D.Malliga Duraiswamy, Duraisamy Paradise Theatre v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 29.04.2009C O R A MTHE HONOURABLE MR. JUSTICE K.N.BASHAWrit Petition No.15196 of 2001D.Malliga Duraiswamy,Licensee, Duraisamy Paradise Theatre,Bargur Village,Krishnagiri Taluk,Dharmapuri District... Petitioner Vs.1. The State of Tamil Nadu rep. by The Secretary to Government, Home (Cinema) Department, Fort St. George, Chennai – 600 009.2. The Joint Commissioner (Cinema), Land Administration Department, Chepauk, Chennai – 600 005.3. The District Collectotr, Dharmapuri District, Dharmapuri – 636 705..Respondents* * *Prayer: Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of Certiorari calling forthe records culminating in the order in G.O.(D) No.553, Home(Cinema-2) Department, dated 02.07.2001, on the file of the firstrespondent herein, and to quash the same.* * *For Petitioner: Mr.D.Sivakumaran, for M/s.C.R.MuralidharanFor Respondent: Mrs.Lita Srinivasan, Government AdvocateO R D E RThe petitioner has come forward with this petition seekingfor the relief of calling for the records relating to the order ofthe first respondent herein passed in G.O.(D)No.553, Home (Cinema-2) Department, dated 02.07.2001, with a prayer to quash the same. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the petitioner is that she is the licensee ofa cinema theatre under the name and style as "Duraisamy ParadiseTheatre" at Bargur town. The Deputy Tahsildar, Krishnagiri,inspected the Theatre of the petitioner on 08.11.1999 andsubmitted a report to the third respondent alleging that thepetitioner committed certain irregularities and therebycontravened the provision under Rule 83(1)(a) of the Tamil NaduCinemas (Regulation) Rules, 1957 (hereinafter referred to as "theRules"). Thereafter, the petitioner was issued with the show-cause notice for which the petitioner has given an explanationdated 23.12.1999 denying the allegation. The petitioner furthersubmitted that after her explanation, the third respondent hereinhad suspended "C" Form license of the theatre for a period of oneyear for the alleged contravention of Rule 83(1)(a) of the Rulesby his order dated 09.01.2000 in his proceedingsNa.Ka.No.C1/96057/99. Aggrieved against the said order, thepetitioner preferred an appeal in Cinema Appeal No.58 of 2000 andthe appellate authority partly allowed the said appeal by orderdated 23.08.2000 reducing the period of suspension from one yearto a period of three months. Being aggrieved against such order,the petitioner also preferred a revision before the firstrespondent herein and the first respondent further reduced theperiod of suspension of "C" Form license of the theatre of thepetitioner to a period of one month by the order dated 02.07.2001in G.O.(D) No.553 Home (Cinemas-2) Department. Being aggrievedagainst such order, the petitioner has come forward with thepresent petition.3. Mr.D.Sivakumaran, learned counsel for the petitionervehemently contended that the impugned order was passed by theauthorities arbitrarily and mechanically ignoring the explanationgiven by the petitioner. It is pointed out by the learned counselfor the petitioner that the petitioner was not given sufficientopportunity to put forth her case and the authorities, namely, therespondents herein simply overlooked and brushed aside theobjections and explanations given by the petitioner herein. It isfurther contended that the authorities placed reliance on thestatement of the manager of the petitioner, which obtained behindthe back of the petitioner in respect of the alleged contraventionof the Rules. The learned counsel for the petitioner wouldfurther contend that the inspecting officer claimed to haveverified the daily collection register and appended his signatureto the same, but no entry was made about the alleged violation andas such, the allegation that excess number of viewers were presentwith reference to the daily collection register is totallycontrary to the materials available on record. Lastly, it issubmitted by the learned counsel for the petitioner that thestatements of certain viewers at the theatre have been recorded https://hcservices.ecourts.gov.in/hcservices/ behind the back of the petitioner and the said witnesses have notbeen examined by the Enquiry authority, namely, the thirdrespondent herein.4. Per contra, learned Government Advocate submitted thatthere is no infirmity in the impugned order passed by therespondents. It is submitted that the petitioner was given enoughopportunity as admittedly show-cause notice was served on her andshe has also submitted her explanation and those explanation wereperused and considered by the respondents while passing theimpugned orders. The learned Government Advocate would furthersubmit that if at all the petitioner is aggrieved against thestatements recorded from the viewers, the petitioner could havevery well called for examination of those witnesses at the time ofenquiry. It is contended that the charge levelled against thepetitioner is a serious one as the petitioner alleged to haveaccommodated more number of viewers with reference to the numbersmentioned in the daily collection register and thereby causingloss of revenue to the Government by way of tax. Therefore, it issubmitted by the learned Government Advocate that the impugnedorders are not liable to be set aside. 5. I have carefully considered the rival contentions putforward by either side and also perused the materials available onrecord including the impugned orders passed by the respondentsherein.6. A perusal of the records discloses that the petitioner isa licensee of a theatre under the name and style as "DuraisamyParadise Theatre". The following charge was made against thepetitioner, namely, with reference to the daily collectionregister excess number of viewers were accommodated in variousclasses, namely, in the Balcony class instead of 17 viewersmentioned in the daily collection register, 76 viewers wereadmitted ; in the first class instead of 55 viewers mentioned inthe daily collection register, 62 viewers were admitted and in thesecond class as against 76 viewers mentioned in the dailycollection register, 82 viewers were admitted and as such therewas a violation of Rule 83(1)(a) of the Rules. For thecontravention of the said rules, the third respondent herein,namely, the District Collector, Dharmapuri District, inflicted thepunishment of suspending the 'C' Form license of the petitioner'stheatre for a period of one year under Section 9(2)(b) of theTamil Nadu Cinemas Regulation Act, 1955.7. Before proceeding to consider the points raised by thelearned counsel for the petitioner, it is relevant to refer theprovision under Rule 83(1)(a) of the Rules which reads hereunder : https://hcservices.ecourts.gov.in/hcservices/ "83(1)(a). The licensing authority shall fix theactual number of persons to be admitted to each class ofaccommodation provided in the auditorium. The numbershall be arrived at by calculating at the rate of 20persons per 10 sq. metrs. of floor area in respect ofthat portion of auditorium which is provided with chairshaving backs and arms, and at the rate of 25 persons per10 sq.metrs. of floor area in respect of any other classof accommodation.(Provided that not less than ten percent of thetotal seat in the auditorium shall be reserved for thelowest class.)"A reading of the above said provision makes it clear that thelicensing authority shall fix the actual number of persons to beadmitted in the theatre for each class of accommodation bycalculating at the rate of 20 persons per 10 sq. metrs. of floorarea. Therefore, the said provision deals only in respect offixing the actual number of viewers to be admitted in a theatredepending upon its built up area. It is pertinent to note Rule 83(1)(b) of the Rule which reads hereunder :"(b) In calculating the area under clause (a), thearea of the entrances, the passages, gangways, thestage, the staircases and all places to which the publicare not admitted shall be excluded, but no part of theauditorium from which a person can watch the exhibitionof films shall be excluded."8. As per the above said provision, it is made clear thatwhile calculating the area as per clause (a), the area of theentrances, the passages, gangways, the stage, the staircases andall places to which the public are not admitted are to be excludedexcept the part of auditorium from which a person can watch theexhibition of films. Therefore, it is crystal clear that theprovisions under Rule 83(1)(a) and (b) of the Rules deal with thenumber of persons to be admitted in each class of accommodation inthe auditorium to watch the exhibition of films. But as far asthe case on hand is concerned, the charge is in respect ofvariation between the daily collection register and the actualnumber of viewers admitted at the time of inspection by theinspecting officer. The respondents even in the counter affidavitfiled before this Court have specifically stated in paragraph 2about the charge to the effect that "the management has admittedmore number of viewers than the number of viewers shown to havebeen admitted in the daily collection register". There is nocharge to the effect that the petitioner admitted thepersons/viewers over and above the actual number of persons fixedby the licensing authority and as such the provision under Rule 83(1)(a) of the Rules not at all attracted in the instant case. https://hcservices.ecourts.gov.in/hcservices/ Therefore, it is clear that the third respondent arbitrarily,mechanically and without application of mind passed the originalorder dated 09.01.2000 suspending the 'C' Form licence of thetheatre of the petiitoner for a period of one year. 9. There are other infirmities also found in the originalorder dated 09.01.2000 passed by the third respondent. A perusalof the said order discloses that the petitioner sought forfurnishing the statements recorded from the Manager and others atthe theatre on 08.11.1999. But the reading of the entire orderreveals that such request made by the petitioner was not actedupon and as a matter of fact, there was no indication to theeffect that the third respondent herein has furnished thosestatements recorded behind the back of the petitioner. It is veryunfortunate to note that without giving any reasons for notfurnishing such statements as stated above, the third respondentproceeded to pass a cryptic order to the effect that theinspecting officer is entitled to inspect the theatre and theexplanation given by the petitioner is unacceptable and exceptmaking such statement, there is absolutely no reason given by thethird respondent for arriving at the conclusion to the effect thatthe allegation levelled against the petitioner was proved by theauthorities. Therefore, the order passed by the third respondentis nothing but a non-speaking order.10. Now coming to the order dated 23.08.2000 passed by theappellate authority, namely, the second respondent in CinemaAppeal No.58 of 2000, the second respondent has passed a stereo-typed order like that of the third respondent herein stating thatthe explanation given by the petitioner to the show-cause noticeis unacceptable and further stating that the statements recordedfrom the viewers by the inspecting officer are quite clear toestablish the charge against the petitioner. It is to bereiterated, at the risk of repetition, that even the appellateauthority has placed reliance on the statements recorded by theinspecting officer behind the back of the petitioner herein andfurther in spite of the petitioner asking for furnishing of thecopies of those statements, admittedly the said statements werenot served on the petitioner enabling her to defend her caseeffectively. Lastly, the order passed by the Government in theRevision is also nothing but a non-speaking order.11. As already pointed out, the impugned orders passed by therespondents are nothing but the non-speaking orders as therespondents have not assigned any reasons for passing the impugnedorders. It is relevant to refer the decision of the Hon'ble ApexCourt in State of Punjab V. Bhag Singh (2004 (1) SCC 547)following its earlier decision in Alexander Machinery (Dudley)Ltd. V. Crabtree held that, https://hcservices.ecourts.gov.in/hcservices/ "Failure to give reasons amounts to denial ofjustice. Reasons are live links between the mind ofthe decision-taker to the controversy in question andthe decision or conclusion arrived at."12. This Court also cannot lost sight of the important factorto the effect that as per the impugned order passed by the thirdrespondent, the Deputy Tahsildar inspected the theatre of thepetitioner at the instructions of the R.D.O. On the other hand,the appellate authority, namely, the second respondent hereinobserved in his order dated 23.08.2000 that the cinema theatre ofthe petitioner was inspected by the R.D.O., Krishnagiri. In thecounter filed by the respondents, it is stated that the theatre ofthe petitioner was inspected by the R.D.O., Krishnagiri, and assuch there is no consistent version as to who has actuallyinspected the theatre of the petitioner herein. Added to suchinfirmity, it is pertinent to note that all the three respondentshave mainly placed reliance on the inspection report of theinspecting officer and the said report and the statements said tohave been recorded during the inspection were not served on thepetitioner. It is also seen that the daily collection registerdoes not contain the inspection note of the inspecting officer.The only charge levelled against the petitioner is to the effectthat the petitioner allowed more number of spectators/viewers thanthe numbers mentioned in the daily collection register, but thereis no prima facie materials available on record to substantiatethe above said charge.13. To sum up, it is to be reiterated that the chargelevelled against the petitioner would not attract the provisionsunder Rule 83(1)(a) of the Rules as the said Rules, as alreadypointed out, relates to the fixation of actual number of personsto be admitted to each class of accommodation in the theatre bythe licensing authority and in the instant case, there is noallegation that the petitioner admitted more number of personsthan the number fixed by the licensing authority. Therefore, itis clear that the petitioner has not contravened the provisionunder the Act and Rules and as such the entire proceedings isvitiated. Therefore, this Court is of the considered view thatthe respondents passed not only the non-speaking orders but alsopassed the orders mechanically, arbitrarily and withoutapplication of mind in flagrant violation of the principles ofnatural justice.14. In view of the foregoing reasons, this petition isallowed and the order passed by the third respondent dated09.01.2000 in his proceedings Na.Ka.No.C1/96057/99, and the orderof the second respondent in Cinema Appeal No.58 of 2000 dated23.08.2000 and also the order of the first respondent in G.O.(D) https://hcservices.ecourts.gov.in/hcservices/ No.553, Home (Cinema-2) Department, dated 02.07.2001 are herebyquashed. No costs.ggSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, Home (Cinema) Department, Fort St. George, Chennai – 600 009.2. The Joint Commissioner (Cinema), Land Administration Department, Chepauk, Chennai – 600 005.3. The District Collector, Dharmapuri District, Dharmapuri – 636 705.+ 1 cc to Mr. C. R. Muralidharan, Advocate SR No.19680+ 1 cc to the Government Pleader, SR No.20281KGK(CO)SR/10.8.2009W.P.No.15196 2001