Subas Chandra Palo Vs. State of Orissa and anr. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. r.k. patra, j. 1. the short question that arises for consideration in this writ application is whether the district magistrate is empowered to convict and punish a person as per the provision contained in section 7 of the orissa cinema (regulation) act, 1954.2. the petitioner was granted licence to exhibit films on video at baliguda which was valid up to 20-6-1994. before expiry of the licence he applied on 27-6-1994 for renewal of the said licence the licensing authority, i. e., the district magistrate phulbani-opp. party no. 2 in his letter dated 1-7-1984 declined to renew the licence the petitioner chellenged the said decision by filing a writ application in this court vide ojc no. 4674 of 1994. this court disposed of the said writ application giving liberty to the petitioner to avail the statutory remedy of appeal. while the matter stood thus notice dated 2-8-1994 (annexure 1) was issued calling upon the petitioner to show cause as to why the video licence would not be cancelled for exhibition of unauthorised adult video cassettes. the petitioner duly submitted his reply to the said notice denying the allegations. against the order refusing to renew the licence the petitioner filed appeal case no. 1 of 1994 before the revenue divisional commissioner, berhampur who on 21-11-1994 remanded the case to the district magistrate to dispose of the matter after giving opportunity of hearing to the petitioner. the district magistrate thereafter disposed of the matter on 18-1-1985 by confirming his earlier order refusing to renew the licence. the petitioner challenged the said order by filing appeal case no. 1 of 1995 before the revenue divisional commissioner which was dismissed on 16-6-1995. being aggrieved by the said order of the appellate authority, the petitioner filed writ application bearing number ojc 8015 of 1995. the said writ application was allowed by judgment dated 8-9-1996. the licensing authority was directed to reconsider the matter after giving due opportunity to the petitioner to place his case. thereafter the district magistrate has passed the impugned order dated 31-7-1996 at annexure-3 by which he has convicted the petitioner under section 7 of the orissa cinema (regulation) act, 1954 (hereinafter referred to as 'the act') and sentenced him to pay a fine of rs. 200/- and further revoked the licence under section 8 of the act with immediate effect.3. perusal of the impugned order would show that the district magistrate with a view to revoke the licence of the petitioner under section 8 of the act has convicted him under section 7 of the act.4. section 8 empowers the licensing authority to revoke licence if the holder of such licence has been convicted of an offence under section 8 of the cinematograph act, 1952 or under section 7 of the act. section 7 of the act states that if the owner or person in-charge of a cinema uses the same or allows it to be used in contravention of the provisions of the act or the rules made thereunder or of the conditions and restrictions upon or subject to which the licence was granted under the act, he shall be punishable with fine which may extend to one thousand rupees and in case of a continuing offence with a further fine which may extend to one hundred rupees for each day during which the offence continues. sub-section (2) of section 7 says that offence punishable under sub-section (1) shall be cognisable. as already indicated, is the licensing authority, the district magistrate, empowered to hold a person guilty under section 7 of the act? to decide the said question, we have to refer to section 26 of the code of criminal procedure. the said provision provides about the courts by which offences are triable. it reads, so far as relevant, as follows :'26. courts by which effences are triable--subject to the other provisions of this code- (a) any offence under the indian penal code (45 of 1860) may be tried by- (i) ... ... ...(ii) ... ... ... (b) any offence under any other law shall, when any court is mentioned in this behalf in such law be tried by such court and when no court is so mentioned may be tried by-- (i)... ... ...(ii) any other court by which such offence is shown in the first schedule to be triable.' the present is not an offence under the indian penal code. it is an offence coming under 'any other law'. the first schedule of the code is divided into two parts; the first part deals with offences under the indian penal code and in the second part classification of offences against other laws has been indicated. from it, it appears that if the offence is punishable with imprisonment for less than three years or with fine only, the court which is competent to try such offence is any magistrate. under section 7 of the act the maximum sentence is fine of rs. 1,000/- and in case of continuing offence it may extend to rs. 100/- for each day during which the offence continues. in view of the sentence prescribed under section 7 of the act, the offence thereunder is triable by any magistrate. on perusal of the impugned order, we find that in order to invoke the power of revocation under section 8 of the act, the licensing authority found the petitioner guilty under section 7 of the act. he could not have adopted this procedure merely to take out a ground for revocation of the licence under section 8 of the act. the offence under section 7 of the act is triable by a court and not by the licensing authority. therefore, the order passed by the district magistrate convicting the petitioner and revoking the licence granted to him is without any authority of law. for the aforesaid reasons, the impugned order at annexure-3 cannot be sustained in law which is hereby quashed.5. shri routray submits that the petitioner's licence expired as back as 1994 and he has applied afresh for renewal of the said licence with necessary particulars. if any such application is pending with the licensing authority, the same may be considered and disposed of according to law.6. the writ application is accordingly allowed. there would be no order as to costs.c.r. pal, j. i agree.