M. Panchapakesan v. The Revenue Board, Madras Represented By The Commissioner Of Land Revenue, Ghepauk And Others

(Prayer: Appeal desposed of on (3-2-1958) under Cl. 15. Letters Patent, against the order of Kajagopala Ayyengar J. dated 18th December 1957 in W. P. No. 879/67, presented under Art. 226 of the Constitution to issue a writ of certiorari calling for the records relating to the order of the Dt. Collector. Tanjore, in K. Dis. 9241/57 dated 5th August 1957 and the records relating to the order of the Bord of Revenue, Madras dated 8th October 1957 in B. P. Rt. 4770 and to quash the said order.)

The petitioner held licence for a year in Form C valid up-to 25th April 1957 for a tourning cinema, which he was permitted to locate in the pandal he had put up as approved by the authorities in R. S. No. 152/2 of Papanasam village. In view of the ban imposed by Rule 109 of the Madras Cinemas (Regulation) Rules, 1957 to the scope of which we shall presently advert, the petitioner waited for three months, and on 26th July 1957 he applied to the Collector, the licensing authority, under the terms of the Madras Cinemas (Regulation) Act (Act IX of 1955) for the issue of a fresh licence in form C for the cinema in the same superstructure in R. S. No. 152/

2. Meanwhile, on 1st May 1957, the third respondent applied to the Collector (or the issue of a certificate in form B for locating a touring cinema in R. S. No. 139/2 of the same village, Papanasam. On 3rd May 1957, the petitioner in his turn applied for the issue of a certificate in form B for a site which lay partly in R. S. No. 152/2 and partly in R. S. 152/

1. On 23rd July 1957 the Collector rejected the request of the petitioner and granted the certificate in form 13 to the third respondent. The subsequent application of the petitioner dated 26th July 1957 for the issue of the licence in form C was rejected by the Collector on 8th August 1957. That order ran:

The application of Sri. N. Panchapakesan (petitioner) for the grant of a licence under rule 109 (1) of the Madras Cinema (Regulation) Rules 1957 is rejected as the site R. S. 152/3 in which the above touring Cinema was run upto 26th April 1957 is reported to be within half a mile of the site R.

8. No. 139/3 of Aryapuram Papanasam for which a No objection) Certificate in form B of the Madres cinemas Regulation Rules, 1997, has alredy been granted on 23rd July 1957 to the applicant Sri. Ramaswami Mudaliar of Aryapuram village, Papanasam taluk (third respondent) for the construction of a turing cinema.

The petitioner appeared without succcess to the Board of Revenue against the rejection of his application for a licence in form C. The petitioner next preferred an application under Art. 226 of the Constitution for the issue of a writ of certiorari to set aside the order of the Collector and that of the Board, which had concurred with the Collector, in rejecting the application of the petitioner. That application, W. P. No. 879 of 1957 was dismissed by our learned brother Rajagopala Ayyangar J. It was against that dismissal that this appeal was preferred.

The relevant portion of Rule 14 (2) of the Madras Cinemas (Regulation) Rules, 1957, to which we shall hereafter refer as the rules, ran.

The distance between any two touring cinemas shall be not less than half a mile, Rule 109 (1) ran.

No building constructed of inflammable materials shall be licenced to exhibit shows in any place for a period longer than one year. There shall be an interval of three months before the same site is again licenced,

The expression place was defined by S. 2 (5) of Madras Act IX of 1955.

Place includes house, building, tent and any description of transport, whether by water, land or air.

It was thus an inclusive definition. It is enough to note that both the site and the superstructure thereon, whether the superstructure be parmanent or temporary, would coma within the scope of the statutory expression place.

Though no specific reference was made to K. 14 (2) in the order of the Collector dated 8th August 1957, the relevant portion of which we have extracted above, it was that rule that prohibited the location of a touring cinema within four furlongs of another. Admittedly R. S. No. 139/3 was within (our furlongs of R. S. No. 152/

2. It was equally common ground that on 8th August 1957 there was no cinema licensed to give exhibitions in R. S. No. 139/

3. All that the third respondent had on that date was a certificate issued in form B which would have entitled him to build a cinema house in R. S. No. 139/3 and to apply for and obtain the licence in form C. after satisfying the other conditions imposed by the rules. The contention of the learned Counsel for the appellant was that the issue of a certificate in form B to the third respondent was not a relevant factor in the rejection of the application of the petitioner, which was for the issue of a licence in form C. We find ourselves in entire agreement with Rajagopala Ayyangar, J., who repelled that contention. We also agree with the view he took of the scope of R. 109 (1).

The learned Counsel for the appellant contended that on a proper construction of the rules, including R. 109 (1), we should hold that, where an operator wanted a licence in form C after the lapse of the three months period referred to in R. 109 (0, there was nothing in the rules that required the operator to obtain again a certificate in form B or an approval of the existing superstructure. The site and the superstructure were both approved of by the authorities before the first C licence was issued to the petitioner. The plain language of R. 109 (1) in our opinion, compels us to reject that contention.

The only licence as such provided for by the rules is that in form C. In form and substance it is a licence granted to a named person for the exhibition by means of cinematograph at the place specified in the licence. As we said, the expression place would also include the site on which the superstructure stands. S. 3 of the Act runs:

Save as otherwise provided in this Act, no person shall give an exhibition by means of a cinematograph else where than in a place licensed under this Act The licence is in form C.

Rules 100 to 107 of the Rules obviously apply where the operator gets a licence for the first time in form C to run a cinema at a given place. The scheme of these rules contemplates (1) the approval of the site on which the cinema is to be located, (2) the approval of the plan of the building or other superstructure in which the cinema exhibitions are to be given and (3) approval of the superstructure itself after it has been completed in accordance with the approved plan. It is after completing these preliminaries and after obtaining the certificate in form D for the Electrical equipment that an operator can apply under R. 107 for the issue of a licence in form C. It is against this background that we have to interpret the scope of R. 109 (1) which we shall-quote again,

No building constructed of inflammable materials shall be licensed to exhibit shows in any place for a period longer than one year. There shall be an interval of three months before the same site is again licensed.

Section 3 of the Act, as we have pointed out, requires that the place should be licensed. The first sentence of R-109 (1) requires the building to be licensed. The second sentence obviously contemplates the site itself being licenced. The only license prescribed is that in form C. That licenses the place which, as we have pointed out, would include both the site and the superstructure thereon. When R. 109 (1) specifically refers to both the building and the site each being licesed it seems to us that the only reasonable meaning is that both the site and the superstructure thereon have to be approved of again by the authorities before the licence in form C is issued alter the expiry of the three month period referred to in that rule. The only method prescribed by the rules for the approval of the site is by the issue of a certificate in form B. It would therefore appear to follow that before the same site is licensed again within the meaning of R. 109 (1), i. e., before a licence in form C can be issued the site itself has to be approved of. We are therefore unable to accept the contention of the learned Counsel for the appellant that there is no specific provision in the rules for prior approval of the site when an operator, to whom a licence in form C warranted, applies again after the three month period for a licence in form C with reference to the same site and the building thereon.

Another feature of R. 109 (1) also leads us to the same conclusion, that the site itself has to be approved of before a licence in Form C can be given after the expiry of the three months referred to in that rule. The three month ban applies to the place, that is, to the site and the superstructure thereon. It is immaterial who is the applicant that asks for a licence. The ban would still apply if the application for the licence is made within the period of three months. Suppose an operator other than the original licensee wanted a licence in Form C to give cinema exhibitions in the same place, the ban would still apply. That the applicant had held a licence before could make no difference. If an operator other than the one who had held the licence applied for the licence in Form C, after the expiry of the three month period, it seems to us that the scheme underlying Rs. 100 to 106 would compel him to obtain the prior approval of the licensing authority for the site itself. That the applicant for the licence had held a licence before could, in our opinion, make no difference. A prior approval of the site is again necessary, even after the three month period, when that operator applies for a fresh licence in Form C.

The petitioner-appellant did not obtain the approval of the licensing authority for the cinema in R. S. No. 152/2 at any time after 25th January 1957. The appellant never even asked for such an approval. The contention of the learned Counsel for the appellant was that such an approval was unnecessary when an operator asked for a licence in Form C after the lapse of the three month period mentioned in R. 109 (1). That contention we have already negatived. Even if the position on 26th July 1957, when the appellant applied for a licence in Form C, was that on that application itself the licensing authority could first accord its approval to the site, with or with, out the expression of that approval by the grant of a certificate in Form B, the grant of a certificate in Form B already made in favour of the third respondent barred the approval of the appellants site, which was within four furlongs of the site for which a certificate was already granted to the third respondent.

In construing the scone of R. 14 (2) Rajagopala Ayyangar, J., re-affirmed what he had laid down earlier in the unrecorded judgment of his in W. P. No. 920 of 1957:

These two provisions, Ss. 3 and 5 reflect the correlation between the licensing of the place where an exhibition is to be given and the licensing of the exhibition itself. The licensing of the place is, merely a step in the grant of a licence to a person to conduct an exhibition. The two licences far the place and for the exhibition are therefore not independent in the sense that one could be viewed without its relationship to the other. If as between the rival applicants one has a right to be preferred under the provisions of S. 5, the rules do not enjoin the grant of a certificate in regard to the place chosen by the other.

We are in entire agreement with these observations, except to observe that the licence in Form C is a licence both for the place and the exhibition. We agree with the view taken by the learned Judge that the grant of the certificate in Form B to the third respondent in this case was a relevant factor to be taken into account by the Collector in deciding whether or not to grant the licence in Form C. which the petitioner appellant sought.

The appeal is dismissed with costs. Counsels fee Rs. 100.