Andhra HC (Pre-Telangana)
Venkateswara Talkies vs Govt. Of A.P. And Ors. on 6 December, 1991
Equivalent citations: 1992(1)ALT693
ORDER 1. In this Writ Petition a question of general importance and frequent occurrence is raised by Sri K. Manikyal Rao, learned counsel appearing for the petitioner, the question being whether the second proviso to Rule 9-B(c) of the A.P. Cinemas (Regulation) Rules, 1970, can be invoked in aid by an applicant for grant of permission to construct a cinema building when he furnishes false particulars or information in the application made by him to the licensing authority in Form A-I, which, when brought to the notice of the licensing authority, necessitates an enquiry into the truth or otherwise of the same, completion of which may exceed three months' time. In view of the importance of the question raised, I am of the opinion that this Writ Petition shall be heard by a Division Bench as there is no authoritative pronouncement on the question raised. Place the papers before the honourable the Chief Justice for appropriate orders of posting at an early date. 2. This petition coming on for final hearing before the Honourable Mr. Justice Sivaraman Nair and the honourable Mr. Justice Eswara Prasad on 6-12-1991 pursuant to the order of reference of this Court dated 28-9-1989 and passed herein upon perusing the said order dated 8-9-1989 and the petition and the affidavit filed therein and the report of the Collector Nizamabad dated 20-10-91 pursuant to this Court order dated 24-9-91 and on hearing the arguments of the Counsels appearing on behalf of the (Sic) concerned, the Court delivered the following Judgment. JUDGMENT Eswara Prasad, J.
1. The petitioner M/s. Venkateswara Talkies seeks to quash the proceedings of first respondent, Government of Andhra Pradesh, dated 6-5-1986 in G.O.Rt.No. 1174, Home (General-A) Department as illegal and in constitutional.
2. The petitioner is a temporary cinema theatre running over fifteen years prior to the date of filing of the Writ Petition. The third respondent applied for issuance of a no objection certificate for the construction of a semi permanent theatre near the petitioner's theatre by applying to the second respondent Joint Collector, Nizamabad. The second respondent issued a no objection certificate by his proceedings dated 8-4-1985. The third respondent applied for permission to construct a cinema theatre on 9-4-1985. The application for issuance a no objection certificate sought by the third respondent was made under Rules 8 and 9 of the A.P. Cinemas (Regulation) Rules, 1970 stating that the proposed theatre is at a distance of more than 1 K.M. from the existing theatre of the petitioner., where as the actual distance between the' petitioner theatre and the proposed theatre of the third respondent is only 700 metres. By mis-representation of facts relating to the distance the third respondent obtained a no objection certificate from the second respondent.
3. The petitioner filed a petition before the District Collector, Nizamabad on 23-5-1985 objecting to grant of permission to the third respondent to construct a semi permanent or a temporary cinema theatre within the distance of 800 metres where a temporary cinema theatre exists. The Collector referred the matter to the Executive Engineer, P.W.D. (R & B) Nizamabad who submitted a report on 25-6-1985 stating that the distance between the petitioner-theatre and the proposed theatre of the third respondent is 700 metres, the Sub-Collector, Bodhan confirmed this by his proceedings dated 0-8 1985.
4. The second respondent Joint Collector examined the matter in the light of the reports of the Executive Engineer and the Sub Collector and rejected the application of third respondent stating that the request of the third respondent is hit by Rule 7(5) of the Rules, by his proceedings dated 13-9-1985 The third respondent approached the first respondent Government against the order of the second respondent by way of an appeal and the said appeal was allowed and the Collector, Nizamabad was directed to grant permission for construction of the theatre by G.O.Rt.No. 1174, Home (General-A) Department, dated 26-5-1986 which is impugned by the petitioner in this Writ Petition.
5. The main contention of the petitioner is in as much as the distance between the petitioner-theatre and the proposed theatre of the third respondent is only 700 metres, permission cannot be granted to the third respondent as it offends Rule 7(2)(c) of the Rules, and that grant of licence is illegal as per Rule 7(5) of the Rules. The further contention is that the third respondent obtained the "no objection certificate" by mis-representation of facts. It was further submitted that the first respondent was in error in applying Rule 9-B of the Rules and in holding that the deeming provision has come into force.
6. By an order dated 24-9-1991 we called for a report from the second respondent Joint-Collector, with regard to the actual distance between the theatre of the petitioner and the proposed theatre of the third respondent. We felt that neither the pleadings nor the documents showed that the distance between the two theatres were ascertained in accordance with the Rule 7(3). There was a variance between the reports of the Executive Engineer dated 25-6-1985 and 8-4-1985. We directed the Joint Collector or the Sub-Collector to inspect both the petitioner theatre and the proposed theatre of the third respondent and to submit a report. Accordingly the Collector, Nizamabad submitted a report dated 20-10-1991 to the effect that he conducted spot inspection and got the distance between the petitioner theatre and the proposed theatre of the third respondent measured in the presence of parties, and that as per the measurement, the distance between the two is only 670 metres. We find the report is correct and the measurements were taken as required by law and we accept the said report.
7. The Rule 7 of the A.P. Cinemas (Regulation) Rules, 1970 reads as follows:
"Rule 7(1) Subject to Sub-rule (5) of this Rule the number of cinema buildings allowed to function in any place on the basis of the population of such place shall be as specified below-
(2) Subject to Sub-rule (5) of this Rule the location of cinema buildings in terms of distance from each other or from any other building shall be as specified below:
(a) No restriction in regard to distance between one permanent cinema and another permanent cinema.
(b) 800 metres, in between one temporary cinema and another temporary cinema;-
Rule (5) Licences shall not be granted for construction of permanent or semi-permanent or temporary cinema buildings within a distance of 800 metres in places where temporary cinema theatres exist on the date of applications by the applicants.
Provided that in respect of temporary theatres situated within a distance of eight hundred metres of permanent or semi-permanent cinema theatres and in respect of which licences had not been renewed prior to the 27th March, 1985 on account of the restrictions contained in Clause (c) of Sub-rule (2) of this rule obtaining as on the 26th March, 1985, fresh licences shall be granted by following the procedure, without insisting on the said restrictions."
8. The petitioner theatre is a temporary cinema theatre. The proposed theatre of the third respondent is a semi-permanent cinema and as such Rule 7(2)(b) is applicable. Sub-rule (5) of Rule 7 mandates that no licence shall be granted for construction of a semi-permanent or temporary cinema building within a distance of 800 metres in places where temporary cinema theatres exists on the date of applications by the applicants.
9. As per the report of the Collector, which we have accepted, the distance is only 670 metres, it is less than the distance laid down under Rule 7(2)(b). The direction of the first respondent directing the Collector, to grant permission to the third respondent is therefore, held to be not in accordance with law. The contention of the third respondent that the deeming provision has come into force as the Joint Collector, did not pass orders either granting or rejecting the permission applied for and did not communicate the same within ninety days from the date of receipt of the application has no force, inasmuch as the third respondent obtained the no objection certificate on mis-representation of facts.
10. We are of the opinion that the deeming provision in Rule 9(B) of the A.P. Cinema (Regulation) Rules, 1970, can apply only to applications which comply with all statutory requirements and not to all applications however incomplete or defective or non-conforming to the legal requirements they are. To hold otherwise will be to extend the statutory fiction to cover illegalities as well, as has happened in this case. We feel that we should emphasise the need for the statutory authorities to scrutinise the applications thoroughly whenever a claim of 'deemed grant' as provided in Rule 9(B) arises for consideration, so as to see that applications which do not comply with all statutory requirements snatch away the benefit.
11. The order of the first respondent is liable to be quashed and it is accordingly quashed.
12. The Writ Petition is allowed. No order as to costs. G.P's fee Rs. 350/-.