P. MADHAVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in this case is a registered medical practitioner who is conducting in the Temple Ward, of the Cannanore Municipality a Nursing Home by name Sharada Clinic. In the site immediately adjoining the premises of the Nursing Home the 5th respondent has put up a temporary shed with a view to make use of the same for exhibiting cinematograph shows. When the petitioner came to know about the application made by the 5th respondent to the Commissioner of the Cannanore Municipality (3rd respondent) for the grant of permission under the Kerala Cinemas (Regulation) Act, 1958, the petitioner put in representations raising objections to the grant of such permission on the ground that the establishment of a cinema theatre in the said property would constitute a serious nuisance to the patients undergoing treatment in the Nursing Home and would also be a source of nuisance and annoyance to the other residents of the area, the Temple Ward being a purely residential locality. By an order dated 4-4-1972 the 3rd respondent granted permission to the 5th respondent for the construction of the shed to house the temporary cinema overruling the objections raised by the petitioner and also by certain other persons who had filed a mass petition objecting to the grant of the 5th respondent's request. Although the petitioner preferred an appeal before the Municipal Council, Cannanore challenging the said action taken by the 3rd respondent, the appeal petition was rejected by the Municipal Council as per its proceedings dated 31-5-1972. Thereupon, the petitioner took up the matter before the District Collector, Cannanore by filing a revision petition dated 9-6-1972. That revision petition was allowed by the District Collector Cannanore (4th respondent) as per his proceedings evidenced by Ex. P1 dated 14-2-1973. The 4th respondent held that the order passed by the Municipal Council did not satisfy the requirements of a speaking order and that it was also vitiated by illegality inasmuch as adequate opportunity had not been given to the petitioner herein, who was the appellant before the Council, to know about the contents of the report of a sub committee appointed by the Appellate Committee to inspect the site and which report had been largely relied on by the Council for the purpose of rejection of the petitioner's appeal. The District Collector also held that in the circumstances of the case the petitioner ought to have been given a hearing by the Appellate Authority before the appeal was disposed of. On these findings, the order passed by the Municipal Council dismissing the appeal was set aside and the case was remanded by the District Collector to the Municipal Council for fresh disposal according to law. Thereafter, the matter was again taken up by the Municipal Council for consideration at a meeting held on 27-4-1973. Very strangely, the Council after considering the directions issued to it by the District Collector, resolved that the Kerala Cinemas (Regulation) Act does not contain any specific provision making it obligatory on the Appellate Authority to grant a hearing to the parties and since the sub committee appointed by the Council had conducted an inspection of the site and it was on the basis of its report that the Council took its decision dated 31-5-1972 to reject the petitioner's appeal. The Council was of the opinion that there was no necessity to reconsider the appeal petition as directed by the District Collector. The resolution proceeded to say that in the said view the Council decided to stand firm in its earlier decision dated 31-5-1972. Ex. P2 is a copy of the proceedings of the meeting of the Municipal Council dated 27-4-1973 containing, inter alia, the aforesaid resolution adopted by it.

(2.) In the meantime, there were certain proceedings before the Civil Court arising out of two suits, one instituted by the petitioner's wife and the other by the petitioner's brother. In the suit instituted by the petitioner's brother in the Munsiff's Court, Cannanore the learned Munsiff had originally issued an injunction restraining the Municipal Commissioner from granting permission to the 5th respondent for construction of the theatre in the plot in question. But after the respondents entered appearance and filed their objections, the ex parte order of temporary injunction was vacated. The suit instituted by the petitioner's wife is O. S. No. 12 of 1973, Sub Court, Tellicherry. In the said suit, a temporary injunction was issued restraining the 5th respondent from conducting cinema shows in the temporary building put up by him in the aforementioned property. Though the said order of temporary injunction was vacated by the District Court, Tellicherry as per the order passed by it in C. M. As. 5 and 6 of 1973, the petitioner's wife came up to this Court by filing C.R.Ps. Nos. 405 and 431 and by judgment dated 7-6-1973 the revision petitions were allowed and an interim injunction has been issued against the Cannanore Municipality restraining it from granting the licence to the 5th respondent for conducting a cinema theatre in the property and restraining also the 5th respondent I from using the premises for exhibition of cinematograph shows until the final disposal of O.S. No. 12 of 1973. A direction has also been issued by this Court for a joint trial of O. S. No. 12 of 1973 and the earlier suit O. S. No. 251 of 1972 on the file of the Munsiff's Court, Cannanore, a transfer of which has been ordered from the Munsiff's Court to the Sub Court, Tellicherry for the purpose of the joint trial.

(3.) In the meantime, the Commissioner, Cannanore Municipality appears to have addressed the State Government by a letter dated 28-2-1973 requesting that the theatre building put up by the 5th respondent may be exempted from the operation of R.19(a) of the Kerala Places of Public Resort Rules, 1965 since it does not have the requisite open space of 45 metres in width all around the building. Acting on the said letter, the Government of Kerala passed the order Ex. P3 dated 14-5-1973 granting exemption to the theatre building constructed by the 5th respondent in T. S. No. 413/IP of Ward No. 1, Block 8 of the Cannanore Municipality from the operation of the rule regarding open space laid down in R.19(a) of the Kerala Places of Public Resort Rules, 1965.