V. Balakrishna Eradi, J.@mdashThe 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. 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.
2. 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.
3. The petitioner has brought this writ petition seeking to quash Exs. P2 and P3.
4. I have already indicated that the attitude taken by the Municipal I Council, Cannanore in disposing of the appeal petition remanded to it by the District Collector is extremely strange. Under S. 5(8) of the Kerala Cinemas (Regulation) Act, 1958, the District Collector has been constituted as the competent authority to revise any order passed by the Municipal Council in the exercise of the appellate power conferred on it under sub-s.7 of S. 5 of the said Act. Whether the decision rendered by the revisional authority is to the liking of the Council or not and irrespective of the opinion entertained by the Council about the legality or correctness of the said decision rendered by the Revisional Authority, it is the duty of the Municipal Council as a subordinate tribunal to give effect to the directions issued to it by the Revisional Authority. By the order Ex. P2, the Municipal Council has refused to carry out the directions which a superior tribunal has given to it in the exercise of its revisional power. As pointed out by the Supreme Court in The
5. In fairness to the learned advocate appearing for the Municipal Council, it must be stated that he did not attempt to support the action taken by the Municipal Council in passing the resolution Ex. P2. He rightly and very properly conceded that even if the revisional order passed by the District Collector was considered by the Council to be wrong, the Municipal Council being a subordinate and inferior tribunal could not disregard it; he rightly recognised the sanctity and importance of the basic principle that a subordinate tribunal must carry out the directions of a superior tribunal and that if this is not done, it will be the death knell of one of the fundamental principles of the rule of law. I have no hesitation in holding that the Municipal Council acted illegally and most improperly in refusing to carry out the directions issued by the District Collector and in summarily rejecting the petitioner''s appeal as per the resolution Ex. P2. However, having regard to the very fair attitude taken by the counsel appearing on behalf of the Municipal Council, I do not consider it necessary to make any order for costs as against the said party, though I would certainly have been inclined to make such a direction on the most stringent terms had an attempt been made on behalf of the Municipal Council to support the action taken by it as per Ex. P2.
6. Now, coming to the challenge made against Ex. P3, the petitioner cannot, in my view, be regarded as a person aggrieved by the said order, in the eye of law, so as to entitle him to call in question the legality of the Government sanction in granting exemption to the 5th respondent''s theatre in the exercise of the power conferred by the proviso to R. 19(a) of the Kerala Places of Public Resort Rules, 1965. An examination of the provisions of the Kerala Places of Public Resort Act discloses that the object and intendment underlying the said enactment is only to impose certain restrictions in regard to the user of enclosed places or buildings as places of public resort or entertainment with a view to ensure that the health and the safety of the public are duly safeguarded. It cannot be said that any of the provisions of the Act are intended to confer on a neighbouring owner like the petitioner any right which he does not otherwise possess under the ordinary law of this country. It may be that in case the 5th respondent wants to use the site or the building constructed therein as a place of public resort he has to comply with the conditions imposed under the Kerala Places of Public Resort Act and the Rules. If he fails to do so, he will be exposing himself to the penal provisions contained in the said statute and the Rules. The petitioner, who is the owner of the adjoining property does not get any right to object against the user by the 5th respondent of his premises as a place of public resort on the ground that the 5th respondent is using the said premises in violation of the provisions of the aforementioned enactment or the rules or that the grant of licence or permission to the 5th respondent has been effected by the competent authority otherwise than in strict conformity with the provisions of the statute. In this connection I may usefully refer to the decision of Salmon, J. in Buxton v. Minister of Housing and Local Government, (1961) I QB 278 where the learned Judge had occasion to consider a similar question. The facts of that case were briefly as follows. D. Heath & Sons Ltd. were the owners and occupiers of certain land in Cambridge Road in the county of Essex. On December 10, 1957, they applied under S. 14 of the Town and Country Planning Act, 1947, to the local ( planning authority for permission to develop their land by digging chalk. On April 1, 1957, the local planning authority refused the application. Thereafter Heath & Sons appealed against the said refusal to the Minister of Housing and Local Government under S. 16 of the Act of 1947. Under direction from the Minister an inspector appointed by him conducted a local enquiry into the refusal of permission by the local planning authority. Amongst those who appeared at the said enquiry, called evidence and were heard, were the applicant company, the local authority and four adjacent land owners whose properties were being used for agricultural and residential purposes. At the conclusion of the enquiry the inspector presented a detailed report to the Minister in which he recommended that the appeal preferred by the company should be dismissed. The inspector''s recommendation was based principally on his finding that there was a serious danger of chalk dust being deposited on the land of the applicants in quantities which would be detrimental to the user of the land. The Minister rejected the inspector''s report and allowed the appeal.
7. The Minister differed from the conclusion expressed by the Inspector I and passed an order granting consent for development of the land in question by digging chalk. Thereupon, the adjoining owners instituted proceedings challenging the legality of the said order passed by the Minister and the question naturally arose whether they could be regarded as persons aggrieved by the said order. Salmon, J. held that the adjoining owners could not be regarded as persons aggrieved in the eye of law and observed as follows:
Before the Town and Country Planning legislation any land owner was free to develop his land as he liked, provided he did not infringe the common law. No adjoining owner had any right which he could enforce in the Courts in respect of such development unless he could show that it constituted a nuisance or trespass or the like. The scheme of the Town and Country Planning legislation, in my judgment, is to restrict development for the benefit of the public at large and not to confer new rights on any individual members of the public, whether they live close to or far from the proposed development.
The above decision was subsequently followed by Paull, J. in Gregory and Another v. Gamden London Borough Council, (1966) 1 WLR 899.
The following passage from the judgment of the learned Judge occurring at page 909 of the report may usefully be extracted;
In this case, as I see it, the plaintiffs are saying: ''In effect we now have a right which we should not have had but for the passing of the Town and Country Planning Acts. Before those Acts we could have taken no steps whatsoever with regard to this building. Now we have a right. The right which is given as is to look and see if the Minister or the local planning authority has made an order which is not a good order, and, if we can find that out, then we can take steps whereby this building may possibly be stopped.
... I think that the real answer is that what is taking place on this land behind Nos. 51 and 55 is something as to which, as between the plaintiffs and the trustees, there are no legal rights whatsoever, and, there being no legal rights between those parties, the plaintiffs cannot come here and say: ''But I want to interfere by getting at you through a third party, whose permission you must get before you can build this building''.....
My conclusion, therefore, is that on this point of law the defendants are right. There is no status for the plaintiffs to come forward and claim a declaration, which is what they are doing,....
8. In
Even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, we fail to appreciate what grievance the respondents may raise against the grant of permission by the authority permitting the installation of machinery on a new site. The right to carry on business being a fundamental right under Art. 19(1)(g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under Art. 19(6)(i).
S. 8(3)(c) is merely regulatory; if it is not complied with the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Art. 19(6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed.
9. Considerable reliance was placed by the learned advocate appearing for the petitioner on the fact that one of the factors about which the licensing authority is required to be satisfied before granting the licence under S. 7(b) of the Kerala Places of Public Resort Act is that no objection arising from the situation, ownership or possession of the enclosed place or building exists. It is contended that the mention of the word "situation" in the said provision is a clear indication that the framers of the enactment intended that a '' licence is not to be issued under the Act in case any reasonable objection is raised by the adjoining owners. I do not find it possible to understand the section in the manner contended for by the petitioner. All that the section lays down, in my opinion, is that the authority has to satisfy itself that the situation of the enclosed place or building is not objectionable in the sense that it does not present any danger to the health or safety of the public for safeguarding which the provisions of the Act are intended.
10. In
Though sub clause (b), S. 7 directs them (to consider whether any objection to the grant of the licence arises from the situation or ownership, of the place or building or the purpose proposed, the main consideration with reference to which the power is to be exercised is that of public safety; and for this purpose, S. 6 empowers the licensing authority to inspect the locality, call upon the applicant to make additions or alterations in the material or arrangement of the building or in the precautions to be taken for the safety of the public to be assembled therein. Similarly, S. 9, Clause (c) provides that the authority granting a licence may revoke or suspend the same when it has reason to believe that the place or building can no longer be safely used for the purpose for which the licence was granted. I find it difficult to accept the suggestion that considerations like these approach anything like a ''judicial'' consideration of the matter, based on ''rights of parties''.
I am in respectful agreement with the above view expressed by the eminent Judge and I hold that the direction contained in S. 7 is only that the licensing authority should satisfy itself that the enclosed place or building in respect of which the licence is applied for may be safely used for public resort or entertainment and that its situation is not such as to render it unsuitable for such use.
11. In the view I have taken that the provisions of the Kerala Places of Public Resort Act do not confer any right whatever on persons like the petitioner merely because they happen to be neighbouring owners of the property in respect of which an order under the said Act has been passed either granting or refusing a licence or sanctioning the grant of an exemption, the petition has no locus standi to challenge the order Ex. P3. I do not therefore propose to go into the merits of the contentions raised by the petitioner against the said order passed by the State Government. In the result, the Original Petition is allowed to the extent of quashing Ex. P2 and there will be a direction to the Municipal Council, Cannanore to dispose of afresh the appeal petition filed by the petitioner after disclosing to the petitioner the contents of the report of the sub committee and also giving the petitioner a reasonable opportunity of being heard. In other respects, the Original Petition is dismissed. The parties will bear their respective costs.
