(Delivered by the Chief Justice.)

These two appeals arise from the judgment of Rajagopala Aiyangar J. disposing of two writ petitions, Nos. 179 and 196 of 1956. The only question involved in these appeals is the construction of one of the rules framed under the Madras Places of Public Resort Act and its applicability to the facts of this case. The appellant and the contesting first respondent (who will be referred to as the respondent) are proprietors of two rival touring talkies. R. 18(a) of the aforesaid rules runs thus:

‘No licence shall be granted under the Act for the use of any temporary building for public resort or entertainment unless — (a) the building is provided on all its sides with an open space which in no part thereof shall be less than 50 yards in width:

Provided that the licensing authority with the sanction of the Sub Divisional Magistrate or the District Magistrate, or the Sub Divisional Magistrate or the District Magistrate if he is himself the licensing authority, may grant a licence for any such building with an open space of not less than 20 yards in width.”

Apparently both of them were anxious to obtain a licence for a touring talkie in the village of Avadathur, within the limits of the Jalakantapuram Panchayat Board in the Salem District, and both of them were not able to have any place for running a touring talkie which had an open space not less than 50 yards in width on all sides. Both of them, therefore, applied for an exemption relying upon the proviso to R. 18(a). The applications of both the appellant and the respondent were granted by the Revenue Divisional Officer, Salem. Then both of them applied to the Taluk Magistrate, for grant of a licence under S. 7 of the Act. The appellant was granted a licence. 1 he respondent filed an appeal to the Revenue Divisional Officer. But his appeal was dismissed. Thereupon the respondent filed two writ petitions, one to quash the order granting to the appellant the licence, and another to quash the order of the Revenue Divisional Officer granting the appellant exemption under R. 18(a) proviso. Both these writ petitions were heard by Rajagopala Aiyangar J. together, and the learned Judge set aside the order of the Revenue Divisional Officer granting to the appellant exemption under R. 18(a) and its proviso, and in consequence also set aside the order granting him the licence under the Act. Hence these appeals by the appellant.

The ground on which Rajagopala Aiyangar J. set aside the orders, and in particular, the order granting exemption to the appellant under R. 18(a) proviso, was that there were seven or eight cocoanut trees within 40 feet of the auditorium and the existence of trees, be the number small or great, and whatever be their distribution in the space, negatives the place around being an “open space” within R. 18(a).

We may say at the outset that there is no mention in the order of the Revenue Divisional Officer granting the exemption, of any trees in the compound of the proposed touring talkie of the appellant. This information was obtained by the learned Judge apparently from the report of the Tahsildar which was called for by the Revenue Divisional Officer on the application made by the appellant. All that the order of the Revenue Divisional Officer says is that the Tahsildar's report shows that the conditions specified for the grant of the exemption certificate under R. 18(a) of the rules framed under the Places of Public Resort Act are satisfied and that the Tahsildar has recommended the grant of the exemption. We have our doubts if in such circumstances it is open to this Court, in exercise of the power conferred on this Court by Art. 226 of the Constitution, to quash and set aside an order of an administrative tribunal like the Revenue Divisional Officer on an error which is really not apparent on the face of the order itself. It may be that in the case of speaking orders, that is, orders which contain on their very face errors which affect the jurisdiction of the tribunal, there can be interferences under Art. 226 but this is not such a case.

Be that as it may, we shall deal with the case taking into consideration the report of the Tahsildar also. The material portion of the report of the Tahsildar runs as follows:

“About 7 or 8 cocoanut trees are within 40 feet of the auditorium on the eastern side. A few cocoanut trees stand in the south about 70 feet away from the cinema shed. The existence of the trees is not in any way dangerous to the cinema shed.”

Reference may also be made to another part of the same report which might have some bearing. Dealing with the objection that there are cocoanut trees in the south and east of the cinema shed and that if there is a gust of wind, leaves etc., will fall on the cinema shed and cause nuisance to the audience, the report of the Tahsildar is:

“There is no likelihood of cocoanuts or dried leaves falling on the roof of the cinema shed.”

The report also contains the following information:

“Availability of open space round the Auditorium.

North: There is 178 feet of vacant space upto the edge of the road.

East: The vacant space ranges from 67 feet to 100 feet. Beyond that the Pankaja Rice Mill is situated to the north east of the cinema shed. There is Kambu crop in a portion beyond the vacant space.

South: There is 74 feet of vacant space. Beyond that there is Kambu crop.

West: There is vacant space for 127 feet and beyond that there are dwelling houses used by the servants of Rajagopala Chettiar.”

It is on a consideration of this report that the Revenue Divisional Officer passed an order granting an exemption to the appellant. We understand this order to mean that in the opinion of the Revenue Divisional Officer there was an open space of not less than 20 yards in width for the appellant's cinema building. In our opinion it is for the licensing authority to come to a decision on the question whether the condition laid down in the proviso is or is not satisfied in any particular case. It is for the licensing authority to decide on a consideration of the facts which are brought to its notice by the sub ordinates like the Tahsildar whether there is, or there is not an open space of not less than 20 yards in width. We do not think that it is the province of this Court to re-examine the facts and decide whether the condition is actually fulfilled, that is, whether the order of a licensing authority was correct or wrong on the facts. It may be that in a case of exceptional perversity or when mala fides is established, this Court will be inclined to interfere. But there is neither feature in this case.

Assuming that it is competent for this Court to examine the correctness of the order of the Revenue Divisional Officer, we are clearly of the view that the order was also correct on the facts. The learned Judge held that the existence of seven or eight cocoanut trees on the eastern side about forty feet from the auditorium would prevent the space being called an open space. The learned Judge relied upon the definition of the expression “open space” to be found in Chambers 20th Century Dictionary and the Oxford Dictionary. The definition according to the dictionary which he relies upon is thus stated by him:

“Now, turning to the dictionaries, one finds the words defined as a place free of buildings or trees—vide Chambers 20th Century Dictionary and the Oxford Dictionary.”

We have referred to the Oxford Shorter Dictionary which undoubtedly is the most authoritiative dictionary on the English language. The definition to which Rajagopala Aiyangar J. was evidently referring to is that given not to “open” as an adjective but to the expression “the open”. The meaning to be attached to this expression “the open” according to the dictionary is:

“(a) the part of the country not enclosed; (b) ground without building, trees etc; (c) the open water in sea or river; and (d) the open air.”

We do not think that in the context of R. 18(a) this definition is apposite.

We then find the following definition of “open” as an adjective: “Of a space: not shut in; unenclosed; unwalled, unconfined.” There are other meanings which are more or less relevant: “uncovered, unobstructed, clear.” It is only with reference to the country that the word open carries the meaning “free from wood, buildings etc.” Accepting the several meanings of the word “open”, we are clearly of opinion that the existence of 7 or 8 scattered trees within the space sixty feet wide all round would not render this entire space any the less an open space within the meaning of that expression in the proviso to R. 18(a).

In our opinion it is a question of fact whether in a particular case there is or there is not an open space of not less than 20 yards in width. It is quite possible that the existence of even one tree may render the space not an open space, as for instance, where the single tree is a huge banian tree spreading its branches and covering up several square feet, or there may be a regular grove or tope of trees all round, in which case obviously the space could not be called an open space. It is equally clear to us that the existence of say one tree at one corner of the space would not prevent the space being described as an open space. It is for the man on the spot to form a common sense opinion of the matter.

Though one cannot be quite certain because there is nowhere an express statement of the reason for this condition, it is presumably a safety measure. This is apparent from the order of the Government of Madras to which our attention was drawn by the learned Counsel for the respondent G.O No. 1634 dated 15th June 1954. In this G.O the open apace is described as a safety zone. Rajagopala Aiyangar J. considered that the purpose of this condition was that in case of any accident, commotion or fire in the auditorium there should be egress for the persons within the enclosed space. Even if this be the purpose, it is clear to us from the report of the Tahsildar that the presence of these 7 or 8 trees in one part of the compound would not prevent egress in any manner.

In the result, we hold that this Court would not be entitled to quash either the order of the Revenue Divisional Officer granting the exemption under R. 18(a) proviso, or the order of the Taluk Magistrate granting a licence to the appellant. The appeals are allowed with costs in one appeal and W.P Nos. 179 and 197 of 1956 will be dismissed. Advocate's fee Rs. 100.

V.C.S