Allowed

Grand Cinema Hall v. Fire Office,Central Range,Cuttack/Commissioner of Police,Bbsr

Orissa HC11 Aug 2016WP(C)/8749/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing the rejection of a cinema hall license renewal. The court held that the alternative remedy was not effective due to lack of prescribed procedure. It ruled that alteration rules did not apply post-expiry and directed the licensing authority to grant the renewal upon fee payment.

What did the court decide?

Impugned order set aside; petitioner directed to deposit fees and file undertaking; respondent to issue renewal license.

Grand Cinema Hall Vs Fire Office,Central… — Pension and Retirement Benefits | Orissa HC (2016)

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IN THE HIGH COURT OF ORISSA: CUTTACK

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W.P.(C) No. 8749 of 2016

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An application under Articles 226 and 227 of Constitution of India.

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Grand Cinema Hall	……… Petitioner
Fire Office, Central Range & Anr.	-Versus- ………. Opp.Parties
For Petitioner:	- Mr. Budhadev Routray (Senior Advocate)
For Opp.Parties: ----	- Mr. Deepak Kumar A.S.C. -----------------

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P R E S E N T :-

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment - 11.08.2016
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S. K. SAHOO, J . Once upon a time the Millennium City of Cuttack was

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having cinema halls almost in every corner. Cinema was the source of special entertainment for the dwellers of this City and people were frequently visiting movies because they wanted to

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feel good and forget about everything. Watching movies in the

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jam-packed cinema hall was full of fun and great experience for them. The magical and amazing time slowly started fading away. One after another cinema hall was shut down. Reasons were not that the moviegoers lost interest in watching movies but may be due to growth of television network, video craze, absence of good cinemas as well as good cinema halls. Time has again changed. Multiplex cinema halls have become very popular sophisticated places and crowd-pullers and income from cinema industry is skyrocketing. When cinema industry is flourishing, every endeavour is to be made from all concerned so that the people at large get complete relaxation in the cinema halls and forget the worries of their lives.

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In this writ application, the petitioner has challenged

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the order dated 16.7.2016 passed by the opp.party no.2, Commissioner of Police-cum-Commissionrate Police, Licensing Authority, Bhubaneswar-Cuttack vide Annexure-7 in rejecting the application dated 10.05.2016 filed by the petitioner for renewal of licence of Grand Cinema Hall.

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It is the case of the petitioner that the Grand Cinema Hall which is located at Mahatab Road, Cuttack-1 is an old Cinema Hall and it was running till 2008 and due to certain necessity of renovation works, the Cinema Hall was not

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functioning thereafter. It is the further case of the petitioner that on 10.05.2016 the petitioner applied for renewal of license of the cinema hall for the year 2016-17 before the opp.party no.2 and he submitted the structural soundness certificate from the Executive Engineer, R & B Division, Cuttack, Sanitary Certificate from the Executive Engineer, PHD Division, challan and application to the Electrical Inspector for Inspection and application to the Fire Officer to have inspection of the unit along with the renewal application and accordingly, prayed to renew the license. It is the further case of the petitioner that so far as the Fire Safety Certificate is concerned, the Fire Inspector had inspected the Cinema Hall and in that respect it was indicated in the application that the petitioner would produce the certificate at an earliest immediately after it is supplied by the opposite party no.1. It is the further case of the petitioner that without proper application of mind, the opp.party no.2 vide impugned order under Annexure-7 rejected the renewal license application of the petitioner basically on four grounds.

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The first ground is that the application for renewal dated 10.5.2016 was not initially supported by treasury challan in support of deposit of fee of Rs.825/-(rupees eight hundred and twenty five only).

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The second ground of rejection is that though the provision under Rule 9(1)(a) of the Orissa Cinemas (Regulation) Rules, 1964 (hereafter ’1964 Rules’) envisages that the application for renewal of license shall be made at least two months before the date of expiry of the license but application for renewal in this case was made several years from the date of expiry of license i.e. 31.12.2004.

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The third ground of rejection is that under Rule 15 of the 1964 Rules, it is provided that no addition to or alteration of any portion of any premises licensed under Section 5 of the Orissa Cinemas (Regulation) Act, 1954 (hereafter ‘1954 Act’), necessitated by fire, any other calamity or any other cause shall be made without the sanction of licensing authority and a notice in writing is to be given to the licensing authority with complete plans, elevations and sections and specifications of the work proposed to be executed, drawn up in duplicate and it further provides that no work shall be commenced until the consent of the licensing authority is obtained but in this case no sanction/ consent was obtained before renovation of the cinema hall.

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The fourth ground on which the rejection order was passed is that in the electrical inspection report of Assistant Electrical Engineer-cum-Assistant Electrical Inspector, certain

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deficiencies were pointed out and those were directed to be complied with within 30 days.

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Accordingly, considering the aforesaid four grounds, the opposite party no.2 rejected the application filed by the petitioner for renewal of licence of Grand Cinema Hall.

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In pursuance of the notice issued in this case, the opp.party no.1 Fire Officer, Central Range as well as the opp.party no.2 have filed their respective counters.

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Mr. Budhadev Routray, learned Senior Advocate appearing for the petitioner contended that the impugned order under Annexure-7 passed by the opp.party no. 2 suffers from total non-application of mind and relevant provisions of the 1954 Act and 1964 Rules have not been duly taken note of before passing the impunged order and therefore, the impugned order is not sustainable in the eye of law.

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Learned counsel for the petitioner while making scratching attack on the grounds of rejection contended that so far as the first ground of rejection order is concerned, the petitioner has already deposited the fees by treasury challan. He further contended that so far as the second ground of rejection order regarding provision under Rule 9(1)(a) of 1964 Rules is concerned, the proviso to Rule 9(1)(a) empowers the licensing

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authority to renew the licence after the prescribed period on payment of the fee chargeable for a new licence if the conditions prescribed in the Rules are fulfilled. It is contended by the learned counsel for the petitioner that when the renewal application was accompanied with all the necessary certificates, the opposite party no.2 should have considered those certificates and at best he could have asked the petitioner for the payment of the fee chargeable for a new licence which the petitioner was ready and willing to pay and should not have rejected on the ground that it was filed beyond the prescribed period.

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Learned counsel for the petitioner further contended that the third ground of rejection regarding the applicability of Rule 15 of 1964 Rules which deals with alteration and repairs is concerned; the provision is only applicable only for the ‘licensed premises’. As it is the case of opp. party no. 2 that the license of the petitioner had expired since 31.12.2004 and the petitioner had done some renovation work subsequent to such expiry date, it was not necessary on the part of the petitioner to seek for sanction/consent from the licensing authority in terms of the Rule 15 of 1964 Rules.

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Challenging the fourth ground, it is contended by the learned counsel for the petitioner that though the Assistant

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Electrical Engineer -cum- Assistant Electrical Inspector pointed out certain deficiencies and directed the petitioner to comply the same, in the meantime the same has been complied with and the concerned authority vide letter dated 13.6.2016 has given the compliance report.

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It is strenuously urged that when the opp.party no. 1 has already issued conditional fire safety certificate on 4.7.2016 in favour of the petitioner indicating therein that the premises is fit for occupancy or usage, there was no justification on the part of the opposite party no.2 to reject the renewal of license application and therefore, it is a fit case where the impugned order dated 16.07.2016 should be quashed and the opposite party no.2 be directed for issuance of renewal license in favour of the petitioner Cinema Hall.

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Mr. Deepak Kumar, learned Addl. Standing Counsel for the State on the other hand raised a preliminary objection regarding maintainability of the writ petition in view of the availability of appellate forum to challenge such order in terms of Section 5 (3) of 1954 Act and further pointed out that Rule 8 (5) of 1964 Rules indicates that applications shall be submitted to the licensing authority before any alteration necessary for the adaptation of the premises for cinema exhibition are taken in

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hand and detailed particulars regarding the alteration proposed to be made should be submitted along with the applications and then the licensing authority may grant permission for making such alterations after consultation with the Board.

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Learned counsel for the petitioner on the other hand contended that Rule 8 of 1964 Rules is not applicable to the existing Cinema Hall rather it is applicable only to the new Cinema Hall.

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Adverting to the tactical and enthralling contentions raised at the Bar and before considering the challenge to the grounds taken by the opp.party no.2 in rejecting the application for renewal of license, let me first deal with preliminary objection regarding maintainability of this writ application.

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So far as the preliminary objection raised by learned counsel for the State regarding maintainability of this writ application due to availability of appellate forum is concerned, law is well settled under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition and the alternative remedy shall not operate as a bar in at least in three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there

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has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ( Ref:- AIR 1999 SC 22, Whirlpool Corporation -Vrs.- Registrar of Trade Marks ). There is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and where adjudication involved pure question of determination of law, the High Court may entertain writ application in its discretion in spite of availability of alternative remedy. ( Ref:- AIR 1977 SC 1132,

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State of Uttar Pradesh -Vrs.- Indian Hume Pipe ).

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Even though Section 5(3) of 1954 Act provides for preferring an appeal to the State Government or to such officer as the State Government may specify in that behalf against the decision of a licensing authority refusing to grant licence under 1954 Act and the Revenue Divisional Commissioner has been empowered to hear such appeal which is to be preferred within thirty days of the communication of the decision of the licensing authority to the aggrieved person in terms of the Orissa Cinemas (Regulation) Appeal Rules, 1956 (hereafter ‘1956 Rules’) but such Rules has not laid down the procedure for disposal of such appeal and the power of the appellate authority has also not been

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prescribed rather it is mentioned in Rule 4 of 1956 Rules that the Revenue Divisional Commissioner shall dispose of the appeal in such manner as he thinks fit . In absence of any procedure being laid down so also the power of the appellate authority being specified, there is every chance of arbitrariness or discrimination being committed by such authority. An authority cannot be permitted to act at its whim and pleasure. There should be certain restrictions and guidelines otherwise the power is likely to be misutilised.

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Therefore, I am of the view that when the alternative remedy is ‘no remedy’ in the eye of law, this Court has jurisdiction to entertain writ petition against the impugned order. 8. So far as the ground no.1 regarding deposit of fees by treasury challan is concerned, the same has already been complied with by the petitioner which is not disputed.

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So far as the ground no.2 is concerned, in view of the proviso to Rule 9(1)(a) of 1964 Rules, when the statute itself provides that the application for renewal of license can be entertained after the prescribed period on payment of the fee chargeable for a new license and the petitioner is ready and willing to pay such license fee, it cannot create any hurdle on the

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part of the opposite party no.2 for grant of renewal of license in favour of the petitioner.

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So far as the ground no. 3 is concerned, Rule 15 of

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1964 Rules reads as follows:-

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“15. Alteration and repairs – (1) No addition to or alteration of any portion of any premises licensed under Sec. 5 of the Act, necessitated by fire, any other calamity or any other cause shall be made without the sanction of the licensing authority.

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(2) The licensee shall give notice in writing to the licensing authority of his intention to make any addition or alteration and such notice shall be accompanied by complete plans, elevations and sections and specifications of the work proposed to be executed, drawn up in duplicate in the manner prescribed in Rule 8, provided that in the case of premises for which a temporary licence has been granted, such plans and specifications shall be furnished as the licensing authority may consider necessary.

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(3) The work shall not be commenced until the consent of the licensing authority has been obtained, and the licensing authority shall not give his consent unless he certifies that the proposed additions or alterations are in accordance with these rules, by an officer of the rank of Executive Engineer or such other officer not below the rank of an Assistant Engineer nominated by him whether such officer belongs to a department of Government or any local body or Corporation.

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(4) No addition or alteration of any part of the cinema and its appurtenances or of the lighting or other electric arrangements shall be made without the sanction of the licensing authority.

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The licensee shall give notice in writing to the licensing authority of his intention to make any such additions or alterations, and the licensing officer deputed by him certifies that the additions or alterations are in accordance with the provision of these Rules.”

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(Underline is by mine for emphasis)

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From the plain reading of Rule 15 of 1964 Rules and the use of words ‘any premises licensed’, ‘the licensee’ in the said Rule, it is very clear that such provision is applicable only in respect of licensed premises. License is granted by licensing authority under section 5 of the 1954 Act. When it is the case of the opp.party no. 2 which is not also disputed by the petitioner that the period of license had expired since 31.12.2004 and thereafter certain renovation works were done, I am of the view that during the period when the renovation work was being done, there was no link between the parties and at that time the petitioner was not a licensee under the licensing authority and therefore, there was no requirement on the part of the petitioner to seek for sanction/consent for alteration and repairs of the cinema hall premises from the licensing authority. Thus, the third ground of rejection of the renewal of licence application

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taking into account Rule 15 of 1964 Rules is also not sustainable in the eye of law.

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So far as the fourth ground regarding Electrical safety certificate is concerned, though some deficiencies were pointed out by the Assistant Electrical Engineer -Cum- Assistant Electrical Inspector but the same has already been rectified and compliance report issued by the competent authority was produced.

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In view of the aforesaid discussions and in view of the facts and circumstances of the case, I am of the view that the order dated 16.07.2016 passed by the opp.party no.2 under Annexure-7 is not sustainable in the eye of law and accordingly, the same is set aside.

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In the event the petitioner deposits the fees chargeable for a new licence as required under the proviso to Rule 9(1)(a) of 1964 Rules within a week and files an undertaking to comply the conditions as mentioned in the conditional Fire Safety Certificate dated 04.07.2016 within prescribed period of three months as per that certificate, the opposite party no. 2 shall issue renewal of licence of Grand Cinema Hall immediately.

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It is made clear that since renovation work has been carried out as per the statement made by the learned counsel for the petitioner and the authorities are empowered under Rules 12 and 13 of 1964 Rules to make an inspection, if any defect is pointed out during such inspection, the same shall be rectified by the petitioner within stipulated period of time to the satisfaction of the authority. If the defects are not removed within such time, the authorities are at liberty to proceed against the petitioner in accordance with law. Similarly, if the conditions as mentioned in the Fire Safety Certificate are not fulfilled within stipulated period of time to the satisfaction of the authority, the authorities are free to take appropriate steps in accordance with law.

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Learned counsel for the petitioner submits that the petitioner shall deposit the necessary fees for renewal of license within a week.

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Accordingly, writ petition is allowed.

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(S.K. Sahoo, J.)

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Orissa High Court, Cuttack The 11^th August, 2016/Kabita.

Grand Cinema Hall v. Fire Office,Central Range,Cuttack/Commissioner of Police,Bbsr

Case brief

What is this about?

What did the court decide?

Grand Cinema Hall v. Fire Office,Central Range,Cuttack/Commissioner of Police,Bbsr

Case brief

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