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2005 DIGILAW 714 (KAR)

SIDDAMMA MALLAPPA MANAGULI v. STATE OF KARNATAKA

2005-10-26

CHIDANANDA ULLAL

body2005
ORDER The petitioner herein has challenged the Government Order dated 9-9-2003; copy at Annexure-C to writ petition, in passing whereof, the respondent 1-State had granted exemption from the application of the provisions of Rule 27(2)(a)(ii) of the Karnataka Cinemas (Regulation) Rules, 1971, in favour of the respondent 3. The said exemption was granted by exercising powers vested in it under Section 20 of the Karnataka Cinemas (Regulation) Act, 1964. 2. The brief facts of the case are as hereunder; The respondent 3 had applied for grant of No Objection Certificate for establishing a permanent cinema in property bearing No. TMC No. 752/8 in Sindagi Town, before the respondent 2-District Magistrate, as required under Rule 26 of the Karnataka Cinemas (Regulation) Rules, 1971 (for short hereinafter referred to as 'the Rules'). That the respondent I-State had earlier issued what was termed by it as notification, for relaxation of the provisions of Rule 27(2)(a)(ii). The said notification came to be challenged by the petitioner in filing W.P. No. 22208 of 2002 before this Court. At the same time, the respondent 3 had filed W.P. No. 26806 of 2002, wherein he had challenged the rejection of the NOC by the respondent 2, copy at Annexure-J to that writ petition. Both the said petitions were heard commonly by the learned Single Judge of this Court and the learned Single Judge had passed common order in both the writ petitions. The orders passed therein are as follows.- "20. In the result, I pass the following order: (a) W.P. No. 22208 of 2002 is allowed. Impugned Order/notification dated 29-4-2002 as per. Annexure-E is quashed, reserving liberty to the Government to reconsider the matter, if necessary in accordance with law; (b) W.P. No. 26806 of 2002 is allowed. Impugned order dated 5-7-2001 as Annexure-J is quashed. The matter is remanded back to the District Magistrate to decide the request of the petitioner to grant 'No Objection Certificate' afresh, after hearing the petitioner in accordance with law". 3. Further more, there was proceeding in W.P. No. 3012 of 2002 filed against the order passed in W.P. No. 46372 of 2001. The matter is remanded back to the District Magistrate to decide the request of the petitioner to grant 'No Objection Certificate' afresh, after hearing the petitioner in accordance with law". 3. Further more, there was proceeding in W.P. No. 3012 of 2002 filed against the order passed in W.P. No. 46372 of 2001. While allowing the appeal, the Division Bench had passed the orders as follows.- "Therefore, we allow this appeal as follows.- (i) We set aside the order of the learned Single Judge dated 12-4-2002 in W.P. No. 46372 of 2001; (ii) As a consequence, W.P. No. 46372 of 200l is, allowed in part and the communication dated (3-12-2001 (Annexure-S) from the 4th respondent to the 1st respondent is quashed; (iii) Nothing stated above, shall be construed as expression of any opinion on the contentions of either party in regard to the entitlement of the second respondent to seek NOC or in regard to the validity of the exercise of power by the State Government under Section 20 of the Act. The contention of the second respondent in regard to the locus standi of the appellant to challenge the grant of NOC is also left open". 4. Subsequent to the above orders passed by this Court, the petitioner herein had filed the instant writ petition to challenge the Government Order, copy at Annexure-C to writ petition, mainly on the ground that the same was passed without application of mind. The petitioner had also alleged therein, mala fides on the part of the respondent 4 who had authenticated the G.O. in question. It was alleged by the petitioner that the same was done not by the respondent I-State, but by the respondent 4 to confer illegal benefits on the respondent 3. It was further alleged by the petitioner in filing the writ petition that the impugned order is naked, fraud on power and that the impugned order is not passed in a way to advance the object underlining the Act for the benefit of the public and further that with the issuance of the earlier notification which came to be quashed by this Court, the respondent 1State had, become functus officio and as such, the impugned order is wholly void and that the same was done without any sanction of any formal authority of the Government under Article 162 read with Article 163 of the Constitution of India. The petitioner had also contended that the respondent I-State would have heard the petitioner before passing the impugned Government Order. I do not find any substance in the said limb of the argument, for while disposing of the writ appeal, this Court had only directed the respondent I-State to pass fresh orders in the matter of grant of exemption and nothing more. If the petitioner wanted that she be heard before passing the impugned order, she would have as well urged this Court to give her that liberty in the writ appeal. Hence, in my considered view, question of hearing the petitioner before passing the impugned order by the respondent I-State did not arise at all. Therefore, I have got no hesitation to reject the said limb of the argument. 5. Now therefore, all that I have to see in the instant writ petition is, whether the respondent I-State had applied its mind before passing the impugned order as directed by this Court in the writ appeal. In this context, I feel it appropriate to observe that the respondent 4 was only an officer in the concerned Department and as such, he had only authenticated the impugned Government Order and that he appeared to have done in the discharge of 'his official duty and that being the position, it is unfortunate that the petitioner chose to pass allegations as against him alleging personal interest to confer certain official favours to the respondent 3. I for one, do not find that the respondent 4 did that in any way; probably the petitioner made the said wild allegation due to heart burning, for, she failed in her attempt to remove hurdles on her way so that she would be having total monopoly in the cinematograph business-the cinema exhibition business, which has for long remained as if it was monopolised by her without there being any business rivalry. As such, I fully endorse the submission of the learned Counsel for the respondent 3, Sri Sreedharan, that the petitioner has got no locus standi to challenge the impugned Government Order passed by the respondent I-State in favour of the respondent 3. 6. Now I have to examine as to whether the respondent I-State had passed the impugned Government Order by application of its mind to the facts and circumstances of the case. 7. 6. Now I have to examine as to whether the respondent I-State had passed the impugned Government Order by application of its mind to the facts and circumstances of the case. 7. The learned Government Pleader who appeared for respondents 1 and 4 in the case had not only filed detailed statement of objections, but as per the direction of the Court he had also secured the records/file from the department and placed the same before the Court. As I see, the said file contains pages 1 to 382 (pages 1 to 382 are correspondences and it also contains note sheets from note sheet 1 to note sheet 50). 8. I have gone through the entire case file carefully and in detail, and meticulously examined the file before passing the instant orders in the writ petition. As I see, before passing the impugned Government Order, the Department had processed the papers, commencing with the representation given by the respondent 3 to the Hon'ble Minister to charge of the Department, on 14-11-2000 and the Hon'ble Minister had directed the Secretary in the Department to examine and put up the file. In the said representation, the Minister had endorsed on the left hand side of the said letter and the same reads as follows.- 'Secretary to examine and put up' and beneath the said endorsement, the Minister had also put his short initial in lieu of his signature as 'M.K', probably for his name Mallikarjun Kharge. As I further see, it is thereafter, that the file was processed and built up. From the note sheets it is clear that the papers had been processed by respondent 4 and others and therefore, it is totally untenable for the petitioner to contend that the respondent I-State gave relaxation to the respondent 3 in the matter of application of Rule 27 of the Rules and relaxation as per Section 26 of the Act. As I further see, the respondent I-State in response to the above representation given by the respondent 3, the respondent 4 had called for a report from the respondent 3-Deputy Commissioner, in response to which, the respondent-2-Deputy Commissioner had also sent a detailed report to the respondent I-State, copy found at page Nos. 324 to 330 in the file. As I further see, the respondent I-State in response to the above representation given by the respondent 3, the respondent 4 had called for a report from the respondent 3-Deputy Commissioner, in response to which, the respondent-2-Deputy Commissioner had also sent a detailed report to the respondent I-State, copy found at page Nos. 324 to 330 in the file. In addition to the above, I have also noticed that the respondent I-State had also considered the representation of the general public of Sindagi Town, requesting the State to give relaxation to the respondent 3 in the matter of starting new theatre, for according to them, such a relaxation was in their interest. While processing the papers in the department, respondent 4 had not only processed the papers as he was supposed to do, and in doing that he had placed the file before the Secretary of his department, his official superior and furthermore, I have noticed that the concerned Minister Sri Mallikarjun Kharge, as he then was, had also given his nod, inasmuch as he had also done that officially and approved the action of the Department to give relaxation to the respondent 3, in the matter of grant of relaxation. In the said facts and circumstances, it does not occur to me, even remotely, that the respondent 4 had in any way acted to show or confer any personal or official favour to the respondent 3. Since, I had the benefit of going through the entire file, I feel it proper to observe here that the matter had been duly processed in the department in the ordinary course of business and there is no artificially or speciality attached thereto, whatsoever. All that I can say here is, that the Department headed by the concerned Minister Hon'ble Sri Mallikarjun Kharge had considered case simplicitor in the matter of giving sanction for relaxation of the rule to the respondent 3 and therefore, in my considered view, the impugned order came to be passed by the respondent I-State by total application of its mind to the facts and circumstances of the case and that it did after the case was examined by the Department independently right from the lower rung to the highest level, i.e., Secretary of the Department. 9. 9. In support of the argument of Sri Subramanya Jois, he had cited the following decisions under a citation memo indicating there below the points involved. The same are as follows.- 1. Villnge Panchayat, Maridasanahally v Assistant Commissioner, Madhugiri1: The decision rendered in violation of the principle of audi alterem partem is void and no decision at all and is liable to be set aside solely on that ground. The order cannot be sustained on the ground that the failure had not occasioned miscarriage of justice. (3rd para from the beginning); 2. Tata Cellular v Union of India2: Headnotes 'C' and 'E' This judgment is cited to show that the Courts have power to review the decisions of the Government (Judicial review); 3. Pavanendra Narayan Verma v Sanjay Gandhi P.G.I. of Medical Sciences3. Paras 21 and 34 - This judgment is also cited to show that the Courts have power of judicial review to decide whether a Government Order is arbitrary or not (para 21) and also to say that the affidavit filed on behalf of the Government by a person who is not competent should be viewed seriously (paras 34 and 35); 4. AIR 1991 Mad. 246 : Headnote 'c' - Validity of an order is to be judged by the reasons given in the order. Reasons cannot be supplemented in the shape of an affidavit; 5. Rohtas Industries Limited u Rohtas Industries Staff Union1: Headnote 'E' - Power of High Court under Article 226 of writ can affect private individual and hence alternative remedy is not an absolute bar; 6. Calcutta Gas Company (Proprietary) Limited u State of West 2 Bengal: Headnotes ‘A' and 'E'; 7. D. Ramaiah v District Magistrate, Bangalore3; Headnotes ‘A' and 'E' - This judgment is cited to show that notice to both the applicant and the objector must necessarily be issued in the proceedings for grant of N.O.C. 10. On the other side, the learned Counsel for the respondent 3-Sri B.G. Sreedharan had argued as hereunder: (a) At the outset, he totally supported the Government Order. On the other side, the learned Counsel for the respondent 3-Sri B.G. Sreedharan had argued as hereunder: (a) At the outset, he totally supported the Government Order. That is obvious, for the Government Order came to be passed by the respondent I-State in favour of his party, the respondent 3; (b) That the petitioner has got no locus standi to challenge the Government Order since the same came to be passed by the respondent I-State in exercise of the statutory powers vested in it under Section 20 of the Act; (c) That the interest of the petitioner was only a business interest to maintain her monopoly on the cinematograph business in Sindagi Town, without there being any let or hindrance from any quarters including from the side of the respondent 3; (d) That the respondent I-State was within its power to grant exemption as contemplated under Section 20 of the Act and as such, the petitioner cannot have any say in the matter. 11. In support of the argument of Sri Sreedharan, he had cited the following decisions together with the points thereunder. They are as follows.- 1. S.R. Salimath u District Magistrate, Bijapur4: Right to run cinema is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India; 2. Jasbhai Motibhai Desai u Roshan Kumar, Haji Bashir Ahmed5: Petitioner being a rival operator running two cinema theaters in Sindagi Town is not a person aggrieved to maintain the writ petition and she has no locus standi to challenge the correctness of the impugned order passed by the State Government; 3. B. Arasappa v Additional District Magistrate, Bangalore Rural!: What is required under the Act and Rule is only a substantial compliance of the Rules. In order to exercise jurisdiction under Article 226 of the Constitution of India there must be overwhelming reasons to quash the impugned order especially when it is in the matter of grant of exemption; 4. D. Ramaiah's case (para 18-A): The applicant for grant will have special interest as against an objector who has ordinary interest in the proceedings. The person with special interest alone is entitled to be heard and person with ordinary interest is not required to be heard; 5. Kishandas Dalwani v Additional District Magistrate, Bangalore2: The phrase 'person aggrieved' is explained. Petitioner does not fall into that category. 6. The person with special interest alone is entitled to be heard and person with ordinary interest is not required to be heard; 5. Kishandas Dalwani v Additional District Magistrate, Bangalore2: The phrase 'person aggrieved' is explained. Petitioner does not fall into that category. 6. H. C. Bhogegowda v Distrit Magistrate, Mandya3: While interpreting the Karnataka Cinemas (Regulation) Act, 1964 and the Rules framed there under, progressive rule of construction has to be adopted i.e., the interpretation of the provision must be made in such a manner so as to achieve the object of the Act, namely to educate and entertain the members of the public. 12. That the respondent 3, no matter he is an elected member of the Legislative Assembly, is a free citizen as anybody else. As such, he has got fundamental right to get into cinematograph business and as such, the petitioner has got no business to restrain the respondent 3 from exercising his fundamental right guaranteed under the Constitution. I also add here that the petitioner should not be allowed to invoke the writ jurisdiction of this Court to curb a co-citizen's fundamental right. As I see, that is what she had attempted to do in filing this writ petition. That being the case I think that this Court has to discourage the petitioner by not granting the relief she sought for in the petition, so that she mends her way and thinking in the future. 13. Having heard both sides, I feel that the argument advanced by the Counsel for the respondent 3-Sri B.G. Sreedharan outweighs the argument of the Counsel for the petitioner, Sri Subramanya Jois and I am of the considered view that the instant writ petition does not merit any consideration and therefore the same is liable to be dismissed. I am also of the view that in doing that, the respondent 3 is also entitled for compensatory cost, which, I assess at Rs. 25,000/-. 14. Let the petitioner pay the said cost to the respondent 3 within three months from this date. In the event the petitioner fails in that regard, the respondent 3 is at liberty to recover the same in the process known to law as if the respondent 3 holds a money decree as against the petitioner. 15. In the result, the instant writ petition fails and accordingly dismissed with cost as above. The cost of Rs. In the event the petitioner fails in that regard, the respondent 3 is at liberty to recover the same in the process known to law as if the respondent 3 holds a money decree as against the petitioner. 15. In the result, the instant writ petition fails and accordingly dismissed with cost as above. The cost of Rs. 25,000/- may appear to be exemplary, nevertheless, I have assessed at that, for I was convinced that the respondent 3 was a harassed person and he should be properly and adequately compensated and at the same time giving message to the litigant as that of the petitioner herein, that a litigant cannot take it for granted that a litigant can go merrily litigating with no consequence at all. As I see, the petitioner was litigating all through for one reason or other, before one forum or other. I term her as a 'hard-core litigant', and she started litigating when the respondent 3 applied before the respondent 2-Licensing Authority for grant of N.O.C. to him to enter into cinematograph business in Sindagi Town, being an objector opposing the grant of N.O.C. to the respondent 3 by the Licensing Authority. 16. To depart from the judgment, I take liberty to tender a piece of advice to the petitioner, which I hereby do, to change her attitude towards men and matters, for, I observed her attitude totally stubborn and litigious; let her imbibe in her 'live and let live' attitude, for, I feel, that will do good to all, including herself and the society at large. 17. In the result, this writ petition fails and accordingly stands dismissed with cost as above; the Registry is directed to return the records of the respondent 1, now in the file to the learned Government Pleader, upon taking proper acknowledgment thereto, in the order sheet.