C V MATHEW Vs. DIRECTOR OF MUNICIPALITIES

JUDGEMENT

(1.) The 5th respondent was permitted to construct a temporary shed for conducting a travelling cinema in S. No. 51/3 of Ward No. 18 of the Thiruvalla Municipality by the 2nd respondent, the Executive Officer of the Kuttapuzha Panchayat. The Commissioner of the Municipality, the 4th respondent, by a provisional order dated 22 12 19o5 made under S.247 (2) of the Kerala Municipalities Act, called upon the 5th respondent to demolish the construction within 7 days. The 5th respondent sent a reply dated 25 12 1965 stating that "the site S. No. 51/3 of Thiruvalla Village owned by Muthoor N. S. S. Karayogam where the temporary cinema theatre is constructed is in Ward of Kuttapuzha Panchayat" and that she is constructing the theatre with the prior sanction of the Panchayat. Thereafter the Commissioner of the Municipality issued on 3 1 1966 an order under S.247 (3) of the Kerala Municipalities Act directing the 5th respondent to demolish the unauthorised shed within 3 days. The 5th respondent submitted a petition on 5 1 1966 reiterating her former stand that the site in question is within the limits of the Kuttapuzha Panchayat and requested that the order dated 3 1 1966 may not be enforced. The 3rd respondent thereafter filed a petition before the District Collector, Alleppey, on 6 1 1966 (Ext. P-4), to stay the order for demolition of the shed issued by the Commissioner. It was stated in the petition that the Municipality has no right to order the demolition of the theatre constructed by the 5th respondent in S. No. 51/3 situate in Ward No. 1 of Kuttapuzha Panchayat. The District Collector stayed the order of the Commissioner dated 3 1 1966 till the disposal of the petition put in by the 3rd respondent. The Collector finally disposed of the petition by his order dated 30 1 1966 (Ext. P-1) upholding the action of the Commissioner and vacating the stay granted by him. Thereafter the Commissioner by order dated 3 2 1966 ordered the demolition of the shed. The 5th respondent then filed a suit and obtained an interim injunction restraining the Municipal Council from demolishing or causing the demolition of the shed. The 3rd respondent by his petition dated 7 3 1966 requested Government that orders be passed restraining the Municipal authorities from taking steps against the theatre owner. Government forwarded the petition to the 1st respondent. The 1st respondent, while forwarding a copy of this petition, directed the Commissioner to keep in abeyance all further steps taken against the theatre owner until the final orders are issued. The 3rd respondent filed another petition on 1 4 1966 before the 1st respondent requesting inter alia that the Municipality be directed not to obstruct the owner of the theatre till matters are finally settled. The 1st respondent passed an order on that petition dated 4 4 1956 (Ext. P-2). The petitioner who has constructed a permanent theatre within the jurisdiction of the Municipality has filed this petition to quash Ext. P-2 order and for restraining the 2nd respondent from issuing licence for exhibiting films in the theatre and the 5th respondent from conducting any shows in the theatre without a licence from the 4th respondent.

(2.) The question for consideration is whether the 2nd respondent could issue a licence permitting the exhibition of films in the theatre in question. Admittedly Ext. P-3 resolution passed by the Kuttapuzha Panchayat would show that the Panchayat permitted the 5th respondent to construct a travelling cinema theatre in S. No. 51/3 of Thiruvalla Village. It is contended that the Panchayat could not have authorised the construction of the theatre in the survey number and that the 2nd respondent could not have issued the licence to exhibit films in the theatre. By the notification dated 6 1 1934 and published in the Travancore Gazette dated 9 1 1934 the area comprised in the survey numbers specified in the notification is included within the Municipal limits of Thiruvalla with effect from the date of the publication of the notification. The area comprised in S. No, 51/3 is one of the areas specified in the notification. The notification was issued under S.5(3) of the Travancore Municipal Regulation.5 of 1095. If this is so it is clear that the Panchayat had no right to sanction the construction of a touring cinema theatre in the survey number.

(3.) It was argued by Mr. Subramonian Potti, appearing for the 5th respondent, that there is a genuine dispute between the Panchayat and the Municipality as regards the question whether the property on which the theatre has been allowed to be constructed is actually within the jurisdiction of the Panchayat or of the Municipality, and Government are now in seizin of the dispute, and that until Government decide the question no adjudication upon the matter should be made by this Court. It was also submitted that there is a proposal to conduct a re-survey of the properties included in S. Nos. 1 to 60 of the Thiruvalla Village, and if on re-survey it is found that the property on which the theatre is constructed is actually within the jurisdiction of the Panchayat, any order passed by this court on the basis that the property is within the jurisdiction of the Municipality would be rendered otiose. I am not inclined to accept these contentions. As matters stand there was no authority in the 2nd respondent to issue a licence for conducting cinema in the theatre constructed in S.No. 51/3. It is no doubt true that the Collector has found that a portion of the theatre is not in S. No. 51/3, but in the neighbouring survey number which is included within the area of the Panchayat. It is not the case of the 5th respondent that any permission has been granted by the Panchayat to construct a theatre in that portion of the survey number. The resolution of the Panchayat already adverted to makes it clear that the Panchayat intended the construction of the theatre only in S. No. 51/3. If that be so, it seems to be clear that the 2nd respondent intended to issue the licence for exhibiting films in the theatre permitted to be constructed by the Panchayat. I see no reason to hold that the 2nd respondent has any authority to grant the licence for exhibition of films in the theatre. I am not satisfied that there is any dispute between the local authorities in this matter because so long as the notification stands it has to be conclusively assumed that the area comprised in the survey number is within the limits of the Municipality.