Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16664 of 2010 ====================================================== 1. M/S Sharda Chitra Mandir Having Its Place Of Business At Swami Vivekanand Road, P.S.- Adampur, Distt.- Bhagalpur Through Its Proprietor Virendra Kumar Singh S/O Late Surendra Prasad Singh R/O Naya Bazar, P.S.- Tetarpur, Distt.- Bhagalpur .... .... Petitioner Versus 1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Old Secretariat, Patna 2. The Secretary Ministry Of Urban Developmetn, Govt. Of Bihar, New Secretariat, Patna 3. The Secretary Ministry Of Urban Development, Govt. Of Bihar, New Secretariat, Patna 4. The Commissioner, Bhagalpur Division, Bhagalpur 5. The District Magistrate, Bhagalpur 6. The District Cinema Officer, Bhagalpur 7. The District Cinema Inspector, Bhagalpur 8. The Assistant Commissioner, Commercial Taxes Bhagalpur Circle, Bhagalpur 9. The Deputy Chief Executive Officer Bhagalpur Municipal Corporation 10. The Electrical Executive Engineer Bihar State Electricity Board, Mojahidpur, Bhagalpur .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.16795 of 2010 ====================================================== 1. M/S Mahadev Chitra Mandir Having Its Place Of Business At Dr. R.P Road, Bhagalpur, P.S. Kotwali, Distt-Bhagalpur Through Its Proprietor Ram Pyarai Devi W/O Late Mahadev Prasad Singh R/O R.P.Road, Bhagalpur, P.,S. Kotwali, Distt-Bhagalpur .... .... Petitioner Versus 1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Old Secretariat, Patna 2. The Secretary, Ministry Of Urban Development Govt. Of Bihar, New Secretariat, Patna 3. The Secretary, Ministry Of Urban Development Govt. Of Bihar, New Secretariat, Patna 4. The Commissioner Bhagalpur Division Bhagalpur 5. The District Magistrate Bhagalpur 6. The District Cinema Magistrate Bhagalpur 7. The District Cinema Inspector Bhagalpur 8. The Assistant Commissioner Commercial Taxes Bhagalpur Circle , Bhagalpur 9. The Deputy Chief Executive Officer Bhagalpur Municipal Corporation 10. The Electrical Executive Engineer, Bihar State Electricity Board Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 2 Mojahidpur, Bhagalpur .... .... Respondents ====================================================== Appearance : (In CWJC No.16664 of 2010) For the Petitioner/s : Mr. Sushmita Mishra For the Respondent/s : (In CWJC No.16795 of 2010) For the Petitioner/s : Mr. Sushmita Mishra For the Respondent/s : Mr. Ranjan Kumar, A.C to A.A.G.13 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 8 28-01-2013 Heard learned counsel for the petitioners and learned counsels for the State in both the cases. Both the writ applications raise a common ground and have, accordingly, been heard together and are being disposed of by this common order. The petitioners in both the writ applications are aggrieved by the action of the District Magistrate, Bhagalpur in sealing the Cinema Halls, namely, Sharda Chitra Mandir and Mahadeo Chitra Mandir both located in the town of Bhagalpur by order dated 10.6.2006, pursuant to which the Cinema Halls were sealed on 14.7.2006. The second Cinema Hall was purported to be sealed on the ground of non-production of No Objection Certificates from the office of the Commercial Taxes, Land Revenue and Municipal taxes. The further grievance of the petitioners is that while the Cinema Halls were sealed, theft was committed of goods in both
Facts
Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 3 the Cinema Halls for which an F.I.R. was registered for the first Cinema Hall on 11.12.2007 and with respect to second Cinema Hall on 26.8.2010. In the first information reports details of the goods stolen and their valuation were mentioned, which was Rs. 2, 04,000/- in the first case and approximately Rs. 11 Lacs in the second case. Pursuant to the F.I.R., the cases were investigated by the Police and final reports were submitted stating that the occurrences were true but there was no clue. It is also stated by the petitioner that Certificate Case Nos.1 of 1998-99 and 3 of 1998-99 are pending for realization of the Entertainment Tax dues with respect to the first Cinema Hall and Certificate Case No.2 of 1998- 99 and 4 of 1998-99 are pending with respect to the second Cinema Hall. Learned counsel for the petitioners submits that the District Magistrate has been constituted as a statutory authority under the Bihar Cinemas (Regulation) Act and no jurisdiction has been provided to him to seal the Cinema Hall, much less for recovery of dues of Entertainment Tax or Municipal tax or the E.P.F. dues for which separate procedures for recovery are provided under the relevant Statutes which govern those taxes. It is, thus, submitted that the entire action of the District Magistrate is arbitrary and contrary to the statutory provisions and he has Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 4 acted without jurisdiction and de hors the Statutes in the matter. In support of the aforesaid contention, learned counsel
Legal Reasoning
relies upon a decision of this Court in the case of M/s. Amrapali Cinema vs. State of Bihar & others: 2007 (1) PLJR 174, in paragraph No.5 of which it has been held as follows: “5. Having considered the arguments as advanced on both the sides, I am of the opinion that Annexure-8 by which the Collector has suspended the licence of the petitioner cannot be sustained and must be quashed. It is quashed accordingly. The reason is simple. A statutory authority exercising statutory power is bound by the jurisdiction conferred on the said authority. Under the Cinema Regulation Act and the Rules framed thereunder, temporary suspension of cinema exhibition is not permitted on the ground of default in payment of entertainment tax. Thus, the order impugned is de hors the provisions of the statutory provisions and cannot be sustained. Secondly, where Entertainment Tax Act and the Rules framed thereunder which create the liability of entertainment tax provides for a specific procedure for its recovery, resort to indirect methods of Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 5 recovery de hors the Entertainment Tax Act cannot be countenanced by this Court. The actions are wholly without jurisdiction, illegal and arbitrary. This Court would also like to observe that the licensing authorities should realize that for the purposes of recovery of entertainment tax if the cinema hall is to be closed, the result would be that the State having already been deprived with some entertainment tax will be further deprived of entire entertainment tax by virtue of its own action. It is this reason also that pursuant to this order, no one gains by closure of cinema hall rather the State and public loss by way of collection of entertainment tax falling.” Next submission of learned counsel for the petitioners is that since the occurrence of theft has been found to be true upon the investigation by the Police and the same has taken place while the premises have been sealed under the orders of the District Magistrate and moreover since the sealing itself was an illegal act de hors the provisions of the Cinema Regulation Act and Rules, the respondents must be directed to adequately compensate the petitioners for the loss incurred during the period when the goods Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 6 in question on account of the seal by the respondent authorities being in their custody, had been subjected to theft. Learned counsels for the State are unable to show any provision under the Cinema Regulation Act or any statutory provision under which the Cinema Hall in question could have been sealed by the order of the District Magistrate. They fairly admit that as a matter of fact there is no provision for sealing in the Cinema Regulation Act. They, however, insist that the same was done for the purpose of recovery of the tax amounts and for realizing the Government money after all the efforts to get the same deposited failed and even when the petitioners despite giving undertakings to deposit in instalments, which were fixed, had failed to deposit the amounts. It is their contention that the petitioners having failed to deposit the tax amounts have not come to this Court with clean hands as they had collected the money from the public but did not deposit the same in the Government Treasury. It is also the contention of learned counsels for the State that the State authorities cannot be held liable for any damage caused in view of the protection guaranteed by Article 300 of the Constitution and the sealing of the Cinema Halls had been done while performing sovereign functions of the State and they have Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 7 sovereign immunity for the same. Learned counsel for the petitioners counters the same by stating that the seal of the Cinema Halls is certainly not in exercise of any sovereign function of the State, rather the Executive Magistrate was a mere statutory authority under the Bihar Cinema Regulation Act, 1954 and he had not acted in the matter in terms of any provisions of the Statute, rather de hors the Statute without any jurisdiction and hence, no claim for sovereign immunity can arise in such a case. It is submitted by learned counsel that the principle of sovereign immunity cannot be invoked in the present matter. More so, when the action of sealing the Cinema Halls is devoid of any provision by the statutory authority, the respondents must be directed to compensate the petitioners for the loss incurred on account of theft during the period when the Cinema Halls were sealed by the respondent authorities. Learned counsel also submits that the action of the respondents was completely in violation of Article 19 (1) (g) of the Constitution under which the petitioners have the fundamental right to carry on any occupation, trade or business which could only have been restricted by a law of the State Legislature in the interest of general public. No such restriction had been provided in the Statute framed by the State Legislature in that regard and thus Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 8 such illegal act of the District Magistrate violates the fundamental rights of the petitioners in the matter. On a consideration of the entire facts and circumstances of the case, this Court finds sufficient force in the submissions of learned counsel for the petitioner. It is evident that the respondents have violated the statutory and fundamental rights of the petitioners in a most illegal manner. In the present matter, the action of the District Magistrate directing the sealing of the premises was clearly without jurisdiction when no provision could be shown by learned counsel for the State under which provision such power of sealing the Cinema Hall could have been exercised by the District Magistrate, much less on the ground of pendency of the certificate case. This Court is thus of the view that the action of the District Magistrate, Bhagalpur in the present matter was in gross violation of the fundamental rights of the petitioners to carry on their business and without there being any statutory authority for the same. Thus, it could not be held to be an exercise of statutory power much less the exercise of sovereign function. To seal the Cinema Hall in an illegal manner is an uncalled for interference by the District Magistrate with the fundamental rights of the petitioner. Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 9 Having proceeded to perform such an illegal act it was incumbent upon the respondents to ensure that the goods were kept under proper security and no theft of the goods as alleged and found true by the police investigation could have taken place. It is surprising that not only in one but in both the Cinema Halls the theft had taken place of substantial value. The same can only show at the very least gross negligence, if not collusion, on the part of the respondents in not protecting the properties which they have sealed and thereby taken under their custody. The occurrence having been found true by the police investigation, it is incumbent upon the respondents to adequately compensate the petitioners at least for the loss which the petitioners have suffered on account of the theft as also for the violation of the fundamental rights of the petitioners. The details of the goods of which the theft had taken place as also their violation are given in the F.I.R. Learned counsel for the State, however, submits that the amounts mentioned therein must have been the original value of the goods which included machinery pertaining to the exhibition of the cinema which must have lost their value to certain extent on account of depreciation with the passage of time and it may not be convenient for this Court to look into such issue of valuation. Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 10 Learned counsel for the petitioners submits that the question of compensation cannot be judged only by the historical value of the goods subject to depreciation but also the replacement value as the market value prevailing today for replacing the goods for the purpose of running the Cinema Hall would be many times more than the historical value. This Court does not consider it appropriate to go into the question of valuation in the present proceeding. It would be appropriate that those issues are considered and proper value fixed by the appropriate authorities taking a fair and just view of the matter in terms of well established principles of valuation. Thus, on a consideration of the aforesaid facts and circumstances, both the writ applications are allowed and the respondents are directed to forthwith remove the seals put on both the Cinema Halls. For the purpose of fixing the compensation payable to the petitioners for the theft of the goods during the period the Cinema Halls were under seal, the matter is referred to the Commissioner, Bhagalpur Division, Bhagalpur. The petitioners shall file their detailed representation separately before the Commissioner, Bhagalpur stating the compensation to which they are entitled for the theft of the goods in question and the Commissioner, Bhagalpur shall proceed to fix the valuation of the Patna High Court CWJC No.16664 of 2010 (8) dt.28-01-2013 11 goods after taking assistance from the official Valuer of the Government as may be available and keeping in view both the aspects of the matter as discussed above, namely, depreciated value and replacement value while fixing the same. The Commissioner, Bhagalpur is directed to dispose of the representation of the petitioner after hearing both the sides within a period of three months from the date of filing of the said representation along with a copy of this order. So far as any claim of the petitioners for the illegal sealing of the Cinema Hall is concerned, it is left open to the petitioners to take recourse for the same to appropriate proceedings including the filing of any suit before the competent Civil Court. V.P.Sinha/- (Ramesh Kumar Datta, J)