1. The disputes which have given rise to this Writ Petition centre round the grant of a 'No objection Certificate' to run a touring cinema in the village of Olagadam, which is a minor Panchayat in the Coimbatore District. The Petitioner Venkatachalam Chetty made an application to the Collector for the grant of such a certificate in respect of a site which bore S.F. No. 726 in the village. This application was preferred on 1st September, 1958. The Collector complied with the request of the applicant and granted the certificate after making the necessary enquiries and after satisfying himself that the requisite formalities had been complied with. Besides the petitioner one Subramaniam had also made an application for the grant to himself of a 'No objection certificate' in respect of S.F. No. 695 in the same village. This application also had been received in the office of the Collector on 1st September, 1958. This application of Subramaniam was pending before the Collector when Venkatachalam's application was granted. As a consequence of the allowance of this last mentioned application Subramaniam's application was dismissed because there was no scope for the grant of licence to two touring cinemas to run within that village and besides two sites chosen by the parties were within the prohibited distance of each other. Subramaniam preferred an appeal to the Board of Revenue from the rejection of his application which was open to him under the Rules. In his memorandum of appeal to the Board, Subramaniam not merely challenged the validity of the refusal of the licence to himself but also naturally attacked the propriety of the grant of the 'No objection Certificate' to Venkatachalam. The Board issued notice to Venkatachalam and after considering the representations made by him allowed the appeal and remanded the two applications to the Collector for fresh disposal of both together in accordance with law. This order of the Board has become final and it is on the basis of this order that further proceedings before the Collector took place. I might also mention that the validity of this order cannot even be impugned even if it were so open. In accordance with this order of remand of the Board of Revenue, the Collector considered both the applications together and by his order dated 4th March, 1959, he granted a 'No objection Certificate' to Venkatachalam and as a necessary consequence the application of Subramaniam was rejected for the reason that the site selected by the latter was within four furlongs of the site selected by Venkatachalam. Subramaniam who was naturally dissatisfied with this order took the matter again in appeal to the Board of Revenue and the Board allowed his appeal by their order dated 16th June, 1959 and it is the validity of this last order that is impugned in this writ petition under Article 226 of the Constitution.
2. Before adverting to the points raised by the learned Counsel for the petitioner it would be convenient to set out the main ground on which the Collector preferred Venkatachalam to Subramaniam for the issue of ' No objection Certificate.' The Superintendent of Police, Coimbatore, the Tahsildar and the Revenue Divisional Officer had expressed their opinion that the sites chosen by both the applicants were unobjectionable from the traffic and other points of view. Both the applications had been received in the Collector's Office on the same day, namely 1st September, 1958. But Venkatachalam was preferred for the reason that he had complied with all the requirements of the Rules at an earlier date. The Collector pointed out that Subramaniam's application when it was filed was defective, that it was returned for rectification of the defects and that it conformed to all the requirements of the Rules only on 17th September, 1958, so that he treated the application of Venkatachalam as having a claim to priority by reason of its being of an earlier date. Another reason adduced by the Collector related to the opinion of the Panchayat which had to be taken into consideration under the last portion of Section 5 (I) of the Madras Act XIX of 1955. Rule 35 of the Madras Cinema (Regulation) Rules, 1957, provides, to quote the relevant paragraph,
35(2). A copy of the application... shall be sent to the local authority which shall 'forward it within one month from the date of receipt of the 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.
There is a Note to this rule which runs thus:
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 the dates of their receipt to avoid non-receipt or delay in receipt of the copies by 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 authority that there is no objection.
3. The application of Venkatachalarn was sent to the concerned panchayat on 1st September, 1958 or thereabout. No reply, was however, received from the panchayat in respect of this application until 3rd November, 1958 when the panchayat passed a resolution stating that it could not recommend the grant of a 'No objection Certificate ' to Venkatachalam. The reason for this refusal was stated to be that it had already recommended the grant of 'No objection Certificate' to Sub-ramaniam. Subramaniam himself had submitted his application to the Panchayat even before he filed it before the Collector arid on 13th September, 1958, the President of the Panchayat recommended the grant of ' No objection Certificate ' on the strength of a resolution passed by the panchayat on 20th August, 1958. The Collector held that the objection of the panchayat to the grant of ' No objection Certificate ' to Venkatachalam should be disregarded because it had not been received within the period of one month as provided for in Rule 35 and as regards the grant of ' No objection Certificate ' to Subramaniam he held that as the resolution of the panchayat was passed even before the application was filed before him it was ineffective.
4. These reasons for preferring Venkatachalam were considered by the Board of Revenue and they held that they could not accept the Collector's view about the value to be attached to the resolution of the panchayat. The Board pointed out
The Collector seems to have been carried away by the fact that the appellant had approached the Panchayat Board, earlier to the date of his application. The Board does not see how the Collector can have any valid objection to this procedure and there is nothing in the Madras Cinemas (Regulation) Rules, 1957, which can invalidate the resolution of the Panchayat Board.
5. One other matter that might be mentioned is that though on the terms of Rule 35 the Collector could have proceeded to consider the application without reference to the panchayat if its view about the application were not received within one month. I do not see how the Collector can fail to take note of or disregard a resolution of the panchayat which had been communicated to him before the application was actually considered and ordered.
6. It appears to me that there is really little that could be said against the legality of the order of the Board because they were admittedly the appellate authority who could consider the decision of the Collector on the merits.
7. The point, however, that was urged by the learned Counsel was based upon a decision of this Court in W.A. No. 98 of 1958 Since Shanmugam v. Arumugam : (1960)1MLJ66 where the learned Chief Justice has discussed the procedure to be followed in the grant of a ' No objection Certificate '. The passage that is now relied on by the learned Counsel for the petitioner was
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 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 '....
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 slection, 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?
After pointing out the distinction between the principle of selection that is applied to determine the preference among the several applicants for the grant of a stage carriage permit uner the Motor Vehicles Act the learned Judge went on to state:
There are several difficulties in invoking the principle of selction in respect of applications for the issue of' No objection Certificate ' under the Madras Cinemas Regulation Act.
7. Their Lordships finally held that the principle of selection could not normally be applied and that in an appeal against an order refusing the grant of a ' No objection Certificate ' the only order that could be passed by the Board would be, if they had allowed the appeal, to direct the grant of the certificate to the appellant and cannot extend to directing the setting aside the grant of the certificate already made to a rival applicant. Based on this reasoning, learned Counsel for the petitioner urged that in the present case the Board had exceeded their jurisdiction in directing the setting aside of the grant of ' No objection Certificate' to the petitioner.
8. I have examined this decision of the Bench which is binding on me with great care, but I must say that it does not lead to the result for which the learned Counsel contends. In a normal case of an application for the grant of ' No objection Certificate ' no appeal would lie from the grant, because the Rules do not contemplate the consideration of rival claims of different applicants. In a case however, where applications are made simultaneously or almost simultaneously, all of them complying with the requisite formalities there has necessarily to be a selection due either to the requirements of Rule 14(2) regulating the distance between the two cinemas or because the population of the area does not admit or justify the running of more theatres than one. In such a case there has necessarily to be a selection. It was precisely this contingency that was envisaged by the learned Chief Justice when he observed:
There may be an extraordinary contingency of the applications for the issue of ' No objection Certificate ' 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.
I consider that the facts of the present case fall within the principle here enunciated.. There were in the present case two applications, both made on the same date (1st September, 1958), though Subramaniam (2nd respondent) complied with all the formalities required by Rule 100 only on 17th September, 1958. If that was a circumstance that could weigh against the 2nd respondent and in favour of the petitioner there was a countervailing circumstance, namely, that the 2nd respondent's application was not supported by the panchayat of the village whereas that of the petitioner was recommended by it. It was, therfore, a case of balancing of several factors and if the Board attached more weight to the one rather than to the other, it could not be said that they had committed any error which could be set right by the exercise of the jurisdiction of this Court under Article 226 of the Constitution. Besides it would also be seen that under Section 5(1) of the Act there is a statutory obligation cast upon the licensing authority to take into consideration the views of the local authority whereas the rule that first come first served would only have a limited and other than statutory force. learned Counsel for the respondent also submitted, and in my opinion, that submission is well founded, that if the two applications were in order on the date when they were considered, mere* priority in the filing of the application would not be a very material circumstance making a preference among the applicants.
9. What I have said earlier ought to suffice to say that in my opinion there are no grounds for interfering with the order of the Board of Revenue. The petition fails and is dismissed. No order as to costs.