JUDGMENT 1. - The petitioner by this application under Article 226 of the Constitution of India complains against the orders of the District Magistrate, Jaipur and the Home Commissioner refusing to issue no objection certificate for the construction of a cinema on Moti Doongri Road, Jaipur and also prays for issuance of a writ, direction or order to the respondents to grant a no objection certificate to the petitioner. In order to appreciate the controversy raised it will be necessary to give material facts bearing on the controversy. 2. The petitioner owns two plots adjacent to each other situate on Moti Doongari Road, Jaipur city. She desired to construct a cinema house for exhibiting films. On 8.12.1970 the petitioner moved an application in form A appended to the Rajasthan Cinema (Regulation) Rules, 1959, (hereinafter called the Rules) to the District Magistrate, Jaipur who is a licensing authority under the Rajasthan Cinema (Regulation) Act, 1952, hereinafter called the Act for grant of no objection for the construction of a cinema. The respondent No. 3 Collector Jaipur requisitioned six more copies of the plan which in original was annexed with the application for eliciting the views of the Public Works Department, the Municipal Council, Jaipur, the Urban Improvement Trust, Jaipur, the Superintendent of Police, Jaipur, the city Magistrate, Jaipur and the Chief Town Planner, Raj. It appears the SP, the City Magistrate the Municipal commissioner, Secretary U.I.T. gave clearance in regard to the site for locating the cinema. The Chief Town Planner, however, vide his letter dated 30th of December, 1970, informed the Collector Jaipur that the site proposed for construction abutted Bal Mandir an important educational institution for children and is located in an entirely residential area and so the site was not suitable for the construction of a cinema house. The petitioner then moved the respondent No. 3 giving further proposal with a view to meet the objection of the Chief Town Planner and prayed that her representation may be forwarded to the Chief Town Planner; which appears to have been sent to him for his views. The petitioner then moved the respondent No. 3 giving further proposal with a view to meet the objection of the Chief Town Planner and prayed that her representation may be forwarded to the Chief Town Planner; which appears to have been sent to him for his views. Later on the Deputy Town Planner by his letter dated 19.6.1971 gave clearance for site subject to two conditions viz., (i) some strip of the land from the petitioner's plot as shown in the proposed plan is to be surrendered by the petitioner for widening Moti Doongari road for improvement of junction at Govind Marg, (ii) that the maximum building set back shall be 30 feet each on Govind Marg and on Moti Doongari Road and 20 ft each on other two sites. Later on it appears that the Superintendent of Police vide his letter dated 3.1.1972 revised his opinion and informed the Collector that the proposed site was not suitable one as the residents of the locality has objection to the construction of the cinema house. It may be stated here that the objections referred to by the Superintendent were from Secretary Bal Mandir and some residents of the locality. The above referred to objections were based on three fold grounds (a) the proposed site is located in pre-dominantly residential area (b) the Bal Mandir primary school it just adjacent to the site (3) that the site would create traffic problem as it abouts on the crossing of the main road. The objections found favour with the District Magistrate,Jaipur,who refused to grant the no objection certificate by his order dated 5.6.1972 which may be reproduced here in below:- "The site is predominantly a residential area, just adjacent to the proposed site is children's school and I do not find it to be suitable site for location of the cinema." "Sd/- Tej Kumar 5.6.72". 3. The petitioner felt aggrieved by his order & took up the matter by way of appeal before the State Govt. which was heard by the Home Commissioner. 3. The petitioner felt aggrieved by his order & took up the matter by way of appeal before the State Govt. which was heard by the Home Commissioner. Before the Home Commissioner, it was contended that the site was not a thickly populated area; the licensing authority had not determined what was a thickly populated area, & the fact that the site was adjacent to the children's school is irrelevant for decision of the application for the grant of no objection certificate and lastly that the order of the licensing authority is arbitrary & malafide. The Home Commissioner on consideration of the appeal rejected the same on the ground that the proposed site is close to the children's school wherein teachers also live and further that there is a proposal to construct a hostel and the entire locality is a residential area. In this view of the matter he concurred with the order of the District Magistrate, Jaipur holding that the rejection of the application was within the scope of Rule 16 of the Rules in as much as the licensing authority after gathering the facts from the Superintendent of Police, the Chief Town Planner, the Executive Committee of the School and having inspected the site had arrived at the conclusion against the petitioner. The Home Commissioner further observed that it was not necessary for the authority to determine-specifically as to what was a thickly populated area. The petitioner has, therefore, challenged the orders of the District Magistrate and the Home Commissioner by this application under Article 226 of the Constitution of India. The case of the petitioner is that the respondents are bound to act according to the provisions of the Act and Rules made thereunder and as the respondents have not objectively determined the matter in conformity with the existing Rules & provisions of the Act their orders are manifestly erroneous. It was contended that Rule 16 gives guide line and relevant factors to be taken into account while disposing the application for grant of licence or no objection certificate and there is no bar under that Rule to grant no objection to the petitioner. According to the learned counsel for the petitioner the existence of children's school adjacent to the proposed site of the petitioner cannot be a relevant ground under Rule 16 of the Rules. According to the learned counsel for the petitioner the existence of children's school adjacent to the proposed site of the petitioner cannot be a relevant ground under Rule 16 of the Rules. It was further submitted that the petitioner's plot is not situated in a thickly populated residential area, nor it is an exclusive residential area as there are large number of small factories and industrial establishments and that under the law there is no executive or administrative discretion vested in the respondents to refuse no objection certificate to the petitioner when all the conditions prescribed by law stated fulfilled in her case. 4. The respondents in their return resisted the petition reiterating the grounds relied upon by the Home Commissioner that the site is a predominantly residential locality and is adjacent to the educational institution and that the grant of no objection to the petitioner would be an infringement of Rule 16 of the Rules which is of a mandatory character. 5. The principal question, therefore, arises for consideration is as to the correct interpretation of R.16, R.16 of the Rules being couched in negative form is obviously of a mandatory character. It is well to remember that under Article 19 (1) (g) of the Constitution every citizen has got a fundamental right to carry on trade or occupation subject to reasonable restrictions. Reasonable restrictions have been provided under Rule 16 which may be reproduced here in below for ready reference:- "16. Situation : (1) No permanent building except that already licensed at the commencement of these rules shall be licensed for cinematograph exhibition if it is situated: (i) any residential institution attached to a recognised educational institution such as a college, a high school or girls school, or (ii) a public hospital with a large indoor patient ward; or (iii) an orphanage containing one hundred or more inmates,or (b) in any thickly populated residential area which is either exclusively residential or reserved or used generally for residential as distinguished from business purposes. (2) For the purpose of this rule, the licensing Authority shall, subject to the general control of the State Government, determine what is a hospital, a recognised educational institution,a large indoor patient ward or a thickly populated residential area, and his decision shall be final and conclusively." Provided that the Licensing Authority may for sufficient reasons and with the prior approval of the State Government, relax this rule or any part thereof in any case and specially in the case of cinemas already completed or nearing completion prior to the commencement of these rules: "Provided further that in relaxing this rule or any part thereof the State Govt. shall take into consideration the nature of the proposed building and whether or not it is sound proof or is within a radius of 50 feet from any petrol pump or any shop or store dealing in highly combustible material or is air conditioned." 6. Rule 16 consists of two clauses. Clause (i) of the Rule 16 further consists of two parts (a) and (b) Under Rule 16 (1) (a) of the Rules prohibition has been provided against the grant of licence on a site which falls within a radius of one furlong from any residential institution such as college, a high school or girls school. From the plain reading of clause (a) (i) it appears that the restriction is confined in regard to a site which is within a radius of one furlong from any hospital, a boarding house which is attached to any recognised educational institution which may be either a college or a high school or a girls school. Clause (a) (i), therefore, presupposes the existence of a residential institution which might be attached to a recognised institution as specified in that clause. It is not the case of the respondents that there is a residential institution attached to the recognised education institution near the proposed site. From the facts which have been brought on the record it appears that there is a Bal Mandir school but there is no residential institution attached to the school. There is a faint reference in the Home Commissioner's order that the teachers reside in the Bal Mandir but this finding is based on no evidence. Clause (a)(i), therefore, cannot operate as a bar to the grant of no objection certificate. There is a faint reference in the Home Commissioner's order that the teachers reside in the Bal Mandir but this finding is based on no evidence. Clause (a)(i), therefore, cannot operate as a bar to the grant of no objection certificate. So far as clauses (a) (ii) and (iii) are concerned they have no relevance and nor these clauses have been relied upon by the respondents. Then there is a clause (b) which postulates the bar against the construction of permanent cinema building in any thickly populated residential area which is either an exclusively residential or reserved or used generally for residential as distinguished from business purpose. Serious controversy has been joined by the parties on clause (b). The petitioner's contention is that the first thing required to attract this clause is that the locality must be a thickly populated residential area as contra-distinguished from a sparsely populated area. Further such thickly populated area must be exclusively residential or reserved or used generally for the residential as distinguished from business purpose. The submission of the learned counsel for the petitioner is that in order to attract clause (b) the basic requirement is the existence of a thickly populated area and that too must be either reserved or used generally for residential as distinguished from business purposes. Learned counsel for the petitioner urged that the area in question is not at all a tickly populated residential area nor reserved for such purpose. On the other hand there are in existence a number of small factories and industrial establishments some of which have been specified in para No. 18 of the writ petition. As against this, the respondents' stand is that the area need not be thickly populated in a statistical sense. It will be sufficient if the area is generally a residential area which requirement is fully met in the case. It cannot be gain said that the respondents in reply to para No. 18 of the writ petition have admitted that there are factories and industrial establishments as referred to by the petitioner in para No. 18 but their say is that they are at a distance of more than a furlong. 7. I have given my anxious consideration to the rival contentions submitted on behalf of both the sides. 7. I have given my anxious consideration to the rival contentions submitted on behalf of both the sides. As stated earlier clause 16(1) (a) cannot be attracted in the case as there is no residential institution attached to a recognised educational institution as contemplated by that clause. Mere existence of an education institution by itself is not a relevant grounds to attract the provisions of rule 16 (i) (a) which lays stress upon the existence of a residential institution and that too must be attached with a recognised institution. Therefore R. 16(1) (a) of the Rules cannot operate as a bar to the petitioner. So for as the attraction of clause 16 (1) (b) is concerned the matter has to be objectively decided. It is well to remember that the authorities disposing the application for grant of no objection certificate have to be satisfied on certain objective conditions laid down in this clause and their act is plainly quasi judicial. I am fortified in this view of mine by a decision of the Supreme Court reported in State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650 . Once it held that the act of the authority is of a quasi judicial character then as has been pointed out by the Supreme Court in Jaswant Singh Mills v. Lakshmichand, AIR 1963 SC 677 , it must be determination upon a criteria viz., an investigation of a question by application of objective standards to facts found in the light of pre-existing legal rules; that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting the parties case, ascertainment of facts by means of evidence if a dispute be on a question of fact and if the dispute be on question of law on the presentation of legal argument and a decision resulting in the disposal of the matter on the finding based upon those questions of law and fact. It may be stated here that procedure may not be just like that of an ordinary court but it must be such which is in conformity with the principles of natural justice giving adequate and reasonable opportunity to the affected party of being heard. In the instant case having gone through the order of the District Magistrate. It may be stated here that procedure may not be just like that of an ordinary court but it must be such which is in conformity with the principles of natural justice giving adequate and reasonable opportunity to the affected party of being heard. In the instant case having gone through the order of the District Magistrate. I may at once say that it is not at all a speaking order and suffers from serious infirmity in not objectively determining the matter keeping in view the objective criteria provided by Rule 16 of the Rules. The order of the Home Commissioner on the appellate side is an elaborate one but that also takes into account irrelevant consideration not at all contemplated by Rule 16 of the Rules. Learned Home Commissioner stressed upon the existence of Balmandir an educational institution which is not yet provided with a hostel. There is a casual observation in the judgement of the Home Commissioner that there is a prospect of a hostel being constructed in near future near the proposed site. No material data has been brought on this point on the record. Rule 16 envisages the existence of a residential institution at the time when the decision is taken and does not warrant the objective determination on the basis of a new contingency which may or may not take place. As regards the attraction of clause (b) the learned Home Commissioner has simply observed that area is completely residential and is a predominantly residential site and it was not necessary for the licensing authority or him to precisely determine statistically as to what was a thickly populated area. There is no gain saying the fact that the question of thickly populated area need not be decided with mathematical exactitude but at the same time it has to be decided as to whether the locality is a thickly populated area in the broad sense as contra distinguished from sparsely or unevenly populated area. The duty of the authorities under the Rules being quasi judicial one the determination has to be made in an objective manner on evidence and facts. The learned Home Commissioner has placed reliance upon the respondents the Town Planner, P.W.D. Municipality but these reports do not clinch the issue regarding the determination of the point as to whether the locality is a thickly populated one or not. The learned Home Commissioner has placed reliance upon the respondents the Town Planner, P.W.D. Municipality but these reports do not clinch the issue regarding the determination of the point as to whether the locality is a thickly populated one or not. Indeed clause (b) would come into operation only when the locality is a thickly populated one so as to operate as a bar to the grant of no objection certificate in such area. For attracting clause (1) (b) of Rule 16 there must be a decision on the point of thickly populated locality. There is no such decision. It is one thing that the locality is a predominantly residential locality and it is another matter, whether the locality is a thickly populated one. The term thickly populated locality cannot be equated to predominant residential locality. It is true that the order of the licensing authority on the point of thickly populated locality is final but there must be a finding to that effect based upon some evidence. The orders of the District Magistrate and the Home Commissioner, therefore, does not come to the norm of a quasi judicial determination so far as the point of thickly populated locality is concerned. The orders of both the authorities therefore cannot be said to be in confirmity with Rule 16 and deserve to be quashed. 8. In the result the petition is partially accepted, the impugned orders of the learned District Magistrate and the Home Commissioner are set aside and the case is sent back to the District Magistrate for giving a fresh decision in the light of Rule 16 of the Rules and observations made above. In the facts and circumstances of the case the parties are left to bear their own costs. *******