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Judgment
P.V. Rajamannar, C.J.—These two appeals arise from the judgment of Rajagopala Ayyangar, J., disposing of two Writ Petitions, Nos. 179
and 196 of 1956. The only question involved in these appeals is the construction of one of the rules framed under the Madras Places of Public
Resort Act and its applicability to the facts of this case. The appellant and the contesting first respondent (who will be referred to as the
respondent) are proprietors of two rival touring talkies. Rule 18(a) of the aforesaid rules runs thus:
No license shall be granted under the Act for the use of any temporary building for public resort or entertainment unless-
(a) the building is provided on all its sides with an open space which in no part thereof shall be less than 50 yards in width:
Provided that the licensing authority with the sanction of the Sub-divisional Magistrate or the District Magistrate, or the Sub-divisional Magistrate
or the District Magistrate if he is himself the licensing authority, may grant a licence for any such building with an open space of not less than 20
yards in width.
Apparently both of them were anxious to obtain a license for a turning talkie in the village of Avadathur, within the limits of the Jalakantapuram
Panchayat Board in the Salem District, and both of them were not able to have any place for running a touring talkie which had an open space not
less than fifty yards in width on all sides. Both of them, therefore, applied for an exemption relying upon the proviso to Rule 18(a). The applications
of both the appellant and the respondent were granted by the Revenue Divisional Officer, Salem. Then both of them applied to the Taluk
Magistrate, for grant of a licence u/s 7 of the Act. The appellant was granted a licence. The respondent filed an appeal to the Revenue Divisional
Officer. But his appeal was dismissed. Thereupon the respondent filed two writ petitions, one to quash the order granting to the appellant the
licence; and another to quash the order of the Revenue Divisional Officer granting the appellant exemption under Rule 18(a) proviso. Both these
writ petitions were heard by Rajagopala Ayyangar, J., together, and the learned Judge set aside the order of the Revenue Divisional Officer
granting to the appellant exemption under Rule 18(a) and its proviso, and in consequence also set aside the order granting him the license under the
Act. Hence these appeals by the appellant.
The ground on which Rajagopala Ayyangar, J., set aside the orders, and in particular the order granting exemption to the appellant under Rule
18(a) proviso was that there were 7 or 8 cocoanut trees within forty feet of the auditorium and the existence of trees, be the number small or great,
and whatever be their distribution in the space, negatives the place around being an "" open space "" within Rule 18(a).
We may say at the outset that there is no mention in the order of the Revenue Divisional Officer granting the exemption, of any trees in the
compound of the proposed tourning talkie of the appellant. This information was obtained by the learned Judge apparently from the report of the
Tahsildar which was called for by the Revenue Divisional Officer on the application made by the appellant. All that the order of the Revenue
Divisional Officer says is that the Tahsildar''s report shows that the conditions specified for the grant of the exemption certificates under Rule 18(a)
of the rules framed under the Places of Public Resort Act are satisfied and the Tahsildar has recommended the grant of the exemption. We have
our doubts if in such circumstances it is open to this Court, in exercise of the power conferred: on this Court by Article 226 of the Constitution, to
quash and set aside an order of an administrative tribunal like the Revenue Divisional Officer on an error which really is not apparent on the face of
the order itself. It may be that in the case of speaking orders, that is, orders which contain on their very face errors which affect the jurisdiction of
the tribunal, there can be interference under Article 226 but this is not such a case.
Be that as it may, we shall deal with the case taking into consideration the report of the Tahsildar also. The material portions of the report of that
Tahsildar runs as follows:
About 7 or 8 cocoanut trees are within 40 of the auditorium on the eastern side. A few cocoanut trees stand in the south about 70'' away from the
cinema shed. The existence of the trees is not in any way dangerous to the cinema shed.
Reference may also be made to another part of the same report which might have some bearing. Dealing with the objection that there are cocoanut
trees in the south and east of the cinema shed arid that if there is a gust of wind, leaves, etc., will fall on the cinema shed and cause nuisance to the
audience, the report of the Tahsildar is:
There is no likelihood of cocoanuts or dried leaves falling on the roof of the cinema shed.
The report also contains the following information:
Availability of open space round the Auditorium.
North : There is 178'' of vacant space up to the edge of the road.
East : The vacant space ranges from 67'' to 100''. Beyond that the Pankaja Rice Mill is situated, to the north east of the cinema shed. There is
Cumbu crop in a portion beyond the vacant space.
South : There is 74'' of vacant space. Beyond that there is Cumbu crop.
West : There is vacant space for 127 and beyond that there are dwelling houses used by the servants of Rajagopala Chettiar.
It is on a consideration of this report that the Revenue Divisional Officer passed an order granting an exemption to the appellant. We understand
this order to mean that in the opinion of the Revenue Divisional Officer there was an open space of not less than twenty yards in width for the
appellant''s cinema building. In our opinion it is for the licensing authority to come to a decision on the question whether the condition laid down in
the proviso is or is not satisfied in any particular case. It is for the licensing authority to decide on a consideration of the facts which are brought to
its notice by the subordinates like the Tahsildar whether there is, or there is not an open space of not less than twenty yards in width. We do not
think that it is the province of this Court to re-examine the facts and decide whether the condition is actually fulfilled, that is, whether the order of a
licensing authority was correct or wrong on the facts. It may be that in a case of exceptional perversity or when mala fides is established, this Court
will be inclined to interfere. But. there is neither feature in this case.
Assuming that it is competent for this Court to examine the correctness of the order of the Revenue Divisional Officer, we are clearly of the view
that the order was also correct on the facts. The learned Judge held that the existence of seven or eight cocoanut trees on the eastern side about
forty feet from the auditorium would prevent the space being called an open space. The learned Judge relied upon the-definition of the expression
''open space'' to be found in Chambers 20th Century Dictionary and the Oxford Dictionary. The definition according to the dictionary which he
relies upon is thus stated by him:
Now, turning to the dictionaries, one finds the word defined as a place free of buildings or trees. - vide Chambers 20th Century Dictionary and the
Oxford Dictionary.
We have referred to the Oxford Shorter Dictionary which undoubtedly is the most authoritative dictionary on the English language. The definition to
which Rajagopala Ayyangar, J., was evidently referring to is that given not to ''open'' as-an adjective but to the expression ''the open''. The
meaning to be attached to this, expression ''the open'' according to the dictionary is
(a) the part of the country not enclosed;
(b) ground without buildings, trees, etc.;
(c) the open water in sea or river; and
(d) the open air.
We do not think that in the context of Rule 18(a) this definition is apposite.
We then find the following definition of ''open'' as an adjective:
Of a space; not shut in; unenclosed; unwalled; unconfined.
There are other meanings which are more or less relevant : - ""uncovered, unobstructed, clear"". It is only with reference to the country that the word
open"" carries the meaning ""free from wood, buildings, etc."" Accepting the several meanings of the word ""open"" we are clearly of opinion that the
existence of 7 or 8 scattered trees within the space sixty feet wide all round would not render this entire space any the less an open space within
the meaning of that expression in the proviso to Rule 18(a).
In our opinion it is a question of fact whether in a particular case there is or there is not an open space of not less than twenty yards in width. It
is quite possible that the existence of even one tree may render the space not an open space as for instance where the single tree is a huge banian
tree spreading its branches and covering up several square feet, or there may be a regular grove or tope of trees all round, in which case obviously
the space could not be called on open space. It is equally clear to us that the existence of, say, one tree at one corner of the space would not
prevent the space being described as an open space. It is for the man to form a common-sense opinion of the matter.
Though one cannot be quite certain because there is nowhere an express statement of the reason for this condition, it is presumably a safety
measure. This is apparent from the order of the Government of Madras to which our attention was drawn by the learned Counsel for the
respondent, G.O. No. 1634, dated 15th June, 1954. In this G.O. the open space is described as a safety zone. Rajagopala Ayyangar, J.,
considered that the purpose of this condition was that in case of any accident, commotion or fire in the auditorium there should be egress for the
persons within the enclosed space. Even if this be the purpose, it is clear to us from the report of the Tahsildar that the presence of these 7 or 8
trees in one part of the compound would not prevent egress in any manner.
In the result we hold that this Court would not be entitled to quash either the order of the Revenue Divisional Officer granting the exemption
under Rule 18(a) proviso, or the order of the Taluk Magistrate granting a licence to the appellant. The appeals are allowed with costs in one
appeal and Writ Petitions Nos. 179 and 197 of 1956 will be dismissed. Advocate''s fee Rs. 100.