of U.P. and ANR.
Vs. Pramod Kumar Shukla and ANR.  INSC 509 (25 March 2008)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
(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 Cinema Act) 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 General Clauses Act). Further
order was passed under Section 12(1) of the U.P. Entertainment Tax Act, 1979
(in short Entertainment Act) 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 Girija Chitralaya 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 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
7. The High Court seems to have completely lost sight of the 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 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