1. The petitioner in W.P. No. 22208/2002 has challenged in this Writ Petition the notification dated 29.4.2002 as per Annexure - E under Section 20 of the Karnataka Cinemas (Regulation) Act, 1961. The third respondent in the above Writ Petition who is the petitioner in W.P. No.26806/2002 has challenged in the said Writ Petition the order dated 5.7.2001 as per Annexure - J. As the facts giving rise to these Writ Petitions are one and the same and between the same parties, these Writ Petitions are taken up together, heard and disposed of by this common order.

2. The petitioner in W.P. No. 22208/2002 is a resident of Sindagi Town in Bijapur District. She is also an existing operator of cinemas in the said town. The third respondent, Sri Sharanappa Thippanna Sunagar, is a sitting MLA from Sindagi Legislative Assembly Constituency and represents the ruling Congress. He made an application to the licensing authority, the second respondent-District Magistrate, under the provisions of the Karnataka Cinemas (Regulation) Act, 1964 (for short hereinafter called as the) for the grant of a NOC for enabling him to operate a permanent cinema theatre in Sindagi town. The second respondent invited objections from the general public. The petitioner filed her objections contending that the population of the town did not permit any additional theatre being sanctioned to the town, three cinema theatres existing is more than sufficient to cater to the needs of the public and therefore contended sanctioning of one more theatre would not be in the public interest and it would be contrary to law. The licensing authority upholding the said objections rejected the application of the third respondent as per Annexure-A dated 5.7.2001which is the subject matter of W.P. No.26806/2002. The case of the petitioner is third respondent without challenging the aforesaid order exerting political influence on the higher ups in the government approached the fourth respondent and got addressed a letter to the District Magistrate as per Annexure-C dated 3.12.2001 to the effect that the government has decided to grant no objection certificate and therefore he directed the second respondent-District Magistrate to issue a no objection certificate. On coming to know of such a direction as per Annexure-C, the petitioner filed a Writ Petition in W.P. No. 46372/2001 before this Court. A learned single Judge of this Court rejected the said Writ Petition by his order dated 12.4.2002 holding it is premature. Aggrieved by the said order the petitioner preferred a Writ Appeal in W.A. No. 3012/2002. The third respondent had entered caveat and other respondents were represented by the government advocate. When the said appeal was adjourned from 26.4.2002 to 3.5.2002 for further consideration, acting in post-haste the third respondent got the impugned notification dated 29.4.2002 issued under Section 20 of theexempting the Sindagi town from the provisions of Rule 27(2)(a)(ii) of the Karnataka Cinemas (Regulation) Rules, 1971 (for short called the Rules) as per Annexure-E. On coming to know of such notification, the petitioner filed the present Writ Petition challenging the same. When the Writ Appeal came up for consideration on 4.6.2002 after hearing both the parties the Division Bench was pleased to set aside the order of the learned single Judge in W.P. No. 46372/2001 and also quashed the communication dated 3.12.2001, leaving it open to the parties to pursue the present Writ Petition and also reserving the liberty to the third respondent to challenge the order dated 5.7.2001. That is how after the disposal of the said Writ Appeal, the third respondent has challenged the order dated 5.7.2001 by preferring W.P. No. 26806/2002.

3. Petitioner contends the impugned notification in the Writ Petition is void as no written order was passed under Section 20 of thein public interest exempting Sindagi town from the provisions of Rule 27(2)(a)(ii) of the Rules. The said notification is not in public interest and there is no application of mind before passing the same.

4. Third respondent resisted the said Writ Petition by filing a detailed statement of objections. It was contended that the petitioner cannot be said to be a person aggrieved by the issue of the impugned notification. She is a rival in the business. She can only be styled as busy body or meddlesome interloper. Therefore she has no locus standi to challenge the said notification. The petitioners husband was an ex-minister of Karnataka State, very influential in Sindagi town, admittedly owning two theatres and is successfully preventing any other person from having a theatre in Sindagi town and therefore such a person has no right to challenge the government order. The government order was passed in public interest. Merely because the third respondent is a sitting MLA and belonging to the ruling party there is no bar for him to seek a NOC from the District Magistrate for locating the cinema theatre. Therefore, the allegations of malafides made against him and also the fourth respondent are devoid of any merit. The notification issued is legal and valid and the State Government has full power to pass such an order. He strongly denies the allegation that the impugned notification is a political and personal bounty conferred by the fourth respondent on the third respondent for extraneous consideration. It is not a fraud on power. It is also contended that there are two permanent cinema theatres in Sindagi town belonging to the petitioner and one temporary cinema as evidenced by Annexure - R1 produced along with the statement of objections. For the purpose of counting the number of cinemas to be located on the basis of population under the, a temporary cinema is not liable to be counted. If the temporary cinema is not counted there only remins two permanent cinema thestrea and the population of the sindagi town being more than 27,000 as per the last census there is no bar far iisu of NOC for another cinema theatre as per rules and therefore the third respondent is entitled to the issue of NOC. If the the temporary cinema is also counted then the exemption granted by the State Government under the impugned notification enables the third respondent to get a no objection certificate for a permanent cinema. Therefore, he has sought for dismissal of the said Writ Petition.

5. The first respondent-State has filed its objections contending that acting upon the power under Section 20 of the Act, the government issued a notification dated 29.4.2002 relaxing the provisions of Section 27(2)(a)(ii) in respect of cinema theatres at Sindagi town. The said notification came to be issued on the representation made by 1,700 citizens of Sindagi town and in the interest of public at large in the Sindagi town. After obtaining the approval the notification came to be issued by the government and thereafter it was forwarded to notify in the official gazette after following the provisions of Section 22 of the. It is submitted that Section 20 of thelays down that the government may give exemption by orders in writing. The order f the government relaxing the provisions of the rules is clearly expressed in the form of notification. The contention of the petitioner that an order is distinct from notification is not correct. Section 20 does not make such distinction nor does it prescribe that exemption should be conveyed throug a notification preceded by an order.

6. The fourth respondent against whom allegations of mal fides are made also has filed statement of objections denying all the allegations.

7. In the other Writ Petition, the third respondent has challenged the communication dated 5.7.2001 by which the second respondent rejected his request for grant of no objection, on the ground that the second respondent did not give him an oppurtunity of being heard and without hearing him the said order came to be passed. According to him as the said order did not amount to a decision or an order according to law and did not have the effect of rejecting the application of the petitioner for grant of NOC he bon fide thought that the same could not come in the way of pursing the matter for NOC before the licensing authority. After the passing of the aforesaid order on a representation made by 1,700 residents of Sindagi town, the State Government considering the same issued an order dated 3.12.2001 directing the District Magistrate to grant the no objection ertificate. But as the said order dated 3.12.2001 was quashed by this court in W.A.No. 3012/2002 reserving the liberty to the third respondent to challenge the order dated 5.7.2001 he has preferred this Writ Petition. As the third respondent is repeatedly putting forth this letter dated 5.7.2001 in all the proceedings and contending that third respondents request for NOC has been rejected and it has become final as the same is not challenged it has become necessary for him to challenge the said order and accordingly he has filed the present petition. It is submitted that petitioner has a fundamental right to carry on any business and this impugned order rejecting his request for NOC amounts to denial of such right. Before passing such an order he ought to have been heard and therefore the said order is passed in violation of principles of natural justice. As stated though under the law an appeal could be filed against the said order as the impugned order is opposed to principles of natural justice and has the effect of taking away a fundamental right in carrying on business it would be well within the powers of this Court to strike down the said order in these proceedings.

8. Sri. Subramanya Jois, learned Counsel appearing for the petitioner, contended the notification issued by the Government cannot be construed as an order under Section 20 of theand as the said notification is not preceded by a written order as contemplated under Section 20, the said notification is one without jurisdiction and is liable to be quashed. Secondly, he contended the issue of notification by government in the facts and circumstances of the case especially during the pendency of the Writ Appeal is a fraud on power. Thirdly he contended there is no public interest involved in passing the impugned notification. On the contrary it is passed to benefit the third respondent who belongs to the ruling party and a sitting MLA and therefore it is arbitrary and actuated with mala fides. Lastly, he contended before passing the impugned order the government has an obligation to notify its intention inviting objections from the public and is bound to hear the existing operators and it is only on consideration of the material and by application of mind it can come to the conclusion whether such an exemption is required in the interest of public and has to pass orders and as the said exercise has not been done in the instant case the impugned notification is void and is liable to be set aside. In so far as the Writ Petition filed by the third respondent challenging the order dated 5.7.2001 is concerned he submits against such an order a statutory appeal is provided under the and as the third respondent has an alternate and efficacious remedy by way of an appeal it is settled law that no Writ Petition lies. As such it is submitted that the said Writ Petition is liable to be dismissed as not maintainable.

9. Per contra, Sri B.G. Sridharan, learned Counsel for the third respondent, submitted that firstly the petitioner being a rival operator owning two cinema theatres in Sindagi town has no locus standi to challenge the impugned notification as held by the Supreme Court in the case of JASBHAI MOTIBHAI DESAI vs. ROSHAN KUMAR, HAJI BASHIR AHMED AND OTHERS reported in AIR 1976 SC 578 [LQ/SC/1975/540] . Secondly, he contended Section 20 of theempowers the government to issue the notification in public interest and the Government on considering the request made by 1,700 citizens of Sindagi town to have one more theatre has in its discretion passed the impugned notification and therefore it is legal and valid and cannot be set aside. Thirdly he submitted the petitioners husband being an ex—minister of State of Karnataka who yields enormous influence has been at every stage obstructing the third respondent to obtain a NOC by adopting illegal methods. As such, her­ conduct is not clean and fair and therefore she is not entitled to the discretionary relief under Article 226 of the Constitution of India. Lastly, it was contended that the third respondent has a fundamental right to carry on his business. In law there is no bar for a sitting MLA belonging to the ruling party from applying for a no objection certificate. In fact in Sindagi town there are only two permanent theatres and the third one being semi permanent the authorities were not justified in taking into consideration that semi permanent theatre and rejecting the request of the third respondent as being contrary to law. At any rate the third respondent ought to have been heard before passing the impugned order, as such the impugned order is passed in violation of principles of natural justice. Though a statutory appeal is provided under the, it is settled law when the impugned order is passed in violation of principles of natural justice and the impugned order has the effect of taking away a fundamental right of a citizen it is always open to the court to entertain the Writ Petition and quash such illegal orders and therefore he submits the Writ Petition filed by the third respondent is maintainable and the impugned order is liable to be set aside.

10. The learned Government Advocate appearing for the State and the authorities submitted no illegality is committed by the first respondent in passing the impugned notification. Under Section 20 of thethe Government has the power to issue a notification in public interest. When 1,700 residents of Sindagi Town represented to the Government and requested them to relax the concerned rules to enable the third respondent to have a theatre, the government on consideration of the material and in public interest has passed the impugned notification. The said order of the government could be in the form of a notification. It is not necessary that such a-notification is to be preceded by a written order and therefore he submits the impugned order passed by the Government in valid and legal and the petitioner who is a rival operator has no locus standi to challenge the said Government order and therefore he submits the Writ Petition is liable to be set aside.

11. On the aforesaid pleadings and the rival contentions canvassed, the following points arise for my consideration:-

(i) Whether the petitioner has locus standi to challenge the impugned order passed by the government under Section 20 of the

(ii) Whether the impugned notification passed under Section 20 of theis valid and legal

(iii) Whether the impugned order passed by the second respondent dated 5.7.2001 rejecting the application of the third respondent for grant of NOC is valid and legal

12. Re. Point No.-(i) :- The sheet anchor of the case of Sri. B.G.Sridharan, learned advocate appearing for the third respondent is the

petitioner­ has no locus standi to maintain the Writ Petition in view of the law laid down by the Supreme Court in the case of JASBHAI MOTIBHAI DESAI vs ROSHAN KUMAR, HAJI BASHIR AHMED AND OTHERS (AIR 1976 SC 578 [LQ/SC/1975/540] ) which has been followed in a number of judgments of this court. Therefore, it is necessary to have look at the said judgment. In the aforesaid Judgment the question which arose for consideration was whether a proprietor of a cinema theatre is entitled to invoke the certiorari jurisdiction to challenge the no objection certificate granted under Rule 6 of the Bombay Cinema Rules, 1964 by the District Magistrate in favour of a rival in the trade and it was held that such an owner of a theatre has no locus standi to invoke the certiorari jurisdiction. It was held as under :­-

“36. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) person aggrieved; (ii) stranger; (iii) busybody of meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for Justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past-time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.

40. Did the appellant have a legal right under the statutory provisions or under the general law which has been subjected to or threatened with injury The answer in the circumstances of the case must necessarily be in the negative.

41. The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option, in common with held the rest of the public, to lodge an objection in response to the notice published under Rule 4. The appellants did not avail of this option. He did not lodge any objection in response to the notice, the due publication of which was not denied. No explanation has been given as to why he did not prefer any objection to the grant of the No-Objection-Certificate before the District Magistrate or the Government.

42. Even if he had objected before the District Magistrate, and failed, the would not give him a right of appeal. Section 8A of theconfers a right of appeal to the State Government, only on any person aggrieved by an order of a licensing authority refusing to grant a license, or revoking or suspending any licence under Section 8. Obviously, the appellant was not a person aggrieved within the contemplation of Section 8A.

It was held in the context of the aforesaid law the interest of the rival cinema theatre owner was commercial interest. Even if setting up of another theatre causes pecuniary harm and loss of business from competition, such harm or loss is not wrong in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity.

13. The aforesaid judgment in turn relies on a judgment of the Supreme Court in the case of THE NAGAR RICE AND FLOUR MILLS AND OTHERS vs. N.TEEKAPPA GOWDA & BROS AND OTHERS (AIR 1971 SC 246 [LQ/SC/1970/85] ) where it has been held a competitor in the business cannot seek to prevent the other from exercising his right to carry on business, because of the default nor the rice mill of the appellant be regarded as a new mill. Competition in the trade business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interest of general public under Article 19(6), but a person cannot claim indepen-dently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. In that context it was stated that arrival in the trade has no locus standi for challenging the grant of the permission because no right vested in such person-was-infringed. The aforesaid judgment has been followed in a number of Judgments of this Court and they have reiterated the said legal position.

14. In the instant case what the petitioners have challenged is not the no objection certificate granted to the third respondent under Rule 27 of the Karnataka Cinemas (Regulation) Rules, 1971. On the contrary filed by the petitioners the District Magistrate has refused no objection certificate to the third respondent. After refusal of the said no objection certificate on valid grounds namely it would have contravened Rule 27(2)(a)(ii) of the Rules, third respondent has made a representation to the Government under Section 20 of theseeking exemption of his place where he propose to construct a permanent Cinema from the provisions of the and the Rules, namely, Rule 27(2)(a)(ii) of the Rules. The government purporting to act on the said representation and also purporting to act on the representation of 1700 residents of the Sindagi Town has passed an order as per Annexure-E granting the exemption sought for in respect of the third respondents premises. It is the validity of the said order of the Government passed under Section 20 of thewhich is challenged in this Writ Petition. Therefore, the aforesaid judgments per se has no application to the facts of the case. Learned counsel Sri. B.G. Sridharan submits even though the aforesaid judgments are not applicable still the principle underlying the aforesaid decision apply to the facts of the case and therefore he contends the petitioner has no locus standi even to challenge this Government order.

15. The principle underlying the aforesaid judgment is the right to carry on business being a fundamental right under Article 19(1)(g) of the Constitution its exercise is subject only to the restrictions imposed by law in the interest of the general public under Article 19(6)(i). A competitor in the business cannot seek to prevent the other from exercising his right to carry on business. The competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interest of the general public under Article 19(o), a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. Rule 25 provides for application for constructions of a permanent cinema building. If and when such an application is made Rule 26 provides the licensing authority to invite objections. Rule 27 provides for condition for grant of no objection certificate. Unless the applicant satisfies all the conditions stipulated in the said rule he would not be entitled to a no objection certificate which is a condition precedent for grant of licence. After the applicant satisfying the licensing authority the conditions stipulated under Rule 27, the licensing authority has been conferred the power to grant a no objection certificate to the applicant if the objections by the objectors are found to be not valid. It is in this context it is held the objectors have no right to prefer an appeal against the grant of no objection and it is only the applicant whose application has been rejected for grant of no objection has the right of appeal under Section 10 as he would be the aggrieved person. The objectors are held to be not aggrieved persons, as such they have no right to prefer the appeal. When the law provides for grant of licence and when an applicant satisfies all the requirements as contemplated under Rule 27 if the licensing authority in its discretion rejects the objections of the objectors such an objector cannot be said to be an aggrieved person, muchless a rival in the trade could be said to be an aggrieved person and he has no locus standi to challenge such an order granting the no objection certificate.

16. However, when the objections raised by a rival competitor is upheld by the licensing authority as being legal and valid, and thereafter when an attempt is made to change the very law which governs both the parties, the question is still could it be said that the rival in the business has no right to challenge that action of the Government which tend to change the law or the rules of the game. Section 20 of theempowers the Government to exempt any place where a cinematography exhibition is given from any of the provisions of the or any rules made thereunder if it is necessary or expedient in public interest. In other words the power has to be exercised only in the interest of public and not otherwise. If the rival in the business feels that his opponent has managed to move the Government for change of the rules for his benefit and if he is able to demonstrate before this Court that no public interest is involved in the Government exercising power under Section 20 but it is purely a private interest of an individual it cannot be said that the rival in the business has no right to challenge such an order passed by the Government. After the game starts, if the rules of the game are changed and if it is contended by one of the parties that the rule of the game is changed to aid his rival under the guise of public interest when in reality it is changed for a private interest, it cannot be said that the other who is affected by the change in law has no right to challenge such order of the Government. Merely because he has a right to challenge the order that does not mean the order will be quashed. Only if he is able to demonstrate that such an order is passed purporting to be in public interest but in reality is in private interest in favour of his opponent then only he can succeed. If it is pointed out that such a power exercised by the Government is a fraud on power, exercised for extraneous consideration and for a purpose or object contrary to what is stipulated in the said Section, thereby one of the party in the field of the same business is seriously affected, that too when his objection based on the law is earlier upheld by the licensing authority, it cannot be said that such a person has no locus standi to challenge the said Government order. In my view the law declared by the Supreme Court in the aforesaid judgment has no application to a case of this nature. Therefore, the petitioner has locus standi to challenge the Government order passed under Section 20 of thewhen on the basis of existing rules the objection raised by the petitioner was upheld and the third respondent was refused no objection certificate.

18. Re. Point No. (ii) :- A bare perusal of the impugned order discloses that it was issued by the Government on 29.4.2002 in the form of a notification exempting the provisions of Rule 27 (2)(a)(ii) of the Rules in so far as it prescribes a condition that there should be one theatre for every 10,000 population or a fraction thereof exceeding 5000 in respect of fourth cinema theatre to be located in TMC No. D.W.No.3 (Sy.No.119A/3B) in Sindagi Town, Bijapur District. Section 20 of thewhich confers on the Government the power to exempt reads as under :-

"20. Power to exempt: The State Government may, if it is necessary or expedient in public interests so to do, by order in writing and subject to such conditions and restrictions as may be specified in the order, exempt any cinematography exhibition or class of cinematography exhibitions or any place where a cinematography exhibition is given from any of the provisions of this Act or of any rules made thereunder."

The said power could be exercised by the State Government only if it is necessary or expedient in public interest so to do. Secondly the exemption to be granted should be in the form of an order in writing. Thirdly such an exemption should be granted subject to such conditions and restrictions as may be specified in the order. A perusal of the aforesaid order makes it clear there is no reference to any public interest in issuing such order. Secondly, it is in the form of a notification. The Government in the counter has taken a specific stand that there is no separate order granting this exemption except this notification. The word notification has been defined under the meaning a notification published in the official gazette. A notification cannot be equated to an order. When the law states such an exemption should be by way of an order in writing unless the Government passes an order in writing granting such exemption no sanctity could be attached to such notification. As understood in common parlance first an order is passed and the said order is notified to the general public by way of a notification which is published in the official gazette. The notification which is now challenged is not published in the official gazette. A perusal of the aforesaid notification of exemption shows no conditions or restrictions are imposed before granting exemption. In construing an order two important principles which should be borne in mind while considering its validity are :-

(1) Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other particulars of performance are necessarily forbidden. The said principle

has been affirmed by the Supreme Court in various decisions and the latest being in the case of BABU VERGHESE AND OTHERS VS. BAR COUNCIL OF KERALA AND OTHERS [1993(3) SCC 422] where it has been held as under:-

"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all."

(2) The second rule is as held by the Supreme Court in the case of AIR 1952 SC 16 [LQ/SC/1951/65] :

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself"

Again the Supreme Court in the case of MOHINDER SINGH GILL AND ANOTHER vs. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS (AIR 1978 SC 851 [LQ/SC/1977/331] ) held as under:-

"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out".

If we apply these salutary principles and consider the validity of the impugned order it becomes clear

Section 20 mandates if the State Government wants to exempt any cinematography exhibitions from any of the provisions of this Act or Rules made thereunder it could be done by order in writing. Admittedly there is no “order in writing” granting such exemption. Order is different from “notification”. Therefore, when the Government is empowered to grant exemption in a certain way under Section 20 of theit must be done in that way or not at all. Other method of performance is forbidden i.e., such an exemption cannot be given by issue of a notification, notification is no substitute for an order in writing. Secondly when the Section categorically states that the State Government may exercise the power to grant exemption only if it is necessary or expedient in public interest so to do the validity of the said order must be judged by the reasons so mentioned in the order itself. The order of such exemption must disclose that such a power is exercised by the State Government in public interest. In order to find out the reasons for exercising such power one cannot look into the records or the statement of objections filed by the Government in the proceedings or any other material. A bare perusal of the order must disclose that the said order is made in public interest. If that is not forthcoming in the said order it doesnt satisfy the requirement of law. For these two reasons the said order cannot be sustained in the eye of law.

19. It is in this back ground we have to look at the undisputed facts of this case. The third respondent made an application on 18.1.2000 for grant of a no objection certificate to construct a permanent theatre at his place No.TMC No. 752/D.W. No. 3 (Sy. No. 119A/3B) in Sindagi Town, Bijapur District. On receipt of the said application the District Magistrate called for objections from the persons interested. In pursuance of the said notice the petitioner filed her objections contending that there was already three theatres in the town and in view of Rule 27(2)(a)(ii) a fourth theatre cannot be granted as it violates the aforesaid provision and also raised other objections. The District Magistrate after considering the rival contentions issued an order dated 5.7.2001 informing the third respondent that no objection certificate sought for him is refused as it would contravene Rule 26 and 27 of the Rules. The third respondent did not challenge the said refusal to grant the no objection certificate but he appear to have moved the fourth respondent, under Secretary to the Government, Home and Transport Department of Karnataka, who issued a letter dated 3.12.2001 addressed to the Deputy Commissioner stating that they have reconsidered the request of the third respondent for grant of licence. In addition to that 1,725 residents of Sindagi Town have made a representation on 12.11.2001 to the Home Minister requesting grant of no objection certificate to the third respondent as the said place is suitable for them and therefore he informed the District Magistrate that the Government has exempted the said place from the provisions of the aforesaid Rules and has taken a decision to grant no objection certificate to the third respondent and therefore the District Magistrate was directed to issue the no objection certificate. The said letter was challenged by the petitioner before this Court in W.P. No. 46372/2001 and when the same was rejected as premature, he preferred a Writ Appeal No. 3012/2002. It is during the pendency of the said Writ Appeal this Government Notification under Section 20 dated 29.4.2002 has been passed. The Division Bench categorically stated that even though the communication dated 3.12.2001 refers to exercise of power under Section 20, a reading of the said letter clearly shows that it is not the order under Section 20 of the. It is also supported by the fact that the Government issued a notification under Section 20 on 29.4.2002. Therefore, the direction issued by the Government by the letter dated 3.12.2001 is totally impermissible as the power to grant licence vests with the licensing authority who should decide the same depending upon the facts and circumstances of the case, the State can neither assume to itself the jurisdiction to decide whether No Objection Certificate should be granted or not, nor direct the licensing authority by usurping his power to issue NOC to any particular applicant and therefore the said communication dated 3.12.2001 was set aside. The learned Government Advocate on the directions of this Court has produced the file pertaining to this case. The said file discloses that the Deputy Commissioner on receipt of the application from the third respondent and the objections from the petitioner has sent a fax message setting out the facts. The record discloses that notices were put up by the concerned officials that the fourth theatre cannot be sanctioned in view of the population of the Sindagi town. After the District Magistrate rejected the request of the third respondent for granting of no objection he brought it to the notice of the Home Minister the said facts. Thereafter, the Home Minister has passed an order directing the authorities to re-examine afresh. The pendency of the Writ petition before the Court was also brought to their notice and thereafter on 20.11.2001 an order came to be passed by the Home Minister directing the District Magistrate to issue a no objection certificate to the third respondent. It is only on 27.4.2002 orders were issued for issue of the notification under Section 20. The aforesaid records also discloses that some 1,725 persons gave a representation to the Home Minister requesting for grant of the licence to the third respondent to construct the cinema theatre as it would be convenient and in their interest. A perusal of those names, the way it is written, the LTMS and signatures gives an impression that the same is tailor made for the purpose of this case. The same do not infuse any confidence. Now the question is merely because there was a representation by 1,725 persons of Sindagi town requesting the Home Minister to grant exemption to the third respondent does it satisfy the requirement of Section 20 and is it a proof of public interest for the government to exercise its powers. If the said representation of 1,725 persons would be conclusive of the proof of public interest probably if only an opportunity had been given to the petitioner whose husband is an ex-minister and who owns two theatres in the said town he would also have come up with a representation of his followers opposing such order. Therefore, in my opinion this representation of number of residents of the town cannot be conclusive proof of the public interest involved. It can only be a piece of evidence. It cannot be forgotten that both the third respondent and the petitioners husband are politicians belonging to two political parties, the petitioners husband was an ex-minister whereas the third respondent is a sitting MLA of the ruling party. Both of them are resourceful enough to get such representations. The Government before it could exercise the power under Section 20 in addition to the said representation should have made enquiries to find out is there any necessity to grant such an exemption and is such an exemption in the public interest. It cannot be lost sight of that under Section 6 of thewhile dealing with the matters to be considered by the licensing authority a right has been conferred on the persons who are already giving cinematography exhibitions in or near the proposed locality to make any representations to such an authority regarding the adequacy of existing place for the exhibition of cinematography films in the locality and the suitability of the place where cinematography exhibitions are proposed to be given and the interest of the public generally and the benefit to any particular locality or localities to be afforded by the owning of a new place of cinematography exhibition. If the licensing authority has to take note of these facts before granting licence and is bound to consider any representations made by the existing cinematography operators, if the Government authorities relax the conditions in respect of any place in the town of Sindagi certainly the existing cinema operators have a right to make a representation to the Government also bringing to its notice the relevant facts at the ground level which would be of immense help to the Government before coming to the conclusion that it is necessary to exercise the power under Section 20 of thein public interest. Even otherwise before exercising the said power the Government is bound to make proper enquiries and then to Act under the aforesaid provision to grant exemption. In the entire records produced before me except the representation of the third respondent and the representation of 1,725 residents of Sindagi Town I do not find any other material which was brought to the notice of the Government which was relevant before it came to the conclusion that it is in the public interest; that the rigorous of the rule has to be exempted from its application from the Sindagi town. The very fact that even before passing this order they had already issued a direction to the Deputy Commissioner to issue a no objection certificate as they have come to the conclusion that it is in the public interest would only show that the impugned order was only a formality and that too the same was passed when their other order was under challenge before this Court before a Division Bench. The said order also does not show any application of mind because according to the last census the total population of the Sindagi Town is 27,000. Admittedly there are only two permanent cinema theatres and one semi permanent cinema theatre. What rule 27(2)(a)(ii) provides is dealing with permanent cinemas approval of location of permanent cinemas in place having a population of 10,000 or more the number of cinema to be permitted shall be determined in other place, on the basis of one cinema for 10,000 population or a fraction thereof exceeding 5,000. Therefore, it is clear for the aforesaid population of 27,000 there could be three permanent cinemas. Admittedly there are only two permanent cinemas and there was no prohibition for granting the third permanent cinema. In fact that is the stand taken by the third respondent in his counter. If in law there was no prohibition for granting licence to a third permanent cinema there was no necessity for the government to exempt the provisions of Rule 27(2)(a)(ii) of the Rules in respect of fourth cinema to be located in the third respondents place. It only shows lack of application of mind by the Government before passing the impugned order. Under these circumstances, for the reasons aforesaid the impugned order cannot be sustained. It is arbitrary, illegal and therefore liable to be quashed.

20. Re. Point No. (iii) - By the impugned order dated 5.7.2001 in W.P. No. 26806/2002 the District Magistrate has rejected the application filed by the third respondent for grant of a licence to construct a permanent cinema theatre at his place on the ground that a fourth cinema theatre is not permissible in the said town in view of the population and as it would be contrary to Rule 27. In substance it amounts to rejection of the no objection certificate sought for by the third respondent. The third respondent contends according to him it is only a communication of the District Magistrate. By the said communication he did not reject his application for no objection. Therefore, they did not challenge the said order. In the meanwhile, the Government by its communication dated 3.12.2001 reconsidered the issue and directed the District Magistrate to issue a no objection certificate. The effect of the aforesaid order of the District Magistrate was taken away. However, as the petitioners are putting forth the said document at every stage and in every court proceedings contending that the third respondent has not challenged the order of rejection of his request for no objection certificate and the same has become final coupled with the fact when a Division Bench of this Court set aside the said letter dated 3.12.2001 reserving the liberty to the third respondent to challenge this order dated 5.7.2001 the present Writ Petition is filed. He contends he has a fundamental right to carry on business which is guaranteed to him under Article 19(1)(g) of the Constitution of India. He has a right to be heard before rejecting his request. The District Magistrate has not heard him on the contrary acting on the objections filed by the petitioner he has rejected his request for no objection. If the contention of the third respondent is to be accepted namely in the Sindagi town there are only two permanent cinema theatres still in law a third permanent theatre could be granted, then the reasoning given by the District Magistrate to reject his request is patently illegal and therefore the same is liable to be set aside. The argument of the learned counsel for the petitioner opposing this Writ Petition is against the said order an appeal lies under Section 10 of theand when there is a statutory appeal, the Writ Petition to challenge the very same order is not maintainable. A Division Bench of this Court in the case of T.R. RAMAIAH AND OTHERS vs DEPUTY COMMISSIONER AND ANOTEHR [1974(2) KLJ 305] has held that there is no rule with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. The rule requiring the exhaustion of statutory remedies before a writ may be granted, is a rule of policy, convenience and discretion rather than a rule of law. It is settled law that High Court does not lost its writ jurisdiction if against the impugned order in the Writ Petition an alternate remedy by way of an appeal is provided under the statute. It is a rule of prudence, that this Court would not exercise its jurisdiction under Article 226 and direct the parties to avail the alternate remedy available to him. However, it depends upon the facts of each case and the nature of right which is asserted and the injury complained of. In the instant case the petitioner claims a fundamental right under Article 19(1)(g)to carry on trade or business subject to reasonable restrictions imposed by law. Such a right is denied to him by the District Magistrate without hearing him before passing the impugned order. That too such a right has been denied to him at the instance of a rival operator in the field. The resultant position would be it would eliminate healthy competition in the business which is so essential. It would seriously effect the fundamental rights of the third respondent to carry on business which is guaranteed under Article 19(1)(g) of the Constitution. Under these circumstances, I am of the view availability of an alternative remedy by way of a statutory appeal would not come in the way of this Court exercising its jurisdiction under Article 226 and in quashing the impugned order. The impugned order is passed not only in violation of principles of natural justice but would affect the fundamental right of the third respondent to carry on business. Therefore, the impugned order passed by the District Magistrate is hereby quashed and the matter is remitted back to him for fresh consideration in accordance with law after giving the third respondent a personal hearing and thereafter to pass appropriate orders in accordance with law.

21. In the result, I pass the following order:-

(a) W.P. NO. 22208/2002 is allowed. Impugned Order/Notification dated 29.4.2002 as per Annexure-E is quashed, reserving the liberty to the Government to reconsider the matter if necessary in accordance with law.

(b) W.P. No. 26806/2002 is allowed. Impugned order dated 5.7.2001 as per Annexure-J is quashed. The matter is remanded back to the District Magistrate to decide the request of the petitioner to grant “No Objection Certificate” afresh, after hearing the petitioner, in accordance with law.

21. Parties to bear their own costs.