REENA SARMA Vs. DISTRICT MAGISTRATE, KAMRUP AND ANOTHER

JUDGEMENT

(1.) The petitioner approached the District Magistrate, Kamrup, who is the Licensing Authority under the Assam Cinemas (Regulation) Act, 1953 (hereinafter, the Act) for obtaining a "No objection" certificate to construct a permanent cinema house at Maligoan. This was on 1.8.79. Before that, the petitioners had applied to the Commissioner, Gauhati Municipal Corporation seeking his sanction for the aforesaid construction. That permission came to be accorded on 11.4.80; and thereafter a 'No-objection certificate, was also granted by the District Magistrate on 4.6.80. It may be stated that under Rule 4(II) of the Assam Cinema (Regulation) Rules, 1960, hereinafter the Rules, the 'No-objection' certificate, can be granted by the Licensing Authority only after the Executive Engineer had finally approved the plans, and the State Government had given its prior approval. It is the case of the petitioner, which has not been denied, that in the present case as well the 'No-objection' certificate has been issued after the State Government had given its prior approval which was following a detailed enquiry into the matter. The certificate is required by the Rules to be given in Form A which states that the certificate shall be valid for a period of one year from the date of issue; and "if within this period the proposed cinema house is not constructed, a fresh no objection certificate should be applied for." The petitioner put in such an application on 8th March, 81 as the period of the earlier certificate was going to expire on 3.6.81. By the petition praying for extension, one year's more time was sought for, i.e. extension was prayed upto 4.6.82. The District Magistrate however refused to grant extension or fresh certificate because he felt that if any licence were to be granted to the petitioner, the same shall be violative of Rule 6(2) of the Rules. This view was taken because from the reports submitted by the Executive Engineer as well as by the Sub-Deputy Collector and the L.R. staff it had appeared to him "that there is a Maszid within the radius of one furlong and the Secretary of the said Maligoan Maszid committee objected to the construction and grant of a licence." This order was passed on 6.6.81 and the petitioner obtained the Rule on 26.6.81. Though this Court had desired to hear the matter in 1981 itself, somehow or other the petition could be finally heard only on 21st and 22nd April/83.

(2.) As the prayer of the petitioner was to grant extension till 4.6.82, the learned Senior Govt. Advocate contends that the petition has become infructous, and we may not enter into the merits of the grievences put forward by the petitioner. We do not however think that the contention is sound inasmuch as the prayer for extension upto 4.6.82 had been made because Form A has somehow prescribed a period of one year for the grant of such a certificate. It may be that if the construction would not have been completed within 4.6.82, the petitioner might have sought for further extension. It may also be that if extension was granted as prayed for, the construction would have been over by 4.6.82 and the petitioner would have become entitled to apply for a licence. In any view of the matter, the reason assigned for refusal to grant the 'No-objection' certificate has to be gone into as the same may again stand in the way of the petitioner if she were to ask for further extension of the period of the certificate. In such a situation, the expiry of the earlier period cannot be regarded as enough to send back the petitioner empty banded. Reference may be made in this connection to Bhola Singh Vs. State of Bihar, AIR 1982 Pat. 412 which case dealt with a direction to install an air-conditioning plant within certain period as a prerequisite for ranewal of cinema licence. A contention was advanced that as the period had expired, the petition had become infructuous. That contention was not accepted as a good ground not to enunciate the law as the threat to impose the condition of air-conditioning was there. Reliance was placed on K.N. Guruswamy Vs. State of Mysore, AIR 1954 SC 592 wherein the Supreme Court had examined the merit of the controversy though the period of the contract was expiring after a fortnight because of which no writ was issued but the position in law was clarified. It would be apposite to refer to Suresh Chandra Vs. State of U.P., AIR 1977 Allahabad 541, a Full Bench decision, where despite the Control Order having ceased to be in force, the Court did pronounce its decision on its validity to provide guidance to the State Government in case it were to issue similar Control Orders in future. In Sudhir Kumar Vs. State Transport Authority, AIR 1963 Assam-1 , a Division Bench of this Court had felt that the expiry of the period of the temporary permits did not disentitle the petitioner to a decision by the Court whether the order complained of was legal or not.

(3.) In view of the above, we do not think if we would be justified, in the facts and circumstances of the case, in not pronouncing upon the validity of the impugned order merely because the period of extension as prayed for has expired. The learned Senior Govt. Advocate raises another objection to the maintainability of the petition. According to him an appeal lay to the State Government under section 9 of the Act, and by not preferring the same the petitioner has become dis entitled to invoke the extra-ordinary power of this court under Art. 226 of the Constitution. That section has provided for appeals and reviews from "the decision of the Licensing Authority under any provision of the Act except an order passed under section 4". A reference to the provisions of the Act shows that it does not deal really with granting of 'No-objection' certificate which is in the nature of a prelude or preliminary step for obtaining of a licence under the Act, whose provisions specify who is the licensing authority, what are its powers and when can a licence be revoked etc. It would therefore appear that section 9 has not provided for any appeal from the order of the type which we are concerned. Be that as it may, there is no rule of law that where an appeal is provided for, writ jurisdiction cannot be invoked. Availability of an alternative remedy is only a matter to be taken into consideration by the writ court to decide whether it would like to exercise its discretionary power or not. Where an order is on the face of it erroneous or raises question of jurisdiction, a writ court may interfere despite provision of appeal, as stated in Champalal Vs. Commissioner of Income-Tax, AIR 1970 SC 645. Reference may also be made to Baburam Vs. Zila Parishad, AIR 1969 SC 556 which has laid down that there are two well recognised exceptions to the rule of exhaustion of statutory remedies these being (1) where the law under which the proceedings have been initiated is ultra vires; and (2) where the impugned order has been made in violation of the principles of natural justice. We do not propose to dialate on this point in view of our decision in Civil Rule No. 203/79, Birendra Kr. Bhattacharjee Vs. General Manager N.F. Railway disposed of on 11.4.80 where one of us (Singh, J.) had after noting the English and Indian decisions on the point, stated that in general ''the existence of alternative remedy is no bar to an application under Art. 226 where the order is a nullity being ex-facie without jurisdiction, arising either from jurisdictional error or error apparent on the face of the record or non-compliance with the provision of the Act or Rules and essential principles of natural justice...............". As in the present case the order was in violation of the principles of natural justice and also erroneous on the face of it, as would appear from what is being stated later, the bar of alternative remedy (even if such a remedy was available) cannot stand in the way of the petitioner.