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CASE NO.: Appeal (civil)  2094 of 2008

PETITIONER: State of U.P. and Anr.

RESPONDENT: Pramod Kumar Shukla and Anr.

DATE OF JUDGMENT: 25/03/2008

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 19890 of 2005) (With C.A. 2095/08 @ SLP (C) No. 11752/2006)

Dr. ARIJIT PASAYAT, J.        1.      Leave granted.

2.      These two appeals arise out of a common judgment of the  Allahabad High Court allowing the Writ Petition (Civil Misc.  Writ Petition No.33291/2004) and holding that no further  order need be passed in the connected Writ Petition (Civil  Misc.W.P.37610/2004) in view of the order of the former case.       3.      Challenge in the first writ petition was to the order  passed by the District Magistrate, Allahabad dated 2.8.2004  holding that respondent-Pramod Kumar Shukla had received  grant in aid to the tune of Rs.21,27,551.13 between 2.4.1990  to 1.4.1995 under Government Order dated 21.7.1986 by  concealing facts and by practicing fraud. It was pointed out  that he had concealed the fact that he was not the owner and  was not, therefore, entitled to receive the grant in aid.  Therefore, in exercise of powers conferred under Section 5(3) of  the U.P. Cinema Regulation Act, 1955 (in short the \021Cinema  Act\022) order of recovery was given and grant in aid sanctioned to  him vide office order No.299 dated 10.4.1990 was set aside.   Application for renewal dated 1.7.1994 submitted by said  Pramod Kumar Shukla was rejected in exercise of powers  conferred under Section 21 of the U.P. General Clauses Act,  1904 (in short \022General Clauses Act\022). Further order was  passed under Section 12(1) of the U.P. Entertainment Tax Act,  1979 (in short \021Entertainment Act\022) directing him to deposit the  amount of entertainment tax collected by such cheating and  fraud during 2.4.1990 and 1.4.1995 amounting to  Rs.21,27,551.13.         4.      Background facts which are almost undisputed run as  follows:            Respondent-Pramod Kumar Shukla is the son of Shri  Satya Prakash Shukla who is the appellant in appeal arising  out of SLP (C) No.11752/2006.  A Cinema Hall named \023Girija  Chitralaya\024 was granted temporary permit for six months.  Undisputedly, on 10.11.1986 the original owner Shri Girija  Shankar Shukla had executed a Power of Attorney appointing  his grandson Pramod Kumar Shukla as the Power of Attorney  holder. The said Power of Attorney was executed on  10.11.1986 and was registered with the Sub-Registrar,  Farukkhabad on 14.11.1986.  On 31.10.1988 permission was

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granted to construct a permanent cinema hall. Pramod kumar  Shukla had made an application on 6.9.1988 suppressing the  fact that Girija Shankar Shukla had expired on 31.3.1987. In  the application filed, Pramod Kumar Shukla described himself  as the owner of Cinema Hall and indicated in the application  that he was running a temporary cinema hall and wanted to  construct a permanent cinema building on the concerned plot  of land. Interestingly, he did not apply as a Power of Attorney  holder but stated that he was the owner. Permission was  granted on certain conditions by the District Magistrate,  Allahabad.             It is the stand of the appellants that Pramod Kumar  Shukla falsely represented himself as the owner and the  licence was granted on the premises that Pramod Kumar  Shukla was the owner of the Cinema Hall. His father Satya  Prakash Shukla made a representation and, therefore, there  was no renewal of the licence which operated from 30.3.1990  to 31.3.1993 both days inclusive.  A show cause notice was  issued on 19.6.2004 alleging that the permission granted for  operating the permanent Cinema Hall was obtained by  suppressing the factual position by Pramod Kumar Shukla  mis-representing himself to be the owner. Notice was given to  show cause as to why the amount of grant in aid which was  obtained by fraud and by concealing the facts shall not be  recovered under Section 12(1) of the Entertainment Act and  the grant in aid sanctioned by order No.299 dated 10.4.90  should not be cancelled and the application for renewal of  licence should not be rejected.             In grant in aid order dated 10.4.1990, Pramod Kumar  Shukla was indicated to be the licensee. The order passed by  the District Magistrate was challenged in the Writ Petitions.  The High Court after referring to the factual scenario came to  hold that the order was passed without applying mind and  with undue haste. It was noted that the authorities should  have taken appropriate legal help to understand how far such  executive authority can go to determine the issue. It was not a  case of fraud between an individual and the State by which  the revenue exchequer would suffer but was a dispute   between the father and the son and without ascertaining the  position either by Civil Court  having appropriate jurisdiction  in respect of right, title and interest of the property and  accounts or by Criminal Court as regards proof of fraud and  determination in respect of forgery taking help of appropriate  mechanism, the order impugned was passed which was illegal.       5.      Learned counsel for the appellants has submitted that  the High Court completely mis-construed the nature of the  dispute. It lost sight of the fact that Pramod Kumar Shukla  had fraudulently projected himself to be the owner which  admittedly he was not. The fact that the executor of the Power  of Attorney had died in 1987 much before the application for  renewal and/or application for permanent Cinema Hall was  filed was not disputed.       6.      Learned counsel for the respondent-Pramod Kumar  Shukla on the other hand supported the judgment of the High  Court stating that in a case of this nature the Collector should  not have passed the impugned order. His claim was that there  was a family settlement and certain documents executed by  his father Satya Prakash Shukla clearly established that he  was the owner of the Cinema Hall.  

7.      The High Court seems to have completely lost sight of the

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nature of the controversy and the dispute. Whether there was  any fraud practiced could not have been decided in the Writ  Petition. Under Section 7 of the Cinema Act the power to  revoke and cancel the license is available to the appropriate  authority.  It appears that the High Court has not examined  the question as to what is the effect of Girija\022 death. It has also  not examined the acceptability of the claim of Pramod kumar  Shukla that he was the owner of the Cinema Hall in which  capacity he had applied for the permanent licence. These have  considerable bearing on the subject matter of dispute. The  High Court has come to an abrupt conclusion without  analyzing the factual and applicable legal position. That being  so, we set aside the impugned order of the High Court and  remit the matter to it for fresh disposal in accordance with  law. We request the High Court to dispose of the matter within  4 months from today.       8.      The appeals are allowed to the aforesaid extent with no  order as to costs.