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Orissa High Court · body

2010 DIGILAW 242 (ORI)

Debendra Pradhan v. State of Orissa

2010-04-05

B.P.DAS, V.GOPALA GOWDA

body2010
ORDER 5.4.2010 — Heard learned counsel for the petitioner and learned counsel for the State. The petitioner, who is the Proprietor of M/s. Padhan Video Hall at Padampur, has filed this writ petition seeking for issu¬ance of a writ of certiorari to quash the circular dated 9.7.2009 issued by the Deputy Secretary to Government in Home Department (Annexure-1) urging various legal contentions. The case of the petitioner is that the impugned circular dated 9.7.2009 has been issued to the Commissioner of Police, Collectors & District Magistrates and all the Superintendents of Police to implement the decision of the State Government as it has been decided that no licence shall be given for running of video theatres and video parlours in the Municipal/NAC/Block areas where the cinema houses are existing. The legality of the circular is questioned here and it is contended that it cannot be construed to be a policy matter as a decision should be taken in this regard by the Ministry of the concerned Department. Mr. Nayak, learned counsel for the petitioner, vehemently contended that there is no such policy decision taken by the Ministry and no Government order relating to Article 162 of the Constitution of India has been passed in terms of the Orissa Gov¬ernment Rules of Business framed in the year 1956 in exercise of the powers conferred by Clause (3) of Article 166 of the Consti¬tution of India. He, therefore, submitted that the said circular/instruction cannot be enforced against the petitioner. To ascertain the correctness of the submission of the peti¬tioner, we directed the learned Additional Government Advocate to produce the file in relation to the said circular. Now learned Additional Government Advocate made available to us the said file. From the said file, it is evident that the Government order has not been passed in accordance with the Rules of Business of the Government (supra). In absence of the same, the Home Department issued the impugned circular to the effect that no licence would be given to the video parlours located in the areas where cinema halls are existing as their business is affecting. Therefore, they shall not be allowed to run the video parlours in the places where the cinema halls exist, which cannot be en¬forced. Therefore, they shall not be allowed to run the video parlours in the places where the cinema halls exist, which cannot be en¬forced. In absence of the Government order passed by the politi¬cal executive in terms of the Orissa Government Rules of Business read with Article 162 of the Constitution of India, the submis¬sion of the learned counsel for the petitioner is tenable. There¬fore, we have to accept the same, as it is well founded. Hence, the impugned circular cannot be enforced. Having said so, we place reliance upon the definition “Cinema” as indicated in Sec¬tion 2(a) of the Orissa Cinemas (Regulation) Act, 1954, which is an inclusive definition, which includes the video parlour in addition to the cinema houses, which are governed by the provi¬sion of the said Regulation and Act. Therefore, learned counsel for the petitioner further submits that prior to the impugned circular in Annexure-1, the District Magistrate and Collector was entertaining the application of the Proprietors of video parlours by granting licence for exhibiting the cinema in the video parlour housed by the petitioner and also from time to time renewing the licence under the provision of the said Act. In the instant case, the aforesaid circular was issued on 9.7.2009. The District Magistrate & Collector is not entertaining the application for grant of registration by way of renewal. Therefore, a direction may be issued to consider the application of the petitioner. Such a direction can no doubt be issued though we are not satisfied. The submission is made placing reliance on Section 2(a). It is open to the Collector to examine the defini¬tion of “Cinema” as provided under Section 2(a) of the 1954 Act and whether cinema includes video parlour may also be examined keeping in view that video parlours came into being long after the Act 1954 was enacted. It includes the video parlour or not can be examined by him and thereafter the application of the petitioner shall be considered. If 1954 Act has no application, he can dispose of the application in accordance with law and pass appro¬priate order thereof. If the period of the licence of the video parlours is over and an application is filed, the Collector shall take necessary steps that the video parlours do not run without licence and dispose of the application within two weeks hence. If the period of the licence of the video parlours is over and an application is filed, the Collector shall take necessary steps that the video parlours do not run without licence and dispose of the application within two weeks hence. It is open to the State Government either to pass executive order under Article 162 strictly following the Business Transaction Rules or frame the regulation in exercise of its executive/legis¬lative power. With the aforesaid observation and direction, the writ petition is disposed of. Let a free copy of this order be supplied to the learned Additional Government Advocate. Petition disposed of.