SAPNA 35 MM Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The Petitioner is the proprietor of Sapna 35 mm A. C. Theatre situated at Abids. On July 20, 1981, one Dr. Prabhakar Korada, M.B.B.S. laid a complaint before the second respondent-Commissioner of Police (Licensing Authority) complaining that on July 19, 1981 he purchased a ticket and witnessed the movie. "Nazrana Pyar Ka" in the theatre of the petitioner. To his surprise immediately after the start of the picture, the A. C. was switched off after five minutes. Then he went to the Manager and complained of the same. It was switched on and again after five minutes it was switched off. Therefore, a great inconvenience was caused to the cine-going public who witnessed the picture. Thereon, a show cause notice was issued to the petitioner on August 31, 1981 informing the allegations made by Dr. Prabhakar Korada, treating the complaint as a contravention of Rule 12 of the Andhra Pradesh Cinemas (Regulation) Rules, 1970. The Petitioner submitted his explanation and he also filed the affidavits of the Manager, of Sham Rao, Asst. Manager and of Sri G. Sasi, an employee of Sri Shinde Enterprises. The Petitioner also submitted his supplemental explanation on September 9, 1981. This explanation has been considered by the licensing authority and by order dated September 19, 1981, it has held that the petitioner has contravened Condition No. 27-A in Form B of the aforesaid Rules, as the air-condition was not functioning during the Matinee show on July 20, 1981. On that basis, it has imposed a penalty of Rs. 10,000/-. Against this order, the petititoner filed an appeal to the Government. The Government in G. O. Rt. No. 1603 dated August 9, 1983, dismissed the appeal and confirmed the order of the Licensing Authority. Assailing the legality thereof, the petitioner has filed the writ petition.

(2.) The contention of Sri Sarathy, learned counsel for the petitioner is that when action was sought to be taken under Section 9 of the A. P. Cinemas (Regulation) Act, 1955, the conviction by the Judicial Magistrate of First Class having jurisdiction, is a condition precedent and in this case no such prosecution was laid, therefore, the order is without authority. In support thereof, he relied on a judgment of this Court in W. P.No. 4745/80 dated August 14, 1986. The question, therefore, is whether the action taken without laying prosecution under Section 9 of the Act is without authority and jurisdiction of the second respondent, it is true that this Court has held that prosecution is a condition precedent for an action to be taken under Section 9 of the Act and the decision relied on would support the contention of the petitioner. It is also true tint the respondent has invoked Sec. 9. But we find that sub-section (2) of Suction 10 provides power to the licensing authority to impose penalty in lieu of suspension or revocation of the licence. Sec. 10 provides for revocation of the licence for conviction under Sec. 7 of the Act. independent thereof, sub-section (2) of Sec. 10 provides power to the licensing authority on being satisfied either on a reference to it in this-behalf or otherwise,(a) a licence grunted under this Act has been obtained by misrepresentation or fraud as to an essential fact, or (b) the licensee has, without reasonable cause, failed to comply with any of the provisions of this Act or the rules made thereunder or any of the conditions or restrictions upon or subject to which the licence has been granted then, without prejudice to any other penalty to which the licensee may be liable under this Act, the licensing authority, may, after giving the licensee an opportunity of showing cause, revoke or suspend the licence. Sub-section (2-A) has been brought on statute by Amending Act 15 of 1960 which reads thus :

(3.) It is next contended that the petitioner has not been afforded a reasonable opportunity of hearing ; the complaint made by Dr. Prabhakar Korada was not supplied though asked for, no opportunity was given to cross-examine him; no enquiry was conducted; therefore, it is violative of the principles of natural justice. The question, therefore, is whether the non-examination of Dr.. Prabhukar Korada and failure to give opportunity to cross-examne him is vitiated by the principles of natural justice. The principles of natural justice cannot be put as a straight jacket formula. Tt to depends upon the facts and circumstances of each case. It is well settled that a post-decision or pre-decision hearing or opportuniy of representation to be given. But each case depends upon its own facts. It is also well settled that failure to supply copy of the complaint is not a violation of the principles of natural justice provided the material allegations made in the complaint are made part of the show cause notice. Therefore, we have to see whether the petitioner has been denied of a reasonable opportunity. The petitioner has admittedly submitted his explanation. Dr. Prabhakar Korada has stated that he attended the cinema theatre on purchasing a ticket and had witnessed the aforesaid picture; in the beginning, air-condition was functioning; immediately after the show begun within five minutes, the A.C. was switched off and great inconvenience was caused to the cinegowers: during the interval, he went to the Asst. Manager and complained of the same; then again it was switched on and within five minutes thereafter, it was again switched off. Admittedly, it is a contravention of Condition 27-A of B. Form Licence issued to the petitioner under Rule 12 of the Rulea. These allegations were informed of to the petitioner. The petitioner submitted his explanation denying those allegations and he also filed the affidavits of the Asst. Manager and also a third party as counter in rebuttal. The licensing authority has considered the allegations and counter allegations and he was not inclined to accept the explanation of the petitioner. Therefore, the licensing authority being the preliminary fact finding authority, it is open to it to consider the material available on record and come to its own conclusion. This Court is not an appellate authority to come to a different conclusion on the material. But it must be shown that the consideration by the preliminary authority is based on no material or the reasons are not valid as per record. The petitioner was already provided with sufficient opportunity and he also availed of the right of appeal before the appellate authority where he raised all the contentions whereat they were not found favour with him. Therefore, the appellate authority being independent of fact finding authority, applied its mind and concluded that the petitioner has contravened Condition 27-B of B Form Licence. Thus, it is one of finding of fact. Therefore, this Court cannot interfere with the finding of fact.