DHANANJAY MISHRA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THESE two appeals are filed by the respective writ petitioners in CWJC No. 127 of 2001 and CWJC No. 151 of 2001. They are the sons of one Sukhdeo Mishra and Muneshwari Devi. Sukhdeo Mishra was the licensee of two theaters, namely, Ranjana Talkies and Kumar Talkies. While CWJC No. 127 of 2001 giving rise to LPA No. 634 of 2002 relates to Ranjana Talkies, CWJC No. 151 of 2001 giving rise to LPA No. 635 of 2002 relates to Kumar Talkies. Sukhdeo Mishra died on 24.7.1980 leaving behind his widow Muneshwari Devi and three sons, namely, Ajay Kumar Mishra, Vijay Kumar Mishra and Dhananjay Kumar Mishra. The licence under the Cinematograph Act, 1952 in respect of both the theatres stood transferred in the name of the widow Muneshwari Devi. On 2.5.1996, Ajay Kumar Mishra died leaving behind his widow, Mina Mishra, who is respondent No. 6 before us. Muneshwari Devi herself died on 9.2.1997, but before her death she had applied for transfer of the two licenses in favour of her two sons. She wanted the licence in respect of Ranjana Talkies transferred in the name of Vijay Kumar Mishra and the licence in respect of Kumar Talkies transferred in the name of Dhananjay Kumar Mishra. On the death of Muneshwari Devi, Mina Mishra, the widow of Ajay Kumar Mishra, raised a claim pointing out that she was also entitled to a share in the theaters and opposed the transfer of licences in respect of the two theaters in the individual names of the two surviving sons of Sukhdeo Mishra. By order dated 2.5.2000, the licensing authority, observing that dispute is pending amongst the heirs before the Civil Court and the licences could not be renewed, directed that the showing of films be stopped in the theaters. Appeals were filed challenging that order. By order dated 13.11.2000, the Appellate Authority allowed the appeals and set aside the order of the licensing authority. The Appellate Authority took note of the pendency of the civil litigation amongst the heirs of Sukhdeo Mishra and Muneshwari Devi. It also took note of the settlement said to have been arrived at in a panchayat and the fact that Mina Mishra, the widow of Ajay Kumar Mishra had challenged that alleged settlement and had claimed partition. The Appellate Authority ordered that the licence in respect of Ranjana Talkies be renewed in the name of Vijay Kumar Mishra and the lecence in respect of Kumar Talkies be renewed in the name of Dhananjay Kumar Mishra as a temporary measure and subject to the result of the civil litigation pending between the parties. The matter was remitted to the licensing authority to carry out that order. But the licensing authority, instead of complying with the direction contained in that order, Annexure -5, taking note of the claims and counter claims and the litigation pending, ordered that the licenses be renewed in the joint names of all the heirs, namely, the widow of Ajay Kumar Mishra, Vijay Kumar Mishra and Dhananjay Kumar Mishra. The writ petitions were filed by Vijay Kumar Mishra and Dhananjay Kumar Mishra essentially on the plea that the licensing authority had gone against the specific direction of the Appellate Authority as contained in Annexure -5 order and consequently the order of the licensing authority was without jurisdiction and was liable to be interfered with. On behalf of Mina Mishra, widow of Ajay Kumar Mishra, it was contended before the learned Single Judge that the order passed by the licensing authority was just and Ram Narayan Sharma Versus State Of Jharkhand equitable and the licence has been directed to be renewed in joint names as a temporary measure and subject to the result of the dispute in the Civil Court and hence there was no reason to interfere with the order of the licensing authority. The learned Single Judge accepted that plea and refused to enter into the legality of the prder passed by the Licensing Authority and declining to exercise jurisdiction, dismissed the writ petitions. These dismissals are challenged by the two writ petitioners, in these appeals.

(2.) LEARNED counsel for the appellants submitted that it was the duty of the licensing authority to carry out the direction of the appellate authority and the order now passed by the licensing authority is without jurisdiction. Counsel pointed out that it was not a case for declining jurisdiction by the Court on equitable grounds. This was really a case where the question was whether the licensing authority was justified in defying the order of the appellate authority and hence a question of jurisdiction. The order was liable to be set aside for this reason alone. Counsel further pointed that the licence in the joint names of three persons for running a theatre would cause practical difficulties and it was in the interests of justice to have the order of the appellate authority implemented and the licence issued to the two brothers, subject to the result of the civil litigation and any decree that may be passed by the Civil Court in the suit. Learned counsel appearing for Mina Mishra, widow of Ajay Kumar Mishra, submitted that the order passed by the licensing authority was just and equitable and the learned Single Judge was justified in not interfering with that order. He pointed out that the question involved here was, whether the learned Single Judge has exercised his discretion not to interfere, properly and the other questions do not assume any importance. The submissions of learned counsel appearing for Mina Mishra is supported by counsel for the State.

(3.) WHEN the appellate authority as a practical measure directed the renewal of the licences in the name of the two living sons of the original licensee, the licensing authority was bound to implement that direction. Whatever may be his view, it was not open to him to go against the specific direction issued by the appellate authority. Thus a clear abuse of power by the licensing authority is discernible in the case. Therefore, in our view the learned Single Judge was not justified in refusing to interfere with the order on the ground that the order was ultimately equitable. Of course, the Court exercising jurisdiction under Article 226 of the Constitution of India is not obliged to interfere with an illegal order if it is just and equitable and the result of interfering with it would be to resurrect another illegal or unjust order. But here, the order of the appellate authority cannot also be termed illegal, without jurisdiction or unjust in that sense. The appellate authority had only taken note of the practical aspects and had directed that the licenses be renewed in the names of the surviving sons of the original licensee, subject to the settlement of disputes amongst the heirs of the deceased licensee. It cannot be said that while issuing such a direction, the appellate authority has taken note of irrelevant aspects or omitted to take note of irrelevant aspects. The order of the appellant authority is also not a final order. It is intended to be only as an interim arrangement, which appears to us to be more practicable. After all, Mina Mishra, widow of Ajay Kumar Mishra, can seek protective orders from the Civil Court regarding running of the theaters by seeking appointment of a receiver to conserve the income and the like. In this situation, we are satisfied that the decision of the learned Single Judge requires to be interfered with.