SYED MOHAMMAD v. DISTRICT MAGISTRATE, BANGALORE — 1980 DIGILAW 1 (KAR)

K. S. PUTTASWAMY, J. ( 1 ) IN this petition under Art. 226 of the constitution, the petitioner has challenged the order dated 3-12-1979 of the district Magistrate, Bangalore Dt. Bangalore (hereinafter referred to as 'the D. C. ') in Case No. MAG (2) 58/77 78 (Ex-B) rejecting his application for re-grant of licence. ( 2 ) ON 14-2-1975, the petitioner applied to the D. M. under the, provisions of the Karnataka Cinemas (Regulation) Act, 1964 (Karnataka act No. 23 of 1964) (hereinafter referred to as the Act) and the rules framed thereunder for grant of a No objection Certificate (hereinafter referred to as 'the NOC') for locating a touring cinema on Sy. No. 41 of marenahalli village, Bangalore South taluk, owned by one Sri K. Varadharaj. As required by the Act and the Rules, the D. M. notified the substance of the said application, which was opposed by certain persons and organisations but was supported by certain persons and organisations of the locality. On a consideration of the objections and representations and the claim of the petitioner thereto the D. M. by his order dated 28-7-J975 over-ruled the objections and directed the issue of an noc to the petitioner for locating a touring cinema on the said land in pursuance of which an NOC in Form- d was also issued to him on 29-7-1975. On the strength of the said NOC the petitioner constructed a touring cinema and applied to the D. M. for issue of a licence. On 8-10-1975, the D. M, issued a licence to the petitioner for a period of three months with a condition that he should produce a conversion certificate for utilising the land for non-agricultural purposes. Even before the issue of the said licence, the petitioner produced an authenticated certificate issued by the Tahsildar permitting the conversion of the aforesaid land to non-agricultural purposes. On the expiry of the said term specified in the said licence, the petitioner has been obtaining renewals from time to time and has been running a touring cinema on the said land and the last licence issued to him, which has given rise to this writ petition, was valid upto 8-10-1979. Before the expiry of the said licence, the petitioner applied for regrant of the licence. Even before the petitioner had applied for re-grant respondent-No. 2 who. Before the expiry of the said licence, the petitioner applied for regrant of the licence. Even before the petitioner had applied for re-grant respondent-No. 2 who. claims to be the managing partner of a. permanent theatre called 'swagath' situated at jayanaga, had presented a petition before the D. M. on 28-6-1979 objecting to the re-grant of renewal of five touring talkies, one of which was that of the petitioner, which are stated to be located within 1. 6 kilo metres from his threatre. In the said petition, respondent No. 2 claimed that he was entitled to object to the re-grant of the licence to the petitioner and others on the basis of an order made by a Division Bench of this court in Sree Balaji v. State of Karnataka, W. A. 256/79 dt. 19-6-79. On merits he contended that the touring cinema of the petitioner was situated within 1. 6 kilometres of the permanent theatre, that the lands on which the petitioner and others were running their touring cinemas were agricultural lands and the lease of the same was prohibited by the provisions of the Karnataka Land reforms Act. On 19-11-1979, the D. M. heard the petitioner and respondent No. 2 and posted the case to 3-12-1979 for orders, renewing the licence till that date, as an interim measure. By his order dated 3-12-1979 (Ext-B) the d. M. has rejected the application for these reasons: rule 89 (2) of the Karnataka cinemas (Regulation) Rules, 1971 defines a touring cinema as: - 89 (2) 'touring cinema' means- (i) an outfit comprising the cinema apparatus and plant and the accesseries taken from place to place in the State of Karnataka for giving cinema exhibitions: or (ii) an outfit comprising cinema apparatus and plant taken from place to place in the State of Karnataka for conducting shows in any local theatre or hall. These definitions have an element of mobility attached to the touring cinemas But, it is general experience that touring cinemas have become as permanent as the permanent theatres which is contrary to the definition itself. Besides in the instant case there is a civil dispute about the site in question. It is not clear whether the petitioner has valid and legal possession of the site. A lease was said to have been created on 6-2-1975. It is not clear whether the same is valid even to-day. Besides in the instant case there is a civil dispute about the site in question. It is not clear whether the petitioner has valid and legal possession of the site. A lease was said to have been created on 6-2-1975. It is not clear whether the same is valid even to-day. The land in question is an agricultural land bearing Sy. No. 41. Even if the lease has been continued it is to the deteriment of S. 5 of the Karnataka Land Reforms act and cannot sustain. Considering all these facts the case for the re- grant of licence of the instant touring talkies fails and the licensing authority refuses to re-grant the licence beyond 3rd December, 1979. In the course of his order, the D. M. has not specifically considered the question whether respondent No. 2 was entitled to object, though the petitioner specifically contended that he was not entitled to object and to be heard. As the D. M. has heard respondent No. 2 as an objector and has considered his grievance and has virtually accepted his case on merits the petitioner has rightly impleaded him as a party but has e intended that he had no locus standi to object and to be heard by the ( 3 ) SRI H. B. Dattr, learned counsel for the petitioner at the forefront contended that in considering and deciding an application for re-grant made by a licensee of a touring cinema, invitation of objections and representations by anybody more so, by a rival cinema operator whether permanent or touring, was impermissible and, therefore, a rival cinema operator cannot object, and cannot be heard by the D. M. In support of his contention sri Datar strongly relied on the ruling of the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar, Haji bashir Ahmed, air 1976 SC 578 . ( 4 ) SRI R. U. Goulay, learned counsel for respondent No. 2 urged that in law an application for re-grant is also an application for a licence to which a rival cinema operator has a right to object. In support of his contention, sri Gouley strongly relied on the observations of the Division Bench in sree Balaji Theatre's case (1 ). and the ruling of the High Court of Madras in Cumbum Roadways (P) Ltd v. Somu Transports (P) Ltd, AIR 1965 Mad. 79 . In support of his contention, sri Gouley strongly relied on the observations of the Division Bench in sree Balaji Theatre's case (1 ). and the ruling of the High Court of Madras in Cumbum Roadways (P) Ltd v. Somu Transports (P) Ltd, AIR 1965 Mad. 79 . ( 5 ) THE Act, nowhere uses the term 'noc' but consistently uses the term 'licence' without defining that term. An NOC, a creature of the Rules, can be traceable to S. 11 of the Act and the other powers of the Government to frame Rules. An NOC which is the very first step to the grant of a licence is treated as part of a licence to be granted under the Act. In the Mysore cinema (Regulation) Act of 1952 (Mys. Act No. 31 of 1952) (hereinafter referred to as the Mysore Act and the Rules framed thereunder, which is one of the acts repealed by the uniform Act that came into force on 15-3-1971, there were similar provisions to those found in the Act. In examining an NOC granted under the Mysore Act and its legal effect, a Division Bench of this court in Channagiri Rangappa and sons v. Dist. Magistrate, Chitradurga (4), speaking through Chandrashekhar, j. , (as he then was) has stated thus:"a 'no objection' certificate is, in substance, merely the first stage in the grant of a licence for the construction 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. "the above principle enunciated in channagiri Rangappa's case (4) is equally applicable for grant of an NOC either for a permanent or a touring cinema under the Act and the rules and that principle has never been doubted in any case and has been consistently followed: ( 6 ) AN application for an NOC either for constructing a permanent cinema or for locating a touring cinema, has to be notified and respresentations made by persons that have a right to make representations under S. 6 of the Act, have to be considered by the authority and then only granted having regard to the factors enmerated in that section. When a grantee of an NOC constructs a permanent or a touring cinema in terms of the NOC and produces the requisite certificates, grant of a licence thereto is the rule and refusal is the exception. Original licences either for a permanent or a touring cinema are issued for a term. In the case of a permanent cinema a licence is required to be issued for a period of three years unless the authority for special reasons decides to issue the same for less than three years (vide Rule 37 of the rules ). In the case of a touring cinema, the maximum period for which a licence is issued is one year (vide rule 99 of the Rules ). On the expiry of the original term of the licence issued, the Act in specific terms does not regulate their re-grant or renewal, much less the manner and method of their re-grant or renewal. But, the rules fill that gap and provide for their re-grant or renewal from time to time. Very significantly the Rules do not declare that an application for re-grant or renewal of a licence should be treated as an application for grant of a licence and should be disposed of as if it was an application for grant of a licence. While the scheme of the Rules provide for opposition to an NOC, no such thing is contemplated before granting a licence or its re-grant or renewal. In these circumstances, either by applying the traditional strict construction or the progressive purposive construction of statutes, it would not be proper to hold that at the time of grant and more so at the re-grant or renewal of a licence, the act and the Rules provide for opposition. On the other hand, the scheme of the Act and the Rules provides for representations or objections, only to an application for an NOC. , consideration of such objections, determination of such objections at that stage only and at no other stage. In Channagiri Rangappa's case, (1971) 1 Mys. L. J. 60. On the other hand, the scheme of the Act and the Rules provides for representations or objections, only to an application for an NOC. , consideration of such objections, determination of such objections at that stage only and at no other stage. In Channagiri Rangappa's case, (1971) 1 Mys. L. J. 60. the Division Bench has stated the reasons for the above position in these words:"presumably, these two stages in licensing of cinema, are intended to eliminate expenditure and hardship that may result by allowing a person to construct a permanent theatre at huge expenditure and then refusing licence to run a cinema in that theatre on the ground of unsuitability of the situation of that threatre, or on the ground of objections of the public. If a 'no Objection' Certificate is granted to a person in respect of the proposed site after considering the objections that may be received, much of the risk and uncertainty is removed. If the grantee of a 'no objection' Certificate constructs the theatre on such site so as to conform to the conditions set out in Rule 11 and if the electrical installations are certified to be satisfactory by the electrical Inspectorate, the grant of a license ordinarily follows. "when a licence is required to be issued as a matter of course, it is difficult to (hold 'that at the time of re-grant or its renewal an existing cinema operator has a right to object to the same. In my considered opinion, the Act and the rules, exclude opposition by a rival cinema operator, as respondent No. 2, to a re-grant of touring cinema licence as the one sought by the petitioner. From this, it follows that respondent no. 2 had no right to object and was not entitled to be heard by the D. M. and the hearing afforded thereto was illegal. ( 7 ) AS respondent No. 2 has placed very strong reliance on the observations of the Division Bench in Sree Balaji theatres's case (1 ). to sustain his contention to oppose the re-grant sought by the petitioner, I propose to examine the same in some detail. ( 8 ) IN W. P. No. 11426 of 1978, the petitioner a touring cinema licensee had only challenged the vires of R 107 of the Rules before this Court. to sustain his contention to oppose the re-grant sought by the petitioner, I propose to examine the same in some detail. ( 8 ) IN W. P. No. 11426 of 1978, the petitioner a touring cinema licensee had only challenged the vires of R 107 of the Rules before this Court. In that case, one M/s Sree Balaji Theatres and respondent No. 2 filed an application under Order I, Rule 10 CPC to implead themselves as party respondents. On 20-12-1978 Rama Jois, J. , rejected the said application on the ground that the applicants were not necessary and proper parties to that writ petition. Against the said order of Rama, Jois, J. , the applicants in I. A. No. IX filed WA no. 256 of 1979 before this Court. As by the time the said Writ Appeal came up for consideration, the original writ petition had been disposed of, but, still the appellants, being permanent cinema operators, pressed their appeal and contended that they had a right to object for grant or re-grant of a touring cinema licence and were, therefore, entitled to be added as parties in that writ petition. While noticing that contention the Division Bench dismissed the said appeal in these words: as stated earlier, in W. P. No. 11426 of 1978, no order granting or renewing a licence had been impugned and only the validity of rule 107 had been impugned. The learned single Judge has not decided whether or not the applicants have locus standi to challenge any order of the licensing authority granting licence tot run a cinema talkies or renewing such licence. Hence, the impugned order cannot be understood as coming in the way of the present appellants challenging any order granting renewal of any licence to the writ petitioners or any other persons. Moreover the writ petition has since been disposed of. In the circumstances the impugned order of the learned single Judge does not call for interference in appeal. With respect, it appears to me, the division. Bench had no occasion to examine the specific and direct question that has arisen for consideration before me, much less it has expressed itself one way or the other on that question. In the circumstances the impugned order of the learned single Judge does not call for interference in appeal. With respect, it appears to me, the division. Bench had no occasion to examine the specific and direct question that has arisen for consideration before me, much less it has expressed itself one way or the other on that question. The locus standi of a permanent cinema owner like respondent No. 2 to object to a re-grant or renewal had not been considered and decided by the learned Single Judge as also by the appellate Bench in the said appeal. In my view, the Division Bench has not at all enunciated any binding principle as contended for respondent no. 2, At the highest, the above observations of the Division Bench, can only be read as stating that that question can be agitated by the appellants as and when an occasion arises, but cannot be read as concluding the question in their favour as was sought to be made out by them before the d. M. , who without a full and proper examination has impliedly accepted the same. For these reasons, the decision of the Division Bench in sree Balaji Theatres's case (1 ). cannot be read in the manner it was sought to be read before the D. M. and is of no assistance in deciding the precise question. ( 9 ) SRI Gouley, relied on a number of rulings dealing with an application for renewal of a permit under the motor Vehicles Act to sustain his argument that an application for re- grant should be treated as an application for a licence. ( 10 ) S. 58 (2) of the Motor Vehicles act in express terms directs that an application for renewal shall be treated and disposed of as an application for a fresh permit. By reason of section 58 (2) , an application for renewal is lequired to be notified, at which stage the other operators have a right to object as at the time of the original grant. But, that is not the position in the case of a re-grantor renewal of a licence either of a permanent or a touring talkies under the Act. In this view, the principles enunciated in the cases dealing with the renewal of permits under the motor Vehicles Act and more so in cumbum Roadways (P) Ltd, case (3 ). But, that is not the position in the case of a re-grantor renewal of a licence either of a permanent or a touring talkies under the Act. In this view, the principles enunciated in the cases dealing with the renewal of permits under the motor Vehicles Act and more so in cumbum Roadways (P) Ltd, case (3 ). have no application. ( 11 ) SRI Gouley, next contended that an NOC granted for locating a touring cinema unlike an NOC granted to construct a permanent cinema, would be valid for a particular term and on the expiry of such term a person desirous of running a touring cinema is required to obtain a fresh NOC at which svage a permanent cinema operator like respondent No. 2 who had no inserest while the original NOC was granted but had subsequently acquired an interest, was entitled to object to the re-grant of license. In support of his contention Sri Gouley strongly relied on the opinion of the full Bench of this Court in T. M. Sri Ramalu Naidu v. The Divisional commissioner, WP 798175 dated 1-9-78. In answer to this contention, Sri Datar urged that the petitioner had challenged the validity of the very rule restricting the term of the NOC and had obtained an interim order from the appellate Bench directing the D. M. to consider his application without reference to that Rule and, therefore, the opinion of the Full bench had no application at all. ( 12 ) IN my opinion, the submission of sri Goulay, does not really touch on the right of an existing permanent operator to object to a re-grant of license sought by a touring cinema licensee. In reality this submission touches only on the right of a permanent theatre owner to object to an noc which is required to be obtained under the Rules, Hence, this question has to be agitated by respondent No. 2 only when the petitioner makes an application for an NOC under the Act and Rules. A fortiori, the application of the principles enunciated by the full Bench in T. M. Sriramalu Naidu's case would arise only then and not before that. In this view, I do not propose to examine this aspect any further. A fortiori, the application of the principles enunciated by the full Bench in T. M. Sriramalu Naidu's case would arise only then and not before that. In this view, I do not propose to examine this aspect any further. ( 13 ) SRI Datar next contended that every one of the reasons given by the d. M. for rejecting the application for re-grant were either factually incorrect or irrelevant and were legally unsus- tainable. ( 14 ) THE first reason given by the d. M. is, that touring cinemas had ceased to be touring cinemas contrary to the intendment and spirit of the rules. The meaning given by the D. M. to the definition of a touring cinema occurring in Rule 89 (2) of the Rules and the general pattern of the touring cinemas berng permanent contrary to the spirit and the intendment of the rules is undoubtedly correct. But the question is whether that could have been a ground for the D. M. to consider in the present case. ( 15 ) AS in the case of many other touring cinema operators, who unsuccessfully challenged the validity of rules 96 (5) and 107 of the Rules, before a learned single Judge, the petitioner had filed, a writ appeal before this court and had obtained an order directing the D. M. to consider his application foe re-grant or renewal without reference to those rules which is still in force. The effect of the said interim order is that the operation of the said rules has been stayed so far as the petitioner is concerned. So long as the, said interim order issued by the division Bench is in force, the D. M. is bound by the said interim order and give effect to the same and cannot reject the application made by the petitioner on the ground that it rung counter to the scheme of the rules. As to what steps should be taken by him or by this Court to remove this anomalous position is another matter. But, that cannot be a ground for the d. M. to virtually circumvent the interim order, so long the said order is in force. Any re-giant to be made must be subject to the interim order of this court. In this view, the first reason given by the D. M. is, therefore, not legally sustainable. But, that cannot be a ground for the d. M. to virtually circumvent the interim order, so long the said order is in force. Any re-giant to be made must be subject to the interim order of this court. In this view, the first reason given by the D. M. is, therefore, not legally sustainable. ( 16 ) THE second reason given by the d. M. is that there is a civil dispute about the camp site in question. In this connection, he appears to doubt the existence of the lease and the legal possession of the petitioner for the camp site. In reaching the above conclusion, the D. M. has not really examined the records and has not recorded his finding on such an examination. From the records made available by the learned Government advocato, it is seen, that Sri K. Varadharaj, the owner and lessor of the site has not raised any objection on the validity and the continuity of the lease executed by him in favour of the petitioner. Secondly, no one has reported to the D. M. stating that there is a dispute between Sri K. Varadharaj, and the petitioner as to the possession of the camp site by the petitioner. Lastly, even respondent No. 2 had not stated that there is a dispute as to the 'lawful possession' of the petitioner to the camp site, the meaning of which has been explained by the supreme Court and this Court for the purposes of the Act. But, the records disclose that there are civil disputes between the petitioner and the owner of the cinema equipment with which he is running the touring talkies on the camp site, which in the nature of things cannot be construed as a dispute touching the camp site in question. In these circumstances, the second reason given by the D. M. is not factually correct and cannot be upheld. ( 17 ) THE last reason given by the D. M. is that the land is an agricultural land and its lease was violative of S. 5 of the Karnataka Land Reforms Act of 1961. ( 18 ) EARLIER, I have pointed out that the land has been converted into non- agricultural purposes as early as in the year 1972 and has ceased to be an agricultural land. ( 18 ) EARLIER, I have pointed out that the land has been converted into non- agricultural purposes as early as in the year 1972 and has ceased to be an agricultural land. Evidently, the D. M. has not examined the records and has been influenced by the general and vague objection raised by respondent no. 2 in holding that it is an agricultural land. Even assuming that the land is an agricultural land, as pointed by me in G. Sampath v. District Magistrate, Bangalore, WP 1s243/78 dt. 29/30-8-1979. such a question cannot be considered while issuing a licence, which principle applies with greater force to a case of re-grant of a licence. Hence, the third reason given by the DM. also is legally unsustainable. ( 19 ) IN considering the application made by the petitioner for re-grant, the D. M. has not considered whether the application made by him, conforms itself with all the rules, in particular, rule 105 (2) of the Rules. Whether an application conforms itself and the necessary certificates required thereto have been produced are all matters primarily for the D. M. to examine and decide. When that has not been done by him, the one and the only course that is open to this Court is to quash the impugned order and direct the D. M. to consider and dispose of the application made by the petitioner afresh. ( 20 ) EVEN though, I have held that respondent No. 2 is not entitled to be heard and that he cannot urge for the acceptance of his objections, law does not prevent the D. M. from taking into consideration any relevant information or ground placed by respondent No. 2 or others so far as the matters that are relevant to the enquiry before him, except thobe that are found to be impermissible in this order. But, before doing so, is is proper for the D. M. to state any such new ground to the petitioner and permit him to state his case to such grounds. ( 21 ) WITH the rejection of the application for re-grant and the refusal of this court to gra,nt an interim order enabling the petitioner to operate the talkies, his business is seriously affected. ( 21 ) WITH the rejection of the application for re-grant and the refusal of this court to gra,nt an interim order enabling the petitioner to operate the talkies, his business is seriously affected. In this view, it is just and necessary to direct the D. M. to consider and dispose of the application of the petitioner with all such expedition as is possible in the circumstances of the case and in any event within a period of 45 days from the date of receipt of the order of this court. ( 22 ) IN the light of my above discussion, I quash the impugned order and direct the District Magistrate, Bangalore, respondent No. 1 to consider and dispose of the application made by the petitioner for re-grant in accordance with law and in the light of the observations made in this order with all such expedition as is possible in the circumstances of the case and in any event, within a period of 45 days from the date of receipt of this order. ( 23 ) RULE issued is made absolute, ( 24 ) IN the circumstances of the case, i direct the arties to bear their own costs. ( 25 ) LET a copy of this order be communicated to the District Magistrate, Bangalore - respondent No. 1 within 10 days from this day. --- *** --- .