IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.17354 of 2003 K.Ayisha Begum .. Petitioner Vs. 1. The Secretary to the Government of Tamil Nadu Home (Cinema.2) Department Fort St.George, Chennai – 9. 2. The Appellate Authority and the Additional Commissioner (Cinema) Land Administration Department Chepauk, Chennai – 600 005. 3. The District Collector – cum - Licensing Authority Tirunelveli District. 4. K.M.Sheik Mohideen 5. Madasamy 6. P.K.Abdul Hameed 7. V.P.Sheik Maideen .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the first respondent in his proceedings G.O.No.(D) 609, Home (Cinema 2) Department, dated 13.6.2003 and quash the same. For Petitioner : Mr.Abdul Saleem for M/s.Anand, Abdul and Vinodh Associates For Respondents : Mr.A.C.Manibharathi Government Advocate for respondents 1 to 3 Mr.V.Sudhakar for 4th respondent No appearance for R5 to 7 https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petition is directed against the order of the first respondent in G.O.(D) No.609, Home (Cinema.2) Department, dated 13.6.2003. 2.1. The petitioner, who is a resident of Kallidaikuruchi, has applied for permission to run a Touring Cinema Talkies at Kallidaikurichi on 16.2.1999, after fulfilling all formalities of obtaining No Objection Certificates from local Panchayat, the Assistant Commissioner of Sales Tax, and the District Superintendent of Police. It is stated that the licensing authority, viz., the third respondent, has called for objections from the public. The fourth respondent, who is the owner of another theatre by name "Minor Cinies" at Kallidaikuruchi; the fifth respondent, who is a cultivating tenant under the fourth respondent; the sixth respondent, who is the Manager of the fourth respondent's touring theatre; and the seventh respondent, who is running a tea stall in the fourth respondent's touring theatre, have made objections. 2.2. It is stated that the Tahsildar, Ambasamudram has inspected the location on 29.10.1999 and filed a report on 2.11.1999 to the effect that objections were false and recommended for issuance of No Objection Certificate. It is stated that due to subsequent objections by respondents 4 and 5 to the Sub Collector, Cheranmahadevi, the third respondent has directed him to conduct enquiry, who inspected the location on 18.9.2000 and found that there was no basis for such objection and also recommended for issuance of No Objection Certificate. 2.3. It is stated that the third respondent himself has inspected the location on 24.3.2001 along with the Tahsildar, Ambasamudram, Panchayat Chairman and Revenue Authorities and found that the objections raised by respondents 4 to 7 were unsustainable and therefore, the third respondent has issued No Objection Certificate on 4.4.2001 to locate the touring cinema at Kallidaikuruchi Vilalge in Survey No.161/1A1A. Thereafter, the third respondent has issued Form 'C' on 29.8.2001, which was renewed up to 24.4.2004. 2.4. Against the order of the third respondent dated 4.4.2001, by which the third respondent has granted No Objection Certificate for running the touring cinema by the petitioner, respondents 4 to 7 have filed appeal to the second respondent. The second respondent on 24.1.2002 cancelled the No Objection Certificate on the basis that the third respondent had found that the petitioner had not complied the requirement of Rule 103(2)(i) of the Tamil Nadu Cinemas (Regulation) Rules, 1957, (for short, "the Rules"). https://hcservices.ecourts.gov.in/hcservices/ 2.5. It was against the said order of the second respondent, the petitioner has filed revision before the first respondent, who has passed the impugned order dated 13.6.2003 rejecting the revision, based on certain report, the copy of which has not been furnished to the petitioner, to come to a conclusion that buildings exist within the prohibited distance, viz. 20.8 metres and 10.8 metres from the touring talkies and therefore, it is a violation of Rule 103(2)(i) of the Rules. 2.6. The order of the first respondent is challenged on the grounds that the first respondent has failed to note that it was due to the trade rivalry the fourth respondent has made objections and thereby instigated respondents 5 to 7, who are either cultivating tenant or manager or a person running tea stall under him, to give objections and therefore, the conduct of respondents 4 to 7 is collusive; that the third respondent himself has issued a No Objection Certificate after detailed inspection and therefore, the orders of respondents 1 and 2 are passed with total non application of mind; that there is no reason for respondents 1 and 2 to disbelieve the report of the third respondent as well as the reports of the Sub Collector, Cheranmahadevi and Tahsildar, Ambasamudram; that the subsequent construction or encroachment within the prohibited distance after issuance of Form 'C' cannot be a reason to cancel the No Objection Certificate issued to the petitioner; that the first respondent, having relied upon the report of the third respondent to the effect there is a violation of Rule 103(2)(i) of the Rules, has failed to refer to the recommendation of the third respondent; that the orders of respondents 1 and 2 are against law, illegal and violative of principles of natural justice; that the first respondent has relied upon certain irregularities which are not the subject matter of application before the third respondent at all; and that the act of respondents 1 and 2 is arbitrary. 3.1. In the counter affidavit filed by respondents 1 to 3, it is stated that the petitioner has applied for grant of No Objection Certificate on 16.2.1999 to locate a travelling cinema in S.No.161/1A of Kallidaikurichi Part 1 Village, Ambasamudram Taluk. The Panchayat President has reported that the Panchayat has no objection for the grant of No Objection Certificate to the said petitioner. The Assistant Commissioner, Commercial Taxes, has reported that there was no dues towards entertainment tax. The Superintendent of Police, Tirunelveli, in his letter dated 23.8.2000, has reported that there is no objection for the grant of No Objection Certificate on traffic point of view. 3.2. After the public was called for objection, respondents 4 to 7 have raised objection. The Tahsildar, Ambasamudram, in the https://hcservices.ecourts.gov.in/hcservices/ report dated 2.11.1999, has stated that S.No.161/1A measures 4.88 Acres and the petitioner was intending to locate travelling cinema in a portion measuring 78.79 Cents obtained by way of lease and there has been no fire risk installations or habitations within the prohibited distance and therefore, the objections raised by the objectors were not true and thereby recommended issuance of no objection certificate. 3.3. The Revenue Divisional Officer, Cheranmahadevi, in the letter dated 26.8.2000, has not recommended the grant of No Objection Certificate on the ground that there are habitations and a railway station near the site. Therefore, a further report was called for from the Revenue Divisional Officer, Cheranmahadevi, as to whether the railway station and habitations lie within the prohibited distance as contemplated under the Rules. The Revenue Divisional Officer, who inspected the site on 18.9.2000, has sent a further report on 19.9.2000 recommending the grant of No Objection Certificate stating that the habitations are at a distance of 185 metres from the proposed site; that the chicken farm lies at a distance of 73 metres; that a loom (weaving house) lies at a distance of 190 metres; that there have been no habitations within the prohibited distance of 35 metres; and that the railway station lies at a distance of 200 metres. 3.4. It was after observing all the formalities, the No Objection Certificate was granted by the third respondent on 4.4.2001. It was aggrieved by the said order, respondents 4 to 7 have filed an appeal before the second respondent/Appellate Authority on 4.5.2001 and the Appellate Authority has allowed the appeal on 24.1.2002 and set aside the order of the third respondent, observing that the licensee has not complied with the requirement of Rule 103(2)(i) of the Rules. In the meantime, the petitioner, based on the No Objection Certificate, has constructed the cinema building in the site and applied for Form 'C' license. The third respondent, on 27.8.2001, has issued Form 'C' license to the petitioner to run a travelling cinema. 3.5. Aggrieved by the order of the second respondent/Appellate Authority dated 24.1.2002, the petitioner has filed a revision before the first respondent on 3.2.2002. After filing of the revision, the spot was inspected by the Collector once again on 10.4.2003. During the inspection, the Collector has observed that a building with door No.2/143 and four shops with door No.2/143 are located on the southern side of the proposed location of the cinema theatre, adjoining the southern boundary at a distance of 24.6 metres. It was also stated by the Collector that the electricity service connections for the house was obtained on 16.5.1997 and for the shops was obtained on 29.9.1998 by the owner of the building https://hcservices.ecourts.gov.in/hcservices/ one Abdullah. Therefore, according to the District Collector, the buildings were in existence even at the time of granting of No Objection Certificate. The third respondent has reported this fact to the Government on 20.4.2003 and the first respondent has thereafter rejected the revision of the petitioner. 3.6. According to the first respondent, even as per the report of the Revenue Divisional Officer, Cheranmahadevi dated 26.8.2000, he has not recommended the grant of No Objection Certificate on the ground that there are habitations, which has been confirmed by the subsequent report of the third respondent while the revision was pending and the order of the third respondent had to be set aside on the reason that the third respondent ought to have considered about the habitation and non residential building situated within the prohibited area. Therefore, according to the first respondent, it was on the spot inspection by the third respondent when revision was pending, the existence of building in the prohibited distance was found out and hence, the petitioner was not entitled to grant of No Objection Certificate and the revision was rightly rejected for the statutory violation. 4. As submitted by the learned counsel for the petitioner, it is true that by granting no objection certificate, the rival operator of the cinema theatre does not sustain any injury and he has no locus standi to challenge the grant. That was also the view of a Division Bench of this Court in Ramanathan v. V.Balraj and others, 1998 WLR 192, wherein the Division Bench has held as follows: "17. Therefore, we are of the view that an existing Cinema theatre owner (the appellant herein) whenever there is a grant of a permit or licence in favour of another (in the instant case in favour of R1) under the provisions of the Act and the Rules made thereunder, cannot be stated to have been denied or deprived of a legal right, or sustained injury to any legally protected interest. The grant of NOC does not in any way operate against him or affect his business. He has no locus standi to challenge the grant of NOC." 5. However, it is trite law that when the statutory provision contemplates a particular restriction, the same has to be scrupulously followed. Rule 103(2) of the Rules, which is as follows: "Rule 103 (2). The building in which the travelling cinema is located shall be at a minimum distance of- (i)36.5 metres from the nearest house or other buildings; https://hcservices.ecourts.gov.in/hcservices/ (ii)1.2 metres from the nearest conductor of power lines upto the inclusive of 11 K.V. and 2 metres from the nearest conductor of power lines above 11 K.V. and inclusive of 33 K.V. 2 metres plus 0.3 metre for every additional 33 K.V. and part thereof above 33 K.V. from the fenching of the theatre. (iii)0.201 Kilometre from a temple or maidan where fireworks are displayed on festivals and special occasions or factories, workshops, etc., and where fire is used for ignition, processing etc. and sparks escape through chimney or any other outlet. (iv)100 metre away from any building or other structures where fireworks or gun powder is stored or manufactured." contemplates certain restrictive limits of maintaining minimum distance for a travelling cinema to be put up. It says that there must be a minimum distance of 36.5 metres from a travelling cinema to the nearest house or other buildings. 6. As it is seen in the impugned order of the first respondent, while revision was pending before the first respondent, the first respondent has directed the third respondent to inspect the place and file a report. It is not in dispute that the Collector has inspected the place on 10.4.2003 and during inspection he found that there is a building situated with door No.2/143 and four shops with door No.2/143 are located on the southern side of the proposed location of the cinema theatre, adjoining the southern boundary at a distance of 24.6 metres. In fact, it was found that electricity service connection was obtained for the house on 16.5.1997 and for the shops on 29.9.1998 by Abdullah, the owner of the buildings. Therefore, on fact, it is clear that these shops were available in the form of building within the prohibited distance, namely 24.6 metres, even at the time when the third respondent on the first occasion has issued No Objection Certificate on 4.4.2001. Obviously, at that time when the third respondent has inspected, he has lost sight of the same. However, the Revenue Divisional Officer, Cheranmahadevi has not recommended originally due to the above said reason, which also would go to show that the fact of existence of the building and shops within the prohibited distance is not in dispute. Even the petitioner has not chosen to dispute the same, especially when in the revisional order itself the first respondent has clearly stated about the existence of the building within the prohibited distance. 7. If that be so, on the factual matrix, when there is no dispute about the existence of a building within the prohibited distance, one cannot come to a conclusion that the decision of the first respondent is perverse simply because the fourth respondent, https://hcservices.ecourts.gov.in/hcservices/ being the rival theatre owner, has raised objection. Even though the fourth respondent has no say and he is not deemed to be affected and he has no locus standi, when on fact the third respondent has found violation of certain Rules, it cannot be said that the violation has to be condoned, simply because the rival theatre owner has raised objection. It is ultimately the finding of fact that has to prevail as long as the fact is not assailed. Therefore, on the facts of the present case, when factually it is not in dispute that within the prohibited distance there are buildings available, the grant of Form 'C' or No Objection Certificate by the third respondent originally is certainly opposed to the Rules and therefore, that was cancelled by respondents 1 and 2, which cannot be found fault with. There is absolutely no perversity or illegality in the order of the first respondent. In the result, finding no merits, this writ petition stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sasi To: 1. The Secretary to the Government of Tamil Nadu Home (Cinema.2) Department Fort St.George, Chennai – 9. 2. The Appellate Authority and the Additional Commissioner (Cinema) Land Administration Department Chepauk, Chennai – 600 005. 3. The District Collector – cum - Licensing Authority Tirunelveli District. 1 cc to Mr.V. Suthakar, Advocate, Sr. 8658 W.P.No.17354 of 2003 GR (CO) kk 17/2 https://hcservices.ecourts.gov.in/hcservices/