A. Mallikarjuna Rao and another vs Joint Collector, Khammam

Madhava Reddy, J.—This writ petition for issue of a writ of Certiorari or any other appropriate writ is to quash the order of the Joint Collector, Khammam in Rc. No. C. (M)/668/79 dated 24-9-1979 imposing a penalty of Rs. 10,000/- under S. 9 of the A.P. Cinemas (Regulation) Act 1955 for alleged violation of R. 8 of A.P. Cinemas (Regulation) Rules 1970 read with S. 9 of the Act.

The facts which lead to the passing of this order in brief are:-- The petitioners applied for grant of permission to construct a Cinema theatre under the provisions of the A.P. Cinemas (Regulation) Act 1955 read with the Rules made thereunder, on 30-3-1979. According to the petitioners, 16-6-1979 was an auspicious date for laying the foundation for the building. He, therefore, laid the foundation and started construction on that day. On 3-7-1979 the Revenue Divisional Officer inspected the site and asked the petitioners to stop further construction and the petitioners stopped it. The Joint Collector after issuing a notice as to why the construction should not be treated as unauthorised, imposed a penalty of Rs. 10,000/- by the order now impugned in this writ petition.

Rule 9 of the said Rules governs the procedure for grant of permission to construct cinema building. Sub-rule (1) (a) of R. 9 provides that if the application is not in accordance with the rules, the licensing authority will return the same to the applicant for resubmission within a period of 60 days, failing which the application shall be treated as rejected and a fresh application shall be made. The petitioners'' application was not returned within the said period of five days. Hence, the question of petitioners'' application being rejected under that Rule did not arise. As required by sub-rule (1) (b) of R. 9 the application was forwarded to the Electric Inspector, to the concerned Executive Engineer, Roads and Buildings, the Chief Executive Officer of the local authority, the Health Officer and the Police Authorities asking for their reports. However no communication was sent to the petitioners even by 28-6-1979, when the period of 90 days computed from the date of the presentation of the application for grant of permission expired. Sub-rule (2) of R. 9 lays down that on receipt of the reports referred to in clause (b) of sub-rule (1), if, the licensing authority is satisfied that the other requirements of those rules are fulfilled and that the applicant is in lawful possession of the site, he shall within twenty five days from the date of receipt of the said reports, grant the permission applied for, either absolutely or subject to such conditions as it thinks fit to impose. Second proviso to sub-r. (2) of R. 9 further lays down as follows :--

Provided further that, if orders either granting or rejecting the permission applied for are not passed within the period of ninety days from the date of receipt of application, it shall be deemed that the permission applied for has been granted.

Even though the said period of 90 days expired on 28-6-1979, the petitioners were not informed about the grant of permission or its refusal. Therefore, under the proviso, the permission would be deemed to have been granted. However, the foundation stone having been laid and some construction however small, having been made on 16-6-1979 and for a few days thereafter, that construction was deemed to be unauthorised and contravention of R. 8 of the said Rules and the Joint Collector imposed a fine of Rs. 10,000/-.

It would be seen that while Rr. 8 and 9 provide for an application to be made for construction of a cinema building and the procedure for grant of permission to construct a cinema building there is no specific provision which empowers the authorities either to direct demolition of the building or impose any fine for making any construction of the cinema building before the grant of permission. In as much as the permission was neither granted nor refused within a period of 90 days, the permission applied for by the petitioners, it would be deemed to have been granted under second proviso to sub-rule (2) of Rule 9 of the Rules. That construction could no longer be deemed unauthorised warranting demolition or imposition of fine. The only question is, whether before 28-6-1979 some constructions having been made, any fine could be imposed by the Joint Collector. The Joint Collector himself traced his power to S. 9 of the Act which reads as follows :--

Penalties : If the owner or person in charge of a Cinematograph uses the same or allows it to be used, or if the owner or occupier of any place permits that place to be used, in contravention of the provisions, of this Act, or of the rules made thereunder or of the conditions and restrictions upon or subject to which any licence has been granted under this Act, he shall be punishable with fine which may extend to ten thousand rupees and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for each day during which the offence continues.

The above Section permits imposition of fine on a person in charge of Cinematograph, which is not the case here. It also permits imposition of a penalty on the owner or occupier of any place the place to be used in contravention of the provisions of this Act or rules made thereunder. The use of the place in the possession of the petitioners is not complained of in these proceedings. It is the commencement of the construction of the building, even before permission applied for was granted that is questioned. I do not think the construction of the building amounts to permitting the place to be used by somebody else, as to apply S. 9 . ''Place'' has been defined as including a house, building, tent and any vessel of transport whether by water, land or air. The open space over which the building is being constructed, which is not yet complete, cannot in my opinion, be treated as a place which is permitted to be used in contravention of the provisions of the Act and the rules made thereunder within the meaning of S. 9. Apart from S. 9 there is no other provision of the Act or Rules which authorise imposition of any penalty. No other provision has been brought to my notice which authorises the Joint Collector under the provisions of A.P. Cinemas (Regulations) Act and the Rules made thereunder, to impose penalty for construction of a portion of a building prior to the grant of permission. As the order now stands, the permission applied for was not refused; nor was any communication sent to the petitioners before the expiry of 90 days from the date of the application made by him. As such, it would be deemed to have been permitted. Consequently the construction cannot be deemed to be unauthorised and no proceedings for demolition of any portion thereof can be taken. Hence, no instruction as suggested by the learned Government pleader can be given or observations made so as to keep the matter open for the appropriate authority to consider as to whether the construction is unauthorised and if so take proceedings for demolition. The impugned order is therefore quashed.

The writ petition is therefore, allowed with costs Advocate''s fee Rs. 150/-.