KANNAN Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) BY this Petition, the petitioner has challenged the order dated 13.9.1994, passed by the District Magistrate, Shimoga, whereby, the District Magistrate cancelled the No Objection Certificate dated 29.12.1992, taking the view that the applicant has neither commenced the construction of the cinema house within a period of 12 months from the date of the No Objection Certificate nor has applied for extension of time under Rule 28(3) of the Karnataka Cinema Regulations 1971, after having remitted a sum of Rs. 1000/- as fee to the Government under a receipt for the same.

(2.) THE facts of the case in brief are that the petitioner is the owner in possession of the land bearing Sy.No. 19/3-B-2 of Gopala Village, Shimoga District measuring 1877.75 sq. meters and he made the application to the District Magistrate for the issue of a No Objection Certificate under the Karnataka Cinema (Regulation) Rules, 1971, (for short 'Rules, 1971'), to enable the petitioner to construct the cinema building. That the Licensing Authority after making all enquiries and having been satisfied with the compliance of the Rules 1971 by the petitioner, issued No Objection Certificate on 29.12.1992, vide Annexure-A to this Writ Petition. Further, according to the petitioner's case, the petitioner moved the application for the approval of the building plan to the Licensing Authority as required by Rule 30 of the Cinema Rules, 1971, on 16.9.1993, as per Annexure-B. That it appears the Executive Engineer, Shimoga, approved the plan subject to certain conditions and issued a letter on 18.9.1994, which is marked as Annexure-D. THE petitioner sent the electrical plan in respect of the said building to the respondent vide covering letter dated 7.8.1994. THEreafter, the matter remained pending with the authorities which had to grant approval under Chapter 5 of the Cinema Rules, as so far no orders have been passed as per Rule 32. That the petitioner could not commence the construction work without approval of the plan and issuing of licence, so, he made a representation to extend the period of the No Objection Certificate vide Annexure-F on 10.8.1994. On 3.9.1994, vide Annexure-G, the petitioner was informed that the applications submitted by the petitioner for extension of time of No Objection Certificate was rejected and the No Objection Certificate dated 29.12.1992, has been cancelled. Feeling aggrieved from that order, the petitioner has filed this Petition under Article 226 of the Constitution of India.

(3.) THE learned Govt. Advocate - Shri Devadas submitted that under the amended Rule 28(3), the petitioner should have applied for extension of time by paying a sum of Rs. 1000/- and if he did not do so, there was nothing wrong on the part of the authority in refusing to extend the time. That Rule 28(2) is to be taken litera legis and it will be entering into the field of legislation if it is taken that time consumed by authority in granting approval of building plan is to be excluded as contended by the petitioner's Counsel. I have applied my mind to the submissions made by the learned Counsel for the petitioner - Sri M.P. Eshwarappa and Sri Devadas and before I proceed further, it will be better, just and proper to refer to the provisions contained in the Karnataka Cinema (Regulation) Act and the Rules. A reading of the Preamble of the Karnataka Cinema Act, 1964 indicates that the Act has been enacted to provide for regulation of exhibition by means of cinematographs and the licensing of places in which cinematograph films are exhibited in the State of Karnataka and for other matters. Under Section 3 of the Act, it has been provided that the authority having power to grant licences under this Act shall in every District be the District Magistrate. THE Explanation in the context of Section 3 provides that the District Magistrate means, the Deputy Commissioner excercising the powers of District Magistrate or Additional District Magistrate. Section 5 of the Act deals with the licences for exhibition of cinematographs film. It is provided that Licensing Authority may refuse or grant the licence by an order communicated to the applicant giving reasons. Section 6 prescribes what are the matters to be taken into consideration by the Licensing Authority, while granting or rejecting application for grant of licence. That Sections 11 and 16 of the Act are material for purpose of the case as it is provided therein with reference to construction or reconstruction of building or use of places that it is to be done for the purpose of use as cinema theatre only after obtaining the permission of the Licensing Authority and in accordance therewith, otherwise, the same is an offence punishable. Sections 11 and 16 of the Karnataka Cinemas (Regulation) Act, 1964, read as under: 11. Construction or reconstruction of buildings or use of places for exhibition of cinematograph films only to be made after obtaining permission of licensing authority, (1) Any person, who intends - (a) to use any place for the exhibition of cinematograph films; or (b) to use any site for constructing a building thereon for the exhibition of cinematograph films; or (c) to construct or reconstruct any building for such exhibition; or (d) to instal any machinery in any place where cinematograph exhibitions are proposed to be given ; shall make an application in writing to the licensing authority for permission therefor, together with such particulars as may be prescribed. (2) No provision contained in the enactments specified in the Schedule or any other for the time being in force regulating the erection or construction of buildings, or in the rules or bye-laws made under any such enactment, or law shall apply to an application under Sub-section (1) in so far as such provision relates to any of the matters specified in the said sub-section. (3) THE licensing authority shall, thereupon, after consulting such authority or officer as may be prescribed, grant or refuse permission and the provisions of Section 6, Section 8 and Section 10 relating to licenses shall so far as may be, apply to permission under this section. 16. Penalties:- (1) If the owner or person in charge of a cinematograph uses the same or allows it to be used, or if the owner or occupier of any place permits or suffers that place to be used, in contravention of the provisions of this Act or of the rules made thereunder or of any of the conditions and restrictions upon or subject to which any licence or permission has been granted under this Act, or of any conditions or restrictions specified in an order under Section 20, or if any person contravenes the provisions of Section 11 or any other provisions of this Act or rule made thereunder, he shall, on conviction, be punished with fine which may extend to one thousand rupees or in the case of a continuing offence, with a further fine, which may extend to one hundred rupees for each day during which the offence continues. (2) Where after a prosecution for an offence under Sub-section (1) has been commenced, the licensing authority has reason to believe that the holder of the licence is again committing the offence or continues to commit it, the licensing authority may, by notice, warn the holder of the licence not to continue the offence. If the holder of the licence shall persist in committing the offence, the licensing authority may suspend the licence, pending the result of the prosecution."