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Bhaskar Touring Talkies, Bangalore and ors. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 11426 of 1978
Judge
Reported in1979(1)KarLJ215
ActsKarnataka Cinemas (Regulation) Rules, 1971 - Rule 107; ;Code of Civil Procedure (CPC), 1908 - Order 1, Rules 10 and 107
AppellantBhaskar Touring Talkies, Bangalore and ors.
RespondentState of Karnataka and ors.
Excerpt:
.....a necessary party to a proceeding is one without whom no order can be made effectively and a proper party is one in whose absence though an effective order can be made, his presence is necessary for a complete and final decision on the question involved in the proceeding. because in a proceeding for certiorari, not only the authority, who passed the order, but also the person, who was a party to the proceeding and in whose favour the order was passed, is a necessary party, as held by the supreme court in udit narain singh's case air1963sc786 (supra). (ii) if an application is made by a touring cinema owner for the grant of licence and the same was not objected to either on account of inadvertence or for any other reason by a permanent cinema owner, whose theatre is located within..........is challenged in this writ petition reads as follows: '107. restrictions on the grant of touring cinema licences.- (1) no licence for a touring cinema shall be granted:-- (a) in respect of a site situated within a distance of 1.6 kilometers from a permanent cinema or 800 meters from the limits of such towns and cities. explanation.-for the purposes of this rule, 'distance shall be reckoned along the shortest pathway, lane, street or road connecting the two cinemas and generally used by members of the public. (2) subject to sub-rule (1), there shall be no other restrictions to grant licences for touring cinemas.' clause (a) of rules 107(1) provides that no licence for a touring cinema shall be granted in respect of a site located within a distance of 1. 6 kilometers from a permanent.....
Judgment:

1. In this writ petition, the petitioner, who is a owner of a touring talkies, has challenged the validity of R. 107 of the Karnataka Cinemas (Regulation) Rules, 1971. This application is filed under O. 1 Rule 10 of the Civil Procedure Code, 1908 By the three permanent cinema owners praying for a direction that they be impleaded as respondents to the writ petition. This application is resisted by the petitioners.

2. Sri K. K. Venugopal, learned counsel for the applicants submitted that Rule 107(1)(a) of the Rules specifically prohibits the location f a touring cinema within a distance of 1.6 kilometers from the location of a permanent cinema and Rule 107(1)(b) of the Rules prohibits the location of a touring cinema in and within a distance of 1.6 kilometers from the limits of town and cities having a population of 15,000 or more and, therefore, the applicants being permanent cinema owners are necessary parties or in any event proper parties to the writ petition as the rule is framed for their benefit and in any event they are proper parties to the writ petition.

3. The contention urged by Sri B. G. Sridharan, learned counsel for the petitioner is that the applicants are neither necessary nor proper parties and, therefore, the application is liable to be rejected.

4. R. 107 of the Rules, the validity of which is challenged in this writ petition reads as follows:

'107. Restrictions on the grant of touring cinema licences.-

(1) No licence for a touring cinema shall be granted:--

(a) in respect of a site situated within a distance of 1.6 kilometers from a permanent cinema or 800 meters from the limits of such towns and cities.

EXPLANATION.-For the purposes of this rule, 'distance shall be reckoned along the shortest pathway, lane, street or road connecting the two cinemas and generally used by members of the public.

(2) Subject to sub-rule (1), there shall be no other restrictions to grant licences for touring cinemas.' Clause (A) of Rules 107(1) provides that no licence for a touring cinema shall be granted in respect of a site located within a distance of 1. 6 kilometers from a permanent cinema and clause (b) provides that no licence for a touring cinema shall be granted in towns and cities having a population of 15,000 or more and within a distance of 1.6 kilometers of such towns and cities. The case sought to be made out for the applicants in that the above rule, particularly clause (a), is framed in favour of the permanent cinema owners and, therefore, as the validity of the said clause is challenged in the writ petition, they are necessary parties to the writ petition. I am unable to agree with the submission made for the applicants that clause (a) of Rule 107(1) of the Rules is framed in favour of the permanent cinema owners or the said rule confers any right on them. Rule 107 is framed in public interest for regulating matters set out in Section 6 of the Act. According to the said section, in granting licence under the Act, due regard must be given to the interest of public generally and adequacy of existing places of exhibiting cinematograph films in the locality and also having regard to clause (c) of Section 19(2) of the Act which authorises the rule making authority to prescribe the distance from a permanent cinema beyond which licence for a touring cinema may be granted.

4A. The question as to who are necessary parties and who are proper parties to a proceeding is clearly laid down by the Supreme Court in the case of Udit Narain Singh v. Board of Revenue : AIR1963SC786 , which reads as follows:

'(7) To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.'

According to the above decision, a necessary party to a proceeding is one without whom no order can be made effectively and a proper party is one in whose absence though an effective order can be made, his presence is necessary for a complete and final decision on the question involved in the proceeding.

5. Applying the above test to the present case, I am of the opinion that the applicants are not necessary parties. When the validity of an enactment made by the legislature or rules made by delegated rule making authority are challenged, the only necessary party is the State or the authority, respectively, who has enacted the law or made the rules. Even if the legislation or rule is intended for the benefit of any particular persons, such persons cannot be considered as necessary parties to a petition challenging the validity of law or the rules. A declaration to the effect that such law or rule is invalid can be given and appropriate writ or order restraining the State or concerned authority from enforcing such provisions of the Act or the Rules can be granted, in the absence of any person belonging to the class or category of persons for whose benefit the law was made. Therefore, I reject the submission made on behalf of the applicants that they are necessary parties to this petition.

6. The next question for consideration is whether the applicants can be considered as proper parties. In order to fall within the category of proper party, the party must be one, whose presence is necessary for complete and final decision on the question involved in the proceeding. I do not see how, the permanent cinema owners including the present applicants are necessary for the complete and final decision on the question involved in the proceeding.

In order to make the point clear as to who can be considered as a necessary party and who can be considered as a proper party I may give the following two illustrations:

(i) If to an application made for the grant of a touring cinema licence, a permanent cinema owner, whose theatre is located within 1. 6 kilometers from the location on which the touring cinema licence sought for was an objector, and the licensing authority rejected the licence upholding the objections raised by such cinema owner, in a writ petition praying for the issue of a writ of certiorari for quashing such an order, the objector-permanent cinema owner is a necessary party. Because in a proceeding for certiorari, not only the authority, who passed the order, but also the person, who was a party to the proceeding and in whose favour the order was passed, is a necessary party, as held by the Supreme Court in Udit Narain Singh's case : AIR1963SC786 (supra).

(ii) If an application is made by a touring cinema owner for the grant of licence and the same was not objected to either on account of inadvertence or for any other reason by a permanent cinema owner, whose theatre is located within 1. 6 kilometres from the site on which the touring cinema licence was sought for, but nevertheless the application for licence was rejected by the licensing authority on the ground that a permanent cinema is located within 1 .6 kilometers from the site or for any other reason, in a writ petition praying for quashing such a decision, the permanent cinema owner, who had failed to object before the licensing authority, if he makes an application that he may be impleaded as a party to the writ proceedings, he would be a proper party though not a necessary party not being an objector. This is because even if the writ petition is allowed and the licensing authority is directed to dispose of such application in accordance with law, the permanent cinema owner can raise objection before the licensing authority for the grant of a licence or take the matter in appeal or writ petition if the licence is granted in spite of such objection. This will lead to multiplicity of proceedings. Therefore, such a person is a proper party.

7. In the present writ petition, there is no challenge to any individual order made by the licensing authority rejecting the licence on the basis of R. 107 of the Rules. Therefore, the case of the present applicants does not fall in either of the illustrations given above. As already pointed out in the writ petition only the validity of R. 107 of the Rules is challenged. Therefore the applicants cannot be permitted to become party-respondents to the writ petition.

8. Learned counsel for the petitioners also relied on the decision in W. A. No. 565 of 1978, D/- 26-8-1978 (Kant) confirming the order passed by the Single Judge on I. As. I and III in this very writ petition, by which the request of permanent cinema owners for being impleaded as party-respondents was rejected. Learned counsel for the applicants however, tries to distinguish the said judgment on the ground that in the said judgment the claim for impleading was rejected only referring to R. 107(1)(b) of the Rules and not R. 107(1)(a) in which there is a specific reference to permanent cinema theatres. I do not think the said decision can be distinguished in this manner. As clearly held in the said judgment, R. 107(1)(b) is a regulatory provisions though it was also stated that it makes no reference to the owner or operator of a permanent cinema theatre. The mere fact that R. 107(1)(a) refers to a permanent theatre does not make any difference. The said clause is as much regulatory in character as clause (b) and as held by me earlier, it is framed in public interest and not for the benefit of the owners of permanent cinema theatres. Further, even assuming that R. 107(1) (a) is meant for the benefit of class of persons, namely, permanent cinema owners, it makes no difference for the question under consideration. Unless a person is either a necessary party or a proper party he cannot claim to become a party-respondent to a petition because mere challenge to a provisions of law which is meant for the benefit of any particular class of persons does not make such class of persons as either necessary or proper parties to a petition challenging the validity of such law.

9. For the reasons aforesaid, I reject the application.

10. Learned counsel appearing for the applicants, however, requested that the applicants may be permitted to intervene and make submission in support of the validity of the rule. Though I reject the application for impleading the applicants as parties to the petition, I grant their request for making submission as intervenors.

11. Order accordingly.


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