ORDER
D.J. Jagannadha Raju, J.
1. This O.P. is filed to quash Ext, P3, an order dated 11-12-1987, passed by the Executive Officer, Killannur Panchayat under Section 10(2) of the Kerala Local Authorities Entertainments Tax Act, 1961 (Act 20 of 1961). It is the claim of the petitioner's counsel that during the days on 20, 21, 24, 25, 30 and 31 of October, 1987 and 6-11-1987, a special squad of Officers authorised by the Director of Panchayats inspected the petitioner's theatre, known as Abilash Theatre, Killannur, and submitted a report to the second respondent. The second respondent, on the basis of this report, issued a show cause notice dated 1-12-1987, marked as Ext. P1, and though Ext. P2 reply dated 3-12-1987, was given, without complying with the requirements ofSection 10 of the Act an order was straightway passed as Ext. P3 on 11-12-1987 prohibiting exhibition of films in the theatre. Ext. P3 order passed without giving an opportunity to the petitioner to represent his case, and without giving him a hearing is bad in law and hence Ext. P3 should be quashed. It is illegal and without jurisdiction. It is also contended that under Section 9 of the Act only the officer authorised by the local authority is entitled to conduct an inspection and in the present case as the inspection was conducted by a special squad of officers authorised by the Director of Panchayats, the very inspection which formed the basis of action is invalid and illegal.
2. On behalf of the respondents, no counter-affidavit was filed. But Shri K.P. Dandapani, represented to the court that as the two questions raised are purely legal questions, he would argue the matter on the basis of law. Shri Dandapani contends that the Kerala Local Authorities Entertainments Tax Act, 1961 was amended by Act 14 of 1987, and as a result of the amendment, apart from the officer authorised by the local authority, the officers authorised by the Director of Panchayats are also entitled to conduct inspection. He places reliance upon the amended provisions of Section 9(1), and he also places reliance upon a notification no. C5-22002/87 dated 25-8-1987. He further contends that Section 10(2) does not contemplate giving a personal hearing, and it only contemplates giving a reasonable opportunity to show cause against the proposed action. He places reliance upon a Division Bench decision of this Court in Executive Officer v. Damodharan, 1965 KLT 967.
3. In reply to the arguments of the respondents' counsel, Shri P.V. Ayyappan contends that even if by virtue of the amendment of the Act, the special squad officers are authorised to inspect, even then, Ext. P3 order is vitiated as the executive authority did not give an opportunity for personal hearing for the petitioner, and he relies upon a decision reported is Dominic v. Koorkan-cherry Panchayat, 1989 (2) KLT 752.
4. The points that arise for determination in this O. P. are :
(1) whether the inspection conducted on the several dates mentioned in paragraph 2 of the O.P. is unauthorised and invalid, and hence the subsequent proceedings, namely, Exts. P1 and P3 are bad in law.
(2) whether Ext. P3 order is vitiated by reason of its being in violation of Section 10(2) of the Act.
5. Point No. 1: It is true that under the original Section 9, inspection by local authority, and any officer authorised by the local authority alone is contemplated. It did not contemplate inspection by officers authorised by the authorities higher than the executive officer of the local authority or authorities superior to the local authority. Under Section 2(6) 'local authority' is defined as 'in any area within the jurisdiction of a Panchayat, the Panchayat concerned'. Section 9(1) has been amended by Act 14 of 1987, which came into force in July, 1987, and under the amended provision, various superior authorities over the local authority and the executive officer of the local authority have been authorised to inspect and to authorise officers to inspect the theatres and places of entertainment. In fact the Director of Pancyayats has issued Notification No. C-5-22002/87 dated 25-8-1987, under which the Director of Panchayats authorised various officers to conduct inspections under Section 9(1). Item No. 8 indicates that Smt. K. Meenakshi, Taluk Panchayat Officer, Trichur, was authorised to inspect all places of entertainment and theatres situated in all the panchayats under the jurisdiction of the District Panchayat Officer, Trichur. The infirmity or illegality regarding the inspection is not there. By virtue of the amended provision of Section 9(1) and by reason of the Notification dated 25-8-87, the officers authorised by the Director of Panchayats are fully competent to inspect the theatre on the dates mentioned in paragraph 2 of the O.P. There are no merits in the first contention of the petitioner's counsel.
6. Point No. 2: As regards the second contention Shri P.V. Ayyappan relies upon the language of Section 10(2) and the Proviso to Section 10(2), and contends that it is mandatory for the executive authority to give a reasonableopportunity to the affected party to show cause against the proposed action. He is bound to conduct a hearing, after reply is received for the show cause notice. He relies upon a recent decision reported in Dominic v. Koorkancharry Panchayat, 1989 (2) KLT 752. In this decision. His Lordship, Radhakrishna Menon, J., dealing with the scope of Section 10(2) observed in paragraph 6 as follows:
'................Without giving an opportunityto the petitioner to substantiate the objections, he has raised against the proposed actions, discernible from Ext. P1 and Ext. 81 notices, the petitioner cannot be penalised. That such an enquiry is mandatory can be seen from the proviso to Sub-section (2) of Section 10. This proviso provides that before prohibiting the further use of the place for the purpose of the entertainment, the proprietor of the entertainment shall be given a reasonable opportunity to show cause against the proposed action. What then is meant by 'reasonable opportunity? This requirement has two elements; one, an opportunity to show cause must be given, (2) the opportunity must be reasonable. To say that the first element is satisfied it is not enough if the party is given an opportunity to file his objections resisting the proposed action. He must also be given an opportunity to substantiate the objections by producing evidence both documentary and oral. For this purpose it is necessary to give a personal hearing. Only if the above procedure is followed, it can be said that the second element also is satisfied.'
In paragraphs the court further observed that 'whether the petitioner requested for an opportunity or not is irrelevant to be considered, because the second respondent, going by my interpretation of the provisions contained in the proviso aforesaid is bound to give the petitioner an opportunity of being heard before the final order is passed'. In the present case there is no dispute about the fact that Ext. P3 order was passed without giving a personal hearing and soon after Ext. P2 objections were filed for Ext. P1 show cause notice.
7. Shri Dandapani replies to this argument by placing reliance upon an earlier decision of this Court in Executive Officer v. Damodharan, 1965 KLT 967. He. contends that the learned single Judge's decision is in direct conflict with the Division Bench decision in Executive Officer v. Damodharan, 1965 KLT 967, which also considered the scope and ambit of Section 10(2) and as the learned single Judge did not refer to the earlier Division Bench decision, and gave an interpretation which is in conflict with the earlier Division Bench decision, the Division Bench decision should be followed by this Court, and the decision reported in Dominic's case 1989 (2) KLT 752 should be ignored. Shri Dandapani contends that merely giving an opportunity to file objections for the show cause notice is adequate compliance with the law.
8. I shall now examine as to which of the two decisions correctly interpreted the statutory provision, Section 10(2), and whether the learned single Judge's decision is to be acted upon or whether it should be ignored as it is in conflict with the earlier Division Bench decision. The Division Bench decision was rendered with regard to an incident which happened on 2-9-1963. In spite of a notice being issued by the local authority to the effect that sale of tickets for the drama performance on 2-9-1963 is a contravention of Section 5, without complying with the notice, and without getting the tickets stamped and without paying the entertainment tax, the drama was held as planned on 2-9-1963. Subsequently, the person who got the drama enacted was prosecuted under Section 10(1) and on technical grounds he was acquitted. After the acquittal, the matter came up to the High Court as an appeal against acquittal. The court sustained the acquittal on the ground that an application filed on 1-9-1963 seeking exemption from entertainment tax was not decided by the authorities and hence there is no violation. In paragraphs 6 and 7, we find that the court referred to certain arguments of the appellant's counsel relating to Section 10 and then the Court observed as follows; with regard to scope of Section 10:
'.............The learned counsel for the appellant contends that PW1 could not havestopped the show in view of the proviso to Section 10 which enjoins that such action can be taken only after the proprietor is given a reasonable opportunity to show cause against the proposed action. We are not impressed with this argument. The proviso should be read with the rest of the Section. When the Section itself empowers the officer to enter the place of entertainment while the entertainment is going on and prevent its continuation 'a reasonable opportunity that must be given to show cause against the proposed action' can only mean what is reasonable in the circumstances envisaged in the Section. In other words, if the officer can enter the hall while the drama is going on and stop the show in its tracks then one can hardly expect him to issue to the proprietor a notice returnable say within 24 hours showing cause why the show should not be stopped.'
The various observations made in paragraph 7 of the judgment are more in the nature of obiter dicta, and they are not the ratio decidendi of the decision. It should be remembered that while Section 10(1) deals with prosecution for offences which involve violation of Section 5. Section 10(2) deals with other action that can be taken in addition to prosecution. Section 10(2) clearly lays down that without prejudice to the provisions of Sub-section (1) any officer authorised by the local authority in this behalf may enter any place of entertainment while the entertainment is proceeding, and do various things. A careful reading of Section 10(2) clearly indicates that the statute contemplates not an immediate stopping of the entertainment, but taking action to prevent the further use of such place for the purpose of entertainment. The words employed are 'by order in writing prevent the further use of such place for the purposes of any entertainment'. Section 10(2) does not authorise the inspecting officer to immediately stop the show in the tracks. The proviso to Section 10(2) reads as follows :
'Provided that before preventing the further use of the place for the purposes of the entertainment the proprietor of the entertainment shall be given a reasonable oppor-tunity to show cause against the proposed action.'
In my Humble understanding, the emphasises on preventing further use of the place for the purposes of the entertainment both in Section 10(2) as well as in the proviso to Section 10(2). The emphasis is not on preventing immediately the entertainment, which is going on at the time of inspection. Section 10(1) only contemplates prosecution for violation of Section 5 and it does not authorise the inspecting officer to stop the conduct of the entertainment immediately. Sub-sections (1) and (2) only deal with what should be done for non-payment of tax. There is no power under this Section for the inspecting officer to stop the entertainment immediately. With utmost respect to the learned Judges of the Division Bench, I am of the view that the obiter dicta in paragraphs 6 and 7 did not notice the distinction between stopping the show in its tracks and action to be taken to prevent the further use of such place for the purposes of any entertainment. As the remarks in the Division Bench decision are merely obiter dicta and as the decision was mainly based upon Section 10(1), which relates to prosecution of the offender, the obiter dicta in the Division Bench decision are not binding on this Court. The Division Bench decision was not cited before His Lordship, Radhakrishna Menon, J., who delivered the judgment reported in Dominic's case, 1989 (2) KLT 752. According to me, though the learned single Judge did not notice the Division Bench decision, His Lordship's decision gives the correct interpretation of the scope and ambit of Section 10(2) and the proviso to Section 10(2) of the Act. It should also be remembered that the interpretation given by the Division Bench and the remarks made by the Division Bench relate to events in 1963 September, at which time, the concept of 'reasonable opportunity' was given a very very narrow interpretation by the courts in India. Subsequently in seventies and eighties, the concept of 'reasonable opportunity' is given a very wide interpretation and in ray humble opinion, Justice Radhakrishna Menon's interpretation of Section 10(2) is more in accord with the liberal and wide interpretation of 'reasonable opportunity', as understood by the courts in India in 1989. I prefer to follow the decision reported in Dominic's tease, 1989 (2), KLT 752. That decision lays down the legal position correctly.
9. In view of the failure of the local authority to give a personal hearing after Ext. 12 reply was received, Ext. P3 order passed on 11-12-1987 is vitiated. I accordingly hold that Ext. P3 order should be quashed;
10. In view of my findings recorded barlier, the inspection by the officers authorised by the Director of Panchayats is perfectly valid and it is in accordance with the amended provision of Section 9(1.) and the notification. Ext. P1 show cause notice was issued as a result of the inspection. Ext, P2 reply was given by the petitioner. In view of the supervening irregularity committed while passing Ext. P3, the defective procedure followed vitiates Ext. P3. The local authority, the first respondent, and the Executive Officer, the second respondent, are certainly entitled to proceed further on the basis of Exts. P1 and P2 and take action in accordance with law, after giving a reaspnable opportunity and personal hearing to the petitioner. The respondents would be entitled to pass a fresh order after considering the entire material and in accordance with law.
11. In the result, the O.P. is allowed, and Ext. P3 is quashed. The respondents are at liberty to take further action on the basis of Exts. P1 and P2 in strict accordance with law and in the light of the observations made in this Judgment. Each party shall bear its own costs.