Mukunda Mohan Talukdar vs K.K. Phukan and Another

G. Mehrotra, C.J.—This rule arises out of an application under Article 226 of the Constitution. Briefly the facts are that the Petitioner is the proprietor of a Cinema Hall named and styled as Anand Talkies situated at town Nalbari. The case of the Petitioner is that the Petitioner in the year 1957 applied for the grant of a licence to run a cinema house under the Assam Cinema Regulation Act, 1953. At first he was temporarily permitted to use the building, as a Cinema Hall. But ultimately according to the Petitioner he was granted a license to hold a permanent cinema house under the Regulation Act On the 28th October 1963 he applied for the renewal of his licence for the year 1964. That application was considered by the licensing authority who is the Deputy Commissioner Kamrup, Gauhati and he referred the matter to Government recommending that his licence should not be renewed. We are at this stage not concerned with the reasons for the suggestion to the Government given by the District Magistrate that his license should not be renewed.

Thereupon the Government accepted the suggestion made by the Deputy Commissioner and directed him not to renew the license and take necessary steps. On that on the 6th April 1964 the Deputy Secretary to the Government of Assam wrote to the Deputy Commissioner that it has been decided by the Government that the license should not be renewed in this case and that the Deputy Commissioner should take necessary action to stop cinema shows by Anand Talkies with effect from the 1st May, 1964.

Thereafter the Deputy Commissioner gave notice to the Petitioner to stop the cinema shows in pursuance of the direction issued by the State Government. The Petitioner has challenged the order passed by the State Government as well as the notice issued by the Deputy Commissioner in pursuance of the order by the State Government. The contention of the Petitioner is that as the Petitioner had a permanent license under Rule 6 of the Rules made under the Assam Cinema Regulation Act, 1953, he could apply for renewal on payment of the necessary renewal fee and also on supplying the necessary certificates which are mentioned in Rule 5 After he has submitted those documents and paid the necessary fee the licensing authority had to itself dispose of the application for renewal and no approval of the Government was necessary.

He has further contended that the licensing authority was bound under Rule 6 to renew the licence as all the necessary certificates had been filed along with the application and the necessary fee has been paid. The contention is that the word ''may'' in Rule 6 means ''shall'' having regard to the objects of the Act under which the rules have been framed.

2-3. Dr. Medhi who appears for the opposite parties, has contended that the requirement of approval is attracted not only in the case of a permanent license but it is also necessary in the case of a grant of a temporary licence. He further contends that the approval is necessary not only in the case of the grant of the licence at the initial stage but for grant of every application of renewal the approval by the Government was necessary We do not think that that question is necessary to decide in this case. In any case the approval is needed only if the licensing authority recommends that any person should be granted a license. In cases where the licensing authority does not propose either to grant a license or to renew an existing license, the question of obtaining Government''s approval is not necessary. Therefore, the question whether the Government approval was necessary or not is not of much consequence in the present case.

The next argument of Mr. Lahiri is that in the present case the licensing authority should have renewed the license inasmuch as the Petitioner had complied with all the requirements of Rule 6 and thus the mandamus should be issued by this Court directing the licensing authority to grant the license. There are two answers to this contention Firstly it is not admitted by the opposite parties that the Petitioner�s application was for renewal of the license inasmuch as he had no prior license. Mr. Lahiri has contended that it is clear from the materials on the record that the Petitioner had a permanent license before he applied for renewal of that license. In the view, however, which we are taking and as we are sending back the matter to the licensing authority to dispose of his application dated the 28th October 1963 according to law after giving proper hearing to the Petitioner, it will be proper that the matter whether this is an application for grant of a permanent license or for the renewal of the permanent license, should also be left to the licensing authority to decide.

The last point urged by Mr. Lahiri is that there has been no proper disposal of the application for renewal by the licensing authority himself. Admittedly the licensing authority has not passed any order rejecting the application for renewal whatever orders he has passed are only a recommendation to the Government that the license should not be renewed That communication to the Government by the Deputy Commissioner cannot be treated to be an order passed on the application of the Petitioner dated the 28th October 1963. The notice issued by the licensing officer in pursuance of the direction of the Government also cannot be treated to be a disposal of the application for renewal of the license. It was only giving effect to the direction of the Government.

Dr. Medhi has contended that no doubt it is in the nature of a recommendation, but a perusal of the recommendation shows that the licensing authority did apply its mind to all the circumstances of the ease and then made a recommendation and thus this should be treated to be an order passed by the licensing authority on the application made by the Petitioner. We do not think that this contention can be accepted. Rule 6 does not use the expression that the licensing authority can reject the application even though the conditions mentioned in Rules 5 and 6 have been complied with. It coolers certain powers on the licensing authority to refuse to grant the licence. But it has nowhere said that it depends upon the subjective satisfaction of the licensing authority as to whether he would or would not grant the license in a particular case When he has to grant or refuse to grant a license which may affect the fundamental right of a citizen obviously he has to act before refusing in conformity with the principles of natural justice and thus he had to dispose of the application after giving an opportunity to the Petitioner to be heard and to apply his own independent mind to the evidence produced by the Petitioner.

In this view of the matter it is clear that the licensing authority in the present case did not apply its mind at all. We accordingly quash the notice dated 27th April 1964 issued by the Deputy Commissioner, Kamrup to the Petitioner and set aside the order dated the 6th April 1964 passed by the Government. The application, dated the 28th October 1963 made by the Petitioner will be deemed to be pending and the licensing authority should dispose of the application according to law after giving an opportunity to the Petitioner to be heard It will be for the licensing authority to decide whether this application is an application for the renewal of the permanent license or it is an application for grant of a fresh permanent licence We make no order as to costs.