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1989 DIGILAW 334 (KAR)

L. C. ASHOK v. DIVISIONAL COMMISSIONER, BANGALORE

1989-09-19

S.R.RAJASEKHARA MURTHY

body1989
RAJASEKHARA MURTHY, J. ( 1 ) THE Writ Petition is taken up for final hearing by consent of both sides. The petitioner was granted 'noc' to convert the touring cinema into a semipermanent cinema by order dated 23-2-1988 passed by the District Magistrate, Bangalore - District (Annexure-B ). This 'noc' was granted in Form No. 3 under Rule (new rules) 105 of the Karnataka Cinemas (Regulation) Rules, 1971. ('rules' ). The 'noc' granted is valid for a period of three years from the date of issue, as per Clause (l) of the grant. ( 2 ) THE petitioner started conversion of the touring cinema and while the conversion was in progress, he made an application for continuance of the touring cinema licence on 23-7-89. The District Magistrate issued an endorsement dated 29-7-89, as per Annexure-C, declining to continue the touring cinema licence on the ground that the lease of the land on which the touring cinema was located, had expired on 31-7-89. Against this endorsement, the petitioner filed an appeal before the Divisional commissioner, Bangalore. The Divisional commissioner also upheld the view of the district Magistrate that the petitioner should produce a renewed lease-deed for the period beyond 31-7-89 in order to get a renewal of the touring cinema-licence. He also observed that the District-Magistrate may reconsider the continuance, if the petitioner is able to get the lease renewed. ( 3 ) THE Endorsement issued by the District magistrate (Annexure-C) and the order of the Divisional Commissioner (Annexure-G), are challenged in this writ petition. The petitioner does not dispute that the lease of the land on which the touring cinema is situate expired on 31-7-89. But, it is brought to my notice that the owner of the land expressed 'no objection' for conversion before the District Magistrate and to grant 'noc. A copy of the letter of consent given by the owner is produced as Annexure-A. It is, perhaps, on the basis of this consent letter by the owner that the District Magistrate granted 'noc' in Form 'd' on 23-2-88. ( 4 ) THE question that arises for consideration is, whether the District Magistrate is justified on facts in insisting on producing a renewed lease for granting continuance of the touring cinema licence as provided under sub-rule (6)of Rule 105? ( 4 ) THE question that arises for consideration is, whether the District Magistrate is justified on facts in insisting on producing a renewed lease for granting continuance of the touring cinema licence as provided under sub-rule (6)of Rule 105? it is no doubt the primary requirement of the new rules that the applicant for conversion should prove his lawful possession at the time he applies for conversion, and that requirement is required to be satisfied by the applicant before the licensing-authority for grant of 'noc' for conversion. Sub-Rule (2) of Rule 105 contemplates inspection and enquiry by the District Magistrate before he grants 'noc' for a semi-permanent cinema. ( 5 ) IT is argued by Sri E. G. Sridharan, learned Counsel for the petitioner that once 'noc' is granted in Form 'd' under Rule 105 (3), the petitioner is entitled for continuance of the touring cinema licence under the second - proviso to Rule 105 (6) for a period not exceeding three-years within which he has to complete the conversion. ( 6 ) IT is also the argument of the learned - counsel that no other enquiry is contemplated about the lawful possession of the licence-holder at the end of each year, when the licence holder applies for continuance of the touring cinema licence under the second proviso to Rule 105 (6 ). ( 7 ) ON a careful examination of the scheme of Rule 105, which is a special provision and which is in the nature of transitory provisions provides for deemed continuance of touring cinema licence for a period of one year at a time as provided under Rule 99 of the Rules. It is nowhere contemplated under the new rules that the licence-holder, who is granted 'noc' for conversion to semi-permanent cinema should satisfy lawful possession at the end of every year. Sub-rule (6) of Rule 105 provides for a deemed continuance of touring cinema licence for a period of one year from the date of commencement of the amendment rules, to enable the licensing-authority to take a decision, whether to grant conversion or not. The second proviso to Rule 105 (6) provides for further extension of time to complete the conversion of the existing touring cinema not exceeding one year, at a time, if the licensing authority is satisfied about the progress of the conrersion. The second proviso to Rule 105 (6) provides for further extension of time to complete the conversion of the existing touring cinema not exceeding one year, at a time, if the licensing authority is satisfied about the progress of the conrersion. such extension granted shall not exceed a total period of three years from the date of commencement of the amendment rules. It is under these provisions that the licence holder of a touring cinema gets a deemed extension in the case of a grant of 'noc' for conversion of his touring cinema. These provisions are in the nature of transitory provisions under which so that the licence holder of the touring cinema may apply for conversion and complete such conversion within a period of 3 years. It is only thereafter that the licensing - authority is required to grant a permanent licence for a semi-permanent cinema if the applicant satisfies the requirements of the Rules. On the facts of the present case, it looks as though the licensing authority has completely overlooked the provisions for extension which the petitioner is entitled to avail of after he was granted 'noc' for conversion. It is only after the applicant filed an application for continuance of the touring cinema licence on 22-7-89, perhaps, he realised that the lease of the land was about to expire on 31-7-89 and therefore, he insisted on continuance of the lease beyond 31-7-89 to consider the grant of renewal. It is also interesting to note that the owner of the land after having given his consent seems to have appeared before the divisional Commissioner, suo motu, and filed his objections. ( 8 ) IN these proceedings before me in the writ-petition, on being directed by the Court, the petitioner took out notice to the owner twice. Neither the acknowledgment is received nor notice is returned. The petitioner has filed a memo under Order 5 rules 19 (a) stating that the notice sent to the owner may be treated as having been duly served. Since Respondent-3 has not chosen to appear before this Court inspite of the notice having been sent to him, by Registered Post twice, he is deemed to have been served with the said notice and I proceed to dispose of the writ petition by this Order declaring that he duly served. Since Respondent-3 has not chosen to appear before this Court inspite of the notice having been sent to him, by Registered Post twice, he is deemed to have been served with the said notice and I proceed to dispose of the writ petition by this Order declaring that he duly served. In this view of the matter, the Endorsement, (Annexure-C), issued by the District magistrate, Bangalore District, Bangalore, and the order made by the Divisional Commissioner, Bangalore Divisional (Annexure-G) are not sustainable, both on facts and in law and are, therefore, quashed. The District Magistrate is directed to renew the touring-cinema licence of the petitioner in accordance with the second-proviso to Rule 105 (6) of the Rules, subject to satisfying as to the progress of the - conversion. Writ petition allowed. --- *** --- .