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2003 DIGILAW 147 (CAL)

SAMBHUNATH KUNDU v. DISTRICT MAGISTRATE, HOOGHLY

2003-03-26

INDIRA BANERJEE

body2003
INDIRA BANERJEE, J. ( 1 ) IN this writ application the petitioner has challenged an order dated 27th June, 2000 passed by the respondent No. l allowing the application of the respondent No. 7 for renewal of a licence under the West Bengal Cinemas (Regulation of Public Exhibition) Rules, 1956 for the cinema "swapanpuri" at Bansberia. ( 2 ) THE facts pertaining to this writ petition are briefly as follows. ( 3 ) THE petitioners claim themselves to be the owners of the said cinema hall by inheritance from one Manindra Chandra Kundu since deceased. ( 4 ) ON or about 1st November, 1985 the petitioners leased out the said cinema hall to one Jiban Krishna Biswas for a period of 10 years. The formal lease deed was, according to the petitioners, executed on 20th May, 1988. ( 5 ) IT appears that Jiban Krishna Biswas to whom the said cinema hall has been leased out by the petitioners died soon thereafter. After the death of the said Jiban Krishna Biswas, his hers and successors became the lessee of the said cinema hall. ( 6 ) IT appears that the heirs of the said Jiban Krishna Biswas started running the said cinema hall after obtaining licence from the concerned authorities under the provisions of the West Bengal Cinemas Regulation act, 1954/west Bengal Cinemas (Regulation of Public Exhibition) Rules, 1956. ( 7 ) ACCORDING to the petitioners, the lease for 10 years expired by efflux of time on or about 31st October, 1995 and was not renewed thereafter. It is alleged that the respondent Nos. 7, 8 and 9 being the heirs of the said Jiban krishna Biswas are illegally holding over the said cinema hall although they have no right whatsoever to do so. ( 8 ) THE petitioners appear to have served a notice on the said respondents calling them to vacate the said cinema hall on 31st October, 1995. According to the petitioners the said respondents have not complied with the demand of the petitioners. ( 9 ) THE petitioners made a representation to the respondent Nos. 2 to 5 requesting them to take appropriate steps to stop the said respondent Nos. 7 to 9 from running the cinema by cancelling the licence granted to them. ( 10 ) THE respondent Nos. 2 to 5 did not take any steps to cancel the licence of the respondent Nos. 2 to 5 requesting them to take appropriate steps to stop the said respondent Nos. 7 to 9 from running the cinema by cancelling the licence granted to them. ( 10 ) THE respondent Nos. 2 to 5 did not take any steps to cancel the licence of the respondent Nos. 7 to 9, whereupon the petitioners moved an application under Article 226 of the Constitution of India in this Court being c. O. No. 7137 (W) of 1996. ( 11 ) THE said writ application was disposed of by an order dated 19th August, 1996 by directing the District Magistrate, Hooghly to consider and dispose of the representation of the petitioners within 8 weeks after giving all the parties an opportunity of hearing. ( 12 ) PURSUANT to the aforesaid order dated 19th August, 1996 of this Court, the District Magistrate heard all the parties and passed an order directing that the licence granted in favour of the respondent Nos. 2 to 9 be cancelled under Rule 20 of the West Bengal Cinemas (Regulation and Public Exhibition)Rules, 1956. ( 13 ) THE respondent Nos. 7 to 9 challenged the aforesaid order in proceedings under Article 226 of the Constitution of India in this Court being W. P. No. 61 (W) of 1997. ( 14 ) BY an order dated 24th January, 1997 this Court was pleased to quash the aforesaid order of the District Magistrate. ( 15 ) THE relevant portion of the said order dated 24th January, 1997 is set out hereinbelow: "a licence can be cancelled only if the petitioner has violated any of the provision contained in West Bengal Cinema Regulation Act and the rules framed thereunder and/or conditions of the licence. The question as to whether the petitioner continues to be a tenant despite the expiry of the period of lease, is a question which can be decided by a competent Civil court and not by the District Magistrate. The impugned order, therefore, has been passed wholly without jurisdiction inasmuch as the licensing authority could not have passed any order cancelling the said licence unless the petitioner is found, guilty of violating any of the provisions of the said Act and the rules framed thereunder. By passing the impugned order, the licensing authority has reserved a jurisdiction which he did not have. By passing the impugned order, the licensing authority has reserved a jurisdiction which he did not have. " ( 16 ) THE petitioners preferred an appeal being FMA No. 400 of 1997 against the aforesaid order. The Appellate Court was, however, pleased not to interfere with the aforesaid order observing that the order had become infractuous since the licence had expired in any case. ( 17 ) THE petitioners are stated to have filed a civil suit being Title Suit no. 67/97 in the Court of the learned Civil Judge, 1st Court, Hooghly for eviction of the respondent Nos. 7 to 9. The petitioners also made a representation to the District Magistrate requesting the District Magistrate not to renew the licence for the cinema hall in favour of the respondent nos. 7 to 9. ( 18 ) THE District Magistrate, it is alleged, did not take any action on the said representation whereupon a writ application being W. P. No. 4908 (W)of 2000 was moved in this Court. The said writ application was disposed of by an order dated 11th September,; 1999 directing the District Magistrate to consider the representation of the: petitioner being Annexure "i" of the writ petition in accordance with law, after giving a hearing to the petitioner and the respondent Nos. 7 to 9 and by passing a reasoned order. ( 19 ) PURSUANT to the aforesaid order, the District Magistrate gave the petitioner and the respondent Nos. 7 to 9 a hearing and thereafter passed the order dated 27th June, 2000 impugned by the petitioners in this writ application. The relevant portion of the impugned order is extracted hereinbelow for convenience: "seen the A. Tax receipt paid by the licensee, Mira Biswas of M/s. Swapanpuri Cinema. Considering all the facts and documents it is ascertained that Smt. Mira Biswas, licensee of Swapanpuri Cinema, is in possession of the hall. As directed by Hon'ble High Court, I heard both the parties and I am satisfied that licensee Smt. Mira Biswas is in possession of the Cinema hall. So, renewal of licence in favour the licensee. Mira Biswas is considered and accepted. " ( 20 ) COUNSEL appearing on behalf of the petitioner has contended that the district Magistrate proceeded on the misconceived and erroneous assumption that mere possession of the cinema hall entitled the respondent Nos. 7 to 9 renewal of the licence. So, renewal of licence in favour the licensee. Mira Biswas is considered and accepted. " ( 20 ) COUNSEL appearing on behalf of the petitioner has contended that the district Magistrate proceeded on the misconceived and erroneous assumption that mere possession of the cinema hall entitled the respondent Nos. 7 to 9 renewal of the licence. ( 21 ) ACCORDING to the petitioners, the District Magistrate overlooked the fact that the lease of the cinema hall in question having expired the respondent Nos. 7 to 9 had no right whatsoever to remain in possession of or to run the cinema hall in question. ( 22 ) IT is not the contention of the petitioner in the instant case that the petitioners trespassed into the cinema hall from the inception. Nor have the petitioners questioned the initial grant of licence to the respondents. ( 23 ) THE legality of the initial grant of licence in favour of the respondent nos. 7 to 9 not being in issue, renewal thereof cannot be refused on the grounds urged by the petitioners. The aforesaid fact is, in my view, no longer relevant for the purpose of grant or renewal of a licence in view of the provisions of the West Bengal Cinema Regulation Act, 1954 and the West bengal Cinema (Regulation of Public Exhibition) Rules, 1956 as also the judgment and order dated 24th January, 1997 of this Court in W. P. No. 61 (W) of 1997 referred to above. ( 24 ) IT has also been argued by Counsel appearing on behalf of the petitioners that licence can only be granted to an owner and not to a person in occupation of a cinema hall. Such submission is not backed by any provision of law. Rules 4 and 6 of the 1956 rules relied upon by the petitioner do not support the contention of the petitioner that licence cannot be granted except to an owner. ( 25 ) SUCH licence, in my view, can be granted to any person in lawful occupation of the cinema hall. In fact, the respondent Nos. 7 to 9 were granted licence way back in 1985-86 without any objection whatsoever from the petitioners and the licence so granted has duly been renewed from time to time. ( 26 ) THE mere fact that the lease for 10 years granted by the petitioners in favour of the respondent Nos. In fact, the respondent Nos. 7 to 9 were granted licence way back in 1985-86 without any objection whatsoever from the petitioners and the licence so granted has duly been renewed from time to time. ( 26 ) THE mere fact that the lease for 10 years granted by the petitioners in favour of the respondent Nos. 7 to 9 and/or their predecessor-in-interest has expired does not in itself make the occupation of the said respondents illegal. ( 27 ) AS rightly pointed out by Counsel appearing on behalf of the said respondents, on expiry of a contractual lease, the lessees could become statutory tenants under the provisions of the West Bengal Premises Tenancy act, 1956. ( 28 ) MOREOVER, the civil suit filed by the petitioners for eviction of the respondent Nos. 7 to 9 from the cinema hall in question has been dismissed. The petitioners submit that an appeal therefrom is pending. ( 29 ) THE Civil Court has by dismissing the suit of the petitioners for eviction of the respondent Nos. 7 to 9 upheld the contention of the respondent Nos. 7 to 9 that they are all bona fide occupants of the cinema hall in question. Until and unless the aforesaid decision is upset in appeal, the occupation of the respondent Nos. 7 to 8 cannot be said to be illegal. ( 30 ) THE petitioners have failed to make out any grounds for interference with the impugned order. In any event, the impugned order ought not be interfered with in exercise of discretionary jurisdiction of this Court under article 226 of the Constitution of India. ( 31 ) THE respondents have apparently chosen a devious means of evicting the lessees from the cinema hall in question after having failed in a Civil court. ( 32 ) THE writ application is, therefore, dismissed. There will be no order as to costs. ( 33 ) IF an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. Writ application dismissed