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K.K. Subramoniam Vs. M.P. Sreenivasan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 214 of 1969
Judge
Reported inAIR1972Ker58
ActsKeral Cinemas (Regulation) Act, 1958 - Sections 5; Specific Relief Act, 1963 - Sections 38; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantK.K. Subramoniam
RespondentM.P. Sreenivasan and anr.
Appellant Advocate Chandrasekharan and; Chandrasekhara Menon, Advs.
Respondent Advocate K. Bhaskaran, Adv.
DispositionAppeal allowed
Cases ReferredGregory v. Camden London Borough Council
Excerpt:
.....suit - section 5 of kerala cinemas (regulation) act, 1958, section 38 of specific relief act, 1963 and order 1 rules 8 and 10 of code of civil procedure, 1908 - second appeal - maintainability of suit challenged - plaintiff working as manager in theatre 'a' - application for licence of theatre b filed by its defendant (proprietor) - manager objected to issuance of licence on ground of non-compliance with rules prescribed - defendant contend that manager had no locus standi to file suit - held, suit filed without authority be non-suited on that simple ground. - - but this rule does not hold good where the statute creates rights for the first time. decisions like (1907) ilr 31 bom 604 and (1912) ilr 36 mad 120 fall under this category, where the right or status was itself the..........raised by the first defendant as to the sustainability of a plea of improper grant of license in a civil suit. according to him a suit forinjunction, as here, cannot be maintained by another theatre owner on the ground that the requirements of the rules have not been properly complied with in the matter of the issue of license to an exhibitor. another objection taken is that the plaintiff is only the manager of prabha talkies and therefore he has no locus standi to file a suit- it is also contended that even otherwise there has been substantial compliance with the requirements of the rules.4. time and again the observations of willes. j. in the judgment in wolver-hampton new waterworks co. v. haw-kesford, (1859) 6 cb (ns) 336 at p. 356 have been quoted. the rule, enunciated with.....
Judgment:

P. Subramonian Poti, J.

1. I am afraid the suit is misconceived. Though the maintainability of the suit was challenged by the first defendant successfully in the trial court, the court below has held that the suit as framed would lie and the plaintiff is entitled to seek the reliefs which he has claimed in the suit.

2. Plaintiff has styled himself as the manager of one Prabha Talkies, a theatre exhibiting cinematograph films at Tellicherry. According to him the proprietor of the concern is his sister-in-law and on her behalf he is managing the business. First defendant is the proprietor of one Lotus Talkies engaged in the business of exhibition of cinematograph films for which purpose he applied for license to the Tellicherry Municipality and obtained the same. The Municipal Commissioner of the Tellicherry Municipality is the second defendant. Plaintiff had objected to the issue of license to the first defendant on several grounds including one that the distance between the two theatres was less than what is prescribed by the rules. This objection of the plaintiff was not looked into and therefore the order is characterised as illegal and void. The plaintiff seeks a permanent injunction restraining the defendant from exhibiting cinematograph films in his theatre.

3. A contention is raised by the first defendant as to the sustainability of a plea of improper grant of license in a Civil suit. According to him a suit forinjunction, as here, cannot be maintained by another theatre owner on the ground that the requirements of the rules have not been properly complied with in the matter of the issue of license to an exhibitor. Another objection taken is that the plaintiff is only the manager of Prabha Talkies and therefore he has no locus standi to file a suit- it is also contended that even otherwise there has been substantial compliance with the requirements of the rules.

4. Time and again the observations of Willes. J. In the judgment in Wolver-hampton New Waterworks Co. v. Haw-kesford, (1859) 6 CB (NS) 336 at p. 356 have been quoted. The rule, enunciated with precision and clarity by the learned Judge is in these terms:--

'There are three classes of cases in which liability may be established by statute:

(1) There is that class where there is a liability existing at common law which is only remedied by the statute with a special form of remedy; thus, unless the statute contains words expressly excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. (2) Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it: thus the party may adopt an action of debt or other remedy at common law to enforce it. The remedy which by law is properly applicable to the right or the obligation flows as an incident. (3) The third class is where a statute creates a liability not existing at common law and gives also a particular remedy for enforcing, it ..... With respect to that class it has always been held that the party must adopt the form of remedy given by the statute.'

5. If a person has a right at common law and in regard to this matter a statute is enacted and the statute provides a machinery for working out the remedy if the. right is infringed still such person will be entitled to resort to a civil court to seek his remedies in regard to the infringement of his rights unless the statute excludes such resort to the civil court and confines his remedies to that provided by the statute. That is because even de hors the statute such a person had a civil right and unless the provisions of the statute are to be so read as excluding resort to the civil court for vindicating such civil right ouster of jurisdiction of civil courts cannot be assumed. But this rule does not hold good where the statute creates rights for the first time. In such cases it is the machinery prescribed by the statute

which creates such rights that will beavailable to the person. In such a caseunless right is conferred on the civilcourts it will not be open to a personto resort to such civil remedies. Vara-dachariar, J. In Kamaraia Pandiya v.Secy, of State, AIR 1936 Mad 269 atp. 271 said of this, in the followingwords:--

'The ordinary rule is that where a person's liberty or property is interfered with, under colour of statutory powers, he has a cause of action which the civil Courts are bound to entertain unless a bar to such entertainment has been enacted expressly or at least by necessary implication. Where there is no question of a common law right and an infringement thereof the position may be different for in such cases, the ordinary Courts had prima facie no jurisdiction and therefore there is no question of any ouster of their jurisdiction. Decisions like (1907) ILR 31 Bom 604 and (1912) ILR 36 Mad 120 fall under this category, where the right or status was itself the creation of the statute. Even where rights of property are involved, the legislature may point to particular modes of redress.'

This principle was again succinctly stated in Secy, of State v. Allu Jagannadham. AIR 1941 Mad 530 (FB) at p. 532 as follows:--

'Therefore, we have here two principles clearly established. The first is that to exclude the jurisdiction of the civil Courts, the exclusion must be explicitly expressed or clearly implied. The second is that where the liability is statutory as opposed to liability under the common law. the party must adopt the remedy given to him by the statute.' Dealing with the case under the Representation of the People Act the Supreme Court in N.P. Ponnuswami v. Returning Officer Namakkal. AIR 1952 SC 64 cited the observations of Willes. J. In (1895) 6 CB (NS) 336 at p. 356 with approval. The rule appears to be so well settled that I need not add to the authorities.

6. It is contended by counsel for the appellant that the Kerala Cinemas (Regulation) Act, 1958 (Act 32 of 1958) was not one which conferred any new right for the first time. In fact every citizen of India had a right to carry on the business of cinematograph exhibition. But this fundamental right guaranteed to him under Article 19(1)(g) of the Constitution of India is subject to such reasonable restrictions as may be imposed by law. Such restrictions are to regulate the business. It is in exercise of such regulatory power that Kerala Act 32 of 1958 was passed. Counsel points out that Article 19(6) of the Constitution of Indiaenables such regulatory legislation to be made only in the interest of the public in general and therefore the regulation of Cinematograph exhibition by Kerala Act 32 of 1958 can be only in the interest of the general public. That of course must be so. Section 5 imposes restrictions on the powers of the licensing authority. In deciding whether to grant or refuse a licence, the licensing authority is to have regard to matters specified in Section 5, namely:--

'(a) the interest of the public generally;

(b) the status and previous experience of the applicant;

(c) the suitability of the place where the cinematograph exhibitions are proposed to be given;

(d) the adequacy of existing places for the exhibition of cinematograph films in the locality;

(e) the benefit to any particular locality or localities to be afforded by the opening of a new place of cinematograph exhibition;

(f) the possession by the applicant of other places, if any licensed under this Act, whether in the same locality or elsewhere, and whether at the time of applying for the license or at any previous time, and shall also take into consideration any representations made by persons already giving cinematograph exhibitions in or near the proposed locality, whether within the jurisdiction of the same local authority or not, or by any public authority within whose jurisdiction the place proposed to be licensed is situated or by any association interested in the giving of cinematograph exhibitions.'

These are apparently restrictions intended in the interest of the general public. These restrictions act as restrictions on the exercise of the fundamental right of the exhibitor. They do not confer a right on any other member of the public other than the general right as one of the public to object to the grant. It cannot be said that under the law of the land one exhibitor could have a grievance if another starts similar business. In fact both have the fundamental right to carry on their business. By reason of the regulation by Act 32 of 1958 no personal right is obtained by the plaintiff. That is why counsel for the appellant first defendant submits that even assuming that plaintiff has interest enough to challenge the licence the machinery which he may invoke must be that provided under the statute itself. Resort cannot bo made to the civil court for that purpose. It cannot be contended with any force that even apart from the provisions of the Kerala Cinema (Regulation) Act 32 of 1958 the plaintiff had a rightto challenge the opening of another cinema theatre within the Tellicherry Municipality.

7. I am not prepared to agree that there is a civil right in the plaintiff. The plaintiff (assuming that he has a locus standi to sue as an exhibitor) does not have as I have indicated earlier, any personal right conferred on him by reason of Act 32 of 1958. His right to object in the matter of grant of the license and his right to take up the matter in appeal are to be exercised only with the ultimate view that the grant of license to the first defendant is in the interest of general public. If that be the case the suit for injunction as now brought by him must fail.

8. In a similar case which arose before the Queen's Bench Division and reported in Gregory v. Camden London Borough Council, (1966) 1 WLR 899, Paull, J. analysed the position. That was an action brought against the London County Council as the Local Planning Authority alleging that the defendants in determining whether to grant planning permission to erect a school for about 700 children on the convent land adjoining the plaintiffs' land granted planning permission which did not accord with the Development plan. It was also contended that the defendants in granting planning permission had neither considered whether the development was within the plan nor whether development would injuriously affect the plaintiffs' land. They sued for a declaration that the permission granted was ultra vires. The question was whether the suit was misconceived. Though the plaintiffs might have had an interest in the matter of grant of the planning permission and they would in a way be affected by such permission the exercise of the duties of the County Council being in the interest of the public the plaintiffs were held to have no legal right. It was a matter between the convent which applied for the planning permission and the County Council which granted it. It was not a matter in which, though plaintiffs showed that they would suffer damage, they would not sustain any action as they had no legal injury. Mere damnum without injuria was held to be not sufficient and that of course is the position here too.

9. On a much simpler ground the case could have been disposed of. But I considered the question only because this matter has now come up to this court and elaborate arguments have been advanced on other questions. I considered that in fairness to counsel I should deal with those questions briefly. The locus standi of the plaintiff to bring the suit is challenged. Strangely enough theplaintiff is not suing as a power of attorney holder of the exhibitor as whose manager the suit is brought. Stranger too is the reference to Order 1, Rule 8 of the Code of Civil Procedure by the court below in this context. Plaintiff who says that he is suing on behalf of his sister-in-law apparently without any authority from her must be non-suited on that simple ground.

10. In the result, the second appeal is allowed. The suit stands dismissed with costs throughout.


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