Indian Kanoon - Search engine for Indian Law

16. The controversy requiring adjudication in this writ petition therefore is whether the "no objection certificate" granted by the licensing authority in favour of Gyan Devi on May 23, 1980, and the sanction of her building plan for a permanent cinema accorded by the Urban Improvement Trust Jaipur on Feb. 5, 1981, pass the test of legal validity on the touchstone of the Act and the Rules. It may be mentioned here that the impugned "no objection certificate" as well as the sanction had either not come into being or were not in the knowledge of the petitioners at the time of the institution of the writ petition and therefore could not be and were not challenged in the writ petition itself. As already mentioned in an earlier part of this judgment the application, as originally filed, was for a writ of prohibition, restraining the licensing authority from issuing any "no objection certificate," license or permissions under Rule 16 of the Rules, and for such writ against the Urban Improvement Trust Jaipur restraining it from sanctioning any plan or scheme for the construction of a cinema building on the site in question belonging to Gyan Devi Since the grounds on which the original relief was prayed remain unchanged and unamended, and since the petitioners have sought the amended relief in the rejoinder, having regard to the disclosures made by Gyan Devi in her return filed in answer to the writ petition that she had already obtained the "no objection certificate" and sanction for the construction of a permanent building for a cinema, it is but proper that this court should deal with the legality and validity of the "no objection certificate" issued on May 23, 1980, and the sanction accorded on Fab. 5, 1981. This course is intended to avoid multiplicity of proceedings and thus try to cut-short this litigation which has been hanging fire in one form or the other since Dec. 8, 1970 when Gyan Devi made an application under Rule 4 of the Rules.

(Please give here the description of the site as in Form A). This "No objection" certificate is valid for a period of two years in the case of permanent Cinema, and six months in the case of touring cinemas from the date hereof and if within this period the proposed cinema is not put up, a fresh "No objection" certificate should be applied for.

Given under my hand this .........day of ............... 19 Collector or Licensing Authority

19. It will thus be seen that the "no objection certificate" issued by the licensing authority is substantially is Form B annexed to the Rules. It purports to have been issued under Section 5A (2) of the Act to signify the opinion of the licensing authority that he would have no objection to Gyan Devi "locating a permanent cinema" on the site boundaries where of are given in its paragraph 2. As already explained above, this document cannot, by any stretch of construction, be construed as a license granted in accordance with the provisions of Rules 3 and 4 of the Rules. Nor does this document lend itself to being treated as grant of permission to Gyan Devi under Section 5-A (2) of the Act to construct a permanent building for a cinema. Notwithstanding the mention of Section 5A (2) of the Act in the title and in the opening sentence of this "no objection certificate," this document does not concern itself with either the grant or, refusal of permission to construct a building for a cinema within the purview of Section 5-A (2). It merely certifies that the licensing authority has no objection to the applicant, Gyan Devi, "locating a permanent cinema" on the site in question. Gyan Devi had, indeed, not even applied to the licensing authority for a permission to construct a permanent building for a cinema. All that she had applied for was for a license in accordance with the provisions of Rule 4 of the Rules. She submitted with her application a "site plan" and not a 'building plan.' She asked for a license under Rule 4 in respect of the proposed site which was described in her application and the accompanying site plan with reference to its boundaries and other sites and buildings within a specified distance from it. As for permission to construct a permanent building for a cinema, the licensing authority made it implicitly clear in condition 16 of the "no objection certificate" that it would have nothing to do with such permission. The licensing authority laid it down as a condition (i. e. condition 16) that "the drawings of construction will be got approved by the authorities concerned," meaning thereby that applicant Gyan Devi will have to approach an authority other than the licensing authority for obtaining sanction of her building plan for a cinema. It was in compliance of this condition that Gyan Devi actually submitted a "building plan" for the construction of a cinema house for approval and sanction by the Urban Improvement Trust Jaipur, which she seems to have thought was the "authority concerned" adverted to in condition 16 of the "no objection certificate" mentioned above. She has placed on the record a letter, dated. Feb. 5. 1981, from the said Trust to her address, communicating to her the approval of the Trust of her drawings plan for the construction of a permanent building for a cinema on this site. Thus, the licensing authority as well as Gyan Devi proceeded on the assumption that grant or refusal of permission to construct a permanent building for a cinema is a subject beyond the competency and jurisdiction of the licensing authority.

20. After having considered and ascertained above the real nature and scope of Gyan Devi's application, dated. Dec. 8, 1970, and of the "no objection certificate" granted to her on May 23, 1980, on the basis of the said application, we may now proceed to examine the legal validity of the "no objection certificate." A careful study of the Act and the Rules would show that the grant of license under the Act and the Rules is one thing, and grant of permission to construct a cinema thereunder is entirely a different thing. The Act and the Rules deal with these two different subjects differently. To take up the grant of a license first Section 3 of the Act lays down that no person shall give exhibition by means of a cinematograph elsewhere than in a "place" licensed under the Act or otherwise than in compliance with any conditions and restrictions imposed by such license. Section 2 (b) defines "place" to include "a house, building, tent and any description of transport whether by land, water or air." part II of the Rules (i. e. Rules 3 to 15) prescribe the procedure for grant of a license. As explained in Rule 3, a license may either be annual or temporary. Rule 3 further lays down that an annual license may be granted only in respect of a permanent building, while a temporary license may be granted in respect of a temporary building or in respect of any "place" which of course includes a permanent building as well. Rule 4 provides for the making of an application for a license. Such application is required to be made in the prescribed form (i. e., Form A Annexed to the Rules) on a paper bearing a court fee stamp of rupee one and the signatures of the applicant, if the application is for renewal of a license and the license is not renewed before the date of expiry of the license, the licensing authority may, under Rule 8, issue a temporary permit which, as the said rule further provides, shall be deemed to be the license under the Act. An annual license, a temporary license and even a temporary permit under Rule 8 which is deemed to be a license are all required to be issued, as per Rule 3, in the prescribed form (Form C annexed to the Rules). It may be mentioned here that the title of Form C as given by the rule making authority is somewhat misleading inasmuch as it inadvertently mentions "Rule 4 in Part II" instead of "Rule 3 in Part II" as the rule under which the form is prescribed. The rule making authority may look into the matter for necessary correction of the title of Form C as annexed to the Rules.

24. This brings me to the question of "no objection certificate". I have scanned the Act and the Rules and find that, except for Form B annexed to the Rules, there is no reference to "no objection certificate", directly or indirectly, anywhere in the Act or the Rules. Form B as annexed to the Rules, purports to derive its sanction, as its title would show, from Rule 4 in part II of the Rules. As already explained, Rule 4 deals with grant of a license and not with a "no objection certificate". The question of grant of a license in respect of a permanent building can arise only after the blinding has alreadv come UP in accordance with the requirements of law bearing on the construction of a cinema building. Of course, the question of grant of a "no objection certificate" is relevant in the context of a proposal to erect a permanent building for a cinema. In order, however, to be able to issue a "no objection certificate" legally and validly in favour of a person desirous of erecting a cinema building, the licensing authority must show that such person had applied for such a certificate according to law and that the law contains provisions for the grant of such certificate. As already explained Gyan Devi did not make any application for a "no objection certificate". The only application made by her was for a license in respect of a permanent building in accordance with the provisions of Rule 4 which only deals with "application for license" and nothing else. The Act and the Rules do not contain any provision enabling the licensing authority to issue a "no objection certificate". Section 5A (2) of the Act which has been mentioned by the licensing authority in the title of the "no objection certificate" issued by it, and again in the opening sentence of its text, does not deal with this subject at all. All that Section 5A (2) lays down is this and this only that the licensing authority may, after holding such enquiry as it deems fit, and consulting the local authority concerned, for reasons to be recorded, either grant or refuse to grant permission for the construction of a cinema building. Now, as a step in the direction of eventual grant of permission for the construction of a cinema building, the rule-making authority may make a rule prescribing the obtaining of a "no objection certificate" as a condition precedent for such a grant. For example, the States of Assam. Maharashtra, Guiarat, Karnataka, Madhya Pradesh and Tamil Nadu which perhaps are the only States in the Union to have prescribed, in their respective rules, forms of "no objection certificate" similar to the form given in Form B of the Rules, have all done so in pursuance of the specific requirements in that behalf, as laid down in their rules. The respective rules framed by these States require that a person desirous of constructing a cinema building must first make an application for and obtain a "no objection certificate" from the authority concerned as specified in the respective rules. After obtaining the "no objection certificate" in respect of a site the person concerned is required under the rules to make a formal application to the licensing authority for permission to construct a cinema building on that site. Such application must be accompanied by various documents including the "no objection certificate". In the States like Karnataka and Tamil Nadu which have enacted provision like Section 5A of the Act, the licensing authority is itself competent either to finally grant or refuse to grant permission for the construction of a cinema building. So far as the States of Assam, Maharashtra, Gujarat and Madhya Pradesh are concerned, they have not enacted any provision in their respective enactments similar to Section 5A of the Act, for taking away the jurisdiction of the local authorities in these States to grant or refuse to grant permission for the con-truction of a cinema building. So, in these four States, the ultimate decision whether to grant or not to grant permission for the contruction of a cinema buildins rests with the local bodies concerned. The rules in these four States specifically lay down that any permission to construct a cinema building granted by the licensing authority shall not dispense with the necessity of obtaining the requisite sanction for the construction of the building from the local body concerned under the respective local laws of these States. The question of obtaining a license to exhibit cinematograph films in a cinema building would arise only after the construction of the building is certified as complete according to rules. All the enactments and rules in various States, including the State of Rajasthan contain detailed provisions regarding the grant of license to exhibit cinematograph films in a permanent building.