R. VENKATACHALAM CHETTY Vs. THE BOARD OF REVENUE BY THE COMMISSIONER OF LAND REVENUE, COMMERCIAL TAXES AND PROHIBITION AND ANR.

JUDGEMENT

(1.) THE disputes which have given rise to this Writ Petition centre round the grant of a 'No objection Certificate' to run a touring cinema in the village of Olagadam, which is a minor Panchayat in the Coimbatore District. The Petitioner Venkatachalam Chetty made an application to the Collector for the grant of such a certificate in respect of a site which bore S.F. No. 726 in the village. This application was preferred on 1st September, 1958. The Collector complied with the request of the applicant and granted the certificate after making the necessary enquiries and after satisfying himself that the requisite formalities had been complied with. Besides the petitioner one Subramaniam had also made an application for the grant to himself of a "No objection certificate" in respect of S.F. No. 695 in the same village. This application also had been received in the office of the Collector on 1st September, 1958. This application of Subramaniam was pending before the Collector when Venkatachalam's application was granted. As a consequence of the allowance of this last mentioned application Subramaniam's application was dismissed because there was no scope for the grant of licence to two touring cinemas to run within that village and besides two sites chosen by the parties were within the prohibited distance of each other. Subramaniam preferred an appeal to the Board of Revenue from the rejection of his application which was open to him under the Rules. In his memorandum of appeal to the Board, Subramaniam not merely challenged the validity of the refusal of the licence to himself but also naturally attacked the propriety of the grant of the 'No objection Certificate' to Venkatachalam. The Board issued notice to Venkatachalam and after considering the representations made by him allowed the appeal and remanded the two applications to the Collector for fresh disposal of both together in accordance with law. This order of the Board has become final and it is on the basis of this order that further proceedings before the Collector took place. I might also mention that the validity of this order cannot even be impugned even if it were so open. In accordance with this order of remand of the Board of Revenue, the Collector considered both the applications together and by his order dated 4th March, 1959, he granted a 'No objection Certificate' to Venkatachalam and as a necessary consequence the application of Subramaniam was rejected for the reason that the site selected by the latter was within four furlongs of the site selected by Venkatachalam. Subramaniam who was naturally dissatisfied with this order took the matter again in appeal to the Board of Revenue and the Board allowed his appeal by their order dated 16th June, 1959 and it is the validity of this last order that is impugned in this writ petition under Article 226 of the Constitution.

(2.) BEFORE adverting to the points raised by the learned Counsel for the petitioner it would be convenient to set out the main ground on which the Collector preferred Venkatachalam to Subramaniam for the issue of ' No objection Certificate.' The Superintendent of Police, Coimbatore, the Tahsildar and the Revenue Divisional Officer had expressed their opinion that the sites chosen by both the applicants were unobjectionable from the traffic and other points of view. Both the applications had been received in the Collector's Office on the same day, namely 1st September, 1958. But Venkatachalam was preferred for the reason that he had complied with all the requirements of the Rules at an earlier date. The Collector pointed out that Subramaniam's application when it was filed was defective, that it was returned for rectification of the defects and that it conformed to all the requirements of the Rules only on 17th September, 1958, so that he treated the application of Venkatachalam as having a claim to priority by reason of its being of an earlier date. Another reason adduced by the Collector related to the opinion of the Panchayat which had to be taken into consideration under the last portion of Section 5 (I) of the Madras Act XIX of 1955. Rule 35 of the Madras Cinema (Regulation) Rules, 1957, provides, to quote the relevant paragraph, 35(2). A copy of the application... shall be sent to the local authority which shall "forward it within one month from the date of receipt of the application from the applicant to the licensing authority with its remarks recording its objections, if any, to the site and to the installation of machinery. There is a Note to this rule which runs thus: On receipt of the application from the applicant, the licensing authority shall ensure from the local authority and the police that they have received copies of the application and ascertain the dates of their receipt to avoid non -receipt or delay in receipt of the copies by the authorities concerned. If no reply is received within the time prescribed in Sub -rules (2) and (3) it shall be presumed by the licensing authority that there is no objection.

(3.) THE application of Venkatachalarn was sent to the concerned panchayat on 1st September, 1958 or thereabout. No reply, was however, received from the panchayat in respect of this application until 3rd November, 1958 when the panchayat passed a resolution stating that it could not recommend the grant of a 'No objection Certificate ' to Venkatachalam. The reason for this refusal was stated to be that it had already recommended the grant of "No objection Certificate" to Subramaniam. Subramaniam himself had submitted his application to the Panchayat even before he filed it before the Collector arid on 13th September, 1958, the President of the Panchayat recommended the grant of ' No objection Certificate ' on the strength of a resolution passed by the panchayat on 20th August, 1958. The Collector held that the objection of the panchayat to the grant of ' No objection Certificate ' to Venkatachalam should be disregarded because it had not been received within the period of one month as provided for in Rule 35 and as regards the grant of ' No objection Certificate ' to Subramaniam he held that as the resolution of the panchayat was passed even before the application was filed before him it was ineffective.