Madras High Court
P. Perumal And 8 Others vs State Of Tamil Nadu Rep. By Secretary To ... on 28 April, 1999
Equivalent citations: 1999(2)CTC236
ORDER
1. The writ petitions are for the issue of writ of certiorari to call for the records of the respondent made in G.O.Ms.No.44, Home (Cinemas-A) Department dated 7.1.1991 and quash the same.
2. As the facts in both the writ petitions are one and the same, the following common order is passed.
3. Learned Senior Counsel for the petitioners has argued that the petitioners are graduates in Engineering who are included in the panel of Engineers approved by the Board of Engineers and maintained by the District Collectors under the provisions of the Tamil Nadu Public Buildings (Licensing) Rules, 1966. The petitioners were involved in the construction of cinema theatres and they have constructed many theatres. Learned Senior Counsel has argued that "Public Buildings" are defined under Section 2(8) of the Tamil Nadu Public Buildings (Licensing) Act, 1965 which did not include 'cinema theatres' as the class of buildings constituting cinema theatres were to be approved under the provisions of the Tamil Nadu Cinema (Regulation) Act. Learned Senior Counsel has further argued that as per the provisions of the above Act, the owner of a public building who intends to use any building as a public building is required to make an application to the competent authority for a licence which is to be accompanied by a Certificate of Structural Soundness in the prescribed form obtained from an Engineer. "Engineer" is defined under Section 2(3) of the Act to mean any person possessing such Engineering qualifications as may be prescribed. Learned Senior Counsel submitted that in terms of Section 25 of the Act, the Tamil Nadu Public Buildings (Licensing) Rules, 1966 were framed which specified the details of the Engineering qualification for the purpose of the Act. According to the petitioners the said Rules were amended in the year 1970 to provide for a panel of registered Engineers, to be drawn for each. District by the Collector of the said District, with the concurrence of the Superintending Engineer of the Public Works, Department. The said panel of private Engineers possessing the qualifications specified in the Table to Rule 11 of the amended Rules were to be registered under four classes for each District depending upon which was related to the class of buildings. Hence as per the amended Rules, Structural Soundness Certificate is to be issued only by an Engineer whose name found a place in the panel of registered Engineers approved by the Board of Engineers and maintained by the District Collectors under the provisions of the Act and the Rules. Learned Senior Counsel for the petitioners submitted that the petitioners are private Engineers possessing the qualifications specified in the Table to Rule 11 of the Rules whose names have been included in the panel of registered Engineers for the District concerned which had been drawn and maintained by the Collector of the District with the concurrence of the Superintending Engineer of the Public Words Department. The petitioners have been empowered to inspect and issue a Certificate of Structural Soundness as required under the Tamil Nadu Public Buildings (Licensing) Act, 1965 so as to enable public buildings to be licensed for the use of the public. Learned Senior Counsel for the petitioners has brought to the notice of this court the provisions of Section 2(8) of the Tamil Nadu Public Building (Licensing) Act which defines 'Public Building'. Public Building means any building--
(a) used as a --
(i) school (including a tutorial school) or college (including a tutorial college) or University or other educational institution;
(ii) hostel;
(iii) library;
(iv) hospital, nursing home, dispensary, clinic or maternity centre;
(v) club;
(vi) lodging house, boarding house or hotel; or
(vii) choultry;
(b) ordinarily used for public meeting or for celebrating marriage functions or for holding parties.
The cinema theatres are not included in the above definition. In view of the fact that the Cinema (Regulation) Rules did not provide for the inspection and issue of certificates by the panel of Engineers maintained under the Public Buildings (Licensing) Rules, 1966, there was a lot of delay in the inspection and issue of certificates regarding the Structural Soundness of Cinema theatres in the Sate due to the dearth of Executive Engineers in the State. Learned Senior Counsel has argued that in view of the above position, the Tamil Nadu Exhibitors Association had therefore made representations that it was necessary to amend the Rules so as to empower the Engineers included in the panel of Engineers maintained by the District Collectors under the Public Buildings (Licensing) Rules to issue Structural Soundness Certificates for Cinema theatres under the Tamil Nadu Cinema (Regulation) Rules also. The Government by G.O.Ms.No.2575, Home dated 16.10.1985 amended the Tamil Nadu Cinema (Regulation) Rules, 1957 so as to empower any Engineer included in the panel of Engineers approved by the Board of Engineers and maintained by the District Collectors under the Tamil Nadu Public Buildings (Licensing) Rules to be competent to issue Structural Soundness Certificates under the Cinema (Regulation) Rules. In view of the abovesaid Government Order the Petitioners were empowered to inspect and issue structural soundness certificates in respect of cinema theatres. The petitioners were inspecting and issuing structural soundness certificates to all public buildings including cinema theatres for the purpose of enabling such buildings to be licensed for the use of the public. Suddenly, the respondent has issued an order in G.O.Ms.No.44 Home (Cinemas-A) Department dated 7.1.1991 amending the Tamil Nadu Cinemas (Regulations) Rules deleting the provisions which empowered engineers included in the panel of engineers and maintained by the District Collectors under the provisions of the Public Buildings (Licensing) rules from being competent to issue the structural soundness certificates to cinema theatres. The said Government Order is arbitrary and illegal and liable to be struckdown.
Learned senior counsel for the petitioners has argued that the definition of "Public Buildings" is an inclusive definition which includes a cinema theatre to which public or section of the public have access. The word 'Engineer' has been defined for the purpose of the Act to mean a person possessing such Engineering qualifications as may be prescribed. Rule 11 as amended empowers such of those Engineers possessing the qualifications prescribed in the Rules and who are included in a panel maintained by the District Collectors with the concurrence of the Superintending Engineer, PWD to be 'competent to issue a Structural Soundness Certificate of any Public building. In the year 1985 the Cinema (Regulation) Rules were amended to include sub-rule (6) to Rule 40, sub-rule (1) to Rule 44 and sub-rule (3) to Rule 92. According to sub-rule (4) to Rule 40, the Executive Engineers shall issue a Certificate of structural soundness of the building in Form "N" along with a report in Form "O" which shall be valid for a period of three years. Learned senior counsel for the petitioners has argued that but for the said amendment, it would have been open to the persons like the petitioners or the owners of Cinema theatres to complain that they are entitled to apply for a licence with the Structural Soundness Certificate issued by the panel Engineers in view of the Public Buildings (Licensing) Act and the rules made thereunder and that the Cinema (Regulation) Rules cannot be construed to be in conflict with the Public Buildings (Licensing) Act and the Rules. By virtue of G.O.Ms.No.44 Home (Cinema-A) Department dated 7.1.1991 the provisions of the Public Buildings (Licensing) Act, 1965 and the Rules made thereunder are in conflict with the provisions of the Cinema Regulation Rules for the reason that the Structural Soundness Certificate has to be issued by the Executive Engineer under the Tamil Nadu Cinema Regulation Rules. Learned senior counsel for the petitioners has argued that by the impugned Government Order, the petitioners who have been included in the panel of Engineers approved by the Board of Engineers and maintained by the District Collectors under the provisions of the Public Buildings (Licensing) Act and Rules made thereunder, are deprived of their right to issue Structural Soundness Certificate to cinema theatres. Learned senior counsel for the petitioners has argued that the said Government Order is arbitrary and illegal as it affects the profession of the petitioners.
4. The respondent has filed a counter stating that G.O.Ms.No.2575 Home (Cinemas-A) Department dated 16.10.1985 has been issued so as to empower any Engineer included in the panel of Engineers approved by the Board of Engineers and maintained by the District Collectors under the Tamil Nadu Buildings License Rules to be competent to issue structural soundness certificate under the Tamil Nadu Cinemas (Regulation) Rules, 1957 also. As instances have come to the notice of the Government wherein when the Executive Engineer, Public Works Department had advised in the structural soundness certificate that certain theatres should not be allowed to run shows because the theatre buildings were in bad shape, an Engineer in the panel had certified that they were structurally sound. In order to curtail such things and keeping in view the public safety, the Government has decided to eliminate the system of empowering twin authorities to issue structural soundness certificate in respect of cinema buildings and also to revert to the original system of allowing the Executive Engineers, Public Works Department alone to issue such certificates. The Government had also decided to delete the relevant provisions of rule pertaining to the issue of structural soundness certificate by the panel of engineers. Accordingly the Government amended the rules 40, 44 and 92 of the Tamil Nadu Cinemas (Regulation) Rules, 1957 withdrawing the powers conferred on the panel of approved Engineers for the issue of structural soundness certificate for cinema theatres. In the counter it is also stated that there are about 2600 theatres in the State. The Engineers of the Public Works Department are more in number who are able to perform the functions of issue of structural soundness certificate for cinema building without delay. Keeping in view, the Government has brought in G.O.Ms.No.44, Home (Cinemas-A) Department dated 7.1.1991.
5. Basing on the above, learned Government Advocate has argued that the abovesaid Government Order is perfectly valid and it should not be interfered with.
6. In this case, the records have been called for for knowing the reason to bring in the amendment to the Tamil Nadu Cinema (Regulation) Rules by G.O.Ms.No.44, dated 7.1.1991. The records reveal that the basis for the amendment is the letter from the Secretary to Government to the Commissioner of Land Administration, Madras-5 by Letter No.Ms.1610 Home (Cinemas-A) Department dated 10.7.1990. In the said letter it is stated that it has come to the notice of the Government wherein when the Executive Engineer, Public Works Department has advised in the structural soundness certificate that certain theatres should not be allowed to run shows because the theatre buildings are in bad shape, an Engineer in the panel has issued certificate stating that the above theatres are structurally sound. It affects the public safety and the licensing authorities are not in a position either to allow or to deny such theatres to run shows. It was therefore felt that in the interest of public safety it will be advisable to eliminate the system of empowering twin authorities to issue structural soundness certificates in respect of cinema theatre buildings and also to revert to the original system of allowing the Executive Engineer Public Works Department alone to issue such certificates. This is the lone reason given by the Government for bringing amendment to Rule 40, 44 and 92 of the Tamil Nadu Cinemas (Regulation) Rules, 1957. But the records show that the Government did not have any other material to come to the conclusion that the structural soundness certificates issued by the panel of Engineers approved and maintained by the District Collectors should not be relied upon. The records also reveal that the respondent did not make any attempt to appoint a Committee to go into the genuineness of the allegation made by the said Executive Engineer. The records reveal that there are nearly 2600 cinema theatres in the State and instances have come to the notice of the Government that the conditions of most of the cinema theatres are bad. Before issuing the amendment to Rules 40,44 and 92 of the Tamil Nadu Cinemas (Regulation) Rules 1957, the Government should have sought expert opinion in this regard whether they can act upon the structural soundness certificates issued by the panel of Engineers. The records do not reveal any other material on which the Government relied on to delete the provisions under sub-rule (6) under rule 40, sub para (2) of sub-rule (i) under rule 44 and sub-rule (3) under rule 92 of the Tamil Nadu Cinemas (Regulation) Rules 1957. Under the circumstances, it has to be held that the Government has acted in an arbitrary manner in deleting the provisions under sub-rule (6) under rule 40, sub-para 2 of sub-rule (i) under rule 44 and sub-rule (3) under rule 92 while promulgating G.O.Ms.No.44 Home (Cinemas-A) Department dated 7.1.1991. As the records do not reveal any other material in support of the deletion, the abovesaid G.O.Ms.No.44 dated 7.1.1991 is struck down as illegal and arbitrary. For the reasons stated above, the writ petitions are allowed. No costs. In view of the disposal of the main writ petitions, W.M.P.Nos.11258 and 19196 of 1991 are closed.