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Judgment
Gokulakrishnan, Offg. C.J.
The petitioner in W.P. No. 5153 of 1980 is the appellant herein. The appellant filed the writ petition for quashing the order passed by the first respondent herein in G.O. Rt. No. 2714, Home (Cinemas) Department, dt. 18th July, 1980. The short facts of the case are as follows; The third respondent herein applied for a no-objection certificate to put up a semi-permanent theatre in Viralimalai. On 29th March, 1975 the Collector of Pudukottai granted a no-objection to the third respondent. As provided for in the no objection certificate, the third respondent ought to have completed the construction of the semi-permanent theatre in the site for which the no-objection certificate was given, on or before 29th March, 1978. The third respondent did not complete the construction within that time and he applied to the first respondent for extension of time. On 14th December, 1977 the appellant herein applied to the Collector for grant of a no-objection certificate to put up a permanent theatre in the survey number referred to by him. The appellant has also filed objections before the Government that the third respondent herein should not be given any extension of time and that the State Government has no power to accord such extension. However, the first respondent, by G.O.2770, Home (Cinemas) Department, dt. 25th July, 1978 exercising powers under S. 11 of the Tamil Nadu Cinemas (Regulation) Act, 1955, (hereinafter referred to in this judgment as the Act) extended the period by two years and directed the third respondent to complete the construction by 28th March, 1980. Questioning this grant of extension given by the first respondent, the appellant herein filed W.P. 4891 of 1978 stating that S. 11 of the Act does not empower the State Government to extend the time. The said writ petition is pending. In the said writ petition interim stay was granted on 18th December, 1978 but the same was vacated on 5th February, 1979. Even though the third respondent was given time up to 28th March, 1980, by G.O.Rt. No. 2770, Home (Cinemas), Department, dt. 25th July, 1978, the third respondent was not able to complete the construction due to various difficulties, such as obtaining iron and cement permits. Hence the third respondent again prayed for extension of time. Even at this time, the appellant filed objections stating that the State Government has no power to grant extension under S. 11 of the Act. Not content with that the appellant also filed W.P. 3110 of 1980 for a writ of prohibition prohibiting the first respondent from in any manner considering the application of the third respondent seeking extension of time granted in the no-objection certificate, dt. 23rd March, 1975 issued by the second respondent. Mohan, J., after observing that the petition filed by the appellant herein before the Government objecting to the prayer for the grant of time to the third respondent will be considered on its merits and suitable orders will be passed as expeditiously as possible, dismissed the writ petition at the admission stage itself.
The appellant herein filed objections before the Government on the strength of the order passed in W.P. 3110 of 1980. The first respondent without giving any opportunity to the appellant, passed the Government Order impugned in the present writ proceeding.
Mohan, J., after observing that nowhere the prior order contemplates heaving of the appellant that it is entirely in the discretion of the Government to grant extension under S. 11 of the Act and that such extension cannot be questioned, dismissed the writ petition.
Before us, Mr. Govind Swaminathan and Mr. Sivam, the learned counsel appearing for the appellant put forth three contentions. The learned counsel submitted that the Government has no power to grant under S. 11 of the Act any extension of time to the time granted in the no-objection certificate, that the condition imposed in G.O. Rt. No. 2770, dated 25th July, 1978 had not been fulfilled by the third respondent and as such the Government has no power to extend the time further by the impugned order, nor has the Government power to review its order, dated 25th July, 1978 and that the appellant has not been given an opportunity on his objection petition to put forth his contention before the Government granted exemption under S. 11 of the Act.
Mr. Pattabhiraman, the learned counsel appearing for the third respondent submitted that the Government has ample power under S. 11 of the Act, to grant exemption, and that that power cannot be questioned by way of writ petition and that no notice is necessary to be given to the appellant before such exemption is granted. Mr. Pattabhiraman further submitted that the appellant is not a ''person aggrieved'' since he has also got a no-objection certificate for constructing a permanent cinema theatre and that the impugned order is only an administrative under which cannot be questioned by way of a Writ petition. Finally, the learned counsel submitted that as per S. 79-A of the Act, which deals with a semi-permanent theatre, the third respondent has to be considered to be a ''class'' by himself and hence the appellant who has got a no-objection certificate to put up a permanent cinema theatre cannot question the order in relation to the third respondent, since he is not a ''person aggrieved''. The learned counsel further submitted that the policy and intention of the Legislature is to have as many semi-permanent cinema theatres as possible to cater to the needs of the public and therefore, the contention as if the Government has no powers under S. 11 to grant exemption and thereby allow the third respondent to complete the construction of the semi-permanent cinema theatre, cannot be sustained.
The basis on which Mr. Govind Swaminathan attacked the extension of time granted to the third respondent for completing the semi-permanent cinema theatre is that Form B, which is the Form for granting a no-objection certificate specifically states that the certificate is valid only for a period of three years. It is conceded by both parties that as per the Act, the provisions in regard to permanent cinema theatres will equally apply to semi-permanent cinema theatres. S. 11, according to the learned counsel, can give exemption in relation only to the provisions of the Act or the Rules made thereunder. The impugned order, and order dated 25th July, 1978 according to the learned counsel, extend the time granted in Form B, no objection certificate. The learned counsel further submitted that G.O. Rt. 2770, dated 25th July, 1978 clearly states that no extension of the period of exemption will be granted on any account and that the third respondent will have to apply afresh for a no-objection certificate, if he failed to complete the construction of the semi-permanent cinema theatre within the period of two years from which date exemption was granted in paragraph 1 of that Government Order. The learned counsel submitted that therefore, the order which is with reference to a specific condition of. G.O. Rt.2770, dated 25th July, 1978 is beyond the powers of the Government and that S. 11 cannot be invoked to its aid.
The fallacy in the argument is that the learned counsel proceeds as if the exemption is in respect of a provision in the Form B no-objection certificate. S. 11 does not contemplate any exemption in respect of the provisions in Form B. If we go through G.O. Rt. No. 2770, dated 25th July, 1978, it is clear that the Government has exempted the site in in S. No. 183/1, of Viralimalai village, Kulathur taluk, Pudukottai District, from the condition of no-objection certificate in form B. This means that in respect of the site belonging to the third respondent there is no need for a no-objection certificate for constructing a semi-permanent cinema theatre.
R.36,(1) of the Rules made under the Act reads as follows--
After consideration of the application with reference to the matters specified in S. 5(1) of the Act, and the objections of the local authority or the police, the licensing authority shall grant a no-objection certificate in Form B or may refuse to grant it within one month after the receipt of the remarks of the local authority and the police, or within a fortnight of the receipt of a further report, where such a report has to be obtained. A copy of the order shall be communicated to the applicant and to the persons, if any, who have filed objections before the licensing authority.
The abovesaid rule lays down the procedure for granting a no objection certificate. The grant of no-objection certificate is a condition precedent for erecting a cinema theatre and ultimately the party must apply for licence. It is this rule that was exempted by the Government in G.O.Rt. No. 2770, dated 25th July, 1978 and G.O.Rt. No. 2714, dated, 18th July, 1980. This aspect of the understanding is made clear by the impugned G.O. which reads as follows--
In exercise of the powers conferred by S. 11 of the Tamil Nadu Cinemas (Regulation) Act, 1955 (Tamil Nadu Act IX of 1955 the Governor of Tamil Nadu hereby exempts the place in S. No, 183/1 of Viralimalai village, Kulathur taluk, Pudukottai District from the condition of no objection certificate in B annexed to the Tamil Nadu Cinemas (Regulation) Rules, 1957, for one year from 29th March, 1980 to 28th March, 1981, to enable Thiru P. Karuppiah to complete the construction of the semi-permanent cinema theatre and to obtain a C Form licence to run it.
Thus it is clear that the Government, by its order granted complete exemption for the site in question belonging to the third respondent in relation to obtaining a no objection certificate. The obtaining of a no objection certificate is a prerequisite for getting the licence. There is absolutely no difficulty in stating that as per S. 11 of the Act, which reads as follows--
The Government may, by order in writing, exempt, subject to such conditions, and restrictions as they may impose any cinematograph exhibition or class of cinematograph exhibitions or any place a cinematograph exhibition is given from any of the provisions of this Act or of any rules made thereunder.
the State Government has power to grant exemption in relation to the rules framed under the Act. Simply because the previous Government Order, dated 25th July, 1978, specified certain limitations in putting up construction is does not mean that the Government''s power under S. 11 is restricted owing to the conditions imposed in the G.O. referred, to above. The power under S. 11 is a continuing power and does not get itself exhausted with the passing of a single order in respect of an individual. The order impugned is an independent order and that has been passed in exercise of the powers conferred under S. 11 of the Act.
From the order passed in G.O.Rt No. 2770, Home, dated 25th July, 1978, it is clear that the Government has exempted the site in S. No. 183/1 of Viralimalai village, Kulathur taluk, Pudukottai District, from the condition of no objection certificate in Form B. No doubt in the said order it is stated that the semi-permanent theatre construction must be completed within a period of two years from which exemption has been granted and that no extension of the period of exemption will be granted on any account. It has been further stated in that Government Order that the third respondent will have to apply afresh for a no objection certificate. Whatever may be the conditions in the first Government Order referred to above, the powers of the Government under S. 11 of the Act to grant exemption cannot be restricted by such conditions. The said condition will not also give any right in favour of any party other than the third respondent. Hence the appellant cannot question about fulfilment of the condition imposed in the G.O. No. 2770, dated 25th July, 1978. As we have observed already, the power under S. 11 does not get exhausted with the passing of a single order by the Government, and it is a continuing power, and rightly the Government by their order in G.O.Rt. No. 2714, Home (Cinema) Department, dated 18th July, 1980, exempted the place in S. No. 183/1 in Viralimalai village, Kulathur taluk, Pudukottai district, from condition of no objection certificate in Form B for one year from 29th March, 1980 to 28th March, 1981, exercising the powers under S. 11 of the Act. In that Order it has also been stated that the third respondent should complete the construction of the semi-permanent cinema theatre and obtain a C Form licence to run it. It is this order that is being questioned in the writ petition filed by the appellant. The exemption is for getting no objection certificate since it is necessary under the Act and the rules made thereunder for a person to obtain ''no objection certificate'' before constructing a theatre on the proposed site. It is only this condition that a person has to fulfil under the Act and the rules, the Government have exempted--which, in our opinion, is within the powers of the Government under S. 11. The argument as if the condition imposed in the certificate in Form B was extended by such exemption cannot be accepted in view of the clear and categoric exemption given by the Government in respect of the site in S. No. 183/1 of Viralimalai village, Kulathur taluk, Pudukottai district, from the condition of no objection certificate in Form B. From this, it means the Government only intends to grant exemption for getting no objection certificate in order to construct the semi-permanent cinema theatre on the proposed site.
From the abovesaid discussion, we answer the three arguments submitted by the learned counsel for the appellant by stating that the exemption was only granted for obtaining no objection certificate, which is within the powers of the Government under S. 11 of the Act, that the condition imposed in G.O., dated 25th July, 1978, is superseded by the G.O. impugned in this writ proceeding, that the power under S. 11 will not get exhausted with the grant of one exemption and it is a continuing power, and that there is no need for giving an opportunity to any third party before such grant of exemption by the Government under S. 11. It is also interesting to note in this case that the appellant himself has got a no objection certificate for constructing a permanent cinema theatre and he has completed the construction, as submitted by the learned counsel for the third respondent--the submission was not denied by the learned counsel for the appellant. Mr. Pattabhiraman, the learned counsel appearing for the third respondent, rightly, submitted that while exercising powers under S. 11, it is not necessary for the Government to hear any third party. The learned counsel submitted the decision in Shanmugham v. Arumugham 72 L.W. 235 wherein a Bench of our Court has held that there is no duty cast on the Collector to fix a date to consider the several representations made on behalf of and against the several applicants, and that under the Act there is no provision for the publication of the applications for no objection certificates, and no opportunity is given to other applicants to make representations. In our view, this decision will apply on all fours against the argument advanced by the learned counsel for the appellant to the effect that opportunity should have been given to him before granting the exemption.
The learned counsel for the third respondent further stated that as per S. 79.A the Government has ample power to grant permit for construction of semi-permanent cinema theatre and grant licence for the same and hence the appellant has no right to question the power exercised under S. 79-A of the Act. We do not think it is necessary for us to go into this aspect.
In Shanmugham Chettiar v. Somasundaram 1970-2-M.L.J. 245 = 83 L.W. 440 a Bench of our High Court has upheld the constitutionality of enacting S. 11 and observed that the enactment of such a section has not vitiated the power, but only has vitiated the act exercised, which can be easily set aside by the court on grounds of mala fides.
Mr. Sivam, the learned counsel appearing for the appellant, brought to our notice the decision in Ratnam v. Krishnan and others W.Ps. 893 and 961 of 1961, wherein Jagadisan, J., has categorically held that the language of S. 11 is quite comprehensive and wide to enable the Government to grant exemption in respect of a place or site attempted or proposed to be used for exhibition of cinematographic films. The learned Judge has further held that the powers under S. 11 can be exercised only in consonance with the object of the enactment which as set forth in the preamble is to provide for the regulation of exhibitions by means of cinematograph in the State of Madras. Mr. Sivam, learned counsel appearing for the appellant, to his support drew our attention to the observation of Jagadisan, J., in that judgment to the effect that the licensing authority should not do anything prejudicial to a party behind his back and thereby deny him arty reasonable opportunity to object to what has been done without his knowledge and without notice to him, and that S. 11 cannot be invoked and used as a weapon by an applicant for licence to stab his adversary in the dark. Finally, the learned Judge, in that judgment has quashed the G.O. granting exemption only on the technical ground that the Government failed to bring to bear on the question of exemption their independent discretion taking into account the object and purpose of the Act. We do not think, the said judgment in any way helps the appellant. On the other hand, the said judgment amply reiterates about the wide powers of the Government under S. 11 to grant exemption. Thus, from the foregoing discussion, we are convinced that the Government has exercised its power bona fide under S. 11 of the Act in the case on hand and that the order, impugned, is within the powers of the Government. The writ appeal is therefore, dismissed with costs of the third respondent. Counsel''s fee Rs. 250.