c suffers from total non-application of mind on all relevant aspects of penalty. (5) It was next contended that so for as the suspension of the Cinema Licence pursuant to the order at Annexure D is concerned the said order proceeds on complete non application of mind inasmuch as on 26 1984 there was no operative Cinema Licence in the field as the Licence had already stood cancelled by order at Annexure B and that the petitioner had not obtained any stay of the order at Annexure B from the appellate authority Consequently there remained no occasion for the 3rd respondent to again suspend a non-existing licence. Thus the impugned order is patently erroneous null and void. (6) So far as the order at Annexure `h is concerned it was submitted by learned Counsel Mr. Thus the impugned order is patently erroneous null and void. (6) So far as the order at Annexure `h is concerned it was submitted by learned Counsel Mr. Shah appearing for the petitioner that the said order is consequent upon the orders at Annexure sa and B and if his submissions regarding the illegality of the orders at Annexures A and B are accepted then as a consequence the order at Annexure H is liable to be quashed and set aside and the respondents are required to be directed to consider the case of the petitioner for the renewal of the Cinema Licence and the Booking Licence for the unexpired period of year 1986 and thereafter. ( 4 ) THAT takes us to the consideration of the 2nd contention centering round the legality of the order at Annexure B A mere look at order at Annexure B shows that 8 irregularities and infractions of the relevant provisions of the Bombay Cinema Act and the Bombay Cinema Rules as well as the Gujarat Entertainments Tax Act and Rules wore alleged against the petitioner during the working of Vishnu Cinema in the year 1984. Out of these 8 infractions and irregularities Item Nos. 1 2 3 4 5 6 and 8 pertain to the allegations about the violation of the Bombay Cinemas Rules 1954 framed under the Bombay Cinemas (Regulation) Act 1953 while the irregularity listed at Item No. 7 pertains to non-payment of the entertainment tax of Rs. 2 lacs allegedly due and payable by the petitioner. That tax of course was payable by the petitioner as per the provisions of Gujarat Entertainments Tax Act 1977 So far as the infractions of the provisions of the Bombay Cinema Act and the Rules framed thereunder were concerned namely those listed at Item Nos. 1 to 6 and 8 in Order at Annexure B the 3rd respondent who passed the order has in terms held in paragraph 8 of the order that for these infractions he was directing prosecution of the petitioner as per Rule 130-C of the Bombay Cinema Rules and for infraction of sec. 3 (1) and sec. 21 of the Gujarat Entertainments Tax Act as well as Rule 3 (2) of the Gujarat Entertainments Tax Rules he was pleased to order that complaint be filed as per the provision of sec. 16 of the Gujarat Entertainments Tax Act. 3 (1) and sec. 21 of the Gujarat Entertainments Tax Act as well as Rule 3 (2) of the Gujarat Entertainments Tax Rules he was pleased to order that complaint be filed as per the provision of sec. 16 of the Gujarat Entertainments Tax Act. That part of the order at Annexure B is not in Challenge before us. Mr. Shah learned Counsel for the petitioner has mounted challenge to only first part of the order as mentioned in paragraph 8 of the Order at Annexure B by which the respondent No. 3 directed revocation of the Cinema Licence and Booking Licence of the petitioner as per Rule 131 of the Bombay Cinema Rules 1954 So far as this challenge was concerned Mr. Shah submitted that the 3rd respondent has made it clear that he was ordering revocation of these licences as per the Rule 131 of the Bombay Cinema Rules 1954 only because the petitioner had defaulted in payment of arrears of entertainment tax which amounted to Rs. 2 lacs by then. Mr. Shah learned Counsel for the petitioner vehemently contended that even assuming that the petitioner had committed defaults in the payment of Entertainments Tax and was liable to be proceeded just for the same under the Provisions of the Gujarat Entertainments Tax Act and the Rules that omission on the part of the petitioner did not clothe 3rd respondent with any power to revoke the cinema licence and the Booking Licence of the petitioner as wrongly assumed. In other words it was submitted that this ground was totally extraneous to the scope and ambit of provisions of revocation as envisaged by Bombay Cinemas (Regulation) Act and the Rules. In this connection Mr. Shah learned Counsel for the petitioner invited our attention to sec. 8 of the Bombay Cinemas (Regulation) Act 1953 which reads as under: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 under sec. 10 or in the event of his conviction of an offence under sec. 7 of this Act or sec. 10 or in the event of his conviction of an offence under sec. 7 of this Act or sec. 7 of the Cinematograph Act 1952 the licensing authority may revoke the licence or suspend it for such period as it may think fit. PROVIDED that no licence shall be revoked given (sic without giving a) reasonable opportunity to show cause. A mere look at this provision shows that a Cinema Licence and a Booking Licence issued to the concerned proprietor of the Cinema can be revoked by the competent authority on the proof of one or more of the following facts : (A) a holder of the licences had contravened any of the provisions of the Bombay Cinemas (Regulation) Act 1953 and/or (b) he has committed contravention of any of the rules of the Bombay Cinema Rules 1954 and/or (c) the licensee has committed breach of any of the conditions or restrictions imposed upon the licence-holder as per the Licence granted to him and/or (d) any of the conditions or restrictions imposed by an order of exemption made under sec. 10 of the said Act has been contravened; and/or (e) in the event of his conviction of an offence under sec. 7 of the said Regulation Act or sec. 7 of the Cinematograph Act 1952mr. Shah submitted that the non-payment of the entertainment tax under the Gujarat Entertainments Tax Act 1977 does not fall within any of the aforesaid categories contemplated by sec. 8 of the Bombay Cinemas (Regulation) Act 1953 Consequently the 3rd respondent had no jurisdiction to invoke his power under sec. 8 of the said Act for revoking the Licences of the petitioner on allegation that the petitioner had failed to pay the entertainment tax and had allowed it to run into huge arrears. Mr. Shah submitted that neither sec. 8 nor any other section of the Bombay Cinema (Regulation) Act nor the rules framed under the said Act lay down any liability on the part of the Cinema Licence Holder or Booking Licence Holder to be regular in payment of Entertainments Tax nor any of these provisions indicates that the failure to pay the entertainment tax regularly with expose the concerned Cinema Licence Holder and the Booking Licence Holder to the eventuality of getting his licence revoked under the Bombay Cinema Act or the rules framed thereunder. It was also contended that Rule 131 of the Bombay Cinema Rules 1954 which was invoked by the 3rd respondent for passing his revocation order at Annexure B also does not contemplate the ground about the non-payment of the Entertainments Tax by the Cinema Licence Holder and the Booking Licence holder. In this connection be invited our attention to Rule 131 (1) of the said Rules which reads as under:131 SUSPENSION OR CANCELLATION OF LICENCES: (1 ). The Licensing Authority may suspend or cancel any licence granted under these rules for contravention of any of these Rules or the conditions of the licence granted under these rules provided that the Licensing Authority shall give the licensee an opportunity to show cause before taking any action under this sub-rule. (2 ). . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . We find considerable force in the aforesaid contention of Mr. Shah. Conjoint reading of sec. 8 of the Bombay Cinemas (Regulation) Act 1953 and Rule 131 (1) of the Bombay Cinema Rules 1954 makes it clear that the Licensing authority functioning under the Bombay Cinemas (Regulation) Act 1953 can cancel or suspend the Cinema Licence or Booking Licence granted under the Act only if one of the aforesaid five eventualities contemplated by sec. 8 of the aforesaid Act takes place or if more than one such eventualities take place. Neither sec. 8 nor Rule 131 can be pressed in service for the revocation or suspension or cancellation of any Cinema Licence or Booking Licence on the ground that the proprietor of the Cinema has not paid the tax under the provisions of the Gujarat Entertainments Tax Act 1977 For Enforcement of payment of Entertainment Tax and the recovery thereof the process laid down in the Entertainments Tax Act and the Rules has to be followed. These provisions are totally foreign to the scope of sec. 8 and Rule 131 of the aforesaid Rules. These provisions are totally foreign to the scope of sec. 8 and Rule 131 of the aforesaid Rules. In that view of the matter the impugned order at Annexure B insofar as it involves rule 131 of the above Rules for revoking the Cinema Licence and Booking Licence of the petitioner for non-payment of the Entertainment Tax must be held to be suffering from the patent error of law and jurisdiction and that part of the order has to be set aside. The second contention raised by Mr. Shah learned Counsel for the petitioner is therefore accordingly upheld. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 5 ) THAT takes us to the 4th contention raised by Mr. Shah learned Counsel for the petitioner centering round the validity of order at Annexure C which is another order of revocation of the Cinema Licence of the petitioner on the ground that the petitioner has violated Rule 28 of the Bombay Cinema Rules. Now it must be kept in view that Rule 28 of the Bombay Cinema Rules enjoys that once in every 12 months the proprietor of the cinema has to obtain Certificate from the Electrical Inspector or his Assistant certifying in writing to the Licensing Authority that the electric light fan or other apparatus installed in a cinema are in proper working order. It is an admitted position that for the year 1984 the petitioner could not obtain such a certificate from the Electrical Inspector or his assistant. However the reason why such a certificate was not given qua the electric light. fans or other apparatus in the cinema of the petitioner was to the effect that the petitioner had not employed a full time operator for operating the cinema projector. However the reason why such a certificate was not given qua the electric light. fans or other apparatus in the cinema of the petitioner was to the effect that the petitioner had not employed a full time operator for operating the cinema projector. So far as this ground is concerned our attention was invited by the learned Counsel Mr. Shah to Rule 74 of the Bombay Cinema Rules which lays down that the electric plant and projecting apparatus shall be in the hands of qualified persons who shall be nominated in writing for this purpose by licensee of the cinema and such nomination shall be subject to the approval of the Electrical Inspector or the Assistant Electrical Inspector concerned. It has been further provided in the said Rule that the electrical installation shall be in charge of a properly qualified person (Class II Wireman) and his name and qualifications shall be notified to the Electrical Inspector or the Assistant Electrical Inspector concerned for approval. A mere look at the aforesaid Rule show that all that is required to be done by the proprietor of the Cinema is to have a qualified operator and qualified wireman. Nowhere it is envisaged that such a qualified employee should be employed on full time basis and not on part time basis. Consequently the stand taken by the Electrical Inspector in refusing to issue requisite Certificate as per Rule 28 on the ground that the operator was not a full time operator at the cinema of the Petitioner appears to be patently erroneous. However it is not necessary to dilate on this aspect any further. The fact remained that for the year 1984 the Electoral Inspector did not issue any Certificate to the petitioner as per Rule 28 of the said Rules. The petitioner has not made any grievance either in the present petition or in any other petition or proceedings in that connection. nor the Electrical Inspector is joined as a party to this petition. The petitioner has not made any grievance either in the present petition or in any other petition or proceedings in that connection. nor the Electrical Inspector is joined as a party to this petition. We must therefore proceed on the basis that for the year 1934 the Electrical Inspector for good or bad reason had refused to issue requisite Certificate under Rule 28 of the Bombay Cinema Act Still however as the reason why he did not issue the certificate was the solitary reason that the operator was not a permanent operator as mentioned in the order at Annexure C the 3rd respondent as an authority exercising powers under Rule 131 of the said Rules ought to have seen that the reason given by the Electrical Inspector for refusing to give the requisite Certificate was not a justified reason and consequently the infaction of Rule 28 of the Bombay Cinema Rules ought to have been regarded by him as a mere technical and not a substantial breach. For such a technical and minor breach extreme penalty of revocation of Licence ought not to have been pressed in service Instead lesser penalty of suspension of licence of the petitioner for a few days could have been ordered within which time the petitioner could have been directed to get the requisite certificate from the electrical inspector. Mr. Shah learned Counsel for the petitioner informed us that the Electrical Inspector had appreciated the grievance of the petitioner in this connection and for the year 1985 he has already issued the requisite Certificate even though the operator was a part time operator. Be that as it may be on these facts as mentioned in the order at Annexure C there is no escape from the conclusion that the order of revocation as passed by the 3rd respondent on the ground of violation of Rule 28 of the Bombay Cinema Rules on the part of the petitioner suffers from a patent error of law and non-application of mind on the relevant aspect regarding the gravity of offence and the need for passing appropriate penalty order in that light. As that has not been done even the order at Annexure C has got to be quashed and set aside. ( 6 ) THERE is one additional aspect of the matter which also stares in the face. As that has not been done even the order at Annexure C has got to be quashed and set aside. ( 6 ) THERE is one additional aspect of the matter which also stares in the face. The 3rd respondent by his previous order at Annexure B had already revoked the Cinema licence of the petitioner. Obviously that was on and from 22-7-1984 from which date there was no valid Cinema Licence governing the cinema of the petit other If that is so there was no occasion to again revoke the very same Licence. as was done by the order at Annexure C dated 20-10-1984. The respondent No. 3 has by order Exhibit-C tried to slay the slain. Thus the order at Annexure C was even on that ground superfluous and an exercise in futility and exhibited total non-application of mind on the part of the respondent No. 3 as he himself had before three months cancelled that very licence. For all these reasons the 4th contention of hr. Shah has also to be accepted. [ The rest of the Judgment is not material for the reports. ] rule made absolute. .