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Manmal and ors. Vs. Bhure Khan - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 238/1983
Judge
Reported in1983WLN(UC)561
AppellantManmal and ors.
RespondentBhure Khan
DispositionPetition dismissed
Cases ReferredGyani Devi v. Geeta Bajaj
Excerpt:
civil procedure code - order 39, rule 1 & 2--rajasthan cinema regulation rules--rule 16--licence granted by licensing authority--held, presumption of official acts being done in prescribed manner can be raised and question of prior approval of state government cannot be disposed of in proceedings under order 39, rules 1 & 2.;when the licensing authority had granted the licence, a presumption can be raised that all official acts have been done in the prescribed manner and, therefore, it may be assumed that prior approval of the state government may have been obtained, but in any case, this also is a subject-matter of dispute to be decided at the final stage of the suit. in these proceeding under order 39, rules 1 & 2, this matter cannot be disposed of finally.;(b) rajasthan..........and the children's happy school were also within a distance of 200 meters from the proposed cinema house, ft was also their case that this cinema was being constructed in a residential locality, that there were already five cinema house in existence and the addition of one cinema more in that locality would create nuisance; that the area over which the cinema house is to be constructed is also less than the prescribed area; that the land on which the cinema house is being constructed does not belong to the defendant; that the construction of the cinema house will create problems of traffic and shall also vitiate the locality. the bouses in the surrounding area would be deprived of their air and light on account of the height of the cinema house and that it was also not specified.....
Judgment:

K.S. Lodha, J.

1. This is a plaintiffs civil revision and arises under the following circumstances,--The plaintiffs Manmal and others filed a suit for a permanent injunction against the defendant Bherukhan asking for a permanent injunction restraining the defendant from constructing a cinema house in Vyasji-ka-Nohra, Chopasani Road, Jodhpur and for a declaration that the no objection certificate granted to him in this respect was invalid and was liable to be cancelled. Along with the plaint, they also applied for a temporary injunction. The case of the plaintiffs was that the no objection certificate which was granted to the defendant was in contravention of the rules under the Rajasthan Cinemas Regulation Act (hereinafter called 'the Act.') in as much as the proposed cinema was within 200 meters of the Ummed Hospital which has a large indoor patient ward and two educational institutions, namely,. Tilak Bal Vidyalaya and the Children's Happy School were also within a distance of 200 meters from the proposed cinema house, ft was also their case that this cinema was being constructed in a residential locality, that there were already five cinema house in existence and the addition of one cinema more in that locality would create nuisance; that the area over which the cinema house is to be constructed is also less than the prescribed area; that the land on which the cinema house is being constructed does not belong to the defendant; that the construction of the cinema house will create problems of traffic and shall also vitiate the locality. The bouses in the surrounding area would be deprived of their air and light on account of the height of the cinema house and that it was also not specified as to what type of machinery etc. would be installed in the cinema house. In these circumstances, the construction of the cinema house should be restrained. The defendant contested the application and traversed almost all these grounds. After considering the material on record consisting of the affidavits of the parties as also other material, the learned trial court granted temporary injunction in favour of the plaintiffs on the main ground that the proposed cinema house was within a distance of 200 meters from Ummed Hospital and also the educational institutions referred to above. He did not accept the other contentions of the plaintiff. Aggrieved of this order of the learned Munsif dated 8-11-82, the defendant went up in appeal and the learned Civil Judge, Jodhpur, by his order dated 4-6 83, accepted the appeal set aside the order of the learned Munsif dated 8-11-82 and vacated the temporary injunction. The plaintiffs have now come up in revision.

2. I have heard the learned Counsel for the parties and have gone through the record.

3. A preliminary objection has been raised by the learned Counsel for the non-petitioner that the revision is not maintainable. The order passed by the learned Civil Judge was perfectly within his jurisdiction and does not suffer from any error of jurisdiction. Reliance was placed upon D.L.F. Housing etc. Co. v. Sarupsingh : [1970]2SCR368 , Hindustan Aeronautics v. Ajit Prasad : (1972)ILLJ170SC and a case decided by this Court Gopal lal v. Sheopat Singh, Civil Revision No. 233 of 1983 decided on 21-7-83. The learned Counsel for the petitioners, on the other hand, urged that the learned Civil Judge has decided the case by ignoring the relevant rules prevalent at the time of the grant of the no objection certificate and he has also ignored the affidavits of the parties and has based his judgment merely on the site inspection report made by the commissioner appointed by that court and, therefore, he has clearly committed an error of jurisdiction and, therefore, the revision is maintainable. In my opinion, this preliminary objection need not detain me because, as a matter of fact, the main consideration in this revision is about the applicability and complinace of the rules themselves and the court below has given a categorical finding at this stage about the substantial compliance of the Rules, which in my opinion, should not have been given at this stage, as it amounts to prejudging the suit itself, the revision deserves to be heard on merits. The cases relied upon by the learned counsel for the non-petitioner, in these circumstances, are not of much avail.

4. Now, coming to the merits of the revision, it may at once be said that it is by now well settled that for the grant or refusal of a temporary injunction, three conditions, namely, prime facie case, balance of convenience and irreparable injury have to be taken into consideration and for grant of a temporary injunction, all these three conditions, not only one or two, must be in favour of the applicant. So far as the question of prima facie case goes, it, also, is well settled that prima facie case only means that there must be a serious and substantial question for trial at the suit and it does not necessarily mean that the plaintiff must establish, even prima facie, that he is likely to succeed in the suit. With this background, let me consider the' question of prima facie case in this matter.

5. The findings of the learned Civil Judge are that the main indoor patient ward of Ummed Hospital is about 1100 feet away from the central point of the proposed cinema house and even the boundary well of the main hospital is almost 200 meters away from the proposed cinema house. Similarly, the Tilak Bal Vidyalaya is about 583 feet away and the Children's Happy School is about 650 feet away from the central point of the proposed cinema house and keeping these in view (200 meters-666ft.) the learned Civil Judge was of the view that there was a substantial compliance with the provisions of Rule 16 of the Rules. He was further of the view that even if there was some discrepancy about he distance as required by Rule 16, the State appears to have relaxed the strict compliance of Rule 16 and the licencing authority must have granted the licence keeping this in view. So far as the question of residential locallity etc. is concerned, he was of the opinion that what was meant by these terms was left to the consideration of the licensing authority itself and the court need not and cannot interfere with the interpretation put by that authority. So far as the questions of balance of convenience and irreparable injury are concerned, he was of the opinion that these two factors were also in favour of the defendant, rather than the plaintiff.

6. Now, the no objection certificate has been granred to the defendant on 1-5-82. Naturally, the rules which were in force at that time were the rules as amended on 10-7-80. The relevant rule with which we are concerned, is Rule 16. For the purpose of convenience, this rule may be reproduced here in extenso:

16 Situation for a Cinema:--(1) No permanent building except that already licensed on the commencement of these rules shall be licensed for cinematograph exhibition if it is situated:

(a) within a radius of 200 meters from:

(i) any recognised educational institution, or residential premises utilised for residence of the students attached to a recognised educational institution, which imparts education to the students above VIII standard and which has 250 or more students on its rolls; or

(ii) a public hospital with a large indoor patient ward; or

(iii) an orphanage containing one hundred or more inmates;

(b) in a residential area.

EXPLANATION:

(a) The radius of 200 meters shall be taken from the end corners of the building of the institution etc. referred to above.

(b) An area shall be considered as residential if it is predominantly used as such even though it is also used for commercial purpose and there exist such circumstances on account of which the grant of a licence is likely to interfere adversely with the living conditions of the inhabitants of that area.

(2) For the purpose of this rule, the Licensing Authority shall, subject to the general control of the State Government determine what is a hospital, a recognised educational institution, residential premises utilised for the residence of students, a large indoor patient ward, a residential area or predominantly residential area and its decision shall be final and conclusive:

Provided that the Licensing Authority may for sufficient reasons and with the prior approval of the State Government relax this rule or any part thereof, in any case and specially in case of cinemas already completed or nearing completion prior to the commencement of these rules:

Provided further that in relating this rule or any part thereof the State Government shall take into consideration the nature of the proposed building and whether or not it is sound proof or is within a radius of 50 ft. from any petrol pump or any shop or store dealing in highly combutsible material or is airconditioned.

(3) In the case of new areas schemed or planned by any Urban Improvement Trust or Municipality, a building shall be licensed for Cinematograph exhibition, if, subject to the provisions of Sub-rule (1) and (2) above, it is situated within the area earmarked for Cinemas for commercial use in the concerned plan or scheme.

The explanation under Clause (b) of Rule 16(1) says that the radius of 200 meters shall be taken from the end corners of the building of the institution etc. referred to above. Now, there is a serious controversy between the parties about the meaning of the words 'end corner of the building'.According to the plaintiffs, the end corner of the building means the end corner of the boundary wall of the premises in question whereas according to the defendant, it means the end corner of the main building, that is, the hospital itself, in which the indoor patient ward is situated. It may at once be stated that the interpretation of this explanation is not free from doubt or difficulty. 'Building' in some cases, does include the boundary wall of the building but in the context of the other provisions of a particular statute, building may only mean the main building, not including the boundary wall. The main question in the suit itself centres round this interpretation and I will, therefore, refrain myself from making any firm observations or giving a final decision in this respect, lest it should prejudice the rights of one party or the other in the main suit but it does appear that there is a serious question to be tried in the suit in as much as if the end corner of the boundary wall is to be taken into consideration the hospital may be held to be within 200 meters of the proposed cinema house, and if the end corner of the main hospital building is to be taken into consideration, it would be beyond 200 meters of the cinema hall. Similarly, the question about the recognised educational institutions and the residential premisses attached to such institutions is also a matter of dispute in the present case. In Sub-clause (1) of Clause (a) of Sub-rule (1) of Rule 16, the words 'any recognised educational institution, or residential premises attached to a recognised educational institution' are also a matter of dispute in the present case. In the aforesaid Sub-clause, the words are, 'any recognised educational institution, or residential premises utilised for the residence of the students attached to a recognised educational institution, which imparts education to the students above VIII standard and which has 200 or more students on its rolls'. The learned counsel for the plaintiffs urges that the last clause 'which imparts education to the students above VIII standard and which has 200 or more students on its rolls' governs only the residential pre-mises attached to the recognised educational institution and does not govern the first clause, namely, 'the recognised educational institution' and, therefore, even if the recognised educational institution does not impart education to students above VIII standard and which does not have 200 or more students on its rolls, would be considered for the purposes of the distance of 200 meters from the cinema house whereas the learned Counsel for defendant urges that this last clause also governs the first clause and the recognised educational institution must be such which impart education to students above VIII standard and which has 200 or more students on its rolls. Therefore, this also appears to be a serious question for trial in the suit. The two interpretations as already stated above, are possible. which of the two is to be adopted, is to be decided at the final stage of the suit. If the first clause is also to be governed by the last clause, then the two institutions Tilak Bal Vidyalaya and Children's Happy School would fall out of consideration and if, on the other hand, the last clause does not govern or does not apply to the first clause, then they have to be taken into consideration although they may not be institutions where the students are imparted education above VIII standard and may or may not have 200 or more students on their rolls.

7. The learned Civil Judge has referred to the report of Shri S.N. Pungalia and has based his findings on the measurements given by him. Shri Pungalia has measured the distance from the point of view of the plaintiffs as well as the defendant in accordance with the different interpretations of the Rules. He has stated that the boundry wall of the hospital as shown by the defendant-appellant was 668 ft. away from the central point of cinema house. Thereafter, at a distance of 84 ft., are situated servant quarters, further at a distance 110 ft. there is the kitchen of the hotpital, at still 92 ft. distance is situated the cottage ward and from there, at a distance of 59 ft. is situated the patient ward and in this manner, the indoor patient ward is at a distance of 113 ft. from the cinema house. Measured from the point of view of the plaintiffs, the distances stated by Mr. Pungalia are that the boundary wall of the hospital is at a distance of 210 ft. from the central point of the cinema house; from there, at a distance of 70 ft. are the flats meant for the doctors. then at a distance of 346 ft. there is another boundary wall which according to the defendant is the main boundary wall of the hospital, from this boundary wall at a distance of 182 ft. are the cottages and in between, there is a Nursing Lecture Room and at a distance of 199 ft from there, is the indoor patient ward and thus, the indoor patient ward was about 1019 ft. away from the central point of the proposed cinema house. From this it would appear that there are two boundary walls, one boundary walls alleged to be around the main building of the hospital and there is another boundary wall which includes the area, in which the flats meant for the doctors, nurses etc. are situated. In these circumstances also, it does appear that there would be a serious question for trial as to which boundary wall can be said to be really the boundary wall of the hospital.

8. The learned Civil Judge has also observed that even if the hospital and the educational institutions are within 200 meters of the proposed cinema house, the compliance of Rule 16 in this respect appears to have been relaxed. So far as the question of relaxation in compliance with Rule 16 is concerned, this aspect of the matter again is not free from dispute or difficulty. The first proviso to Sub-rule (2) of Rule 16 provides that the licensing authority may, for sufficient reasons and with the prior approval of the State Government, relax this rule or any part thereof in any case and specially in case of cinemas already completed or nearing completion prior to the commencement of these rules. It is urged by the learned Counsel for the plaintiffs-petitioners. that there is nothing on the record to show that prior approval of the State Govrnment had been obtained by the licensing authority before granting the no objection certificate by relaxing any of the conditions mentioned in Rule 116. This does appear that there is no material on the record to show that as a matter of fact such prior approval had been obtained by the licensing authority but then again when the licensing authority had granted the licence, a presumption can be raised that all official acts have been done in the prescribed manner and, therefore, it may be assumed that prior approval of the State Government may have been obtained, but in any case, this also is a subject matter of dispute to be decided at the final stage of the suit. In these proceedings under Order 39, Rules 1 and 2, this matter cannot be disposed of finally.

9. There is another aspect of the matter for consideration. Of course, at the time the no objection certificate was granted, the rules as amended on 10-7-80 were in force, but thereafter, on 30-3-83, these rules, and specially Rule 16 have further been amended and now Rule 16 of the Rules, as amended stands as under:

16. Situation--(1) No person shall put up any building or structure or convert existing premises for being used as a cinema except with the previous permission in writing of the licencing authority.

(2) In case of cities having a population of one lakh and above, the licensing authority may grant permission for construction of mini cinemas having a seating capacity of not more than 500 seats:

Provided that while granting such permission Sub-rules (1) and (2) above the licensing authority shall statisfy itself about the suitability of site for construction of cinema building or structure or conversion of existing premises for being used as a cinema, keeping in view the instructions issued in this behalf by the State Government from time to time.

At present, only a no objection certificate for raising the cinema house has been grantedt to the defendant. At the time of the grant of this no objection certificate, there was no specific provision for the grant of such a no objection certificate though now of course such provision has been made by the aforesaid amendment dated 30-3-83 and Rule 4(a) has been inserted. The question as to what was the effect of the absence of a provision for the grant of no objection certificate came up for consideration before a Division Bench of this Court in Gyani Devi v. Geeta Bajaj, D.B. Special Appeal No. 26 of 1982 and it was held by the learned Division Bench by its judgment dated 28-2-83 that even in the absence of such a specific provision, the application for grant of licence itself can be deemed to be an application for grant of no objection so far as the building of the site of the cinema house is concerned. However, while making this observation, the court further observed:.we are of the view that the application submitted by the appellant in Form-A prescribed under the Rules is a valid application and should have been considered as the application for grant of 'no objection certificate' with regard to the site as well as for permission to construct the cinema building as per the plans attached there to and the same application should be considered sufficient for seeking permission to instal machinery and then finally for exhibition by means of cinematograph....

Thus, according to this authority, the application has to be considered at different stages, first for the site and construction of the building, then for permission to install machinery and then finally for exhibition by means of cinematograph. Earlier, in the course of the judgment, it had been observed,:

It would have been better if the Rules bad provided for an application for 'no objection certificate' with regard to the site and then another application with regard to the permission for construction of a building and then another application for seeking permission to instal the machinery in such building....

and it was in pursuance of these observations that the Court bad observed further that even one application can be considered for the different stages at different times. Therefore, it is possible that the application of the defendant-non-petitioner has only been considered at present for the purpose of site and the building but so far as the other stages, namely, the installation of the machinery and the exhibition are concerned, these aspects are still to be considered at appropriate stages. It is, therefore, possible that at the time of the consideration of those later stages, the Rule 16 which has now come into force may have to be considered. I may mention here that it was urged by the learned Counsel for the petitioners that the matter has to be considered only from the point of view of the grant of licence even at this stage because the grant of no objection for the site of the building would naturally lead to the grant of a licence for the exhibition of the cinema itself and it cannot be hoped that after the grant of no objection for the site of the building, the other stages may be refused and, therefore, that consideration may only be formal. This may have been so if the rules had not been amended as stated above but with amendment of the rules, these further stages would in all probability be open for consideration. In Gyani Devi's case (supra), an observation was made by the court that the rules as amended on 10-7-80 had come into force after the grant of the no objection certificate on 23-5-80 and, therefore, they were not applicable. It may be observed that observation may be deemed to be restricted to the grant of the no objection certificate which was the only matter for consideration in that special appeal but so far as other stages of the application are concerned, it cannot necessarily be said that the new rules which have now come into force would not be applicable. It must, of course, be added that this observation by me, would not, in any way, bind the courts below so far as the final disposal of the suit is concerned and this observation should be deemed to be limited for the present purpose of the disposal of the application under Order 39, Rule 1 and 2, CPC only. In these circumstances, I am clearly of the opinion that a serious and substantial question does arise for the condideration of the court in the suit and, therefore, it can be said that there is a prima facie case in favour of the plaintiffs. In view of the matter as expressed above, I need not go into the authorities relied upon by the learned Counsel for both the parties so far as the question of distance and the manner in which the measurements have to be made or the question of relaxation of the Rules.

10. Now, I may consider the other two aspects of the matter, namely, the question of balance of convenience and irreparable injury. The learned Civil Judge has observed that the construction of the cinema building as such would not cause any inconvenience to the plaintiffs but on the other hand, the balance of convenience appears to be in favour of the defendant. According to him, the defendant has already got a no objection certificate. He has already cleared the site by demolishing the old houses standing thereon and has invested considerable amount in it. It also appears that no objection was raised by the plaintiffs at the time the old houses were being demolished with the intention of raising the cinema house. If the defendant is now restrained from raising the cinema house, he would be deprived of the proper use of the money invested and kept ready for further investment in this project. In the course of the judgment he has also found that the construction of the cinema house would neigher create any problems of traffice nor the air and light of the houses in the vicinity would be substantially effected. He has also found that there are commercial buildings near about and in the line of the cinema house propsed and, therefore, the construction of the cinema house would also not amount to a nuisance. These considerations, in my opinion, cannot be said to be improper or irrelevant. In these circumstances, when this condition has been found in favour of the defendant, the mere fact that there is a prima facie case h favour of the plaintiffs the ptaintiffs would not be entitled to injunction sought for.

11. Similarly, on the question of irreparable injury the finding of the learned Civil Judge is in favour of the defendant and apparently when balance of convenience is in favour of the defendant, the plaintiffs would not be suffering any irreparable injury on account of this construction. The Ummed Hospital and the two educational institutions are at a considerable distance from the proposed cinema house though they may or may not be within the 200 meters raduis and, therefore, the patients and students are also not likely to be adversely affected. In this view of the matter, I do not find any reason to interfere with the order of the learned Civil Judge.

12. The result, therefore is, that this revision petition fails and 'is hereby rejected. However, looking to all the facts and circumstances of the case, I shall leave the parties to bear their own costs.


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