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1966 DIGILAW 217 (KER)

C. v. MATHEW VS DIRECTOR OF MUNICIPALITIES

1966-08-19

K.K.MATHEW

body1966
Judgment :- 1. The 5th respondent was permitted to construct a temporary shed for conducting a travelling cinema in S. No. 51/3 of Ward No. 18 of the Thiruvalla Municipality by the 2nd respondent, the Executive Officer of the Kuttapuzha Panchayat. The Commissioner of the Municipality, the 4th respondent, by a provisional order dated 22121905 made under S.247 (2) of the Kerala Municipalities Act, called upon the 5th respondent to demolish the construction within 7 days. The 5th respondent sent a reply dated 25121965 stating that "the site S. No. 51/3 of Thiruvalla Village owned by Muthoor N. S. S. Karayogam where the temporary cinema theatre is constructed is in Ward of Kuttapuzha Panchayat" and that she is constructing the theatre with the prior sanction of the Panchayat. Thereafter the Commissioner of the Municipality issued on 311966 an order under S.247 (3) of the Kerala Municipalities Act directing the 5th respondent to demolish the unauthorised shed within 3 days. The 5th respondent submitted a petition on 511966 reiterating her former stand that the site in question is within the limits of the Kuttapuzha Panchayat and requested that the order dated 311966 may not be enforced. The 3rd respondent thereafter filed a petition before the District Collector, Alleppey, on 611966 (Ext. P-4), to stay the order for demolition of the shed issued by the Commissioner. It was stated in the petition that the Municipality has no right to order the demolition of the theatre constructed by the 5th respondent in S. No. 51/3 situate in Ward No.1 of Kuttapuzha Panchayat. The District Collector stayed the order of the Commissioner dated 311966 till the disposal of the petition put in by the 3rd respondent. The Collector finally disposed of the petition by his order dated 3011966 (Ext. P-1) upholding the action of the Commissioner and vacating the stay granted by him. Thereafter the Commissioner by order dated 3 21966 ordered the demolition of the shed. The 5th respondent then filed a suit and obtained an interim injunction restraining the Municipal Council from demolishing or causing the demolition of the shed. The 3rd respondent by his petition dated 7 31966 requested Government that orders be passed restraining the Municipal authorities from taking steps against the theatre owner. Government forwarded the petition to the 1st respondent. The 5th respondent then filed a suit and obtained an interim injunction restraining the Municipal Council from demolishing or causing the demolition of the shed. The 3rd respondent by his petition dated 7 31966 requested Government that orders be passed restraining the Municipal authorities from taking steps against the theatre owner. Government forwarded the petition to the 1st respondent. The 1st respondent, while forwarding a copy of this petition, directed the Commissioner to keep in abeyance all further steps taken against the theatre owner until the final orders are issued. The 3rd respondent filed another petition on 141966 before the 1st respondent requesting inter alia that the Municipality be directed not to obstruct the owner of the theatre till matters are finally settled. The 1st respondent passed an order on that petition dated 4 41956 (Ext. P-2). The petitioner who has constructed a permanent theatre within the jurisdiction of the Municipality has filed this petition to quash Ext. P-2 order and for restraining the 2nd respondent from issuing licence for exhibiting films in the theatre and the 5th respondent from conducting any shows in the theatre without a licence from the 4th respondent. 2. The question for consideration is whether the 2nd respondent could issue a licence permitting the exhibition of films in the theatre in question. Admittedly Ext. P-3 resolution passed by the Kuttapuzha Panchayat would show that the Panchayat permitted the 5th respondent to construct a travelling cinema theatre in S. No. 51/3 of Thiruvalla Village. It is contended that the Panchayat could not have authorised the construction of the theatre in the survey number and that the 2nd respondent could not have issued the licence to exhibit films in the theatre. By the notification dated 611934 and published in the Travancore Gazette dated 911934 the area comprised in the survey numbers specified in the notification is included within the Municipal limits of Thiruvalla with effect from the date of the publication of the notification. The area comprised in S. No, 51/3 is one of the areas specified in the notification. The notification was issued under S.5(3) of the Travancore Municipal Regulation.5 of 1095. If this is so it is clear that the Panchayat had no right to sanction the construction of a touring cinema theatre in the survey number. 3. It was argued by Mr. The notification was issued under S.5(3) of the Travancore Municipal Regulation.5 of 1095. If this is so it is clear that the Panchayat had no right to sanction the construction of a touring cinema theatre in the survey number. 3. It was argued by Mr. Subramonian Potti, appearing for the 5th respondent, that there is a genuine dispute between the Panchayat and the Municipality as regards the question whether the property on which the theatre has been allowed to be constructed is actually within the jurisdiction of the Panchayat or of the Municipality, and Government are now in seizin of the dispute, and that until Government decide the question no adjudication upon the matter should be made by this Court. It was also submitted that there is a proposal to conduct a re-survey of the properties included in S. Nos.1 to 60 of the Thiruvalla Village, and if on re-survey it is found that the property on which the theatre is constructed is actually within the jurisdiction of the Panchayat, any order passed by this court on the basis that the property is within the jurisdiction of the Municipality would be rendered otiose. I am not inclined to accept these contentions. As matters stand there was no authority in the 2nd respondent to issue a licence for conducting cinema in the theatre constructed in S.No. 51/3. It is no doubt true that the Collector has found that a portion of the theatre is not in S. No. 51/3, but in the neighbouring survey number which is included within the area of the Panchayat. It is not the case of the 5th respondent that any permission has been granted by the Panchayat to construct a theatre in that portion of the survey number. The resolution of the Panchayat already adverted to makes it clear that the Panchayat intended the construction of the theatre only in S. No. 51/3. If that be so, it seems to be clear that the 2nd respondent intended to issue the licence for exhibiting films in the theatre permitted to be constructed by the Panchayat. I see no reason to hold that the 2nd respondent has any authority to grant the licence for exhibition of films in the theatre. If that be so, it seems to be clear that the 2nd respondent intended to issue the licence for exhibiting films in the theatre permitted to be constructed by the Panchayat. I see no reason to hold that the 2nd respondent has any authority to grant the licence for exhibition of films in the theatre. I am not satisfied that there is any dispute between the local authorities in this matter because so long as the notification stands it has to be conclusively assumed that the area comprised in the survey number is within the limits of the Municipality. 4. It was argued that the petitioner has no locus standi to approach this court as no right of his has been violated by granting the licence in question. I am not satisfied that this is a correct evaluation of the position. In Madhavan Pillai v. State 1965 KLT. 284, I quoted the following passage from the judgment of Lord Denning in Maurice v. London County Council 1964 2 Q. B. 362: "I know that at one time the words 'person aggrieved' (which I regard as the same as 'person who shall deem himself aggrieved') were given in these courts a very narrow and restricted interpretation. It was said that the words 'person aggrieved' in a statute only meant a person who had suffered a legal grievance. Indeed in Buxton v. Minister of Housing and Local Government (1961-! Q. B. 278) which I mentioned in the course of the argument, Salmon J. declined to go into the question of loss of amenities. But that narrow view should not be rejected. In the more recent case of Attorney General of the Gambia v. N' Jie (1961 A. C. 617, 634), the Privy Council had to consider these words 'person aggrieved' once again. On behalf of the Board. I ventured to say there: "The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests". So here in this case they do include a person who has a genuine grievance because a consent has been given which prejudicially affects his interests. So here in this case they do include a person who has a genuine grievance because a consent has been given which prejudicially affects his interests. His interests may be prejudicially affected, not only in regard to light and air, but in regard to amenities also. The one requisite must be that his grievance must be in respect of his interest as an owner or lessee of a building within 100 yards." and said that if a person is prejudicially affected in his interest by an act, he has a locus standi to question its validity. Following that decision I hold that the petitioner has locus standi to question the validity of the licence issued by the 2nd respondent. 5. It was contended on behalf of the 2nd respondent that since the Panchayat has not been made a party to this proceedings it is not open to this court to quash the resolution passed by the Panchayat sanctioning the construction of the theatre in the survey number. It is not necessary for me to consider this question as there is no prayer in this writ petition for quashing the resolution passed by the Panchayat sanctioning the construction of the theatre in the survey number. What is prayed for now is lieu of prayer (B) in the writ petition is the issue of a writ for quashing the licence issued by the 2nd respondent sanctioning the exhibition of films in the theatre. But counsel submitted that the Panchayat is a body corporate and that licence issued by the executive authority of the Panchayat is a licence issued under the authority of the Panchayat, and therefore, the Panchayat must also have been made a party to the proceedings. I am not inclined to accept the contention. That the Executive Officer of the Panchayat is the authority competent to issue the licence for exhibition of films is clear from S.4 (1) of the Kerala Cinemas (Regulation) Act, 1958, Act 32 of 1'958; S.4 (1) is as follows: "4. I am not inclined to accept the contention. That the Executive Officer of the Panchayat is the authority competent to issue the licence for exhibition of films is clear from S.4 (1) of the Kerala Cinemas (Regulation) Act, 1958, Act 32 of 1'958; S.4 (1) is as follows: "4. The authority having power to grant licences under this Act (hereinafter referred to as the licensing authority) shall be (i) in any area under the administration of a local authority, the executive authority of that local authority: Sub-section (2) of S.4 of the Kerala Panchayats Act is as follows: "Subject to the provisions of this Act, the administration of the Panchayat area shall vest in the Panchayat but the Panchayat shall not be entitled to exercise functions expressly assigned by or under this Act or any other law to its President or executive authority or any other authority." It is clear from these provisions that the licence can be issued only by the executive authority of a local authority. Mr. Easwara Iyer submitted that the Panchayat is not a local authority. I do not think, that the submission is entitled to any weight. It would appear from the provisions of the Panchayats Act that the Panchayat is a local authority within the meaning of that expression as used in S.4 of the Kerala Cinemas (Regulation) Act, 1958. In particular the wording of S.45 of the Panchayats Act would indicate it. Counsel said that a Panchayat would not come within the definition of the word 'local authority' as given in the Kerala Interpretation and General Clauses Act (S. 2 (20). The definition given there will apply only in the absence of a contrary intention indicated by the context. I think, there is sufficient indication in the Kerala Cinemas (Regulation) Act to the contrary. Mr. Easwara Iyer submitted that it is only where a local authority is entitled to control and manage a local fund that the authority would become a local authority and since the Panchayat is not entrusted with a local fund it would not come within the definition of the word 'local authority'. I am not quite clear why the Panchayat fund is not a local fund. I am not quite clear why the Panchayat fund is not a local fund. However, in view of my conclusion that the word as used in S.4 of the Kerala Cinemas (Regulation) Act in the context would take in a Panchayat also, I think, the 2nd respondent alone had authority to issue the licence. 6. Although there is a prayer by the petitioner to quash Ext. P-2, the order passed by the 1st respondent, I do not think it necessary to enter into the question whether that order is right or not. It is an administrative order passed for the guidance of the Municipality. Petitioner can have no legal grievance against the order. Therefore I decline to grant the prayer. In the circumstances, I quash the licence issued by the 2nd respondent to the 5th respondent to exhibit films in the theatre, and restrain the 5th respondent from exhibiting any films in the theatre. The writ petition is allowed in the manner indicated. There will be no order as to costs. Allowed.