S. Subba Rao vs Puli Veeraraghavaiah and others

Alladi Kuppuswami, J.—The petitioner in W.P. No. 477 of 1976 claims to be the proprietor of a permanent cinema theatre, Sri Seetharama Talkies in Kuchipudi, Krishna District. (In this judgment the array of parties wall be referred to as in this writ petition). One, Ranga Rao who is the petitioner in W.P. No. 6332 of 1975 applied to the District Collector, Krishna on 6-10-1973 for permission to construct a temporary cinema theatre at Pedapudi Village. On 15-10-1973, the first respondent also applied for permission to construct a temporary theatre at another site in the same village. The application of Rangarao was rejected and the application of the first respondent was ordered by two separate orders made on the 30th March, 1974. Rangarao preferred an appeal to the Government against the order rejecting his application. As no appeal is provided under the Act against an order allowing the application of a competitor he filed W.P. No. 2016 of 1974 in this court challenging the order granting permission to the first respondent. This was dismissed in limine on the 12th April, 1974. He preferred W. A. 353/74 against this order. It was dismissed on the 19th April, 1974. This court observed that it was for the Government to decide whether the application for construction of a temporary theatre should be granted or not. Ranga Rao then filed an application to the Government and applied for stay of operation of the order granting permission to the petitioner. This application was dismissed on 24th April, 1974. As against this order Ranga Rao filed W.P. 2514/74 and applied for stay before this Court. Interim stay was granted on 1-5-74. The first respondent thereupon moved to have the interim stay vacated. This court heard the main writ petition itself on 20-6-1974. It was observed that if Ranga Rao were to succeed in the appeal the permission granted to the first respondent would fall to the ground and if the appeal was dismissed no prejudice would be caused to him and the first respondent would be entitled to proceed with the construction. This court therefore dismissed the writ petition but directed the Government to dispose of the appeal preferred against the order of rejection of the application for permission to construct a temporary theatre, as early as possible. It is the case of the first respondent that in view of the dismissal of the writ petition he proceeded with the construction of the permanent theatre. On 7-10-1974 he applied for a licence to run the talkies in form B as required by the Andhra Pradesh Cinema Regulation Act (in this judgment referred to as the Act). At this stage, the petitioner who as has already been stated, is the owner of a permanent cinema at Kuchipudi village, filed W.P. 5828 of 1974 on 16-10-1974 praying for the issue of a writ of certiorari quashing the order dated 30-3-1974 granting permission to the first respondent to construct a temporary cinema. His main contention was that the distance between the proposed site for the temporary cinema by the first respondent and the permanent cinema of the petitioner was only 450 meters and as under rule 7(2)(c) of the Rules made under the Andhra Pradesh Cinema (Regulation) Act (in this judgment referred to as the rules) the distance should not be less than 1000 metres, the permission granted was contrary to the rules. This court by an order dated 3-2-1975 allowed the writ petition and the order dated 30-3-1974 granting permission to the first respondent was quashed. Meanwhile on 18-1-1975 the Collector appears to have realised that as the distance was less than 1000 metres permission ought not to have been granted to the first respondent in view of rule 7(2)(c). As this was not noticed at the time of granting permission he addressed the Government that u/s 12 of the Act exemption may be granted from the operation of Rule 7(2)(e) in favour of the first respondent. Accepting this suggestion the Government issued G.O. Rt. 15-4 Home (Genl. A) dt. 27-1-75 granting exemption from the operation of rule 7(2)(c) relating to distance in favour of the first respondent for a period of one year from the date of the order. On 1st February, 1975 a licence was also granted to the first respondent to run the cinema. W.P. No. 5828/74 filed by the petitioner for quashing the order granting permission was heard by this court on 3-2-1975 and as already noticed the order was quashed. It was however not brought to the notice of this court that exemption had been granted on 27-1-1975. Writ Appeal 98/75 filed by the first respondent was dismissed in limine on 7-2-1975. The first respondent exhibited films between 1-2-1975 when the licence was granted, and 3-2-1975. On the 4th February, 1975 however the Tahsildar addressed a communication to the first respondent not to exhibit any films in the theatre.

Even though the Government had already passed an order granting exemption from rule 7(2)(c) on 27-1-1975, apparently because it felt that such an order was not valid as it was made without giving'' notice to the petitioner who was the owner of the permanent cinema nearby, the Government issued a show cause notice on 30-7-1975 to the petitioner as to why the first respondent should not be granted exemption. The petitioner thereupon requested the Government to disclose the grounds on which such exemption was intended to be granted and a copy of the application, if any, made by the first respondent to grant exemption. As he did not receive any reply he filed W.P. No. 5107/75 praying for the issue of a writ of mandamus restraining the Government from proceeding further in pursuance of the show cause notice. It was contended firstly that the show cause notice could not be issued suo motu by the Government without any application on the part of the first respondent and secondly that the grounds should be disclosed to the petitioner. By its order dated 10-11-1975 (which is reported in S. Subba Rao Vs. Puli Veeraghavaiah and Others, ) this court held that the Government was entitled to exercise the power u/s 12 suo motu, but as it was of the view that the notice was defective as it did not give any particulars on the basis of which exemption was proposed to be granted and the petitioner could not make an effective representation to that notice, it quashed the notice. It however observed that the order does not prevent the Government from issuing a fresh notice giving particulars so that the petitioner may submit his explanation. Accordingly a fresh show cause notice was issued on 8-12-1975. It was stated therein as follows:-

At the time of grant of permission for the construction of the temporary cinema under reference it was not noticed that the provisions of Rule 7(2)(c) of the Andhra Pradesh Cinema (Regulation) Rules 1970 were not satisfied. Basing on the permission granted by the licensing authority the applicant invested huge amount, completed the construction and installed the necessary equipment and furniture in the theatre and kept everything ready for exhibition of shows. The defect was detected at the time of grant of licence in form B for screening shows. If exemption is not granted the owner of the temporary cinema will be put to unnecessary financial loss. The distance in this case fell short by 550 metres.

Government consider that it is just and proper to permit the temporary cinema owner to exhibit shows in the theatre by granting necessary exemption from the operation of distance rule viz. 7(2)(c) of the Andhra Pradesh Cinema (Regulation) Rules, 1970 as it will provide entertainment facilities to the public with immediate effect.

The petitioner submitted his explanation on 6-1-1976. He stated that even at the time of granting permission the fact that the distance was less than 1000 metres was on record. Proceedings for exemption were only made with a view to set right the illegal action of the District Revenue Officer, Krishna, in granting permission contrary to the rules. This amounted to a deliberate fraud on power vested with the Government and the impugned notice is an empty formality. He also pointed out that there are better and suitable sites in the village far away from his theatre. He added that allowing the temporary theatre was a big nuisance for his business in which he invested lakhs of rupees. In those circumstances, the grant of exemption from the operation of distance rule was not just and proper. After considering his explanation the Government passed an order in G.O. Rt. 96 dated 4-2-1976. In the order it was stated that the Government considered that it was a fit case to grant exemption in view of the following facts:

(a) that the proprietor of temporary talkies already put up the cinemas investing considerable amount and screened films, (b) that his cinema will provide entertainment facilities to the public and (c) that the objectioner-petitioner Sri Subbarao has not established as to how the grant of exemption will not be in public interest.

The Government therefore granted exemption from the operation of rule 7(2)(c) to the first respondent.

The petitioner has filed W.P. 477/76 praying for the issue of a writ of certiorari to quash the order dt 4-2-1976.

Rangarao who had applied for construction of a temporary theatre in a nearby site, meanwhile prosecuted his appeal to the Government. On 6-10-1975 his appeal was allowed and the Government directed the authorities to grant him permission. He filed W.P. 6332/75 even on 30-12-1975 coming to know of the proceedings initiated for the grant of exemption to the first respondent and prayed for the issue of a writ of mandamus restraining the Government from granting exemption. Subsequently, as the exemption was granted on 4-2-1976, the petition was amended praying for the issue of a writ of certiorari quashing the order of exemption.

As the question for consideration in both these writ petitions is the same, namely, whether the order of exemption granted in favour of the first respondent is valid, both the writ petitions were posted for hearing together before Gangadhara Rao J. The petitioner contended inter alia that the Government had no power suo motu to grant exemption. As the learned Judge had already expressed the view in W. P. 5107/75 that the Government had such a power and the petitioner sought to question the correctness of that view the learned Judge directed the writ petitions to be posted before a Bench.

A preliminary objection was raised on behalf of the respondents on the strength of the recent decision of the Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, that the petitioner is not a person ''aggrieved'' by the impugned order and has no locus standi to maintain this petition. We are not inclined to uphold this preliminary objection. Rule 7(2) provides for certain restrictions in regard to the distance between two cinema buildings. While there is no restriction as regards distance between two permanent cinemas, it is provided that there should be a minimum distance between one temporary cinema and another temporary cinema. The distance provided in these rules has been altered from time to time but on the relevant date rule 7(2)(c) provided that in the case of villages with a population of more than 20,000 and less than 50,000 (in which category the present case falls) the distance should be one kilometre between a permanent cinema and a temporary cinema. The rules do not disclose any reason for limiting the distance between the two temporary cinemas or between a permanent cinema and a temporary cinema. But it appears that one of the main reasons is the disturbance that is likely to be caused to the permanent cinema by the sound emanating from a temporary cinema. This has been recognised to be one of the reasons in the judgment of this court in W. A. 880/75 dated 22-12-1975, W.P. 4523/73 dated 11-10-1973 and W.P. No. 1715/74 dated 23-4-1974 (Andh Pra). It appears to us that this may not be the only reason for the rule. Another reason may be that the owners of permanent cinemas who would have invested huge sums of money should not be faced with a competition from temporary cinemas in their vicinity where the stakes are comparatively low. A third reason may be to avoid congestion of traffic which may in turn create problems of law and order But whatever may be the reason, it is clear from the rules that it is intended to protect the interests of permanent cinema owners to some extent. If this rule is not complied with there can be no doubt that the permanent cinema owners will be affected. It is for this reason that this court has repeatedly held that though Section 12 of the Act which empowers the Government to grant exemption to any cinematograph exhibitions or class of exhibitions from any of the provisions of the Act and/or of any rules made thereafter, does not expressly provide for any notice being given to any person before such exemption is granted, rules of natural justice require that the permanent cinema owner should be given notice when exemption is being granted to the temporary cinema owner from the provisions of rule 7(2)(c). It was held by a Bench of this Court in W.A. No. 37/71 (Andh Pra) that as the grant of exemption is likely to affect the rights of other persons the Govt. have to take into account the representations of the persons likely to be affected in order to come to a conclusion whether reasonable grounds exist for the grant of exemption and that is implicit in the provision. In that case as notice was not given to the permanent cinema owner, the order granting exemption was quashed. In this case the Government gave notice to the petitioner to show cause against the grant of exemption obviously because he would be affected by the order granting exemption. It appears to us to be extremely strange that the petitioner who is treated as a person affected or interested for the purpose of issuing a show cause notice ceases to be so if his representations are either not considered or representations are considered and negatived and exemption order is made. If he is denied the right to question the order of exemption the very purpose of giving him an opportunity to make a representation will be defeated and the show cause notice will practically amount to a farce. We are therefore of the view that the writ petition is maintainable at the instance of the petitioner. The decision of the Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, is not applicable to the facts of the case. There, ''no objection'' certificate was granted for the location of a cinema theatre to respondents 2 and 3 under Rule 6 of the Bombay Cinema Rules. Under the rules, any person was entitled to lodge objections. The petitioner was the proprietor of cinema house situate in a different locality. He did not prefer any objection and no explanation was given as to why he did not prefer objection. Thereafter he filed a writ petition challenging the ''no objection'' certificate granted to the respondent as illegal on the ground that it was issued without due regard to the principles indicated in the Bombay Cinema Regulation Act, 1953. The Supreme Court observed that the Act and the rules recognise a special interest of persons residing or concerned with any institution such as a school, temple, mosque etc. located within a distance of 200 yards of the site on which a cinema house is proposed to be constructed. The petitioner did not fall within the category of such persons having a special interest in the locality. It was not his case that his cinema house was situated anywhere near the site in question, or that he had any interest in his personal, fiduciary or representative capacity in any school, temple, etc. situated in the vicinity of the said site. He could not therefore be said to be a person ''aggrieved'' on account of his having a particular and substantial interest of his own in the subject matter of the litigation, beyond the general interest of the public. Moreover, he could not be said to have been a person aggrieved, as despite adequate opportunity, he never lodged any objection. The Supreme Court also found that any of his rights or interest recognised by the general law had not been infringed as a result of the grant of no objection certificate. The case of the petitioner was that he owned a cinema theatre in the town which had a small population of 15,000 persons and there was no scope for more than one cinema theatre in the town and had therefore a commercial interest in seeing to it that other persons are not granted a no objection certificate in violation of law. Thus, in substance the petitioner''s stand was that the setting up of a rival cinema house would adversely affect his monopolistic commercial interest causing pecuniary harm and loss of business from competition. It was held in those circumstances that it cannot be said that he was denied or deprived of any legal right and he was subjected to any legal wrong. Nor did he suffer any legal grievance and he was therefore not a person aggrieved and had no locus standi to challenge the grant of the no objection certificate. In this case, however, the position is entirely different. The rules themselves recognise that there should be a minimum distance between a temporary cinema and a permanent cinema and as has already been observed that rule is for the protection of permanent cinema owners. If that rule is violated the permanent cinema owner is directly affected. This Court has also held that for this reason he is entitled to notice before an exemption order is made. In this case such a notice was given and he made his representations. Thus, both in law and in fact he was treated as a person affected by the order and when an adverse order was made we are of the view that the petitioner is a person aggrieved by that order. We do not consider the decision of the Supreme Court as an authority for the proposition that in every case where a licence or no objection certificate is granted to one cinema owner, another cinema owner has no locus standi at all to question the legality of that order. We therefore overrule the preliminary objection and proceed to consider the merits of the case.

Though it was sought to be contended before Gangadhara Rao J. that the Government has no jurisdiction to grant exemption suo motu, this contention was not pressed before us (rightly in our opinion) by Sri Shivsankar, learned counsel for the petitioner. Section 12 is in the following terms:

Where in the opinion of the Government reasonable grounds exist for doing so. the Government may by order in writing exempt, subject to such conditions and restrictions as it may impose, any cinematograph exhibition or class of cinematograph exhibitions from any of the provisions of this Act or of any rides made thereunder.

It does not say that the exemption should be granted only on an application by a party. On the other hand, the circumstance that the exemption may be not only in respect of any Cinematograph exhibition, but also to a class of exhibitions, would clearly indicate that it is open to the Government to grant exemption suo motu. We do not find any justification for reading into the section a limitation which is not in the section, namely, that exemption can be granted only when an application is made by a party.

The main contention urged on behalf of the petitioner by Sri Shivsankar is that the exemption can be granted only if in the opinion of the Government there was reasonable grounds for doing so. In this case two grounds given in the order are: (1) that the first respondent already put up cinema investing considerable amounts and screened films; and (2) that cinema will provide entertainment facilities to the public. The third ground which is mentioned, namely, that the petitioner had not established as to why She grant of exemption will not be in public interest is no ground at all. The two grounds which are mentioned in the order are not reasonable grounds within the meaning of Section 12 of the Act. The grounds must be such as would serve the purposes of the Act and these two grounds not only do not (sic) the purposes of the Act but defeat the very object of the Act.

We agree with the learned counsel for the petitioner that the Government was not justified in making a point of the fact that the petitioner had not established as to why the grant of exemption would not be in public interest. When an exemption is granted from the provisions of the Act, it is for the Government to be satisfied that there are reasonable grounds for granting exemption. There is no obligation on the part of the petitioner to prove that the grant of exemption will not be in public interest. Therefore, the question for consideration is whether the two grounds mentioned as grounds (a) and (b) in the order can be said to be reasonable grounds within the meaning of Section 12. In this connection it is to be noticed that u/s 12 it is left to the subjective satisfaction of the Govt. whether reasonable grounds exist for granting the exemption. As pointed out in several decisions that this subjective satisfaction ought not to be arrived at arbitrarily or capriciously. If the Government does not act in good faith, or if they act on extraneous considerations which ought not to influence them, or if they misdirect themselves in fact or in law, this court is entitled to interfere with the decision; but where the Government takes a view which could reasonably be entertained, then its decision is not to be set aside simply because in the opinion of this court the grounds are not reasonable. Dealing with Section 12 a Bench of this Court observed in W.A. 880/75 dated 22-12-1975 (Andh Pra) that though it is left to the subjective satisfaction of the Government, the satisfaction must be based on objective consideration of relevant facts. If the grounds do not exist or are not reasonable in the sense of relation to the object and the scheme of the Act, the court can interfere under Article 226 of the Constitution. But the court cannot interfere on the ground that the grounds are not reasonable in its opinion; or the grounds though reasonable are not adequate and sufficient in its opinion. In the light of these principles it has to be seen whether the opinion of the Government that there were reasonable grounds for granting exemption is liable to be attacked.

Sri Shivasankar submitted firstly, that the fact that the first respondent had invested large amounts and screened films cannot be considered to be a relevant ground at all. The second ground that the temporary theatre would provide entertainment facilities has absolutely no connection with the grant of exemption relating to the distance rule, as such entertainment facilities would be available even if the exemption was not granted and a temporary cinema was constructed at a more distant place. We consider that it is not a proper approach to dissect each single ground and then consider whether that ground by itself would be a valid or relevant ground. The proper approach to the problem is to consider the circumstances as a whole and ascertain whether the grounds mentioned by the Government can be said to be reasonable grounds for granting the exemption or not. The question whether the grounds given are reasonable depends upon the circumstances of each case and no hard and fast rule can be laid as to whether a particular ground is reasonable or not.

In this case, let us consider the situation when the Government passed the impugned order. The first respondent had applied for the construction of a temporary cinema which was at a distance of only 130 metres from the petitioner''s permanent cinema. In view of rule 7(2)(c) that application had to be rejected, but unfortunately the Collector (District Revenue Officer) granted the application. On the faith of that application, the first respondent proceeded with the construction and it appears from the records that he constructed the cinema theatre and furnished it at a cost of about 1 1/2 lakhs of rupees. He had even started exhibition of films and did so for two or three days before he was served with an order not to do so by the Tahsildar. Thus, the first defendant on the faith of the order of the Collector invested a large sum of money on the temporary cinema. The Government also felt, having regard to the population of the area that there was a need for a temporary cinema in addition to the permanent cinema, The Government had the option either to accept the situation that permission was granted contrary to the rules as was held by this court in the writ petition filed by the petitioner and to cancel the order or to grant exemption to the petitioner from the operation of the rule and grant him permission. By granting exemption, the Government would not only be doing justice to the petitioner who had spent a large sum of money on the faith of the Collector''s order, but would also be providing entertainment facilities to the public immediately. If the exemption were not granted it would lake much more time for another temporary theatre to be constructed and there would be delay in providing entertainment facilities to the public. By granting exemption two purposes would be served at the same time; justice would be done to the first respondent who had incurred huge expenditure on the faith of the Government order and at the same time entertainment facilities would be made available immediately to the public. We do not see how these two reasons which are mentioned as grounds (a) and (b) in the impugned order cannot be said to be reasonable within the meaning of the Act.

Reliance was placed on P.J. Irani Vs. The State of Madras, where dealing with Section 13 of the Madras Buildings Lease and Rent Control Act, 1949, the Supreme Court held that though the power of exemption is granted in general terms it could be used only to further the policy of the Act which was to prevent unreasonable eviction of the tenants. In that case it was held that the grant of exemption was not valid because it defeated the very policy of the Act to protect the right of tenants from continuing in possession without being evicted. In this case the policy of the Act is to control and regulate the exhibition of films. We do not see bow the policy of the Act is defeated by granting the exemption from the distance rule. On the other hand, by providing additional entertainment facilities the policy is to a certain extent implemented. The decision of the Supreme Court referred to above recognises that the power of exemption can be used to remove hardship in individual cases. At page 1737 it is observed:

Though the enactment thus conferred these rights on tenants it was possible that the statutory protection could either have caused great hardship to a landlord or was the subject of abuse by the tenant himself. It was not possible for the statute itself to contemplate every such contingency and make specific provision therefor in the enactment. It was for this reason that a power of exemption in general terms was conferred on the State Government........

It is clear from this passage that the power could be used in case where great hardship to a landlord was caused or the statutory protection was abused by the tenant. The learned counsel for the petitioner relied upon the decision in W.P. No. 4523/73 (Andh Pra) where it was observed that the fact that the town in question had a population of about 42,000 or that the applicant had also to make out his livelihood cannot be considered to be grounds which are germane or relevant for the purpose of granting exemption. It was also observed that it was not shown in the order or in the counter-affidavit in that case that no other suitable place was available in the town for the location of the proposed cinema or that locating the temporary cinema within the prohibited distance would not affect the interests of the petitioner or cause annoyance to the public, We do not think that decision has application to the facts of the case. This is not a case where merely for the purpose of enabling a person to take out his livelihood the Government granted exemption ignoring the interests of the permanent cinema owners. The Government was confronted with the peculiar circumstances of the case, namely, that on the faith of its order the first respondent had incurred huge sums of money. It was contended that exemption can be granted only in public interest and the interest of a single individual cannot be considered as public interest As the expression used in Section 12 is "reasonable grounds" we do not see any justification for importing the notion of ''public interest". The only prerequisite for giving exemption is that in the opinion of the Government, reasonable grounds should exist.

Even assuming that exemption should be granted only in public interest, as has been pointed out in a decision of the Court of Appeal in Cartwright v. Post Office, ( 1969 ) 2 All ER 646, in certain circumstances public interest is also served by serving a private interest. In that case a telephone service connection was given for the operation of two farms and the relevant provision of the Telegraph Act provided that consent to place a line could be refused if it is against public interest. It was contended that as the telephone connection was granted only to two private farms, no public interest was involved. It was held that it was in the public interest that the two farms should have telephone connection. The county Judge observed that it is in the public interest that many private difficulties be either prevented or speedily remedied. He gave as an illustration that if a child is ill it is the public interest that a doctor be called as quickly as possible. These observations were quoted with approval by the High Court. We are also of the view that in this particular case that merely because a private interest is also served by the grant of exemption, it cannot be said that it ceases to be in the interest of the public when simultaneously it also produces additional entertainment facilities.

The decision of this court in W.P. No. 1715/74 dated 23-4-1974 (Andh Pra) was also relied upon in support of the contention that the existence of the provisions for two more temporary cinemas or the circumstance that the location of temporary cinema would increase the entertainment facilities to the public are not germane to the grant of exemption. We are not inclined wholly to agree with this view of the learned Judge. It is possible to envisage cases where it is necessary to have additional entertainment facilities by way of temporary cinema and there is no proper site available except the one within the prohibited distance, in which case the Government may well grant exemption from the distance rule. In appropriate cases therefore, the ground of providing entertainment facilities would be a relevant ground which the Government is entitled to take into consideration.

It is next argued by Sri Shivasankar that in this case the Government did not at all consider the question whether any other alternative site was available for granting permission to erect a temporary cinema. When the show cause notice was issued the petitioner did not in his explanation point out to any particular site which was available. He merely stated that there are better and suitable sites in the village far away from his theatre. Further, there was no point in considering this question as one of the grounds which admittedly weighed with the Government was that the first respondent invested huge amounts in erecting the cinema on the site in question on the faith of the Collector''s order and the Government felt that it was unjust to make him incur expenditure a second time which he would be compelled to do if he was asked to construct on another site. In the circumstances of the case therefore, it was meaningless for the Government to consider whether another site was available or not Here again as we have pointed out it is not proper to lay down any hard and fast rule as to what circumstances the Government should take into consideration in granting exemption. No doubt, in ordinary cases, the Government should certainly consider whether other sites are available, but in the special circumstances of this case there was no purpose served in considering that question.

We were referred to decisions of the Supreme Court which have held in certain circumstances that if several grounds are given for passing a particular order and if some of the grounds are invalid, the entire order is vitiated and to other decisions of the Supreme Court which have held in other circumstances that the entire order is not vitiated but it is for the court to consider whether the authority would have passed the order in question on the valid ground alone and if it is so satisfied the order can be upheld on that ground. It is unnecessary for us to consider those decisions as we have observed that in this case we have to consider both the grounds cumulatively and find out whether reasonable grounds exist for granting exemption. We have also expressed our view that each one of these grounds is a reasonable ground in the circumstances of the case.

The learned counsel for the petitioner stated that the first respondent had fraudulently represented that the distance between the two cinemas was one mile and having obtained an order on the basis of that representation he ought not be permitted to take advantage of his own fraud and in those circumstances, the Govt. was not justified in taking into consideration the circumstances that he had spent 1 1/2 lakhs of rupees on the construction of the temporary cinema. In his application dated 15-10-1973 under Col. 10 regarding distance of the proposed site to the nearest permanent cinema, the petitioner stated ''Kuchipudi....one mile''. The learned counsel for the first respondent stated that all that the first respondent meant to state was that the village of Kuchipudi where the permanent cinema was situated at a distance of one mile from the proposed site and not that the permanent cinema itself was at a distance of one mile. This explanation appears to be acceptable. In any event the licensing authority (District Revenue Officer) was not misled by this representation. He called for a report from the Tahsildar in which one of the points which he was asked to report was about the distance between the nearest permanent cinema. It was reported that the petitioner''s cinema was about 450 metres. Therefore the Collector did not act upon the representation, if any, made by the first respondent even if the representation is construed as stating that the permanent cinema was at a distance of one mile from the site in question. The learned counsel for the petitioner argued that it is not correct to say that permission was granted inadvertently without noting the circumstance that the site was at a prohibited distance from the petitioner''s cinema. The fact that it was only at a distance of 450 metres was known to the authority and still in collusion with the respondent, the permission was granted. We have sent for the file relating to the grant of permission. As has already been noticed Rangarao had also made an application for permission to construct a temporary cinema . Both the applications were placed before the Collector together with a note relating to the comparative claims. Unfortunately, in the note it was mentioned that the distance between two temporary cinemas was 450 metres whereas it should be 800 metres. As Rangarao failed to furnish the lease deed from the owner of the site, the District Revenue Officer felt that his application should be rejected. He therefore directed that permission should be granted to the first respondent. As the objection raised by the office in the note was that the distance between two temporary cinemas should not be less than 800 metres, it was not necessary to consider that objection. As the application of Ranga Rao was being rejected there was no question of considering the distance between the two temporary cinemas. The distance between the permanent cinema and the temporary cinema being less than one kilometre was not brought to the notice of the authority granting permission at all in the note put up before him. It was in those circumstances that the permission was granted. We are satisfied therefore that this is not a case where the authority fully cognizant of the fact that the distance between the temporary and permanent cinema was less than one mile granted permission to construct a temporary cinema. It was a case of inadvertently not noticing that the site was within the prohibited distance from the permanent cinema.

We are also satisfied in this case that no case is made out for interference under Article 226of the Constitution, as it has been repeatedly held, (vide A.M. Allison Vs. B.L. Sen, that this power has to be exercised only when there has been a failure of justice. The petitioner has not shown that he has suffered any damage by reason of the grant of permission to the first respondent. In his reply to the show cause notice he vaguely referred to the fact that allowing the temporary theatre is a big nuisance to his business in which be invested lakhs of rupees. No mention was made at all that the sound emanating from the temporary cinema would in any way affect the exhibition of films in his permanent cinema nor was it stated bow it would be a nuisance. In the context the expression ''nuisance'' referred to in paragraph 5 of his explanation would only mean that his business would be affected. This consideration cannot be legitimately taken as has been held by the Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, Further the petitioner filed the writ petition only in October, 1971 by which time the first respondent had completed the construction of his temporary cinema. The petitioner did not take any steps to question the grant of permission until that date. The facts set out in detail earlier would clearly show that the challenge to the permission granted was made in the first instance by Ranga Rao who was an applicant for permission to another site. It was only after Ranga Rao failed in his attempts when W.P. 2514/70 filed by him was ultimately dismissed on 20-6-1974, that the petitioner filed W.P. 5828/74 in October 1974. It is not without significance that Ranga Rao is the father-in-law of one V. Suhbarao who is said to have purchased the cinema from the petitioner four years back, though the licence continues to stand in the name of the petitioner. That the person who is really interested in this cinema is V. Subba Rao is also proved by the circumstance that a W.P. 5046/75 in which the permanent cinema, Suarama Talkies is the petitioner, was filed by V. Suhbarao, who claimed to represent the cinema. It appears to us that Rangarao and the petitioner are sailing together and it is only after the attempts of Rangarao failed in the writ petition that the petitioner came forward to question the giant of permission to the first respondent in the first instance and to the grant of exemption later. For these reasons also we are not prepared to exercise the extraordinary jurisdiction under Article 226 of the Constitution.

The writ petitions are dismissed with costs. Advocate''s fee Rs. 100/- in each.