Uttam Kumar Roy v. State of West Bengal — 1996 DIGILAW 397 (CAL)

JUDGMENT The applicants have all applied for grant of licence to the District Magistrate, Burdwan for exhibition of films VCR/VCP, commonly known as Video Licence. The applicants application was rejected on 10th January, 1996 by the District Magistrate on the ground that there was an order of High Court to maintain status quo in respect of issuing free Video Licences. As such the prayer for grant of Video Licence: was not entertained at all No particulars of the proceedings in such order of status quo had been passed nor indeed the date of the order was given by the District Magistrate. After making enquiries the applicants came to learn of the following facts:- The applicant are licence holders for Video shows under West Bengal Cinemas (Regulation) Act, 1954 (West Bengal Act 1 of 1954). They filed a writ application on in October 1995 challenging that the steps taken by the respondents to issue licences for new Video holders at Kalna Sub division in the District of Burdwan. An order of status quo was passed on 13th October, 1995 which was directed to continue until the writ application was decided. 2. The applicants have submitted before this Court that the interim order should be vacated on inter alia the following grounds:- (1) The writ petitioners had no locus standi to challenge the grant of licence on the ground that they are merely competitors in the field. Reliance has bet n placed on the decisions reported in (1) AIR 1971 SC 246 , The Nagar Rice & Flour Mills & Ors. v. N. Teekappa Gowda & Bros & Ors. ; (2) AIR 1976 SC 578 , J. M. Dasai v. Roshan Kumar Haji Bashir Ahmed & Ors.; (3) AIR 1992 SC 443 , Mithilesh Garg v. Union of India & Ors. and (4) AIR 1995 Allababad 447, Hari Prakash Gupta v. Zilla Panchayat (Zilla Parishad). (2) The next ground as far as the writ petitioners are concerned is that initially a writ application had been filed in 1993 by the writ petitioners being C. O. No. 12766 (W)/1993. Interim orders had been passed by S. K. Sen. J. on 30.3.93 and 27.7.93. both interim orders will vacated by Shree Rang Mishra on 9.11.94. An appeal was preferred from this order by the writ petitioners. Interim orders had been passed by S. K. Sen. J. on 30.3.93 and 27.7.93. both interim orders will vacated by Shree Rang Mishra on 9.11.94. An appeal was preferred from this order by the writ petitioners. The appeal was disposed of on 10.2.95 by directing the authorities concerned to decide the matter in' accordance with law. It is also submitted that a second writ application had been filed before B. P. Banerjee, J. which has been dismissed. These was another proceeding, this time initiated by the applicants herein being C. O. No. 2999 (W)/95. This writ application was disposed of in favour of the applicants by an order dated 25th August, 1995 by N. K. Batabyal, J. who held that the refusal of the authorities to grant Video Licence to the applicants was arbitrary and who directed the grant of the Video Licence to the application within a period of 4 weeks. The appeal from this order dated 25th August, 1995 by the writ petitioners intervenors has been dismissed on 27th September, 1996. 3. The learned Advocate appearing on behalf of the State has submitted that the State Government bas nothing to say in the matter. 4. As far as the writ petitioners are concerned it is stated that the policy of the Government of granting Video Licence in the manner they had sought to do was arbitrary and the power to do so unchallenged. It is further stated that the licence was sought to be granted by the BDO who was not authorised to do so. According to the writ petitioners, Justice N. K. Batabyal's order in C. O. No. 2999 (W)/95 was not binding on the writ petitioners Finally it is stated that the Division Bench by the order dated 10th February, 1995 had directed the authorities to dispose of the matter keeping in view of the policy of the Government and as such N. K. Batabyal, J'.s order in C. O. No. 2999 (W)/95 which was passed without considering the direction of the Division Bench should not be given effect to. 5. 5. Having considered the submission of the parties it appears on scrutiny of the affidavit-in-opposition to the application for vacating the interim order that the basic ground on which the writ petitioners have filed this writ application is that the Video Licences were being issued to the writ petitioners there by affecting the right to trade/livelihood of the petitioners. 6. The decision relied upon by the applicants clearly holds that a mere competitor has no right to file a writ application to challenge the grant of licence, to any other person on the ground that it affects his right to trade. In the decision of the Nogar Rice & Flour Mills & Ors. (supra) the Rice Mill owner had sought to challenge the grant of licence to another Rice Mill owner at a new site. The Supreme Court in dismissing the writ application held that the competitors in business could have no grievance which could be ventilated under Article 226. The right, of the new applicants to carryon business was a fundamental right which could not be subjected to any restriction except those imposed under Article 19(1). 7. In the decision of J. M. Desai's case (supra) it was also held that the proprietor of a cinema, theatre holding a licence for exhibiting cinemas is not entitled to invoke the writ jurisdiction to challenge the grant of a no objection certificate to a rival in trade to carryon business in cinematograph films. 8. Similarly the decision in Mithilesh Garg (supra) held that when the State itself does not choose to impose any restriction under Article 19(6) of the Constitution and the existing operators (in the field of transport) could have no cause for grievance. 9. All these decisions have been considered by the Division Bench of Allahabad High Court in the case of Hari Prakash Gupta (supra) The Allahabad High Court held that where the statute itself does not confer exclusive right on the licensee to carryon business an existing licensee cannot object to the grant of licence to carryon business to others on the ground that such, renewal of licence adversely affected his business or infringed his legal right to trade Article 19(1)(g) of the Constitution does not guarantee protection from competition in trade. I respectfully adopt the reasoning of the Allahabad High Court's decision in the case of Hari Prakash Gupta to hold that the writ petitioners do not have the locus standi to challenge the grant of licence to their competitors in trade a tall. 10. The decision, cited by learned Advocate on behalf of the writ petitioners far from supporting the writ petitioners in f act supports the case of the applicant. The decision is (5) Sitar Video v. State of U. P., AIR 1994 Allahabad 25. It was claimed in that case that the right to carryon business is Video, Licences was a fundamental right and that the same could not be infringed by any regulation. The Court held that restrictions could be imposed. This means that unless restrictions are imposed, every citizen has an unfettered right to carryon the business in what is a purely commercial activity. On the same reasoning the writ petitioners cannot claim to restrict the carrying on of business by others nor challenge grant of licence to them either in the District or locality nor can, the petitioners take the assistance of Court under Article 226 to help them to create such a monopoly. 11. I made it clear that this decision is arrived at independent of the findings of N. K. Batabyal, J.'s order in C. O. No. 2999 (W)/95. However, it is to be noted that as of today the appeal from N. K. Batabyal, J.'s order dated 25th August, 1995 bas been dismissed. 12. For the reasons aforesaid all interim orders are vacated and the application of the added respondents is allowed Let xerox copies of this judgment be delivered expeditiously to the learned Advocates appearing for the parties on the usual undertaking.