R MAHADEVAPPA Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) THIS writ petition is directed against the order passed by the District Magistrate, Mysore District, Mysore, dated 10th April, 1984 (Annexure-A), and the order passed by the Divisional Commissioner, Mysore Division, Mysore, dated 21st July, 1986 (Annexure-F). By both the orders, the request made by the petitioner for extension of the 'NOC' granted on 25-10-1978 to put up a permanent cinema theatre it Ramasamudra in Chamarajanagar Town was rejected. The 'NOC to put up a permanent cinema theatre was granted by the District Magistrate, Mysore, as per Annexure-A, on 25-10-1978. The plan for the construction of the cinema theatre was approved on 30-5-1980 and the licence to construct was also granted thereafter. After the petitioner started construction of the theatre and had put up the compound and the basement, he had to face a litigation before the Civil Court filed by one R.N. Sunder in O.S. No. 167/1987 on the file of Munsiff, Chamarajanagar, and an order of injunction was granted in favour of the plaintiff. The said order of injunction was made on 23-7-1981. Pursuant to the said injunction order a notice dated 28-7-1981 was issued by the Town Municipal Council, Chamarajanagar, to stop construction forthwith. The said order of injunction was in operation against the petitioner till 26-11-1982 when it was vacated. There was no further appeal by the plaintiff against the said order. The licence issued by the Municipality for constructing the cinema theatre which had expired on 29-11-1982 was renewed thereafter. But the Municipality insisted on the petitioner obtaining the extension of the 'NOC' which was valid only for a period of 2 years from 25-10-1978. On 31-1-1984 the petitioner sought for extension of the 'NOC', setting out the reasons why the construction could not be completed within the period of 2 years prescribed under Rule 28(1) of the Karnataka Cinemas (Regulation) Rules, 1971 ('Rules'). The District Magistrate, Mysore, by his order dated 10th April, 1984 (AnnexureE), rejected the said request stating that there is no provision for further extending the validity of the 'NOC' after three years which also had come to an end on 1-6-1983. The petitioner also failed before the Divisional Commissioner, Mysore, in appeal, who upheld the order of the District Magistrate. The Divisional Commissioner observed in the course of his order that the petitioner had failed to make an application for extension before the expiry of the period irrespective of any difficulties or reasons. In this view of the matter, he rejected the application for extension of the validity of the 'NOC' and upheld the order made by the District Magistrate. These two orders are questioned by the petitioner in this writ petition. It is argued by Sri B.G. Sridharan, the learned Counsel for the petitioner that the two year time limit prescribed under Rule 28(1) should be computed from the date on which the plan was approved. That this should be the starting point for computing the period of time-limit is the decision of this Court reported in: AIR 1985 Karnataka 218, H.C Bhogegowda v District Magistrate, Mandya District, Mandya. Applying the said decision to the facts of this case, the time limit of two years should be taken from 30-5-1980, the date on which the plan was approved. In accordance with Rule 28(1), the construction should have been completed within two years from the date of commencement of the construction of the building, i.e., on or before 30-5-1982. Under the said rule, the licensing authority may extend the time-limit by one year if the applicant has valid reasons for not completing the building within the period of two years. On the facts of the present case, the injunction against the petitioner was in operation from 23-7-1981 to 26-11-1982. Tt was pleaded before the District Magistrate b the petitioner that in view of the injunction order against him, he could not proceed with the cc jstruction and complete it within the period stimulated in Rule 28(1). Unfortunately, both the District Magistrate and the Divisional Commissioner did not agree with the plea putforward by the oetitioner for extension of the 'NOC. The question that arises for consideration on these facts is: whether the petitioner is entitled to the grant of extension of the certificates? Even taking the three year period, which is the maximum permitted under Rule 28(1), the petitioner should have completed the construction on or before 30-5-1983. But one year and four months, during which the petitioner suffered an order of injunction should be excluded for purpose of granting extension. Even while there was an order of injunction against the petitioner, the authorities could not have expected the petitioner to complete the construction within the stipulated time. It is no doubt true that on a literal application of the rule, the authorities have no discretion in the matter, since no such discretion is conferred on the authorities under Rule 28(1). But the petitioner is not left without any remedy in a case like this. THIS Court had occasion to consider the cases of petitioners who had the 'NOC granted in their favour and could not complete the construction within the time stipulated, and, this Court has consistently held in a series of writ petitions in favour of the petitioner and directed the licensing Authority to grant reasonable time which the Court thought fit to grant in the circumstances of the case of each case. A few cases that cited by Sri Sridharan are these: (i) C.S. Jayakumar v District Magistrate, Mandya, W.P. No. 4765/1984, DD; 13-3-1984; (ii) M.S. Vasantha Kumar, Kolar v The District Magistrate, Kolar, W.P. No. 6446/1985, DD: 19-7-1985; and (iii) Surendra Shridhar Exhibitors, Belgaum v State of Karnatka and The District Magistrate, Belgaum, W.P. No. 23128/1983, DD: 19-12-1984. In all these writ petitions, which were disposed of by Sri KSPJ, his Lordship allowed the writ petitions applying progressive rule of construction of statute. His Lordship has discussed the scope of the rule and the difficulty which the 'NOC' holders are faced with, if no extension is granted even in fit cases on a literal application of the rule. Adopting the reasoning given by his Lordship in a series of decisions referred to above, this writ petition also deserves to be allowed on the facts stated above. In the face of the injunction order against the petitioner it was impossible for the petitioner to comply with the Rule. Therefore, in the absence of any discretion being conferred on by the licensing authority to extend the time beyond a maximum period of 3 years, this Court must come to the rescue of the petitioner in order to give him relief in the situation in which he was placed. Therefore, on the facts of the case and the injunction order which the petitioner was facing, I am of the opinion that the time limit must be extended by this Court in exercise of its power under Article 226 of the Constitution. In the result, the writ petition is allowed and the order of the District Magistrate, Mysore District, Mysore, dated 10th April, 1984 (Annexure-E), and the order of the Divisional Commissioner, Mysore Division, Mysore, dated 2lst July, 1986 (Annexure-F), are quashed. The District Magistrate, Mysore, is directed to grant extension of the 'NOC for a period of two years, as requested by Sri B.G. Sridharan, learned Counsel for the petitioner, from the date of the order to be made by the District Magistrate. The petitioner undertakes to file an appropriate application in the light of this order before the District Magistrate, Mysore, within six weeks from this day. The said application, if filed, within the time granted, maybe disposed of by the District Magistrate, expeditiously.