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Judgment
T.U. Mehta, C.J.—The Petitioners who are the residents of the locality known as Nandmarhiat Chamba town have filed this petition for quashing the permission granted by the Respondent No. 2, who is the District Magistrate, Chamba, to the Respondent No. 3 Shri Surinder Pal Dhall, as per Annexures P-2 and P-5, to construct a cinema house in the said locality. The short ground on which the impugned action is challenged is that the Respondent No. 2, District Magistrate, Chamba, has granted the said permission without applying his mind, and in infringement of specific provisions contained in the relevant rules, because, on pressure from very important persons in the Government, he, according to the Petitioners, was bent on favouring the Respondent No. 3 who has applied for the licence under Himachal Pradesh Cinematograph Rules, 1955.
Short facts of the case are that on 19th July, 1977, the Respondent No. 3 Surinder Pal Dhall made the following application to the Respondent No. 2, District Magistrate, Chamba:
Subject: Grant of license under the Cinematograph Act.
Sir,
Respectfully I beg to state that I intend to start a cinema within the municipal limits of Chamba town.
It is therefore requested that I may kindly be granted the required license under the Cinematograph Act.
I will construct the building according to the latest design and specifications prescribed by the Government.
Thanking you,
Yours faithfully, Sd/- S.P. DHALL 19-7-1977
A copy of this application is not produced by any of the parties in the record of the Case, but at the time of hearing, the original record of the office of Respondent No. 2, District Magistrate, Chamba, was before us and we have taken the above quoted Copy from the original application which is found in the record.
On perusal of the original office record we have further found that on receipt of this application the office put the notes showing the necessity of filing of documents. These notes were made on 19th July, 1977, i.e. on the same day on which the application was filed.
It is found that pursuant to the above notes the Respondent No. 3 produced the following documents:
(1) Copy of Tatima Shazra,
(2) Copy of Jama Bandi,
(3) Plan for the construction of the cinema hall (3 copies)
This was done by the Respondent No. 3 on 26th July, 1977. The order sheet of the file maintained by the office of Respondent No. 2 reveals that on the same day the Respondent No. 2 passed the following order:
I am satisfied regarding ownership of premises. As far as the stipulation regarding Section 5 of the Act is concerned, the applicant has furnished full particulars regarding ownership of all rights in the premises. He has also submitted complete plans as required u/s 5(2)(b) and Section 5(2)(c). He may be given licence subject to the following conditions.-
(1) The site and boundary plans are approved by Executive Engineer, Chamba Division.
(2) Specifications of various materials proposed to be used in the construction of building are given.
(3) A report is submitted by the S.D.M. that Section 21(3) is complied with and if not Governmental sanction for relaxation is taken.
Sd/- 26-7-1977
The file of this case shows that thereafter the Respondent No. 2, describing himself as Deputy Commissioner, issued a memorandum to the Respondent No. 3 as found at Annexure P-2 on 30th July, 1977. By this memorandum he stated that the construction of cinema building by the Respondent No. 3 on the land comprising Khasra No. 5538 and Khasra No. 5543 Khatauni 479/333 min situated in Chamba town was permitted subject to three conditions which are mentioned in Axnnexure P-2. It is not necessary to repeat these conditions but it would be sufficient to say that all the three conditions are with regard to the construction which was to be carried out for the cinema house. This particular memorandum was endorsed to Executive Engineer as well as Sub-Divisional Magistrate, Chamba. The endorsement made to the S.D.M., Chamba, was in the following terms:
Copy with a copy of application referred to above and site plan and revenue papers in original forwarded to S.D.M., Chamba for scrutiny in accordance with the provisions of Rule 21(3) of H.P. Cinematograph Rules, 1955
If the above endorsement is read along with the above quoted order dated 26-7-1977, it becomes apparent that after the permission was granted for the construction on the site as proposed by the Respondent No. 3, the report of the S.D.M. was called for to get satisfaction whether provisions contained in Rule 21(3) of the H.P. Cinematograph Rules, 1955 were satisfied or not.
At this stage it would be proper to refer to Rule 21(3) to which reference is made in the above referred endorsement to the S.D.M. This rule finds its place in Part III of the H.P. Cinematograph Rules, 1955 which is with regard to buildings licensed annually for cinematograph exhibitions. Rule 21(3) is in the following terms:
(3) No building except that already licensed at the date this rule comes into force shall be licensed for cinematograph exhibition if it is situated:
(a) Within a radius of one furlong from-
(i) any residential institution attached to a recognised educational institution such as a College, School or girls'' school; or
(ii) a public hospital with a large indoor patient ward; or
(iii) an orphanage containing one hundred or more inmates; or
(b) in any thickly populated residential area which is either exclusively residential or reserved or used generally for residential as distinguished from business purposes."
This Sub-rule (3) of Rule 21 shows that it is meant to fix the site at which the cinema house should be built. Enquiry or fixation of this site was contemplated by the above referred endorsement made by the Respondent No. 2 to the S.D.M.
It appears that by this time some residents of the locality came to know that a license for exhibition was proposed to be given with regard to the building which the Respondent No. 3 was intending to construct at the site in question. Therefore, on 28th July, 1977, some 106 residents of this locality are said to have signed a representation as found at Annexure P-6. This representation was addressed to Shri Kishori Lal Vaidya, who was, at that time, functioning as Minister for P.W.D. and Health. The representation raised various objections against licensing the building in the locality for the purpose of exhibition of cinematograph. No action seems to have been taken on these objections raised by the residents.
The record of the case reveals that on 5th August, 1977 the Sub-Divisional Magistrate, who was required by the Respondent No. 2 to submit his report, did submit his report as found at Annexure P. 3. Reference to the report shows that according to the S.D.M. he had taken spot inspection of the site and compared the site inspected with the proposed cinema plan and the Lattha maintained by the Patwari Halka. The Sub-Divisional Magistrate found that the objections raised by the residents of the locality were "convincing and genuine". According to this report, the locality in which the cinema house was proposed to be built was "predominantly residential in nature" and the following educational/religious institutions were found situated within one furlong of the proposed cinema house:
(1) Primary school
(2) Boys Higher Secondary School
(3) Youth Hostel
(4) Temple
The S.D.M. further reported that lane on the west of which the entrance to the cinema was located led to a college and that boys'' higher secondary school was hardly three hundred yards away. According to the S.D.M., if a cinema hall was allowed to function in the area, it was likely to "introduce a lot of vulgarity in this area and cause nuisance to the residents and harassment to the ladies and school going population of the educational institutions."
So far as the proposed plan was concerned, the S.D.M. reported that the same was deficient as it had only one twelve feet wide entrance which was to serve as exit and it opened on a narrow lane which normally remained congested during peak hours. The S.D.M. pointed out to other technical defects going to show that those defects posed "a safety hazard". He further opined that the proposed plan of the building was such that if fire were to break out in the cinema hall the persons within the hall would have no convenient and quick means of exit, that there was only one exit and that the whole site was completely surrounded by residential buildings. He finally opined as under:
Keeping in view the above observations I have no doubt that a cinema hall in this area with all its attendant congestion, noise, indecency would cause inconvenience, harassment, loss of privacy, disturbance and an objectionable influence to the residents of the locality and the students. It would also not observe the safety and other regulations laid down in the Act. I strongly recommend that the license be cancelled and that the venue of the cinema be shifted to some other area.
The original office record which we have checked does not show how the Respondent No. 2, the District Magistrate, dealt with this report. But it is revealed from the record that on 9th August, 1977 the said District Magistrate had gone to the spot. The Petitioners'' case is that if he had gone on 9th August, 1977 for the purpose of taking inspection, he had not thought it fit to give any prior intimation of the said inspection to the Petitioners. The Petitioners, however, noticed him along with two others at the spot and raised some questions with regard to the permission to build a cinema house there. They having found that the District Magistrate was not open to their arguments, the Petitioners submitted an application to the Chief Minister on the same day, i.e. 9th August, 1977, as found at Annexure P-7 wherein they have also referred to the visit of the Respondent No. 2 at the place of the incident. Nothing seems to have, however, resulted on this application which was addressed to the Chief Minister. The record of this case further reveals that on 9th August, 1977 itself the Executive Engineer, Chamba Division, addressed one letter to the Respondent No. 2 giving a list of 14 objections with regard to the construction of the cinema house. This was obviously in response to the endorsement made to this Executive Engineer by the Respondent No. 2 on 30th July, 1977 as per Annexure P-2.
It was after this that on 3rd October, 1977 the Respondent No. 2 again issued another memorandum found at Annexure P-5 by which "permission for construction of a cinema building" by the Respondent No. 3 was given subject to 12 conditions mentioned therein.
Before the above referred order Annexure P-5 was passed by the Respondent No. 2, two important events occurred, namely, (1) the municipality, Chamba, passed a resolution against the construction of cinema house in this locality. This resolution is dated 25th August, 1977 and is produced in the record of this case as Annexure P-4. It is in the following terms:
Unanimously resolved that the Deputy Commissioner, Chamba, be requested not to allow the construction of cinema in the said locality. This committee is also not in favour of granting permission as required u/s 121 of H.P. Municipal Act, 1968. It has been brought to the notice of the committee that the encroachments are also being made on Government/Municipal land there. The case be referred to the Tehsildar, Chamba.
It should be noted here that the above resolution makes reference to Section 121 of the H.P. Municipal Act, 1968, which prohibits cinematographs and dramatic performances except in licensed premises. (2) Another event which took place was that on the initiation of the Respondent No. 2 the Government, Himachal Pradesh, issued an order on 22nd September, 1977, with a view to meet some objections to the frontage of the cinema house which was proposed to be constructed under Sub-rule (2) of Rule 22. This Sub-rule (2) is in the following words:
The frontage shall be considered of adequate length if they form about half of the total boundaries of the site of the building excluding recesses and projections.
It may be noted here that the Executive Engineer had raised some objections as regards the frontage of the proposed building of the cinema house. In order to meet with these objections the Respondent No. 2 seem to have moved the Government for relaxation and, therefore, on 22nd September, 1977 the Government sanctioned the relaxation by the order found at Annexure R.D. in the following terms:
In exercise of the powers vested in him u/s 10 of the Central Cinematograph Act, 1952, as applicable to the areas comprising Himachal Pradesh before 1-11-1966, the Governnor, Himachal Pradesh is pleased to accord exemption from the provisions of Rule 22(2) of the Himachal Pradesh Cinematograph Rules, 1955, in favour of Shri Surinder Paul Dhall, resident of Chamba (H.P.) who has applied for license to construct a cinema house in Chamba town.
Since the Respondent No. 2 had already granted another permission to raise the construction by his order found at Annexure P-5 dated 3-10-1977, the seven Petitioners of this writ petition have filed this writ petition m this Court on 7th December, 1977. On 8th December, 1977, this Court issued an December, 1977. On 8th December, 1977, this Court issued an ad interim order stating that the order granting the cinematograph license to the Respondent No. 3 shall remain suspended. The said interim order was thereafter confirmed on 5th January, 1978, in the following terms:
During the pendency of the writ petition the Respondents Nos. 1 and 2 are restrained from granting cinematograph license to the Respondent No. 3.
The principal contentions which are raised by the Petitioners in this writ petition are that the record of the case clearly reveals that the Respondent No. 2 had, from the very start, made up his mind to grant the license in question in favour of the Respondent No. 3 irrespective of the facts and circumstances of the case, and irrespective of the consideration whether the rules framed by the Government u/s 16 of the Cinematograph Act, 1952, were complied with or not. It is contended on behalf of the Petitioners that the Respondent No. 3 who had applied for the license had close relations with the then Minister of P.W.D. and, therefore, it was through him that pressure was brought on the Respondent No. 2 to grant license and therefore throughout the proceedings the Respondent No. 2 has acted without applying his mind to the requirements of the rules and has also ignored the specific provisions as regards the procedure which was required to be followed while granting the required license and giving permission to raise construction. The Petitioners, therefore, pray that the orders found at Annexure P-2 and P-5 which permit the Respondent No. 3 to raise construction for running a cinema house should be quashed, as these orders, if allowed to remain, would ultimately result in the grant of license u/s 10 of the Cinematograph Act, 1952.
As against this, the Respondents have contended that this writ petition is misconceived, that the Respondent No. 2 has acted only according to the provisions of Cinematograph Act and the rules framed there under, and that he has passed the ultimate order after fully applying his mind to the facts and circumstances of the case. On behalf of the Respondents Nos. 2 and 3 it is contended that even if the office record of the Respondent No. 2 does not contain any material to show whether the Respondent No. 2 has considered the merits of the report submitted to him by the S.D.M., the Respondent No. 2 has now filed an affidavit in the record of this case to show why and for what reasons he was not prepared to accept the report of the S.D.M. The contention of the learned Advocates of the Respondents was that showing of the grounds which led the Respondent No. 2 to reject the report of the S.D.M. for the first time during this writ proceedings, should be taken as sufficient to disclose that these grounds in fact existed in the mind of the Respondent No. 2 at the time when he granted the impugned permission found at Annexure P-5.
''Refuting the Petitioners'' allegations that Respondent No. 3 was in any manner connected with the then Minister of P.W.D. Shri Kishori Lal, the Respondents have alleged against the Petitioners that almost all of these Petitioners are fighting this cause by proxy for a person who is at present running a cinema house at Chamba with a view to sustain his monopoly in the exhibition of cinematograph films at Chamba.
It was contended on behalf of Respondent No. 3 that at any rate even if it is found that the Respondent No. 2 has committed any procedural irregularity, the same should be ignored in view of the fact that the Respondent No. 3 has by now invested thousands of rupees in the construction of cinema house in accordance with the impugned permission found at Annexure P-5.
Before discussing the merits of the case it would be proper to refer to some relevant provisions of law on the subject. Part III of the Cinematograph Act, 1952 (Central Act No. 37 of 1952) (hereinafter shortly referred to as the Act), contemplates regulation of exhibitions by means of cinematographs. Section 10 with which this Part III begins is in the following terms:
Cinematograph exhibition to be licensed.-Save as otherwise provided in this Part, no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under this Part or otherwise than in compliance with any conditions imposed by such license.
The section shows that the license which is contemplated by it is with reference to the place where exhibition by means of a cinematograph is proposed to be made. Section 11 states that the District Magistrate concerned shall be the licensing authority. Section 12 mentions the restrictions on the powers of licensing authority in the following terms:
(1) The licensing authority shall not grant a license under this part, unless it is satisfied that:
(a) the rules made under this Part have been substantially complied with, and
(b) adequate precautions have been taken in the place, in respect of which the license is to be given, to provide for the safety of persons attending exhibitions therein."
Thus, according to the above quoted provisions of Section 12, two types of main restrictions should be kept in view by the licensing authority at the time of making a grant of license, namely, (1) that the rules made under Part III of the Act have been substantially complied with and (2) adequate precautions are taken for the safety of the persons attending the exhibitions.
Section 16 of the Act empowers the Government to rules. Such rules are framed by notification, dated 28th June, 1955. We shall presently refer to some of the rules which are relevant to the determination of the points raised in this writ petition. Rule 5 is with regard to the applications for the grant or renewal of a license under the Act. Sub-rule (2) therefore is important inasmuch as it prescribes the particulars and other documents which were required to be filed at the time when the Respondent No. 3 made the application for the grant of a license. This Sub-rule (2) is in the following terms:
(2) Applications for the grant as distinct from the renewal of an annual license shall be accompanied by-
(a) full particulars regarding the ownership of, and all rights in, the premises and in the cinematograph apparatus to be used there;
(b) complete plans, elevations and sections in duplicate, of the premises and all erections or buildings thereon drawn correctly to the scale of one-eighth of an inch to one foot and showing the width of all stairways and the number of steps in each, the width of corridors, gangways and doorways, the height of the cinematograph and of the plant for the generation or conversion of electrical energy;
(c) a site plan in duplicate on a separate sheet drawn to the scale of one-fortieth of an inch to one foot showing the position of the premises and to the public thoroughfares upon which the site of the premises abuts, and the arrangements proposed for the parking of motor cars and other vehicles;
(d) specifications of the various materials proposed to be used in the construction of the building.
Sub-rule (4) of Rule 5 prescribes that the applications under Sub-rule (2) should be submitted to the licensing authority before the construction of the proposed cinema building is undertaken.
Rule 8 provides that a person aggrieved by the decision of the licensing authority u/s 12 of the Act may within thirty days of such decision appeal to the Government who may after such enquiry as it considers necessary pass such orders thereon as it deems fit.
The relevant rule which follows is Rule 21. Sub-rule (3) thereof is already quoted by us. Sub-rule (4) of Rule 21 says that the District Magistrate shall subject to the general control of the Government determine what is a hospital, recognised educational institution, a large indoor patient ward or a thickly populated area and this decision should be treated as final and conclusive. A proviso which is added to this Sub-rule (4) says that the District Magistrate may for sufficient reason and with prior approval of the Government relax this rule or any part thereof, in any case, and especially in the case of cinema halls already completed or nearing completion, with the approval of the local authority prior to the enforcement of these rules.
The procedure contemplated by Section 10 of the Act and the rules referred to above and Rule 5 shows that what is licensed is the "place" for exhibition by means of a cinematograph and that application for obtaining the said license is required to be made before the construction of the cinema house starts. Reference to Rule 21(3) which is quoted above shows that before permitting the construction at a particular site the said site is required to be approved. In other words, the impact of Rule 21(3) is that the selection of the site should precede the grant of any permission to raise construction of the cinema house.
After anxiously considering the record of the case and the manner in which the impugned permission found at Annexures P-2 and P-5 were granted by the Respondent No. 2, we have no doubt in our mind that the Respondent No. 2 has remained totally oblivious of the statutory duties which he was required to perform before passing the impugned orders Annexures P-2 and P-5.
The above statement of the chronological events shows that when the Respondent No. 3 filed his application on 19th July, 1977 he did so as if Rule 5, which is quoted above, never existed on the statute book. We have quoted the application submitted by him on 19-7-1977 to the Respondent No. 2. That application reveals no particulars whatever which are required by Rule 5. The office of the Respondent No. 2, however, insisted on having some documents with the result that on 26th July, 1977 the Respondent No. 3 submitted three types of documents, namely, Tatima Shazra, Jamabandi and the proposed building plan of the cinema house. Even after the supply of these documents many other particulars remained to be supplied. In ordinary course, therefore, if the Respondent No. 2 had applied his mind to the requirements of Rule 5 he would have returned the application back instructing the Respondent No. 3 to supply necessary particulars as required by Rule 5. However, instead of doing that, on 26th July, 1977 he has passed the order which is verbatim quoted by us from his order sheet. Reference to this order shows that the Respondent No. 2 granted the permission on condition of the remaining particulars being supplied. It is difficult to understand what was the hurry which impelled the Respondent No. 2 to grant permission even before the particulars were supplied and to pass a conditional order on the same day on which the Respondent No. 3 supplied the copies of Tatima Shazra, Jamabandi and the plan of the proposed cinema house. The most astounding part of this order is that it calls for the report of the S.D.M. with regard to the selection of the site after giving permission to make construction on certain conditions on the very site regarding which the report of the S.D.M. was sought for. And the fact which is all the more astounding is that even before knowing what would be the objections raised by the S.D.M. the Respondent No. 2 has already recorded that in case any objections were raised by the S.D.M. the Government should be moved to relax the provisions concerning these objections. An order of such type clearly reveals the mind of the Respondent No. 2 and gives a good deal of credence to the Petitioners'' contentions that from the very beginning the Respondent No. 2 had determined to issue license is requested by the Respondent No. 3. This surely is not the attitude of a public authority which is required to function justly and fairly and is also expected to satisfy the statutory provisions with an objective mind. It is difficult to understand what purpose was served by troubling the S.D.M. to submit his report as regards the site when the site proposed by he Respondent No. 3 who wanted the license stood already approved. As already stated above, the Rule 21(3) dearly indicates that selection of site should be made first before its approval. The Respondent No. 2, therefore, is found to have granted permission without appraising himself of the facts which could have satisfied the requirements of Rule 21(3).
Proceeding further it is found that after the S.D.M. submitted his report on 5th August, 1977, the District Magistrate, Respondent No. 2, has not considered the merits of this report. We have already given a brief resume of the report submitted by the S.D.M. and the nature of the objections raised by him. The original office record of the case nowhere reveals any material either in form of no tings, order or otherwise to show that after the Respondent No. 2 received the report of the S.D.M. found at Annexure P-3, he applied his mind and considered the same on merits. We specifically requested the learned Advocate-General and other learned Advocates of the Respondents to go through this office record and to point out to us any material which would go to show that before passing the impugned order Annexure P-5 which is dated 3rd October, 1977 the Respondent No. 2 applied his mind to this report of the S.D.M. and considered the same on merits. They have, however, not been able to point out any such material from the office record.
The learned Advocates of the Respondents, however, drew our attention to the affidavit filed by the Respondent No. 2 wherein he has at length stated the grounds which prompted him to reject the report of the S.D.M. They also contended that report of the S.D.M. indicated the consideration of all irrelevant facts and was not worth anything and, therefore, even if the Respondent No. 2 District Magistrate had ignored that report before passing the final order Annexure P-5, it mattered little.
The learned Advocates of the Petitioners on the other hand relied upon the decision given by the Supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, wherein it is held that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in shape of affidavits or otherwise, and that if this principle is not accepted, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. As against this, the learned Advocates of the Respondents relied up on another decision given by the Supreme Court in The Swadeshi Cotton Mills Co. Limited Vs. The State of U.P. and Others, wherein it was observed that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order it is not necessary that the satisfaction of those conditions must be recited in the order itself unless the statute requires it.
In our opinion, the citation of the decision of the Supreme Court in Swadeshi Cotton Mills would be of no help to the Respondents as it is the case wherein a condition precedent to the passing of an order was not satisfied. The present case is not the case of the satisfaction or non-satisfaction of a condition precedent. The case of the Petitioners herein is that the Respondent No. 2 had not applied his mind at all to the facts and law of the case before passing the impugned order. If we find that the Respondent No. 2 had not applied his mind and passed the impugned order with a pre-determination, then on that short ground only the impugned order would stand vitiated and in that case even the decision in Mohinder Singh Gill''s case (supra), on which the Petitioners have put reliance, would not strictly apply. In that case the authority concerned had applied the mind but omitted to give reference to certain grounds, and this omission was sought to be made good at a subsequent stage. The case under our consideration is the case wherein the impugned order would be vitiated for total non-application of mind.
Therefore, the pertinent question which arises to be considered in this case is whether Respondent No. 2 had at all applied his mind before passing the impugned orders Annexure P-2 and Annexure P-5. We have already noted above that when he passed the order Annexure P-2, they did so without obtaining any material to decide whether the proposed site was suitable under the rules or not. That was clearly a case of non application of mind. Subsequently, after receiving the report of the S.D.M. he did not make any nothings nor did he draw any proceedings to show whether he accepted or rejected the report of the S.D.M., and if so, on what grounds. He has, of course, given reasons why the report of the S.D.M. was rejected by him in an affidavit before this Court. But that is obviously an attempt to explain away the past position wherein he had placed himself. We particularly see no reason why there should not be any nothings or any material in the record of the case if he had actually applied his mind to the report of the S.D.M. Considering the averments made by him in the affidavit filed in this Court we are left with an impression that the grounds which he has revealed in paragraph 8 of that affidavit to show why he had rejected the report of the S.D.M. are the result of an afterthought. For instance, one of the grounds which he stated therein for rejecting S.D.M''s. report is that "the proposed building was a detached one and, therefore, there was a requirement of only 20 feet open space around it which was being provided as per the site plan." Now, the S.D.M''.s report dated 5th August, 1977 which, if the Respondent No. 2 did take into consideration, he must have taken it into consideration on 6th August, 1977. On that date the only plan which was in the record of the case was the construction plan of the proposed cinema house there was no site plan before him on 6th August. As a matter of fact, no site plan was found by us even during the course of hearing in the record which would have induced him to believe that the proposed building was a detached building. The construction plan of the proposed cinema house which was before him did not show that it was a detached building. In fact, the building was proposed to be detached from the rest of the buildings at a later stage by demolishing certain structures. But this proposal was not before him on 6th August, 1977. On the contrary, it is evident from Annexure R-2, which is a letter addressed by the Executive Engineer to the respondnent No. 3 on 12-12-1977, that the question about the width of the distance between the proposed and the existing building was still a disputed one. It follows, therefore, that the ground No. 3 which is given in paragraph 8 of the affidavit filed by Respondent No. 2 was not the ground available to the Respondent No. 2 at the relevant time and has been stated in the affidavit keeping in view the subsequent events and with an intention to justify the previous non-application of mind.
We do not propose to go into the merits or demerits either of the report given by the S.D.M. or of the grounds on which the Respondent No. 2 claims to have rejected the said report, because the purpose of the present discussion is a limited one, namely, to consider whether before taking the final decision in the matter in form of Annexure P-5 the Respondent No. 2 had applied his mind to the facts and law of the case.
If we proceed further, we find that on 9th August, 1977 the Respondent No. 2 had personally gone to the spot along with two other persons. The case of the Respondent No. 2 is that he had gone there to take the spot inspection of the place with a view to consider whether the report of the S.D.M. was acceptable or not. Apart from what the Respondent No. 2 prefers to say after this writ petition was filed, we have not found anything in the office record of the Respondent No. 2 to show for what purpose he had gone to the local spot along with two other persons. It is of course true that the Petitioner No. 1 Mr. Vij happened to notice the persons including the Respondent No. 2 at the spot on 9th August, 1977 and, therefore, initiated some debate on the question of desirability of constructing a cinema house at that place. Reference to this debate is made in the representation addressed to the Ghief Minister found at Annexure P-7. It was contended that this debate shows that the Respondent No. 2 District Magistrate had applied his mind to the facts and law of the case. We fail to understand what type of application of mind it would be when a person has to give some answers when he is surprised by one of the objectors at the spot who wanted to raise objections to the construction. Statutory authorities functioning under a statute who are expected to decide certain controversial questions justly and fairly, are not found to have been considering such serious questions in public places when they are taken by surprise. Under the circumstances, the debate which is referred to in the representation addressed to the Chief Minister cannot be taken as the consideration of the disputed questions or the application of the mind to them.
However, the important point to be noted is that the office record of the case does not reveal any notes of inspection or any other material going to show what factual data was collected by the Respondent No. 2 during the course of his inspection. In absence of such materials it is not possible to say whether the Respondent No. 2 applied his mind to the report of the S.D.M. and rejected the report on certain data which had been collected by him during the course of the inspection.
Before the Respondent No. 2 passed the final order found at Annexure P-5 on 3rd October, 1977, even the municipality had passed resolution objecting to the construction of the cinema house on 25th August, 1977 as found at Annexure P-4. The municipality was undoubtedly a body representative of the local people, and when such a body is found to have unanimously passed a resolution on the subject it was the duty of the Respondent No. 2 to consider it on merits. But we find that there is nothing in the office record to show that before passing the impugned order Annexure P-5 on 3-10-1977 the Respondent No. 2 had given any thought to this resolution of the municipality. In his affidavit he has of course stated that he did not take this municipal resolution into consideration as in his opinion the same was without jurisdiction. Apart from the validity of such a proposition we are of the opinion that a consideration on merits ought to have been given to the municipal resolution before the final order Annexure P-5 by Respondent No. 2 granting permission on 3rd October, 1977 was passed.
Thus, we find that at all the important stages of the proceedings the Respondent No. 2 has acted without applying his mind to the facts and law of the case. The above discussion reveals that he has also conducted the proceedings rather in defiance of the procedure contemplated by the rules. In our opinion, therefore, on this short ground the impugned orders Annexure P-2 and P-5 should be quashed.
In view of this we do not propose to say anything about the merits of the case. During the course of the arguments many contentions were raised on the question whether under the rules permission to construct a cinema house could have been granted in view of the locality being residential, having some educational institutions within certain limits, and possibility of nuisance being caused to the residents of the locality. We have intentionally refrained from expressing any opinion on these questions lest it should cause any prejudice to the parties in future. As a matter of fact, if it is once found that the impugned orders Annexures P-2 and P-5 were passed by the concerned authority without application of mind and in clear infringement of the rules of procedure it would not be necessary to go further in the matter and to consider whether permission to build a cinema house could be given in the locality in question.
The learned Advocate of Respondent No. 3 contended that since the Respondent No. 3 has spent thousands of rupees in the construction of the building, this Court should not interfere for the fault of Respondent No. 2. We find ourselves unable to accede to his contention because the Respondent No. 3 was knowing from the very beginning that the residents of the locality were objecting to the proposed construction. Even after the filing of this writ petition it was evident from the very beginning of the proceedings that this Court had stayed the grant of license for exhibition. Therefore, if in spite of all these facts the Respondent No. 3 has preferred to proceed with the construction he must be presumed to have done so after knowing fully the consequences of his act.
Before concluding we would like to dispose of three preliminary contentions raised on behalf of the Respondents. One was about the locus standi of the Petitioners, the other was about the alternative remedy available to them, and the third was about the alleged concealment of material facts in the writ petition.
We find that none of these three preliminary objections contain any merits. We, however, propose to dispose them of shortly.
So far as the question of locus standi is concerned, it is difficult to understand why the Petitioners who are the residents of the locality, and who are the persons who would be most vitally affected by the nuisance, if any, caused by the existence of the cinema house cannot be considered as the persons aggrieved. So far as the writ jurisdiction of the High Court is concerned, it is well established that it can be invoked even by the persons who are not statutorily authorised to make a grievance but who are found to be the persons aggrieved. The Supreme Court has discussed at length, in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, the question of locus standi as also the question as to who should be considered an aggrieved person. In paragraph 36 of the reported judgment the Supreme Court has pointed out three categories of persons to be considered in context of locus standi. The first category is the category of persons aggrieved, the second is the category of strangers, and the third is the category of busy bodies. The Supreme Court has observed that the persons belonging to the last category are meddlesome interlopers and have no locus standi. But if a person can show that his interest is in some manner involved in the impugned action, he can maintain proceedings under Article 226 provided other requirements of the at Article are satisfied. Rule 21 of the rules shows that the rule making authority has specifically provided that exhibition of cinematograph should not be allowed at a place which is exclusively residential. The reason behind this rule is to safeguard the interest of the residents of the locality. Therefore, if the residents of the locality come before the Court under Article 226 making a complaint that some sort of nuisance would be caused to them it cannot be said that they have got no locus standi.
On the question of alternative remedy it was pointed out that under Sub-section (2) of Section 12 of the Act the licensing authority has to act subject to the control of the State Government. It was contended that this expression "subject to the Control of the State Government" has been explained by the Supreme ''Court in The State of Punjab and Another Vs. Hari Krishan Sharma, as investing the power in the State Government to set aside an erroneous order as if the State Government was sitting in revision.
We find that the power of control which is stipulated by Sub-section (2) of Section 12 of the Act cannot be construed as conferring a right on an aggrieved person to prefer revision before the State. Therefore, provisions contained in Sub-section (2) of Section 12 would be of no help to the Respondents in showing that there is an alternative remedy.
Our attention was drawn thereafter to Rule 8 of the Rules which enables any person aggrieved by the decision of the licensing authority u/s 12 to appeal to the State Government within thirty days. The contention of the Respondent No. 3 was that even if Section 12 is construed as not providing any efficacious alternative remedy, the Rule 8 of the rules does provide an alternative remedy by way of an appeal and, therefore, the present writ petition should be dismissed on that ground.
The contention of the learned Advocate of the Petitioners was that Rule 8 has an application only in case wherein the grant of a license is refused because Section 12 specifically stipulates an appeal in such cases. In his opinion, therefore, Rule 8 should be construed as providing limitation to an appeal which is contemplated by Section 12 in cases where the grant of license is refused.
We do not propose to interpret Rule 8 in any manner in view of the fact that any such discussion would be merely academic as it is revealed from the facts of the case that the Petitioner No. 1 had moved the P.W.D. Minister as well as the Chief Minister against the permission granted by the Respondent No. 2 as per Annexure P-2, and against the further action which was proposed to be taken in this regard. The Government have not taken any action on these applications and have not stated even during the course of this writ petition that both these applications of the Petitioner No. 1 were under consideration. Under the circumstances, presuming that the Petitioners had a right of appeal under Rule 8 providing an efficacious alternative remedy, the said remedy is found to have been exhausted.
The last preliminary contention was that the petition deserves to be dismissed on the ground of the suppression of some material facts. The facts which are said to have been suppressed are with regard to the so-called spot inspection said to have been taken by the Respondent No. 2 on 9th August, 1977 and the conversation which took place between Petitioner No. 1 and the Respondent No. 2 during the course of that inspection. We see no substance in this contention because the representation addressed to the Chief Minister found at Annexure P-7 was already filed along with the writ petition and, therefore, it cannot be said that the Petitioners have suppressed any material facts.
The learned Advocate of Respondent No. 3 submitted that if the Court allows this writ petition, then the proper order would be to quash the impugned orders Annexures P-2 and P-5 and to send the matter back to the licensing authority for proceeding with it according to law. In view of our findings that from the very initial stage the proceedings have been initiated and continued in a manner which was in infringement of the specific requirements of law and without supplying the necessary particulars contemplated by Rule 5 along with the application for grant of license, we do not think it desirable to resort to such a course.
The oral prayer of Respondent No. 3 for grant of certificate of fitness for carrying the matter to Supreme Court under Article 133 is rejected as the case does not involve any substantial question of law of general importance which in the opinion of this Court requires to be decided by the Supreme Court.
The result, therefore, is that this writ petition should be allowed, the impugned orders found at Annexures P-2 and P-5 are quashed and the Respondents are restrained from implementing and acting upon these orders. The rule is accordingly made absolute with costs. Costs to be assessed at Rs. 300/-.