FAKRUDDIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner who is the proprietor of 'Menaka' theatre being operated from building No. XII/546 of Kodungallur Municipality filed this Writ Petition seeking quashment of Ext. P5 and issuance of a writ of mandamus commanding the 2nd respondent to consider and dispose of Ext. P6 application. Earlier, the petitioner applied for licence for exhibition of cinematograph under the Kerala Cinemas (Regulation) Rules, 1988 (for short 'the Rules') and was granted Ext. P1 licence. Subsequently, the petitioner submitted Ext. P4 application for renewal of Ext. P1 the Validity of which was to expire on 6.3.2014. Ext. P4 application was submitted by the petitioner only on 5.3.2014 and on the next day viz., on 6.3.2014 Ext. P5 notice was served on him. As per Ext. P5, the petitioner was directed to stop the functioning of the said theatre from 7.3.2014. It is also stated therein that the petitioner had failed to produce the requisite documents along with Ext. P4 application. The petitioner was also cautioned that in case of his failure to comply with the directions in Ext. P5 he alone would be responsible for the cost and consequences. It is in the said circumstances that this Writ Petition has been filed alleging that virtually, the respondents have rejected the application for renewal of licence. The case and the contention of the petitioner is that as per Ext. P5 the 2nd respondent rejected Ext. P4 application. A scanning of Ext. P5 would reveal that the said contention is bereft of any basis as there is nothing in Ext. P5 which would suggest the rejection of Ext. P4 application. True that as per Ext. P5 the petitioner was intimated that he had failed to produce the requisite documents along with Ext. P4 application for renewal and he was also required to stop the functioning of the theatre from 7.3.2014 as the period of Ext. P1 licence was to expire on 6.3.2014. On receipt of Ext. P5, the petitioner submitted Ext. P6 application virtually, requiring the respondents to consider the application for renewal and in the meanwhile, to issue a temporary permit in Form 'F' to enable the petitioner to go on with exhibition of cinematograph. On an earlier occasion, the petitioner had to approach this Court by filing W.P. (C) No. 31351 of 2013 when the respondents issued orders under S. 406(1) of the Kerala Municipality Act, 1994 and also another order under R. 24 of the Rules alleging unauthorised construction in the theatre in question and cancelled Ext. P1 licence as per Ext. P23, referred as such in that Writ Petition. Taking note of the rival submissions this Court disposed of that Writ Petition as per Ext. P7 judgment with a direction to the second respondent to treat Exts. P22 and P23, the impugned orders passed under the aforementioned provisions of the Act & the Rules as provisional orders and in turn, permitting the petitioner to submit his objections within two weeks and with a further direction to the second respondent to afford an opportunity of being heard to the petitioner in case of submission of objections and to pass final orders in the matter. Till such an order was passed in tune with the directions thereunder implementation of the impugned orders in that Writ Petition were ordered to be kept in abeyance as per Ext. P7 judgment. Evidently, on the strength of Ext. P7 the petitioner was continuing to exhibit cinematography in the aforesaid theatre till the expiry of the period of Ext. P1 licence. I do not think that the said order got significance or relevance any further owing to the expiry of the period of licence and the petitioner cannot be heard to contend that he could continue with the exhibition beyond the period of licence on the strength of Ext. P7. When once it is admitted that the period of Ext. P1 licence got expired on 6.3.2014, I am at a loss to understand the relevance of Ext. P7. In fact, the petitioner did not raise any claim for continuance with the exhibition of cinematograph on the strength of Ext. P7. Perhaps, the petitioner has produced the same to show that Ext. P1 licence was not cancelled and therefore, he was entitled to seek for renewal of Ext. P1. In this case, obviously, the petitioner has submitted an application for renewal of Ext. P1 licence. Indisputably, it was submitted prior to the expiry of its validity period. At the same time, as noticed hereinbefore, it was filed only a day prior to the date of expiry. Going by R. 22 of the Rules, 1988 the petitioner was to submit an application for renewal of the licence either permanent or temporary, one month before the expiry of the period of existing licence. Therefore, the petitioner should have submitted an application for renewal of licence a month prior to 6.3.2014. But, the petitioner submitted his application only on 5.3.2014. Virtually, the petitioner relies on R. 23 of the Rules to claim temporary permit in Form 'F' and evidently, as per Ex. P6 application the petitioner made a request for issuance of temporary permit in Form 'F'.

(2.) True that, the petitioner has already applied for renewal of Ext. P1 licence and that application is also pending. In such circumstances, naturally, the question whether the petitioner is entitled to get a temporary permit in Form 'F' would crop up for consideration. In the circumstances obtained in this case it cannot be expected that renewed licence could be issued within a month from the date of receipt of application for renewal of licence viz., from 5.3.2014. But, that reason by itself will not and cannot make the petitioner eligible to claim for temporary permit in Form 'F', in terms of R. 23 of the Rules. R. 22 of the Rules makes it mandatory to apply for renewal of licence a month prior to the expiry of the existing licence along with the documents specifically referred to in R. 22. R. 23 provides that if on an application for the renewal of licence presented adhering to the provisions under R. 22, the licencing authority does not for any reason, before the date of expiry of the licence, either renew and return or refuse to renew the same then he will have to grant temporary permit in Form 'F'. That again is subject to satisfaction of twin conditions that the electrical certificate and structural stability certificate remain valid. Presumably, it is in the light of the provisions under R. 22 of the Rules that in R. 23 of the rules such a provision has been made to make it obligatory to issue a temporary permit in Form 'F' subject to the satisfaction of further conditions in R. 23 of the Rules. A conjoint reading of Rules 22 and 23 of the Rules would unravel the purport and intent of R. 23 as a provision to ensure that a licence who strictly complies with the provisions thereunder shall not be put to face unlawful loss and inconvenience for the administrative delay in consideration of a valid application for renewal. In short, in order to claim for issuance of a temporary permit in Form 'F' in terms of R. 23 of the Rules the applicant must have submitted an application for renewal of the existing licence within the time stipulated under R. 22 of the Rules and produced all the requisite documents thereunder besides holding valid electrical certificate and structural stability certificate in respect of the place of exhibition. A person who failed to submit an application within the stipulated time and to possess valid electrical certificate or structural stability certificate or both cannot be permitted to take advantage of his own lapse. But, at the same time, I am of the view that the only impact of such a failure is that such a person who fails to make a valid application along with requisite documents before one month prior to the expiry of the existing licence cannot claim the benefit of provisions under R. 23 and insists for grant of temporary permit. But, such a failure at any rate, cannot take away the right of a person/licence holder to apply for its renewal before the expiry of the existing licence. A joint reading of Exts. P1 and P5 would reveal that the period of licence granted to the petitioner was to expire on 6.3.2014 and that prior to the expiry of Ext. P1 licence the petitioner submitted an application for renewal. In the said circumstances, the licensing authority viz., the second respondent cannot refuse to entertain the application. At the same time, it is evident that all the documents which are to accompany the application were not produced by the petitioner along with the same. In other words, valid structural stability certificate was not produced by the petitioner and in fact, the petitioner seeks for renewal of structural stability certificate as well and such application was also submitted only on 5.3.2014. The contention of the petitioner is that the third respondent is the authority competent to renew the same and it is for the purpose of forwarding the same to the third respondent that Ext. P3 application was submitted. Since the authority to decide the question of renewal of structural stability certificate is the 3rd respondent and the application was submitted to the second respondent only for the purpose of forwarding the same to the third respondent the second respondent cannot withhold the same. In the totality of the circumstances obtained in this case this Writ Petition is disposed of as hereunder:-