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K.E. Appukutty Vs. Executive Officer, Madai Panchayat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. No. 5403 of 1974
Judge
Reported inAIR1976Ker80
ActsKerala Cinema (Regulation) Act, 1958 - Sections 5, 5(7) and 6; Constitution of India - Article 226
AppellantK.E. Appukutty
RespondentExecutive Officer, Madai Panchayat and ors.
Appellant Advocate V. Sivaraman Nair,; V.M. Nayanar and; K. Raveendran,
Respondent Advocate K.P. Radhakrishna Menon,; K.K. Ravindranath,; M.P.R. Nai
Cases ReferredMadhavan Pillai v. State of Kerala
Excerpt:
civil - aggrieved person - sections 5 and 6 of kerala cinema (regulation) act, 1958 - petition filed by exhibitor of cinematographic films having theatre within madai panchayat for quashing permission granted to 4th respondent to construct temporary cinema theatre within madai panchayat and for other reliefs - scheme behind section 5 and 6 to be looked into to see if petitioner is person aggrieved in matter of granting licence or permission under said sections - petitioner has right to object to issuance of licence or direction - petitioner is aggrieved person in present case. - - 4476 of 1974 wherein he prayed for the issuance of a writ of certiorari to quash the permission granted by the executive officer and for a writ of mandamus directing the executive officer not to grant.....ordert. chandrasekhara menon, j.1. an exhibitor of cinematographic films who is having his theatre within the madai panchayat has filed this original petition wherein he prays for quashing the permission granted to the fourth respondent to construct a temporary cinema theatre in r. s. 78/1 of pudiyangadi desom, within the madai panchayat and also for quashing the licence granted to the 4th respondent on 30-10-1974 with the further prayer for a direction in the nature of mandamus to the first respondent not to grant or renew licence to the 4th respondent for his temporary cinema theatre and also for an injunction directing the fourth respondent not to exhibit cinema shows in the 'star talkies' pudiyangadi desom, madai panchayat and also for directing the first respondent not to renew.....
Judgment:
ORDER

T. Chandrasekhara Menon, J.

1. An exhibitor of cinematographic films who is having his theatre within the Madai Panchayat has filed this Original Petition wherein he prays for quashing the permission granted to the fourth respondent to construct a temporary cinema theatre in R. S. 78/1 of Pudiyangadi desom, within the Madai Panchayat and also for quashing the licence granted to the 4th respondent on 30-10-1974 with the further prayer for a direction in the nature of mandamus to the first respondent not to grant or renew licence to the 4th respondent for his temporary cinema theatre and also for an injunction directing the fourth respondent not to exhibit cinema shows in the 'Star Talkies' Pudiyangadi desom, Madai Panchayat and also for directing the first respondent not to renew licence granted to the 4th respondent to exhibit cinema shows in the said theatre till final disposal of the Original Petition.

2. The 4th respondent appears to have filed an application for permission to construct a temporary cinema shed in R. S. No. 78/1 of Pudiyangadi desom in Madai Panchayat. It would appear that permission was granted for the construction of a temporary cinema shed on 15-4-1974. The petitioner who is running a cinema theatre in the same Panchayat area filed an appeal before the Panchayat, questioning the permission granted to the 4th respondent to construct the temporary cinema shed. In a cryptic order contained in a resolution which is produced as Ext. P-2 in the case that appeal was dismissed on the ground that the Executive Officer has not granted any licence to the 4th respondent for conduct of the cinema. Ext. P-1 is a copy of the appeal filed by the petitioner in the matter. In the first paragraph of Exhibit P-1 itself it is stated that despite very serious objections filed regarding the suitability of the site concerned for exhibition of cinema shows the Executive Officer (has granted permission for the construction of a shed for the exhibition of cinema shows which decision was impugned in the appeal. The prayer in the appeal itself is that the permission granted to the 4th respondent to construct a building in the site proposed by him may be quashed. By Ext. P-4 the petitioner filed a revision in the matter to the Collector of Cannanore who is the third respondent in the Original Petition.

3. Along with the revision application the petitioner applied for a stay of granting licence for conducting cinematographic shows to the 4th respondent till the disposal of the revision petition. It is alleged that no order was passed on the stay application. A Writ Petition was filed by the petitioner before this Court as O. P. No. 4476 of 1974 wherein he prayed for the issuance of a writ of certiorari to quash the permission granted by the Executive Officer and for a writ of mandamus directing the Executive Officer not to grant licence to the 4th respondent under the Kerala Cinema (Regulation) Act, 1958 as well as under the Kerala Places of Public Resort Act, 1963, or in the alternative to direct the 3rd respondent in the said O. P. the District Collector to dispose of the revision petition filed by the petitioner, pending before him. Along with that Writ Petition the petitioner moved for stay of the permission granted to the 4th respondent. This Court was not inclined to grant a stay since an Advocate appeared for the first respondent in the O. P. and opposed the application. The Original Petition was posted for hearing on 23-10-1974 and the court directed the parties concerned to file counter. Since ho counter was filed on 23-10-1974 and since the petitioner again moved with an application praying that the application for interim stay be taken up for urgent orders, Justice Khalid ordered interim stay as prayed for on 1-11-1974. As per order dated 5th November, 1974 in C. M. P. No. 14765 of 1974 this court restrained the 4th respondent from exhibiting cinema shows in the theatre constructed by him till 8-11-1974. This Court finally disposed of the Writ Petition thinking that it is not proper or necessary to go into the contentions of the parties in detail since the revision petition was pending before the District Collector. The court gave a direction to the District Collector to dispose of the revision petition pending before him on or be-tore 15-l1-1974 untrammelled by any observations of the court in the order regarding the case and till such disposal the 4th respondent was not to exhibit cinema shows in the temporary shed constructed by him.

4. During the pendency of that O. P. the petitioner had filed objections before the Executive Officer on 16-10-1974 against the grant of licence, wherein, it is alleged, that he specifically pointed out that no new licence can be granted to the 4th respondent under Rule 59 of the Kerala Cinema Regulation Rules and that the grant of the licence would be in violation of Rule 22 of the Kerala CinemaRegulation Rules and R. 19 (a) of the Places of Public Resort Rules. He is also alleged to have requested for a personal hearing before a licence was granted to the 4th respondent. The petitioner's case is that without adverting to the pendency of the revision petition before the District Collector and the O. P. before this court, the Executive Officer granted licence to the 4th respondent for exhibiting cinema shows on 30-10-1974. Against the grant of licence under the Cinema Regulation Act and under the Places of Public Resort Act the petitioner preferred appeals as contemplated under the said enactments, copies of which appeals have been produced in the O. P. marked as Exts. P-8 and P-8 (a). The third respondent in the meanwhile dismissed the revision filed by the petitioner against the grant of permission to conduct cinema shows in the fourth respondent's theatre stating that the revision petition is not maintainable since there was no order passed by the Executive Officer, granting licence to the 4th respondent at the time of filing the revision petition. Ext. P-9 is the order of the District Collector third respondent. It is in such circumstances that the present Original Petition has been filed.

5. According to the petitioner Ext. P-2 resolution of the Panchayat as well as the revisional order Ext, P-9 suffers from errors apparent on the face of the record. The appeal filed before the Panchayat is against the grant of permission to construct a temporary cinema theatre. The revision is also against the dismissal of the said appeal by the Panchayat. The appellate authority as well as the revisional authority according to the petitioner, failed to consider the relevant statutory provisions viz., Section 6 of the Kerala Cinema Regulation Act in rejecting the appeal and revisions. According to the petitioner, he has no case that the appeal and revision are against the grant of licence. He states that before this Court also in the earlier O. P. this point was argued and it was made clear by the petitioner that the appeal and revision are against the grant of permission. It is stated that in spite of all these facts the third respondent committed an illegality in dismissing the revision petition and therefore the order is passed without considering the argument of the petitioner and is against the provisions contained in the Cinema Regulation Act Therefore, he prays that Exts. P-2 and P-9 orders may be set aside.

6. The petitioner also alleges that the first respondent committed illegality in granting licence to the 4th respondent for exhibiting cinema shows without disposing ofExh. P-7 representation. Ext P-7 is a statutory representation tiled under Sec. 5 of the Kerala Cinema Regulation Act, and being a statutory authority the Executive Officer, it is contended, is bound to consider the petition and pass appropriate orders thereon and communicate the same to the parties, especially so when a right of appeal is conferred by Section 5 of the Cinema Regulation Act against any order passed by the licensing authority. It is further alleged that the grant of licence to the 4th respondent, apart from being violative of statutory provisions, is also vitiated by mala fides. The first respondent was aware of the revision petition which was pending before the District Collector against the grant of the permission itself. It is alleged that he was also aware that Writ Petition was also pending before this court against the grant of permission to the 4th respondent A specific request also was made as per Ext. P-7 not to grant licence before the disposal of the Original Petition as well as Ext. P-7 objection. It is stated that in spite of all these and also without adverting to the relevant statutory provisions viz., Rule 19 (a) of the Kerala Places of Public Resort Rules, Rules 12, 22 and 59 (a) of the Kerala Cinema Regulation Act, the first respondent issued the licence. Various other contentions are also taken questioning the impugned orders. The grant of licence is said to be violative of Rule 59 (a) of the Kerala Cinema Regulation Rules as well as Rule 19 (a) of the Places of Public Resort Rules, 1963. The first respondent is not competent to grant licence for temporary cinema under Rule 59 (a) of the Cinema Regulation Rules. The 4th respondent's theatre is a temporary cinema theatre and it is neither a permanent theatre nor a travelling theatre as defined under the Act. In the face of the record it is alleged that it is incompetent for the first respondent to grant licence for exhibiting cinemas in temporary sheds and the licence granted is alleged to be in contravention of Rule 59 (a) of the Cinema Regulation Rules. The further contention that the licence given under the Kerala Places of Public Resort Rules contravenes Rule 19 (a) of the said Rules is also high-lighted in the Original Petition.

7. In the counter filed on behalf of the Panchayat by the Executive Officer the contentions taken up by the petitioner are sought to be controverted. It is stated that the residents of the neighbouring area have given their written consent in granting the licence. It is alleged that the petitioner's appeal to the Panchayat was under Section 5 (1) of the Kerala Cinema Regulation Act,1958, when even the licence had not been granted at that time. The revisional Authority has also correctly dismissed the revision as at the time of filing of the appeal the liceace was not granted to exhibit cinematograph films in the building constructed by the 4th respondent. It is pointed out that the 4th respondent had already applied to the Government under the proviso to Clause (a) of Rule 19 of the P. P. R. Rules for the necessary exemption. It is further stated that the licensing authority issued licence to run a travelling cinema and that it is incorrect to say that the building constructed by the 4th respondent is to accommodate a temporary cinema. The pendency of the appeals under the Kerala Cinema Regulation Act and Kerala Places of Public Resort Act are said to disable the petitioner to bring in the Original petition. It is stated that the Executive Officer granted the licence mainly in view of the interest of the public generally.

8. The 4th respondent has also filed a detailed counter. The main contention that is taken by him is that the petitioner has no locus standi to invoke the jurisdiction of this court as he is not a person aggrieved by the granting of a licence in favour of the 4th respondent and none of the legal rights of the petitioner have been infringed by the grant of licence in favour of the 4th respondent Ext. P-9 order is sought to be supported in Ids counter. It is said that distance between the 4th respondent's theatre and that of the petitioner is more than half a mile. The owners of buildings situated in a radius of 300 metres from the 4th respondent's theatre, it is alleged, had given their consent in writing and it was only after obtaining such consent the 4th respondent is alleged to have filed the application for permission for construction of the building for the exhibition of cinematograph films. It is stated that all the conditions stipulated in the P. P. R. Act and Rules have been satisfied in respect of the building in question. The site, it is stated, has a clear road frontage and the first respondent had been satisfied that all the relevant rules have been complied with by the 4th respondent regarding the building requirements. It is further alleged that the provisions in Rule 19 (a) of the P. P. R. Rules have been complied with and it is only as a measure of abundant caution, the 4th respondent applied to the Government for exemption, if such exemption is required. It is stated that the application of the 4th respondent evidenced by Ext. P-3 is not for the issue of a licence for a temporary cinema as envisaged in Rule 59 (a) but the application is for the construction of a temporary building aad enclosures as con-templated by the Rules contained in Part 3 of the Kerala Places of Public Resort Rales, 1965. It is further contended that the petitioner's theatre is itself a temporary cinema theatre, the grant of licence to which would be hit by Rule 59 (b) of the Kerala Cinema Regulation Rules, and in the circumstances he is disentitled to question the grant of licence to the 4th respondent. It is urged in the counter of the 4th respondent that mere reading of the revision petition will betray lack of bona fides in the present contentions taken by the petitioner. It is afleged that the petitioner's specific case pleaded in the revision petition was that licence had been granted to the 4th respondent and it was against the grant of such licence the petitioner took up the matter in appeal and revision. The District Collector, it is stated, is not bound to consider the arguments of the petitioner's counsel materially and substantially different from the specific case pleaded by the revision petitioner. All the contentions taken up by the petitioner are specifically controverted in the counter affidavit of the 4th respondent.

9. Before going into the contentions of the parties, it is necessary to point out the relevant provisions in the Kerala Cinema Regulation Act as well as the Places of Public Resort Act which arise for consideration here-Section 5 of the Kerala Cinema Regulation Act deals with restrictions on powers of licensing authority and is as follows:--

'RESTRICTIONS ON POWERS OF LICENSING AUTHORITY:--

(1) The licensing authority shall, in deciding whether to grant or refuse a licence, have regard to the following matters, namely:--

(a) the interest of the public generally;

(b) the status and previous experience of 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 licence 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 localauthority or not, or by any police authority within whose jurisdiction the place proposed to be licensed is situated or by any association interested in the giving of cinematograph exhibitions.

(2) The licensing authority shall not grant a licence unless it is satisfied that-

(a) the rules made under this Act have been substantially complied with, and

(b) adequate precautions have been taken in the place, in respect of which the licence is to be granted, to provide for the safety, convenience and comfort of the persons attending exhibitions therein:

Provided that the licensing authority shall, before refusing to grant a licence under this Act, give the applicant an opportunity of showing cause against the proposed action. (3) The licensing authority may, after consideration of the matters set forth in Sub-section (1), limit the number of places in any area in respect of which licences under this Act may be granted.

(4) The Government may issue such orders and directions of a general character as they may consider necessary, in respect of any matter relating to licences for the exhibition of cinematograph films, to licensing authorities, and every licensing authority shall give effect to such orders and directions.

(5) Subject to the foregoing provisions of this section, the licensing authority may grant licences under this Act to such persons and on such terms and conditions and subject to such restrictions as it may determine.

(6) Every licence under this Act shall be personal to the person to whom it is granted and no transfer or assignment thereof, whether absolute or by way of security or otherwise, shall be valid unless approved in writing by the licensing authority;

(7) Any person aggrieved by the decision or order taken or passed by the licensing authority under this Act may, within such time as may be prescribed, appeal-

(i) where the licensing authority is the executive authority of a local authority to that local authority; and

(ii) in any other case, to such officer or authority as the Government may, by notification, specify in this behalf.

(8) It shall be competent for the District Collector to revise any order passed in appeal under Sub-section (7), either of his own motion or on the application of any party aggrieved by the order; Provided that no order shall be revised under this sub-section without giving an opportunity to show cause to the party who may be affected by the order.'

Section 6 of the said Act deals with the question of permission of construction and reconstruction of buildings and installation of machinery etc., for cinematograph exhibitions to be granted by the licensing authority. It may be noted that the provisions of Sections 5, 10 and 11 relating to licences apply to permissions under Section 6 as far as may be. Therefore in regard to granting of permission the licensing authority has to take into consideration the 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. The grant of permission would be subject to appeal to the local authority and to revision by the District Collector. The Panchayat in the instant case has dismissed the appeal filed by the petitioner against the grant of permission on the ground that the licence has not been granted at that time by the Executive Officer to the 4th respondent. This is an absolutely erroneous approach. There can be no doubt from Ext. P-1 that the appeal was against the grant of permission for the construction of a shed for exhibition of cinema shows by the 4th respondent. The fact that licence had not been granted at that time is not significant at all in the matter of considering the merits of the appeal. When the illegal order of the Panchayat concerned was taken up in appeal before the District Collector, surprisingly he also dismissed it on the ground that on the date of the revision petition there was no order by the Executive Officer, granting licence to the 4th respondent and therefore the orders of the Panchayat dated 24-5-1974 are in accordance with rules. The District Collector has not obviously gone through the petition. The revision has been filed against the order of the Panchayat dated 24-5-1974 which is contained in Ext P-2. The appeal before the Panchayat is Ext. P-1, which would indicate that the appeal was against the order granting permission. It may be noted that when the matter came before this Court in the earlier stage this court has also stated that the petitioner's appeal before the Panchayat was questioning the permission granted to the 4th respondent to construct the temporary cinema shed. In the statement of facts in the judgment, Ext. P-6, this court says in paragraph 2-

'The 4th respondent appears to have filed an application to construct a temporary cinema shed. Now I am told that the said permission was granted on 15-4-1974. The petitioner, who is running a cinema nearby, filed Ext. P-1 appeal before the Panchayat questioning the permission granted to the 4th respondent to construct a temporary cinemashed. The Panchayat, who is the 2nd respondent here, dismissed the said appeal as per Ext. P-2, order, which is a laconic order. The order stated that the executive officer has not granted a licence to the 4th respondent to exhibit cinema. The petitioner thereupon filed a revision petition before the 3rd respondent, District Collector, Cannanore, on 14-7-1974 and also applied for stay of granting of the licence to the 4th respondent till the disposal of the revision petition. Since no orders were passed on the said revision and on his request for stay the present writ petition was filed on 15-10-1974.'

There has been a refusal to exercise of jurisdiction vested in the authorities concerned viz-, the Panchayat and the District Collector in the orders passed, Exts, P-2 and P-9. No doubt it is vehemently contended by Mr. M. P. R. Nair, that the revision before the Collector proceeded on the basis that licence has been granted and the attack was against the grant of licence. No doubt the petitioner might have taken a contention that licence had also been granted but a reading of the appeal memo before the Panchayat as well as the revision memo before the District Collector would make it absolutely clear that what was impugned before the two authorities was the grant of permission under Section 6 of the Act

10. It is also very strongly contended before me on behalf of the Executive Officer as well as on behalf of' the 4th respondent that the petitioner has no locus standi to object to the grant of permission or licence. Various decisions were also cited before me on this question. However, in the nature of the statutory provisions concerned, I do not consider it necessary to go into all the authorities cited before me. Section 6 of the Cinema (Regulation) Act, as stated earlier, imposes in the matter of granting permission consideration of the same factors which have to be taken into account in the matter of granting licence. Therefore, the licensing authority has to take into consideration any representation made by persons already giving cinematographic exhibitions in or near the proposed locality, in the matter of granting permission to a fresh applicant in the matter of permission to use any place for the exhibition of cinematograph films. The petitioner is therefore entitled to make representation in the matter and when granting any new permission the appropriate authority has to take into consideration such representations made by the persons aggrieved. As I pointed out in an earlier decision of mine Divakaran v. Deputy Director of Fisheries (1974Ker LT 860) = (AIR 1975 Ker 9) 'where a person has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered, the court can step in to redress the grievance of the person concerned'. The petitioner has got such distinct interest from the statutory provision itself to make representations in the matter of granting permission to new entrants in the business. As Lord Denning points out in Maurice v. L. C. C. (1967) 2 Q. B. 362 at p. 378--

'I know that at one time the words 'person aggrieved' (which I regard as the same as 'person who shall deem himself aggrieved') were given in these courts a very narrow and restricted interpretation. It was said that the words 'person aggrieved' in a statute only meant a person who had suffered a legal grievance. Indeed in Buxton v. Minister of Housing and Local Government ((1961) 1 Q. B. 278), which I mentioned in the course of the argument, Salmon J. declined to go into the question of loss of amenities. But that narrow view should now be rejected. In the more recent case of Attorney-General of the Gambia v. N'Jie (1961 A. C. 617, 634) the Privy Council had to consider these words 'Persons aggrieved' once again. On behalf of the Board, I ventured to say there: 'The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in this which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.' So here in this case they do include a person who has a genuine grievance because a consent has been given which prejudicially affects his interests.'

On the basis of the aforementioned decision Justice K.K. Mathew as he then was, held in Madhavan Pillai v. State of Kerala (1965 Ker LT 284) = (AIR 1965 Ker 301) that a person who is conducting school in an area is entitled to agitate the question of granting of sanction of new school in the area by the Government His Lordship said in that decision--

'It was submitted on behalf of the Government that the petitioner has no legal grievance in this matter and therefore the petition is not maintainable. The learned Government Pleader said that, even assuming that the Government have violated the provisions of Rule 9 in Chapter V of the Kerala Education Rules in granting the sanction that would not give the petitioner standing to agitate the question in this proceeding unless his legalright to manage his school is affected. In other words, the argument was that by sanctioning the opening of the new schools, no right of the petitioner has been violated as the petitioner cannot claim immunity from competition as a legal right. It was argued that the loss if any to the petitioner is something which the law does not take cognizance of, I must say that I am not very much impressed by the argument for the reason that the establishment and conduct of aided schools are governed by the Kerala Education Act and the rules framed thereunder. Conditions regulating the establishment and maintenance of the schools have been laid down in the Act and the Rules. A person who conducts a school can normally expect that the Government will sanction the opening of a new school in the locality only subject to the conditions laid down in Chapter V of the Kerala Education Rules, and if a new school is permitted to be opened in violation of the rules in that Chapter the person already running a school in the area has a standing to question the order sanctioning the new school. It was submitted by the Government Pleader that the petitioner derives no profits from running his school and therefore there is no question of any economic loss to the petitioner arising from competition by reason of the opening of the new schools. But economic loss is not the only kind of detriment which law will take cognizance of in order to give a standing to a person to apply for certiorari.' Professor H. W. R. Wade in his well-known book on Administrative Law says at page 135 (2nd Ed. 1967)-- 'It is certainly unfortunate if statutes which apparently give wide remedies are held to cut down the citizens opportunities for disputing unlawful action, and to shift the basis of the remedy from public order to private interest.'

The whole scheme behind Sections 5 and 6 of the Cinema (Regulation) Act has to be looked into to see if a person like the petitioner is a person aggrieved in the matter of granting licence or permission under the Sections and having regard to the right given to him to object to such issuance of licence or direction, he would certainly be a person aggrieved in the matter.

11. Therefore I would set aside Ext. P-2 and Ext. P-9. The second respondent--the panchayat concerned has to reconsider the whole question as regards the grant of permission in the appeal that has been filed by the petitioner, Ext. P-1 before it and it should be disposed of by the Panchayat in accordance with law. No doubt the petitioner isentitled to take the matter before the District Collector, if the Panchayat is against him. In the matter of the issuance of the licence in respect of which appeals, Exts. P-8 and P-8 (a) are pending, filed respectively under the Cinema (Regulation) Act and the Places of Public Resort Act, 1 do not consider it necessary to go into the questions raised as regards the same in this proceeding. The Panchayat will dispose of those appeals preferred before it by the petitioner in accordance with law. In view of the fact that I have quashed Exts. P2 and P-9 it will be only in the interests of justice if I direct that the licence issued to the 4th respondent be kept in abeyance till all the appeals of the petitioner, Exts. P-1, P-8 and P-8 (a) are disposed of by the Panchayat. There will be such a direction. The O. P. is disposed of as above, but there will be no order as to costs, in the circumstances of the case.


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