1. On a reference made by one of us (Puttaswamy, J.) this case was posted before. us for disposal.
On 22-11-1982 respondent-2 made an application before the Deputy Commissioner and District Magistrate, Bangalore District, Bangalore (hereinafter referred to as the DM) for grant of a 'No objection Certificate' (Hereinafter referred to as the NOC) for running a touring cinema, a misnomer, for a non-permanent' or 'temporary' under Section 5 of the Karnataka Cinemas (Regulation) Act, 1964 (Karnataka Act 23 of 1964) and Part IV of Chapter XII of the Karnataka Cinemas (Regulation) Rules, 1971 framed there under (hereinafter referred to as the Act and the Rules). On receipt of the said application, the DM under rule 96 of the Rules issued Notification No. MAG(2) TT 72/82-83 dt. 23-11-1982 inviting representations and objections to the same. In response to the notification, the' petitioner and four others as members of public filed common objections (Annexure A) opposing the grant of NOC to respondent 2 on the same day, one M. S. Shankaraiah who is running a touring cinema tinder the name and style of 'Mahalaxmi Touring Talkies' in a nearby place filed objections opposing the grant of NOC to respondent 2. As required by the Rules, the DM also called for the views of the Director of Health and family Welfare; Commissioner of Police, Executive Engineer, PWD and Tahsildar, Bangalore North Taluk. On 24-3 1983 the DM also sought the opinion of the Karnataka Housing Board, which by its letter dt. 29-4-1983 expressed its no objection for the grant of NOC.
2. On 20-5-1983 the DM informed respondent 2 and the objectors that he would personally inspect the spot on 24-5-1983 at 11.00 a.m. which is postponed to 28-6-1983. On 28-6-198,1 the DM did not visit the spot and he visited the spot on 29-6-1983, according to the petitioner without notice to him. Which we will assume it as correct, inspected the area and drew up his notes of inspection. At that inspection, respondent 2 who was naturally anxious to have his application considered with expedition was present.
3. On the completion of that inspection, the DM directed the case to be posted for hearing on 20-9-1983 and in pursuance of the same, a notice of hearing addressed to respondent 2, the petitioner and other objectors was issued by the DM on 24-8-1983 which was not served on the petitioner. On 20-9-1983 the DM apparently without noticing the non-service of notice on the petitioner, called the case and recorded that none were present and posted the case to 30-9-1981 for orders. On 30-9-1983 the DM before passing orders heard respondent 2 and made an order on the same day granting an NOC to him (Annexure D) and issued on NOC in the prescribed form on 4-10-1983. In this petition under Art. 226 of the Constitution, the petitioner has challenged the order dt. 30-9 1983 of the DM (Annexure D).
4.Among others, the petitioner has urged that the order made by the DM without notice to him and affording him an opportunity of hearing was violative of the principles of natural justice. Secondly, he has urged that the inspection of the spot by the DM without notice to him was violative of the principles of natural justice and the decision rendered by him on such an inspection was illegal. Lastly to his client was in contravention of the Rules, the petitioner has assailed the order on merits the principles of natural justice and was also.
5. In his return, respondent 2 has justified the order made by the DM in his favour. He has asserted that the petitioner was the landlord of Sri Shankaraiah who was running a touring cinema in the nearby area and that his house was situated beyond 1500 metres from the place for Which the NOC has been granted to him. He has asserted that the petitioner has been egged to file this writ petition and. is really fighting the cause of Shankaraiah who was only interested in preserving his business in the area to the detriment of the public. Lastly, he has asserted that the petitioner who was aware of the date and time of inspection and hearing and deliberately kept himself out, to challenge the impugned order on technical grounds.
6. On the pleadings and the contentions urged before us, the following points arise for determination and they are: -
1. Whether the inspection of the area made by the DM without notice to the objectors vitiates his final decision granting an NOC under the Act?
2. Whether an applicant for an NOC and persons that have objected are entitled for an oral hearing as of right under the Act before the D.M.?
3. Whether an applicant for an NOC and objectors to such an NOC can claim for an opportunity of oral hearing before the DM on the application of the principles of natural justice?
4. When the DM decides to provide an opportunity of oral hearing, his failure to provide the same to an objector vitiates his order.
5. Whether this is a fit case which this court's interference is called for under Art. 226 of the Constitution, assuming that there is an illegality of irregularity in the proceedings, before the DM.
We now proceed to examine these points in their order.
Re: Point No. 1.
7. Sri H. B. Datar, learned counsel for the petitioner has contended that the inspection made by the DM on 29-6-1983 without notice to his client was in contravention of the Rules, the principles of natural justice and was illegal.
8. Sri M. R. Achar, learned Government Advocate appearing for respondent I and Sri R. U. Goulay, learned counsel appearing for respondent 2 have contended that the inspection made by the DM, even assuming that the petitioner had not been informed, was not illegal and does not vitiate the decision rendered by him.
9. An application for an NOC either for a permanent theatre or touring talkies is really an application for a licence under Act. An NOC is also a part and parcel of the licence and is the primary and most important step for issue of a licence under the Act. All questions touching on the issue of a licence under the Act are generally decided in a proceeding for grant of an NOC. After the' NOC the grantee constructs the building in conformity with the terms and conditions, imposed in the NOC and if the construction of the building is in conformity with the same, the DM normally issues a licence to the grantee under the Act.
10. The Act in terms does not provide for inspection of an area for which an NOC is sough for by an applicant. But, the detailed rules made for granting cinemas in Part IV of the Rules provide for inspection of the site R. 96(3) authorises the DM to depute an officer not below the rank of a Tahsildar to inspect the site. The power conferred on the DM to direct his subordinate officer to inspect must be read as conferring that power on him also, if he so decides. In that view, it was open to the DM to inspect the site and that is not rightly challenged by the petitioner.
11. The petitioner has averred that he was not informed of the adjourned date of inspection by the DM and he was not aware of the same and, therefore, he was not present at the time of inspection. We will assume that this statement of the petitioner is correct and examine the legal contention.
12. The rules expressly or by necessary intendment do not require the DM to notify the applicant and the objectors before inspecting the site. The object of inspection is only to ascertain the correctness of the, facts stated in the application and the objections, if any, raised to the same. An inspection is not, an end in itself, but is only one of the steps to ascertain the facts. When the Act and the Rules do not require the inspecting officer to notify the applicant and the objectors before he makes such inspection, we find it difficult to hold that there should be prior notice to the parties. We are also of the view that the requirements of principles of natural justice, having regard to the nature of inquiry to be held by the DM and the decision to be taken by him, do not require prior notice of his inspection to the parties and the same cannot, be claimed as of right by the parties. In Local Government Board v. Arlidge 1914-15 All ER (Reprint) Page 1) on which strong reliance was placed by Sri Datar to sustain his contention, the house of Lords was dealing with the validity of an order for demolition of a house made under the Housing and Town Planning Act, 1909 that seriously affected the occupier of the house and the validity of an inspection made by an inspector to ascertain the fact that was seriously disputed by the occupier, which is not the position under the Act. We are, therefore, of the opinion that the ratio, in Arlidge's case does not bear on the, point. We see no merit in this contention of Sri Datar and reject the same.
13. On the desirability of the DM informing the applicant and the objectors that too to those that have a special, interest under the Act, to which aspect we will advert at a later stage, well in advance, there cannot be two opinions. A prior notice to the applicant and the objectors of the date and time of inspection would inspire confidence in the impartiality and earnestness of the DM to decide the case according to law and justice. We hope and trust that the DM will not read our earlier conclusion as a charter to inspect a, site without notice to the applicant and the objectors and notify them well in advance.
Re: Point No. 2.
14. Section 6 of the Act that is material reads thus
'6. Matters to be considered by licensing authority. The licensing authority shall, in deciding whether to grant or refuse a license, have regard to the following matters, namely: -
(a) the interest of the public generally;
(b) the suitability of the place where the cinematograph exhibitions are proposed to be given;
(c) the adequacy of existing places for the exhibition of cinematograph films in the locality; and
(d) the benefit to any particular locality or localities to be afforded by the opening of a new place of cinematograph exhibition, and shall also take into consideration any representations made by persons already giving cinematograph exhibitions in or near the proposed locality or by any local authority or police authority within whose jurisdiction the place proposed to be licensed is situated or by any I association interested in the giving' of cinematograph exhibition.'
Under this section the DM before granting or refusing a licence sought before him is required to take into consideration (1) the interest of the place proposed for exhibition, (2) the adequacy of the existing cinemas in the locality, (3) the benefit to the locality, and (4) the representations made by persons already giving cinematograph exhibitions in or near the proposed locality, the local authority or police authority in. whose jurisdiction the place proposed to be licensed is situated or by any association interested in the giving of cinematograph exhibition. Even though the Act in express terms does riot provide for the members of public to file their objections or representations, which factor is made the very first factor to be considered by the authority the Rules provide for filing of objections by the members of public also and their consideration by the authority. The Act and the Rules only direct the consideration or examination of the factors enumerated in Section 6 of the Act and the representations and objections made before the authority. On any principle and more so in the context, the term 'consideration' occurring in the Act and the Rules cannot be construed as an 'oral hearing. When the Act and the Rules- only direct an authority to consider the matters set forth in Section 6, the representations and objections are not conferring a right of oral hearing before the DM. Any such attempt by a Court would plainly amount to legislation in the guise of interpretation, which is impermissible. Learned counsel for the parties in the case also in our opinion, rightly did not urge to the contrary before us. We are, therefore, of the opinion that an applicant for an NOC and, objectors to an NOC cannot claim an opportunity of oral hearing as of right, under the Act before the DM.
Re: Point. No. 3.
15. Sri Datar has urged that the principles of natural justice and one of its basic components viz., audi alteram partem was applicable to the quasi-judicial proceedings under the Act and the DM committed a manifest illegality by his failure to provide an opportunity of oral hearing to the petitioner. In support of his contention Sri Datar has strongly relied on the ruling of the House o Lords in Arlidge's case (1914-15 All ER (Reprint) 1), an article written by Sri Lakshmi Swaminathan under the caption' 'Right to be heard in Licensing cases' published in 1969 (Vol. 11) Journal of the Indian Law Institute at pages 657 to 675 and K. M. Munshi Memorial lectures (first series) delivered by M. P. Jain Linder the auspicious of Indian Law Institute under the heading 'Judicial Creativity' subheading 'Natural Justice' at pages 6 to 8.
16. Sriyuths A char and Goulay have urged that on the application of the principles of natural justice an oral hearing can he claimed only by the applicant for an NOC and persons that have a special interest under R. 27 of the Rules and not by the general public that object to an NOC. In support of their contention learned counsel for the respondents have strongly relied on an unreported Division Bench ruling of this Court in R. Choodanath v. The District Magistrate, Bangalore (Writ Petn. No. 638 of 1968 decided on 17-6-1968), a ruling of this Court in Kemapaiah v. District Magistrate, Bangalore (1979) 2 Kant L.J. 93 and several passages found in the treatise. 'Natural Justice' by Paul Jackson.
17. The proceedings under the Act are quasi-judicial in nature is well settled and does not require a reference to the authorities.
18. The law relating to natural justice is now well settled by a large number of rulings of our Supreme Court and other Courts. The law developed by Courts which has its admirers and critics also, has made significant advances in recent times in our country, England and America. In hi Justice' Paul Jackson describes the two basic components of natural justice very neatly and tersely in these words:
'The two principles which, prominently, are generally thought to be necessary to guarantee that the law, or any body of rules, is applied impartially and objectively and hence justly are that every judge must be free from bias, or, as they are, often cited in the form of Latin tags, Audi alteram partem and nemo judex in re sua'.
In A. K. Kraipak v. Union of India : 1SCR457 a landmark case, the Supreme Court applied the second principle to a case of initial selection of officers to the Indian Forest Service and stated that the dividing line between quasi-judicial and administration was very thin and hardly exists. Hegde, J. who delivered the unanimous judgment of the Court in Kraipak's case summed up the requirements of natural justice in Union of India v. J. N. Sinha, : (1970)IILLJ284SC in these words:
'Rules, of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak v. Union of India, : 1SCR457 , 'the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law but supplement it'. It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and' the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power'. In Russel v. Duke of Norfolk (1949) 1 All ER 109, 113'rucker has expressed thus
'The requirement of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with and so forth'.
In his treatise on 'Natural Justice' Paul Jackson quoting the above passage also expresses the same view. Bearing these principles, we now proceed to examine whether an applicant and every objector to an application can claim an opportunity of oral hearing before the DM.
18 A. The right to run a cinema which is a trade or business guaranteed under Art. 19(l)(g) of the Constitution is only regulated by the Act and the Rules. Earlier, we have held that neither an applicant nor an objector can claim for an oral hearing as of right under the Act. If the authority on a consideration of that application and objections lodged before him, being satisfied, grants the same, the applicant cannot and will not make a complaint of not affording him an opportunity of oral hearing. But, if the authority were to accept the objections and proposes to reject the same, his decision would prejudicially affect the applicant. Such an order besides affecting the right of the applicant guaranteed under Art. 19(l) of the Constitution would also result to the applicant in serious 'civil consequence' the meaning of which has been exhaustively explained by the Supreme Court in Mohinder Singh Gill v. The Chief Election Commr. New Delhi : 2SCR272 . In these circumstances an applicant for an NOC under the Act is entitled for an opportunity of oral hearing before the DM and the DM commits no illegality in providing him an opportunity of hearing.
19. Among others, clause (i) of sub-rule (1) of rule 27 of the Rules found in Part 11 Chapter IV of the Rules applicable to permanent cinemas has been made applicable to touring cinemas also (vide Rule 88 of the Rules). R. 270) that is material reads thus:
'27. Conditions for the grant of No Objection Certificate. (1) No Objection Certificate shall not be granted under this Chapter in respect of any Cinema unless: -
(1) the cinema site is at a distance of not less than :
(a) fifty meters from-
(i) any existing petrol bunk or place licensed for a petrol bunk and other places of fire resort; or
(ii) any place of community worship, cremation ground, grave yard or cemetery in use; or
(iii) any recognised educational institution or any residential institution attached to such education institutions or
(iv) any public hospital or a private nursing home; or
(v) any recognised orphanage; or
(vi) any thickly populated residential area or an area used generally for residential purposes as distinguished from business purposes; and
Provided that the licensing authority may, if the proposal is to construct a sound proof cinema building, at its discretion, in public interest, considering the suitability of the place for reasons to be recorded in writing after inspection of the proposed site, relax, subject to such conditions as it may consider necessary to impose in each case all or any of the conditions specified in items (i) to (vi).
Provided further that considering the facts and circumstances of each case different conditions may be imposed in different cases.
(b) one hundred meters from any protected monument, defence installations, national parks, museums, and buildings in which mains telephone or telegraph or wireless or telecommunication installations are located.'
The persons referred to in R. 27(l)(i) can be referred to as persons that have a 'special interest' in contradistinction to other members of the public that have no special interest. R. 27(t)(i) of the Rules carves out a special exception and very rightly treats them differently to those that have no special interest in opposing an NOC. An establishment of a theatre within the prohibited area of 50 meters would undoubtedly affect those that have a special interest in the area. Any adverse order to be made by the DM affecting them cannot properly be made without affording them an opportunity of oral hearing, whose number will be limited. We are also of opinion that by recognising the claim of those that have a special interest, for an opportunity of oral hearing, no inconvenience or hardship would be caused in the administration of the Act at all. In Kempaiah's case this court speaking through one of us (Puttaswamy, J.) has also explained the meaning of the term 'special interest' with which enunciation we find no reason to depart. For all these reasons, we are of the opinion that those that have a special interest are entitled to claim an opportunity of oral hearing before the DM.
20. What is true of an applicant and persons that fall under the 'special interest' is not true of the general public, whose number in a given case may be anything and even beyond manageable limits also. When that is the position, it would be somewhat odd illogical and impracticable to hold that the members of the general public can also claim for an opportunity of oral hearing before the DM. Without any doubt, acceptance, of their claim besides causing serious inconvenience and difficulties in the working of the Act, would reduce the precious principle of audi alteram partem to a cruel mockery and joke. After all it is not uncommon to find a large number of objections by the general public at the instance of persons that have a special axe to grind against an applicant. In these circumstances, it is appropriate to recall the pertinent observations made by Megary, J. in Hounslow L.B.C. v. Twickenham Garden Developments 1971 Ch 233, 258. In that case the learned Judge observed thus:
'the principles of natural justice are of wide application and great importance but they must be confined within proper limits and not 41lowed to run wild.'
We have no doubt that the acceptance of the claim of general public for an opportunity of oral hearing would make the principle of natural justice an unruly horse that will always run wild and render the working of the Act almost impossible.
21. We do not read any of the passages in the Arlidge's case (1914-15 All ER (Reprint) Page 1) or the journals relied on by Sri Datar as expressing a, different view. But, assuming that they do so, we find it difficult to subscribe to them.
22. In Choodanath's case (W. P. No. 638 of 1968, D/- 17-6-1968 Mys), Choodanath who was already running a cinema theatre in Anekal Town challenged the grant of an NOC by the DM to another person inter alia on the ground that he was entitled for an opportunity of oral hearing, which was rejected by Somanath Iyer, J. (as he then was) speaking for the Bench, in these words:
'In regard to the opportunity to be heard; it is clear that the petitioner has no right to an oral hearing. The on right which is conferred on him by the rules is the right to produced objections and that opportunity was made available to him'.
In the light of the principles enunciated by the Supreme Court in Jasbhai Mothibhai Desai v. Roshan Kumar, AIR 1976 SC 578, ( 1976 ) 1 SCC 671 the said writ petition was not maintainable. But, even otherwise, the above statement, though reached without any discussion, which is 'in accord with the view we have expressed earlier, is correct.
23. In D. S. Krishnappa Gouda v., State of Mysore (1969) 2 Mys U 154 the question that arose was, whether an objector who had been heard by the DM was entitled for a notice or not in an appeal filed against that order and not the precise question that has arisen for consideration before us and, therefore, the ratio in that case does not really bear on the point.
24. On the above discussion, we hold that the members of the general public that have no special, interest cannot claim for an opportunity of oral hearing before the DM.
25. In his objection statement before the DM as also in his petition, the petitioner has not claimed that his house is situated within 50 meters from the site and, therefore, he has a special interest under R. 27(l)(i) of the Rules. In his objection statement and in the sketch placed before this Court, respondent 2 has asserted that the house of the petitioner was situated at a distance of about 15004neters. We have no reason to disbelieve the assertion of respondent 2 which is corrected by the sketch prepared by one Sri M. J. Royan D'Man, an Engineer From these, it follows that the petitioner had no special interest and was, therefore, not entitled for an opportunity of hearing before the DM.
Re. Point 4.
26. Sri Datar has strenuously contended that when the DM decided to hear the parties and caused issue of notice that was not served on the petitioner, he was entitled for an opportunity of oral hearing and the order made by the DM without service of notice and providing an opportunity of oral hearing was illegal. In support of his contention Sri Datar has strongly relied on the ruling of the Supreme Court in Mineral Development Ltd. V. State of Bihar, : 2SCR609 .
27. Sriyuths Achar and Goulay have urged' that the petitioner who had no special interest was not entitled for an opportunity of oral hearing.
28. We have earlier found that the DM had decided to hear the applicant and the objectors and had even issued notice to them, but did not comply with the same and made his order hearing the applicant only. We will assume that plea of the petitioner that no notice was served on him, that he did not know the date of hearing and that he was not heard by the DM are correct and examine the legal contention of the petitioner on that basis.
29. An oral hearing which is not a requirement of the Act is not also a requirement of the principles of natural justice (vide page 213 - Natural Justice) by Paul Jackson). We have earlier held that only the applicant and those that fall under the' special interests' are entitled for an opportunity of oral hearing and not the general public. As a logical consequence to this, a member of the public other than those that fall under the special interests is not entitled for an oral bearing. The fact that the DM without a full comprehension of the legal position decides to hear the applicant and all the objectors or later hears only the applicant, who was entitled to such an opportunity, cannot alter the legal position at all. The right must be founded in law or legal principles and the right cannot be claimed by the inaptness and indiscretion committed by the authority. On our earlier conclusions and also on legal principles, we find it difficult to uphold this contention of Sri Datar.
30. In Mineral Development Limited's case : 2SCR609 , the Supreme Court was dealing with the cancellation of a licence granted to a lessee under the Bihar Mica Act which undoubtedly very adversly affected the personal interests of the petitioner. In that case the Supreme Court expressing the same view as had been expressed in Sinha's case : (1970)IILLJ284SC extracted earlier, found that the failure to give a proper opportunity to the petitioner to show cause against the cancellation of the license was vitiated. We do not find any statement in that case to justify the contention of Sri Datar that when once an authority decides to hear, he was bound to hear even those that were not entitled for an opportunity of oral hearing. We are of the opinion that the ratio in Mineral Development Limited's case does not bear on the point and assist Sri Datar. We, therefore reject this contention of Sri Datar.
31. Even though we have expressly held that the members of the public other than the special category are not entitled for an opportunity of oral hearing either under the Act or on the principles of natural justice, we should not be understood as holding that the DM committed an illegality in affording them an opportunity of oral hearing, particularly when their number as in the present case is very limited and it was easily possible to hear all 6 f them on the same day. After all by providing an opportunity of oral hearing in such cases nothing would be lost and everything will be gained as that will enhance the confidence of the public in the impartiality and justness of the decision rendered by the authority. With a sense of regret and pain, we are constrained to observe that the DM has dealt with the case in somewhat a casual way. We do, hope that the DM will avoid such infirmities at least in future.
Re: Point No. 5.
32. Sri Datar has urged that the illegality committed by the DM being apparent, his order should be quashed and a direction issued to him to rehear matter and decide the same according to law.
33. Sri Goulay has strongly urged to decline to interfere with the order even if the re are illegalities and irregularities, having regard to all the facts and circumstances of the case.
34. We have earlier seen that the petitioner does not fall within the special category and that his house is situated nearly 1500 meters away from the site in dispute. In his reply also, the petitioner has not denied that he is the landlord of Sri Shankaraiah.
35. We find that the objections of Shankaraiah and four other obj9ctors had been filed on one and the same day before the DM. Even though the possibility of the two sets of objections have been typed in two typewriters cannot be ruled out, we are inclined to hold that the objections of the petitioner and four others have been real1v filed at the instance of Shankaraiah himself who is interested in safeguarding his business interests in the area. We are even surprised and astonished at the seriousness and animosity with which the petitioner is pursuing this case, though he has nothing to gain or loose by respondent 2 running his theatre for which he has had all necessary arrangements, but is now prevented by reason of the interim order made by this Court. We are constrained to observe that this petition is pursued by an unknown hand who is no other than Shankaraiah, who is interested in his self-preservation and nothing else. Unfortunately, the petitioner has become a pawn in the hands of Shankaraiah and is pursuing this matter needlessly causing considerable loss and injury, to respondent 2, however, swelling the profits of Shankaraiah. Even assuming that every one of the conclusions reached by us earlier are erroneous and the DM has committed an illegality or irregularity vitiating his decision, in such an event also, this is a fit case in which we should decline to interfere with the order of the DM at the instance of the petitioner. We accordingly answer this point against the petitioner.
36. In the light of our above discussion, we hold that this writ petition is liable to be dismissed. We, therefore, dismiss this writ petition with costs of respondent 2. Advocate's fee Rs. 250/-.
37. Petition dismissed.