Sri Karthikeya Touring Thirai Arangam vs The Commissioner and Secretary to Government, Home Department and Others

Raju, J.—These two writ petitions may be dealt with together since they involve overlapping issues.

The petitioner in these writ petitions is the proprietor of a touring cinema theatre carrying on business under the name and style of ""Sri

Karthikeya Touring Thirai Arangam"" at Surampatti Village, Erode Taluk, Periyar District. The salient facts which are relevant for the purpose of

deciding the present writ petitions alone need be mentioned and there is no need for adverting to all the elaborate details furnished in the affidavits.

The fact remains that in the year 1987 while the petitioner was running his touring cinema on a second term licence, the same was stopped on the

ground that his touring that his touring cinema lies within the prohibited distance of 1609 metres of the nearest Srinivasa permanent theatre. At that

stage, the petitioner approached the State Government seeking for exemption from the applicability of Rule 14(2) of the Tamil Nadu Cinemas

(Regulation) Rules, invoking the powers u/s 11 of the Tamil Nadu Cinemas (Regulation) Act. The Government in G.O.Ms. No. 759, Home

(Cinemas-I) Department, dated 4.4.1988 after taking into account the population details and the need for the locality, have passed orders as

hereunder:

Hence exemption under Rule 14(2) of the Tamil Nadu Cinema (Regulation) Rules, 1957 in favour of touring cinema arose. Considering the present

inadequacy of cinema theatres in the area and the loss of income to the local body and to the Government, the needs of the public could be fully

met only if exemption from Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, 1957 is granted to Sri Karthikeya Touring talkies,

Surampatti Village, Erode Taluk, Periyar District. The Government have, therefore, decided to grant exemption to Sri Karthikeya Touring Cinema

theatre, Surampatti village from Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, 1957.

In exercise of the powers conferred by Section 11 of the Tamil Nadu Cinemas (Regulation) Rules, 1955 (Tamil Nadu Act IX of 1955) the

Governor of Tamil Nadu hereby exempts Sri Karthikeya Touring Talkies, Surampatti village, Erode Taluk, Periyar District from the provisions of

Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, 1957.

It appears that after the expiry of the second term of the touring cinema, the petitioner had closed down his touring cinema for a period of three

months in terms of Rule 109 (2) of the Rules and thereafter applied for ''C form licence before the second respondent by complying with necessary

formalities in terms of Rule 109(2) read with the other relevant rules. Since there was delay in complying with the request of the petitioner, it

appears that the petitioner moved this Court in W.P. No. 7021 of 1993 and on the directions issued by this Court to pass orders on the request

for the licence within three months and to issue ''E'' form permit in the meantime, the petitioner approached the licensing authority, the second

respondent herein. The second respondent by his order dated 17.11.1993 has chosen to reject the application for licence applying the prohibition

contained in Rule 14(2) of the Rules against the petitioner. At the time, the second respondent also has chosen to place reliance upon the orders of

the first respondent in G.O.Ms. No. 3289, Home (Cinemas) Department, dated 2.11.1993 clarifying the position that the earlier exemption

granted on 4.4.1988 was not a permanent one but confined to the grant of second term licence alone with reference to which it was sought for at

that time. Aggrieved, the petitioner has filed W.P. No. 21211 of 1993 to quash the order of the second respondent refusing the grant of ''C form

licence in favour of the petitioner in respect of his touring talkies. The petitioner has also filed W.P. No. 20893 of 1993 seeking to quash the order

of the first respondent- Government in G.O.Ms. No. 3289, Home (Cinemas), dated 2.11.1993 whereunder the first respondent has chosen to

clarify the position that the exemption granted to the petitioners touring cinema in G.O.Ms. No. 759, Home (Cinemas), dated 4.4.1988 from the

provisions of Rule 14(2) of the Rules was for the particular camp alone and not as a permanent one.

Mr. V.P. Venkat, learned Counsel for the petitioner while challenging the above orders contended as hereunder.

(a) The order of the first respondent-State Government dated 2.11.1993 in G.O.Ms. No. 3289, Home (Cinemas) is violative of the principles of

natural justice in that no opportunity whatsoever was given to the petitioner before passing such an order to the detriment of the interests of the

petitioner.

(b) The exemption granted in G.O.Ms. No. 759, Home (Cinemas), dated 4.4.1988 was not subject to any condition or confined to any period or

point of time limit and that having been passed without any stipulations or conditions whatsoever, it should be considered that the said exemption

order was a permanent exemption with reference to the violation of Rule 14(2) of the touring cinema of the petitioner.

(c) On an earlier occasion when the scope of the exemption order fell for consideration before the Appellate Authority namely, Commissioner of

Land Administration, the said authority in its proceedings in Cinema Appeal No. 48 of 1992 dated 3.6.1992 construed the exemption to be not

confined to any particular point of time or period and that, therefore, the view now taken by respondents 1 and 2 in these writ petitions is contrary

to law and is liable to be set aside.

Mr. R. Gandhi, learned Senior Counsel appearing for the impleaded third respondent in W.P. No. 21211 of 1993 while adopting the reasons

assigned by the second respondent licensing Authority as also by the Government under the impugned order in the above two writ petitions

contended that the exemption granted must be considered to ensure only during the life time of the second term licence when it was sought for and

cannot be considered to be for an unlimited point of time or for all times to come irrespective of the subsequent changes or subsequent

developments and that therefore, no exception could be taken to the impugned orders of the licensing authority as also the first respondent.

The learned Government Advocate, while defending the orders of respondents 1 and 2 also highlighted the facts that when the application was

made to the Government by the petitioner which resulted in the passing Of the earlier exemption order in G.O.Ms. No. 59, Home (Cinemas),

dated 4.4.1988, the petitioner specifically adverted to the remaining period of the second term for his touring cinema for which the licence was

sought for and claimed exemption only with reference to the remaining period only and, therefore, also in addition to the reasons assigned under the

impugned orders, the exemption granted earlier should be confined to the remaining period of the second term licence only and it cannot be

considered as a permanent one for all times to come.

I have carefully considered the submissions of the learned Counsel appearing on either side. The countenance of various grounds canvassed on

behalf of the petitioner in these writ petitions would very much depend upon the scope and purport of the order of the exemption granted in

G.O.Ms. No. 759, Home (Cinemas), dated 4.4.1988 and therefore, I consider it appropriate to deal with the same in the first instance. If on the

face of the order and the relevant provisions of law under which the same came to be passed, it has to be construed as only an exemption enuring

for the period of the second term licence of the touring cinema in question, the other grievance about the so called variation or modification or

clarification behind the back of the petitioner as well as the plea placed on the alleged violation of the principles of natural justice will have no basis

or substance. Therefore, it becomes necessary to consider the nature, scope and purport of the order dated 4.4.1988.

The learned Government Advocate has made available the entire file relating to G.O.Ms. No. 759, Home (Cinemas), dated 4.4.1988. It is seen

from the said file that in the copy of the application made by the petitioner that the exemption was sought for with reference to the balance of four

years of the running of the touring cinema for the second term. Even that apart, a careful analysis of the detailed order would go to show that the

exemption was granted with reference to the peculiar facts and circumstances prevailing as on that point of time of consideration only. This is made

clear from the first paragraph as well as the penultimate paragraph of the Government order dated 4.4.1988. Even when the relevant provisions of

the Act and the Rules are considered, it could be seen that what has been asked for by the petitioner on the earlier occasion was for an exemption

in respect of his touring cinema from the rigour of operation of Rule 14(2) of the Tamil Nadu Cinemas (Regulation), Rules, 1957 hereinafter

referred to as ''the Rules'' which provide that the restrictions in respect of distance between cinemas particularly between a touring cinema in any

place and the nearest permanent cinema located in the same local area or in the adjacent village, panchayat or town shall not be within 1,609 km.

The exemption has been sought for u/s 11 of the Act under which the Government has been enabled to, by an order in writing exempt, subject to

such conditions and restrictions as they may impose any cinematograph exhibitions or class of cinematograph exhibitions or any place where a

cinematograph exhibition is given from any of the provisions of the Act or the Rules made thereunder. The exemption granted in the case on hand

under G.O.Ms. No. 759, Home (Cinemas), dated 4.4.1988 as could be seen from paragraph 7 of the said order is to exempt Sri Karthikeya

Touring Talkies, Surampatti village from the provisions of Rule 14(2) of the Rules. The exemption therefore, for purpose of Section 11 appears to

have been granted only vis-a-vis the touring talkies in question keeping in mind and consideration the cinematograph exhibition and not with

reference to any place as such. In case where the exemption is in favour of a touring cinema for purpose of cinematograph exhibition, the life of the

order of exemption would and can enure only upto the expiry of the particular term of the touring cinema with reference to which such exemption

was granted. The duration of life of the exemption order of the period of validity of exemption granted is necessarily in built and confined as well as

restricted by the limited nature or duration of the term of touring cinema itself. A construction otherwise would be not only opposed to the policy of

the Act but against public interest. If that is the scope and purport of the order of exemption dated 4.4.1988 as also its duration of life, there is

hardly any legal basis for the grievance made on the alleged violation of principles of natural justice or the clarification made or the action of the first

respondent in clarifying what was an obvious and an inescapable position. Since I have construed the scope or duration of life of the exemption

order to be confined to the second term of the cinematograph exhibition of the petitioner touring cinema, the claim that the petitioner has acquired a

right and that too a permanent right of exemption and such a right has come to be curtailed by the impugned order dated 2.11.1993 is wholly

misconceived without any basis and as such is liable to be rejected. The mere fact that the subsequent order by way of clarification came to be

passed on 2.11.1993, does not mean that any of the legally protected or vested rights of the petitioner has been interfered with or infringed by the

first respondent. Consequently the plea of violation of principles of natural justice on the ground of denial of an opportunity before passing such an

order does not merit countenance by this Court.

In the light of the conclusions of mine as above, the licensing authority was well within its rights is coming to the conclusion that the petitioner

cannot be granted the ''C'' licence merely on the basis of the exemption granted in his favour with reference to its touring on 4.4.1988 when it was

undergoing or performing the second term. Consequently, the order dated 17.11.1993 is quite in accordance with law and cannot be said to be

vitiated in any manner.

For all the reasons stated above, the writ petitions fail and shall stand dismissed. No costs.