Kempaiah and Others vs District Magistrate, Bangalore and Another

In this petition, under Art. 226 of the Constitution, the petitioners have challenged the order, dated 23-10-1978 of the District Magistrate, Bangalore, (hereinafter referred to as the ''D.M.'') in case No, MAG (2) 19/78-79 (Exhibit C).

On 14-10-1974 respondent No. 2 applied to the D.M. for giant of a no objection certificate (hereinafter referred to as the ''N.O.C''.) for running a touring cinema on a portion of the land bearing S.No. 95/8 measuring 160'' x 80'' under the provisions of the Karnataka Cinema (Regulation) Act (hereinafter referred to as the, ''Act'') and the Karnataka Cinema (Regulation) Rules of 1971 (hereinafter referred to as the Rules) framed thereunder. As required by the Act and the Rules the D.M. notified the application made by respondent No. 2 and invited representations and objections, in pursuance of which some of the petitioners and a few other residents of the town filed their objections opposing the grant of N.O.C. sought by respondent No. 2. As there was no permanent or a touring cinema in the town then running, a large number of the residents of the town and adjoining villages filed representations before the D.M. urging for the grant of N.O.C. and a touring cinema. On 19-4-1975 the D.M. inspected the area, heard respondent No. 2, objectors and representionists. On consideration of the reports received from the various local Officers and the facts ascertained by him at the inspection of the place the objections and representations made thereto the D.M. by his order dated 19-4-1975, overruled the objections filed by the petitioners and others and directed the grant of N.O.C. to respondent No. 2 on the terms andconditions set out in his order. On the basis of the N.O.C. obtained by him respondent No. 2 after obtaining the necessary license from the Municipality constructed a touring cinema on the area and on 10-6-1975 applied to the D.M. for issue of a license for exhibiting films in the talkies constructed by him. On the application, the D.M. directed the Tahsildar, Bangalore South Taluk to inspect the building and the area and report whether the construction of the building conformed with the conditions of the N.O.C., the Act and the Rules. On 18-6-1975 Tahsil- dar inspected the talkies and the area and submitted his report on 20-6-1975. On a consideration of the report submitted by the Tahsildar, the D.M. being satisfied that the construction of the talkies was in conformity with the N.O.C., the Act and the Rules, granted a license to respondent No. 2 on 25-6-1975 to be valid from 25-6-1975 to 8-6-1976 In pursuance of thatlicense respondent No.2 commenced exhibiting films in the talkies from that day and in any event from the next day. On the expiry of the original license granted, respondent No. 2 has been obtaining renewals of the license from time to time and was continuously exhibiting films.

Unfortunately for respondent No. 2, on 11-7-1978 there was a fire accident and the touring talkies was reduced to ashes. With no, alternative left, respondent No. 2, thereafter approached the D.M. for permission to reconstruct a touring cinema at the same place on the same terms and conditions on which he had earlier permitted the construction of the touring cinema. At that stage some of the petitioners and a few others intervened before the D.M. by filing written applications opposing the application made by respondent No. 2. In view of the intervention of the petitioners and several others, the D.M. again called for reports, inspected the area on 30-6-1978, heard respondent No. 2, petitioners and others. On a consideration of all the relevant factors, the. D.M.by his order, dated 23-10-1978 (Ext. ''C'') has granted permission to respondent No. 2 to rebuild the touring talkies that was burnt in July 1978 subject to certain conditions stipulated in his order, the validity of which is challenged by the, petitioners and others. Before noticing the contentions it is useful to notice the earlier proceeding in relation to the N.O.C. and the licenses granted from time to time to respondent No. 2.

On 2-8-1977 Petitioners Nos. 1, and 3 and three others viz., K. Hanumappa, K.R. Sathyanarayana and Chaggaiah presented a writ petition before this court in writ petition No. 6451 of 1977 challenging the validity of the N.O.C. and the license granted to respondent No. 2. On 21-9-1977 this court issued rule nisi in that case but did not grant an order of stay and the case was posted on 17-3-1978 for hearing before Rama Jois, J., As by that time the period of license regranted to respondent No. 2 from 10-6-1977 to 8-12-1977 had expired, on 17-3-1978 Rama Jois, J. after observing that the period of license had expired and therefore the prayer made by the petitioners in that writ petition was incapable of being granted, dismissed the said writ petition leaving open all the contentions of the parties to that writ petition.

The principal or the only ground on which the petitioners who claim to be the residents of Kengeri town and who have not suffered any personal injury, are opposing the location and running of a, touring cinema by respondent No. 2, is that the same would interfere with the proper and smooth functioning of an educational society run by a society called the Kengeri Educational Society (Regd.) on the very same, survey number which is owned by the society. In their original petition, none of the petitioners claim that the area was a thickly populated residential area or an area used generally for residential premises and that all their houses are situated within a distance of 50 mtrs. from the area on which the touring talkies has been permitted to run by the D.M. But in the reply statement filed at the hearing of the writ petition, petitioner No. 7has claimed that he has a house within 15 mtrs. from the building on which the touring cinema exists.

At the direction of the Court, the D.M. who is respondent No. 1-has entered appearance through the learned High Court Government Pleader and has produced the records. In his objection statement, respondent No. 2 while alluding to the facts noticed by me earlier, has asserted that except petitioner No. 1 the other petitioners had not opposed the N.O.C. sought by him. He has asserted that the petitioners are not residing within the proximity of the site and therefore they have no locus standi to challenge the order. Lastly, he has urged that the educational institution which is the owner of the site and had leased the same, for augmenting the funds of the educational institution, the town municipality, the veterinary hospital and others had no objection for locating a cinema on the area and the objections raised by the petitioners to the contrary is out of spite and ill feeling against him.

Sri R.U. Goulay, learned counsel for the petitioners, contended that having regard to the existence of an educational institution on the land, it was not open to the D.M. to grant permission to reconstruct a building in violation of R. 27 of the Rules. Elaborating his contention Sri Goulay maintained that the prescribed minimum distance of 50 mtrs. between a cinema site and, an educational institution should be measured from the boundary of the ground or appurtenances to the building as such as ruled by a Division Bench of this Court in State of Karnataka v. Shivappa, (1976) 1 Kar.L.J. 241.

Sri B.G. Sridharan, learned counsel for respondent No. 2 while refuting the contention of Sri Goulay urged that the petitioners are not aggrieved persons and have no locus standi to maintain their writ petition. Elaborating his contention Sri Sridharan urged that only those persons who have residential premises within the prohibited distance of minimum 50 mtrs. are entitled to object and maintain a writ petition before this court and not all the residents of the town. In support of his contention Sri Sridharan strongly relied on the ruling of the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar, AIR. 1976 SC 578.

In this petition, the petitioners have only challenged the order of the D.M. according his sanction for reconstruction of the touring talkies that was burnt in a fire accident. They have not challenged the N.O.C. granted or the licenses, if any, issued to respondent No. 2. In the absence of a challenge to the N.O.C., I would not be justified in examining and pronouncing on, its validity. So long as an, N.O.C. is not challenged and is in force construction and reconstruction of a talkies which is consequential to the same cannot be legitimately challenged by the petitioners even assuming that they are ''aggrieved persons''. Secondly, it is only a case of permitting reconstruction of a talkies that was in existence for well over two years which had been burnt in a fire accident beyond the control of respondent No. 2 on the very same terms and conditions on which it had been permitted to be constructed earlier. S. 11 of the Act expressly confers power on the D.M. to permit the reconstruction of a building destroyed by fire or any other reason. In the absence of such an express power also, the authority will have the power to permit the reconstruction of the building. By permitting the reconstruction of the talkies, the authority is only effectuating the N.O.C. granted and is not doing anything in derogation of the same. In these circumstances, can it be Said that the petitioners have acquired a new right or have become ''aggrieved persons'' to challenge the impugned order of the D.M. In my opinion, the answer to the said question must be clearly in the negative and that being so, the challenge of the petitioners is liable to be rejected without further examining the other questions. But I will also assume that the petitioners have challenged the N.O.C., the license, if any granted to respondent No. 2 and therefore the petitioners have a subsisting interest in the matter and examine their case.

After inviting objections and representations in accordance with the Rules, the D.M. granted the N.O.C. to respondent No. 2 as early as on 19-4-1975. On 10-6-1975 he also accorded permission for the construction of the talkies on the camp side. Petitioner No. 1 herein and four others challenged the N.O.C. granted to respondent No,. 2 before this court on 2-8-1977 and thus there was a delay of more than two years, by those petitioners in approaching this court, At the hearing of that case respondent No. 2 specifically contended that the said writ petition was highly belated and was liable to be dismissed on that ground. Even though Rama Jois, J., did not examine that contention and pronounce on the same, it is obvious that if the court had examined that contention, it would have undoubtedly found that contention in favour of respondent No. 2 and dismissed the said writ petition on that ground alone. In the earlier writ petition also, the petitioners have not given any satisfactory explanation for the undue delay in approaching (his court. In this writ petition also the petitioners have not given any satisfactory explanation for the delay, if any, for not challenging the N.O.C. granted to respondent No. 2 earlier to the presentation of Writ Petition No. 6451 of 1977. On the faith of the N.O.C. and the permission granted thereon for construction of the talkies respondent No. 2 had constructed the talkies and was exhibiting the films for well over two years though the petitioners and others were giving him some pin-pricks on the alleged evasion of entertainment tax and Other matters with which I am not concerned in this writ petition. In my view, the petitioners who are residents of the same town and who have full knowledge of the proceedings taken, having allowed the construction of the talkies, exhibition of films for well over two years, have not made out any circumstances to ignore the inordinate delay in approaching this court earlier or on this occasion and therefore the challenge of the petitioners against the N.O.C. construction of the cinema and the consequential reconstruction, in the circumstances narrated earlier, are liable to be rejected on the ground of undue delay and acquiescence.

On the above conclusions reached by me the question of examining the merits of the contentions urged by the petitioners does not really arise. But as my order is subject to appeal. I propose to record my findings on the various contentions urged before me.

Sri R.U. Goulay, learned counsel for the petitioners, contended that the distance of 50 mtrs. should be measured from the boundary of the ground on which the building exists and not from such building as ruled by this court in Shivappa''s case. In Shivappa''s case the question from where the measurement should be taken in respect of a building under Rule 27 of the Rules has been specifically examined and the meaning to be attached to those words has been authoritatively expounded by this court But the question is whether there is such an infraction and if there is such an infraction the impugned order is liable to be quashed by this court at. the instance of the petitioners.

While sanctioning the N.O.C., as also in the present order the authority appears to proceed that 50 mtrs. should be measured from the main building and not from the ground on which the said building exists and since the educational institution itself had not objected and had positively agreed there was no violation of Rule 27 of the Rules. In proceding to measure the distance from the educational building and not from the ground on which the said building exists, the D.M. was no doubt acting in disregard of Rule 27 the meaning of which has been explained by this court in Shivappa''s case. Even though this is the position, I am of the view that the petitioners cannot succeed in invalidating the impugned order for the several reasonsthat will be stated by me hereafter.

The object of providing that a cinema should not be constructed within 50 mtrs. is primarily in the interest of the educational institution and the students that are studying in that educational institution. As seen earlier, the educational institution which is also the owner of the land and which has leased the same to respondent No. 2 to augment its financial resources, has no objection for the authority permitting the location of a cinema on its land. The Town Municipality and the other local authorities who had occasion to examine the matter are satisfied that the location of the cinema on the land does not in anyway affect the interest of the educational institution. In the town itself there is neither a permanent nor a touring cinema catering to the needs of the people of the town and other nearby villagers. Except a few disgruntled persons like the petitioners who do not seem to be motivated by genuine consideration of public interest but appear to be motivated out of personal considerations or vendetta against respondent No. 2, have made a belated challenge to the action of the authority whose bonafides are not questioned before me. In these circumstances even if there is an infraction of Rule 27 this is not a fit case in which I should interfere against a just order which has not occasioned any injury or failure of justice to the petitioners.

Sri B.G. Sridharan, learned counsel for respondent no. 2, contender that the petitioners who do not have their residential houses within 60 mtrs. of the cinema have no right to object to the location of the cinema and therefore they are not ''aggrieved persons'' to maintain their writ petition before this court. In answer to this contention Sri Goulay urged that so far as the interest of an educational institution every member of the town has an interest in its proper functioning and that one of the petitioners who is at present residing within 50 mtrs. is in any event an aggrieved person.

Rule 27(1) (i) prohibits the location of a cinema site within the distance of 50 mtrs. of the places and buildings mentioned in various sub-clauses of that clause. The object of cl.(i) is to safe-guard the places and buildings that are used by its owners, occupiers or others that are interested in those places and, buildings. Every member of the city or town cannot be said to be interested in the places and buildings mentioned, in cl. (i) of R. 27(1) of the Rules. Fromthis it necessarily follows that only those persons that are owners, occupiers or others that are interested in the places and buildingsreferred to in sub-clause (i) of Rule 27(1) of the Rules have a right to object before the authority and not all the members of a city or town. In their writ petition, the petitioners have challenged the order as members of the town interested in the proper functioning of the educational institution and not as owners occupiers or persons interested in the places and buildings referred to in clause (i) of Rule 27(1) of the Rules. In these circumstances, I am of the opinion that the petitioners had no right to object to the location of the cinema site for which reasons they cannot also maintain this writ petition before this court. But Sri Gaulay contended that on the authority of the ruling of the Supreme Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR. 1966 SC. 828, the petitioners have locus standi to maintain this writ petition. In Gadde Venkateswara Rao''s case, AIR. 1966 SC. 828 the Supreme Court had to consider whether the petitioner-Gadde Venkateswara Rao-who had deposited certain amounts to, enable the construction of a primary health centre had locus standi to challenge certain orders in the, matter of location of a primary health centre. That case did not deal with the rights of the parties arising under Cinemas (Regulation) Act. In my view the ratio in Gadde Venkateswara Rao''s case, AIR. 1966 SC. 828, has no application in determining the locus standi of the petitioners. On the other hand the locus standi of the petitioners has to be decided in the light of the principles enunciated by the Supreme Court in Jasbhai Motibhai Desai''s case, AIR 1976 SC 578, in which it had occasion to examine the Bombay Cinemas (Regulalation) Act of 1953 and the Rules framed thereunder which is similar to the Act and the Rules in Karnataka. Upon the application of the, principle in Jasbhai Motibhai Desai''s case, AIR 1976 SC 578, it appears to me that the petitioners fall within the category of ''busy body or meddlesome interlopers'' and therefore they have no locus standi to challenge the impugned order granting permission to reconstruct the building to respondent No. 2.

In the light of my above discussion, I hold that the rule issued is liable to be discharged.

Rule discharged.

In the circumstances of the case, I direct the parties to bear their own costs.