IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 14640 of 2001 Between: Dr.K.Sambasiva Rao Manging Partner, Bhaskar Delux Theatre & Complex, Guntur. ..... PETITIONER AND 1 Govt of A.P., rep by its Prl. Secretary, Home Dept., Secretariat, Hyderabad. 2 The Joint Collector, Guntur, Guntur Dist. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly on ein the nature of writ of Mandamus declaring that the Impunged Memo No.2522/Genl.A2/2000-3, dt 24-7-2000 of the R1 as illegal, null, viod, contrary to A.P., Cinema (Regualtion) Act, 1955 and unconstitutional Counsel for the Petitioner:MR.M.S.PRASAD Counsel for the Respondent No.: GP FOR HOME The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 2299 of 2002 Between: M/s.Baby Bhaskar Rep.by its Managing Partner K.Sunil Kumar,S/o.K.Sambasiva Ra A/c.Theatre, R/o.Guntur. ..... PETITIONER AND 1 The Government of A.P Rep.by its Prl.Secretary (Home) Hyderabad. 2 The Joint Collector & Licensing Authority Guntur. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ,order or direction more particularly one in the nature of Writ of Mandamus declaering the proceedings of the 1st Respondent vide G.O.Rt.No.145 Home (Gen-A) D.Dis.No.243/2001- C1 Dt.7-4-2001 as illegal,null,void.contrary to the provision Rule 11(B) of the A.P.Cinema (Regulation) Rules 1970, against principles of natural justice and unconstitutional and further direct the 2nd Respondent to grant permanent Form 'B' licence to the petitioner forthwith and further declare that the respondents are legally liable to pay damages to the petitioner for every day delay from 12-3-2001 as the authorities under Rule 11(B) of the Rules have recommended for grant of licence Counsel for the Petitioner:MR.M.S.PRASAD Counsel for the Respondent No.: GP FOR HOME The Court made the following : THE HON’BLE MS JUSTICE G.ROHINI W.P.No.14640 of 2001 & W.P.NO.2299 OF 2002 COMMON ORDER The subject matter of these two writ petitions being one and the same they are heard together and decided by this common order. W.P.No.14640 of 2001 is filed seeking a declaration that the Memo dated.24-07-2000 issued by the Government of Andhra Pradesh calling upon to show cause as to why the earlier order issued in favour of the petitioner in G.O.Rt.No.80, Home (General.A) Department, Dated.02-04- 1998 should not be cancelled as arbitrary and illegal. During the pendency of the said writ petition, the Joint Collector Guntur by order dated.07-04-2001 rejected the request of the petitioner for grant of B-Form licence on the very same grounds on which the show cause notice dated.24-07-2000 was issued. The said order dated.07-04- 2001 was subsequently confirmed on Appeal by the Government of A n d h r a pradesh vide G.O.Rt.No.145 dated.30-01-2002. Hence W.P.No.2299 of 2002 challenging the order dated.24.07.2000 as confirmed on Appeal by order dated.30.01.2002. The facts, in brief, are as under:- The petitioner constructed a theatre by name Bhaskar Deluxe Theatre at Guntur and the same is being run under the B-Form licence issued by the Joint Collector under the Andhra Pradesh Cinemas (Regulation) Act, 1955 (for short “The Act”) and the Rules made thereunder. In the year 1997 the petitioner applied for construction of a mini theatre in the second floor on the existing ground floor structure of Bhaskar Deluxe Theatre. The petitioner also applied for relaxation of Clause.3(1)(a) and (b) of Appendix. I of A.P. Cinemas (Regulation) Rules,1970 (for short “the Rules”) and having considered the same the Government of A.P. vide G.O.Rt.No.80 dated.02-04-1998 granted the relaxation in exercise of its powers conferred under Section.12 of the Act. Pursuant thereto, the Joint Collector-licensing authority granted permission to the petitioner for construction of Baby Bhaskar Mini A.C theatre in the premises of the existing Bhaskar Deluxe Theatre vide his proceedings dated.17-05-1998, followed by further proceedings dated.03.08.1998 granting 3 years time for completition of construction. Accordingly Mini Theatre was completed and thereafter the petitioner submitted an application under Rule.11(A) of the Rules for grant of licence in Form-B. While the said application was under process, the 1st respondent-Government of Andhra Pradesh issued the impugned memo dated.24-07-2000 informing the petitioner that the Commissioner of Municipal Corporation of Guntur by letter dated.23-12-1999 requested the Government to take necessary action for cancellation of G.O.Rt.No.80 dated.02.04.1998 on the ground that the cinema theatres in question were not satisfying the minimum set-back and parking requirements and accordingly calling upon the petitioner to show cause within fifteen(15) days as to why the order issued in G.O.Rt.No.80 dated.02-04-1998 should not be cancelled. Aggrieved by the same, W.P.No.14640 of 2001 is filed contending inter alia that the show cause notice dated.24-07-2000 is arbitrary, illegal apart from being without jurisdiction. Pursuant to the relaxation granted in G.O.Rt.No.80 dated.02-04-1998 since the theatre was already constructed, it is further contended that the 1st respondent is estopped from proceeding to cancel the said order. In the counter-affidavit filed on behalf of the 1st respondent it is stated that the Commissioner, Municipal Corporation of Guntur by his DO letter dated.23-12-1999 reported that the Managing partner, Bhaskar Theatre, Guntur had commenced the construction of a Mini Theatre in the premises of the existing Twin Theatre complex without leaving any setback and without providing sufficient parking space. It was also stated that the existing twin theatre complex which was located in the heart of the city was creating a lot of traffic problems and as there was also a proposal to widen the existing road, further action may be taken for cancellation of G.O.Rt.No.80 dated.02-04-1998. Accordingly the impugned show cause notice was issued and the petitioner submitted his explanation dated.11-10-2000. Pursuant thereto the Commissioner, Guntur Municipal Corporation was requested to offer his remarks. Since further enquiry is pending, the present writ petition does not deserve any consideration on merits. So far as the contention raised by the petitioner that the impugned action is without jurisdiction the respondents sought to rely upon the power of review conferred under Section.7-A of the Act. I have heard the learned counsel for the petitioner as well as the learned Government Pleader appearing for the respondents. The fact that in exercise of powers under Section 12 of the Act, the petitioner was granted relaxation from complying with Clause.3(1)(a)&(b) of the Appendix-I of the Rules vide G.O.Rt.No.80 dated.02-04-1998 and pursuant thereto the petitioner was also granted permission for construction of Baby Bhaskar Mini Theatre in the premises of the existing Bhaskar Deluxe Theatre, Guntur is not in dispute. Admittedly the construction of Mini Theatre on the second floor of the existing ground floor structure was already completed by the date of the impugned show cause notice. There can also be no dispute about the power of the Government to grant exemption under Section.12 of the Act and G.O.Rt.No.80 dt.02- 04-1998 was granted in exercise of the said power relaxing the compliance with Clause.3(1)(a)&(b) of the Appendix. I to the Rules,1970 which runs as under:- Rule.3. Open Spaces, road frontage and entrance and exit for building:- (1) the building shall be provided with:- (a) an open space of not less than ten meters in width in the front between the main building and the road to which the site of the building abuts. Provided that the licensing authority may in consultation with the Executive Engineer (Roads and Buildings) and the Town Planning authorities, require a road frontage of greater width where the site does not abut any main road but is connected to it by an approach road. (b) an open space of not less than 6 meters in width or of such greater width as may be required by the licensing authority on any two sides of the building, excluding road frontage. By virtue of the relaxation granted in G.O.Rt.No.80 the petitioner was exempted from compliance with the above requirements under Rule.3 and the construction was completed. After more than two years from the date of relaxation granted under G.O.Rt.No.80 dated.02-04-1998 the impugned show cause notice was issued proposing to cancel the relaxation granted by the 1st respondent. The contention on behalf of the petitioner that the impugned notice is without jurisdiction is refuted by the respondents by relying upon Section.7-A of the Act which provides for review. For proper appreciation of the said contention Sec.7-A of the Act may be extracted hereunder:- Section.7-A. Review:- (1) The Government may, either suo motu at any time, or on an application received from any person interested within ninety days of the passing of an order under Section.5 or Section.7 or Section 10 or Section 12 review any such order if it was passed by them under any mistake whether of fact or of law or in ignorance of any material fact: Provided that the Government shall not pass any order adversely affecting any person unless such person has had an opportunity of making a representation. (2) The Government may stay the execution of any such order pending the exercise of the powers under sub- section(1) in respect thereof. On a plain reading of the above provision, it is clear that the Government is empowered to exercise the power of review either suo motu or on an application received from any person interested. Though no limitation is prescribed for exercising the said power suo motu, if the power is exercised on an application received from any person interested, the same shall be within 90 days from the date of order sought to be reviewed. In the instant case admittedly the review proceedings under Sec.7-A of the Act were initiated on a letter addressed by the Commissioner of Municipal Corporation, Guntur stating that relaxation granted under G.O.Rt.No.80 dated.02-04-1998 was liable to be cancelled on the following grounds:- 1. The existing 2 cinema theatres itself are not satisfying the minimum set-back and parking requirements thereby causing lot of traffic congestion on main road. 2. The proposed 3rd theatre is being accommodated in the front open space of the existing cinema theatre which is highly objectionable. 3. Guntur Municipal Corporation has proposed to widen the road and the proposed 3rd cinema theatre falls in the road widening portion. Thus it is clear that the power of review under Section.7-A of the Act was not proposed to be exercised suo motu but it was only on an application. If that be so, the said power can be exercised only within a period of 90 days from 02-04-1998 i.e., the date on which the order sought to be reviewed was passed. Since admittedly the impugned show cause notice was issued on 24.07.2000 beyond the time prescribed under Section.7-A of the Act, on that ground alone the impugned notice is liable to be set aside. Moreover the power of review can be exercised only where the order sought to be reviewed was passed under mistake of fact or of law or in ignorance of any material fact. Since the impugned notice was not based on any of the said grounds, the proposal to cancel the relaxation granted under G.O.Rt.No.80 dated.02.04.1998 is liable to be declared as illegal on that ground also. It is also relevant to note that Sec.6 of the Act exempts certain provisions of Hyderabad Municipal Corporation Act,1955 for construction of the buildings for cinematograph exhibitions. Section.6 of the Act to the extent, it is relevant may be extracted hereunder:- 6. Special provisions for buildings constructed or reconstructed solely for cinematograph exhibitions:- (1) Nothing contained in the Hyderabad Municipal Corporations Act,1955 (Act II of 1956) or in the Andhra Pradesh (Andhra Area) Places of Public Resort Act,1888 (Act II of 1888) or in the Andhra Pradesh (Andhra Area) District Municipalities Act,1920 (Act V of 1920) or in the Andhra Pradesh(Andhra Area) Town Planning Act,1920 (Act VII of 1920), or in the Andhra Pradesh (Andhra Area) District Boards Act,1920 (Act XIV of 1920) or in the Andhra Pradesh (Andhra Area) Village Panchayats Act,1950 (Act X of 1950) in regard to— (a) the grant of permission for the construction or reconstruction of a building, or (b) the grant of licence for the use of any place or building for any purpose for which such licence is required under those Acts, or (c) the grant of permission to install any machinery in any place of building. Shall apply to the construction or reconstruction of, or the use of, or the installation of any machinery in any place or building to be used exclusively for the holding of cinematograph exhibitions; and in every such case, an application for licence or permission referred to in any of the Clauses (a) to (c) above shall be made to the licensing authority under this Act, in accordance with the rules made in this behalf under this Act. (2) …………………………………………………. It is clear from the above section that requirement of maintaining minimum set-backs and parking requirements is not applicable to the petitioner’s cinema theatre and therefore the alleged violation of the said requirement cannot be a ground for cancellation of G.O.Ms.No.80 dated.02-04-1998. For the aforesaid reasons I find force in the submission of the learned counsel for the petitioner that the impugned notice proposing cancellation of relaxation granted under G.O.Ms.No.80 dated.02-04-1998 is arbitrary, illegal and without jurisdiction. Accordingly the memo dated.24-07-2000 impugned in W.P.No.14640 of 2001 is hereby set aside. So far as W.P.No.2299 of 2002 is concerned, it is apparent that the petitioner’s request for grant of B-form licence was rejected by the licensing authority only on the ground that the proceedings for cancellation of relaxation granted under G.O.Rt.No.80 dated.02-04-1998 were pending before the Government. Now that the said proceedings initiated under the show cause notice dated.24-07-2000 are declared by this Court as illegal, the order of rejection dated.07-04-2001 as confirmed on Appeal by order dated.30-01-2002 are hereby set aside leaving it open to the licensing authority to pass appropriate orders afresh in accordance with law. Till such order is passed, the petitioner’s applications for temporary licenses or renewal of such licenses shall be considered and granted in accordance with law. Accordingly both the writ petitions are disposed of. No costs. --------------- G.ROHINI,J 24th March 2009 *TSNR