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T. Shanmugam (Kandan Touring Talkies) Vs. M. Arumugam, Proprietor, Prabhat Talkies and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Reported in(1960)1MLJ66
AppellantT. Shanmugam (Kandan Touring Talkies)
RespondentM. Arumugam, Proprietor, Prabhat Talkies and ors.
Cases ReferredMuthukumaran v. Murugan Touring Talikes W.P. Nos.
Excerpt:
- - the application shall be accompanied by a plan of the proposed site drawn to scale and shall clearly indicate the surrounding road and buildings which exist up to a distance of 200 yards of the proposed site, schools, hospitals, temples or other places being clearly indicated. the collector failed to submit the papers of the other applicant, viz. again the 'c' licence given to the appellant was also a temporary one and for one month and was hedged in by conditions similar to the above so that the appellant can have no cause to complain if in pursuance of the board's orders the collector cancelled the 'c' licence. unfortunately, however, the authorities failed to keep in view this feature of the case, that a selection would have to be made among the two applicants for the issue of.....p.v. rajamannar, c.j.1. this is an appeal from the judgment of rajagopalan, j., in writ petition no. 754 of 1958. the dispute is between two proprietors of touring cinemas. the appellant, t. shanmugam, is the proprietor of kandan touring talkies. the contesting respondent mr. m. arumugam, who will be referred to in this judgment as the respondent, is the proprietor of prabhat talkies. each of them wanted to run a tourning cinema in kaveripakkam village in the district of north arcot. to follow the facts and the contentions of the contesting parties it is necessary to refer to the material provisions of the madras cinemas (regulation) act, ix of 1955 and the rules made thereunder. under section 3 of the act, no person ordinarily shall give an exhibition by means of a cinematograph.....
Judgment:

P.V. Rajamannar, C.J.

1. This is an appeal from the judgment of Rajagopalan, J., in Writ Petition No. 754 of 1958. The dispute is between two proprietors of touring cinemas. The appellant, T. Shanmugam, is the proprietor of Kandan Touring Talkies. The contesting respondent Mr. M. Arumugam, who will be referred to in this judgment as the respondent, is the proprietor of Prabhat Talkies. Each of them wanted to run a tourning cinema in Kaveripakkam village in the district of North Arcot. To follow the facts and the contentions of the contesting parties it is necessary to refer to the material provisions of the Madras Cinemas (Regulation) Act, IX of 1955 and the rules made thereunder. Under Section 3 of the Act, no person ordinarily shall give an exhibition by means of a cinematograph elsewhere than in compliance with any conditions and restrictions imposed by such licence. The licensing authority is the District Collector, though the Government may by notification appoint some other authority. Section 5(1) specifies the matters to which the licensing authority shall have regard in deciding whether to grant or refuse a license. They are the following

(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 at the time of applying for the licence or at any previous time;

The licensing authority is also required to take into consideration any representations made by persons already giving cinematograph exhibition in or near the proposed locality or by any local authority or police authority within whose jurisdiction the place proposed to be licensed is situated or by any association interested in the giving of cinematograph exhibitions. Section 5-A which was inserted by an amending Act (Act XXI of 1956) provides that

(a) to use any place for the exhibition of cinematograph films, or

(b) to use any site for constructing a building thereon for the exhibition of cinematograph films or

(c) to construct or reconstruct any building for such exhibition, or

(d) to instal any machinery in any place where cinematograph exhibitions are proposed to be given,

a person shall make an application in writing to the licensing authority for permission therefor together with such particulars as may be prescribed.

(2) The licensing authority shall thereupon, after consulting such authority or officer as may be prescribed, grant or refuse permission and the provisions of Sections 5, 8 and 9 relating to licences shall, so far as may be, apply to permission under this section.

The following are the material rules:

Rule 14(1). - There shall be no restriction to the grant of licences to permanent and touring cinemas on the basis of population in any place, except towns with a population of 50,000 and above in which no touring cinemas will be allowed, if there are three or more permanent cinemas.

(2) The restrictions in respect of distance between cinemas shall be as specified below:

Touring cinema in any place shall not be allowed within a distance of one mile of the nearest permanent cinema located in the same local area in or in the adjacent village, panchayat or town in the City of Madras. 'Local area' for this purpose means the area within the jurisdiction of a municipal council or a panchayat board or a revenue village.

The distance between any two touring cinemas shall be not less than half a mile.

There shall be no restriction in regard to the distance between one permanent cinema and another permanent cinema.

Rule 35(1). - A person who intends to build a permanent cinema building shall furnish the licensing authority with information in respect of items (a) to (f) of Section 5(1) of the Act and other relevant particulars required in Form A. The application shall be accompanied by a plan of the proposed site drawn to scale and shall clearly indicate the surrounding road and buildings which exist up to a distance of 200 yards of the proposed site, schools, hospitals, temples or other places being clearly indicated.

(2) A copy of the application in Form A referred to in Rule 35(1) shall be sent to the local authority who shall forward it, within one month from the date of receipt of application from the applicant, to the licensing authority with its remarks recording its objections, if any, to the site and to the installation of machinery.

(3) A copy of the application shall also be sent to the Deputy Commissioner of Police, Traffic and Licensing, Madras, or the District Superintendent of Police in the mufassal, who shall remit it within one month from the date of receipt of application from the applicant, to the licensing authority with objections, if any, from the traffic point of view.

36. After consideration of the application with reference to the matters specified in Section 5(1) of the Act, and the objections of the local authority or the Police, the licensing authority shall grant a no-objection certificate in Form 'B' or may refuse to grant the same, within two weeks after the receipt of the remarks of the local authority and the police or within one month, if the licensing authority has to get any further report.

Note. - Any applicant aggrieved by the orders of the licensing authortity refusing to grant a 'No-objection certificate' may appeal to the Board of Revenue. The rules in Part III shall apply to such appeals.

Part VII of the rules specially deals with travelling cinemas. Rule 99(b) defines 'travelling cinema' as

(i) an outfit comprising the cinema apparatus and plant and the enclosure taken from place to place in the State of Madras for giving cinema exhibitions; or

(ii) an outfit comprising cinema apparatus and plant taken from place to place in the State of Madras for conducting shows in the local theatre or halls.

Rule 100 provides that a person who intends to build a travelling cinema building shall follow the procedure in Rule 35. Rule 106 says:

On receipt of the application made under Rule 100 the licensing authority shall grant a no-objection certificate in Form 'B' or may refuse to grant the same. He shall also issue an order approving or not approving the plan of the building to be constructed in the approved site within two weeks after the date of receipt of the application from the applicant.

Note. - Any applicant aggrieved by the orders of the licensing authority refusing to grant a 'No-objection Certificate' may appeal to the Board of Revenue.

2. The rules in Part III shall apply to such appeals. On completion of the building according to the approved plan, the applicant shall submit his application for licence to the licensing authority (Rule 107). The licensing authority, under, Rule 108, may issue to the applicant a licence in Form 'C' or refuse to issue such licence. Rule 110 relates to the grant of temporary licences. The form of the 'No-objection certificate' is as follows:

In exercise of the powers conferred by Rule 36 in Part II of the Madras Cinemas (Regulation) Rules, 1957, I...Collector/Commissioner of Police do hereby grant this certificate that there is no objection to Sri..., son of...resident of village...taluk...district...locating a permanent/touring cinema in the land belonging to Sri...at village...taluk...district....

The site where the cinema is to be located is specified below:

3. On 31st May, 1957, the appellant, T. Shanmugam, made an application to the Collector of North Arcot for the grant of a no-objection certificate for the location of, a touring cinema in S. No. 171/2-A of Kondapuram village. The application was refused by the Collector who passed the following order on 6th December, 1957:

The Application of Sri T. Shanmugham of Kaveripakkam for locating a Cinema in S. No. 171/2-A of Kondapuram Village is refused as the site in question being nearer to a postmortem shed and is reported to be not suitable from the Public Health point of view.

The respondent filed an. application for a no-objection certificate on 25th July, 1957. The site on which he proposed to locate the cinema was S. No. 1316/2 in the village of Kaveripakkam. It is common ground that the distance between this site and the site for which the appellant had applied for a certificate is less than four furlongs. On 10th December, 1957, the Collector approved of the site proposed by the Respondent and directed the grant of a no-objection certificate to him; but admittedly the grant was subject to the condition that the certificate was liable to be; cancelled if it became unworkable by the order of the appellate authority. The implication was this. If the appellant succeeded in the appeal which he might prefer to the Board of Revenue against the order of the Collector rejecting his application and consequently a no-objection certificate was granted to him, the respondent could not obtain a similar certificate in respect of the site selected by him because of the rule which imposes a restriction that the distance between any two touring cinemas shall be not less than half a mile (Rule 14(2)). The appellant preferred an appeal to the Board of Revenue on 10th December, 1957. By its order, dated 23d January, 1958, the Board of Revenue allowed the appeal and directed the Collector to issue a no objection certificate to the appellant. Obviously the only matter for the consideration of the Board was whether the ground on which the appellant's application was rejected by the Collector was valid, and the Board considered that it was not. During the pendency of the appellant's appeal to the Board of Revenue, the Respondent applied to the Collector for the grant of a licence in Form 'C' for locating the touring cinema in the site for which he had obtained a no-objection certificate. On 3rd February, 1958, the Collector passed an order granting a 'C' licence to the respondent purely as a temporary measure, valid for a month or till such earlier time as the appellant's application for a no-objection certificate is sanctioned and the : case becomes ready for the grant of a licence in Form 'C'. The appellant preferred an appeal to the Board against this order and obtained an ex parte interim stay of its operation. On 5th February, 1958, the Collector suspended the temporary licence granted to the respondent in view of the order of stay passed by the Board of Revenue. The Respondent thereupon applied to this Court under Article 226 of the Constitution (Writ Petition No. 94 of 1958) for the issue of a writ of certiorari to quash the order of the Collector, dated 5th February 1958. The application was dismissed oh the ground that the Respondent could move the Board of Revenue itself to vacate the interim stay. He thereupon applied to the Board and prayed for vacation of the interim stay. On 14th February, 1958, the Board vacated the interim stay. The appeal which had been preferred by the appellant against the order of the Collector, dated 3rd February, 1958, was disposed of by the Board by its order, dated 1st March, 1958. The Board allowed the appeal in part and directed the Collector to issue a no-objection certificate to the appellant and then consider his application for a 'C' licence as soon as he came with such an application. The respondent was permitted to run his shows for one month from the date of the Collector's order or till such earlier time as the appellant's application for the no-objection certificate was sanctioned and the case became ready for the grant of a licence in Form 'C'. In the course of their order the Board observed as follows:

It was unfortunate that when the appeal relating to 'No-objection certificate' of the present appellant (Sri Shanmugam) was before the Board the Collector did not report that the respondent was also in the field. It is seen from the records that there were three applicants for the grant of a 'No-objection certificate' for a touring cinema all within the four furlongs limit in the local Panchayat area of Kaveripakkam. One of the applicants seems to have withdrawn his application and the Collector seems to have considered the case of the appellant and the respondent separately for the grant of a 'No-objection certificate'. When the appellant appealed against the Collector's orders the Board called for a report from the Collector. The Collector failed to submit the papers of the other applicant, viz., the present respondent but reported only on the points urged in the appeal petition of the present appellant. There was no mention in the Collector's report about the application of the respondent but it is seen from the Collector's letter that on 10th December, 1957, the respondent was granted a 'No-objection certificate' which was liable for cancellation if the order became unworkable by the order of the appellate authority. This shows that the Collector was aware that the appellant would appeal to the Board and that some orders were due on it.

In pursuance of this order the Collector by his order, dated 6th March, 1958, granted a no-objection certificate to the appellant and directed the cancellation of the temporary licence which had been granted to the respondent on 3rd February, 1958. The respondent applied to the Collector no review this order; but his application was refused by the Collector on nth March, 1958. The respondent thereupon appealed to the Board; but that appeal was dismissed by the Board by its order, dated 25th March, 1958, in which they said:

The present appellant (respondent herein) took out a 'No-objection certificate' with the specific conditions attached to it that it will be liable for cancellation if it became unworkable as a result of the orders of the appellate authority on the appeal of the respondent (appellant herein) which was then pending before the Board. Again the 'C' licence given to the appellant was also a temporary one and for one month and was hedged in by conditions similar to the above so that the appellant can have no cause to complain if in pursuance of the Board's orders the Collector cancelled the 'C' licence. The 'No-objection certificate' of the appellant has become unworkable and stands cancelled. Therefore, there is no need to go into the comparative merits of the appellant and respondent at this stage.

4. The respondent then filed a petition under Article 226 of the Constitution (Writ Petition No. 256 of 1958) on 27th March, 1958, for the issue of a writ of certiorari or other appropriate writ to quash the orders of the Collector, dated 5th March, and 11th March, 1958 and the further order of the Board of Revenue, dated 25th March, 1958, passed in pursuance of the prior orders, dated 23rd January, 1958 and 1st March, 1958. When this petition had been heard in part, the respondent filed another petition, Writ Petition No. 754 of 1958, for the issue of a writ of certiorari to quash the order of the Board, dated 23rd January, 1958, by which the Board allowed the appeal preferred by the appellant against the first order of the Collector for a no-objection certificate. Both the writ petitions were heard together and disposed of by a common order by Rajagopalan, J. The learned Judge dismissed Writ Petition No. 256 of 1958 and allowed Writ Petition No. 754 of 1958. The effect of the learned Judge's judgment is that the appeal preferred by the appellant against the order of the Collector, dated 6th December, 1957, rejecting his application for a no-objection certificate must be deemed to be pending and has to be disposed of afresh. The ground on which the learned Judge quashed the order of the Collector, dated 6th December, 1957, was that the respondent had not been given an opportunity to oppose the appeal, and, therefore, the principles of natural justice had been violated. The learned Judge further indicated that the respondent would be entitled, in opposing the appellant's appeal, to represent to the Board that even if the site selected by the appellant was unobjectionable, there should be a selection between the two applicants, that is, the appellant and the respondent, either by the Collector or by the Board. The above appeal is against this order of Rajagopalan, J., in so far as he allowed Writ Petition No. 754 of 1958.

5. The main question in this appeal is whether the learned Judge was justified in quashing the order of the Board of Revenue, dated 23rd January, 1958, allowing the appeal of the appellant before us, preferred against the order of the Collector rejecting his application for the issue of a no-objection certificate. So far as we are able to gather from the judgment of the learned Judge, the ground on which he set aside that order is that the order had been passed without notice to the respondent and, therefore, there was a violation of the principles of natural justice. Presumably the principle violated is that no order can be passed to the prejudice of a party without giving him an opportunity to be heard. The reasoning appears to be this. Besides the application of the appellant there was another similar application by the respondent for the grant of a no-objection certificate in respect of a site within four furlongs of the site selected by the appellant. A certificate had been granted to the respondent subject to the condition that it was liable to be cancelled if it became unworkable by the order of the appellate authority, that is to say, if the Board of Revenue allowed the appeal and held that the appellant was entitled to a certificate, then, the respondent could not obtain a certificate because of the proximity of his site to the appellant's site. The respondent was therefore interested in upholding the order of the Collector. If this be the only ground, with respect to the learned Judge, we think it does not justify the learned Judge's order quashing the proceedings of the Board of Revenue. The appellant made an application for a no-objection certificate and so far as we are able to see, there is nothing in the provisions of the Act or in the rules which makes it incumbent on the Collector to take into consideration any representation of a competing applicant. The Collector, therefore, was right in disposing of the appellant's application on its merits and on the footing that the appellant was the only person interested. The Collector refused to grant a no-objection certificate because he thought that the site selected by the appellant was not suitable on account of the existence of a post-mortem shed in the vicinity. The appellant aggrieved by that order appealed to the Board of Revenue as he was entitled to appeal. The only question which the Board was called upon to decide in the appeal was the question of the suitability of the site, whether the reason assigned by the Collector was a valid reason for rejecting the appellant's application. Prima facie there could be no other party interested directly in the result of the appeal. It is true that the application of the respondent was liable to be rejected in case the appeal was allowed and the appellant was granted a no-objection certificate. But equally it may be said that the effect of the order of the Board allowing the appeal would be to prevent every other intending applicant for a site within four furlongs distance from the appellant's site. Suppose in this very case, pending the appeal, another application had been made for the issue of a no-objection certificate in respect of another site within the prohibited distance, does that applicant also have to be given notice? Logically he should be, because his application would be liable to be rejected if the appellant's appeal were allowed. In our opinion the order of the Board, dated 23rd January, 1958, allowing the appellant's appeal cannot be set aside on the mere ground that the respondent had not been given notice to enable him to uphold the order of the Collector.

6. The matter, however, does not rest here. It is clear from the judgment of the learned Judge taken as a whole, that there was another more important reason for setting aside the said order of the Board. The learned Judge's judgment opens with the following statements:

Under the provisions of the Madras Cinemas (Regulation) Act IX of 1955 and the Rules-framed thereunder only one touring cinema could apparently be located within the limits of Kaveripakkam village in North Arcot District.

We are not aware what provision of the Act and what rule or rules the learned Judge had in mind. Before us it was admitted by counsel on both sides that there was no restriction whatever on the number of touring cinemas which could be located within the limits of the village. The learned Judge, however, is right when he observed thereafter that as the sites selected by the appellant and the respondent were within four furlongs of each other, only one person could get the certificate. But then the learned Judge made another assumption thus:

Unfortunately, however, the authorities failed to keep in view this feature of the case, that a selection would have to be made among the two applicants for the issue of the preliminary certificate in Form B, if the sites of both were acceptable.

It looks as if that this assumption is the real basis of the learned Judge's judgment. Later on in the judgment occurs the following pasage:

From what I have set out above it is clear that at no stage did the Collector or the Board consider the question, whether there should be a selection as between the petitioner and the third respondent for the location of the one possible touring cinema in Kaveripakkam.

It is because of this assumption that the learned Judge indicated what could be-urged by the respondent in the appeal of the appellant to the Board which had been disposed of by the order dated 23rd January, 1958 and which by reason of the learned Judge's order stood restored. He said:

In deciding whether that appeal should be allowed, with the consequence that the B certificate granted to the petitioner would stand cancelled, the petitioner should be allowed an opportunity to maintain the B certificate granted to him. It should be open to the petitioner to represent to the Board that, even if the site selected by the third respondent was unobjectionable, the factor of selection had to be considered either by the Collector or by the Board before the appeal of the third respondent' was allowed, with the consequences I have indicated above.

With very great respect to the learned Judge, this would be enlarging the scope of the appellant's appeal to the Board, unwarranted by any provision of the Act or any rule or any general principle of law. The appeal by the appellant raised one and only one question, namely, whether the reason assigned by the Collector for rejecting the appellant's application was valid or not. Even if the respondent was entitled to be heard in the appeal, he could be heard only on the one point raised in the appeal. Probably he might be given an opportunity to uphold the Collector's order by convincing the Board that the Collector's reason was proper and valid. The Collector had not dealt with the application of the appellant on a comparative estimate of the qualifications of the appellant and the respondent. There was no material relating to this to be found in the order of the Collector. How then can the Board disposing of an appeal from the Collector deal with a question in respect of which there was no material in the order of the Collector? That is why the learned Judge obviously aware of this difficulty, said that it would be open to the respondent to represent to the Board that the factor of selection had to be considered either by the Collector or by the Board. This is the result of unduly enlarging the scope of the appellant's appeal.

7. There still remains the larger question whether there is anything in the Act or the Rules which compels the Collector or the Board to make a selection, and if there is, what are the circumstances in which the principle of selection has to be applied, what are its limits? Is there any fixed point of time with reference to which this principle of selection has to be applied? What we mean is this : Meanwhile suppose in this very case, pending the writ petitions and appeal, there had been five or six other applications for the grant of no-objection certificates. In view of the learned Judge's order it must be deemed as if no one has been finally granted a no-objection certificate. Will all those applicants be also entitled to be heard in the appellant's appeal which has been now reopened?. We do not see any justice or equity or logic in denying them that opportunity if the principle to be followed is selection of one out of several candidates. In this very case though the appellant had made the application on 31st May, 1957, his application was actually disposed of only on 6th December, 1957, after an unconscionable delay for which we are unable to find any proper explanation on record. It is because of the long pendency of the appellant's application that the respondent could make another application. It follows that the invocation of the principle of selection will also depend on the pendency of the first application. Undoubtedly if the scheme and the procedure laid down in the Act and the rules corresponded to the scheme and procedure found in the Motor Vehicles Act and the rules framed thereunder, there would be justification for invoking the principle of selection. Under the Motor Vehicles Act, the Regional Transport Authority may limit the number of stage carriages for which stage carriage permits can be granted in the region or in any specified area or in any specified route within the rigion. Under Section 57(2) an application for a stage carriage permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or if the Regional Transport Authority appoints dates for receipt of such applications, on such dates. If it is an old route for which there is already in force a stage carriage permit which is due to expire on a particular date, the last date for renewal or for a new application is fixed. If it is a new route, the Regional Transport Authority notifies the last date for the receipt of applications. On receipt of applications, the Regional Transport Authority makes the applications available for inspection, publishes the applications or the substance thereof in the prescribed manner, together with a notice of the date before which representations in connection therewith may be submitted, and the date on which, and the time and place at which the applications and any representations received will be considered. When any respentation is made, the Regional Transport Authority is bound to dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative. All these provisions enable several applications to be made in respect of a particular route on or before a fixed date and opportunity is given to each applicant to make representations not only in support of his application but also against the applications of other applicants. It is obvious that this scheme inevitably attracts the principle of selection. The route is fixed and the number of permits which would be granted is also fixed. There are several applicants who have all filed applications before a particular date. Section 57(4) prohibits any representation which is not made before the appointed date. It also enjoins on the person making the representation to furnish a copy of the representation to the applicant. On the other hand, under the Madras Cinemas (Regulation) Act, Rule 14 in terms declares that there shall be no restriction to the grant of licence to permanent and touring cinemas on the basis of population in any place except towns with a population of fifty thousand and above, in which no touring cinemas will be allowed if there are three or more permanent cinemas. There is no prescribed site for the location of a touring cinema. There is no date within which application should be made for the grant of a 'C' licence or the grant of a no-objection certificate, say with reference to a particular year. There is no provision for the publication of applications for no-objection certificates and no opportunity is given to other applicants to make representations. There is no duty cast on the Collector to fix a date to consider the several representations made on behalf of and against the several applicants. In a recent decision of a Division Bench in Umapathi v. Panchaksharam Pilial Writ Appeal No. 110 of 1957 since reported in (1958) M.L.J. 352 : (1958) M.L.J. 397 (to which one of us was party) it was pointed out that the Motor Vehicles Act cannot be deemed to be an Act analogous to the Cinematograph Act. Though that case related to a temporary cinema licence, the following observations are apposite to the case before us:

There (under the Motor Vehicles Act) there is a notification calling for applications. Here (under the Cinematograph Act) there is no notification calling for applications. Every person desirous of getting a temporary cinema licence can apply privately to the Collector, like an applicant for a gun licence. So, the two cannot be compared. Nor can a person be aware of an application of another for a temporary cinema licence as in the case of an application for a bus permit since there is no public notification but only private information.

There are several difficulties in invoking the principle of selection in respect of applications for the issue of no-objection certificates under the Madras Cinemas (Regulation) Act. Suppose A applies for a no-objection certificate and secures it from the Collector. A few days later B applies and his application is rejected on the ground that the site selected by him is within four furlongs of A's site. B appeals to the Board of Revenue. Can he in his appeal make A a party and call upon the Board to make a selection between him and A, or ask for a remand of both the applications to the Collector for a comparison and selection? There is also another aspect. Suppose A and B apply for no-objection certificates in respect of two sites which are not within the prohibited distance. Has the Collector even then to make a selection? So far as we see, there is nothing to prevent the Collector granting no-objection certificates to both. We mention this circumstance because in the very case before us, if the respondent had chosen a site five furlongs away from the site selected by the appellant, the very ground on which Rajagopalan, J., considered that a selection should be made, namely that only one of the two could be granted a no-objection certificate, would disappear. In such a case it is not unreasonable to reject the application of the respondent who applied later, giving him liberty to file another application for a site which is not within the prohibited distance.

8. There may be an extraordinary contingency of two applications for the issue of no-objection certificates made by two persons on the same date for sites which lie within the prohibited distance from each other. In such a case it may be that the Collector will make a selection, or he may send for both the applicants and ask them to modify their applications in respect of the situation of the sites. But we are unable to find anything in the Madras Cinemas (Regulation) Act or in the rules framed thereunder which casts a duty on the Collector or the Board of Revenue to make a selection among several applicants.

9. Mr. Mohan Kumaramangalam drew our attention to certain decisions of this Court in which the principle of selection was adopted, though he very fairly conceded that in none of the decisions there was a consideration of the question whether such a principle was or was not warranted by the provisions of the Act and the rules. We shall briefly refer to them.

10. Muthukumaran v. Murugan Touring Talikes W.P. Nos. 118 and 281 of 11957, related to a period when persons desirous of running cinemas had to obtain licences both under the Places of Public Resort Act and the Madras Cinemas (Regulation) Act. There were two applicants. One of them applied on 26th October, 1956, for the issue of a licence under the Places of Public Resort Act. The other applied on 13th December, 1956. There was a G.O. in 1954 embodying directions to the licensing authorities acting under the Places of Public Resort Act. The Government laid down general rules for determining the question of priority. The obvious implication was that applications should be disposed of on a consideration of priority of an application. It was common ground that only one touring cinema could be granted a licence in the village. The two persons also made applications under the Madras Cinemas (Regulation) Act for the grant of licence. Rajagopalan, J., thus dealt with the facts:

As I said, it was common ground that a licence under Act IX of 1955 could be issued only for one touring cinema in Kulithalai. There were two applicants for that licence, the petitioner and the second respondent. A selection had to be made by the licensing authority, the Collector. The only ground on which the Collector preferred the second respondent to the petitioner for the grant of the licence was that the second respondent's application for the licence under the Places of Public Resort Act was prior in point of time.

The learned Counsel for the petitioner submitted that the rule of priority laid down by the Government in G.O. 1634 dated 15th June, 1954, did not in terms apply to the grant of a licence under Act IX of 1955. It applies only to grant of a licence under the Places of Public Resort Act. The, learned Counsel contended further that the rule of priority laid down in G.O. No. 1634 of 1954 was really an irrelevant factor in deciding between two applicants to whom the 'A' licence should be granted under the provisions of Act IX of 1955. The Collector certainly appears to have misconceived the scope of G.O. 1634. It was certainly not an order or direction issued by the Government under Section 5(4) of Act IX of 1955.

It was common ground that no specific directions or orders had been issued by the Government under Section 5(4) of Act IX of 1955 to provide any basis for a selection between rival applicants for the grant of 'A' licence, where only one such licence could be issued for giving cinema shows in a, given town or village. Nor did the Act itself specifically provide for selection, should it become necessary. The learned Counsel for the petitioner was, in my opinion, well founded in his contention that in the absence of any specific statutory provisions or any specific directions issued by the competent authority under Section 5(4) of the Act, the licensing authority was bound to select the applicant with reference to the factors enumerated in Section 5(1) of the Act.

The learned Judge then pointed out that the factors mentioned in Section 5 were not exhaustive. The learned Judge set aside the orders of the licensing authority on the ground that he had failed to take into account all the relevant factors in deciding who as between the two applicants should be selected for the grant of the 'A' licence and directed that the two applications may be disposed of afresh.

11. In Writ petition No. 920 of 1957, Rajagopala Ayyangar, J., had to deal with a case which arose under the Madras Cinemas (Regulation) Act, 1955. There were two applications pending before the Collector for the grant of no-objection certificates. The two sites selected by the two applicants were within the prohibited half-mile distance. The District Collector granted a certificate to D and therefore rejected the application of the other applicant, Section S filed an appeal to the Board of Revenue. The Board issued notice to D and heard him and passed an order allowing the appeal by Section As a result thereof, the no-objection certificate granted to D was set aside. The order of the Board was challenged in a petition under Article 226. One objection taken was that the Board should not have examined the relative merits of the two applicants. Rajagopala Ayyangar, J., overruled the objection on the ground that the principles underlying the provisions of Section 5 of the Madras Cinemas (Regulation) Act would also govern the disposal of applications for no-objection certificates and that under Section 5 there would have to be a selection among the rival applicants. The learned Judge did not discuss the difficulties and the anomalies that would result if the principle of selection were to be followed in regard to applications under the Madras Cinemas (Regulation) Act on the analogy of applications for permits under the Motor Vehicles Act.

12. Two decisions of a Division Bench of which one of us was a party were brought to our notice by Mr. Kumaramangalam in Writ Appeals Nos. 14 and 17 of 1958. In neither case was there any point raised that the principle of selection should not be applied. It was assumed that one of two applicants had to be selected for the grant of a no-objection certificate. It was common ground that it was the duty of the Collector and the Board of Revenue to examine the relative merits and qualifications of the two applicants. No assistance can be derived from these two decisions.

13. In our opinion, there was no valid ground on which the order of the Board of Revenue, dated 23rd January, 1958, could be quashed in exercise of the powers of this Court under Article 226 of the Constitution. The appeal is allowed and Writ Petition No. 754 of 1958 is dismissed. There will be no order as to costs throughout.


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