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Judgment
The short question that arises in this writ petition is whether G.O. Rt.No.4004 Home (General-A) Dept., dated 20-12-1996, whereby the Government relaxed the operation of Rule 7(2)(b) of A.P. Cinemas (Regulation) Rules, 1970, (for short, ''the Rules''), in favour of the 4th respondent thus enabling construction of a touring talkies within 800 Mts., from the petitioner-temporary theatre, is illegal as being arbitrary offending Article 14 of the Constitution of India
To consider the above question, the following few facts have to be noticed : The petitioner is a temporary theatre having been in existence since 1978. The 4th respondent has been making attempts to construct another temporary theatre at a distance of less-than 800 Mts. from the petitioner-theatre. The petitioner has therefore, represented to the Respondents 2 and 3 many a time objecting for the grant of permission to the 4th respondent. On the representation made by the petitioner, the 3rd respondent directed the Executive Engineer, R&B, to measure the distance between the petitioner theatre and the proposed theatre of the 4th respondent. On such measurement, the distance was found to be only 600 Mts. For that reason the 3rd respondent did not accord any permission to the 4th respondent. While the mailer stood thus, the 1 st respondent, subsequendy, issued the impugned G.O. dated 20-12-96. relaxing the operation of Rule 7(2)(b) of the Rules in favour of the 4th respondent for construction of temporary/touring talkies in Sy.No.233/1 of Penuballi village. The 4th respondent in pursuance of the impugned G.O. has started construction of the theatre. Aggrieved by the said G.O., the petitioner approached this Court seeking writ of Mandamus to quash the G.O.
Learned Counsel for the petitioner strenuously contended that the impugned G.O. is vitiated for want of notice to the petitioner and for not containing any reasons for relaxing the Rule. Hence the action is arbitrary being violalive of Article 14 of the Constitution. In support of his contention he relied upon the decision in S. Subba Rao Vs. Puli Veeraghavaiah and Others, .
Learned Government Pleader appearing for the Respondents 1 to 3 and Shri M.V. Ramana Reddy, senior Counsel appearing for the 4th respondent, submit that Section 12 of the A.P. Cinemas (Regulation) Act, 1955 (for short ''the Act'') gives plenary power to the Government for relaxation of any provisions of the Act or any Rules made thereunder. Hence, it was not necessary for issuing any notice before exercising power u/s 12 of the Act or to give any reasons for such exercise of power. Learned senior Counsel for the 4th respondent, has however, raised a preliminary objection stating lhat Ihe petitioner has no locus standi to question the impugned G.O. His objection is lhat the pelitioner being a rival businessman is not permissible to object to the grant of permission for construction of another theatre, and lhat there was being only one theatre it was necessary in the interest of public to have one more theatre.
I am not prepared to accept the contention. Admittedly Rule 7 of the Rules places restriction for construction of theatres on the basis of population and on the basis of distance. The petitioner''s objection is on the basis of distance. It is seen from the facts thai the petitioner has already objected to the proposed construction of a theatre by the 4th respondent and the respondents, having considered his objection, shelved the proposal in 1996. However, thereafter the Government thought to grant permission relaxing the Rules. The proposed construction is at a distance of 600 Mts., and the restriction placed by Rule 7 is 800 Mis. minimum distance from one theatre to another. The petitioner''s grievance is not that anolher businessman is constructing a theatre. He has no objection to have any number of theatres in the Mandal conforming to the distance restriction. His main grievance is that if Ihe proposed theatre is located within 800 Mts., from his theatre, there will be sound disturbance - the theatres being partly open, not closed and not sound proof, the sound emanating from one theatre will be disturbing the sound lhat is corning from another theatre. Thus, the petitioner''s objection being justified and genuine, it cannot be said that the petitioner has no locus standi. The decision in Vijaya Lakshmi Touring Talkies, Vuchili, Kothapeta Taluk, E.G. District v. The Government of A.P., (Home-G.A.D.). Hyderabad (1982) 2 AWR 13 which is also a case under the Act and Rules, relied upon by the 4th respondent, is of no assistance to him. The petitioner therein complained of the construction of another theatre on the ground of population as well as on the ground of distance. On both the grounds the Court found that the complaint had no basis. A passing observation was made by the learned Judge that the petitioner therein had no locus standi. It is significant to notice that the said observation was made with reference to the objection raised on (he ground of population but it was also stated by the learned Judge that the distance between one temporary theatre and another temporary theatre can be made a ground of objection even by a temporary theatre but such objection being without reference to the permanent cinema owner. Hence, the decision, on the other hand, supports the objection raised by the petitioner herein on (he ground of distance. The decisions in the The Secretary, Regional Transport Authority, Guntur and another Vs. E. Rama Rao and Others, and Rajappa Kawati v. G. Hanumantha Rao 1996 (1) ALD 476, relied upon by the learned Counsel for 4th respondent, do not assist him either, as they arise under Motor Vehicles Act, 1988, with reference to grant of permit to run stage carriages. The M.V. Act, 1988 removed all the restrictions that were placed in the earlier enactments for the opening of new routes and for grant of permits. The framers of the M.V. Act thought that it was beneficial to have more number of buses to the public. Thus, the M.V. Act liberalised the grant of permits. Hence, it was held in the above decisions that the existing bus owner has no locus standi to challenge the grant of permit. Thus, the preliminary objection raised by the 4th respondent has no force. It should also be noticed that when a violation of law is brought to the notice of this Court and if such violation is prejudicial to the public interest, it is the duty of this Court exercising the judicial review jurisdiction under Article 226 of the Constitution, to compell the authorities to act in accordance with law. When permission was granted in violation of the distance restriction and which, in my view, is prejudicial to public interest, this Court will not hesitate to entertain the writ petition.
It is not disputed that the petitioner has been running his theatre since 1978 in the village and the distance between his theatre and the proposed theatre of the 4th respondent is less than 800 Mts. It is evident from the counter affidavit filed by the Respondents 1 to 3, that as reported by the Executive Engineer, R&B, the distance was only 600 Mts. Undoubtedly, as per Rule 7(2)(b) of the Rules, the minimum distance that should be maintained between two temporary theatres in 800 Mts. Rule 7(5) also reiterates the same restriction with regard to distance. Rule 7 of the Rules reads as follows:
"Rule 7(1) Subject to sub-rule (5) of this Rules the number of cinema buildings allowed to function in any place on the basis of the population of such place shall be specified below-
(2) Subject to sub-rule (5) of this Rule the location of cinema buildings in terms of distance from each other or from any other building shall be as specified below:
(a) No restriction in regard to distance between one permanent cinema and another permanent cinema.
(b) 800 metres, between one temporary cinema and another temporary cinema;--
Rule (5) Licences shall not be granted for construction of permanent or semipermanent or temporary cinema buildings within a distance of 800 metres in places where temporary cinema theatres exist on the date of applications by the applicants:
Provided that in respect of temporary theatres situated within a distance of eight hundred metres of permanent of or semipermanent cinema theatres and in respect of which licences had not been renewed prior to the 27th March, 1985 on account of the restrictions contained in clause (c) of sub-rule (2) of this Rule obtaining as on the 26th March, 1985, fresh licences shall be granted by following the procedure without insisting on Ihe said restrictions.''''
Sub-rule (2) of Rule 7 mandates the minimum distance that should be maintained between two temporary theatres. Clause (b) of sub-rule (2) specifies that the distance shall be 800 Mts., between one temporary theatre and another temporary theatre. As per sub-rule (5) licences shall not be granted for construction of a temporary theatre within a distance of 800 Mts., from that of another temporary theatre, which was already existing on the date of the application. Thus, from a combined reading of sub-rules (2) and (5) of Rule 7, there is no escape from except to come to the conclusion that the authorities have no power for licensing a temporary theatre within a distance of 800 Mts., from another existing temporary theatre. This rule of maintaining a minimum distance appears to be salutory. The Legislature by using the word "shall" should be taken as having intended to keep a minimum distance of 800 Mts. between two temporary theatres. Temporary theatres are lalf-open theatres and they are not sound proof The sound from the theatre will be heard for quite a distance as they are not fully covered with walls. The inconvenience and undesirability of having two temporary theatres close by can very well be imagined. For this and other reasons rules have been so framed as to maintain the minimum distance. As seen from the facts, the Government permitted construction of Ihe proposed theatre within the prohibited distance, even though it was brought to its notice that (he distance is about 600 Mts. hi this back ground issuance of notice assumes importance. No doubt u/s 12 of the Act, the Government is empowered to grant exemption from any of the provisions of any rule. Thus under the power of relaxation of rule the prohibition of distance under Rule 7(2)(b) and 7(5) of the Rules can be waived by the Government. However, a close scrutiny of Section 12 reveals that the power of relaxation can be exercised only when the Government opines that reasonable ground exists for doing so. Thus, to come to such an opinion, the Government has to hear the affected and necessary Parties and exercise the power, giving cogent reasons. A learned single Judge of this Court in S. Subba Rao v. Puli Veera Raghavaiah (supra) considering this aspect and relying upon the decision in M.A. Rasheed and Others Vs. The State of Kerala, , held that a notice issued by the Government for relaxation of Rule 7(2)(c) was defective for it did not contain any particulars on the basis of which the proposed exemption u/s 12 of the Act was to be granted, so as lo enable the affected person to give a reply, and accordingly quashed the notice and it was made clear that it was open to the Governmenl to issue fresh notice with particulars, so that the petitioner in lhat case could give his explanation. In the instant case, admittedly, no notice has been issued before passing the impugned G.O. and the order is bereft of any reasons. Law is well settled that an administrative authority exercising judicial or quasi-judicial functions is required to record reasons for its decision, unless such requirement was dispensed with explicitly or by necessary implication. The Supreme Court in S.N. Mukherjee Vs. Union of India, a held thus:
"38. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, lhat the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the Legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.
For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.''''
The object underlying the above rule being to prevent miscarriage of justice and secure fair-play in action and particularly when Section 12 of the Act itself requires the Government to give reasons to show on what grounds the power of exemption was exercised, it is but essential for the Government to issue notice and call for objections before relaxing the requirement. However, the question whether any reasons given in the order can be scrutinised by the Court as being inadequate or mala fide, will not arise at this stage, since we are left with no reasons at all in the impugned order. Hence, the impugned order is liable to be quashed.
Learned senior Counsel for the 4th respondent, however, seriously contended that the 4th respondent has almost completed the construction of the theatre in pursuance of the impugned G.O., pending the writ petition since the impugned G.O. was not suspended, except for screening the film in the theatre, he would suffer irreparable loss and injury if he is not permitted to run the theatre. This contention is wholly untenable. The petitioner approached this Court without loss of much time, shortly after the impugned order was passed. By that time the construction was about to start. However, the 4th respondent constructed the theatre at his own risk, subject to the result of the writ petitioa Thus, the 4th respondent has to blame himself, if he suffers any loss by the construction of theatre. On the said ground the petitioner cannot be nonsuited. The Rules are framed by the Government only to be conformed to by the authorities and not to be violated with impunity.
It is open to the Government to issue notice to the petitioner and after considering the objections filed, if any, by the petitioner, action may be taken as per law, expeditiously, not beyond three months.
For the foregoing reasons, the writ petition is allowed. The impugned G.O. dated 20-12-1996 is quashed. In the circumstances, no costs.