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2003 DIGILAW 332 (PAT)

Baban Sharma v. State Of Bihar

2003-03-25

AFTAB ALAM

body2003
Judgment 1. The dispute in this case relates to the renewal of the licence in favour of respondent no. 8 for running a cinema house under the name of Prabhat Talkies established on the land of the petitioner at Jehanabad. The licensing authority, the District Magistrate, Jehanabad by order, dated 12.3.2001 (Annexure-1) passed in Case No. 16/DM/ 1998-99 found and held that respondent no. 8 was not in lawful possession of the land because its lease had expired on 31.12.1991. He consequently rejected the petition for renewal of the cinema licence. It seems that against the order passed by the District Magistrate, respondent no. 8 preferred an appeal directly before the State Government and the petitioner received a communication, dated 17.5.2001 intimating that the matter was fixed for hearing on the date specified in the letter before the Minister, Urban Development Department, Government of Bihar and further that in the mean while the order passed by the District Magistrate would remain stayed and the film shows in the cinema hall would continue till the disposal of the appeal. 2. At that stage, the petitioner came to this court in CWJC No. 7761 of 2001 challenging the filing of the appeal directly before the State Government and the exparte order passed by the Minister directing for the cinema shows to continue not withstanding the order of the licensing authority rejecting the petition for renewal of the licence. A learned Judge of this court dismissed the writ petition by order, dated 5.7.2001 (Annexure 3). Against that order the petitioner preferred an appeal being L.P.A. No. 664 of 2001. In that appeal, it was conceded by the State counsel that the appeal against the order passed by the District Magistrate would lie before the Divisional Commissioner and bench of this court by judgment and order, dated 6.11.2001 gave the following directions : "Thus, the court hereby certifies that the appeal, which had been filed by the contesting respondent, will be an appeal which will be considered by the Divisional Commissioner having Iocal jurisdiction i.e. to say Divisional Commissioner, Magadh Division, Gaya.The record thus, shall stand transferred to the Divisional Commissioner aforesaid Any ad interim order which had been granted on the appeal, referred to in the communication no. 1399, dated 17 May 2001, to the Additional Secretary, and any other like communication in effect, granting or putting a stay on appeal proceedings shall stand quashed upon a writ of certiorari. The action of the Minister is in excess of delegation of law." 3. In pursuance of the order passed by this court in L.P.A. No. 664 of 2001,the appeal against the order of the Collector came for hearing before the Commission Magadh Division, Gaya and was registered there as Misc. Appeal No. 12 of 2002,The Commissioner by order, dated 2.5.2002 dismissed the appeal preferred by respondent no. 8 and affirmed the order of the District Magistrate rejecting the petition the renewal of the licence. Against the order passed by the Divisional Commissioner, respondent no. 8 preferred special leave before the State Government as provided under rule 15A of the Bihar Cinemas (Regulation) Rule, 1974 and this time the Minister once again granted ex-parte stay of the orders passed by the Commissioner and the District Magistrate and directed that the film shows in Prabhat Talkies, Jehanabad would continue. The intimation in this regard was given to the Commissioner, Magadh Division and the District Magistrate, Jehanabad by letter, dated 23.5.2002 from the Deputy Secretary in the Urban Development Department, Government of Bihar. The petitioner then filed the present writ petition challenging the action of the Minister in granting ex-parte stay of the orders passed by the Commissioner and the District Magistrate and directing for the film shows in the cinema house to continue. 4. During the pendency of the writ petition, the special appeal preferred by respondent no. 8 was allowed by the Minister, by order, dated 8.10.2002. By this Order, the Minister set aside the orders passed by the Commissioner, Magadh Division and the District Magistrate, Jehanabad and directed the Distirct Magistrate -cum-licensing Authority to renew the licence of respondent no. 8 within seven days of the date of production of the order before him. The petitioner then filed I.A. No. 5054 of 2002 bringing on record (as Annexure 9) the order, dated 18.10.2002 passed by the Minister and making a prayer for its quashing. 5. The relevant facts of the case may be stated as follows. The cinema house was running in a building constructed on Plot Nos. 17 and 18 under Khata No. 198. The two plots of land originally belonged to certain lady called Tamizzunissa. 5. The relevant facts of the case may be stated as follows. The cinema house was running in a building constructed on Plot Nos. 17 and 18 under Khata No. 198. The two plots of land originally belonged to certain lady called Tamizzunissa. She had given the two plots on lease for a fixed period to one Surajdeo Singh who constructed the cinema house on the land. He sold his lease-hold rights in favour of one City Prince @ K. K. Khetan from whom the lease-hold rights were acquired by one Pramila Sinha (now deceased), wife of respondent no. 8 and Mathura Prasad. The lease executed by Tamizzun Nissa came to an end on 22.1.1971 and it seems she was no longer willing to renew the lease in favour of the transferee lease holders. At that stage Pramila Sinha and Mathura Prasad filed Title Suit No. 38 of 1978 seeking a direction to the land holder to renewal the lease. The trial court decreed the suit directing the defendant land holder to execute a fresh lease terminable by 31.12.1991. Against the judgment and decree passed by the trial court the land holder went in appeal but the appeal was dismissed by the Additional District Judge, Gaya on 1.9.1998. In any event the appeal had become infructuous inasmuch as the period of lease required to be executed by the land holder would come to end on 31.12.1991. It, however, appears that Tamizzunissa died in the mean while and her heirs finding themselves quite unequal to the plaintiff-respondent in contesting the litigation sold the suit land (the subject matter of the lease) to the petitioner and two others by registered deeds, dated 30.8.1988 and 1.10.1988. When Pramila Sinha and Mathura Prasad came to learn about the transfer of the land in favour of the petitioner and two others, they filed another suit being T.S. No. 104 of 1991 in the court of the Sub Judge, Jehanabad seeking a declaration that the sale of the land was null and void and alternatively seeking a direction to the purchasers to execute a fresh lease in their favour after the expiry of the lease period on 31.12.1991. The trial court dismissed the suit by judgment and decree, dated 13.7.1993. Against the judgment and decree passed by the trial court respondent no. The trial court dismissed the suit by judgment and decree, dated 13.7.1993. Against the judgment and decree passed by the trial court respondent no. 8 and others preferred an appeal being F.A. No. 630 of 1993 which remains pending before this court. 6. As against the suit filed by the erstwhile lease holders (T.S. No. 104 of 1991) the petitioner and others, the new purchasers of the land, filed a suit for their eviction being Eviction Suit No. 130 of 1992/57 of 1994. The dismissal of T.S. No. 104 of 1991 filed by the erstwhile lease holders gave much strength to the eviction suit filed against them and their eviction from the land in question appeared imminent. In those circumstances they made a prayer in their first appeal pending before the High Court for stay of further proceedings in the Eviction Suit. A learned Judge of this court by order, dated 1.3.2001 allowed the prayer and directed that further proceedings in the eviction suit would remain stayed till the disposal of the appeal. The petitioner (respondent in the appeal) filed L.P.A. No. 347 of 2001 against the order, dated 1.3.2001 passed by the single Judge and a bench of this court by order, dated 7.9.2001 allowed the appeal and set aside the order of stay passed by the learned single Judge. The matter finally went to the Supreme Court in S.L.P (Civil) No. 21446 of 2001 which was disposed of on 8.4.2002 in terms of the following order: "Heard counsel for the parties. We are of the view that the appeal of the petitioner is required to be heard at an early date. We, therefore, request the High Court to dispose of First Appeal No. 680/93 (Dr. Awdhesh Kumar Prasad Sinha and others V/s. Md. Abdul Fateh & Others), if possible within a period of one year. Shri D. N. Goburdhan, learned counsel for the respondents has undertaken on behalf of the clients that they shall not proceed with the Eviction Suit No. 130/1992/57 of 1994 till the First Appeal No. 680/93 is decided by the High Court. In view of the undertaking given by the learned counsel for the respondents, no further order is required to be passed. The Special Leave Petition is disposed of in the above terms." 7. In view of the undertaking given by the learned counsel for the respondents, no further order is required to be passed. The Special Leave Petition is disposed of in the above terms." 7. This in brief sums up the respective positions of the parties in regard to the land over which the cinema house was running. 8. Though respondent no. 8 is in possession over the land, in the absence of any subsisting lease he has no vestige of legal right over the land and he stays in possession merely by virtue of the undertaking given on behalf of the petitioner not to proceed with the Eviction Suit till the First Appeal No. 680 of 1993 was decided by the High Court within one year from the date of the above quoted order, as desired by the Supreme Court. 9. It may be noted here that though the Supreme Court had made the request from the disposal of the First Appeal within a period of one year, this court does not appear to be in a position to honour the wish and request of the Apex Court and there hardly seems to be any likelihood of the appeal being disposed of by 8.4.2003 or in the near future. 10. It was in these circumstances that the licensing authority considered the request for the renewal of the cinema licence. And as noted above, he rejected the petition for renewal by order, dated 12.3.2001, upholding the objection raised by the petitioner that the possession of the licensee over the land was no longer lawful and relying upon a Supreme Court decision in R. V. Bhupal Prasad V/s. State of Andhra Pradesh and others, AIR 1996 SC 140 . 11. It is noted above, that at that Stage itself the case had come before this court when the Minister, Urban Developnent had directly entertained an appeal prferred by respondent no. 8 against the order passed by the District Magistrate. In L.P.A. No. 664 of 2001, a bench of this court has occasion to examine the presence of respondent no. 8 over the land and had made certain observations and findings which are quite significant for the present. The L.P.A. bench found and held follows : "The suit failed and was dismissed by the Sub Judge, Jehanabad by order dated 13 July 1993. 8 over the land and had made certain observations and findings which are quite significant for the present. The L.P.A. bench found and held follows : "The suit failed and was dismissed by the Sub Judge, Jehanabad by order dated 13 July 1993. Any extension of lease which had been granted in terms of a decree passed in T.S. No. 78 of 1998 also expired on 31 December, 1991. This, then left the contesting respondents Messers Pramila Sinha and Mathura Prasad without any title as also without any lease. Consequently, the business of cinema was virtually being run without a valid licence and none has been granted under the Bihar Cinema (Regulation) Act, 1954 and the rules framed under the Act." (emphasis added) 12 The aforesaid finding recorded in the earlier proceeding between the same parties remains undisturbed and plainly hoIds that the possession of respondent no.8 over the two plots is quite unlawful. 13. In these facts and circumstances the licensing authority, the District Magistrate Jehanabad and the appellate authority ity were clearly in the right to reject the request for renewal of the licence. 14. In the special appeal the Minister has set aside the orders passed by the Commissioner and the Collector for reasons which are wholly unsustainable. He has directed for the renewal of licence first, in the interest of the State revenue. A consideration of the State revenue to my mind is wholly extraneous to the issue under consideration. The State cannot secure or augment its revenue at the expense of the legal rights of a citizen and this court cannot shut its eyes to the lawful rights of the petitioner in order that the State should continue to earn its revenue from the cinema shows run by respondent no. 8. Secondly, the Minister has held that the Supreme Court decision in R. V. Bhupal Prasad had no application to this case because under the Bihar Cinemas (Regulation Rules, 1974 lawful possession of the land is not a condition for grant and/or renewal of licence. On this score also the Minister appears to be quite incorrect. It is true that the Supreme Court decision in R. V. Bhupal Prasad was rendered on the Andhra Pradesh Rules. But the decision fully applies to cases under the Bihar Rules. In para 6 of that decision it was held as follows : "6. On this score also the Minister appears to be quite incorrect. It is true that the Supreme Court decision in R. V. Bhupal Prasad was rendered on the Andhra Pradesh Rules. But the decision fully applies to cases under the Bihar Rules. In para 6 of that decision it was held as follows : "6. For the grant of the licence, one of the requirements is that the applicant should have lawful possession of site. building and equipment. It is true that the right to grant licence and right to grant renewal are separately dealt with by Rule 11(B) and Rule 12(B) respectively. But when Rule 12(B)(1) second proviso itself indicates that the licensing authority should satisfy itself that the licensee had satisfied all the provisions of the rules, the licensee should satisfy that he is in lawful possession when he seeks renewal." 15. Rule 3 of the Bihar Rules dealing with the procedure for the grant of permission for constructing permanent cinema house requires the applicant to give all necessary particulars as specified in Appendix-A. SI. No. 5 of Appendix-A to Rule 3 clearly requires the submission of "attested copies of the clear title on the land of the applicant." The consideration for the grant of permission for constructing cinema house rnust also be satisfied for grant of licence and for renewal of licence as per the ratio of the Supreme Court decision in R. V. Bhupal Prasad. 16. For the reasons discussed above, I find and hold that the impugned order passed in the Special Appeal by the Minister is unsustainable in the eyes of law and is based on considerations quite foreign to the matter at issue. The order, dated 8.10.2002 passed by the Minister, Urban Development is accordingly set aside and the orders of the Divisional Commissioner and the District Magistrate, Jehanabad are restored. 17. In the result, this writ petition is allowed but with no order as to costs.