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V.D. Kumarappan Vs. Secretary, Home Department, Trivandrum - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberO.P. No. 1295 of 1959
Judge
Reported inAIR1960Ker378
ActsKerala Cinemas (Regulation) Act, 1958 - Sections 12; Constitution of India - Article 226
AppellantV.D. Kumarappan
RespondentSecretary, Home Department, Trivandrum
Appellant Advocate V. Bhaskaran Nambiar, Adv.
Respondent Advocate Govt. Pleader and; V.R. Krishna Iyer and; T. Karunakaran
DispositionApplication dismissed
Cases ReferredKing v. Richmond Confirming Authority
Excerpt:
.....for the loan advanced by the corporation. section 29 is a complete code by itself. liability of principal-debtor and surety is always joint and co-extensive. [n. narasimhaiah v karnataka state financial corporation, air 2004 kar 46 dissented from]. - the petitioner is a 'party aggrieved',and has a locus standi under article 226. it is well settled, that only a party aggrieved can apply for certiorari. ' i am not satisfied that this lias been established by the petitioner. ' 1901-2 kb 157 was clearly a case of trade rivals......to the competency of this petition on behalf of the respondents, that the petitioner is not a 'party aggrieved' and is not therefore entitled to apply tor certiorari under article 226 of the constitution. the petitioner's counsel maintained, that, firstly, as the landlord of umayal talkies, secondly, as a party to the proceeding which originated in the second respondent's application for licence and culminated in the impugned order, and thirdly, as a paity 'affected' by that order within the meaning of the proviso to section 12 of the act. the petitioner is a 'party aggrieved', and has a locus standi under article 226. it is well settled, that only a party aggrieved can apply for certiorari. the rule has been stated thus, in ii halsburys laws of england, simonds edition, page 140,.....
Judgment:
ORDER

S. Velu Pillai, J.

1. The petitioner is the owner of the Rite, building and equipments known as Umayal Talkies, Cannanore, to be referred to hereafter as 'Umayal Talkies' which were leased by him to the second respondent for a period of two years from December 1, 1956. Before the expiry of the term of the lease, the petitioner had issued to him a Notice to quit and had not assented afterwards to his continuance in possession.

After the lease, the second respondent had been exhibiting cinematograph films in Umayal Talkies, under a licence which expired on June 30, 1959 and when he made an application for a fresh licence under the provisions of the Kerala Cinemas (Regulation) Act, 1958, which may be referred to hereafter as the 'Act', the petitioner objected on the ground that his possession of Umayal Talkies was unlawful, and that he had not produced before the licensing Authority under the Act, who was the Commissioner of the Municipal Council, Cannanore. 'documentary evidence to show, that he is in lawful possession' thereof, as required by Rule 7A of the Kerala Cinemas (Regulation) Rules, 1958, which may be referred to hereafter as the Rules.

The Commissioner granted a licence to the second respondent for the period commencing from July 1, 1959 and ending with June 30, 1960. The petitioner preferred an appeal under Section 5(7)(i) of the Act to the Municipal Council, Cannanore, which dismissed his appeal; he then moved the District Collector, Cannanore who under Section 5(8) of the Act set aside the order of the Municipal Council on the ground, that Rule 7A had not been complied with. The second respondent then applied to the Government of the State of Kerala, impleaded as the first respondent in this petition, under Section 12 of the Act, to revise the order of the District Collector.

The petitioner's complaint is, that without issuing notice to him, or hearing him, the first respondent passed an order, Ext. P-3, on November 12, 1959, setting aside the District Collector's order. This petition is to quash Ext. P3 on the ground that it was passed in violation of the principles of natural justice, embodied in the proviso to Section 12 of the Act, which enacts that:

'no order shall be passed under this section (Section 12) without giving an opportunity to show cause to the party who may be affected by the order.'

On the merits, the ' petitioner, has reiterated his objection, that R. 7A was not complied with by the second respondent.

2. A preliminary objection was taken to the competency of this petition on behalf of the respondents, that the petitioner is not a 'party aggrieved' and is not therefore entitled to apply tor certiorari under Article 226 of the Constitution. The petitioner's counsel maintained, that, firstly, as the landlord of Umayal Talkies, secondly, as a party to the proceeding which originated in the second respondent's application for licence and culminated in the impugned order, and thirdly, as a paity 'affected' by that order within the meaning of the proviso to Section 12 of the Act. the petitioner is a 'party aggrieved', and has a locus standi under Article 226. It is well settled, that only a party aggrieved can apply for certiorari. The rule has been stated thus, in II Halsburys Laws of England, Simonds Edition, page 140, paragraph 265;

'Although the order is not of course it will though discretionary nevertheless be granted ex debito justitiae to quash proceedings which the court has power to quash, where it is shown that the court below has acted without jurisdiction or in Excess of jurisdiction, if the application is made by aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief and this is, the case even though certiorari is taken away by statute and although there is an alternative remedy.'

The Supreme Court has laid down in State of Orissa v. Madan Gopal, AIR 1952 SC 12, that the existence of a right is the foundation of the exercise of jurisdiction of the court under Art, 226. The petitioner's first claim founded on his right as landlord cannot be sustained, for, the grant of a licence to the second respondent can in no way impair his right to recover possession of Umayal Talkies, if he is otherwise entitled, just as the refusal of a licence can in no way enlarge his rights.

3. At a late stage of these proceedings under Article 226, the petitioner set up a new ground of claim, as a trade or business rival of the second respondent in cinematograph exhibition, in his theatre at Cliovva, about four miles distant from Umayal Talkies; this was founded apparently on the provisions of Section 5(1)(f) of the Act. Section 5(1) which enumerates the matters which the licensing Authority may take into consideration in deciding to grant or to refuse a licence, may be quoted:

Section 5(1) : 'The licencing 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 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, licenced 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 local authority or not, or by any Police authority within whose jurisdiction the place proposed to be licenced is situated or by any association interested in the giving of cinematograph exhibitions''.

A representation which the petitioner might have made in his capacity as a rival exhibitor of cinematograph, in or near Umayal Talkies, is covered, by Clause (f) above; but none was so made, and. it is not for the petitioner to make out a new case before this court, and that too, in an affidavit filed at a late stage, which the respondents were not bound to controvert. The above ground cannot be accepted,

4. It was next contended, that the petitioner must be deemed to be a party aggrieved as he had been contesting the claim of the second respondent for a licence from the beginning till the matter was disposed of by the Collector. It seems to me, that it is not open to a person having no legal right, to qualify himself, as it were, to apply for certiorari, by preferring an objection, of what ever character or validity before an. Authority and then to contend, that he has acquired a locus standi because his objections were considered and disposed of by it; otherwise even a wayfarer may do so.

The case of Ex parte Official Receiver, In re Beed Bowen and Co., (1887) 19 QB 174, is different, for, by virtue of Section 20 of Bankruptcy Act/ 1883 and Rule. 191 of Bankruptcy Rules, 1886, the official receiver was in the position of a party to a litigation before a judicial tribunal; so too, is In re. Lamb v. Ex parte, Board of Trade, (1894) 2 QB 805. It may be mentioned that Lord Esher, M. R. who took part in the decision of these two cases, adopted the definition of a 'party aggrieved' by James, L.J., in Ex parte, Sidebotham, In re, Sidebotnam, (1880) 14 Ch. D. 458 at p. 465, to be adverted to presently, which has been accepted in several cases and which, if applied to the petitioner, would put him out of court.

Ebrahim Aboobakar v. Custodian General of Evacuee Property New Delhi, AIR 1952 SC 319, was decided by the Supreme Court upon the provisions of the Government of India Ordinance XXVII of 1949, and afterwards replaced by the Administration -of Evacuee Property Act, 1950 and of Rules thereunder, which conferred a right, on an informant touching the existence of evacuee property, to join issue with a claimant with respect to it, by filing statements and adducing evidence, who is entitled on his establishing the truth of his information, to the first consideration in the allotment of property; such informant was held to be a 'party aggrieved' for preferring an appeal. These cases are distinguishable; so too, are cases of trade rivals.

P. K. N. Adbul Mazid v. State of Madras, (S) AIR 1957 Mad 551, was a case of contest between two rival owners of rice mills; but a provision giving a statutory right to object to the grant of a licence, was stated not to furnish an exclusive test for deciding whether a party is aggrieved or not, and in Ramappa v. Secretary, Revenue Department, AIR 1959 Andh-Pra 318 it was held, that no legal right can accrue by the mere fact that the subordinate revenue authorities have heard representations or objections. The matter can be viewed from 3 different angle. Often a decision against a person preferring an objection of this character is a decision on behalf of the community. Section A. de Smith observes in Judicial Review of Administrative Action, at page 39, that when a member of the public appears to oppose an application before a licencing tribunal:

'Superficially the tribunal seems to be deciding a lis inter partes; but if it decides to refuse the application it is not deciding in favour of the objector; it is deciding that it is not in the public interest to grant the licence, and the decision is in effect in favour of the public at large, who are not directly represented at the hearing.'

I therefore find it difficult to accept this part of the contention of the petitioner.

5. It remains to consider, whether the petitioner can be deemed to be a 'party aggrieved' by the decision of the first respondent. It is true, that in preferring the revision petition under Section 12 of the Act, the second respondent impleaded the petitioner, as a party. Though an argument seems to be open, on the difference in language in Section 12 on the one hand, and in Section 5(8) relating to revision petitions before the District Collector and in Section 5(7) relating to appeals on the other, that the jurisdiction under Section 12 is meant to be exercised by the first respondent only suo motu, it is unnecessary to decide the controversy in this case.

It may however be stated, that the file does show, that the first respondent adverted to the preliminary question, whether under the proviso to Section 12, notice ought to issue to the petitioner, and decided that it need not. The question when a party can be said to be aggrieved by a decision or order, has come up for consideration in several cases A definition of the term was evolved by James, L.J., in 1880-14 Ch D 458 already referred to, in thesd terms :

'But the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a mar. who. has suffered a legal grievence, a man against whom a decision has been pronounced which has wrongfully deprived him of something or vrongfully refused him something or wrongfully affected his title to something.'

In 1887-19 QBD 174, Lord Esher, M. R., accepied the definition' but qualified the word 'something' adding that 'it must be something for which he had a right to ask.'' In Ealing Corporation v. Jones, (1959) 2 W. L. R. 194. Lord Parker said:

'A person aggrieved is not a person who. is disappointed or annoyed at the decision, and in the same case Donovan, J,, observed, that though without reference to judicial decisions and in common parlance, the words

'a person aggrieved by a decision means no more than a person who had had the decision given against him....... courts have held that the word 'aggrieved' is not synonymous in this context with the word 'dissatisfied',

but cannotes 'some legal grievance, for example, a deprivation of something, an adverse effect on the title to something and so on.' The definition given by James, L.J., was adopted in India in Balgovind v. Chaganlal Laxminarayan, AIR 1949 Nag 24, and in Jhabba Lal v. Shib Charan Das, ILK 39 All 152: (AIR 1917 All 160), decided under Section 75 of the Provincial Insolvency Act, 1920, which has enacted, that:

'The debtor............. or any other person aggrieved by a decision come to or an order made in the exercise of Insolvency jurisdiction by a court subordinate to a District Court may appeal to the District Court and the order of the District Court upon such appeal shall be final.' It is unnecessary to cite other cases decided by the High Courts, which have accepted this definition. But it was claimed, by the learned counsel, that under the proviso to Section 12, the petitioner is a party 'affected' by the order of the first respondent. The distinction, if any, is not particularly relevant for deciding the issue as to locus standi. The word 'affect' means, according, to the Chamber's Twentieth Century Dictionary, 'to produce change',

and according to the Webster's new International Dictionary 'to act upon or to produce an effect upon.'

The words 'affected by the order', in law must therefore imply, that the order must bring about or produce a change in the petitioner's legal rights. In short, the words 'affected' and 'aggrieved', though not synonymous are analogous. I think, adopting partially the language of Ferris in his work on Extraordinary Legal Remedies, page 199, an order may be said to affect a person when it is 'directed against him or his property in the sense that the enforcement of the decision would involve tome special, immediate and in its effect a direct Injury to his interests.' I am not satisfied that this lias been established by the petitioner.

6. Very great reliance was placed on the following observations of Ramachandra Iyer, J. in Issardas Somamal Lulla v. Collector of Madras, AIR 1959 Mad 528:

'It is therefore, clear that, where an inferior Tribunal has exceeded its jurisdiction apart from the question of the subsistence of any right, a party to the proceeding before the inferior Tribunal will be entitled to apply for the issue of a writ of certiorari. He would be a person aggrieved by reason of the fact that he contested the application before the Tribunal and that contest was overruled .........He having been a party to a proceeding before thee respondent would be entitled to apply under Article 226...... as a person aggrieved by that order. In such a case the writ should be issued to quash an order passed without jurisdiction, ex debito justitiae.' It must at once be stated, that these observations occur in a case in which the contesting parties in effect stated, that, the order sought to be quashed was made without jurisdiction, and I cannot agree that they apply, apart from cases of defect of jurisdiction, which for this purpose, have been considered to stand on a different footing. The learned judge relied on R. v. Groom : Ex parte, Cobbold, L. R. (1901) 2 KB 157, where an applicant for a licence for the sale of intoxicating liquor in a house in the course of erection in a borough was opposed by two firms of brewers.

On a motion for certiorari to quash the licence granted, counsel for the licencee while agreeing that the brewers who have obtained the rule nisi, are rivals in trade, contended, that they have no interest in the particular house in respect of which the licence was granted and are not therefore persons aggrieved, but counsel for the brewers replied, that they were persons aggrieved by the Licencing Justice's decision. Lord Alverstone, C.J., remarked in his judgment, that 'It is sufficient if they (the brewers) have a real [nterest in the decision of the justices (licencing) and they have in this case.'

1901-2 KB 157 was clearly a case of trade rivals. The other case relied on, which is relevant in this context, was King v. Richmond Confirming Authority, Ex parte, Howitt, (1921) 1 KB 248, which was also a case of trade rivals and in which what is more, the definition of 'party aggrieved,' in 1880-14 Ch D 458 was approved. It seems to me, that it is not permissible to the' learned counsel for the petitioner to contend, that Ramacbandra lyer, J,, intended to lay down a different principle.

7. For the foregoing reasons, I come to theconclusion, that the petitioner has not establishedhis locus standi to move under Article 226. Themerits of the case do not therefore arise for consideration. The petition is dismissed, but in thenature of the questions involved, I do not make anyorder for costs.


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