SHYLAJA GUNDU RAO Vs. DISTRICT MAGISTRATE KODAGU MADIKERI

JUDGEMENT

(1.) By this petition the petitioner has sought the relief of issuance of writ of certiorari quashing the impugned order bearing No. GIN. 6/81-82 dated 21-6-1986, Annexure-E to the writ petition and has further prayed for issuance of such other writ or direction as the Court deems fit.

(2.) The facts of the case in brief are that the petitioner moved an application, on 18-8-1981 to the respondent-Licencing Authority, under the Karnataka Cinemas (Regulation) Act, 1964 and the Rules framed thereunder, for the grant of No Objection Certificate to construct and to locate a sound-proof permanent cinema theatre on the land bearing Sy. Nos. 65/1, 85/1 and 85/3 of Kushalnagar Town owned by her i.e., the petitioner. According to the petitioner's case vide order dated 29-9-1982 in Form D the authorities concerned granted the 'No Objection Certificate' Annexure-A to the writ petition. This Certificate was granted under Rule 28 of Karnataka Cinemas (Regulation) Rules, 1971 framed under the Act. For some reason or other and specially for the reasons mentioned in the writ petition, the construction work could not be commenced before 29-3-1983 i.e., within a period of 12 months from the date of grant of No Objection Certificate and so the petitioner made an application for extension of time. According to the petitioner's case as well as it appears from the record produced before the Court, that the petitioner, on her moving an application for extension of time to commence the construction of theatre was granted time up to 29th of March, 1984 and it was mentioned therein that petitioner should commence the construction work by or before 29-3-1984. According to the petitioner's case, petitioner promptly commenced the construction work of the theatre on 15-3-1984.

(3.) For the present this Court is not required to take any decision on that aspect of the matter. The petitioner's further case is that on 21-1-1986 to the utter surprise of the petitioner and without issuing any notice to the petitioner and behind the back of the petitioner the District Magistrate-respondent in the writ petition straightaway passed the order impugned dated 21-1-1986 cancelling the No Objection Certificate which had been issued under Rule 28(1) of the Rules framed under the Act. Feeling aggrieved from the order dated 21-1-1986, the present petitioner has filed this petition under Article 226 of the Constitution of India seeking the reliefs as mentioned in the earlier part of the judgment. A counter has been filed on behalf of the opposite parties. In the counter affidavit it has been admitted by the opposite parties that as the work of construction could not be commenced before 29-3-1983, and the petitioner moved an application for extension of time to commence the construction, the said request of the petitioner was accepted and the time to commence the construction work was extended upto 29-3-1984. It has further averred, in the courier affidavit and as per the allegations made therein as per the case of the respondent that even after the expiry of extended period, the petitioner did not commence the work nor did she apply for extension of further time. The respondent-District Magistrate, Madikeri who in turn conducted enquiry and submitted a report on 7-11-1985 to the effect that the petitioner has not commenced the work. After considering the report of the Sub-divisional Magistrate, respondent 1 was convinced that petitioner had failed to commence the work and there being no further request for extension of time, he cancelled the "No Objection Certificate'. In paragraph 4 of the writ petition it has been specifically averred that the order impugned had been passed by the respondent straightaway cancelling the 'No Objection Certificate' without any notice to the petitioner and without his being afforded any opportunity of hearing. I find that this allegation has not been countenanced or denied by the respondent. This Court had summoned the record of Nos. CIN. 18/81-82 and CIN. 6/81-82. A perusal of the record of the authority-respondent, per se reveals that the District Magistrate, Kodagu District issued instructions to the Sub-divisional Magistrate to make inspection and enquiries regarding the matter whether the petitioner had started construction work of theatre on or before 29-3-1984, and it was directed that inspection should be made confidentially and report be submitted. It is material to note that in the letter it has been written 'please inspect the spot and enquire the matter confidentially and furnish the report'. This indicates that the enquiry and report was made without any information and notice to the petitioner. This further indicates that Sub-divisional Magistrate who made the inspection was directed to make it in such a manner that not the least information of inspection or report should be made available to the petitioner. The Sub-divisional Magistrate while (as per page 275 of the authority's record) submitted confidential report on 5-11-1985, as per page 277 and he has mentioned that "as per your instructions I have confidentially enquired about the construction". Page 278 of the record is blank and at page 279 it appears that the impugned order of cancellation of 'No Objection Certificate' had been passed and it is contained therein. The record does not show that any notice was issued to the petitioner by the Additional District Magistrate/District Magistrate who passed the order dated 21-1-1986. Thus from the failure to meet the allegations made by the petitioner in paragraph 4 of the writ petition as well as the record of the authority which had been summoned by this Court per se it stands proved and established that before the order dated 21-1-1986 had been passed by the respondent-District Magistrate, no show-cause notice was issued to the petitioner nor was the petitioner provided an opportunity of challenging the correctness of the report made by the Sub-divisional Magistrate, nor was the petitioner given any opportunity of hearing. Instead, violating all norms/rules of procedure and principles of natural justice and fairplay, the District- Magistrate passed the order cancelling the 'No Objection Certificate' wherein the petitioner had been granted approval and permission to construct a cinema theatre. Under Rule 28 that No Objection Certificate had been granted, whereunder a right had accrued to the petitioner to construct and build the cinema theatre and to run the same under law. The cancellation of such a No Objection Certificate vide order impugned dated 21-6-86 definitely in my opinion, has the tendency of affecting civil rights which had accrued under No Objection Certificate in favour of the petitioner.