IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 2117 of 2003 Between: Apsara Theatre, rep. by its Managing Partner, K. Sarojini Devi, Nuzvid, Krishna District. ..... PETITIONER AND 1 The Principal Secretary, Government of Andhra Pradesh, Home (General. A) Department, Secretariat, Hyderabad 2 The Joint Collector, Machilipatnam, Krishna District 3 The Mandal Revenue Officer, Nuzvid Mandal, Krishna district ....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus declaring the action of the 1st respondent imposing Rs. 100/- for each day of alleged Violation of the Impugned G.O. 1358 dt 14-11-2002 and the consequential order of the 2nd respondent in Rc. C2/1360/M/2001 dt 20-1-2003 as illegal arbitrary malafide intentional and opposed to the provisions of the Act and consequently set aside the order of the 1st respondent to the extent of imposing penalty of Rs. 100/- for each day of alleged violation Counsel for the Petitioner :MR.K.V.BHANU PRASAD Counsel for the Respondent No.: GP FOR HOME The Court made the following : THE HON'BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No. 2117 of 2003 Order: In this writ petition, the petitioner has questioned the orders passed by the first respondent-Government in G.O. Rt. No. 1358, dated 14th November 2002, and the consequential order of the second respondent-Joint Collector, passed in Rc.C2.1360/M/2001, dated 20th January 2003. The petitioner is a theatre, running in the name of “Apsara Theatre” in Nuzvid Town of Krishna District, under the provisions of the A.P. Cinemas (Regulation) Act, 1955 (for short ‘the Act’). As per the conditions of the licence, the petitioner was permitted in four specified classes with fixed rates for sale of tickets in the theatre. By representation dated 11.09.2001, the petitioner sought reduction in seating capacity and for enhancement of rates of admission in the theatre. Even before the request of the petitioner for reduction in seating capacity and for enhancement of rates was considered, the management of the petitioner-theatre, on their own, reduced the seating capacity and increased the rates and was running the theatre. Based on the report of the Assistant Commercial Tax Officer, Nuzvid, the Joint Collector and Additional District Magistrate, after issuing a show cause notice and after considering the explanation submitted by the petitioner management, passed orders dated 08.06.2002, by recording a finding that the petitioner management has reduced the seating capacity and enhanced the rates of admission in the theatre, as per their will, without following the procedure and without obtaining the orders from the Licensing Authority, and ordered for revocation of B-Form licence issued to the petitioner in exercise of powers conferred on him under Section 10(2) of the Act. As against the orders of the Licensing Authority, dated 08.06.2002, passed in Rc.C2.1360/M/2001, the petitioner-theatre carried the matter by way of appeal before the Government. The appellate authority i.e., the first respondent- Government, by impugned order dated 14th November 2002, passed in G.O. Rt. No.1358, allowed the appeal, and in modification of the revocation order passed by the Licensing Authority, imposed a penalty of Rs.10,000/- with a further fine of Rs.100/- for each day during which the violation of rules continued on the petitioner-theatre in lieu of revocation of B-Form license. Consequent to the said orders passed by the appellate authority i.e., the first respondent-Government, the second respondent has issued the consequential impugned orders in Rc.C2.1360/M/2001, dated 20.01.2003, calculating the fine of Rs.100/- for each day from 06.01.2001 to 26.08.2002 amounting to Rs.59,800/- (for 598 days), and directed the petitioner to remit the said fine amount of Rs.59,800/- within 15 days from the date of receipt of the orders. Aggrieved by the order of the first respondent-Government in G.O. Rt. No.1358, dated 14th November 2002 and the consequential order of the second respondent Joint Collector, dated 20.01.2003, this writ petition is filed. This Court, while admitting the writ petition on 05.02.2003, granted interim stay on condition of the petitioner depositing 50% of the penalty imposed, in addition to the deposit of Rs.10,000/- as ordered by the Government in the order dated 14th November 2002. Heard Sri K. Bhaskara Prasad, learned counsel for the petitioner, and the learned Government Pleader for the respondents. The main contention of the learned counsel for the petitioner in this writ petition is that in view of revocation or cancellation of licence, the primary authority itself is empowered to impose maximum penalty of Rs.10,000/-, and that there is no power conferred either on the licensing authority or the appellate authority for imposing the fine of Rs.100/- per day, in addition to penalty of Rs.10,000/-, as ordered in the impugned orders. On the other hand, it is submitted by the learned Government Pleader appearing for the respondents that the petitioner-exhibitor has made a representation dated 11.09.2001 for reduction of seating capacity and for enhancement of rates of admission, but even before the orders are passed by the licensing authority, the petitioner management, on their own, have reduced the seating capacity and enhanced the rates contrary to the licensing conditions, and hence, the licensing authority has revoked the B-Form licence of the petitioner- theatre. It is further submitted that though the licensing authority has revoked the B-Form licence of the petitioner, on an appeal, the first respondent-Government, in exercise of discretion vested in it, while modifying the order of revocation of licence as ordered by the primary authority, imposed penalty, and no reasons to interfere with the same. Section 10 of the Act gives power to the licensing authority for revocation and suspension of licence granted under the provisions of the Act. If the licensee under the provisions of the Act fails to comply with any of the provisions of the Act or of the rules made thereunder, or any of the conditions of restrictions upon or subject to, which the licence has been granted, the licensing authority is empowered to revoke the licence under Section 10(2)(b) of the Act. Further, under Section 10(2- A) of the Act, the licensing authority is also empowered to impose on the licensee a sum not exceeding rupees ten thousand by way of penalty in lieu of such revocation or suspension of licence. In the instant case, the licensing authority has revoked the licence, but the appellate authority i.e., the first respondent-Government, while allowing the appeal, not only ordered for penalty of Rs.10,000/-, but in addition to the same, further fine of Rs.100/- per day was ordered. Though it is submitted by the learned Government Pleader appearing for the respondents that such penalty of Rs.100/- per day in addition to Rs.10,000/- was imposed as per the provisions of Section 10(2-A) of the Act, but this Court is of the view that there is no such power conferred on the appellate authority under Section 10(2-A) of the Act for imposing the fine over and above Rs.10,000/-. When the licensing authority ordered revocation of the licence, the order of the appellate authority, while examining the scope of the appeal against the order of the licensing authority, cannot go beyond the scope of the provisions of Section 10 of the Act and impose any penalty more than the penalty of Rs.10,000/-, as provided thereunder. Further, though there is separate provision under Section 9 of the Act for imposition of penalty, but in this case it is to be noted that the penalty was levied in lieu of revocation or suspension of licence as ordered by the primary authority, as such the fine amount which was already imposed is traceable to the power conferred under Section 10(2-A) of the Act only. In that view of the matter, the order of the appellate authority to the extent of imposing fine of Rs.100/- per day, in addition to penalty of Rs.10,000/-, is liable to be declared as illegal. For the aforesaid reasons, the order of the appellate authority dated 14.11.2002 passed in G.O. Rt. No.1358, only to the extent of imposing fine of Rs.100/- per day, and the consequential order of the Joint Collector and Additional District Magistrate, Krishna, Machilipatnam, dated 20.01.2003, passed in Rc.C2.1360/M/2001, are hereby quashed. In view of the same, as much as it is stated that subsequent to the orders of this Court dated 05.02.2003, the management of the petitioner have deposited 50% of the fine amount imposed in the impugned order dated 20.01.2003, the respondents are directed to refund the said amount to the petitioner management forthwith. It is also made clear that the petitioner/licensee shall exhibit the films as per the conditions and restrictions imposed by the respondents with regard to seating capacity and rates of admission and if the petitioner exhibits the films contrary to any licensing conditions, this order will not preclude the respondents to take appropriate action against the petitioner. The writ petition is allowed in part to the extent indicated above. No order as to costs. _____________________ R. SUBHASH REDDY, J. Date: 07.04.2009 Nsr