M/s. Mani's Theatre v. The Principal Secretary to Government, Home (Cinema) Department, Government of Tamil Nadu & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.03.2009CORAMTHE HONOURABLE Mr. JUSTICE S.NAGAMUTHUWrit Petition No.30119 of 2008 andM.P.Nos.1 & 2 of 2008 M/s.Mani's TheatreRep. by its ProprietorMr.N.JagannathanHaving office at Lakshmipuram,Peelamedu Post,Coimbatore 641 004.... Petitioner Vs.1.The Principal Secretary toGovernment, Home (Cinema) Department,Government of Tamil Nadu,Fort St. George,Chennai – 600 009.2.The Additional Commissioner,(Cinema & Irrigation)Land Administration Department,Chepauk, Chennai – 5.3.The District Collector,Coimbatore.... Respondents Writ petition has been filed under Article 226 of TheConstitution of India to issue a Writ of Certiorari callingfor the records of the respondents especially the order of thethird respondent dated 20.12.2007 in ref Na.Ka.54502/2007/U2 asconfirmed by the order of the second respondent dated 28.04.2008in ref.L3/C.A/8/2008 and the order of the first respondent dated04.11.2008 in ref G.O.(D) No.1188 Home (Cinema) Department andquash the same. For Petitioner : Mr.T.ThiyagarajanFor Respondents : Mrs.Malarvizhi Udhayakumar Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RWhether, non observance of the principle, "Audi AlteramPartem", a fundamental maxim of the concept of "naturaljustice," would vitiate an order made by the Government underthe Tamil Nadu Cinemas (Regulation) Act? A procedure, unknown tolaw, being followed for years, is put under challenge in thiswrit petition by the aggrieved.2.The petitioner is the Proprietor of a cinema theatreknown as "M/s.Mani's Theatre" at Peelamedu, Coimbatore. On10.11.2007, according to the respondents, a surprise inspectionwas made by the Revenue Divisional Officer, Coimbatore duringwhich, it was found that the petitioner had sold tickets forhigher rates than the prescribed rates. The petitioner isalleged to have given a statement admitting his guilt.Thereafter, the Revenue Divisional Officer submitted a report inthis regard to the third respondent for necessary action as perthe provisions of the Tamil Nadu Cinemas (Regulation) Act, 1955(hereinafter referred to as "the Act"). A show cause notice wasissued by the third respondent to the petitioner calling uponhim to explain as to why action should not be taken against himto suspend the licence for which, denying the allegations, thepetitioner submitted an explanation. Rejecting the same, by hisproceedings in Na.Ka.No.54502/2007/U2 dated 20.12.2007, theDistrict Collector, Coimbatore imposed a punishment ofsuspension of licence for a period of seven days.3.Challening the same, the petitioner preferred an appealand the same was rejected by the second respondent by orderdated 28.04.2008. Aggrieved over the same, the petitionerpreferred a revision before the first respondent under Section 9(B) of the Act. Rejecting the same, the first respondent hasissued G.O.(D) No.1188 Home (Cinema) Department dated04.11.2008. Challenging the said G.O., the petitioner is nowbefore this Court with this writ petition.4.Though several grounds have been raised, the learnedcounsel for the petitioner would mainly contend that theimpugned order has been passed by the first respondent withoutfollowing the principles of natural justice and withoutfollowing the due process of law as provided in the Act itself,inasmuch as the revision petition was heard by an AdditionalSecretary in the Department whereas, the impugned order waspassed by the Principal Secretary to Government. He would submitthat this procedure is illegal and on this ground alone, theimpugned order is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/

5.The learned Special Government Pleader appearing for therespondents has produced the entire file of the first respondentrelating to this case. One Mr.A.Mani, presently, the AdditionalSecretary to the Government, Home Department, is also present inCourt to instruct the learned Special Government Pleader. 6.On the basis of the original records and on instructions,the learned Special Government Pleader would fairly submit thatthe arguments were heard by the Additional Secretary, but theimpugned order was passed only by the Principal Secretary toGovernment. However, she would contend that the principalSecretary has passed the impugned order only after thoroughlyanalysing the entire case and so there is no question ofviolation of principles of natural justice. She would thereforepray for dismissal of the writ petition. 7.On my part, I have perused the file thoroughly whichreveal the following facts:-(i)The revision memorandum was submitted by the petitioneron 22.05.2008 with prescribed fees.(ii)The hearing was fixed on 10.01.2008. As per the notemade by a Section Officer, the records were placed before theJoint Secretary (Cinema) for hearing. Mr.A.Mani, present todaybefore this Court, the then Joint Secretary to Government, heardthe oral submissions made by the learned counsel for thepetitioner on 10.09.2008 and recorded the notes of arguments inthe file. At the end of the day's proceedings, he had issued aninstruction to the Office to prepare a detailed note and put upthe same for orders by the Principal Secretary.(iii)In pursuance of the said instruction of the JointSecretary, the Section Officer has prepared an office notewherein he has narrated the facts relating to the order of theAppellate Authority and the notes of arguments as taken down bythe then Joint Secretary. In paragraph No.5 of the note, he hasstated as follows:-"In the circumstances, it is for orders– Whether the revision petition submitted bythe licensee M/s.Mani's Theatre, Coimbatoremay be rejected confirming the orders of theAssistant Commissioner (Cinema) OrWhether the request of the revisionpetitioner to set aside the orders of theCollector, Coimbatore may be accepted. Afterorders are passed, a circulation note willbe put up." https://hcservices.ecourts.gov.in/hcservices/ (iv)Based on the above office note, the Principal Secretaryto Government has passed the following order:-" XX above may be done"(v)Pursuant to the said order of the Principal Secretary,which is a non speaking order, another office note forcirculation was prepared by the Section Officer. The same wasapproved by the Under Secretary (Citizenship), Joint Secretary(Cinema & Prisons), Principal Secretary and finally by theHon'ble Minister for Information. Thereafter, the impugned orderhas been issued.8.The above narration of facts culled out from the recordswould go to show that the first respondent has misdirectedherself as though the matter being dealt with by her relates toan administrative function whereas, indeed the same is only aquasi judicial function. It need not be over emphasised thatthere is a world of difference between an administrativefunction and a quasi judicial function by any public authority.It is, now, beyond any controversy that an order under Section 9(B) of the Act, is a quasi judicial order and it can never betreated either as an administrative or an executive order. 9.At this juncture, it would be useful to refer to subclauses 1 and 2 of Section 9-B of the Act which read asfollows:-"9-B. Powers of revision byGovernment.- (1) The Government may on theirown motion or on application, call for andexamine the record of the appellateauthority in respect of any proceeding undersection 5(7) or section 9-A to satisfythemselves as to the legality of suchproceeding or the correctness, legality orpropriety of any decision passed or ordermade therein, and if, in any case, itappears to the Government that any suchproceeding, decision or order should bemodified, annulled, reversed or remitted forreconsideration, they may pass ordersaccordingly;Provided that every application to theGovernment for the exercise of the powersunder this section shall be preferred withinsuch time as may be prescribed and shall beaccompanied by such fee as may beprescribed. https://hcservices.ecourts.gov.in/hcservices/ (2)No order prejudicial to any personshall be passed under sub-section (1) unlesssuch person has been given an opportunity ofmaking his representations. (Emphasis supplied)10.Sub Clause 2 of Section 9-B leaves no doubt that thestatute itself mandates that before passing any adverse orderagainst any individual, opportunity of making representationshould be afforded to. 11.In G.Alagiri v. Collector, Thanjavur (AIR 1983 Madras134), while dealing with more or less an identical situation,this Court has held as follows:-"The entire scheme of the provisions ofS.9A of the Act and R.47A of the Rulesposits judicial procedure and hence it hasto be stated that the Government, whiledealing with the revision under the Act readwith rules, acts as a quasi-judicialtribunal. Hence, the Government whiledisposing of a revision petition must assignreasons for the decision. The necessity forgiving reasons arises because the decisionof the Revisional Authority is likely to besubject to scrutiny by the High Court underArt.226 of the Constitution."(Emphasis supplied)12.Subsequently, approving the view taken in Alagiri's case(cited supra), another Division Bench of this Court inChinnasamy Chettiar v. State of Tamil Nadu (1985 (2) MLJ 383)has emphasized the need for passing a speaking order by therevisional authority which would reflect the application of mindinto the factual and legal aspects of the matter. 13.In yet another judgment of a Division Bench of thisCourt in Mariappan v. State of Tamil Nadu (1991 (1) MLJ 427), ithas been held as follows:-"Viewed from a broad perspective, theprovisions of the Act and the Rules areintended to regulate exhibition ofcinematograph films. Any error whichrequires correction, or any improprietywhich has crept into the proceeding, thedecision or the order or any illegalitywhich has tainted such proceeding, decision https://hcservices.ecourts.gov.in/hcservices/ or order could be set aright and rectified,only if the revisional authority possessesthe power to review the entire case bothfrom the factual and legal angle. If arestraint is to be put on the revisionalauthority with regard to the appraisal orfresh appraisal or reappraisal of thefactual materials relating to the relevantaspects, which should govern and weigh withit, the very power of revision will becomenugatory."14.Thus, the law is very clear that the power of therevisional authority under the Act is a quasi judicial power andso the revisional authority should follow the principles ofnatural justice inasmuch as sufficient opportunity ofrepresentation should be given to the parties. Such opportunityshould be real and the same should not be treated as an emptyformality. Finally, a speaking order should be passed reflectingapplication of mind and stating the reasons for the conclusionsarrived at. 15.As it has been narrated supra, admittedly, the learnedcounsel for the petitioner had advanced his arguments before thethen Joint Secretary to Government. The Principal Secretary hadno occasion to hear the arguments nor had she passed a speakingorder. As extracted above, she has passed a one line order viz.," XX above may be done" thereby indicating that the revision maybe rejected. The reason for the conclusion that the revisiondeserved to be dismissed have not been stated by her.Ultimately, another order was drafted rejecting the revision andthe same was signed by the Principal Secretary and that is howthe impugned Order has been passed. The Additional SecretaryMr.A.Mani who is present in the Court explained that this is theprocedure invariably followed in the office in all casesrelating to Cinema licence right from the year 2006.16.The learned counsel for the petitioner would submit thatin many other cases, in which he has appeared, though, headvanced arguments either before the Deputy Secretary or theJoint Secretary, the orders were passed only by the PrincipalSecretary without hearing the parties and thus it is thepractice of the first respondent. 17.As I have already stated, the said procedure is not onlyirregular but it is opposed to law. One of the fundamentalmaxims, "Audi Alterm Partem" came to be considered in depth bythe Hon'ble Supreme Court in Swadeshi Cotton Mills v. Union ofIndia (AIR 1981 SC 818) wherein in paragraph Nos.25 and 30 it https://hcservices.ecourts.gov.in/hcservices/ has been held as follows:-"25.But two fundamental maxims ofnatural justice have now become deeply andindelibly ingrained in the commonconsciousness of mankind, as pre-eminentlynecessary to ensure that the law is appliedimpartially, objectively and fairly.Described in the form of latin tags thesetwin principles are: (i) audi alteram partemand (ii) nemo judex in re sua. For thepurpose of the question posed above, we areprimarily concerned with the first. Thisprinciple was well-recognised even in theancient world. Seneca, the philosopher, issaid to have referred in Medea that it isunjust to reach decision without a fullhearing. In maneka Gandhi's caseMANU/SC/0133/1978 Bhagwati, J emphasisedthat audi alteram partem is a highlyeffective rule devised by the Courts toensure that a statutory authority arrives ata just decision and it is calculated to actas a healthy check on the abuse or misuse ofpower. Hence its reach should not benarrowed and its applicabilitycircumscribed.30.The maxim audi alteram partem hasmany facets. Two of them are: (a) notice ofthe case to be met; and (b) opportunity toexplain. This rule is universally respectedand duty to afford a fair hearing in LordLoreburn's oft-quoted language, is "a dutylying upon every one who decides something",in the exercise of legal power. The rulecannot be sacrificed at the altar ofadministrative convenience or celerity; for,"convenience and justice"-as Lord Atkinfelicitiously put it-" are often not onspeaking terms" General Council of MedicalEducation v.Spackman (1943) AC 627 atp.638."18.As held by the Hon'ble Supreme Court, the principle audialteram partem should be meticulously observed by quasi judicialauthorities. When the statute has empowered an authority withcertain quasi judicial powers, the same should be exercisedproperly to achieve the object of the enactment of thelegislature. If there is any practical difficulty in https://hcservices.ecourts.gov.in/hcservices/ implementing the same, as claimed by the learned SpecialGovernment Pleader , it may be addressed to the legislature soas to make a specific provision in the Act itself excluding theapplication of the principles of natural justice. But, in theinstant Act, there is an express provision under Section 9(B)(2)making the principles of natural justice applicable. So long asthere is a procedure prescribed in a statute or Rule providingfor opportunity of representation, the authority under the Actis obliged to follow the said procedure scrupulously. Anydeviation in this regard will render the ultimate order asinvalid. In the case on hand, the first respondent has not atall followed the prescribed procedure as indicated above and onthis ground alone, the impugned order is liable to be quashed.19.On several occasions, the Hon'ble Supreme Court as wellas this Court had to set aside such non speaking orders passedby the quasi judicial authorities for want of recording ofreasons. As stated above, though the practice of passing nonspeaking orders has been deprecated by Courts of law, suchpractice still continue to exist. The impugned order does notreflect application of mind by the first respondent. The case onhand is a classic example for such a non speaking order. Forthis reason also, the impugned order is liable to be quashed. 20.Normally, while setting aside an order on technicalgrounds like the one in the instant case, this Court would remitthe matter back to the authority concerned for fresh disposal.But, for the reasons stated infra, I do not propose to do so. 21.The learned counsel for the petitioner would submit thatinstead of remitting the matter back to the first respondent,the entire facts and law involved in the case may be analysed bythis Court and appropriate orders may be passed. But in myconsidered opinion, the same cannot be done as appraisal, freshappraisal or re-appraisal of facts could be done only by therevisional authority. Alternatively, the learned counsel wouldfurther submit that he may not insist for setting aside theimpugned order and instead, he would pray for modification ofthe quantum of punishment already imposed. According to him, thesuspension of licence for a period of seven days is highlydisproportionate to the gravity of the contravention said tohave been committed by the petitioner. He would further submitthat the petitioner has got a clean past record. Subsequent tothe order of the appellate authority, the impugned order ofsuspension was given effect to and the petitioner's theatre wasclosed for three days viz., on 18.12.2008, 19.12.2008 and22.12.2008. He would further submit that the same may beconsidered as sufficient punishment. https://hcservices.ecourts.gov.in/hcservices/

22.Admittedly, there is no other complaint that thepetitioner ever committed, either before or after theoccurrence, any such contraventions. The incident involved inthis case is a solitary one. In a similar circumstance, aDivision Bench of this Court in Theatre Ram Balaji, rep. bylicensee A.R.Mani v. State of Tamil Nadu rep. by Secretary(MANU/TN/7126/2007) has proceeded to hold thus: "Taking note ofthe explanation offered relating to both the irregularities andin the absence of any information/details about the violation ofsimilar nature in the earlier years, we are of the view thatends of justice would be met by reducing the period ofsuspension from ten days to two days." Having regard to all theabove, in my considered opinion, the suspension of licence, inthis case, for a period of four days would meet the ends ofjustice. 23.In the result, the writ petition is partly allowed, theimpugned order is modified thereby reducing the punishment ofsuspension of licence from seven days to four days. Since thepetitioner's theatre was already kept closed for three days, itwill be sufficient that the petitioner's theatre shall be closedfor one more day i.e., on 07.04.2009. No costs. Consequently,connected miscellaneous petitions are closed. JbmSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Principal Secretary toGovernment, Home (Cinema) Department,Government of Tamil Nadu,Fort St. George, Chennai – 600 009.2.The Additional Commissioner, (Cinema & Irrigation)Land Administration Department, Chepauk, Chennai – 5.3.The District Collector, Coimbatore.•1 cc to Mr. V. Ramesh, Advocate SR No.7556 W.P.No.30119 of 2008KA(CO)SR/19.3.2009