NANJAPPA S. v. STATE OF KARNATAKA — 1978 DIGILAW 70 (KAR)

( 1 ) THE petitioner, who is the owner of a touring talkies, filed an application before the District Magistrate, Tumkur, for the grant of a no. objection certificate for running a touring talkies in Turuvekere. The District magistrate called for objections in accordance with Rule 96 (1) and (2) of the Karnataka Cinemas (Regulation) Rules, 1971 (hereinafter referred as the 'rules' ). Respondent-3, who had by then secured a licence for establishing a permanent cinema theatre, ag also 'respondents 4 to 9 who are residents of Turuvekere Town in which the petitioner wanted to run his touring talkies, filed their objections (Ext. A ). The District magistrate issued notices', to the petitioner and also to the objectors fixing the date of hearing on 1-8-1977 ahd the same was adjourned ,to 30-8-1977. on 30-8-1977, the Advocate for respondents 3 to 9 remained absent. The ijandtrict Magistrate proceeded to hear the Counsel for the petitioner and reserved the orders. On 5-9-1977 respondents 3 to 9 made an application before the Dist Magistrate requesting him to hear 'their Advocate before passing final orders. The reason given in the said application was that their Advocate was unable to be present on 30-8-1977 as he had proceeded 'to Shimoga to attend his brother's marriage on that day. The Dist magistrate did not pass any order on the said application. On 23-9-1977, the dist Magistrate inspected the spot and thereafter passed the order dated 27-9-1977 granting the no objection certificate asked for by the petitioner (vide Exhibit B ). ( 2 ) AGAINST the said order, respondents 3 to 9 preferred a revision petition before the State Govt under Sec. 18 of the Karnataka (Cinemas) regulation Act, 1964 (hereinafter referred "to as 'the Act' ). Station 18 empowers the State Govt to call for and examine the records in respect of any original order passed under the provisions of the Act against which no appeal lies under Ses. 10 or 17 for the purpose of satisfying itself as to the legality or propriety of such order, and to pass such order in reference thereto, as it thinks fit. It is not disputed that under Sec. 10 no appeal lies at the instance of an objector to the grant of a no objection certificate. Respondents 3 to. 10 or 17 for the purpose of satisfying itself as to the legality or propriety of such order, and to pass such order in reference thereto, as it thinks fit. It is not disputed that under Sec. 10 no appeal lies at the instance of an objector to the grant of a no objection certificate. Respondents 3 to. 9 being objectors could not, therefore, maintain their appeal before the Divisional Commissioner anjd hence they presented the revision petition under Sec. 18. The State Govt gave notice to both parties and after hearing them made the order dated 30-1-1978, allowing the revision partition and setting aside the order of the Disit Magistrate dated 27-9-1977 in favour of the petitioner and remanded the matter to the licenisjng authority for fresh disposal in accordance with law after giving an opportunity of hearing to respondents 3 to 9 to advance their arguments as prayed for by them in their application dated 5-9-1977. ( 3 ) AGGRIEVET by the said order, the petitioner has presented this writ petition. ( 4 ) THOUGH several grounds are set out in the writ petition, at the time of hearing, the following contention only was urged by the learned counsel for the petitioner in support of the writ petition : under Rule 96 of the,rules, there is no right of oral hearing for respondents 3 to 9 who were Only objectors and, therefore, the State Govt was in error in setting aside the order of the licensing authority on the ground that oral hearing was not given to respondents 3 to 9 as requested by them in their application dated 5-9-1977. Elaborating the contention, it was urged for the petitioner. that rule 96 only makes it obligatory for the licensing authority to consider the objections preferred to the application for the grant of a no objection certificate and the consideration contemplated in the said Rule does not include oral hearing, and, therefore, as the Dist Magistrate did not commit any illegality in not giving, oral hearing to respondents 3 to 9, it was not open for the Govt to set aside his order on the gaid ground in exercise of its revisional power under Sec. 18 of the Act. In support of the above sub-mission, the petitioner placed reliance on the decision of the Supreme court in State of Assam v. Gauhati Municipal Board, AIR 1967 SC 1398 . In support of the above sub-mission, the petitioner placed reliance on the decision of the Supreme court in State of Assam v. Gauhati Municipal Board, AIR 1967 SC 1398 . In the said case, which came up for consideration under the provisions of the Assam muncipal Act, with reference to the question' whether there should be personal hearing or not before the Govt passes an order of supersession after receiving the reply from the concerned municipality to the show cause notice issued by the Govt, the Supreme Court held that there was no requirement of personal hearing under the provisions of Sec. 298 of the Assam municipal Act. The relevant portion of the judgment reads as follows :" However, we are definitely of opinion that the provisions of sec. 298 being fully complied with ' it cannot be said that there was violation of principles of natural justice in this case when the Board never demanded what is called a personal hearing and never intimated to tile Govt that it would like to produce materials in support of its explanation at some later stage. Therefore, where a provision like sec. 298 is fully complied with as in this case and the Board does not ask for an opportunity for personal hearing or for production of mate, rials in support of its explanation, principles of natural justice do not require that the State Govt Should ask ths Board to appear for a personal hearing and to produce materials in support of the explanation. In the absence of any demand by the Board of the nature indicated above, we cannot agree with the High Court that merely because the govt did not call upon the Board to appear for a personal hearing and to produce material in support of its explanation it violated the principles of natual justice". ( 5 ) WHAT follows from the above decision is that if on the facts and in the circumstances of a given case an opportunity of oral hearing is demanded, that opportunity should be given before passing an order overruling the objections. In the present cage, in the first instance, the Dist magistrate himself had decided to give personal hearing and the case was posted for hearing on 30-8-77. On that day, the Counsel for respondents 3 to 9 could not attend at the hearing on account of his personal inconvenience. In the present cage, in the first instance, the Dist magistrate himself had decided to give personal hearing and the case was posted for hearing on 30-8-77. On that day, the Counsel for respondents 3 to 9 could not attend at the hearing on account of his personal inconvenience. But, long before the order was passed by the Dist Magistrate, an application was made on 5-9-1977 requesting the licensing authority to give as opportunity of hearing before passing the final order. The opportunity asked for was not given and no order was passed on the Said application. In this behalf, the State Govt has stated as follows in the impugned order:" It will be seen that though the first objector's application was filed on 5-9-1977 praying for an opportunity to address his argument, the learned Dist Magistrate has actually passed order on 27-9-1977 without passing any orders on the application filed on 5-9-1977 even though there was enough time between 5-9-1977 to 27-9-1977 for him to pass appropriate orders on the said application. It is clear that the order dated 27-9-1977 of the Dist Magistrate which is challenged in the revision petition, lacks legality and propriety and therefore the the circumstances of this case justify interference under Section 18 of the Act". ( 6 ) FROM the revisional order it is clear that the State Govt came to) the conclusion that on the facts and in the circumstances of this case the licensing authority ought to have granted the request made in the application filed on behalf of respondents 3 to 9 on 5-9-1977 to give them an oral hearing, and as such. hearing was not given, the order of the licensing authority should be set aside and a direction should be given to the licensing authority to dispose of the application, of the petitioner for grant of a no objection certificate after giving opportunity to respondents 3 to 9. ( 7 ) RULE 96 (4) of the Ruleis provides that the licensing authority shall consider the objections, if any, received from the members of the public. The contention of the petitioner is that such consideration does not include the giving of oral hearing. Whether oral hearing should be given in a given case or not is a matter which has to be decided with reference to the facts and circumstances of each case. The contention of the petitioner is that such consideration does not include the giving of oral hearing. Whether oral hearing should be given in a given case or not is a matter which has to be decided with reference to the facts and circumstances of each case. In the present case, the District magistrate himself had decided to give oral hearing. Respondents 3 to 9 were not heard on 30-8-1977 for the reason that their Advocate was not present. All that the Govt has done in exercise of its revisional power is to hold that as an application had been filed on 5-9-1977 long before the final order was passed, the District Magistrate ought to have given an opportunity of being heard to respondents 3 to 9 and thereafter the final order should have been passed. The Govt is given the power of revision under Sec. 18 of the Act to examine the legality and propriety of the order against which the revision petition is entertained and to pass appropriate orders as it thinks fit. In coming to! the conclusion that in the circumstances of this case it was necessary to grant the application made by respondents 3 to 9 on 5-9-1977 seeking an opportunity of hearing at the hands of the licensing authority, the Govt has not committed any illegality and has only exercised its legitimate power under Sec. 18 of the Act. ( 8 ) IN support of the contention urged for the petitioner, reliance was also placed on the decision in d. S. Krishnappa Gowda v. State of Mys. , (1969) 2 Myssj 154. In the said case, this Court held that the Goyt before passing an appellate order under the Mysfore Cinemas Regulation Act, 1952, should have given an opportunity of hearing to the parties concerned. Reliance was placed on para-9 of the said judgment in which there is reference to an earlier decision rendered in WP. 638 of 1958 in which it was held that before a no objection certificate is granted by the Dist Magistrate, there was no right of oral hearing and the only right the concerned person had was to file objections. Reliance was placed on para-9 of the said judgment in which there is reference to an earlier decision rendered in WP. 638 of 1958 in which it was held that before a no objection certificate is granted by the Dist Magistrate, there was no right of oral hearing and the only right the concerned person had was to file objections. From the said decision, it is clear that even though there was no right created by the statute to ask for a personal hearing in an appeal presented to the Govt, this Court came to the conclusion that not hearing the parties would amount to violation of the principles of natural justice. Further, the effect of the decision rendered is WP. 638/58 is that in a writ petition this Court would not interfere when oral hearing was denied to an objector. This Count neither dealt with the scope of the revisional power of the State Govt under provisions similar to Section 18 of the Act, nor with a case where hearing was denied even after the Licencing authority had decided to hear the objectors and did not hear, inspite of the reasons furnished explaining the absence of the Advocate for the party on the dale fixed for hearing. Whether an opportunity of hearing should have been given or not and wh0ther not giving of an opportunity amounts t6 violation of the principles of natural justice depends upon the facts and circumstances of each case. In the present case, the State Govt has come to the conclusion that in order to ensure a juslt and fair decision an opportunity should have been given and on that basis the revision petition has been allowed. It cannot be said that the State Govt has exceeded its power under Section 18 of the Act in doing so. ( 9 ) THE petitioner next placed reliance on the following decisions: (i) Madhya Pradesh Industries Ltd v. Union of India, AIR 1966 SC. 671 . (ii) Union of India v. Jyoti Prakash Mitter, AIR 1971 SC. 1093 -1102 (iii) United Karnataka Insurance Co. Ltd v. Goverdhana Rao, AIR 1961 Mys. 49= 1960 Myslj 1048. and (iv) Shyam Murari Lai Saxena v. District Magistrate, AIR 1977 All 198 . 671 . (ii) Union of India v. Jyoti Prakash Mitter, AIR 1971 SC. 1093 -1102 (iii) United Karnataka Insurance Co. Ltd v. Goverdhana Rao, AIR 1961 Mys. 49= 1960 Myslj 1048. and (iv) Shyam Murari Lai Saxena v. District Magistrate, AIR 1977 All 198 . These decisions do not in any way support the contention of the petitioner that the State Govt exceeded its jurisdiction in setting aside the order of Licensing Authority on the ground of not acceding to the request of repondents 3 to 9 to give them a hearing before passing final orders. On a consideration of all these cases it becomes clear that the question of personal hearing has to be determined with reference to the concerned statute and the facts and circumstances of each case. ( 10 ) THEREFORE, I am of the opinion that in the present case when the state Govt, in exercising its power of revision under Sec. 18 of the Act, has felt that in fairness to the objectors, opportunity of hearing Should have been given by the Licensing Authority before passing final orders 'the decision of the Govt does not suffer from the vice of any illegality or exceeding of the jurisdiction vested in the Govt under Sec. 18 of the Act and cannot also be regarded as having caused any substantial injury to the petitioner. ( 11 ) IT was however pointed out on behalf of the petitioner that the state Govt, in disposing of the revision petition, relied on the report submitted by the Dist Magistrate on the question of 'the distance between the girls' hostel run by the Social Welfare Dept and the site in question and also on a certificate produced by respondent 3, and it wa's contended that this will prejudice the case of the petitioner before the Dist Magistrate. On a reading of the impugned order, it is clear that the State Govt has not given any finding on the basis of the said report which according to petitioner was secured behind his back. Order of the Govt is only based on the denial of the opportunity of hearing to respondents; 3 to 9 though sought for by their application dated 5-9-1977 and not on any other finding. Order of the Govt is only based on the denial of the opportunity of hearing to respondents; 3 to 9 though sought for by their application dated 5-9-1977 and not on any other finding. Therefore, in disposing of the application of the petitioner for the grant of no objection certificate, the Di3t Magistrate has to proceed on the basis of the materials before him and has to record his independent findings and not on the basis that there is any finding recorded by the State govt on the question of distance between the permanent cinema theatre and the girls' hostel. ( 12 ) FOR the reasons aforesaid, the rule is discharged and the writ petition is dismissed. No costs. --- *** --- .