Nagaiah vs P.A. Kaliyappan and Others

Gokulakrishnan, Offg. C.J.

The appellant herein was the third respondent in W, P. 287 of 1979 against which the present writ appeal has been preferred. The first

respondent herein filed the writ petition for the issue of a writ of certiorarified Mandamus, calling for the records in B. P. Rt. No. 5207 (L) dated

26-10-78 of the Board of Revenue and in D. Dis No. 106894 dated 10-8-1978. of the Collector of Ramanathapuram and for quashing the same

and for directing the authorities to grant a no-objection certificate to the first respondent herein in respect of S. No, 17611 and 2 of

Nilamalagiamangalam village, Tiruvadanai Taluk. Ramanathapuram district.

The short facts of the case are The first respondent herein applied to the Collector of Ramanathapuram at Madurai on 11th May 1978, for issue

of a no-objection certificate to him for locating a touring cinema in the site mentioned by him. The appellant filed an application before the Collector

for issue of a no-objection certificate to him to locate a touring cinema at Adulthakudi village, Tiruvadanai taluk. The two villages are adjacent to

each other. Inasmuch as the first respondent herein did not produce the registered lease deed in respect of the land of which he was a lessee and in

respect of which he wanted a no-objection certificate, the Collector returned his application. The first respondent re-presented the application with

the registered lease deed on 24th May 1978. As the law then stood, the lands in respect of which the appellant and the first respondent applied for

a no-objection certificate were within prohibited distance. Hence the Collector of Ramanathapuram, granted a no-objection certificate to the

appellant herein, holding that the appellant''s application was prior in Point of time, since the first respondent''s application filed on 11th May 1978

was defective for want of production of the registered lease deed and the subsequent filing of a proper application by him was only on 24th May

1978. Aggrieved by the order of the Collector, the first respondent herein preferred an appeal to the Board of Revenue challenging the grant of a

no-objection certificate in favour of the appellant herein. Another appeal was also filed by the first respondent against the rejection of his

application for grant of a no-objection certificate. The Board of Revenue, following the reasoning given by the Collector, dismissed both the

appeals on 26-10-1978. Therefore, the first respondent filed W, P. 287 of 1979 praying for the above said reliefs.

V. Ramaswami J. while disposing of the said writ petition, observed that in a case where there is no dispute between the owner and the lessee

and where it is admitted that the applicant is in possession in pursuance of a lease agreement between the owner and the applicant, even an,

unregistered lease deed can be relied on to show that he is in lawful possession. For this view, the learned Judge referred to R. 13 of the Tamil

Nadu Cinemas (Regulation) Rules 1957, and the said Rule requires the applicant to satisfy the licensing authority by production of documentary

evidence showing that he is in lawful possession of the site. According to the learned Judge the first respondent herein. has satisfied the Collector

with regard to his lawful possession by producing unregistered lease deed, and, so, the date of his application must be taken as 11th May 1978: if

so, the Collector has erred in taking the date of re-presentation of the application, which was on 24th May 1978, as the date of the filing of the

application by the first respondent. Due to this error committed, according to the learned Judge, the first respondent''s application was wrongly

rejected and a no-objection certificate was wrongly granted to the appellant herein. Finally, the learned Judge allowed the writ petition, setting

aside that part of the orders of the Collector and the Board refusing. to grant a no-objection certificate to the first respondent. Nevertheless, the

learned Judge recorded the consent given by the appellant herein before him and observed - ""The Collector is directed, as agreed to by the first

respondent, to cancel the licence in favour of the third respondent (appellant herein), simultaneously with the grant of the ''C'' form licence to the

petitioner (first respondent herein), so that R. 14 (2) will not be violated.

Aggrieved by the above said order of V. Ramaswami J. the third respondent in the writ petition has preferred this writ appeal. Mr. R. G. Rajan,

the learned counsel for the appellant, took us through the relevant rules and submitted that the first respondent herein had not filed a valid

application, that the date of representation of the application on 24th May 1978 alone must be taken as the date of presentation of the application

by the first respondent and that. Therefore the Collector and the Board have rightly granted a no-objection certificate in favour of the appellant,

whose application was prior in point of time than that of the first respondent herein. Mr. R. G. Rajan learned counsel, further contended that the

prohibited distance, which was originally stated in the rules as 0.805 km his been amended in 1979, as 0.402 km. and that inasmuch as the

distance, as now amended, keeps the places in respect of which the appellant and the first respondent applied for a no-objection certificate

beyond the prohibited distance. the appellant also is entitled to the grant of a no-objection certificate.

Rule 13 of the Tamil Nadu Cinemas (Regulation) Rules 1957 reads as follows-

If the applicant for the licence is the owner of the site, building and equipment, he shall produce to the licensing authority the necessary records

relating to his ownership and possession thereof. If he is not the owner. he shall. to the satisfaction of the licensing authority, produce documentary

evidence to show that he is in lawful possession of the site, building and equipment.

It is clear from the said rule that an applicant for the grant of a no-objection certificate, if he is not the owner, must satisfy the licensing authority

by production of documentary evidence, to the effect that he is in lawful possession of the site in respect of which he claims a no-objection

certificate. Hence the reasoning of the Collector and the Board that, as if the application without a registered lease deed, is defective, is patently

wrong. There was absolutely no objection by the lessor. and the subsequent registration and production of al lease deed clearly establishes that the

first respondent produced necessary documentary evidence to show that his possession of the site is lawful. Hence, the returning of the application

by the Collector was wrong. If so, the date of the application made by the first respondent must be taken as 11th May 1978. Therefore, the

application of the first respondent was definitely prior in point of time than that of the appellant herein, who presented his application only on 28th

May 1978. The learned Judge rightly held on an interpretation of Rule 13, that the application of the first respondent was prior in point of time and

on that basis allowed the writ petition. We are in complete agreement with the view of the learned Judge and hold that the application of the first

respondent was prior in point Of time and that he was entitled to a no-objection certificate in preference to. the appellant herein.

The learned Judge has given a direction to the Collector to cancel the licence in favour of the appellant herein and grant C form licence to the

first respondent herein. The learned Judge has given a further direction that both should be done simultaneously so that there may be no violation of

R. 14 (2). This direction was justifi6d before amendment of R. 14 (2). However, when the learned judge passed the order and gave the direction,

R. 14 (2) had already been amended and this amendment makes the distance between the cinema theatres building of the appellant and the

proposed building of the first respondent well within the permissible limit. The amendment to R. 14 (2) was not, unfortunately, brought to the notice

of the learned judge, while passing the order. The attempt to bring to the notice of the learned Judge the amendment to R. 14 (2) by filing a review

petition, has also failed, So the order of the learned judge directing the cancellation of the licence of the appellant on the ground that it violates R.

14 (2) cannot stand and has to be set aside as it has omitted to take note of amendment to R. 14 (2) which brings the distance of the cinema

theatre building of the appellant and the proposed cinema theatre building of the first respondent within permissible limits. The amendment to R. 14

(2) was brought about in S. R. O. A. 318/79 in 1979. The first respondent filed his application for issue of a no-objection certificate on 11th May

1978. and the appellant flied his application for no-objection certificate on 22nd May 1978. The question arises whether the subsequent

amendment to R. 14 (2) will govern the applications of the appellant and the first respondent for issue of a no-objection certificate. This aspect of

the question has not been considered by the authorities below. We. therefore, direct the Collector to consider the applicability of the amended R.

14 (2) to the applications filed by the appellant for issue of a no-objection certificate and dispose of the same afresh in accordance with law. The

writ appeal is allowed in part and dismissed in respect of other ground and there will be no order as to costs.

Appeal partly allowed.