IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 17597 of 2003 Between: Sri Gopalakrishna Theatre, Rep. by Smt. Malla Saroja, W/o Malla Narsing Rao, R/o D.No. 14-9-38, Sagi Subbaraju Street, Anakapalli, Visakhapatnam District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep by Principal Secretary to Government, Home (General A) Department, Secretariat, Hyderabad. 2 The Joint Collecor and Licensing Authority, Collectors Office, Visakhapatnam. .....RESPONDENT(S) 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 to issue writ of mandamus or any other appropriate writ or direction declaring the order of the 1st respondent passed in G.O.Rt.No. 1012 dated 26-7-2003 confirming the order of the 2nd respondent passed in Rc.No. 917/2002/C1 dated 4-1-2003 as illegal arbitrary and in violation of principles of natural justice Counsel for the Petitioner:MR.O.MANOHER REDDY Counsel for the Respondent No.: GP FOR HOME The Court made the following : THE HON’BLE SRI JUSTICE V.ESWARAIAH W.P.NO.17597 OF 2003 ORDER: The writ petition is filed seeking direction declaring the order of the first respondent passed in G.O.Rt.No.1012, dated 26.7.2003, confirming the order of the 2nd respondent passed in Rc.No.917/ 2002/C1, dated 4.1.2003, as illegal and arbitrary. Heard the learned counsel for the petitioner and the learned Government Pleader for Home. The petitioner is the owner of the theatre, namely, ‘Sri Gopala-krishna Theatre’ situate at Anakapalli, Visakhapatnam District. B-Form licence has been granted to the petitioner theatre under the provisions of Andhra Pradesh Cinema (Regulation) Act, 1955 (hereinafter referred to as ‘the Act’) and the Rules made thereunder for exhibition of films. While so, the Joint Collector and Licensing Authority, Visakhapantam, 2nd respondent herein, issued a show cause notice in Rc.No.917/2002/C1, dated 27.11.2002, stating that the Superintendent of Police, Visakhapatnam, has informed vide letter dated 16.11.2002 that on reliable information the petitioner theatre has been screening blue films, the C.I. of Police, Anakapalli along with his staff and two independent witnesses raided the theater at 3.30 p.m. on 10.11.2002 and found that a blue film is being exhibited to the audience in the theater while regular show ‘Chinese Kamasuthra’ was going in the theater as if the blue film is part of regular movie of ‘Chinese Kamasuthra’, though the Censor Board has removed the portion of which contained nude postures of female and the scenes of sexual intercourse, but the theater management has somehow got the censored portion and made unauthorized exhibition to the audience. It is further stated that in fact the Superintendent of Police, Visakhapatnam, has registered a case in Cr.No.254/2002 under Section 292(ii)(a) I.P.C. against the management of the theatre on 10.11.2002 and the Proprietor of the theatre and the Projector Operator were arrested and the regular movie ‘Chinese Kamasuthra’, the blue film and two lenses of the Projectors were also seized and the accused were sent for judicial remand. It is further stated that in fact the same theatre on previous two occasions i.e., on 1.2.1998 and 19.2.2002 exhibited blue films and therefore Crime Nos.78 of 1998 and 1668 of 2002 were booked and they were pending trial. It is stated that most of the audience witnessing the movie on 10.11.2002 are teenagers and by seeing the blue film their minds will be spoiled affecting their bright future due to the unlawful, immoral and unethical actions of the petitioner theatre. The management of the theatre is habituated to screen blue films with an intent to earn money and despite booking cases the management is perpetuating screening of blue films as the licence of the petitioner theatre is not cancelled and accordingly the said show cause notice has been issued as to why the licence granted to the petitioner theatre shall not be revoked/suspended for violation of condition No.12(12) of B-Form licence as the petitioner theatre has exhibited the film other than a film which has been certified as suitable for public exhibition by the Board of Film Certification constituted under Section 4 of the Act. The petitioner filed the explanation on 23.12.2002. Thereafter, the 2nd respondent suspended the B-Form licence vide order dated 4.1.2003 holding that the explanation has been carefully considered wherein the licensee in her explanation stated that the film ‘Chinese Kamasuthra’ is a certified film and enclosed a copy of the Censor Certificate issued by the Central Board of Film Certification issued by the Chairman in Certificate No.CFL/3/157/2001-MUM, dated 18.12.2001, and a perusal of the Certificate reveals that the Film is certified for Adults only subject to excisions and modifications listed in Part-II on the reverse of the Certificate and the management has not submitted the Part-II of the Certificate in spite of their lengthy explanation. It is stated that it is the duty of the management to exhibit films with the Certificate issued by the Central Board of Film Certification and the excisions and modifications prescribed by the Central Board of Film Certification, but the petitioner theatre without any excisions exhibiting the film ‘Chinese Kamasuthra’ and at that time most of audience witnessing the movie are teenagers and by seeing the blue film their minds will be polluted and they will be depraved their bright future. Accordingly, the 2nd respondent came to the conclusion that the petitioner theatre has violated the condition 12(12) of the B-Form licence by exhibiting the blue film and the B-Form licence granted to the petitioner theatre has been cancelled. Aggrieved by the said order of the 2nd respondent, the petitioner filed an appeal before the Government and the Government vide its memo No.4088/ Genl.A2/2003-1, dated 20.2.2003, granted stay of suspension of the order of the 2nd respondent. Thereafter, the first respondent dismissed the appeal in G.O.Rt.No.1012, Home (General-A) Department, dated 26.7.2003. The first respondent after independently considering all the grounds in the appeal held that keeping in view of the remarks of the Collector, Visakhapatnam District and after perusal of records it is quite evident that the management of the theatre has violated the condition No.12(12) of B-From licence by screening the obscene scenes in the theatre and hence the Government finds no reason to interfere with the proceedings of the Joint Collector and Licensing Authority in Rc.No.917/2002/C1, dated 4.1.2003, and accordingly rejected the appeal while vacating the stay orders issued in Government memo dated 20.2.2003 granted earlier. Aggrieved by the said order of the first respondent in dismissing the appeal confirming the suspension order of the 2nd respondent, the petitioner filed the present writ petition. While admitting the writ petition on 22.8.2003, this Court granted interim suspension of the order of the first respondent dated 26.7.2003. It is stated that in view of the interim orders passed by this Court in W.P.M.P.No.21896 of 2003, the petitioner theatre has been exhibiting the films. The learned counsel for the petitioner submits that the dismissal of the appeal by the Government based on the remarks submitted by the Joint Collector without giving reasonable opportunity to the petitioner is illegal and arbitrary. It is stated that under Section 10(2)(b) of the Act the licence of the petitioner theater has been suspended until further orders after giving reasonable opportunity to the petitioner. It is stated that under Section 10(2)(b) of the Act it is open for the licensing authority after giving reasonable opportunity showing cause of revoking or suspending the licence. In the instant case, the licence of the petitioner theatre has been suspended as a measure of punishment. It is not a final order. But it is only suspended until further orders. Aggrieved by the said order of suspension, the petitioner filed an appeal and it is the case of the petitioner that under Section 10(4) of the Act an appeal is provided to the Government at the instance of the aggrieved person against the decision taken by the licensing authority and pending such appeal filed within the prescribed time, the Government may make such orders as they may think fit. It is stated under Section 10(5) of the Act the Government has also got power to stay the execution of the order passed by the licensing authority against which an appeal is filed under Section 10(4) of the Act. It is stated that the Government may make such orders as they may think fit, but the fact remains that the Government has power under Section 10(4) of the Act as quasi judicial authority is to consider the appeal independently, but not as an administrative Head of the Department. It is open for the Government to call for records and make any such orders as they may think fit. The Government shall independently hear the appellant and pass orders without any reference to the remarks. However, if the licensing authority being a party to the appeal, it is open for the licensing authority to independently file a counter and advance arguments. It is stated that the manner in which the Government dismissing the appeal based on the remarks submitted by the Joint Collector is illegal and arbitrary. In support of the contentions, the learned counsel for the petitioner relied on a decision of the Division Bench of this Court reported in Kalari Nagabhushana Rao v. The Collector, Panchayat Wing, Guntur and others[1]. This Court while considering Section 50(4) of the Andhra Pradesh Gram Panchayats Act, 1964 held that the order passed by the Government as quasi judicial authority based on the remarks submitted by the Collector, Panchayat Raj, is not just and proper where there is interference of any outside authority with the functioning of the quasi judicial authority and the order passed by such authority is held to be illegal. It is stated that passing the said order by the appellate authority based on the report of the remarks of the Joint Collector amounts to prejudicial to the appellant and therefore the order passed by the Government/appellate authority without giving reasonable opportunity to the petitioner to explain his turn pursuant to the remarks or report submitted by the District Collector is illegal and arbitrary. In the aforesaid judgment it is stated that even though there is no material which prejudices the cause of the appellant, but relying on the report itself is a prejudice to the cause of the appellant. Accordingly, the matter was remitted back with a direction to dispose of the appeal preferred by the appellant. The principle laid down by the Division Bench of this Court in the aforesaid decision would also apply to the instant case. Therefore the order of the Government confirming the order of the Joint Collector is liable to be set aside. The learned counsel for the petitioner submits that once the order of the Government is set aside the petitioner is entitled for interim stay of the order of the Joint Collector as the order of the Joint Collector having merged with the order of the Government. Once the order of the Government is set aside, it shall be presumed that there was no order of suspension. I am unable to accept the said contention. Once the order of the Government is set aside, the order of the Joint Collector automatically revives. The learned counsel for the petitioner makes a request that pending disposal of the appeal before the Government the petitioner theatre may be permitted to screen pictures. I am unable to accept the said contention as the petitioner theatre is habitual to screen blue films and on two occasions cases were also registered against the petitioner theatre. The petitioner shall exhibit the films strictly as per the Certificate issued by the Board of Film Certification. But, in the instant case, a perusal of the Certificate reveals that the film is certified for adults only subject to excisions and modifications listed in part-II on the reverse of the Certificate and the same has been suppressed for exhibiting the blue films. Therefore, I am not inclined to accept the said request of the learned counsel for the petitioner. The writ petition is, accordingly, disposed of setting aside the order of the Government in G.O.Rt.No.1012, Home (General-A) Department, dated 26.7.2003, and remit back the matter to the Government with a direction to dispose of the appeal preferred by the petitioner afresh in the light of the aforesaid judgment of this Court. It is open for the petitioner to seek stay of the order, dated 4.1.2003, of the Joint Collector pending disposal of the appeal. The first respondent is also directed to dispose of the appeal itself as expeditiously as possible after giving opportunity to the petitioner. No order as to costs. __________________ V.ESWARAIAH, J. 30.7.2008 kpr [1] AIR 1978 AP 444