Karnataka High Court
K.M. Abbaiah Reddy vs State Of Karnataka on 24 June, 1986
Equivalent citations: ILR1986KAR2901, 1986(2)KARLJ186
JUDGMENT Rama Jois, J.
1. These two Writ Appeals are presented against the same order of the learned Single Judge allowing the Writ Petition presented by the third respondent in W.A. No. 369 of 1985 who is respondent No. 1 in W. A. No. 2587 of 1985, setting aside the order of the State Government cancelling the No Objection Certificate ('NOC' for short) for construction of a touring cinema building on a site situated in the Koramangala extension of the City of Bangalore. W.A.No. 369 of 1985 is by persons who were objectors to the grant and W. A. No. 2587 of 1985 is by the State.
2. For the sake of convenience, we shall refer to the parties in Writ Appeal No. 369 of 1985.
3. The facts of the case, in brief, are as follow : Respondent No. 3 made an application before the District Magistrate, Bangalore, under Rule 90 of the Karnataka Cinemas (Regulation) Rules ('the Rules' for short) framed under the provisions of The Karnataka Cinemas (Regulation) Act, 1964 ('the Act' for short); for the grant of a 'No Objection Certificate' on the site in Koramangala Extension of the City of Bangalore. The appellants who are residents of the locality objected to the grant of NOC on the ground that the site was situate in the midst of a residential locality and the granting of NOC therefore would be in violation of Rule 27(1)(i)(a)(vi) of the Rules. The District Magistrate, who is the Licensing Authority, by his order dated 29-6-1981 rejected the application. Against the said order, Respondent No. 3 filed an appeal before the Divisional Commissioner under Section 10 of the Act. The appeal was dismissed by order dated 15-12-1981. Aggrieved by the said order, respondent No. 3 filed an earlier Writ Petition No. 3204 of 1982. The Writ Petition was allowed on the ground that the District Magistrate had not examined the relevant material with reference to the relevant rules. The operative portion of the order is paragraph 13. It reads :
"13. In the light of the above discussion, I hold that the impugned orders are liable to be quashed, I, therefore, quash the impugned orders and direct the District Magistrate, Bangalore District, Bangalore - Respondent 2 to restore the application made by the petitioner to its original file and dispose of the same in accordance with law and the observations made in this order after notifying all the parties and other objectors that have filed their objections before the stipulated time with all such expendition as is possible in the circumstances of the case and in any event within three months from the date of receipt of the order of this Court."
After the above order was made, the Deputy Commissioner reconsidered the application of Respondent No. 3 and granted the NOC by his order dated 21-7-1984 (Annexure-C). Aggrieved by the said order, the appellants presented a revision petition before the State Government under Section 18 of the Act. The revision petition was allowed by the State Government having come to the conclusion that as there were residential houses in the immediate vicinity of the site on all the three directions within the prohibited distance of 50 metres, as revealed at the time of spot inspection, the granting of NOC was in contravention of Rule 27(1)(i)(a)(vi) of the Rules. Aggrieved by the said order, Respondent No. 3 presented the Writ Petition. The Writ Petition was allowed by the order dated 8-2-1985, ILR 1985 KAR 2631. The operative portion of the order reads:
"28. In the light of my above discussions, I hold that the impugned order is liable to be quashed. I therefore quash the impugned order and restore the order of the District Magistrate. But, I direct the District Magistrate to impose a further condition in the NOC already issued to the petitioner that he shall construct a sound proof building as undertaken by him in his memo dated 20-12-1984 filed before this Court for which purpose an authenticated copy of the same shall be forwarded by the Registrar of this Court to the District Magistrate."
Aggrieved by the said order, the objectors have presented W.A.No. 369 of 1985 and the State Government has presented Writ Appeal No. 2587 of 1985.
4. Learned Counsel for the appellants urged the following contentions :
(i) The view taken by the learned Single Judge to the effect that the Government had exceeded its powers under Section 18 of the Act was incorrect and that further as the Government had acted within its revisional powers under Section 18 of the Act, the decision of the Government should not have been interfered with in a petition under Article 226 of the Constitution of India.
(ii) The interpretation of Rule 27(1)(i) (a) (vi) of the Rules by the learned Single Judge to the effect that it prohibited the location of a touring cinema only in a thickly populated residential locality and not in a locality though it was exclusively a residential area if it was not thickly populated, was erroneous.
(iii) The direction issued by the learned Single Judge to the District Magistrate to impose the condition that the Writ Petitioner should construct a sound-proof building as undertaken by him before this Court, was erroneous as it was for the licensing authority to consider as to whether a soundproof cinema theatre should be allowed on the said site or not in exercise of his powers under proviso to Rule 27 (1) of the Rules, if such a request was made before him.
5. Elaborating the first contention, the learned Counsel submitted as follows : Section 10 confers a right of appeal only against the rejection of an application for grant of a NOC or a license, Section 17 (2) confers a right of appeal against an order revoking or suspending a cinematograph license. Under Section 18 of the Act, revisional power is conferred on the State Government only against original orders against which no appeal lies under Section 10 or 17 of the Act. Therefore, the only remedy given to an objector to the grant of a NOC or against the grant, given under the Act was to prefer a revision petition to the Government under Section 18 of the Act. The said Section reads :
"18. REVISIONAL POWERS OF STATE GOVERNMENT: The State Government may call for and examine the record in respect of any original order passed under the provisions of this Act against which no appeal lies under Section 10 or 17 for the purpose of satisfying itself as to the legality or propriety of such order, and may pass such order in reference thereto, as it thinks fit ;
Provided that no order shall be passed under this Section without giving an opportunity to show cause against such order to the party who may be affected by such order."
Having regard to the language of the provision, the Government had the authority to satisfy itself as to the legality or propriety of an order against which a revision is filed and it is given the power to pass such order as it thinks fit. Therefore, the learned Single Judge was not right in holding that the Government in examining as to whether there were residential houses within the prohibited distance exceeded its jurisdiction. In support of the above submission, he relied on the Judgment of the Supreme Court in Babulal Nagar -v.- Shree Synthetics Ltd. , in which the Supreme Court interpreted the provisions of Section 66 of the Madhya Pradesh Industrial Relations Act. The relevant portion of the Judgment reads :
"13. Section 61 prescribes the powers of the Labour Court which inter alia includes the power (A) to decide-(a) disputes regarding which application has been made to it under Sub-section (3) of Section 31 of the Act. Section 31 enables an employee to make an application for relief against an order of an employer made under any of the standing orders. Dismissal from service is an order made under the relevant standing orders. A relief against such order can be. obtained by making an application under Section 61, Entry 1 in Schedule II of the Act prior to the amendment of 1981 provided that the Labour Court may examine :
'the propriety or legality of an order passed or action taken by an employer acting or purporting to act under the Standing Orders'.
The only feature worth noticing is that the scope, ambit and contours of the jurisdiction of the Labour Court in such an application would have to be determined within the parameters of the expression 'the propriety or legality of an order.' xxx xxx xxx When jurisdiction is conferred upon the Labour Court, not only to examine the legality of the order as also the propriety of of the order, the Labour Court can in exercise of the jurisdiction examine the propriety or impropriety of the order. The expression 'propriety' is variously understood, one meaning assigned to it being 'justice' in Legal Thesaurus by Burton at page 902. Amongst various shades of meaning assigned to the expression, the Oxford English Dictionary, Vol VIII page 1484 sets out 'fitness ; appropriateness, aptitude ; suitability, appropriateness to the circumstances or conditions, conformity with requirement, rule or principle, Tightness, correctness, justness etc.' If therefore the justice or the justness in relation to a legal proceeding where evidence is led is questioned and the authority is conferred with jurisdiction to examine the propriety of the order or decision that authority will have the same jurisdiction as the original authority to come to a different conclusion on the same set of facts. If any other view is taken, the expression 'propriety' would lose air significance."
(Underlining by us) The above decision indicates that as the revisional power conferred under Section 18 of the Act empowers the Government to examine the legality or propriety of an original order and to pass such orders as it thinks fit, the State Government had the authority to examine as to whether there were residential buildings or residential locality or any other building within 50 metres from the site on which a touring cinema was proposed to be located, which make the grant of NOC impermissible.
6. As against the above submission, learned Counsel for respondents relied on a Judgment of the Supreme Court in Dattopant Gopalarao Devakate -v.- Vithalrao Marutirao, . Relevant portion of the Judgment reads :
".... A view in favour of the tenant was taken by the trial Court but against him by the Appellate Court. The findings of fact recorded by the Appellate Court were not Found to be such by the High Court as to justify the exercise of the revisional power under Section 50 of the Act. It is true that the power conferred on the High Court under Section 50 is not as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure. But at the same time it is not wide enough to make the High Court a second Court of first appeal. We do not think that there are such pressing grounds in this case which would justify our upsetting the views of the High Court confirming those of the lower Appellate Court. It is not necessary to discuss the first two points urged on behalf of the petitioner in any detail and we reject them on the short ground mentioned above."
(Underlining by us) They also relied on the earlier Judgment of the Supreme Court in the case of Harishankar -v.- Rao Giridhari Lal Chowdhary, AIR 1963 SC 608 which is also to the same effect. They also pointed at that the Supreme Court in the case of Rajalakshmi Dyeing Works -v.- Rangaswami Chettiyar, had pointed out the difference between appeal and revision. The relevant portion of the same reads :
"2. 'Appeal' and 'revision' are expressions of common usage in Indian statute and the distinction between 'appellate jurisdiction' and 'revisional jurisdiction' is well-known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily again revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice, Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute."
(Underlining by us) On the basis of the above decisions, the Learned Counsel contended that when the Deputy Commissioner/Licensing Authority had come to the conclusion that the grant of NOC for establishing a touring cinema on the site in question would not be in contravention of Section 27 of the Act by expressly stating that there was no residential locality or building within 50 metres from the site in question, the Government had no jurisdiction to examine the correctness of the said statement.
7. Having regard to the language of Section 18 of the Act, extracted earlier, certainly the power is not as narrow as the revisional power of the High Court under Section 115 of the C.P.C. as pointed out by the Supreme Court in the case of Dattopant2, while interpreting Section 50 of the Karnataka Rent Control Act, which is similarly worded. In the said decision, it is however pointed out that such revisional power was not as wide enough as the power of the Court in first appeal. The decision in the case of Babulal Nagar1 supports the submission of the appellants' Counsel that power is co-extensive with the original power. However, as observed by the Supreme Court in the case of Rajalakshmi Dyeing Works4, the scope of revisional power has to decided having due regard to the scheme of the Act concerned. Therefore, in order to decide the scope of revisional power, the Court would have to consider the subject matter to be dealt with by the original authority and/or the appellate authority concerned and further whether the revisional power is against an original order or against an appellate order and the like. In our opinion, it is unnecessary to consider in this case whether the power conferred under Section 18 of the Act which is a revisional power against an original order is co-extensive with that of the original authority as contended for the appellants, or it is not so as contended for the respondents, for, in our opinion, even on the basis that the scope of Section 18 of the Act is the same as that of Section 50 of the Rent Control Act as held by the Supreme Court in the case of Dattopant2 the view taken by the Learned Single Judge that the State Government had exceeded its jurisdiction, as we would presently show, was not justified.
8. In order to appreciate the above contention, it is necessary to first set out the relevant portion of Rule 27 of the Rules. It reads :
"27. CONDITIONS FOR THE GRANT OF NO OBJECTION CERTIFICATE-(1) No Objection Certificate shall not be granted under this Chapter in respect of any cinema unless--
(i) the cinema site is at a distance of not less than :
(a) fifty meters from :
(i) any existing petrol bunk or place licensed for a petrol bank and other places of fire resort ; or
(ii) any place of community worship, cremation ground, grave yard or cemetry in use;
(iii) any recognised educational institution, any residential institutions attached to the educational institution ; or
(iv) any public hospital or a private nursing home ; or (v) any recognised orphange ; or
(vi) any thickly populated residential area or area used generally for residential purposes as distinguished from business purposes."
The rule expressly prescribes that the cinema site should be situate atleast 50 metres away from any existing petrol bunk or any place of community worship, cremation ground or a recognised educational institution or any residential institution, any public hospital or any recognised orphange or any thickly populated residential area or an area used generally for residential purpose as distinguished from business purposes. In the nature of things, the question of fact, namely, as to the existence or not of one or the other building referred to in the rule within the prohibited distance is such, which cannot conveniently be decided upon formation of an opinion on consideration of oral and/or documentary evidence. The question of fact is such, when disputed, has to be decided by the licensing authority only by getting the distance measured. Obviously for this reason, Rule 96 which prescribes the procedure for consideration of the application for grant of NOC for a touring cinema expressly provides in Sub-rule (2) for spot inspection by the licensing authority to ensure that the location is not in violation of the Rules. Having regard to the rules of natural justice, the measurement has to be taken in the presence of the parties. Therefore, if in a given case the licensing authority states that there were no such buildings within the prohibited distance and the correctness of the statement made in the order of the licensing authority as to the non-existence of the building within the prohibited distance is challenged by the objectors before the Government, the power under Section 18 of the Act must necessarily include the power to verify the correctness of such statement by taking measurements once again in the presence of the parties. If this power is denied to the State Government under Section 18 of the Act, the revisional power would become ineffective.
9. The relevant portion of the order of the Learned Single Judge in which he held that the Home Secretary, exercising the power of the Government under Section 18 of the Act, exceeded his jurisdiction, , reads :
"24. On the above finding, it follows that it was not open to Government to hold that the NOC granted to the petitioner violated Rule 27(1)(i)(a)(vi) of the Rules, even if the DM had committed an error in measuring the distance from the auditorium area instead of from the boundary area of the site. There is no dispute that the proposed site does not contravene the other sub-clauses of Sub rule (1) of Rule 27(1) of the Rules. But in order to safeguard the interests of respondents-3 and 4 and other neighbours, the petitioner has also filed an affidavit or a memo undertaking to construct a sound proof building, it is proper for the DM to impose such a condition in the NOC granted to him."
(Underlining by us) The learned Single Judge held that even if the District Magistrate had committed an error in measuring the distance between the cinema site and the residential houses from the centre of the cinema site instead from the boundary it was not open for the Government to take a different view. We find it difficult to agree with the above view. In the nature of things as to whether a cinema site is located within the prohibited distance or not, the distance has to be measured from the outer limits of the proposed cinema site and the outer limits of the buildings referred to in the rule, otherwise it would defeat the Rule. In fact, a Division Bench of this Court in State of Karnataka v. M. Shivappa, AIR 1976 Karnataka 235, has interpreted the Rule 27(1)(i) of the Rules. Relevant portion of the Judgment reads :
"20. Thus, we are unable to agree with the view taken by the Learned Single Judge that the distance of 50 metres should be measured from the building of a public hospital or a private nursing home and not from the boundary of the vacant land appurtenant to such building.
21. As the site in which the petitioner proposed to erect a touring cinema was within 50 metres from the boundary of the vacant land appurtenant to the building of that hospital, the District Magistrate was justified in refusing to grant a no objection certificate."
From the above Judgment it is clear that the distance has to be measured from the compound or the outer limit of the petrol bunk or any place of community worship etc., upto the outer enclosure or the compound wall or outer limit of the cinema site. The view taken to the contrary by the learned Single Judge in that case was overruled. In the present case, in the order the Licensing Authority itself by which it granted the NOC, which was the subject matter of revision, it stated that there were no residential buildings within 50 metres from the centre of the site. This statement shows that the Licensing Authority had measured the distance from the centre of the proposed cinema site. Thus there was a patent error of law in the order of the Licensing Authority granting the license. The above aspect was considered by the Government. The relevant portion of the order reads :
"The houses in the immediate vicinity of the Site in all these three directions fall within the prohibited distance of 50 metres. On going through the records and the minutes of spot inspection conducted by the District Magistrate, Bangalore, on 8-7-1984 it is seen that he has taken the measurement from the centre of the auditorium. This procedure is wrong as the disstances have to be measured between the two respective boundaries as laid down by our High Court in the case referred supra."
(Underlining by us) The Government in coming to the conclusion that it was by measuring the distance from the centre of the site that the District Magistrate had held there were no residential houses within 50 metres and the District Magistrate committed a patent error in doing so, followed the ratio of the Judgment of this Court in Shivappa's case5. We are, for these reasons unable to agree with the view taken by the learned Single Judge that the Government had exceeded its power under Section 18 of the Act. Therefore, the first contention urged for the appellants is well founded.
10. The second contention urged for the appellants relates to the interpretation of Rule 27. Elaborating this contention, learned Counsel for the appellants submitted as follows: The above rule not only prohibits the location of a touring cinema within 50 metres from any thickly populated residential area, but also within 50 metres of an area used generally for residential purposes even if it is not thickly populated. The learned Single Judge was in error in holding that the expression 'thickly populated' applies to the second part of the clause also. They submitted (hat the view taken by the Government that the rule prohibits location of a touring cinema within 50 meters from a thickly populated residential area as also from any other residential area even if it was not thickly populated was correct.
11. Learned Counsel for respondents, however, submitted that the interpretation of the rule by the learned Single Judge to the effect that the words 'thickly populated' qualifies the first as well as the second part of Clause (vi) of Rule 27(1)(i)(a) of the Rules was correct. The relevant portion of the order of the learned Single judge interpreting the above provision, , reads :
"17. Sub-clause (vi) employs the term 'residential area or an area used generally for residential purposes.' The former describes the area compactly and colloquially and the latter describes the same descriptively and loosely. Both mean one and the same. There is no distinction and difference in the two expressions. The use of the term 'generally' which means 'all' or 'nearly all' in between the words 'an area used' and 'for residential purposes'., does not in any way add to or diminish to the meaning of the term 'residential area' or 'an area used for residential purpose' between the term 'residential area' and 'an area used for residential' there is no distinction and difference both in their ordinary parlance and their legal import also.
18. On the aforesaid construction, it necessarily follows that the proceeding or qualifying term 'thickly populated' should and must govern the terms preceding and following the same namely 'residential area' or 'an area generally used for residential purposes'.
19. The word 'thickly' derived from the word 'thick' in the context means, congested or packed beyond what is reasonable for Jiving, Even ordinary movement in such area becomes difficult, if not impossible. Anybody who has seen congested parts of old Bangalore City like Chickpet and other congested area will appreciate the same better. In the context the term 'thickly populated' really means that the population in the area was so very congested that the number of houses and people living in that area for reasons that are not necessary to examine was beyond the modern standards of living.
20. The object of imposing a prohibition in a thickly populated area is not far to seek. The object was that the cinema theatre to be established as a place of entertainment should not become a source of nuisance or inconvenience to the residents and others that use such an area."
A careful reading of Clause (vi) of Rule 27(1)(i)(a) indicate that what the Rule requires is that the touring cinema site should be at a distance of not less than 50 metres from :
(i) any thickly populated residential area ;
(ii) an area used generally for residential purpose as distinguished from business purposes.
As can be seen from the relevant portion of the order of the learned Single Judge, extracted above, he has taken the view that the expression 'thickly populated' also qualifies the words used in the second part of the rule, namely, 'an area used generally for residential purposes'.
12. In our view both having regard to the text and the context, the words 'thickly populated' do not qualify the second part. The first part of Clause (vi) speaks of thickly copulated residential area. Thus this part of the rule speaks of actual residence of people in any particular area, whether the said area is earmarked under Town Planning or under any law relating to local authorities, as residential area or not. Therefore, if it is found that in a particular area large number of people reside, that is, the area is a thickly populated residential area, no license can be granted to a touring cinema within a distance of 50 metres from such area. The second part of the Rule, in our opinion, refers to areas which are purely residential areas, as distinguished from areas used for business purposes. In such areas also the Rule does not permit the location of a cinema house within 50 metres from such area. If the intention of the rule making authority was to refer only to a thickly populated residential area, it was unnecessary for the rule making authority to have incorporated the second part. The difference between the two may be illustrated thus. It may be, in a given case an area might not have been earmarked under the concerned law as a residential area or might have been earmarked as business area or an area partly for residential and partly for business use. If in such area if it has so happened that it had become a thickly populated residential area by the factual residence of the people, no license can be granted to a touring cinema within 50 metres from such area. Similarly, if an area is intended to be developed as purely residential area and sites have been allotted in favour of individuals and several houses have already been constructed but some of the sites are still vacant, as in the nature of things it requires some time for the construction of the houses on all the sites by the allottees, but construction of residential houses on such vacant sites is imminent, still as it is intended to be a residential area as distinguished from an area meant for business purposes, the rule prohibits the location of a cinema site within 50 metres from such area. Therefore, in our opinion the view taken by the Government that the Rule prohibits the location of a cinema house within 50 metres of a thickly populated area as also within 50 metres from an area used purely as a residential area is well founded.
13. Now coming to the facts of the case, it is necessary to set out the relevant portion of the order of the Government. It reads :
"The main issues for consideration in this revision petition are the respective distances between the proposed site and the residential houses around and the touring talkies nearby. At this juncture, it is appropriate that the result of the spot inspection conducted by the Home Secretary is set down.
'The site No. 186, Koramangala proposed for the touring cinema is located at a distance of 23.02 metres from the house of Sri K. C. Papanna Reddy to the east and another house at a similar distance (the name of the occupant now known) also to the east. The residence cum workshop of the first petitioner in the revision petition is situated at a distance of 9.04 metres from the site in the south-eastern direction. On the northern side, the shop cum residence of Sri K. C. Mallappa Reddy is at a distance of 17.4 metres from the site. Also on the northern side is Hotel Janata situated at a distance of 20 metres. On the western side is the house of Sri Nagaraju at a distance of 34.06 metres. Slightly to the south-west is a house under construction at a distance of 40 metres belonging to Sri Basavaraj. On the southern side there are no constructions. The distance from the proposed touring cinema to the other touring cinema was measured along the nearest road used by pedestrians. On such measurement it was seen that the distance between the site proposed for the touring cinema and the Kumaraswamy touring cinema is 538 metres.' Survey No. 186 of Koramangala where the first respondent intends putting up the touring cinema falls in the eighth block of Koramangala Extension. This is a young extension booming in building activity. On all three sides of the site there are residential houses and some non-residential buildings. The distance/s indicated are those between the site and the buildings/residences immediately next to the site.
The main issues for consideration in this revision petition are the respective distance/s at which the residential houses and the other touring cinema are located from the site in question. In view of the fact that the High Court have stayed the operation of Rule 107(a) and (b) of the Rules in so far as it refers to the first respondent in the Writ Petition referred to the distance between the proposed site and other touring cinema cannot be gone into in the revision petition. The only other factor that remains is the distance/s between the site and the houses/buildings surrounding. Inspection of the area revealed that though the area is not very thickly populated it is fairly well populated and that there are a number of houses on the western, eastern and the northern sides of the site."
As can be seen from the above portion of the order, the concerned part of the area of the Koramangala Extension is essentially meant for residential purpose and by the time the NOC was granted large number of residential houses had come up and house building activity in the vicinity was going on with great speed. Further it is seen that actually several houses have been constructed around the site in question and some of the houses around the site were situate within SO metres from the cinema site.
14. Learned Counsel for the respondents submitted that even according to the order of the Government there were only four houses with reference to which measurement was taken and that would not bring within the prohibition of the Rule as by the mere existence of four houses it could not be concluded that it was a residential area. The submission, in our opinion, is fallacious. As can be seen from the order of the District Magistrate also, the area in question is a residential extension. Number of houses have already been constructed. Even if the houses are constructed on all the sites earmarked as residential sites and allotted to individuals, in the nature of things all the houses would not be within 50 metres from the cinema site. It is only a few houses constructed on the sites which are located near the boundaries of the cinema site which would be within 50 metres. In this behalf, it may be seen on a comparison of different, clauses of the sub-rule, while Clauses (i) to (v) speak of existence of a building or premises in which a petrol bunk or any place of community worship or any recognised educational institution or any public hospital etc., within 50 metres from the proposed cinema site, Clause (iv) speaks of the existence of a thickly populated residential area or an area generally used for residential purposes within 50 metres from the proposed cinema site. Thus it may be seen what is prescribed by Clause (vi) is distance from a residential area and not a residential building. Therefore, it is clear once the area is identified as a residential area, no license can be granted so as to locate a cinema house within 50 metres from such area. Therefore, the objection that the measurement was taken only from four buildings is untenable as it is only taken to show that it was a residential area and the site in question was within 50 metres from the said area.
15. Learned Counsel for the respondents submitted that if such an interpretation was given, no touring cinema house could be located in the entire city or town as every residential area would be contiguous to another residential area. We are not impressed by the submission for the following reasons: Every part of the City or town or extension consists of residential and non-residential areas. It is always open to a person who wants to establish a cinema house to do so in a non-residential locality on a site on which its location is not prohibited by the rules. Secondly, it is also open to a person to seek a license for locating a cinema house nearby a thickly populated residential area or a purely residential area, if there were to be any site which is situate 50 metres away from the actual residential houses or sites on which construction of houses are under progress or construction of houses is imminent. But if no such site is available, it cannot be helped for, no cinema house can be constructed for the reason the intention of the rule is not to permit the location of a touring cinema within the prohibited distance, which is designed in public interest.
16. The proviso to Rule also takes care of a situation in which no site which does not fall within the prohibition of the Clauses (i) to (vi) of Rule 27 (1) is available in any locality. Under the proviso the District Magistrate is given necessary power to grant the license if he considers that construction of a sound proof theatre on such site would not cause any inconvenience to the residents. A person desirous of establishing a cinema house on a site in a residential locality which is otherwise suitable and does not conflict with any other rule, could seek NOC for constructing a sound proof building. For these reasons, we are of the view that the construction of the Rule suggested for the appellant which was also the view taken by the State Government is correct, in that, the Rule 27(1)(i)(a)(vi) of the Rules prohibits the location of a touring cinema within 50 metres not only from any thickly populated residential area but also a residential area though not thickly populated is a purely residential area as distinguished from business area.
17. Elaborating the third contention regarding the correctness of the direction issued by the learned Judge directing the District Magistrate to attach a condition to the NOC issued in favour of respondent No. 3 that he should construct a sound-proof cinema theatre as undertaken by him, learned Counsel for the appellants criticised that it would amount to the exercising of the power of the licensing authority by this Court. Learned Counsel submitted that the very direction issued by the learned Single Judge would show, but for the construction of the sound-proof theatre, the location of a cinema house on the site in question would be in contravention of Rule 27(1)(i)(a)(vi) of the Rules. He submitted that it was for the first respondent to make an application for a NOC for constructing a sound-proof building and it was for the Licensing Authority to consider the same on its merits and in accordance with law.
18. This contention, in our opinion, is well founded. If the location of a touring cinema on the site in question is really not prohibited by Rule 27(1)(i)(a)(vi) of the Rules, the third respondent has a right to establish a touring cinema on the site in question and he is not obliged to make it soundproof. If on the other hand the location of the cinema on the site in question is in violation of Rule 27 (1) (i) (a)(vi) of the Rules ; it is so, as held by the Government, the only course open to respondent No. 3 was to make a fresh application before the District Magistrate seeking a NOC by offering to construct a sound-proof cinema building on the site in question and it was for the District Magistrate to consider that request on merits in exercise of his powers and in conformity with the conditions laid down in the proviso to Rule 27(1) of the Rules. In our opinion, the appellants are right in contending that the matter should have been left to respondent No. 3 and the District Magistrate and no direction should have been or could have been issued to the District Magistrate to exercise his discretion available to him under the proviso in a particular manner. Therefore, in our opinion, the direction issued by the learned Single Judge has to be set aside, but we however make it clear that respondent No. 3 shall be at liberty to make a fresh application before the District Magistrate offering to construct a sound-proof cinema building on the site in question, if he is desirous of doing so, and if such an application is made, the District Magistrate has to consider the same under proviso to Rule 27(1) of the Rules, in accordance with law.
19. In the result, we respectfully disagree with the order made by the learned Single Judge and make the following order :
(i) The Writ Appeals are allowed.
(ii) The order of the learned Single Judge made in Writ Petition No. 16200 of 1984 is set aside and the Writ Petition is dismissed.