PURBACHAL CINEMA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this Rule the Petitioner, Purbachal Cinema, challenges the validity of the order passed by the Divisional Commissioner, Respondent No. 2, on February 8, 1968, which is at annEx. F to the petition (p. 33) on the ground, inter alia, that the order is without jurisdiction as the appeal in which this order was made was not maintainable under the law and this is the only question which has been agitated at the hearing of this Rule before me.

(2.) The Petitioner is the holder of an existing licence under the West Bengal Cinemas (Regulation) Act, 1954, and is carrying on the business in partnership to run the cinema known as Purbachal Cinema in the town of Katwa since 1948. Respondent No. 5 filed an application for having a second permanent cinema licence in the same town [vide annEx. A(l)] to which the Petitioner objected. This application was initially rejected by the District Magistrate by his order dated July 21, 1964 (vide annEx. A). The Respondent No. 5 preferred an appeal against the order to the Divisional Commissioner and that appeal having been rejected the Respondent preferred a revision before the State Government. By that order of the State Government the District Magistrate was directed to reconsider in the light of the observations made in that order whether a second cinema licence could be granted in the town of Katwa (vide annEx. B)." After the case went back to the District Magistrate, eventually the District Magistrate passed the order at annEx. D by which he decided the question of having a second cinema house as against the objection of the Petitioner but observed that since the application for a second house by the Respondent No. 5 was made suo motu by the said Respondent, that is to say, without any invitation from the authorities there should be a public advertisement to invite further applications, and to consider the question collectively after fresh applications, if any, were received. The relevant observation of the District Magistrate in this order which is at annEx. D may be reproduced for the convenience of reference:

(3.) As against this order both the Petitioner as Well as the Respondent No. 5 went on appeal to the Commissioner. The Petitioner's appeal was rejected on the ground that the order of the District Magistrate in question was not appealable (vide annEx. E). But the Respondent's appeal was admitted on the finding that it was appealable because there was a virtual refusal of the Petitioner's application for permission to construct a cinema house, and on the merits it was held that the District Magistrate had not carried out the directions contained in the State Government's order and had adopted a middle course 'to side -track the direction given by the Government'. He, accordingly, referred the case back to the District Magistrate for final disposal of the application of Sm. De, Respondent No. 5, strictly in accordance with the State Government's direction both in words and in spirit. Whatever be the merits of the District Magistrate's order or of the Commissioner's order in question the only point that we have got to answer in the present Rule is whether the District Magistrate's order was appealable under the Statute and, if not, whether the Commissioner's order should be set aside on the ground of absence of jurisdiction. There is little doubt that the right of appeal is a creature of Statute and where the Statute does not allow any appeal, the intention of the Legislature to be resumed is that the order of the statutory authority should be final. The fact that the Petitioner also preferred an appeal whether under good or bad advice does not answer the question at law.