IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.01.2010 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.P.No.10062 of 2003 and W.V.M.P.No.517 of 2005 Apsara Theatre rep by its Managing Partner Mr.Hameed Nainar Syeed Devadanapatti Periyakulam Theni District .... Petitioner Vs. 1.The Secretary to Government Home(Cinema II) Department Fort St George Chennai-9 2. The Additional Commissioner of Revenue Administration (Cinema) Chepauk Chennai-5 3. The District Collector Theni District Theni ... respondents This Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorari, calling for the records pertaining to the impugned order of the first respondent passed in G.O.(D) No.1338, Home(Cinema II) Department, dated 9.12.2002 and the impugned order of the third respondent passed in Na.Ka.NO.6624/2002/C1 dated 12.2.2002 and impugned order of the third respondent passed in proceeding in Na.Ka.No.6624/2002/C1 dated 17.3.2003 and to quash the same. For Petitioner : Mr. V.Kathiravan For Respondents: Mr.N.Senthilkumar Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner has filed this writ petition praying for issuance of a writ of certiorari, to call for the records pertaining to the impugned order of the first respondent passed in G.O.(D) No.1338, Home(Cinema II) Department, dated 9.12.2002 and the impugned order of the third respondent passed in Na.Ka.NO.6624/2002/C1 dated 12.2.2002 and the impugned order of the third respondent passed in proceeding in Na.Ka.No.6624/2002/C1 dated 17.3.2003 and to quash the same. 2. The petitioner's Managing Partner had entered into an agreement from one Ponnathal and Ramakrishnan and nine others, who were the owners of the piece of land in Survey No.2170, Devadanapatti Village admeasuring one acre and eighteen cents together with superstructure thereon, (a cinema theatre) and the petitioner, after entering into an agreement, approached the third respondent to obtain "No Objection Certificate" for transferring"C' form licence in favour of the partners including himself. 3. The third respondent/District Collector by proceeding dated 29.8.2001 had issued "No Objection Certificate" for transferring "C"form licence, after following the necessary formalities in the matter in issue. As a matter of fact, the owner of the cinema theatre executed a sale deed dated 6.9.2001 in his favour and after execution of the sale deed, he approached the third respondent for transferring"C"form licence. The respondents issued "C" form licence in his favour by means of separate proceedings dated 7.11.2001 and in the said "C" form licence, the third respondent/District Collector,Theni informed that in case of any default by the previous licensee, the subsequent licensee viz., the petitioner should not be held responsible. 4. It is the case of the petitioner that only in respect of unnoticed lapse on the part of the previous licensee, the third respondent has not received any jurisdiction of the defeat in issuance of any licence to the previous licensee and the condition with regard to the licence, which was not noticed by the respondents and whatever the punishment pending against the previous owner, the petitioner cannot be held responsible for it and the previous licensee alone can be punished. 5. The third respondent /District Collector issued an order on 12.2.2002 mentioning that the previous licensee was punished on four occasions for the lapses committed in the year 1994 and that the petitioner was called upon to inform that "C" form licence should not be extended for thirteen months and three weeks which were the punishment imposed in the year 1994 which was upheld by this Court by means of subsequent proceedings. https://hcservices.ecourts.gov.in/hcservices/ 6. The petitioner had challenged the order of the third respondent/District Collector, dated 12.2.2002 by way of writ petition in W.P.No.8947 of 2002 and this Court held that the petitioner should approach the Appellate Authority as against the order of the third respondent by filing an appeal and the time was granted to prefer an appeal to the second respondent. Accordingly, the petitioner has filed an appeal to the second respondent against the order of the third respondent dated 12.2.2002 and the said appeal was rejected by the second respondent as per proceeding dated 20.6.2002. As against the order of the second respondent, the petitioner filed further revision before the first respondent by means of an Appeal dated 12.7.2002 raising all grounds and the first respondent reduced the total period of 13 months and three weeks as four months. 7.The learned counsel for the petitioner contends that the petitioner theatre was closed for the period from 5.1.2001 to 9.10.2002 and that the punishment imposed was an excessive one and the petitioner, who is a subsequent purchaser of the theatre and transferee of the "C" form licence should not have been imposed with the punishment of four months after transferring the "C" form licence and also that no reason was ascribed by the respondents for fixing the period of suspension as four months. 8. It is further contention of the petitioner that the petitioner cannot be held responsible for the lapses which were committed by the earlier licensee and therefore, the suspension of four months licence against the petitioner theatre was not correct one and after transferring the licence in favour of the petitioner, the first respondent ought to have compensated by imposing suitable fine, and that was not done in the instant case on hand and added further, the first respondent had not considered the objection of the petitioner to safeguard his valuable right under Articles 14,19 and 21 of Constitution and therefore prays for allowing the writ petition to prevent an aberration of justice. 9.Per contra, the learned Additional Government Pleader submits that the Apsara theatre now managed by the writ petitioner was previously running in the name and style as 'Sri Kamatchi Theatre' before the bifurcation of Theni District ie., Composite Madurai District and action was taken against the licensee of the said theatre on four occasions for the various irregularities and violations of the Cinematograph Rules and on 8.3.1994 at about 3.45P.M. The Tahsildar, Periyakulam, inspected the theatre and found the following irregularities. The D.C.R. was not written up to date. There was no affixture of Commercial Tax stamp in 25 tickets of Rs.2.50 each, 113 tickets of Rs.1.75 each and 41 tickets of Rs.1.25 each and after issuance of proper notice, the "C" form licence was cancelled as per the proceedings of the third respondent District https://hcservices.ecourts.gov.in/hcservices/ Collector in Roc No.C1/46318/94 dated 17.12.1994 and subsequently, the licensee of Sri Kamatchi Theatre filed a writ petition in W.P.No.77/95 before this Court and this Court has modified the cancellation orders as suspension of "C" form licence for four month ie., from 1.10.2001 to 31.01.2002 and again on 5.8.1993 at about 7.30P.M., the Sub Collector, Periakulam inspected the same theatre and found non affixture of Commercial Tax stamp in the tickets issued to the patrons as follows: i) 134 tickets of Rs.1.75 each, ii) 55 tickets of 1.25 each and for this commission of offence, the "C" form licence was suspended for one year as per Madurai Collector's Roc.No. C1/ 149959/93 dated 5.1.1995 after observing necessary formalities and later the licensee Sri Kamatchi Theatre filed a writ petition before this Court in W.P.No.2801/95 and this Court has reduced the period of suspension of"C" form licence from one year to three months from 1.4.2001 to 30.6.2001. 10. Apart from the above, Sri Kamatchi Theatre was inspected by the Enforcement Wing of the Commercial Tax Department on 27.12.1993 at about 11.30P.M., and the Enforcement Wing found that the Daily Collection Register was not written and on 6.1.1994, the Enforcement Wing of the Commercial Tax Department inspected the theatre at 11.45P.M., and when the records were called for the licensee had refused to produce the same before the Enforcement Wing and also there was no seal of the Commercial Tax Department in five tickets in III Class and for this commission of the offence, "C" form licence of the theatre was suspended for a period of three months as per the proceedings of the Madurai Collector dated 24.10.994 and once again, the licensee viz., Sri Kamatchi Theatre filed W.P.No.20182/94 and this Court ordered the reduction of suspension period of three months to three weeks. 11. At this stage, it is relevant to point out that the Commercial Tax Department Officials in a similar case found that tickets Sl.Nos 77340 to 77343 relating to Rs.2.50per ticket were issued without the seal of the Commercial Tax Department and for this offence, the "C" form licence was suspended for a period of six months as per Madurai Collector's proceedings in Roc No.C1/1857/947 dated 31.10.1994 and this time also, the theatre filed W.P.No.20224/94 and ultimately the said writ petition was dismissed by this Court as nothing survives in the matter. Furthermore, since the theatre was closed and the licence was not renewed after 27.8.2000 and since the orders of High Court were received during the month of February 2001, but the orders of the High Court are not implemented and during the interregnum period, the petitioners in W.P.No.8947/2002, Hameed Nainar Syeed and Noorul Hudha Jalwath have purchased Sri Kamatchi Theatre through the sale deed dated 15.9.2001 (document No.1539/2001) from the licensee of the Sri Kamatchi Theatre. After purchase, the petitioners have applied for change of name and style of the theatre and transfer of "C" form in their names in pursuance of the sale deed and the "C" form licence came to be https://hcservices.ecourts.gov.in/hcservices/ transferred in the name of the present writ petition with the condition that if the Ex-Licensee had committed any offence punishable under Tamil Nadu Cinema(Regulation) Rules 1957, the present Licensee should bear the sequence of the offences and the "C" form licence was transferred in the name of the present writ petitioner as per the proceedings of Theni Collector's in Roc No.52931/200/C1 dated 7.11.2001 with this condition and the present licensee has not objected to that condition but accepted it. 12. The petitioner theatre commenced functioning from 12.11.2001 after the renewal of the "C" form licence. After the name transfer in the "C" form licence, the orders of this Court were directed to be given effect to and hence the petitioner filed W.P.No.8947/2002 and the same was dismissed by this Court on 15.4.2002 with a direction that it is open to the authorities to take action according to law. 13. It is not in dispute that the petitioner preferred an appeal before the Additional Commissioner(Cinema) Chennai and the said appeal was dismissed on 20.6.2002. Subsequently, the petitioner filed a revision petition before the Government in Home Department and after perusal of the records and as per directions of this Court, the Government in their G.O(D) No.1338 Home(Cinema-II) Department, dated 9.12.2002 have reduced the total punishment of suspension of "C" form licence of Apsara Theatre, Devadanapatti from 13 months and three weeks to 4 months only and accordingly the orders in regard to the suspension of"C" form licence of the said theatre for four months for the period from 1.4.2003 to 31.7.2003 was passed by the third respondent/District Collector by means of his proceedings in Roc No.6624/2002/C1/dated 17.3.2003. This time also, the petitioner filed the present writ petition before this Court and this Court was pleased to grant an order of interim stay on 31.3.2003. 14. Advancing arguments, the learned Additional Government Pleader urges before this Court that "C" form licence was transferred in the name of the present licensee viz., the petitioner and the Collector/Licensing authority imposed a condition specifically that for violation of any rule under Tamil Nadu Cinema(Regulation) Rules 1957 committed by the previous licensee, the present licensee is responsible for that violation and the petitioner having tacitly accepted the condition, cannot turn around and take a contra plea that he cannot be fastened with any punishment or liability of the past licensee and in short, the petitioner is squarely responsible for the irregularities committed by the earlier licensee as per the terms and conditions prescribed by the licensing authority, at the time of transfer of "C" form licence in the name of the petitioner and therefore, the punishment imposed against the petitioner is perfectly and legally valid in law and the writ petition is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 15. Countering the submissions of the learned Additional Government Pleader, the learned counsel for the petitioner submits that no notice was issued to the present licensee/petitioner by the prescribed authority before passing the impugned order and since the petitioner cannot be held liable for the irregularities committed by the erstwhile licensee, the writ petition has to be allowed in the interest of justice. 16. Also the learned counsel for the petitioner takes a plea that as per Section 7(1) of the Tamil Nadu (Cinemas) Regulation Act 1955, only if an exhibition of any film which revokes the breach of peace or a film which is likely to be exhibited to cause a breach of peace then only suspension of licence can be ordered by the competent authority and more over Section 8(A) of the said Act speaks of power to compound offence and in this regard the licensing authority can accept from any person, who has committed or is reasonally suspected of having committed an offence against this Act or the Rules made there under etc by way of compensation of such offence a sum of money (i) not exceeding one thousand Rupees in case of permanent theatre (ii) not exceeding six hundred Rupees in the case of touring theatre and Sub Section 2 further enjoins ' when an offence has been compounded under Sub Sec.(i) the offender if in custody shall be discharged and no further proceeding shall be taken against him in respect of such offence. At this stage, this Court opines that compounding of offence is not a ground either to suspend or to revoke the licence. 17. To lend support to his contention that an opportunity by means of adhering the principles of natural justice ought to have been given to the petitioner before passing the impugned order, the learned counsel for the petitioner cites the decision reported in Thangamani Theatre represented by its Licensee T.Rangasamy-v- Appellate and the Joint Commissioner(L) Land Administration Department(2001(1) CTC 105) wherein it is held that 'the licensing authority has failed to consider explanation of theatre owner and suspension of "C" form on the ground that Licensee compounded offence under Section 14(1) and 15 of Tamil Nadu Entertainment Tax Act and therefore, the order of licensing authority suffers from violation of principles of natural justice. 18. He also brings it to the notice of this Court to the decision of the Honourable Supreme Court in Scheduled Caste and Weaker Section Welfare Association-v- State of Karnataka(1991(2) Supreme Court Cases,604) whereby and whereunder, it is observed that ' Exercise of statutory power to decide to effect alteration in the original scheme to the prejudice of a class of persons in absence of statutory exclusion of principles of natural justice, obligates affording https://hcservices.ecourts.gov.in/hcservices/ pre-decisional opportunity of hearing to the affected persons'. 19.He seeks in aid to the decision of the Honourable Supreme Court in Dadan Ram-v- State of Bihar(2007(13) Supreme Court Cases 583 at page 585 wherein it is held that' the orders impugned suffer from the infirmity of not giving reasonable opportunity to the appellants before reopening the proceedings. The order, therefore, is liable to be set aside. However, the State Government is free to pass fresh order, if they, so desire under Section 45-B of the Act after affording opportunity to all the parties including the appellants'. 20. However, the learned Additional Government Pleader contends that even in the appeal grounds filed by the petitioner before the Joint Commissioner of Land Administration( Cinema) Chepauk, Chennai, the writ petitioner has not taken a plea that no notice was issued to him prior to passing of the impugned order by the third respondent/District Collector. 21. Replying to the contention of the learned Additional Government Pleader, the learned counsel for the petitioner submits that when the petitioner has preferred an appeal before the Additional Commissioner of Revenue Administration (Cinema) Chennai as against the order passed by the third respondent/ Collector dated 12.2.2002 then the same is being challenged before this Court, the petitioner is entitled to canvas a plea that no notice was issued to the petitioner before passing of the impugned order by the third respondent/District Collector and in law, there cannot be an estoppel against a legal plea. 22. Be that as it may, a perusal of the proceedings of the third respondent/District Collector in Roc.No.52931/2000/C1 dated 7.11.2001 shows that "C" form licence has been transferred in the name of Hameed Nainar Syeed and Noorul Hudha Jalwath and further the theatre name has been changed to Apsara , permanent theatre and to this effect, orders have been passed and significantly at paragraph 5 of the proceedings of the third respondent dated 7.11.2001, it is clearly made a mention of that the earlier licensee K.Ramakrishnan, if he had valid any provisions of Tamil Nadu Cinemas(Regulations) Act and connected Rules then, the present theatre owner viz., the petitioner should have purchased the theatre and obtained "C" form licence are clearly held responsible. Therefore, it is quite crystal clear from the proceedings of the third respondent dated 7.11.2001 that when the petitioner at the time of grant of "C" form licence and changing the name of the theatre as Apsara, permanent one, they have been put a notice that they are responsible for any violation made by the previous licensee K.Ramakrishnan. https://hcservices.ecourts.gov.in/hcservices/ 23. It is to be borne in mind that the principles of natural justice are not a codified Rule. In common parlance, it is called a principle of fairness. It cannot also be enumerated by means of any Legislation or by a statute or even by a decision of a Court of law. The principles of natural justice in short are an uncodified one and also it cannot be embodied in a straight jacket cast iron formula. Adherence to the principles of natural justice and an adopting of method of fairness are an essential requisites for not only judicial acts but even for passing of the administrative orders. Further 'natural justice' is a form of Justice in its abstract moral sense as distinct from a legislation or statue or a decision by a court of Law. Also, the Natural Justice concept is not the edicts of a statute. 24. As far as the present case is concerned, the present theatre is closed viz., the petitioner has been put on a notice as per proceedings of the third respondent dated 7.11.2001 that the petitioner is held responsible for the actions committed by the previous owner and only with wide eyes open, they have known this fact and after getting 'C" form licence transferred in their name and also changing the name of the theatre as Apsara, a permanent one, it is not open to them to take a diametrically opposite stand and all the more when the petitioners have purchased through a sale deed and further have taken steps to change the "C" form licence in their name etc, they cannot now take a plea that for the acts/irregularities committed by the erstwhile licensee, they cannot be fastened with the liability and that too before passing of an impugned order by the third respondent/District Collector, they should be given an opportunity of being heard. 25. On a careful consideration of respective contentions and bearing in mind an important fact that the petitioners have come to know through the proceedings of the third respondent/District Collector dated 7.11.2001 that they are responsible for the previous irregularities committed by the erstwhile licensee , this Court is of the considered view that the petitioner cannot claim the relief as prayed for in the writ petition and also in regard to the plea taken by them to the effect that the licensing authority has the power to compound the offence as per Section 8(A) of the Tamil Nadu Cinemas (Regulation) Act, this Court is of the considered view that the same owner cannot be a ground or basis to revoke the orders passed by the authorities in the matter in issue and looking at from any angle, the writ petition sans no merits and the same fails. https://hcservices.ecourts.gov.in/hcservices/ 26. In the result, this writ petition is dismissed leaving the parties to bear their own costs. Consequently, connected WVMP.NO.517 of 2005 is closed. sg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government Home(Cinema II) Department Fort St George Chennai-9 2. The Additional Commissioner of Revenue Administration (Cinema) Chepauk Chennai-5 3. The District Collector Theni District Theni + 1 cc to Mr. V. Kathiravan, Advocate SR No.3896 + 1 cc to Government Pleader, SR No.4039 BVN(CO) SR/2.2.2010 W.P.Nos.10062/2003 https://hcservices.ecourts.gov.in/hcservices/