IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/04/2004
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
WRIT PETITION NO.11365 OF 2003
and
WPMP.NO.14258 OF 2003
Arun Kumar,
S/o. Muniappa
Parnter Sri Munjunatha Talkis,
Bye-pass Road, Hozur. .. Petitioner
-Vs-
1. District Collector,
Dharmapuri.
2. Special Commissioner and
Commissioner of Town and
Country Planning, Anna Salai,
Chennai 600 002.
3. Deputy Secretary to Govt.
Home/Cinema Department,
Fort St. George,
Chennai 600 009. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr.T.R. Rajagopalan
Senior Counsel for
Mr.R. Subramanian
For Respondents : Mrs. Thenmozhi Shivaperumal
Addl. Govt. Pleader
:J U D G M E N T
The substantive prayer in the writ petition is to issue writ of
certiorarifed mandamus for quashing the proceedings Rco.3/02/c2 dated
27.3.2003 and directing the first respondent to issue C Form licence to the
petitioner under the Tamil Nadu Cinemas (Regulation) Act, 1955, read with
Tamil Nadu Cinema (Regulation) Rules, 1957.
2. Petitioner is the Managing Partner of Sri Manjunatha Talkis. An
application has been filed on behalf of the petitioner before the first
respondent for location of permanent cinema theatre. Initially, the first
respondent issued No Objection Certificate for a period of three years for a
semi-permanent theatre. However, subsequently NOC was granted for permanent
theatre and the building plan had been accordingly approved. The petitioner,
however, had not completed the building within the stipulated period.
Subsequently on 4.1.1995, the petitioner filed a representation before the
Collector indicating that substantial portion of the building has been
constructed and a fresh NOC may be issued. However, at that stage, the
Collector refused to grant NOC on the footing that the petitioner should have
sought for extension of period as per the previous NOC. The matter was taken
to the appellate authority, who by order dated 13.2.1997 observed that NOC
must be deemed to have been issued as no order had been passed by the
Collector within the stipulated period of six months. Accordingly, the order
of the Collector was set aside and the Collector was directed to reconsider
the matter. Thereafter the Collector issued NOC and approved the plan by
order dated 29.4.1999. Thereafter on the basis of fresh plan, a fresh
application has been filed and the Collector by proceedings dated 15.5.2001
approved the plan and instructed the petitioner to complete the construction
by 28.4.2002. The petitioner after completion of the construction, intimated
the Collector by letter dated 2.1.2002 regarding such completion and sought
for issuance of C Form licence. Along with the application, the petitioner
had enclosed other certificates as required. At that stage, by letter dated
29.4.2002, the Collector directed the petitioner to obtain approval from the
Town and Country Planning authorities. In course of time the Member Secretary
of the Town and Country Planning intimated that no permission can be granted
as the building had already been completed without obtaining the required
permission. There was further correspondence between the Collector and the
Member Secretary of the Town and Country planning regarding requirement of
such permission and ultimately the Collector had written to the Joint
Commissioner as well as to the Government recommending that since construction
of the building had been initiated long back and building had been completed,
exemption may be granted. The Collector received the communication from the
Government refusing to accede to the request of the Collector. Thereafter the
Collector communicated to the petitioner that no permission can be given,
giving rise to the filing of the present writ petition.
3. The contention of the petitioner is to the effect that at the time
when the petitioner had initially applied for grant of permission, the
provisions of the Town and Country Planning Act were not attracted and only
because of the subsequent amendment, the provisions of the Town and Country
Planning Act were attracted to the application for grant of permission for the
construction of the building for the purpose of exhibiting cinema. It is
further contended that the Member Secretary of the Town and Country Planing
has refused to give permission merely on the basis that the building had
already been completed. However, no substantial objection has been raised to
the construction of the building or to the plan, which had been duly approved
by the Collector.
4. A counter affidavit has been filed on behalf of the first
respondent indicating various developments from time to time. It has been
further indicated that in view of the correspondence between the Collector and
the Government and other authorities, no permission could be granted.
5. Section 4 of the Tamil Nadu Cinemas (Regulation) Act, 1955
provides that the District Collector is the Licensing authority to grant
licence under the Act. Section 5 provides that licensing authority while
considering the question as to whether licence should be granted or not,
should have regard to various factors indicated in Section 5 (1) clauses (a)
to (f). Section 5(1)(c) relates to the suitability of the place where the
cinematograph exhibition is proposed to be given. Section 5(2) provides that
the licensing authority shall not grant licence unless it is satisfied that
the Rules made under the Act have been substantially complied with. Section
5-A empowers the licensing authority to permit construction and reconstruction
of buildings, installation of machinery, etc. for cinematograph exhibitions
and sub-Section (1) provides that any person who intends to use any site for
constructing a building for exhibition of cinematograph film, or to use any
site for constructing a building for exhibition of such film or to construct
or reconstruct any building or to install any machinery at any such place, is
required to make an application to the licensing authority for permission
together with various particulars as may be prescribed. Such sub-Section
specifically provides that any provision contained in the various enactments
specified shall not apply to any application made under Section 5-A. As per
clause (vii), as it stood originally, the Town and Country Planning Act is one
such excluded provision which apparently had no applicability to any
application for grant of permission under Section 5-A. Such provision had
continued to remain in force. However, by Tamil Nadu Act 11 of 1994, clause
(vii) of Section 5-A(1) of the Tamil Nadu Cinemas (Regulation) Act, 1955 stood
deleted. In other words, after such deletion, the provisions of Town and
Country Planning Act would be applicable even in respect of application under
Section 5 of the Tamil Nadu Cinemas (Regulation) Act, 1955.
6. In the present case, however, the application had been initially
filed in the year 1979 and permission had been granted in the year 19 82 and
the building plan had been approved in the year 1983. Subsequently, after
completion of substantial portion of the building, fresh application had been
filed, but the Collector had rejected such application on the ground that
extension of time should have been sought for. Thereafter on the basis of the
direction of the appellate authority, the Collector issued No Objection
Certificate. Keeping in view the manner in which the matter had been dealt
with from time to time, in the peculiar facts and circumstances, it must be
taken that in fact the grant of subsequent NOC by the Collector and approval
of the plan were in continuation of the earlier sanction. The earlier
sanction had been given at a stage when the Town and Country Planning Act was
not applicable. The subsequent Act must have been taken to be revalidation of
the approved plan and in continuation of the earlier application which had
been filed much prior to the deletion of Clause (vii) of Section 5-A(1). In
other words, even though after Tamil Nadu Act 11 of 1994 a fresh application
under the Act may attract the applicability of Town and Country Planning Act,
so far as pending applications were concerned, such Act, namely the Town and
Country Planning Act would not be applicable.
7. Judging the matter in the aforesaid context, it is obvious that no
approval was required from the Town and Country Planning authorities and the
Collector committed illegality in refusing to consider the question of grant
of C Form licence on the footing that permission has not been obtained under
the Town and Country Planning Act.
8. Alternative contention of the petitioner to the effect that even
assuming that the Town and Country Planning Act is applicable, the authorities
under the said Act had refused to grant permission on mechanical grounds
appears to be justified. It is apparent from the materials on record that the
authorities under the Town and Country Planning had refused to accord
permission merely on the footing that the building had been completed. The
building had been completed on the basis of the plan approved by the Collector
from time to time. The authorities under the Town and Country Planning did
not point out any substantial objection to the suitability of the site or any
other relevant aspect. Merely because the building had been completed should
not have been a ground to refuse such permission. As a matter of fact, the
Collector had recommended to all the authorities that compliance with the Town
and Country Planning Act may not be insisted upon and necessary exemption may
be granted.
9. In the present case, since I have held that the Town and Country
Planning Act had no application to the facts and circumstances of the case, it
is however unnecessary to delve further on this aspect.
10. For the aforesaid reasons, the order passed by the Collector
dated 27.3.2003 is quashed and the Collector is directed to reconsider the
matter regarding issuance of C Form licence. The matter should be
considered afresh, after giving opportunity of hearing to the petitioner,
within a period of two months from the date of receipt of the order. The
Collector may also consider the question of issuance of temporary licence in
E Form.
11. The writ petition is accordingly allowed, subject to the
directions indicated above. Consequently, WPMP.No.14258 of 2003 is closed.
Index : Yes
Internet: Yes
dpk
To
1. District Collector,
Dharmapuri.
2. Special Commissioner and
Commissioner of Town and
Country Planning, Anna Salai,
Chennai 600 002.
3. Deputy Secretary to Govt.
Home/Cinema Department,
Fort St. George,
Chennai 600 009.