N RAMESH Vs. DISTRICT MAGISTRATE BANGALORE DISTRICT URBAN

JUDGEMENT

(1.) issuance of writ of mandamus directing respondent to re-grant the licence in favour of the petitioner for the period commencing from 11-1-1995 onwards, to exhibit the films in Bhaskar Touring Talkies, K.G. Byadarahalli, J.C. Nagar, Bangalore, without insisting on the production of the certificate of clearance from the office of Commercial Tax Officer/Department, regarding entertainment tax.

(2.) The brief facts of the case in the nut shell are: According to the petitioner, the petitioner has been running the Touring Talkies in the name and style of "Bhaskar Touring Talkies", with effect from 1976 and maintained the same in good condition and in accordance with the provisions of Karnataka Cinema (Regulation) Act, 1964 and the Rules framed thereunder, known as Karnataka Cinema (Regulation) Rules, 1971. The petitioners case is that petitioner's licence has been renewed from time to time and lastly it was renewed on 15-7-1994, for the period upto 30-9-1994. The petitioner's further case is before the expiry of the period, the petitioner made an application for renewal or regrant of licence for another year vide., Annexure B. The petitioner has further stated that respondent after having received the petitioner's application for grant (re-grant) of the licence has not considered the same, simply on the ground that the petitioner has not produced the Entertainment Tax Clearance Certificate from the office of the Entertainment Tax officer. The petitioner's case is that for the period from 1-10-1994 till the date of moving the petition, the petitioner had to close the screening from public view in order to carry out necessary improvements and repairs in the touring talkies. The petitioner has asserted in the petition that inspite of request being made by the petitioner to the respondent to renew/re-grant the licence to the petitioner for running the touring talkies, Respondent had not paid any heed and insisted upon him to produce the entertainment tax clearance certificate from the office of the Entertainment Tax Officer. The petitioner is no doubt agreeable to pay tax due, which is hardly Rs.7,000/- in instalments and may be making application before the Special Court for the recovery, for that purpose and the insistence on the part of the respondent that petitioner should first produce the entertainment tax clearance certificate from the office of the Entertainment Tax Officer before the question of the grant i.e., re-grant of the licence is considered, is illegal. The petitioner's case is that up till now no order has been passed on the petitioner's application for re-grant of the licence which had been moved. The learned Counsel for the petitioner submitted before me that the application for grant or re-grant of licence has been made and the opposite party is illegally refusing to consider the petitioner's case for re-grant of licence simply on the ground of petitioner's failure to produce the entertainment tax clearance certificate from Entertainment Tax Officer. The learned Counsel for the petitioner submitted that Rule 85(iii) of the Karnataka Cinema(Regulation) Rules, 1971 has already been held ultra vires and once it has been held ultra vires, it is not operative and once there is no such requirement under the law, the respondent illegally refuses to exercise the jurisdiction and power in the matter of grant or re-grant of the licence, by not considering the petitioner's application there for and by keeping it pending. Learned Counsel for the petitioner made a reference to the Division Bench decision of this Court in (Srinivasa Prasanna Chitra Mandira v The State of Karnataka and Another) in support of his contention that Rule-85(iii) of the Rules is ultra vires of the provisions of the Act.

(3.) The learned Government Advocate firstly submitted thathe does not admit that the application for re-grant has been made. Annexure 2 to the writ petition shows that such an application has been moved on 19-12-1994. Learned Government Counsel submitted that according to Rule 85(1), application should have been made atleast one month before the expiry of the period of the earlier licence and in this case the application has been moved on 19-12-1994 and not one month before the date of expiry of the earlier licence. The licence according to the learned Government Counsel, had expired on 30th September, 1994. Learned Government Advocate further contended that the petitioner has not produced any documentary proof to the effect that respondent No. 1 has insisted on the production of entertainment tax clearance certificate and as such if the authorities would have rejected his application as being one not in accordance with law, there would have been no error of law or of jurisdiction. Learned Government Advocate no doubt fairly submitted that the allegations made in the writ petition yet to the effect that the authorities insisted on production of Clearance Certificate, as alleged in the writ petition if it is correct though he does not admit that allegation to be correct, then in that case they were mistaken, as sub-rule (iii) of Rule 85 of the Rules of 1971 has been declared illegal and ultra vires. Finally learned Government Advocate submitted that infact the writ petition should be dismissed as pre-mature as being without cause of action.