S.P. SHANMUGHAM CHETTIAR, MANAGING DIRECTOR, JAI HIND TALKIES (PARAMAKUDI) PRIVATE LTD. Vs. P.S. SOMASUNDARAM AND ORS.
LAWS(MAD)-1970-1-32
HIGH COURT OF MADRAS
Decided on January 12,1970

S.P. Shanmugham Chettiar, Managing Director, Jai Hind Talkies (Paramakudi) Private Ltd. Appellant
VERSUS
P.S. Somasundaram And Ors. Respondents

JUDGEMENT

P.RAMAKRISHNAN, J. - (1.) THE Writ appellant, S. P. Shanmugham Chettiar, is the proprietor of Jai Hind Talkies and Ravi Theatres in Paramakudi. The first respondent, Somasundaram, wanted to put up a temporary cinema in S. No. 16, Kattuparamakudi, situated in the main bazaar street, Paramakudi Town. This site selected by him is two furlongs from Ravi Theatres and four furlongs from Jai Hind Talkies. Rule 14 (2) of the rules framed under the Madras Cinemas Regulation Act states that a touring cinema shall not be allowed within a distance of 1.606 kms. (1 mile) of the nearest permanent cinema located in the same local area or in the adjacent village, panchayat or town or in the city of Madras. 'Local area' for this purpose is defined as 'the area within the jurisdiction of a municipal council or panchayat board or revenue village.' Section 11 of the Madras Cinemas Regulation Act (Madras Act IX of 1955) gives power to the State Government, by order in writing to exempt, subject to such conditions and restrictions as they may impose, any cinematograph exhibition or class of cinematograph exhibitions, or any place where a cinematograph exhibition is given, from any of the provisions of that Act or of any of the rules made thereunder. The first respondent applied to the local government and got exemption from the rule about minimum distance granted to him by it under the power aforesaid. He did so even before he applied for the licence for his touring cinema and even before applying for a 'No objection ' certificate. But for such exemption, the rule of minimum distance under Rule 14 (2) above, would have become applicable to him and it would have automatically prevented him from locating his cinema in the site abovementioned. At this stage, Shanmugham Chettiar, proprietor of the permanent Theatre abovementioned applied to this Court under Article 226 of the Constitution for the issue of a writ of certiorari for quashing the proceedings of the second respondent, the Government of Tamil Nadu, in G.O.Ms. No. 363 dated 13th June, 1969, granting exemption to Somasundaram in respect of the site abovementioned. The learned Judge, Ramaprasada Rao, J., considered in detail the several grounds relied on by the Petitioner for his relief and negatived them. He dismissed the writ petition. Shanmugham Chettiar has filed this appeal under the Letters Patent.
(2.) THE first question urged by the learned Counsel for the petitioner turns on a very small point and can be disposed of easily. He refers to the clause "cinematograph exhibition is given" found in Section 11 of the Act. According to him, the words "is given" imply that before exemption is granted, the touring cinemas should have actually commenced exhibiting pictures in the place. According to him, the words 'is given' must be given their grammatical meaning in the present continuous tense. The learned Judge was of the opinion that there was no substance in this objection. We are inclined to agree. In our opinion, the context of Section 11 as well as practical exigencies, would make it clear that the words 'is given' must be construed only as the draftsman's device of expressing a state of affairs which will include the future as well as the present tense. The words can also be considered as conveying the meaning in the future tense, proposed 'to be given.' It is very unlikely that any cinema proprietor would start giving the exhibitions in a site which is objectionable from the point of view of Rule 14 (2), and take the risk of applying to get exemption afterwards, or face a prosecution if he fails to get such exemption. In practice, one can visualise that intending operators will apply and try to get exemption in advance of commencing actual exhibition. It is also well known that words on a statute used in the present tense can also be used to convey the meaning in the future tense, depending on the context in which they occur in the statute. Our view as stated above, is supported by a Bench of this Court in W.A. No. 269 of 1968, an unreported decision, where it is observed: For the Government to exempt under Section 11, it is not, as we read the section, a necessary condition that a cinematograph exhibition should actually be taking place, or in order to give an exemption in relation to any place, there should be at the time a cinematograph exhibition given.
(3.) THE next argument which played a greater part both before the learned Judge and also before us is that the Government in the present case did not issue a speaking order while granting the exemption. It is urged that the order is invalid because no reasons have been disclosed. The learned Judge while dealing with this objection has observed that when granting the exemption, the Government as an executive authority was exercising a quasi -judicial function. It has therefore a duty to hear objections of people who may be interested. In the present case, the Government have called for objections and they gave opportunity to affected persons including the owners and proprietors of permanent theatres in the neighbourhood' like the writ appellant, to make representations contra. It was after considering such objections, and also after taking into account relevant circumstances, including the needs of the cinema -going population of the locality, that the impugned order was passed. The connected file shows that the Government had called for reports from local revenue officials in the light of the objections, and only after considering those reports and after satisfying themselves about the real need for the grant of the exemption, that it was granted. In such circumstances, the learned Judge held that the order could not be held to be bad, notwithstanding that ex facie it did not record reasons. We are inclined to agree with the view taken by the learned Judge mentioned above. It is no doubt true that the order of the Government does not give reasons But the relevant order, G.O. Ms. No. 363, dated 13th June, 1969, which is the impugned order while setting out prior correspondence which were taken into consideration refers to the objections of Somasundaram, dated 31st January, 1969 and 22nd December, 1968 and the report of the Board of Revenue dated 23rd April 1969. This will be sufficient index to show that the Government had before them' as the relevant material for basing its decision, the report from the Board of Revenue! We called for the connected file of the Government, which was also summoned by the learned Judge and made available to the writ petitioner at the time when the writ petition was heard. The Board of Revenue, in its Report dated 23rd April 1969, has enclosed a copy of the letter of the Collector of Ramanathapuram and recommended the grant. The Collector, in his turn, sent a report on 1st April 1969, in which he had referred to the several objections from the permanent cinema proprietors to the proposed site. The crucial point that was mentioned by the Collector in his report, is that Paramakudi Municipality is in the shape of a long and narrow quadrilateral, 31/2 miles long and 4 furlongs wide. Its narrow width is due to the fact that there is a big supply channel on one side and the Vaigai river on the other side. The result of this peculiar geographical shape of the municipal area is that no suitable vacant site is available for locating cinemas within the municipal limits beyond one mile from the permanent theatres. There were other data to show that the population of the municipality, after taking into account the floating population, which visited the town because of its being a business centre, would justify the functioning of touring cinemas in addition to permanent cinemas, and that on prior occasions, two touring cinemas had given their exhibitions in the place besides the two permanent cinemas. It appears to us that these reasons which appear to be prima facie valid, were relied on by the Government when they decided to accept and act on the Board of Revenue's recommendation which in turn forwarded the Collector's recommendation giving facts and figures justifying the grant of exemption.;


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