SYED MOHAMMAD Vs. DISTRICT MAGISTRATE BANGALORE

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution, the petitioner has challenged the order dated 3-12-1979 of the District Magistrate, Bangalore Dt. Bangalore (hereinafter referred to as 'the D.C.') in Case No. MAG (2) 58/77 78 (Ex-B) rejecting his application for re-grant of licence.

(2.) On 14-2-1975, the petitioner applied to the D. M. under the, provisions of the Karnataka Cinemas (Regulation) Act, 1964 (Karnataka Act No. 23 of 1964) (hereinafter referred to as the Act) and the rules framed thereunder for grant of a No Objection Certificate (hereinafter referred to as 'the NOC') for locating a touring cinema on Sy. No. 41 of Marenahalli village, Bangalore South Taluk, owned by one Sri K. Varadharaj. As required by the Act and the Rules, the D.M. notified the substance of the said application, which was opposed by certain persons and organisations but was supported by certain persons and organisations of the locality. On a consideration of the objections and representations and the claim of the petitioner thereto the D. M. by his order dated 28-7-J975 over-ruled the objections and directed the issue of an NOC to the petitioner for locating a touring cinema on the said land in pursuance of which an NOC in Form- D was also issued to him on 29-7-1975. On the strength of the said NOC the petitioner constructed a touring cinema and applied to the D.M. for issue of a licence. On 8-10-1975, the D. M, issued a licence to the petitioner for a period of three months with a condition that he should produce a conversion certificate for utilising the land for non-agricultural purposes. Even before the issue of the said licence, the petitioner produced an authenticated certificate issued by the Tahsildar permitting the conversion of the aforesaid land to non-agricultural purposes. On the expiry of the said term specified in the said licence, the petitioner has been obtaining renewals from time to time and has been running a touring cinema on the said land and the last licence issued to him, which has given rise to this writ petition, was valid upto 8-10-1979. Before the expiry of the said licence, the petitioner applied for regrant of the licence. Even before the petitioner had applied for re-grant respondent-No. 2 who . claims to be the managing partner of a. permanent theatre called 'Swagath' situated at Jayanaga, had presented a petition before the D.M. on 28-6-1979 objecting to the re-grant of renewal of five touring talkies, one of which was that of the petitioner, which are stated to be located within 1.6 kilo metres from his threatre. In the said petition, respondent No. 2 claimed that he was entitled to object to the re-grant of the licence to the petitioner and others on the basis of an order made by a Division Bench of this court in Sree Balaji v. State of Karnataka, W.A. 256/79 dt. 19-6-79. On merits he contended that the touring cinema of the petitioner was situated within 1.6 kilometres of the permanent theatre, that the lands on which the petitioner and others were running their touring cinemas were agricultural lands and the lease of the same was prohibited by the provisions of the Karnataka Land Reforms Act. On 19-11-1979, the D.M. heard the petitioner and respondent No. 2 and posted the case to 3-12-1979 for orders, renewing the licence till that date, as an interim measure. By his order dated 3-12-1979 (Ext-B) the D.M. has rejected the application for these reasons: Rule 89 (2) of the Karnataka Cinemas (Regulation) Rules, 1971 defines a touring cinema as: - 89(2) 'touring cinema' means- (i) an outfit comprising the cinema apparatus and plant and the accesseries taken from place to place in the State of Karnataka for giving cinema exhibitions: or (ii) an outfit comprising cinema apparatus and plant taken from place to place in the State of Karnataka for conducting shows in any local theatre or hall. These definitions have an element of mobility attached to the touring cinemas But, it is general experience that touring cinemas have become as permanent as the permanent theatres which is contrary to the definition itself. Besides in the instant case there is a civil dispute about the site in question. It is not clear whether the petitioner has valid and legal possession of the site. A lease was said to have been created on 6-2-1975. It is not clear whether the same is valid even to-day. The land in question is an agricultural land bearing Sy. No. 41. Even if the lease has been continued it is to the deteriment of S. 5 of the Karnataka Land Reforms Act and cannot sustain. Considering all these facts the case for the re- grant of licence of the instant touring talkies fails and the licensing authority refuses to re-grant the licence beyond 3rd December, 1979. In the course of his order, the D.M. has not specifically considered the question whether respondent No. 2 was entitled to object, though the petitioner specifically contended that he was not entitled to object and to be heard. As the D.M. has heard respondent No. 2 as an objector and has considered his grievance and has virtually accepted his case on merits the petitioner has rightly impleaded him as a party but has e intended that he had no locus standi to object and to be heard by the

(3.) Sri H.B. Dattr, learned counsel for the petitioner at the forefront contended that in considering and deciding an application for re-grant made by a licensee of a touring cinema, invitation of objections and representations by anybody more so, by a rival cinema operator whether permanent or touring, was impermissible and, therefore, a rival cinema operator cannot object, and cannot be heard by the D.M. In support of his contention Sri Datar strongly relied on the ruling of the Supreme Court in Jasbhai MotiBhai Desai v. Roshan Kumar, Haji Bashir Ahmed,AIR 1976 SC 578.