THE HONOUABLE SRI JUSTICE V.ESWARAIAH W.P. No. 14571 of 2007 Date:10-07-2007 Between: Kotapati Muni Subba Rayudu .. PETITIONER AND The Joint Collector, Kadapa and five others .. RESPONDENTS ORDER: The petitioner seeks a writ of mandamus to direct the Joint Collector to withdraw the order Ref.C4/144A/M/2006 said to have been passed by him on 18.06.2007 contrary to the decision of this Court in W.P.No.10932 of 2006 and restrain the respondents 5 and 6 from exhibiting shows at Sri Krishna Picture Palace, Kadapa. Heard the learned counsel appearing for the petitioner as well the as the Government Pleader for Home and also the learned counsel appearing for the respondents 5 and 6. Learned counsel appearing for the respondents 5 and 6 agreed for final disposal of the writ petition by setting aside the impugned order and to remand the matter to the Joint Collector and the Licensing Authority/first respondent for fresh disposal according to law. However, a submission is made that pending adjudication of the dispute in the Civil Court and pending reconsideration of the matter afresh by the first respondent, the petitioner may be permitted to continue to run the said cinema theatre. I am unable to accept such a request for permitting the petitioner to run the same pending disposal of the civil disputes pending before the Court. As far as reconsideration of the issue of grant of temporary licence in favour of the persons who are entitled is the question to be decided. It is the case of the petitioner as well as the 5th respondent is that both of them are the brothers and sons of one Kotapati Munnaiah. The said Kotapati Munnaiah constructed the theatre namely Sri Krishna Picture Palace. It is stated that the said Munnaiah died on 31.03.1977. It is stated that during the lifetime of their father Munnaiah, a partnership firm was constituted in the year 1971 called ‘Kotapati Munnaiah and Sons’ and the said firm was registered with the Registrar of Firms vide No.1040/72. According to the petitioner the said theatre building was treated as the asset of the firm. But, according to the 5th respondent the said theatre building was never treated as the asset of the firm. Thus, there are disputes between the petitioner and the respondents 5 and 6 as to whether the said theatre building can be treated as an asset of the firm or to continue as family property. But, there is no dispute with regard to the fact that the licence was granted in favour of Munnaiah and Sons to exhibit the films in Sri Krishna Picture Palace. It is stated that the said firm was reconstituted with the name K. Munnaiah Sons on 30.03.1993 and both the petitioner as well as the 5th respondent were running the theatre. But, pursuant to the memorandum of understanding dated 29.12.2003, the 5th respondent was entrusted with the management of the theatre since the petitioner had to undergo bypass surgery. As per the terms of the memorandum of understanding, the 5th respondent was under obligation to clear the arrears of entertainment tax and also to discharge the liability on installment basis. But, there is a dispute with regard to the said fulfillment of the memorandum of understanding. Therefore, the petitioner dissolved the firm with effect from 17.02.2006 under Section 43 of the Partnership Act. Notice sent was also received by the 5th respondent on 17.02.2006, which was also published in Andhra Jyothi daily, Kadapa edition, dated 14.03.2006. While so, as ‘B’ form licence was due to expire by 30.11.2005, the 5th respondent applied for renewal of ‘B’ form licence on 30.11.2005 before the first respondent and in that regard, the petitioner raised an objection not to issue ‘B’ form licence in favour of the 5th respondent as he has no right to continue the firm’s business after the dissolution. As the tax clearance certificate was not filed, the Joint Collector directed the closure of the said theatre. In view of the orders passed by the first respondent, dated 26.05.2006 directing the R.D.O./M.R.O. to take necessary action for opening of the theatre on collection of the arrears of the entertainment tax in instalments, the said writ petition filed by the 5th respondent was withdrawn. Aggrieved by the said order of the Joint Collector, dated 26.05.2006 the petitioner filed W.P.No.10932 of 2006. The mother of the petitioner and the 5th respondent also filed W.P.No.14620 of 2006 questioning the action of the official respondents in not granting the temporary licence in her favour to run the said theatre in Kadapa as illegal and to direct them to grant temporary licence for running the theatre. The W.P.No.10932 of 2006 filed by the petitioner was allowed on 09.11.2006 holding that admittedly the partnership firm was dissolved and the 5th respondent not at all contested the dissolution of the partnership firm. Therefore, there was no legal entity for the 5th respondent to reopen the theatre and accordingly, the said order, dated 26.05.2006 passed by the first respondent granting renewal/permission to run the theatre was set aside. The writ petition filed by the mother of the petitioner and 5th respondent viz. Kotapati Naga Munemma was disposed of on the same day i.e. on 19.11.2006 directing the first respondent to consider and dispose of the application dated 17.06.2006 of the said Munemma without expressing any opinion on the merits with regard to her clear ownership or lawful possession of the said premises in respect of which she applied for the licence. It is stated that though the writ petition filed by the mother of the petitioner and the 5th respondent was disposed of to consider her application dated 17.06.2006, she withdrew her application for grant of ‘C’ licence contending that she has gifted 1/6th share in favour of the son of the 5th respondent. Thereafter, the petitioner filed a suit O.S.No.22 of 2007 on the file of the District Judge, Kadapa for winding up of the partnership firm business and for rendition of accounts and to appoint receiver for proper management of the firm and the assets till the firm is wound up completely and also to grant a permanent injunction restraining the 5th respondent herein from carrying any cinema business of the dissolved firm by making use of the firm’s name. The said suit is pending and necessary interlocutory applications are also yet to be disposed of filed for the interim reliefs. It is stated that the 5th respondent herein filed an application, dated 27.11.2006 for grant of temporary licence to M/s. Krishna Picture Place, Kadapa for exhibition of films stating that he became 5/6th shareholder in the said theatre. The said application was considered and temporary licence was granted in Form No.’C” to exhibit the films for a period of six months subject to the fulfillment of A.P. Cinema (Regulation) Act, 1955 and Rules, 1970 together with the additional conditions listed in the annexure 1 to 18. The petitioner questioned the said order of the first respondent made in Ref.C4/144A/M/2006, dated 18.06.2007 contending that the petitioner was not at all put on notice about the alleged application dated 27.11.2006 filed by the 5th respondent and without giving any opportunity to file any objections, the grant of temporary licence in form No.’C’ to exhibit films in favour of the 5th respondent is illegal and arbitrary. It is stated that there is no dispute with regard to the share of the petitioner in the building of the said theatre and also with regard to the dissolution of the earlier firm and therefore, the temporary licence cannot be granted in favour of the 5th respondent. It is stated that under Rule 11-A of A.P. Cinemas (Regulation) Rules, 1970 (for short ‘the rules’) deals with the manner and method of filing application for grant of a licence and Rule 11-B of the Rules deals with the grant of licence to cinema buildings. Under Rule 11-B(2) of the Rules if the licensing authority is satisfied that the applicant is in lawful possession of the site, building and equipment, he is entitled to grant licence in Form-B after receiving necessary reports from the concerned authorities. It is the contention of the learned counsel for the petitioner that once the firm was dissolved, it cannot be said that the partnership firm has lawful possession of the site, building and equipment. It is stated that the suit filed by the petitioner for winding up of the partnership firm and for rendition of the accounts and to manage the theatre is pending before the civil Court and it is for the Civil Court to protect the interests of the parties. But, the 5th respondent on his own accord is not entitled to get either the temporary licence or the permanent licence. Learned counsel appearing for the 5th respondent submits that Under Rule 13(2) of the Rules the licensing authority is empowered to grant temporary licence for a period not exceeding six months. Under Rule 13(3)(b) of the rules the temporary licence may also be granted in respect of permanent building if they are required only for occasional use for cinematograph shows or exhibitions. Admittedly, the temporary licence granted in favour of the 5th respondent is not occasional use for cinematograph shows or exhibitions, but it is for a period of six months under Rule 13(2) of the Rules. The question that arises for consideration is as to whether the 5th respondent is legally entitled to get the temporary licence for a period of six months pending disposal of the disputes to be adjudicated by the civil Court. This issue has already been decided by this Court in the earlier writ petition filed by the petitioner in W.P.No.10932 of 2006 holding that admittedly the earlier partnership was dissolved and the said factum of dissolution was not at all contested and therefore, there was no legal entity to the 5th respondent herein as the earlier licence ceased to exist in law with effect from 17.02.2006 on the dissolution of the firm and therefore, no renewal could have been granted by the first respondent. I am of the opinion that the same reasoning also applies here. The Joint Collector granted temporary licence only on the ground that the 5th respondent has became 5/6th shareholder in the theatre. Whether the 5th respondent really became 5/6th shareholder or not is also disputed by the petitioner. However, even assuming that the 5th respondent is not the 5/6th shareholder, but there is no dispute about the petitioner having 1/6th share. Admittedly, no notice has been given to the petitioner and no opportunity was given to him before grant of temporary licence in favour of the 5th respondent. Therefore, I am of the opinion that the impugned order of the first respondent dated 18.06.2007 is unsustainable in law and the same is liable to be set aside and the matter has to be remanded to the first respondent/Joint Collector for disposal according to law. Accordingly, the writ petition is allowed setting aside the impugned order and the matter is remanded to the first respondent with a direction to give notice to both the parties, hear them and also furnish the required documents including the copy of the application filed by the 5th respondent to the petitioner and pass appropriate orders in accordance with law as expeditiously as possible, preferably within a period of six weeks from the date of the receipt of a copy of this order. ________________ V.ESWARAIAH, J. Date:10.07.2007 Note: Furnish C.C. within a week. B/O ccm