B. N. SAMPATH IYENGAR v. DIST. MAGISTRATE: MYSORE — 1979 DIGILAW 222 (KAR)

K. A. SWAMI, J. ( 1 ) IN this petition under Art 226 of the constitution, the petitioner has challenged the validity of the order dated 20-4-1976 passed by 'he 1st 1st respondent - District Magistrate mysore District, Mysore, in No J (l) cnm. PR 81173-74 granting 'no objection Certificate' in favour of the 2nd respondent for erecting a permanent cinema Theatre on the site in question bearing No 1979/2 at Bannur Town. ( 2 ) THE petitioner is also having a permanent theatre at Bannur Town. The application filed by the 2nd respondent for grant of no objection certificate was duly notified. The petitioner filed his objections. The objections were also filed by one Sri haji Hassan Miyan alias Hutcha Miyan of Bannur separately and also a common objection on behalf of the residents of Bannur. The 1st respondent also ascertained the opinion from the different authorities mentioned in rule 26 (1) of the Karnataka Cinemas (Regulation) Rules, 1971 (hereinafter referred to as 'the Rules) and also inspected the site in question. During the course of the proceeding, the objections filed by Haji Hassan Miyan and also the common objections filed on behalf of the residents of Bannur town, come to be withdrawn and it was further stated by them that they had no objection for granting 'no objection Certificate' in favour of the 2nd respondent as stated in para 4 of the order of the 1st respondent. ( 3 ) ON receipt of the opinion from the different authorities mentioned in rule 26 (1) of the Rules and on consideration of the objections raised by the petitioner and on inspection of the site the 1st respondent came to the conclusion that the site in question was suitable for granting the 'no objection Certificate'. The 1st respondent also considered the suitability of the site from the point of view of its close location to the burial ground and was of the opinion that even though the site is close to the muslim bunal ground, nevertheless, it is suitable for locating a permaent cinema theatre. In this connection, the 1st respondent took into consideration the fact that the petitioner himself is having his permanent theatre on the northern side of the burial ground. In this connection, the 1st respondent took into consideration the fact that the petitioner himself is having his permanent theatre on the northern side of the burial ground. Further, to safeguard the interest of the muslim community, the first respondent has imposed a condition that the 2nd respondent should construct a wall adjacent to the muslim burial ground and he has also further imposed a condition that the loud-speakers should not be fixed out-side the cinema building. ( 4 ) SRI B. G. Sridharan, the learned counsel for the petitioner, urged for consideration, the following three contentions: (1) That the 'no objection certificate' granted in favour of the 2nd respondent is contrary to Rule 27 (2) (a) of the Rules as it stood at the time of grant; (2) That the cinema site in question, being close to the Muslim bunal ground, in view Of the provisions contained in Rule 27 (1) (i) (ii) of the rules, 'no objection Certificate' should not have been granted; (3) that the 1st respondent ought to have first determined under Ss. 6 and 7 of the Karnataka Cinemas (Regulation) Act, 1964 (hereinafter referred to as 'the Act') the number of places in Bannur Town in respect of which the licences under the Act may be granted. ( 5 ) SRI K. S. Desai, the learned counsel for the 2nd respondent, raised a preliminary objection that the petitioner cannot be considered to be an aggrieved person; therefore, he is not entitled to maintain the writ petition under Art. 226 of the Constitution, It was also further contended on behalf of the 2nd respondent that 'no objection Certificate' granted in favour of the 2nd respondent is an 'accordance with law, as such it cannot be interfered with; that the population of Bannur Town as on 5-1-76 was 16,991 as per the endorsement issued by the President, Town Municipal, council Bannur produced as Ex R-4; whereas the order granting. No objection certificate' was passed on 20. 4. 76, therefore the grant of 'no objection certificate' in favour of the second respondent cannot be said to contravene Rule 27 (2) (a) of the Rules as it stood then. No objection certificate' was passed on 20. 4. 76, therefore the grant of 'no objection certificate' in favour of the second respondent cannot be said to contravene Rule 27 (2) (a) of the Rules as it stood then. The learned counsel also further submitted that the objections raised by Hutcha Miyan on behalf of the Muslim Community of bannur having been withdrawn and the residents of Bannur Town having consented for the grant of 'no objection Certificate', it is not open for the petitioner to put forth the contention based on Rule 27 (1) (i) (ii) of the Rules to challenge the validity of the 'no objection Certificate'. He also further submitted that the petitioner has filed the writ petition after a lapse of 6 months from the date of grant of 'no objection certificate,' and by that time the 2nd respondent had taken up the construction and this aspect was brought to the notice of the court at the time of passing an interim order and accordingly, this court refused to grant an order of stay in favour of the petitioner by the order dated 6-12-76, though with an observation that the proceeding with the construction by the 2nd respondent would be at his risk; but thereafter, the 2nd respondent has completed the construction by investing huge amount; hence, it is" not a case for the exercise of extraordinary jurisdiction of this Court at the instance of the petitioner who is already having a permanent theatre and does not want that another theatre should come up at Bannur town. ( 6 ) SRI K. Chandrasekharan, the counsel i'or respondents 3 and 4, submitted that the site in question, having been located very close to the burial ground of Muslim community, the applicants being muslims, are entitled to urge before this court that the grant of no objection certificate is illegal even though respondents 3 and 4 have not filed any objections before the 1st respondent. ( 7 ) BEFORE dealing with the contentions raised on behalf of the petitioner, the contentions raised by respondents 3 and 4 can be disposed of. Respondents 3 and 4 were not objectors before the 1st respondent that being so, merely because they have been, allowed to come on record at their risk, their contentions cannot be considered. This Court in. the case of Kishandas Dalwani v. Addl. Dist. Magistrate Bangalore (1977) 2 Kar. Respondents 3 and 4 were not objectors before the 1st respondent that being so, merely because they have been, allowed to come on record at their risk, their contentions cannot be considered. This Court in. the case of Kishandas Dalwani v. Addl. Dist. Magistrate Bangalore (1977) 2 Kar. LJ. 478. has held that a person claiming to be a member of the public interested in due and proper administration of law governing the Cinemas in the City cannot maintain a writ petition challenging an order of the Dist. Magistrate granting permission to the licensee. This principle of law applies to respondents 3 and 4, inasmuch as, if they could not have challenged the order as petitioners under Art 226 of the constitution, it cannot be said that they are entitled to urge the very same grounds as respondents. Therefore the contentions raised on behalf of respondents 3 and 4 cannot be considered in this petition. Having regard to the contentions raised on behalf of the petitioner and respondent no. 2, the following points arise for consideration. (I) Whether the -petitioner can be said to be an aggrieved person so as to maintain the writ petition under Art. 226 of the Constitution; (II) Whether the 'no objection certificate' granted in favour of the petitioner can be said to have been vitiated by reason of the contentions raised by the petitioner based on Rule 27 (2) (a) and 27 (1) (i) (ii) of the rules; (III) Whether as contended by the petitioner it was necessary for the 1st respondent to take a separate decision prior to the consideration of the matter under Rules 26 and 27 of the Rules, to limit the number of places in any area in respect of which licences under the act, may be granted. ( 8 ) TAKING the first point, the petitioner being a person already giving cinematograph exhibition, has filed the objections before the 1st respondent. The Supreme Court, in the case of Jasbhai Motibhai Desai v. Roshan kumar AIR 1976 SC. 578 . while dealing with the contention relating to the aggrieved person has held as follows:"now let us apply these tests to the case in hand. The Act and the rules with which we are concerned are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. 578 . while dealing with the contention relating to the aggrieved person has held as follows:"now let us apply these tests to the case in hand. The Act and the rules with which we are concerned are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. They only regulate the exercise of private rights of an individual to carry on a particular business on his property. In this context, the expression "person aggrieved" must receive a strict construction. Did the appellant have a legal right under the statutory provisions or under the general law which has been subjected to or threatened with injury? The answer in the circumstances of the case must necessarily be in the negative. The Act and the Rules do not confer any substantive justifiable right on a rival in cinema trade, apart from the option, in common with the rest of the public, to lodge an objection in response to the notice published under Rule 4. The appellant did not avail of this option. He did not lodge any objection in response to the notice, the due publication of which was not denied. No explanation has been given as to why he did not prefer any objection to the grant of the No objection certificate before the Dist Magistrate or the Government. Even if he had objected before the Dist. Magistrate and failed, the Act would not give him a right of appeal. Sec. 8a of the Act confers a right of appeal to the State Govt. only on any person aggrieved by an order of a licensing authority refusing to grant a licence, or revoking or suspending any licence under Sec. 8. Obviously, the appellant was not a "person aggrieved" within the contemplation of Section 8a. " ( 9 ) SIMILARLY, the Karnataka cinemas (Regulation) Act, also does not give any right of appeal to the objector against the order granting "no objection certificate". This court, in the case of Jaydramappa v. State of Mysore ILR 1973 Kar. 1. , has held as follows:"the Question turns on the meaning to be given to Secs. 5 and 10 of the Act. Sec. 5 does not specifically provide for the grant of a 'no objection Certificate'. This court, in the case of Jaydramappa v. State of Mysore ILR 1973 Kar. 1. , has held as follows:"the Question turns on the meaning to be given to Secs. 5 and 10 of the Act. Sec. 5 does not specifically provide for the grant of a 'no objection Certificate'. But, this court in Channagiri Rangappa and sons v. District Magistrate, Chitradurga (1971) 1 Mys LJ 607 has held that: "a 'no objection certificate' is in substance, merely the first stage in the grant of a licence for the cons' ruction of a cinema theatre on a particular site or for conversion of existing premises into a cinema theatre. A 'no objection certificate' is a part of a licence. " 'if a 'no objection Certificate' is a part of a licence, the decision to grant it, would fall under Section 5. Sec. 5 (3) provides that where the licensing authority refuses to grant the license, it shall do so by an order communicated to the applicant giving the reasons for such refusal. The Section does not state that a decision of the licensing authority should be communicated to any of objector. The communication to the applicant is made obligatory because, Section 10 provides for him a right of appeal. He could prefer an appeal within 30 days from the date of the receipt of the communication of the refusal to grant a licence. The objector may be a person aggrieved within the meaning of the first part of section 10; but, in searching for the policy that underlies the provision, we think it must be borne in mind that whatever meaning may be given to the words "any person aggrieved" in Section 10 the provision is controlled by the latter part of the said section, which, in turn, has a direct reference to Section 5 (3) of the Act. By reading Sections 10 and 5 (3) together our conclusion is that the appeal is 'against the decision of the licensing Authority' and that decision is a decision to refuse to grant a license under S. 5. It is thus available only to the applicant and not to an objector". By reading Sections 10 and 5 (3) together our conclusion is that the appeal is 'against the decision of the licensing Authority' and that decision is a decision to refuse to grant a license under S. 5. It is thus available only to the applicant and not to an objector". So the position of an objector under the Karnataka Act is similar to the position of an objector under the bombay Act inasmuch as under the bombay Act also, the objector has not been given a right of appeal and similarly under the Karnataka Act as per the aforesaid decision of this court, the objector has no right of appeal and it is only the person who has applied for a licence is having a right of appeal against the refusal to grant the licence or no objection certificate Thus, the Act itself does not consider it necessary that the objector should be given a right of appeal. In the aforesaid decision of the supreme Court, it has been further held that the persons, who are residing adjoining to the building where the cinema threatre is proposed to be erected, can be considered to be aggrieved persons. The petitioner is not one such. It was however contended that s. 6 of the Act specifically provides that the licensing Authority shall, in deciding whether to grant or refuse a license take into consideration any representations made by persons already giving cinemotograph exhibitions in or near the proposed locality; therefore, it was contended that a special right has been given to the persons already giving cinemotograph, exhibitions, as such the petitioner must be considered to be an aggrieve person for the purpose of exercising the jurisdiction under Art. 226 of the constitution. Merely because the representations of the petitioner as a person already giving cinemotograph exhibition are to be taken into consideration for the purpose of S. 6 of the Act, it does not follow that the petitioner must be considered to be an aggrieved person as long as no legal injury can be said to have been caused to the petit-oner by granting 'no objection Certificate' to the 2nd respondent The interest of the petitioner, if anv, is only a commercial interest. Further under Rule 26 of the Rules any member of tbe public can file the objections Therefore, the petitioner cannot claim any special right or status by reason of the fact that he is already giving cinemotograph exhibition. Tf the contention of Sri Sridharan is to be accepted every person filing the obiertions will have to be considered to be an agrieved person Such an internretation is not possible having regard to the fact that the Act itself does not clothe persons like that of the petitioner with the right of appeal therefore, in view of fhe afore said decision of the Supreme Court and also in view of the decision of a division Bench of this Court referred to above, as an objector has no right of appeal against the order granting licence or no objection certificate, i hold that the petitioner cannot be considered to be an aggrieved person for the purpose of exercising the jurisdiction under Art 226 of the constitution. Accordingly, the first point is held against the petitioner ( 10 ) EVEN otherwise, I shall now consider the merits of the other contentions urged on behalf of the petitioner. The 2nd point is that the grant of 'no objection certificate' is vitiated because it is violative of rule 27 (2) (a) and 27 (1) (ii) of the rules. As far as the contention based on Rule 27 (2) (a) is concerned, the population of Bannur town according to the endorsement (Ex R-4) issued by the President of the Town Municipal Council, Bannur, the correctness of which was not disputed, as on 5-1-76 as per 1976 Census, was 16,991. That being so, merely because a wrong figure has been mentioned in the order of the first respondent, it cannot be said that the population of Bannur town was only 14,543 and not 16991 at the relevant point of time. Thus, even as per Rule 27 (2) (a) of the rules as it stood then, the population of Bannur town was more than 15,000; as such, there was scope for granting 'no objection Certificate' for establishing one more permanent cinema theatre at Bannur town. Accordingly, it cannot be held that the grant of 'no objection certificate' to the 2nd respondent was in violation of Rule 27 (2) (a) of the Rules. Accordingly, it cannot be held that the grant of 'no objection certificate' to the 2nd respondent was in violation of Rule 27 (2) (a) of the Rules. Regarding the other ground based on on Rule 27 (1) (ii) of the Rules, the contention put forth by the members of the muslim community of the area, had been withdrawn, during the course of the proceeding before the 1st respondent and this fact has already been adverted to and this has also been clearly stated in the impugned order of the District Magistrate. In this connection, it is also relevant to notice that the District Magistrate has been empowered under the proviso to Rule 27 (1) (i) of the Rules to relax all or any of the conditions specified in items (i) to (vi) of Rule 27 (1) (i) of the Rules. In this case the District Magistrate has inspected the site and has taken into consideration the existence of the burial ground and has come to the conclusion that the cinema site in question is suitable. Further, the interest of the muslim community has been sufficiently safeguarded by imposing certain conditions. Added to this, the petitioner himself is having his own theatre for the last several years, on the northern side of the burial ground in question. Apart from the fact that this contention cannot be entertained at the instance of the petitioner in this writ petition, the grant of no objection certificate cannot also be held to be contrary to Rule 27 (1) (i) (ii) of the Rules, having regard to the power of relaxation enjoyed by the district Magistrate under the proviso to Rule 27 (1) (i) of the Rules. Hence, the second point also is held against the petitioner. ( 11 ) THE third point raised for consideration cannot also be acceded to because while determining as to whether "no objection certificate" is to be granted in. accordance with the rules 26 and 27 of the Rules, the District Magistrate if he comes to the conclusion, that the necessary requirements are complied with and there is no objection whatsoever for granting the "no objection certificate" for locating a permanent cinema theatre, will in effect be taking a decision about the necessity of granting a licence for another cinema theatre. It is not necessary that a separate decision should be taken before proceeding under rules 26 and 27 of the Rules. In fact, Rules 26 and 27 of the Rules framed under the Act, are in conformity with Ss. 6 and 7 of the Act. The District Magistrate while following these Rules will have necessarily complied with the requirements of Ss. 6 and 7 of the Act. In fact, as per Rule 27 of the Rules, no objection certificate for locating a permanent cinema theatre cannot be granted unless there is a scope for establishing a theatre. Therefore, the contention that the District Magistrate ought to have first decided to limit the number of places in Bannur town in respect of which, the licences under the Act, may be granted before considering the application of the petitioner for grant of no objection certificate cannot be accepted. ( 12 ) AS already pointed out, the 2nd respondent had made all the preparation for the construction of the theatre in the year 1976 itself and the application of the petitioner filed for an interim order restraining the 2nd Respt from proceeding with the construction, was rejected on 6-12-76. Now, the 2nd respondent has completed the construction and a memo also has been filed on behalf of the 2nd respondent that the construction of a permanent cinema theatre on the site in question has already been completed and it is ready for exhibition. Thus, in view of the fact that the construction of the theatre has been completed and also in view of the findings. recorded above i do not think it is a case for interference under Article 226 of the constitution. Accordingly, the writ petition fails and the same is dismissed. Rule is discharged. --- *** --- .