Andhra HC (Pre-Telangana)
Dr. A. Josephine vs The Govt. Of A.P., Home (Gen.) Dept., ... on 16 June, 1993
Equivalent citations: 1993(3)ALT1
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER Sivaraman Nair, J.
1. There is an apparent conflict between the views expressed by two Division Benches of this Court in relation to the effect of Rule 9 (b) of A.P. Cinema (Regulation) Rules, 1970.
The view expressed in Sri Satya Cine Enterprises, Hyderabad v. Govt. of A.P. and Ors., AIR 1984 NOC 146 (P.67) by a Division Bench was that:
"Even if some rule is not complied with which needs to be complied with before making of an application for permission to construct a cinema theatre and the application is also not rejected within a period of ninety days still under the circumstances the second proviso accords grant of deemed permission to the applicant. As such, subsequent to the working out of the second proviso, if it is found that the application is in violation of a certain rule and hence the deemed permission cannot be accepted then it amounts to nullifying the very proviso incorporated through the G.C. dated 16-6-1978. Therefore, contravention or violation of certain rules which ought to have been complied with before grant of permission cannot be a reason for non-acceptance of the deemed permission under the incorporated proviso."
In Venkateswara Talkies v. Govt. of A.P. and Ors., (D.B.) a Division Bench of this court to which one of us (Sivaraman Nair, J.) was a member, held that:
"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."
In a still later decision reported in Aditya Constructions v. Govt. of A.P., 1992 (2) APLJ 386 (D.B.) another Division Bench of this Court dealing with the provision to Section 437 of the Hyderabad Municipal Corporation Act, 1955, held that the deeming provision applies to complete valid applications and not otherwise.
2. In view of the conflict of opinions of the Division Benches on the effect of deeming provision, we feel it advisable that the point is decided by a larger Bench of this Court.
3. Registrar (Judl.) will take orders from the Hon. Chief Justice to place the matter before a Full Bench for resolving the question of law as to : Whether deeming provision contained in Rule 9 (2) (b) of the A.P. Cinema (Regulation) Rules, 1970 will be operative to incomplete or defective applications or applications which do not comply with or contravene any provision of law which is otherwise applicable OR whether such deeming provision will apply only to complete applications which do not contravene any other provision to the governing statute and the Rules or Bye-Laws made thereunder.
This Appeal coming on for hearing finally before the Full Bench the Court delivered the following.
JUDGMENT P.L.N. Sarma, J.
1. Original writ petitioner is the appellant in this writ appeal. Writ petition itself was filed to call for the records relating to the grant of permission for the construction of a permanent theatre in T.S.No. 1802/A, Ward No. 16 of Narasaraopet, Guntur District and to quash the same by the issuance of a writ of Certiorari or any other appropriate writ.
2. Relevant facts culminating in the filing of the writ appeal are as follows:
Original third respondent in the writ petition filed an application before the second respondent on 4-5-1982 for permission to construct a permanent Cinema threatre in T.S.No. 1802/A, Ward No. 16 of Narasaraopet Municipality, Guntur District under Rule 8 of the Andhra Pradesh Cinemas (Regulation) Rules, 1970 (herein after referred to as "The Rules"). The said application was objected to by the writ petitioner on the ground that the site falls within the residential zone as per the Zoning Regulations and therefore, the construction of Cinema threatre is prohibited and if the permission for construction of a permanent Cinema theatre is granted, it will cause interference in the running of her Nursing Home and will affect the inpatients as well as cause nuisance in the locality. The writ petitioner stated that she was running a Nursing Home known as 'Vijaya Mary Nursing Home' in a building situated in part of T.S.No. 1802/A situate in Narasaraopet Municipality, Narasaraopet, which is the survey number for which permission was sought for the construction of a permanent Cinema theatre. The application was returned for rectification of certain defects on 2-8-1982. After complying with the objections, the same was re-submitted on 9-9-1982 by the third respondent. However, on 7-12-1982, the application was returned by the second respondent with an endorsement that the third respondent may renew his application later. The third respondent submitted a fresh application on 19-1-1983 to the second respondent. Second respondent forwarded the copies of the application to the authorities mentioned in Rule 9 (1) (b) of "The Rules " including Municipal Commissioner, Narasaraopet Municipality as well as Director of Town Planning, having regard to the fact that the area is covered by town planning scheme. All the authorites recommended for the grant of permission except the Municipal Commissioner, Narasaraopet and Director of Town Planning, Andhra Pradesh, Hyderabad. It is stated that the Director of Town Planning, Andhra Pradesh, Hyderabad by his report dated 11-11-1983 stated that the site for the proposed construction of theatre falls in residential zone as per Zoning Regulations of the Master Plan of the Municipality and the construction of a Cinema theatre within the residential locality is prohibited and it will cause disturbance to the people living in the locality. On receipt of the reports aforementioned, second respondent (Licensing Authority) in his D.Dis.No. 5/83 dt.6-12-83 rejected the permission sought for by the third respondent for construction of permanent theatre on the ground that the site in which proposed theatre is sought to be constructed falls in the residential zone as per the Master Plan and therefore, it cannot be granted.
3. Questioning the said order of the second respondent, third respondent preferred an appeal to the first respondent on 24-1-1984. The appeal was allowed by the first respondent by the impugned order in G.O.Rt.No. 2807 Home (General.A) Department dated 12-10-1984. The appeal was allowed on the ground that the application seeking permission for the construction of the permanent theatre submitted by the third respondent must be deemed to have been granted in view of the second proviso to Rule 9 (2) of "The Rules" as it stood prior to 31-12-1983. In fact, the second proviso was added to Rule 9 of "The Rules" by an amendment issued in G.O.Ms.No. 835, Home (General-A) Department, dated 16-6-1978 which was published in the Andhra Pradesh Gazette on 20-7-1978. Subsequently, the time schedule prescribed in the said rule was amended in G.O.Ms.No. 620, dated 31-12-1983 and this particular Rule 9 became Rule 9-B. These amendments will have no significance so far as the present appeal is concerned. The provision relevant for this appeal will be extracted hereinafter.
4. Questioning the order of the first respondent allowing the appeal and the deemed granting of permission for the construction of the theatre in favour of third respondent, writ petitioner filed Writ Petition No. 16112 of 1984 for the reliefs mentioned in the foregoing paragraphs. The said writ petition was dismissed by a learned single Judge of this Court relying upon the second proviso to Rule 9 (2) of "The Rules" holding that the operation of the second proviso does not depend upon the compliance of the Zoning Regulations. The learned Judge relied upon a Judgment of a Division Bench of this Court in Writ Petition No. 1999 of 1981 dated 30-8-1983 wherein it was held that even if the application is in violation or in contravention of certain rules, by afflux of time i.e., if no orders either granting or rejecting the permission applied for is passed and communicated to the applicant within a period of 90 days from the date of receipt of the application, the permission shall be deemed to have been granted.
5. Questioning the said judgment of the learned single Judge, writ petitioner preferred the above writ appeal contending that the deeming provision viz., second proviso to Rule 9 (2) of "The Rules" only operates in the case of an application which is otherwise in accordance with the Rules and Regulations and the provision contemplates such an application and not an application which is otherwise illegal or which is in contravention or violation of the Rules. When the writ appeal came up before a Division Bench of this Court consisting of SIVARAMAN NAIR AND IMMANENI PANDURANGA RAO, JJ., the learned Judges felt that there is an apparent conflict between the views expressed by two Division Benches of this Court regarding the scope and ambit and the effect of second proviso to Rule 9 (2) of "The Rules" viz., in Writ Petition No. 1999 of 1981 dated 30-8-1983 consisting of MADHAVARAO AND SARDAR ALI KHAN, JJ., and the Judgment in Venkateswara Talkies v. Government of Andhra Pradesh, and, therefore, thought it advisable that the point is decided by a larger Bench of this Court. Accordingly, the learned Judges directed the Registrar (Judl.) to take orders from the Hon'ble The Chief Justice to place the matter before a Full Bench. Accordingly, the matter is placed before us.
6. The point that is framed by the Division Bench for being answered by the Full Bench is as follows:
"Whether deeming provision contained in Rule 9 (2) (b) of the A.P Cinema (Regulation) Rules, 1970 will be operative to incomplete or defective applications or applications which do not comply with or contravene any provision of law which is otherwise applicable OR whether such deeming provision will apply only to complete applications which do not contravene any other provision to the governing statute and the Rules or Bye-laws made thereunder?.
In other words, the point that has to be answered by us is:
"Whether the second proviso to Rule 9 (2) of "The Rules" applies to applications which are in accordance with the provisions governing the same and otherwise legal or it operates even in the case of an application, the granting of which will be in contravention of law?
7. Third respondent who filed the application for grant of permission to construct a Cinema theatre died during the pendency of the writ appeal. W.A.M.P.No. 565 of 1993 was filed to bring the legal representatives of the deceased - third respondent on record. The said application was ordered by us by an order dated 22-4-1993 and the legal representatives of the deceased-third respondent were brought on record as respondents 4, 5 and 6.
8. In the present case, the application for grant of permission to construct a Cinema theatre was rejected by the Licensing Authority - Second respondent on the report of the Director of Town Planning. The Director of Town Planning stated that the site on which the theatre was proposed to be constructed falls within the residential zone as per the Zoning Regulations of the Master Plan applicable to Narasaraopet Municipality and, therefore, the construction is prohibited. Question is whether the second proviso to Rule 9 (2) of "The Rules" comes into operation even in such a case where the grant of application will be illegal. In other words, the question is whether the second proviso to Rule 9 (2) can be invoked in a case where the grant of permission itself will be opposed to the relevant provisions of law governing the grant of permission.
9. Sri O. Manohar Reddy, learned counsel appearing for the appellant contended that if the second proviso is made applicable even to an application, the granting of which runs counter to the provisions of the governing statutes, it will amount to perpetuating an illegality. To hold otherwise will be putting the deeming provision on a higher pedestal than the grant of actual permission. The learned counsel submitted that the legislature can never be imputed with an intention to grant permission by resort to the deeming provision which is otherwise illegal. It was further contended that the deeming provision applies only to the applications which complied with all the statutory provisions governing the same and the Rules and Regulations made thereunder.
10. On the other hand, Sri D. Krishna Murthy, learned counsel appearing for the legal representatives of the deceased-third respondent contended that Section 6 of the Andhra Pradesh Cinemas (Regulation) Act, 1955 (hereinafter referred to as "The Act") already stated that nothing contained in the Hyderabad Municipal Corporation Act, 1955 or in the Andhra Pradesh (Andhra Area) Places of Public Resort Act, 1888 or in the Andhra Pradesh (Andhra Area) District Municipalities Act, 1920 or in the Andhra Pradesh (Andhra Area) Town Planning Act, 1920 or in the Andhra Pradesh (Andhra Area) District Boards Act, 1920 or in Andhra Pradesh (Andhra Area) Village Panchayats Act, 1950 in regard to the grant of permission for the construction or reconstruction of a building etc., applies to the applications for the grant of licence for the construction of Cinema theatre and, therefore, even though Zoning Regulations prohibited the construction of theatre in the proposed site, the same cannot be applied to the application filed under "The Act".
11. It was further contended by the learned counsel that the main object of the deeming provision is to see that the Officers act expeditiously and that the applicants should not be at the mercy of the licensing authority. It was further contended that Section 437 of the Hyderabad Municipal Corporation Act, 1955 and Section 214 of Andhra Pradesh Municipalities Act contain the words ".....but not so as to contravene any of the provisions of this Act or any bye-law made thereunder," and that such words are not incorporated by the legislature in the deeming provision under "The Rules" and, therefore, the legislature intended that even if the application is in contravention of the provisions of "The Act" or "The Rules" made thereunder, the deeming provision will come into play. The learned counsel relied upon some of the decisions for the proposition that when the provision is clear, then, the Courts should construe in such a manner so as to give full effect to the same. If so construed the deeming provision applies irrespective of the fact whether the application is in compliance with the provisions governing the Act and the Rules made thereunder or not.
12. The learned Government Pleader for Home has endeavoured to support the impugned order of the Government, while not denying the fact that the construction cannot be carried on in violation of law.
13. To appreciate the rival contentions, it is necessary to extract Section 6 of "The Act" as well as Rule 9 (as it stood prior to 31-12-1983) of "The Rules" which are in the following terms:
"Section 6.
Special provisions for buildings constructed or reconstructed solely for cinemateograph exhibitions:-
(1) Nothing contained in the Hyderabad Municipal Corporations Act, 1955 (Act II of 1956), or in the Andhra Pradesh (Andhra Area) Places of Public Resort Act, 1888 (Act II of 1888), or in the Andhra Pradesh (Andhra Area) District Municipalities Act, 1920 (Act V of 1920), or in the Andhra Pradesh (Andhra Area) Town Planning Act, 1920 (Act VII of 1920), or in the Andhra Pradesh (Andhra Area) District Boards Act, 1920 (Act XIV of 1920) or in Andhra Pradesh (Andhra Area) Village Panchayats Act, 1950 (Act X of 1950) in regard to -
(a) the grant of permission for the construction or reconstruction of a building, or
(b) the grant of licence for the use of any place or building for any purpose for which such licence is required under those Acts, or
(c) the grant of permission to instal any machinery in any place or building, shall apply to the construction or reconstruction of, or the use of, or the installation of any machinery in, any place or building to be used exclusively for the holding of cinematograph exhibitions; and in every such case, an application for licence or permission referred to in any of the Clauses (a) to (c) above shall be made to the licensing authority under this Act, in accordance with the rules made in this behalf under this Act."
(2) x x x x x x x x x x Rule 9 of "The Rules":
Grant of permission to construct a cinema building:
(1) Within five days of receipt any application under Rule 8, the licensing authority shall -
(a) if the application is not in accordance with the rules, return the same to the applicant for re-submission within a period of sixty days failing which the application shall be treated as rejected and a fresh application shall be made;
(b) if the application is in order, forward a copy of each of the application together with the enclosures to the Electrical Inspector, the concerned Executive Engineer, Roads and Buildings (in case of permanent cinema buildings only) the Chief Executive Officer of the local authority, the Director of Town Planning in the case of localities covered by Town Planning schemes, the Health Officer and the Police authorities asking for their reports within sixty days from the date of receipt of the copy of the application and obtain their acknowledgement.
(2) On receipt of the reports referred to in Clause (b) of Sub-rule (1), if the licensing authority is satisfied that the other requirements of these rules are fulfilled and that the applicant is in lawful possession of the site, he shall within 25 days from the date of receipt of the said reports, grant the permission applied for, either absolutely or subject to such conditions as it thinks fit to impose.
Provided that if the licensing authority is satisfied that the provisions of these rules have not been fulfilled, he may refuse to grant the permission applied for and communicate to the applicant the reasons for such refusal.
Provided further that, if orders either granting or rejecting the permission applied for are not passed within 90 days from the date of receipt of the application, it shall be deemed that the permission applied for has been granted.
Note: These rules were amended and substituted by virtue of G.O.Ms.No. 620, dated 31-12-1983. Rule 9-A provided for making of an application for grant of permission to construct a Cinema theatre, while Rule 9-B contemplates the procedure for the grant of permission to the said construction. The requirement of forwarding copy of application for the receipt of report from the Director of Town Planning is included in Rule 8-B which provides no objection Certificate.
14. We will first deal with the contention raised by Sri D. Krishna Murthy, learned counsel for the legal representatives of the deceased-third respondent that the Acts mentioned in Section 6 of "The Act" are made in applicable for the grant of a licence for construction of a Cinema theatre under the provisions of "The Act" and "The Rules" made thereunder. In other words, it is contended that even though the Acts mentioned in Section 6 of "The Act" and the Rules, bye-laws made thereunder respectively prohibit the construction of a building or installation of machinery etc., they will have no application for the grant of application for the construction of Cinema theatre which is governed only by "The Act" and the Rules made thereunder. To appreciate this contention, it is necessary to refer to some of the provisions in the respective Acts referred to in Section 6 of "The Act" governing construction or reconstruction of the buildings, grant of permission and licence for the installation of machinery and running the same with power etc. Section 17 of the Andhra Pradesh Town Planning Act, 1920 is to the effect that after a scheme is published by a notification, no person shall erect, or proceed with, any building or work in respect of the land within the area included in the scheme unless he applied for and obtained permission. Rule 31 made under the said Act is to the effect that no permission shall be given by the Municipal Council etc., to any owner of land or building in the area affected by the scheme or to any person to construct or reconstruct etc., unless it conforms to the requirements of the area included in such scheme. The scheme published under the Act provides for allotment or reservation of lands for different purposes, including residential, commercial and industrial etc. Similarly, Section 209 of the Andhra Pradesh Municipalities Act, 1965 says that if any person intends to construct or reconstruct a building, he shall send an application in writing to the Commissioner. Section 344 of the same Act prescribes the procedure for the issuance of licence and permission and the competent authority is the Commissioner. Likewise, under Chapter XII of the Hyderabad Municipal Corporation Act, 1955, every person who intends to erect a building shall give notice to the Commissioner of his intention to build and file an application after complying with the requisite formalities. Similarly, the other enactments mentioned in Section 6 of "The Act" contemplate seeking permission for construction or reconstruction or for the grant of licence and permission for the installation of machinery and for running of the machinery etc. Since the Act of 1955 is an enactment which was enacted specially to provide for the regulation of exhibition of cinemas by means of Cinematograph in Andhra Pradesh, the legislature intended that the application for permission to construct or reconstruct a Cinema theatre and for installation of machinery to run the same etc., must be governed by the special Act. Therefore, the intention of the legislature seems to be that a person who intends to construct or reconstruct a cinema theatre or proposes to instal machinery, equipment etc., need not go before the respective authorities under the enactments mentioned in Section 6, but an application can be filed before the licensing authority under "The Act" and nothing more. In other words, instead of driving the person who proposes a construction or reconstruction of cinema theatre to the different authorities under different Acts mentioned in Section 6 with separate applications, the legislature intended that such a person can file an application before the licensing authority under this Act alone. To that extent only, Section 6 excluded the operation of the different enactments mentioned therein. However, it cannot be said that the provisions of those governing Acts mentioned in Section 6 need not be complied with. The point will be better appreciated if the portion of Section 6 of the Act relevant for the purpose of the present discussion is extracted and it is as follows:
"Section 6:
Special Provisions for buildings constructed or reconstructed solely for cinematograph exhibitions:
(1) Nothing contained.............in regard to:-
(a) the grant of permission for the construction or reconstruction of a building, or
(b) the grant of licence for the use of any place or building for any purpose for which such licence is required under those Acts, or
(c) the grant of permission to install any machinery in any place or building shall apply to the construction or reconstruction of, or the use of, or the installation of any machinery in, any place or building to be used exclusively for the holding of cinematograph exhibitions; and in every such case, an application for licence or permission referred to in any of the Clauses (a) to (c) above shall be made to the licensing authority under this Act, in accordance with the rules made in this behalf under this Act."
(Underlining is ours) The intention of the legislature is immediately made clear when we look into the above relevant portion extracted from Section 6 of "The Act". It clearly says that an application for licence or permission referred to in Clauses (a) to (c) shall be made to the licensing authority under "The Act" and in that regard the provisions of the Acts referred to in Section 6 will not apply. Therefore, what all Section 6 contemplates is that a person who proposes or wants to apply for any of the purposes mentioned in Clauses (a) to (c) in Section 6 need not go before the authorities contemplated under the provisions of the Acts mentioned in Section 6, but need only to file an application before the licensing authority under "The Act". Only to this extent, viz., filing of an application for the purposes mentioned in Clauses (a) to (c) of Section 6 and the passing of final order by the licensing authority, the provisions of the enactments mentioned in Section 6 will not apply. That is not the same thing as saying that the application need not be in conformity with the provisions of the governing Acts mentioned in Section 6. For example, as in this case, if the area, on which the applicant proposes to construct a Cinema theatre, falls within the residential zone under the statutory scheme published under the Andhra Pradesh Town Planning Act or Andhra Pradesh Municipalities Act etc., wherein the construction of a cinema theatre is prohibited, the application cannot be said to be in accordance with the law or in compliance with the provisions of law, and the licensing authority under this Act cannot grant permission.
15. In Nagarjuna Theatre v. The State of Andhra Pradesh, 1979 (2) ALT 273, JEEVAN REDDY, J., had to consider the scope of Section 6 of the Act. In the said case, the main contention that was raised before the learned Judge was with regard to the validity of Rule 9(1)(b) of "The Rules" as it stood then. The contention was that Section 6 excluded the operation of the Acts enumerated therein and therefore, the obligation to consult the Director of Town Planning imposed by Rule 9(1)(b) is ultra vires the provisions of Section 6 of "The Act". While considering the said question, the learned Judge stated as follows:
"The object is clear, viz., that the construction of buildings or structures to be used for holding cinematograph exhibitions and the licensing thereof, is to be governed exclusively by the A.P. Cinemas (Regulation) Act, 1955, and not by any other enactment. Undoubtedly, the several Acts mentioned in Sub-section (1) of Section 6 to take an example, the Village Panchayat Act, or the District Municipalities Act, as the case may be, contain provisions regulating the construction or reconstruction of buildings, the exhibition of entertainment shows, and installation of machinery in buildings and places. To avoid overlapping of jurisdiction or probable conflict, or inconsistency between the provisions of those Acts and the provisions of the Cinemas (Regulation) Act and the Rules, such a provision is made in Sub-section (1) of Section 6. The Sub-section does not exclude the application of the several Acts mentioned therein, altogether, xxxxxxx But for permission for construction of a building or structure intended to be used exclusively for holding of cinematograph exhibitions, a person need not approach the authorities under the Town Planning Act, or under the District Municipalities Act, or the Places of Public Resort Act, as the case may be. He has to approach only the authority prescribed under the Cinemas (Regulation) Act, 1955. That does not, however mean that the authority under the Cinemas (Regulations) Act, while granting permission for construction, is not to be bound by the Town Planning Scheme."
Similar point arose in a slightly different manner before a learned single Judge of this Court K. Amareswari, J. in Ch. Ananda Rao v. Joint Collector, West Godavari, 1985 (1) APLJ 295. In the said case, an application was filed by the writ petitioner therein for permission to construct a cinema theatre in R.S.No. 18/2A-1 of Gavaravaram village, Eluru Taluk, West Godavari District to the licensing authority under "The Act". Licensing authority accorded permission. However, he has not called for the report from the Director of Town Planning under the impression that the area proposed for construction is not covered by town planning scheme. In fact, it was covered. Principal of St. Therisa's College, Eluru submitted a representation to the effect that the area is covered by town planning scheme and the site on which the construction was proposed falls within he residential zone which prohibits such construction etc. On the said representation, the licensing authority directed the petitioner therein to stop further construction stating that the permission already granted was illegal in view of the fact that the Director of Town Planning was not consulted as required by Rule 9(2) of the Rules. Challenging the said order, writ petition was filed which was disposed of by the learned Judge. The contention raised before the learned Judge was that having regard to the fact that Section 6 excludes the operation of certain Acts enumerated in the said section, consultation with the Director of Town Planning is only directory and not mandatory. While dealing with the said contention, the learned Judge stated that Rule 9 "is designed to ensure construction in accordance with the master plans in case of localities covered by town planning schemes where land is divided into commercial, industrial and residential zone etc." The learned Judge further held that "the Director of Town Planning will be in the know of things so far as the town planning schemes are concerned. He will be the proper authority to advise and recommend whether permission can be granted for construction of theatres. The Licensing Authority under the Cinematographs Act is therefore required to obtain the report as otherwise, permission granted under this Act may come in conflict with the zonal uses prescribed under the Town Planning Act". Therefore, the learned Judge was of the opinion that the application submitted to the licensing authority under this Act for construction or reconstruction of a cinema theatre should also be in conformity with the zoning regulations, schemes and the rules and bye-laws made under the different enactments enumerated in Section 6. In other words, the learned Judge was of the opinion that the application must be in accordance with the law i.e., not only in accordance with the provisions of "The Act" and "The Rules" made thereunder, but also be in conformity with the provisions of the Acts mentioned in Section 6 and Rules and bye-laws made thereunder.
16. Having regard to the above, we are of the opinion that the application submitted to the licensing authority under the Act for construction or reconstruction of a cinema theatre should not only conform to the provisions of "The Act" and "The Rules" made thereunder, but also should be in conformity with the building rules, bye-laws and the zoning regulations etc., made under the different enactments mentioned in Section 6 of the Act.
17. Before taking up the next question, it is necessary to mention the following facts which are admitted. Deceased-third respondent submitted an application to the licensing authority-second respondent herein, for construction of a cinema theatre in T.S.No. 1802/A, Ward No. 16, Narasaraopet Municipality. As per the report of the Director of Town Planning and also the Commissioner, Narasaraopet Municipality, the site wherein the construction is proposed is situate within the residential zone under the scheme published under the Andhra Pradesh Town Planning Act, 1920 in respect of Narasaraopet Municipality, wherein the construction of a theatre is prohibited under the provisions of the said Act. Therefore, the application, having regard to the report of the Director of Town Planning, cannot be granted as it does not comply with or in conformity with the provisions of the Andhra Pradesh Town Planning Act and the scheme published thereunder relating to Narasaraopet Municipality.
18. Now the question is whether such an application, if no order is passed and communicated within a period of ninety days, as contemplated under Rule 9 of the Rules, is deemed to have been granted even though it cannot be granted by the licensing authority. The contention raised by the learned counsel appearing for the legal representatives of the deceased-third respondent is that in view of the second proviso to Rule 9(2), permission for construction shall be deemed to have been granted. For this proposition, the learned counsel strongly relied upon the judgment of a Division Bench consisting of MADHAVA RAO AND SARDAR ALI KHAN, JJ. in Writ Petition No. 1999 of 1981 dated 30-8-83. Without reference to the precedents on this aspect, we would like to consider the rival contentions raised by the parties. We have already stated that the exclusion of different enactments enumerated in Section 6 is only to the extent of filing of the application for permission to construct or reconstruct a cinema theatre etc., before the licensing authority and the grant thereof by the licensing authority under the Act and nothing more and that the provisions of the enactments mentioned therein and the rules, regulations and bye-laws made thereunder respectively governing the construction or reconstruction and the installation of the machinery, equipment etc., will apply. If such is the position viz., if an application submitted to the licensing authority cannot be granted until and unless it is found from the reports of the different authorities concerned with the different enactments, that the application is in conformity with those enactments, can it be said by a legal fiction viz., by deeming provision, that even if the application is not in conformity with the provisions of the enactments mentioned in Section 6 of "The Act" it is deemed to have been granted by efflux of time? In a given case, where the concerned authority called for the reports of the respective authorities mentioned in Rule 9 of "The Rules" after the expiry of ninety days prescribed under the said Rule and the said authorities in their reports submitted that it is not in accordance with law and the application is liable to be rejected, can it be said that by the laches of the authorities, the application, the grant of which is otherwise illegal, is deemed to have been granted by resort to the deeming provision i.e., second proviso to Rule 9 (2)? If such position is conceded, it will amount to, in a given case, putting the deemed permission on a higher pedestal than the one which is actually granted. Sometimes it may happen that because of the pressure of work or otherwise the application is not processed or in a given case the reports are not called for promptly or the reports are not submitted in time and in such instances can it be said that the application shall be deemed to have been granted by resorting to the deeming provision even if it is against law? We are of the opinion that such a situation is not contemplated by the legislature. The Rule-making authority cannot be imputed with the intention that even though the grant of the application is otherwise illegal, by resorting to deeming provision, the application must be deemed to have been granted. It is not possible to accept such an imputation of knowledge to the legislature or the rule making authority. The permission that is deemed to have been granted under the deeming provision cannot be in a better position than the permission actually granted. Pre-requisite for the actual grant of permission to construct or reconstruct a cinema theatre by the licensing authority or the permission which is deemed to have been granted by resort to second proviso to Rule 9(2) of "The Rules", is an application which is in conformity with not only "The Act" and "The Rules" made thereunder but also in accordance or in compliance with different provisions of different enactments mentioned in Section 6 relating to construction or reconstruction of the building etc. To hold otherwise will lead to not only anomalies but also absurdities. Such a construction or interpretation must be avoided. Further, the scheme of Sections 4, 5 and 6 of "The Act" as also Rule 9(1) of "The Rules" also contemplate that the application for permission must conform to all the requirements of the Acts referred to in Section 6. Of course, the concerned authority will have to take into consideration the reports of the authorities mentioned in Rule 9(1). Rule 9(1)(b) of "The Rules" clearly says that if the application is in order, copies of the application must be sent together with its enclosures to the Electrical Inspector, the concerned Executive Engineer, Roads & Buildings, Health Officer of the local authority and the Director of Town Planning in the case of localities covered by Town Planning Schemes, Police authorities etc., asking for their reports. The respective authorities will examine the application with reference to the respective provisions of the Acts with which they are concerned and submit their reports. Depending upon the reports, the licensing authority will grant or reject the licence sought for. Therefore, the scheme itself envisages that the application must be in accordance with the rules and regulations of different Acts governing the construction or reconstruction of the buildings as indicated in the reports which will be taken into consideration while passing orders thereon. Therefore, it is not possible to accede to the argument that even if the application is not in conformity with different Acts and even though this aspect of the matter is brought out in the reports of the authorities concerned, still by virtue of lapse of time such an application is deemed to have been granted by resort to deeming provision.
19. JEEVAN REDDY, J., while referring the Writ Petition No. 1999 of 1981 to the Division Bench, which was ultimately decided by MADHAVA RAO AND SARDAR ALI KHAN, JJ., had to consider the very same point and stated as follows:
"Firstly, the proviso must be read consistent with other provisions in the Rules, and not so as to override them. Secondly, when the licensing authority is not competent to grant a permission contrary to the requirements of the said Rules, there is no reason to hold that the deemed permission is not subject to such limitation, or that it stands on a different and higher pedestal. The proviso cannot be understood as empowering the applicant to carry on construction contrary to the express Rules, merely because the licensing authority has failed to communicate orders upon his application within ninety days. For the default of the Commissioner, it is well and proper to say that the permission is deemed to have been granted; but, it would be going too far to say that, because of the default on the part of the Commissioner, even the Rules need not be followed."
In this regard, the learned Judge further opined as follows:
"I think not; as I have observed earlier, the licensing authority has no power to grant a permission contrary to these Rules; and is so, the deemed permission cannot stand on a higher footing; and further that, the delay or default on the part of the licensing authority cannot, and does not entitle the applicant to ignore the Rules. The Rules are binding both upon the licensing authority, as well as the applicant, and have to be observed by both."
Having taken the said view, the learned Judge referred the matter to a Division Bench in view of the fact that RAGHUVIR, J., sitting single took a different view in Writ Petition No. 7223 of 1979 dated 8-9-1980. On such reference, the matter was dealt with by a Division Bench of this Court consisting of MADHAVARAO AND SARDAR ALI KHAN, JJ. The learned Judges by their Judgment expressed their view in the following terms:
"Even if some rule is not complied with which needs to be complied with before making of an application for permission to construct a cinema theatre and the application is also not rejected within a period of ninety days still under the circumstances the second proviso accords grant of deemed permission to the applicant. As such, subsequent to the working out of the second proviso, if it is found that the application is in violation of a certain rule and hence the deemed permission cannot be accepted, then it amounts to nullifying the very proviso incorporated through the G.O. dt 16-6-78. Therefore, contravention or violation of certain rules which ought to have been complied with before grant of permission cannot be a reason for non-acceptance of the deemed permission under the incorporated proviso."
The learned Judges in coming to the said conclusion took into consideration the fact that Section 437 of the Hyderabad Municipal Corporation Act as well as Andhra Pradesh Municipalities Act contained the words "but not so as to contravene any of the provisions of this Act or any bye-law made thereunder , while the second proviso to Rule 9(2) of "The Rules" does not contain the same. Having regard to what we have stated earlier, we are of the opinion that the decision of the Division Bench consisting of MADHAVA RAO AND SARDAR ALI KHAN, JJ., is not correct and it is not sound in law. It is accordingly overruled.
20. We have already discussed and referred to the above aspect and construed the provisions with reference to the intention of the legislature and the rule making authority as well. In this regard, we are of the view that the opinion expressed by JEEVAN REDDY, J., in his reference order in Writ Petition No. 1999 of 1981 that the above extracted words from Section 437 of the Hyderabad Municipal Corporation Act as well as Andhra Pradesh Municipalities Act are implicit in the second proviso to Rule 9(2) of "The Rules" is correct. As already stated, we are of the opinion that the deeming provision applies to a case where the permission sought for is not only in strict compliance and in accordance with "The Act" and "The Rules" made thereunder, but also different provisions made under the other Acts referred to in Section 6 of "The Act". A learned single Judge of this Court (Y.V. ANJANEYULU, J.) while disposing of Writ Petition Nos. 1942 and 12258 of 1985 had to consider the very same point. The learned Judge after considering the scope and ambit of Section 5 of "The Act" as well as second proviso to Rule 9(2) of "The Rules" stated as follows:
"The second proviso to Rule 9(2) does not have the effect of obliging the licensing authority to grant a licence if the application is not in conformity with the Rules made under the Act. The second proviso pre-supposes a case where an application for the grant of licence to construct a cinema building is in conformity with the Rules made under the Act and yet no permission was granted within the period of ninety days from the date of receipt of application. There can be procedural delays in the grant of permission even in cases where there is absolute compliance with the Rules. In such cases the deeming provision in the second proviso to Rule 9(2) comes into operation to declare that permission shall be deemed to have been accorded. It does not go beyond this."
21. To a similar effect is the Judgment of K. AMARESWARI, J., in the case referred to (3 supra) which has already been referred to while dealing with the first point.
22. Sri D. Krishna Murthy, learned counsel appearing for the legal representatives of the deceased third respondent, relying upon the Judgment in State of Bombay v. Pandurang, , contended that the deeming provision should be construed in such a manner so as to give full effect to the same. He further contended, on the basis of the Judgments of the Supreme Court in Kanai Lal v. Paramnidhi, and S. Narayanaswamy v. G. Panneerselvam, , that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself and where the words used are capable of one construction only, it would not be open to the Court to adopt any other hypothetical construction etc. We have already dealt with this aspect of the case in the foregoing paragraphs. We are of the opinion, having regard to the scheme of the Act and the relevant rule viz., Rule 9, that the intention of the legislature is that the application submitted for grant of permission to construct or reconstruct a cinema theatre should be in accordance with law and in compliance with all the requirements of law.
23. Finally, there remains to be considered the judgment of a Division Bench of this Court consisting of V. SIVARAMAN NAIR AND J. ESWARA PRASAD, JJ., in Venkateswara Talkies v. Government of A.P. (1 supra). In the said case, the third respondent therein filed an application for permission to construct a cinema theatre on 9-4-1985. In the application, it was stated by him that the proposed theatre is at a distance of more than one kilometre from the existing theatre of the writ petitioner. In fact the actual distance between the theatre of the writ petitioner therein and the proposed theatre of the third respondent therein was stated to be only 700 metres. The writ petitioner filed objections to the grant of permission to the third respondent to construct a semi-permanent theatre or a temporary theatre on the ground that it is within the prohibited distance. On the report of the Executive Engineer (P.W.D.), Roads & Buildings, Nizamabad, the Joint Collector - licensing authority rejected the permission sought for. Third respondent therein approached the Government by way of an appeal. The said appeal was allowed by the Government. The learned Judges of the Division Bench called for a report with regard to the actual distance between the theatre of the writ petitioner and the proposed theatre of the third respondent therein from the Joint Collector, Nizamabad, having regard to the conflicting reports submitted by the authorities. As per the directions of the Division Bench, the distance was measured and a report was submitted by the Joint Collector to the effect that the distance between the two theatres is 670 metres only i.e., within the prohibited distance. Before the Division Bench, a contention was raised by the third respondent therein that the deeming provision has come into force as the licensing authority did not pass order either granting or rejecting permission and did not communicate the same within the period prescribed under the said rule viz., 90 days from the date of receipt of the application and, therefore, permission must be deemed to have been granted. Rejecting the said contention, the learned Judges observed as follows:
"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."
24. It is true that the theatre proposed to be constructed is within the prohibited distance from the theatre of the writ petitioner therein which is prescribed under the Rules themselves and not under any enactments mentioned in Section 6 of the Act. However, having regard to the opinion reached by us, as expressed in the foregoing paragraphs, we are of the view that the decision of the learned Judges of the Division Bench is in conformity with the provisions of the Act and the Rules made thereunder and the interpretation thereof accords with our view. Accordingly, we approve the same.
25. In view of the above, we answer the reference as follows: Deeming provision viz., second proviso to Rule 9(2)(b) of "The Rules" applies only in a case where the application submitted for construction or reconstruction of a cinema theatre is in compliance with not only "The Act" and "The Rules" made thereunder, but also with the provisions of the enactments referred to in Section 6 of "The Act" and Rules and bye-laws etc., made thereunder. In other words, for the grant of actual permission or the grant of permission by resort to deeming provision either for construction or reconstruction of a building or for the grant of licence for the use of any place or building or for the grant of permission to install any machinery in any place or building, the pre-requisite is that the application must be a legal one viz., it should comply with not only the provisions of "The Act" and "The Rules" made thereunder but also in compliance with the provisions of different enactments mentioned in Section 6 of "The Act" as also the rules, schemes, or bye-laws made thereunder.
26. Having regard to the opinion expressed by us, the writ appeal will have to be allowed in view of the fact that the site on which the proposed construction of the cinema theatre is within the residential zone as per the Town Planning Scheme applicable to Narasaraopet Municipality wherein the construction of a theatre is prohibited.
27. Accordingly, the writ appeal is allowed and the Judgment of the learned single Judge is set aside and a writ of Certiorari shall issue quashing G.O.Rt. No. 2807, Home (General-A) Department dated 12-10-84. However, there shall be no order as to costs.