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Madhya Pradesh High Court · body

1989 DIGILAW 71 (MP)

SAKI v. STATE OF M. P.

1989-02-24

A.G.QURESHI, R.K.VERMA

body1989
R. K. VERMA, J. ( 1 ) THIS order shall also govern the disposal of Miscellaneous Petition No. 512 of 1988 (Sirajuddin and two others v. State of M. P. and two others ). ( 2 ) BY this petition under Art. 226 of the Constitution, the petitioners-objectors have sought quashing of the order dt. 2-6-1986 (Annexure-P-28) and the no objection certificate dt. 3-6-1986 (Annexure-P-29) issued by the District Magistrate, Khargone, the Licensing Authority under R. 6 of the M. P. Cinema (Regulation) Rules, 1972 in favour of respondent 3 Akram Khan, who was thereby allowed the camping site of touring cinemas as proposed by him in village Balkhad. ( 3 ) BY the other petition M. P. 512 of 1988 the petitioners have sought quashing of the order dt. 4-4-1988 of the Licensing Authority and the no objection certificate issued by him to the respondent 3 Akram Khan, who has been thereby allowed the camp site of his touring cinema as proposed by him in village Balsamand. ( 4 ) BEFORE stating the facts of the present case and contentions based on the legal provisions relating to licensing of cinema, it would be useful to set out certain relevant provisions hereunder. ( 5 ) CINEMATOGRAPH exhibition is required to be licensed under S. 3 of the M. P. Cinemas (Regulation) Act, 1952 (hereinafter referred to as the Act) which provides as follows :-"3. Cinematograph exhibition to be licensed,- save as otherwise provided in this Act, no person shall give an exhibition by means of a cinematograph else where than in a place, licensed under this Act, or otherwise than in compliance with any conditions and restrictions imposed by such licence. "the District Magistrate is the Licensing Authority as provided under S. 4 of the Act. S. 5 (1) of the Act provides that the Licensing Authority shall not grant a license under the Act unless it is satisfied that the Rules made under the Act have been substantially complied with and adequate precautions have been taken in the place in respect of which the licence is to be given, to provide for the safety of persons attending exhibitions therein. S. 5 (2) of the Act provides that subject to the control of the State Government, the Licensing Authority may grant licenses under the Act to such persons as that Authority thinks fit and on such terms and conditions and subject to such restrictions as it may determine. ( 6 ) IN exercise of the powers conferred by S. 9 of the Act the State Government has made Rules called the M. P. Cinemas (Regulation) Rules, 1972 (hereinafter referred to as the Rules ). ( 7 ) THE detailed provisions in the Rules refer to three stages in the process of licensing a cinema house, namely (1) no objection certificate for the site on which the cinema house is to be constructed: (2) licence for the building conforming to the Rules where films are to be exhibited; and (3) licence for exhibition of films. ( 8 ) IN the instant case we are concerned with the first stage only, i. e. the stage of no objection certificate in respect of the site for camping a touring cinema. ( 9 ) RULES 3 to 6 of the Rules deal with the procedure for grant of no objection certificate. Rules 88 to 91 provide for application for and grant of permission to build a cinema house. Rules 100 and 101 provide for application for grant of cinema licence for exhibiting the films in the cinema house by means of cinematographs. ( 10 ) RULE 3 of the Rules provides that any person desirous of erecting a cinema or converting existing premises into a cinema shall first make public his intention to so do by exhibiting a notice in the prescribed Form A on a board such that it can be plainly seen from the public thoroughfare upon which the site of such proposed cinema abuts. Such a person shall also give a similar notice in writing to the Licensing Authority and make an application to the Licensing Authority for the grant of no objection certificate specifying therein, whether the application is in respect of a permanent cinema or a touring cinema. The application shall be accompanied by a plan of the proposed site. Rule 4 requires the Licensing Authority to invite objections by a notification in the prescribed Form B and to specify the period within which the objection shall be lodged with it. The application shall be accompanied by a plan of the proposed site. Rule 4 requires the Licensing Authority to invite objections by a notification in the prescribed Form B and to specify the period within which the objection shall be lodged with it. The Licensing Authority shall also consult the Executive Engineer and Sub-Divisional Officer concerned in respect of the proposed site. ( 11 ) ON the expiry of the period for the receipt of the objections the Licensing Authority is required under R. 5 to submit a report to Government in Form C with his recommendation whether a no objection certificate should he granted or not. On consideration of the report of the Licensing Authority the Government may grant permission for the issue of no objection certificate to the applicant or may refuse to grant the same. ( 12 ) THE explanation to R. 5 provides that in the case of touring cinema, previous sanction of the Government to the grant of no objection certificate under this Rule shall be necessary only in respect of the site where the touring cinema proposes to make its first camp and in respect of subsequent camping sites the no objection certificate shall be granted by the Licensing Authority itself after the procedure laid down in Rr. 3 and 4 is complied with. In R. 6 it is provided that the Licensing Authority may, with the previous permission of the Government grant a certificate to the applicant in Form D that there is no objection to the location of the cinema at the site notified by the applicant under R. 3. It is further provided that the no objection certificate shall be valid for a period of 2 years from the date of issue in the case of permanent cinemas and six months in the case of touring cinemas. ( 13 ) IN the instant case the respondent 3 Akram Khan made an application to the Licensing Authority for grant of a no objection certificate in respect of camp site for touring cinema in village Balkhad as proposed by him on 19-6-1985, A notice in Form A as required under R. 3 was also exhibited on 19-6-85. The District Magistrate, Khargone as the Licensing Authority published a Notification dt. 26-6-85 in Form B inviting objections within 30 days of the date of its publication. The District Magistrate, Khargone as the Licensing Authority published a Notification dt. 26-6-85 in Form B inviting objections within 30 days of the date of its publication. The petitioners and others preferred objections before the District Magistrate/licensing Authority against the grant of no objection certificate. After considering the objections and making enquiries through the Sub-Divisional Officer, Mandleshwar and also consulting the Executive Engineer and the Sub-Divisional Officer the Licensing Authority passed an order dt. 2nd June, 1986 (Annexure-P-28) where by he rejected the various objections of the objectors including the petitioners' and granted a no objection certificate under R. 6 of the Rules in respect of the camp site for touring cinema as proposed by the respondent applicant Akram Khan, and accordingly issued a no objection certificate dt. 3-6-1986 in Form D under R. 6 in favour of the respondent Akram Khan, the duration of validity of the no objection being six months. While considering the objections of the objectors in respect of the no objection certificate for the camp site proposed by Akram Khan, respondent 3, the Licensing Authority had also received the recommendation for grant of no objection certificate of the Executive Engineer and the Sub-Divisional Officer, P. W. D. in Form C referred to in R. 5 as per Annexure-R-2 filed with the return of the respondents 1 and 2. ( 14 ) SUBSEQUENTLY on the application of respondent 3 dt. 19-11-86, the cinema license for exhibition of films in village Balkhad was also granted to the respondent 3 by the Licensing Authority on 24-11-86 for the period 24-11-86 to 31-1-87. ( 15 ) THE respondent 3 subsequently applied for a no objection certificate for a camping site at village Balsamand in respect of a touring cinema in accordance with R. 3 and the Licensing Authority published the Notification dt. 28-11-87 as required by R. 4 inviting objections from the objectors. The petitioners and others objected to the grant of no objection certificate in respect of the proposed camp site for the touring cinema of respondent 3. The Licensing Authority, after enquiry into the objections through the Tahsildar, Kasrawad and consulting the various departments and the Sub-Divisional Officer, PWD passed an order dt. 4th Apr. The petitioners and others objected to the grant of no objection certificate in respect of the proposed camp site for the touring cinema of respondent 3. The Licensing Authority, after enquiry into the objections through the Tahsildar, Kasrawad and consulting the various departments and the Sub-Divisional Officer, PWD passed an order dt. 4th Apr. , 1988 whereby he, after considering all the objections rejected them and granted a no objection certificate apparently under R. 6 in favour of respondent 3 and issued a no objection certificate dt. 4-4-1988. The order and the no objection certificate dt. 4-4-1988 are annexed as Annexure-P-22 and Annexure-P-23 to the other petition M. P. 512 of 88 wherein a writ of certiorari has been prayed for to quash the order and the no objection certificate dt. 4-4-1988. While considering the objections against the grant of no objection certificate in favour of respondent 3 the Licensing Authority had also before it the recommendation of the Executive Engineer and the Sub-Divisional Officer, PWD, Mandleshwar in Form C prescribed under R. 5 whereby the grant of no objection certificate in respect of the proposed site for camping the touring cinema in village Balsamand, was recommended. ( 16 ) LEARNED counsel for the petitioners has submitted that the Licensing Authority has not followed the procedure as required under the Rr. 5 and 6 and as such grant of no objection certificate and the cinema licence based on such certificate is invalid. Section 5 of the Act in peremptory terms lays down that the Licensing Authority shall not grant a licence under the Act unless it is satisfied that the Rules made under the Act have been substantially complied with. Rule 101 of the Rules provides for grant of cinema licence and the Licensing Authority under that Rule on receipt of documents and certificates, including the no objection certificate issued under R. 6, being satisfied that all the necessary Rules have been complied with may grant the licence for a cinema in Form E to the applicant on such terms and conditions and subject to such restrictions as the Licensing Authority may determine. Under R. 5 of the Rules it is the State Government which grants permission for the issue of no objection certificate on consideration of the report of the Licensing Authority. Under R. 5 of the Rules it is the State Government which grants permission for the issue of no objection certificate on consideration of the report of the Licensing Authority. As per Explanation under R. 5 in case of a touring cinema previous sanction of the Government to the grant of no objection certificate is necessary in respect of the first camping site of such touring cinema. However, for subsequent camping sites the Licensing Authority itself has the power to grant the no objection certificate after the procedure laid down in Rr. 3 and 4 is complied with. ( 17 ) IT is the contention of the learned counsel for the petitioners that in the instant case it was not the State Government which granted permission or sanction for the issue of no objection certificate to the applicant respondent 3 in respect of his touring cinema called the Suraj Touring Talkies at Balkhad, but it was the Licensing Authority itself which granted the no objection certificate. The grant of no objection certificate by the Licensing Authority in respect of the touring cinema of respondent 3 was, therefore, in non-compliance with the provisions of R. 3 and as such the no objection certificate was invalid. ( 18 ) LEARNED Government Advocate appearing on behalf of the respondents 1 and 2 has submitted that the State Government had accorded previous permission to the grant of no objection certificate in respect of the location of the touring cinema under R. 6 of the Rules and in this regard the learned Government Advocate referred to a Circular dt. 5/7th Jan. , 1987 (Annexure-R-3) issued by the State Government (Cultural Department) to all the District Magistrates of the State, which discloses that in the cases of grant of no objection certificate to the touring cinemas, the State Government had empowered the District Magistrate (Licensing Authority) to grant no objection certificate during the period up to 30-4-1986. By the Circular Annexure-R-3 the State Government sought to extend the period of delegation of power for grant of no objection certificate from 1-5-1986 to 30-4-1987. By the Circular Annexure-R-3 the State Government sought to extend the period of delegation of power for grant of no objection certificate from 1-5-1986 to 30-4-1987. ( 19 ) THE no objection certificate for the touring cinema called Suraj Touring Talkies at Balkhad was given in the instant case by the Licensing Authority on 3-6-1986 i. e. during the period 1-5-86 to 30-4-87 for which delegation of power by the State Government in favour of the Licensing Authority in the matter of grant of no objection certificate, was extended on 5/7th Jan. , 1987 as per Annexure-R-3. ( 20 ) RULE 6 (1) empowers the Licensing Authority by virtue of previous permission of the Government, to grant a certificate to the applicant that there is no objection to the location of the cinema at this site notified by him under R. 3. The position in the instant case is that when the Licensing Authority granted no objection certificate in respect of the touring cinema of the applicant respondent 3 on 3-6-1986 there was no previous permission of the Government in that behalf, Since the earlier Circular delegating the power to grant the no objection certificate issued by the State Government in favour of the Licensing Authority had expired on 30-4-1986. The subsequent circular Annexure-R-3 dt. 5/7th January, 1987 extends the delegation of power for grant of no objection certificate in favour of the Licensing Authority with retrospective effect i. e. with effect from 1-5-1986. Such delegation of power with retrospective effect is clearly not permissible on a plain reading of the provisions of R. 6. The previous permission of the Government for grant of no objection certificate must be with the Licensing Authority prior to the grant of the certificate. If the Licensing Authority were to grant the no objection certificate first and the permission of the Government in that behalf were to be accorded later on, as has been the situation in the instant case, it would be a case of ratification and not previous permission. The extension of delegation of power to grant no objection certificate in favour of the Licensing Authority by the State Government by Annexure-R3 made on 5/7th Jan. , 1987 with effect from 30-4-1986 in the past cannot impart validity to the no objection certificate issued between 30-4-1986 and 5/7th Jan. The extension of delegation of power to grant no objection certificate in favour of the Licensing Authority by the State Government by Annexure-R3 made on 5/7th Jan. , 1987 with effect from 30-4-1986 in the past cannot impart validity to the no objection certificate issued between 30-4-1986 and 5/7th Jan. , 1987 since the essential condition of previous permission of the Government would be non-existent. As such we hold that the no objection certificate granted by the Licensing Authority in favour of respondent 3 on 3-6-1986 without previous permission or previous sanction of the State Government in respect of the first camping site for the touring cinema at Balkhad was invalid. ( 21 ) THE learned Government Advocate has submitted that the period of no objection certificate in respect of camping site of touring cinema at Balkhad and the cinema licence granted on that basis had expired and as such this petition has become infructuos. ( 22 ) LEARNED counsel for the petitioner has contended that the grant of no objection certificate dt. 4-4-1988 by the Licensing Authority in respect of the subsequent camping site of the touring cinema at Balsamand which is under challenge in the other petition No. 512 of 88 has admittedly been granted without previous sanction of the State Government on the basis of Explanation under R. 5 on the assumption that the earlier no objection certificate granted in the case of touring cinema of respondent 3 at Balkhad was with the previous sanction of the State Government which was an essential condition in respect of the first camp site of the touring cinema. The contention of the learned counsel deserves to be accepted. The earlier no objection certificate in respect of the site where the touring cinema called the Suraj Touring Talkies proposed to make its first camp at Balkhad was invalid as held earlier and, therefore, it cannot form the basis for grant of second no objection Certificate in respect of subsequent camping site at Balsamand by the Licensing Authority without previous sanction of the Government under the Explanation to R. 5 of the Rules. Issuance of an invalid no objection certificate cannot be reckoned as a grant of no objection Certificate in respect of first camping site of touring cinema. ( 23 ) IN the light of the view we have taken, the order of the Licensing Authority dt. Issuance of an invalid no objection certificate cannot be reckoned as a grant of no objection Certificate in respect of first camping site of touring cinema. ( 23 ) IN the light of the view we have taken, the order of the Licensing Authority dt. 4-4-1988 granting no objection certificate in respect of the subsequent site of the touring Cinema at Balsamand and the no objection certificate dt. 4-4-1988 issued to the applicant respondent, 3 are liable to be quashed being in non-compliance with the Rr. 5 and 6 of the Rules. ( 24 ) THIS petition, in our opinion, has become infructuous, the no objection certificate, in respect of camping site at Balkhad having already expired, but the grant of no objection certificate in respect of subsequent site of touring cinema at Balsamand cannot be sustained in law being invalid as already held. ( 25 ) IN the result this petition is dismissed as infructuous. The other petition M. P. No. 512 of 1988 succeeds and is hereby allowed. The order dt. 4-4-88 (Annexure-P-22) passed by the Licensing Authority granting no objection certificate in respect of camp site of touring cinema called Suraj Touring Talkies at Balsamand and the no objection certificate dt. 4-4-1988 (Annexure-P-23) issued by the Licensing Authority are hereby quashed. The petitioners shall be entitled to get costs from the respondents in M. P. No. 512 of 1988 only. The outstanding security deposit in this petition as well as in M. P. No. 512 of 1988 shall be refunded to the petitioners after verification. Order accordingly. .