1.In this Petition under Article 226 of the Constitution, the petitioner has challenged order No. HD 44 CNL 84 dated l0-10-1984 (Annexure D) of Government.
2. On 6-12-1980 the petitioner made an application before the District Magistrate, Bangalore District, Bangalore ('DM') for grant of a 'No Objection Certificate' ('NOC') under the Karnataka Cinemas (Regulation) Act of 1964 and the Karnataka Cinemas (Regulation) Rules of 1971 ('the Act and the Rules') for locating a touring cinema on Sy.No. 186 of Koramangala village, Bangalore South Taluk, On receipt of the said application, the DM duly notified the same calling for representations and objections in response to which Respondents 3 and 4, the applicants in I.A. No.l and some others filed their objections opposing the NOC on diverse grounds. On an examination of the objections filed and the reports received by him, the DM by his order dated 29-6-1981 rejected the same, which on an appeal filed by the petitioner was affirmed by the Divisional Commissioner, Bangalore Division, Bangalore ('Commissioner') on 15-12-1981.
3. In Writ Petition No. 3204 of 1982 the petitioner challenged the aforesaid orders of the Commissioner and the DM before this Court. On 15-3-1984 (Annexure-A) this Court allowed the said Writ Petition and remitted the case to the DM for fresh disposal. In pursuance of the said order of remand, the DM inspected the area, heard the parties and by his order dated 2l-7-1984 (Annexure-C) granted the said application and issued an NOC to the petitioner under the Act.
4. On 6-8-1984 Respondents 3 and 4 challenged the said order of the DM in a revision before Government under Section 18 of the Act, which by its order dated 10-10-1984 (Annexure-D) has allowed the same and cancelled the order of DM. Aggrieved by the same, the petitioner has moved this Court under Article 226 of the Constitution.
5. Among others, the petitioner has urged that the order made by Government was in contravention of Rule 27(l)(i) (a)(vi) of the Rules and illegal
6. In justification of the impugned order, Respondents 3 and 4 have filed their return. Respondents 1 and 2 who are represented by the learned High Court Government Pleader have produced their records and justified the impugned order.
7.In I. A. No. I three persons who had originally objected to the NOC but did not challenge the order of the DM before Government, have sought permission to come on record as Respondents and support the order of Government. I.A.No.I is opposed by the petitioner and therefore, it is necessary to consider the same first.
8. In challenging the order of Government the petitioner was bound to implead only the persons that had challenged the order of the DM and had succeeded before it and not the applicants in I.A. No I. When the applicants had suffered an order and had not challenged the same before Government, they cannot be permitted to challenge the same in the Writ Petition filed by the petitioner. Without any doubt, the applicants in LA. No.I are neither necessary nor proper parties to the proceedings. I, therefore, reject I.A. No.I.
9. Sri H.B. Datar, learned Senior Advocate appeared for the petitioner. Sriyuths H.L.. Dattu, learned High Court Government Pleader and G.S. Visveswara, learned Advocate appeared for Respondents 1 to 4 repectively.
10. On an examination of the fact situations, the DM found that the area was not a thickly populated residential area and there were only 4 houses around the area proposedfor locating the cinema. The inspection notes prepared by the DM and the Home Secretary who also inspected the area as also his findings are to the same effect. Both sides do not dispute these facts.
11. On the very facts found, Sri Datar has contended that on a true construction of Rule 27(1)(i)(a)(vi) of the Rules, it was not open to Government to interfere as the prohibition, if any, in that rule did not operate to an area that was not a thickly populated residential area.
12. But, Sri Visveswara refuting the contention of Sri Datar, has contended that the prohibition contemplated by the rule operated even when the area was used generally for residential purposes and an NOC cannot be granted for such an area also.
13. As to which of the two rival contentions is sound is the interesting question that calls for my determination.
14. In Seaford Court Estates Limited v. Asher Lord Denning, (1949) 2, AH. E.R. 155 has explained the rule of progressive construction of statutes in these felicitous terms :
'Whenever a statute comes up for consideration it must be remembered that it is not with in human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself, to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. That was clearly laid down (3 Co Rep 7b) by the resolution of the judges (Sir Roger Manwood, C.B., and the other barons of the Exchequer) in Heydon's case, (1584) 3 Co. Rep 7a, and it is the safest guide to-day. Good practical advice on the subject was given about the same time by Plowden in his note (2 Plowd 465) to Eyston v. Studd. (1574) 2 Plowd 463. Put into homely metaphor it is this. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.'
In State of Karnataka and others v. Hansa Corporation, : 1SCR823 the Suprema Court has approved the same. In C. Arunachalam v.Commissioner of Income Tax, : 151ITR172(KAR) a Full Bench of this Court reviewing all the earlier cases and treatises (vide Para 11 at pages 1399 to 1401) has restated the same principle.
15. Bearing the above principles, it is now necessary to ascertain the true scope and ambit of Rule 27(l)(i)(a)(vi), which indisputably applies to touring cinemas (vide Rule 88 of the Rules), which so far as it 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 :
xx xx xx xx(i) the cinema site is at a distance of not less than
(a) fifty meters from
xxx xxx xxx(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 iu writing after inspection of the proposed site, relax subject to such conditions as itmay consider necessary to impose in each case all or any of the conditions specified in item (i) to (vi).
Provided further that considering the facts and circumstances of each case different conditions may be imposed in different cases.'
The foremost requirement of the Rule is that with in the area of distance of 50 meters from the place or institutions referred to in Sub-clauses (vi) a permanent or touring cinema should not be located. But, even this prohibition is not an absolute, unalterable and unavoidable prohibition as the provision to that rule reserves power to the DM to relax all or any of them in the public interest, if a sound proof construction of the building were to be undertaken.
16. The object with which the rule in particular has been framed is to safeguard the public interest of the area. The public interest anxiously safeguarded is the general public interest of the area and not the interest of any particular individual.
17. Sub-clause (vi) employs the term 'residential area or an area used generally for residential purposes. The former describes the area compactly and colloquially and the latter describes the same descriptively and loosely. Both mean one and the same. There is no distinction and difference in the two expressions. The use of the term 'generally' which means 'all' or 'nearly all' in between the words 'an area used' and 'for residential purposes', does not in any way add to or diminish to the meaning of the terms 'residential area' or 'an area used for residential purpose.' Between the term 'residential area' and 'an area used for residential' there is no distinction and difference both in their ordinary parlance and their legal import also.
18. On the aforesaid construction, it necessarily follows, that the preceding or qualifying term 'thickly populated' should and must govern the terms preceding and following the same namely 'residential area' or 'an area generally used for residential purposes.'
19. The word 'thickly' derived from the word 'thick' in the context means dense, congested or packed beyond what is reasonable for living. Even ordinary movement in such areas becomes difficult, if not impossible. Anybody who has seen the congested parts of old Bangalore city like Chickpet and other congested areas will appreciate the same better. In the context the term 'thickly populated' really means that the po ;population in the area was so very congested that the number of houses and people living in that area for reasons that are not necessary to examine, was beyond the modern standards of living.
20. The object of imposing a prohibition in a thickly populated area is not far to seek. The object was that the cinema theatre to be established as a place of entertainment should not become a source of nuisance or inconvenience to the residents and others that use such an area.
21. Earlier, 1 have noticed the finding of Government that the area was not a thickly populated area. On that very finding and on the construction placed on the rule, Government committed a manifest illegality in interfering with the order of the DM.
22. Let me also assume that the construction suggested for the respondents is the correct one and examine the case on that basis also.
23. Whatever be the reason for congestion, the rule prohibits the location of a cinema either permanent or touring in a thickly populated residential area. If the construction suggested by the respondents is correct, then a cinema cannot be located in a sparse'y populated area or a growing residential area, notwithstanding every compelling necessity for the same. The object of the Act and the Rules is not to prohibit location of cinemas but to regulate their orderly location and development in the public interest. After all whatever be one's views, entertainment through cinema, isthe most popular in the present day world, that too in a poor country like ours, where it has virtually replaced every kind of traditional entertainment. When one keeps all these aspects, the construction suggested for the respondents results in defeating the scheme and object of the Act, the Rules and Rule 27. On any principle such a construction cannot commend itself for the acceptance of this Court. From this it follows that the term 'thickly populated' in the context must necessarily govern the residential area or an area used for residential purpose. Any other construction will rob the meaning of the word 'thickly populated' and make the sparsely populated area to be denied of entertainment on the ground that is not contemplated by the scheme and object of the Rules.
24. On the above finding, it follows that it was not open to Government to hold that the NOC granted to the Petitioner violated Rule 27(1)(i)(a)(vi) of the Rules, even if the DM had committed an error in measuring the distances from the auditorium area instead of from the boundary area of the site. There is no dispute that the proposed site does not contravene the other Sub-clauses to sub-rule (1) of Rule 27(1) of the Rules. But in order to safeguard the interests of Respondents 3 and 4 and other neighbours, the petitioner has also filed an affidavit or a memo undertaking to construct a sound proof building. As the petitioner himself has under-taken before this Court to construct a sound proof building, it is proper for the DM to impose such a condition in the NOC granted to him.
25. Section 18 of the Act confers power of revision on Government against an original order that is not appealable under the Act, to satisfy itself as to the 'legality' or 'propriety' of such an order. Section 18 for very good reasons has conferred a limited revisional power on Government and not an appellate jurisdiction to correct all and every conceivableerrors committed by the authorities functioning under the Act. The only two grounds on which an order can be takes exception to by Government is on the grounds of legality and propriety and on no other.
26. The distinction and difference between an appeal and a revision and the true scope and ambit of the terms 'legality and propriety' occurring in various other enactments have been judicially explained by the Supreme Court in more than one case and it is enough to notice two of them only. In Hari Shankar and Others v. Rao Giridhari Lal Chowdhury, AIR 1963 SC 698 the Supreme Court examining the limited power of revision conferred on a High Court by Section 35 of the Provincial Small Cause Courts Act explained the distinction and difference between an appeal and a revision in these words :
(7) The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law....'
In Dattonpant Gopalvarao Devakate v. Vithalrao Marutirao, : AIR1975SC1111 the Supreme Court examining the scope of revision conferred on this Court under Section 50 of the Karnataka Rent Control Act of 1961 on grounds cf legality and correctness, which is analogous to Section 18 of the Act, expressed thus:
'.... A view in favour of the tenant was taken by the trial Court but against him by the Appellate Court. The findings of fact recorded by the Appellate Court were not found to be such by the High Court as to justify the exercise of its revisional power under Section 50 of the Act. It is true that the power conferred on the High Court under Section 50 is not as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure. But, at, the same time it is not wide enough to make the High Court a second Court of first appeal. We do not think that there are such pressing grounds in this case which would justify our upsetting the views of the High Court confirming those of the4. AIR 1963 SC 6985. : AIR1975SC1111 lower Appellate Court. Tt is not necessary to discuss the first two points urged on behalf of the petitioner in any detail and we reject them on the short ground mentioned above.'
What emerges from these enunciations is that the powers of a revisional authority under Section 18 of the Act is not as wide as the powers of an Appellate Authority under Section 10 of the Act.
27 An examination of the impugned order discloses that Government had dealt with the matter as if it was an appeal and not as a revision with very limited power to interfere. On this ground also the impugned order made by Government, which suffers from a manifest illegality, calls for my interference.
28. In the light of my above discussion, I hold that the impugned order is liable to be quashed. I, therefore, quash the impugned order and restore the order of the District Magistrate. But, I direct the District Magistrate to impose a further condition in the NOC already issued to the petitioner that he shall construct a sound proof building as undertaken by him, in his memo dated 20-12-1984 filed before this Court for which purpose an authenticated copy of the same shall be forwarded by the Registrar of this Court to the District Magistrate.
29. Writ Petition is disposed of in the above terms.