G. Mohanan vs District Collector, Wayanad And … on 6 October, 1993

Kerala High Court
G. Mohanan vs District Collector, Wayanad And … on 6 October, 1993
Equivalent citations: AIR 1994 Ker 128
Author: J Rao
Bench: M J Rao, K Sreedharan


JUDGMENT

Jagannadha Rao, C.J.

1. This Writ Appeal is preferred by the writ petitioner in O.P. No. 6212 of 1990 against the judgment rendered therein on 19-7-1990. By that judgment, the learned single Judge dismissed the writ petition. The appellant-writ petitioner is

the owner of a cinema theatre namely ‘Vinod Talkies’ in Kenichira Panchayath, Wayanad District for the last 20 years and has a temporary licence duly renewed from time to time. The appellant-petitioner has questioned the permission granted to the third respondent by the Panchayat Board, Kenichira on 28-2-1989 for construction of a temporary cinema theatre, and for quashing the order, Ext. P2 dated 2-7-1950, of the District Collector, Wayanad dismissing the Revision Petition filed by the appellant.

2. It appears that the Special Executive Officer, Poothady Panchayat came to the conclusion that the distance between the appellant’s temporary cinema theatre and the proposed theatre of the third respondent was beyond 800 metres. However, it appears that the Village Officer, Poothady, measured the distance as the crow flies, and came to the conclusion that the distance was 712 metres which come within the prohibited distance of 800 metres as specified in Rule 28(2) of the Cinema Regulation Rules, 1988 made under the Kerala Cinemas (Regulation) Act, 1958. The Collector in Revision filed under Section 5 of the Act dismissed the Revision under Ext. P2 order dated 2-7-1990. Of course he was of the view that the difference of 88 metres between the actual and prohibited distances did not matter, as the theatre was in a hilly area, and one theatre was not visible from the other, and therefore there was no question of any sound or other problem. He therefore stated that he is permitting the theatre to be completed, and the revision was dismissed. In the meantime, the third respondent had spent more than three lakhs of rupees and completed the construction of the theatre.

3. In this Writ Appeal, the only point for consideration is whether the finding of the Special Executive Officer, Poothady Panchayat, that the theatre is located beyond 800 metres is to be accepted or not or whether the finding of the Village Officer that the distance is 712 metres is to be accepted or not, having regard to the relevant rules made under the Kerala Cinemas (Regulation) Act, 1958.

4. It is common ground before us and it is accepted by all learned counsel appearing for

the various parties that if the distance is measured along the road from the appellant’s theatre to the third respondent’s theatre, the distance is more than 800 metres, (834.85 metres) but that if the distance is measured as the crow flies, it is less than 800 metres (712 metres). The contention raised by learned counsel for the appellant is that the distance, in the light of the rules applicable to the facts, is to be measured as the crow flies, that is to say horizontally and not along the road. Learned counsel for the appellant placed reliance upon Section 10 of the Kerala Interpretation and General Clauses Act, 1125 M.E. and contended that the measurement must be made as the crow flies or in a straight line. The above section corresponds to Section 11 of the General Clauses Act, 1897. In fact, this Wynad District being formerly a part of the Malappuram District falling under the Madras State, it is to be noted that the only Act that is applicable is the Madras Act and not the Kerala Act of 1125 ME.

5. Rule 28 of the Cinemas Regulation Rules, 1988 made under the Kerala Cinemas (Regulation) Act, 1958 reads as follows :

“28. Restrictions in respect of distance between cinemas shall be as specified below :–

(1) There shall be no distance restriction between a permanent cinema and another permanent cinema whether they are situated in the jurisdiction of the same Licensing Authority or not.

(2) The distance between two temporary cinemas or one permanent cinema and a temporary cinema shall not be less than 800 metres provided that this distance restriction shall not apply to the case of-

 (a) and    (b) ..... 
 

 Provided that  
 

 (i) and     (ii) ..... 
 

(iii) the distance between a permanent cinema and a temporary cinema or between two temporary cinemas, for the purpose of restricting and regulating the number of permanent cinemas and temporary cinemas

in any place or in adjacent places shall be reckoned by the shortest distance between the nearest edges of the compounds where the theatres are constructed.”

The appellant contends that in view of the abovesaid provisions of Rule 28, the permission granted to the third respondent is illegal, inasmuch as the distance is to be measured as the crow flies in a straight line as per Section 11 of the General Clauses Act, 1897 and not along the road, and therefore, Clause (iii) of the proviso to Clause (b) of Rule 28(2) is attracted to the facts of this case.

6. On the other hand, it is contended by learned counsel for the third respondent that according to Rule 4 of the same Rules every application is to be given in writing in Form A, and therefore it is open to the respondent No. 3 to refer to the contents of Form A, and if we do so, it is clear that the distance has to be measured along the road and not horizontally or as the crow flies. He also contended that Section 11 of the General Clauses Act, 1897 is attracted only if there is no contrary intention in the relevant statutory provisions.

7. Rule 4 of the Rules, 1988 reads as follows :

“4. Every application to the licensing authority for permission under Section 6 of the Act shall be in writing in Form ‘A’ and shall be accompanied by :–

(i) structural design complete plans, elevations and sections, of the premises and of all erections or buildings thereon drawn correctly to the scale of 1 cm. to 1 metre and electrical schematic physical layout of electrical equipments and earthing arrangements including A.C. equipment and details of layout of acoustic arrangement;

(ii) A site plan on a separate sheet showing the position of such premises in relation to any adjacent premises and to the public thoroughfare upon which the site of such premises abuts, drawn to a scale of 1 cm. to 400 cm.

Explanation :– (a) The site plan should clearly indicate the surrounding roads and buildings which exist up to a distance of

100 metres of the proposed site, showing all educational Institutions, Hospitals, Temples, Mosques, Churches or other places of public worship.

(a) and (c) …..”

Form A framed for the purpose of Rule 4 is a Form specifying the details of the application for construction/reconstruction/location of permanent/temporary/cinema, which is to be addressed to the Executive Officer of the Panchayath. Apart from the various details required therein what is relevant for the present case is Clause (12) of the said Form A which reads as follows :

“12. Distance, by public road, of the proposed site, to the :

(i) nearest permanent cinema :

(ii) nearest temporary cinema :

(iii) nearest educational institution :

(iv) nearest temple or other religious institutions :”

The provision in the Madras Act, which corresponds to Section 11 of the Central General Clauses Act, 1897, and which corresponds to Section 10 of the Kerala Interpretation and General Clauses Act, 1125 ME reads as follows :

“Measurement of distances:– In the
measurement of any distance, for the purposes of any (Central Act) or Regulation
made after the commencement of this Act,
that distance shall, unless a different intention
appears, be measured in a straight line on a
horizontal plane”.

It is thus that under the General Clauses Act, 1897 the distance has to be measured in a straight line on a horizontal plane, but this method of measurement need not be followed, if the particular statute shows a contrary intention. The question before us is therefore whether any such contrary intention can be gathered from the provisions of the Kerala Cinemas (Regulation) Act and its Rules.

8. In our view Rule 4 of the Rules has to be read along with Rule 28(2) and Form A framed

under Rule 4. In fact Form A, and in particular Clause (12) of Form A, has to be read in conjunction with Rule 4. Read in that manner, it is clear that the distance between two temporary theatres or two theatres falling under Rule 28(2) will be measured only along the public road, and not as the crow flies or in a straight line on a horizontal plane. Further, the very purpose of introducing the prohibition in location of two theatres is to see that the cinema business of one theatre owner is not adversely affecting the cinema business of another theatre owner. For the aforesaid purpose, when the cinema goers have necessarily to use the public road to reach either of the theatres, the distance for the purpose of Rule 28(2) has to be measured along the public road. We are unable to accept the contention of the learned counsel for the appellant-writ petitioner that any question of sound or air pollution is relevant. The intention behind the rule is to see that the business of one theatre owner is not affected by another theatre being located within 800 metres and nothing more.

9. Learned counsel for the appellant-petitioner has placed reliance on the decision of this Court in State of Kerala v. Lukose, 1981 Ker LT 596. That is a decision of a Division Bench of this Court wherein no doubt the distance was measured in a straight line on a horizontal plane on the basis of the Kerala Act/1125 ME, but that was done for the purpose of measuring an abkari shop from the educational institutions, temples, mosques or churches under the Abkari Act, and in fact with a view to overcome the said decision, the relevant provisions of the Abkari Act have since been amended. That decision in our view is no authority for the question which has arisen under the Cinemas Regulation Rules. We are, therefore, of the view that that decision can be of no help to the petitioner.

10. Yet another contention is raised by learned counsel for the appellant that in the Rules before the 1988 Rules, there was a specific provision in regard to measurement. But we are of the view that even in the present Rules there is a specific provision in Rule 4 read with Clause (12) of Form A. Therefore the intention of the rule-making authority is clear. Learned counsel for the appellant sought to make out a new point that there is violation of Rule 9 of the Rules. No such contention was taken in the writ petition or was argued before the learned single Judge, nor has any such contention been raised in the memorandum of appeal. No new point can be permitted to be raised, when the third respondent has completed the construction of the theatre spending more than Rs. 3 lakhs.

11. Learned counsel for the third respondent has in fact brought to our notice the provisions in Section 5(2)(a) which say that permission is to be granted even if the rules are substantially complied with. We need not go into this aspect of the matter, as we are of the view that the provisions of the Rules have been fully complied with by the third respondent. Learned counsel for the Panchayath appearing before us clearly stated that as per the Panchayath measurement the distance is 834.85 metres, which is beyond 800 metres, from the appellant’s theatre. This statement is recorded.

12. For all the aforesaid reasons, there is absolutely no merit in this writ appeal, and it is accordingly dismissed.

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