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The Provinicial Superior Vs. the State of Tamil Nadu, Represented by the Deputy Secretary to Government, Home (Cinemas) Department and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Reported in(1982)1MLJ358
AppellantThe Provinicial Superior
RespondentThe State of Tamil Nadu, Represented by the Deputy Secretary to Government, Home (Cinemas) Departm
Cases ReferredK.S.P. v. Commissioner of Land Revenue and Commercial Tax
Excerpt:
- - indrasenan clearly and fairly admitted that the petitioner did not prefer her objections within 15 days as provided for under rule 106-a. 7. it is one of the well-settled canons of interpretation of statutes that when a statute uses the word 'shall' it shall ordinarily be construed to be mandatory. such an objector has no audience at all before the licensing authority and even if the order goes against him and in favour of the applicant, the objector has no locus standi to agitate the matter further by way of an appeal is a well-settled pro-position, because such an objector cannot be deemed to be and aggrieved person. the 'failure to make objection within the time stipulated under rule 35-a of the rules by any member of the public can only lead to the conclusion that no member of.....orders. padmanabhan, j.1. the question that arises for determination in this writ petition is whether a person who does not file any objection to an application for a temporary permit before the licensing authority within the period of 15 days as provided for under rule 106-a of the rules under tamil nadu cinemas (regulation) act (hereinafter referred to as the rules) can be said to be an aggrieved person.2. the facts of the case may be set out as follows. the petitioner is the provincial superior, cluny convent, malleswaram, bangalore. the cluny convent runs a health. centre, styled nirmala rani health centre in devikapuram village in north arcot district. the health centre is said to cater to about 30 villages in and around the neighbourhood. it is said that annually 25,000 persons.....
Judgment:
ORDER

S. Padmanabhan, J.

1. The question that arises for determination in this writ petition is whether a person who does not file any objection to an application for a temporary permit before the licensing authority within the period of 15 days as provided for under Rule 106-A of the Rules under Tamil Nadu Cinemas (Regulation) Act (hereinafter referred to as the Rules) can be said to be an aggrieved person.

2. The facts of the case may be set out as follows. The petitioner is the Provincial Superior, Cluny Convent, Malleswaram, Bangalore. The Cluny Convent runs a health. centre, styled Nirmala Rani Health Centre in Devikapuram village in North Arcot District. The health centre is said to cater to about 30 villages in and around the neighbourhood. It is said that annually 25,000 persons attend the dispensary run by the health centre. The convent is also running a nursery school. While so, the 4th respondent filed an application before the Collector of North Arcot, the third respondent herein, for the grant of a no objection certificate for - locating the touring cinema in S. No. 377|2 of Devikapuram village. The petitioner objected to the issue of the no objection certificate on the ground that the location of a cinema would be a nuisance and hindrance to the health centre. The petitioner also stated that the convent was building a maternity centre and the location of the touring cinema would fall within the prohibited distance of 76.4 metres of the maternity centre. The public of the village also raised similar objections, apart from the further objection that there were two huts within the prohibited distance of 30.5 metres of the site on which touring cinema is sought to be located. The third respondent made a local inspection on 24th October, 1979. He then rejected the application of the 4th respondent on two grounds. The first ground is that a maternity hospital is coming up within a distance of 76.4 metres from the site and that the local inspection has revealed that the building has come up to the roof level. According to the third respondent the location of the touring cinema would be a nuisance to the hospital. Secondly, he found that there are two huts occupied by Erulavs within a distance of 27 metres from the proposed site.

3. Against the said order the 4th respondent preferred an appeal before the Board of Revenue, Madras. The Commissioner of Land Revenue and Commercial Taxes, the second respondent herein, set aside the order of the third respondent and directed the latter to issue a no-objection certificate to the 4th respondent.

The appellate authority overruled the objection based on the location of the huts within a distance of 27 metres of the proposed site on the ground that under the new Rules touring cinemas should be constructed only with inflammable materials. The appellate authority also overruled the objection based on the situation of the maternity hospital on the ground that the respondent before him, viz, the petitioner herein did not appear at the hearing. The petitioner then preferred a revision petition before the Government; the first respondent dismissed the revision petition by its order, dated 3rd February, 1981. In these circumstances, the petitioner has filed this writ petition, for the issue of a writ of certiorari to quash the order passed by the first respondent on 3rd February, 1981 confirming the order passed by the second respondent granting a no-objection certificate to the 4th respondent.

4. Mr. Indrasenan, the learned Counsel, for the petitioner vehemently attacked the order of the appellate authority, the second respondent herein which has been confirmed by the first) respondent by a non-speaking order on the ground that the appellate authority had passed an ex parte order without hearing the petitioner. According to the learned Counsel, the petitioner was present on a number of occasions, for the hearing. Unfortunately, on the particular date on which the appellate authority disposed of the matter, the petitioner could not be present for reasons beyond her control. In any event, according to Mr. Indrasenan, the appellate authority should have gone into the question whether the installation of a touring cinema on the proposed site would be a nuisance to the maternity hospital that was coming up, particularly when the Collector, after local inspection, had found that the touring cinema on the proposed site would be a nuisance to the maternity hospital. Mr. Indrasenan also contended that the appellate authority should have considered whether Rule 103 of the Rules had been violated particularly when the Collector has on local inspection found that the proposed site for the touring cinema was within the prohibited distance from the maternity hospital and the huts'.' I would have been inclined to accept the argument of Mr. Indrasenan and to remand the matter to the appellate authority for a fresh disposal but for the preliminary objection raised by Mr. G. Ramaswami, the learned Counsel for the 4th respondent regarding the maintainability of the writ petition.

5. Mr. G. Ramaswami, the learned Counsel 'for the 4th respondent argued that Rule 106-A enjoined that any member of the public who objected to the grant of a no objection certificate to an application should prefer his or her objections in writing before the licensing authority within fifteen days of the publication of the nodes; regarding. The receipt of an application. If no objection is filed within 15 days, then the licensing authority would not be competent to consider any such objection. Mr. Indrasenan clearly and fairly admitted that the petitioner did not prefer her objections within 15 days as provided for under Rule 106-A. However, the learned Counsel contended that it would be open to the licensing authority to receive and deal with the objection preferred by a member of the public even after 15 days. If the licensing authority, according to Mr. Indrasenan, does not choose to reject the objection filed by a member of the public after the expiry of the 15 days, but receives the same and deals with it on the merits, then it could not be said that such an objection is not valid and that the licensing authority has no jurisdiction to deal with the same. The question for determination is which of the contenions has to be sustained.

6. Section 5 of the Tamil Nadu Cinemas (Regulation) Act, 1955 (hereinafter called the Act) confers power on the licensing authority to grant or refuse a licence. Rule 35 of Part II(a) deals with the approval of location of permanent cinemas. Rule 100 of the Rules states that a person who intends to build a travelling cinema building shall follow the procedure in Rule 35 in Part II (a). Rule 106-A reads as follows:

On receipt of the application, the licensing authority shall cause a notice to be published in the notice board pf the office of the licensing authority and the Panchayat Union concerned, of the fact of receipt of the application, with such details as may be considered necessary and calling for objections if, any, from the public in regard the non-compliance by the applicant of the provisions of any these rules. All objections shall be filed in writing before the licensing authority within 15 days from the date of publication of the notice. Any objection filed after this period shall be liable to be summarily rejected.

The above rule contemplates the following: on receipt of an application for the issue of a no objection certificate the licensing authority shall cause a notice to be published in the notice board of the office of the licensing authority and the panchayat union. The notice must also invite objections, if any, from the public in regard to the non-compliance by the applicant of the povisions of any of the rules. The public should file their objections in writing before the licensing authority within 15 days from the date of publication of the notice. Any objection filed after the expiry of the period of 15 days shall be liable to be summarily rejected. There was no dispute at the Bar that the final decision of the writ petition would depend upon the interpretation to be placed on Rule 106-A. According to Mr. G. Ramaswami, the licensing authority is not entitled to look into any objection that may be received after the expiry of 15 days from the date of publication of the notice; but in the submission of Mr. Indrasenan it will be open to the licensing authority either to reject the application or receive and consider the same. Though the matter is not res Integra, since Mr. Indrasenan challenges the correctness of some of the earlier decisions of this Court cited by Mr. G. Ramaswami I shall consider the question de hors the decisions cited by him. The language used in Rule 106-A is 'all objections shall be filed before the licensing authority within 15 days from the date of the publication of the notice.

7. It is one of the well-settled canons of interpretation of statutes that when a statute uses the word 'shall' it shall ordinarily be construed to be mandatory. However, it is sometimes not so interpreted, if the context or the intention otherwise demands and in such cases the word is interpreted only to have directory effect. In this case, the last sentence in Rule 106-A reads:

Any objection filed after this period shall be liable to be summarily rejected.

Mr. R.D. Indrasenan drew my attention to the various meanings of the word 'liable' culled out from different dictionaries and stated that the fact that the word 'liable' is used confers a discretion on the licensing authority either to accept or summarily reject an objection that is filed beyond time. The learned Counsel referred to the Law Lexicon by T.P. Mukherjee and K.K. Singh (1971) Volume II, page 32, wherein it is stated that the word 'liable' means a future possibility or probability happening which may or may not actually occur - it is discretionary. In Funk and Wagnalls' Standard Dictionary, International Edition, Volume I, page 734, one of the meanings given to the word 'liable' is 'having a tendency, inclination or likelihood, likely, with unfavourable sense'. The same dictionary also gives the meaning as exposed to damage, penalty, expense, burden etc.' One of the meanings given to the word 'liable' in the Compact Edition of the Oxford English Dictionary, Volume I (1977), page 1611 is 'bound or obliged by law or equity or in accordance with a rule or convention, answerable'. Similarly, Webster's Third New International Dictionary (1968), page 1302, explains the word 'liable' as being bound or obligated according to law. K.J. Aiyer, in his Judicial Dictionary 8th Edition 1980, page 577, gives the meaning of the word 'liable' with) reference to Section 381, Indian Penal Code, as a future possibility or probability happening which may or may not occur. In other words, it is stated that the Magistrate has the power to impose the sentence of fine under Section 381, Indian Penal Code, but it is discretionary. Stroud in his Judicial Dictionary of Words and Phrases, 4th Edition, page 144, states that the word 'answerable' is an equivalent for 'liable'. Collins English Dictionary (1970), gives the meaning of the word 'liable' among others as being subject or state of being liable or obligation. In 'Words and Phrases' Permanent Edition, Volume 25, page 71. Webster defines 'liable' thus: - 'Obliged in law or equity, subject' and says 'it denotes something which may befall us'.

8. From the above it is clear that the word 'liable' has also the meaning of being bound or obliged according to law. In other words, - when it is said that 'any objection filed after a I period of 15 days shall be liable to be summarily rejected' it means that there is an obligation on the part of the authority to summarily reject an application filed beyond the time. This conclusion is further supported by the use of the word 'summarily' which means that the rejection should be done by a short method without unnecessary formalities or delay and without further application of mind. Rule 106 reads thus:

After consideration of the application made under Rule 100 with reference to the matters specified in Section 5(1) of the Act, and 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 it within one month after the receipt of the remarks of the local authority and the Police or within fifteen days of the receipt of the further report where such a report has to be obtained. A copy of the order shall be communicated to the applicant and to the persons if any who have filed objections before the licensing authority.

It is therefore clear that Rule 106 has prescribed that an order granting or refusing to grant a No Objection Certificate should be passed within one month after the receipt of the remarks of the local authority and the Police or within 15 days of the receipt of a further report where such a report has to be obtained. Rule 35(3) of the Rules, which is also applicable to the grant of a No Objection Certificate for a touring Cinema by virtue of Rule 100, provides that a copy of the application shall be sent to the Deputy Commissioner of Police, Traffic and Licensing, Madras, or the District Superintendent of Police in mufassal, who shall remit it, within one month from the date of receipt of the application from the applicant to the licensing authority with objections, if any, from the traffia point of view. The note appended to Rule 35(3) states that on receipt of the application from the applicant, the licensing authority shall ensure from the local authority and the police that they have received copies of the application and ascertain date of their receipt to avoid non-receipt or delay in receipt of the copies of the authorities concerned. If no reply is received within the time prescribed in Sub-rules (2) and (3), it shall be presumed by the licensing authortiy that there is no objection.

9. It is therefore clear that so far as the police is concerned, the time-limit granted for submission of their report is one, month from the date of the receipt of the application from the applicant to the licensing authority. The note appended to the sub-rule further provides that if no reply is received within the time prescribed, it shall be presumed by the licensing authority that there is no objection. In the context of the. procedure laid down for the grant of a No Objection Certificate, it is clear that the time-limit of 15 days for objections being received from the public is mandatory. The word 'shall' used in Rule 106-A has necessarily to be construed only in a mandatory sense. If so constructed the licensing authority will have no discretion to entertain an objection will have no discretion to entertain and objection filed after the period of 15 days. Mr. R.D. Indrasenan himself was compelled to concede that the language of Rule 106-A does not expressly or impliedly confer any power on the licensing authority to entertain an objection after the period of 15 days by excusing the delay. His only argument is that in view of the fact that the word 'liable' is used in Rule 106-A, the Court should so interpret the rule as to confer a discretion on the authority to entertain an objection received even after the expiry of 15 days. I am unable to accept the argument of the learned Counsel.

10. In this context, it is necessary to refer to one more circumstances. If really the intention of the rule-making authority was to j confer a power on the licensing authority to entertain an objection received after the period of 15 days, nothing prevented it from expressly saying so. Further no guidelines have been given in Rule 106-A or in any other rule as to the circumstances in which the licensing authority can entertain an objection preferred by a member of the public after the expiry of 15 days. The Court cannot assume that the rule-making authority would have conferred an uncanalised or unguided power on the licensing authority to entertain an objection after the expiry of 15 days, particularly when the other rules make it clear that there should be reasonable expedition in the disposal of the application filed by the applicant for the issue of a no-objection certificate.

11. As already stated, my conclusion that Rule 106-A is mandatory is supported by a catena of decisions of this Court. The question came up for consideration before a Bench of this Court in P.S. Somasundwam v. The Board of Revenue W.A. No. 63 of 1973. One of the questions that was considered by the Bench was whether an existing I cinema operator would have a right of representation as envisaged by Section 5. This was answered by the Bench in the affirmative. The other question which the Bench considered was the effect of non-compliance of the provisions of Rule 106-A in the matter of preferring objections. After considering the scope of Rule 106-A, the learned Judges observed as follows:

It is contended for the respondents that the appellant has a right of representation. That is undoubtedly so. But under the rule-making power, it is open to the rule making authority to provide for limitation. Providing of limitation is not to destory the right but to limit the time within which the right can be enforced. On that view of the matter, the appeal filed by the respondents was incompetent.

In other words, the Bench took the view that a member of the public who does not file the objection within the time prescribed under Rule 106-A could not be an aggrieved person.

12. Mr. Indrasenan sought to distinguish this judgment on the ground that in the case I before the Bench the writ petitioner had not filed any objections at all. Consequently, the Bench took the view that the person concerned could not be treated as an aggrieved person within the meaning of Section 5(7). The learned Counsel particularly emphasised upon the following observations:

All objections under that rule shall be filed in writing before the licensing authority within 15 days from the date of publication of the notice. The rule further prescribes that any objection filed after the period shall be liable to be summarily rejected. That means that if the authority rejected the representations on the ground that they were filed out of time, the representator would have no further right to be heard. The case of respondents 2 and 3 is worse. They made no representaions.

From this the learned Counsel wanted me to draw the inference that the Bench impliedly meant to say that the authority could have accepted the representations even after the expiry of 15 days. I am unable to understand the Bench decision in the way in which the learned Counsel wants me to do. In fact on the very same ground the Bench judgment was sought to be distinguished before Mohan, J., in K. A. Kolandaisami v. The Board of Revenue W.P. No. 3505 of 1979. The learned Judge observed as follows:

In law, where there were no objections or there were belated objection, it would mean the same thing as though there were no objections. Viewed in this fashion, I am unable to appreciate the distinction that is sought to be placed by the learned Counsel stating that the above decision will have no application, because that was a case of no representation.

Mohan, J., followed his decision in K.A. Kolandaisami v. The Board of Revenue W.P. No. 3505 of 1979. in Shri Ram Theatre by Partner v. The District Collector of Coimbatore W.P. No. 4523 of 1979, where an objection had been filed by an existing cinema operator after the expiry of 15 days. The learned Judge held that in view of the Bench decision in W.A. No. 63 of 1973 and his own decision in W.P. No. 3505 of 1979, the writ petitioner was not an aggrieved person.

13. Sathiadev, J., had to consider the same question in W.P. No. 4442 of 1978. The subject-matter of that writ petition fell within Rule 35-A of the Rules. The Collector of Tiruchirapalli granted a no-objection certificate to the writ petitioner. On appeal by a member of the public, the Board of Revenue set aside the order of the Collector and permitted the applicant therein to file the necessary application after the construction of the building. Mr. Indrasenan who appeared for the writ petitioner before the learned Judge took the stand that under Rule 35-A, any objections received beyond the period of 15 days from the date of the publication of the notice could not be entertained. In that case, the objection petition filed by the third respondent was beyond the period of 15 days. Notwithstanding the belated nature of the objections, the Board took the view that the objections had to be considered by the Collector and, therefore, proceeded to set aside the order of the Collector. The learned Judge after referring to the order of the Collector and the Board of Revenue observed as follows:

When both these constituted authorities, have been aware of the objections having been filed beyond time, the third respondent has no locus standi to be heard on such objections Even if the objections have been dealt with in the order they are irrelevant and opposed to a specific prohibition I found in Rule 35-A. If such objections are I taken into account and conclusions are arrived at thereon, it would vitiate the order itself.

The learned Judge finally set aside the order of the Board of Revenue and made the rule nisi absolute.

14. Nainar Sundaram, J., in Kanchee-puram Municipality represented by the Municipal Commissioner v. The Government of Tamil Nadu W.P. No. 3510 of 1980, had to deal with a similar situation:. The subject-matter fell within Rule 35-A of the Rules. The fourth respondent therein who was the objector filed his objections beyond the period of 15 days from the date of the notification. The learned Judge has observed as follows:

An objection from a member of the public, if not made within the time prescribed by Rule 35-A of the Rules, has got to be summarily rejected, is stipulated in the said rule itself. Such an objector has no audience at all before the licensing Authority and even if the order goes against him and in favour of the applicant, the objector has no locus standi to agitate the matter further by way of an appeal is a well-settled pro-position, because such an objector cannot be deemed to be and aggrieved person. The 'failure to make objection within the time stipulated under Rule 35-A of the Rules by any member of the public can only lead to the conclusion that no member of the public has any grievance against the grant as such. When the rule is explicit, stipulating sununary rejection of such belated objections, it is not proper on the part of the the authorities concerned to take note of and countenance such objections and reject the application of the petitioner - municipality on that basis. A view, similar to the one which I have taken has also been expressed by Mohan, J., in Subramaman, K.S.P. v. Commissioner of Land Revenue and Commercial Tax (1981) 94 L.W. 280 : A.I.R. 1981 Mad. 346.

Nainar Sundaram, J., had also to deal with a similar situation in W.P. No. 452 of 1981 on 13th November, 1981. There, notwithstanding the belated objections filed by the writ petitioner a no-objection certificate was issued to the fourth respondent therein. An objection Was taken before the appellate authority by the successful applicant that the objector was not entitled to be heard on merits in view of the fact that his objections were belated. However, the appellate authority took the view that since the Collector had not passed a specific order summarily rejecting the belated objections, it would be safer to entertain the appeal and dispose of the same on merits. However, on merits the appellate authority found that there was no case for interference. A further revision by the objector to the Government also failed. 'Consequently, the objector preferred a writ petition before this Court to quash the order of the Appellate Authority as confirmed by the revisional authority. A preliminary objection was taken on behalf of the successful applicant who was the fourth respondent in the writ petition stating that! the objector could not be classified as an arrieved person and both his appeal and revision could not have been entertained at all by the appellate authority and the revisional authority. After referring to the judgment of Mohan. T. in W.P. No. 3510 of 1980 and Subramanian, K.S.P. v. Commissioner of Land Revenue and Commercial Tax (1981) 94 L.W. 380 : A.I.R. 1981 Mad. 346, the learned Judge observed as follows:

There is no ambiguity with reference to the legal position. Such being the case, the to appeal and the revision at the instance of the petitioner ought not to have been entertained at all as Tiaving been preferred by a person who' cannot be classified as an aggrieved person. The third respondent did the right thing in not adverting to the objections of the petitioner, which were out., of time. Even though the second respondent has advanced other reasons for dismissing the appeal, the order of dismissal has to be sustained on the ground that such an appeal was incompetent at the instance of the petitioner, who is not an aggrieved person. The same reasoning would apply to sustain the order of dismissal of the revision by the first respondent.

The following principles emerge from the above analysis. The provision under Rule 106-A, which permits a member of the public to prefer his or her objections to the grant of a licence within 15 days from the date of the notification is mandatory. If an objection is filed beyond the 15 days time, such an objection has no validity in law and it cannot be taken note of. The licensing authority has no jurisdiction to entertain an objection that is filed by a member of the public beyond the period of 15 days under Rule 106-A and deal with the same on merits. Even if the Collector or the licensing authority deals with such a belated objection and grants a no-objection certificate to the applicant, the objector who has filed a belated objection will have no locus standi either,. to file an appeal or revision before the appropriate authorities. Such a person cannot be said to be an aggrieved person. Consequently, T have no hesitation in holding that the writ petitioner is not an aggrieved person. She had no locus standi to file an appeal or revision before appropriate (authorities. Equally she has no locus standi to file this writ petition.

15. Mr. Tndrasenan raised another contention that even though the objection filed by the writ petitioner was belated, the appellate authority was under a statutory duty to consider whether the third respondent had complied with all the conditions required under Rule 103. In this particular case, according to Mr. Indrasenan, the appellate authority had failed to consider the same. The learned Counsel argued that his duty was all the more important because the Collector had found on a local inspection that the location of a touring cinema at the proposed site would be a nuisance to the maternity hospital. In fact, this identical contention was urged by Mr. Indrasenan himself before Mohan J., in W.P. No. 3505. of 1979, where the learned Judge has observed as follows:

If, therefore, the petitioner is not an aggrieved person, as held in Somasundaram's case W.A. No. 63 of 1973, J cannot consider whether the impugned orders are valid in so far as they 1 have failed to consider the adequacy as re's quired under Section 5(1)(d) of the Tamil Nadu Cinemas (Regulation) Act, 1955. In other words, it is not open to the petitioner to say that notwithstanding himself being not an aggrieved person, this Court must enforce the statutory obligation enjoined on the authorities in deciding the adequacy or suitability, as the case may be. He will have to make out that he is an aggrieved person before he can call upon this Court to examine the correctness of the order passed. This the writ petitioner has failed to do in this case.

I respectfully adopt the ratio laid down by Mohan, J., in the above judgment. Before the petitioner can invite this Court to apply its mind to the correctness or otherwise of the impugned order passed by the appellate authority as confirmed by the revisional authority, the petitioner has to make out that He or she is an aggrieved person. When once I come to the conclusion that the petitioner is not an aggrieved person, it is not open to the petitioner to say that even though Her objections might be belated, this Court can consider the correctness of the order.

16. The writ petition, therefore, fails and is dismissed; but in the circumstances, without costs.


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