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  • Bakthavatsalam, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner challenged a Government order that rejected his revision petition and granted a "No Objection Certificate" (NOC) to the fourth respondent to locate a touring cinema in S. Nos. 513/1 (Part), 513/2 (Part) and 517 (Part) of Avaniapuram Village, Madurai South Taluk.

Procedural history: The fourth respondent had applied to the third respondent (Collector) for an NOC to locate a touring cinema; that application was initially rejected. On appeal to the second respondent, the Collector's order was set aside and the second respondent granted the NOC. The petitioner preferred a revision to the Government, which was rejected; this writ petition challenges that Government order.

Substantive facts and petitioner contentions: The petitioner, who alleges he is the licensee of an existing touring cinema in Thirupparankundram, contended in his affidavit that the site preferred by the fourth respondent is very near his theatre and is unsuitable for a cinema. He alleged the site is not connected by a public road nor abutting a public thoroughfare as required by Rule 101 of the Tamil Nadu Cinema (Regulation) Rules, and that the site does not satisfy Rule 101(2) and is not suitable within the meaning of Section 5(1) of the Tamil Nadu Cinemas (Regulation) Act, 1955. The petitioner argued that the authorities failed to consider the question of "adequacy" (i.e., whether another theatre was necessary) before granting the NOC.

Legal Issues Presented

  1. Whether the petitioner, as the owner/licensee of an existing touring cinema, can be treated as a person "aggrieved" or as having locus standi to challenge the grant of a No Objection Certificate to a rival cinema operator.
  2. Whether the order granting the No Objection Certificate is liable to be set aside on the ground that the authorities did not consider the question of adequacy (necessity of another theatre) and that the chosen site violates Rule 101(2) of the Tamil Nadu Cinema (Regulation) Rules and Section 5(1) of the Tamil Nadu Cinemas (Regulation) Act, 1955.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner asserted he is the licensee of an existing touring cinema near the proposed site and that the proposed site is too near his theatre and thus unsuitable.
  • He alleged the proposed site lacks connection to a public road and lacks road frontage on a public thoroughfare as required by Rule 101 and Rule 101(2).
  • He contended that the authorities (appellate and revisional) failed to consider the question of "adequacy" — whether another cinema is necessary in the locality — and that such consideration is a relevant statutory factor before granting an NOC.
  • Learned counsel for the petitioner submitted that the statute and rules permit objections and an appeal, and therefore the petitioner has locus standi to maintain the writ petition.

Respondents / Appellate Authority (as reflected in the opinion)

  • The appellate authority considered the petitioner's objections and found there was an approved layout road which could be used by the cinema-going public to reach the proposed site; the layout road was held to be a public road.
  • The appellate authority recorded that providing three lamp posts along the layout road (as undertaken by the fourth respondent) would suffice to provide lighting for the public using the road.
  • The appellate authority also noted the Collector had leased 4 cents of land in S. No. 518 to the fourth respondent for three years to enable construction of a culvert over a channel to provide access to the public road from the proposed site.
  • The Government affirmed the appellate authority's view and rejected the petitioner's revision.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
M.L. Krishna Murthy v. The District Revenue Officer, Vellore, N.A. District, 1989 TLNJ 200 : AIR 1990 Mad 87 Full Bench view that the owner of an existing theatre cannot be said to be an "aggrieved person" for purposes of challenging grant of permission to a rival. The court relied on this Full Bench decision (and the author's prior ruling in W.P. No. 11270 of 1987) to hold that the petitioner cannot be regarded as an aggrieved person and therefore is not entitled to maintain the writ petition.
J.M. Desai v. Roshan Kumar, (1976) 1 SCC 671 : AIR 1976 SC 578 Principle that statutory provisions do not confer a substantive justiciable right on a rival in the cinema trade; proprietor of a cinema does not have a legal right infringed by grant of NOC to a rival; competition causing pecuniary harm is damnum sine injuria. The court applied the Supreme Court's reasoning to reject the petitioner's contention that pecuniary loss or competition establishes locus standi; the decision supported the conclusion that an existing theatre owner is not a person "aggrieved."
Nagar Rice & Flour Mills v. N.T. Gowda, (1970) 1 SCC 575 : AIR 1971 SC 246 Principle that an existing business owner (rice mill) has no locus standi under Article 226 to challenge the setting up of a new competing establishment even if statutory contraventions are alleged, because no vested right is infringed. The court cited this decision to reinforce that even assuming violations of rules, the petitioner still could not be said to be an aggrieved person as no legal right of his was infringed by the grant of the NOC to the rival.

Court's Reasoning and Analysis

The court began by identifying the principal legal question as whether the petitioner — an owner/licensee of an existing touring cinema — is an "aggrieved person" with locus standi to challenge the grant of an NOC to a rival. The court referred to its earlier decision (W.P. No. 11270 of 1987) and to a Full Bench decision (M.L. Krishna Murthy) holding that an owner of an existing theatre cannot be said to be an aggrieved person in such circumstances.

The court then analysed binding Supreme Court authority. In J.M. Desai v. Roshan Kumar the Supreme Court held that the relevant statute and rules do not create a substantive justiciable right in a rival trader; an existing cinema proprietor has no legal right which is infringed by the grant of an NOC to another. The court quoted and relied on the reasoning that commercial competition causing pecuniary loss (damnum sine injuria) is not a legal injury warranting judicial relief, because such competition is lawful and socially desirable.

The petitioner sought to distinguish J.M. Desai on the ground that the Tamil Nadu statutory scheme provides a right to object and a statutory right of appeal, but the court rejected this distinction. It held that procedural rights to object or appeal do not convert a rival trader's commercial interest into a substantive legal right that is injuriously affected by the grant of an NOC. The court relied as well on Nagar Rice & Flour Mills v. N.T. Gowda to show that even where statutory contraventions were alleged, an existing business competitor had no locus standi to challenge a rival's establishment under Article 226.

Accordingly, the court concluded that the petitioner could not be treated as an aggrieved person entitled to challenge the NOC. Separately, the court considered the merits to the extent reflected in the appellate authority's findings: the appellate authority had considered the petitioner's objections, found there was an approved layout road usable by the public to reach the proposed site, accepted the proposal to erect three lamp posts for lighting, and noted that the Collector had leased 4 cents of land to enable construction of a culvert to provide access. The court accepted these findings, observed that the Government affirmed the view, and concluded that even on merits the petition cannot succeed.

Holding and Implications

Holding: Petition dismissed.

Direct consequences for the parties:

  • The Government order granting the No Objection Certificate to the fourth respondent stands affirmed.
  • The petitioner was held not to be a person "aggrieved" for the purpose of challenging the grant of the NOC; therefore the writ petition was not maintainable on that ground.
  • On the merits, the appellate authority's factual findings (approved layout road available for access, undertaking to provide lighting, and a short-term lease of land to construct access) were accepted and the petition failed on merits as well.
  • No costs were awarded against the petitioner (the opinion states "No costs").

Broader implications: The opinion relies on existing precedent to reaffirm that an existing theatre owner does not, merely by reason of being a competitor, have locus standi to challenge the grant of an NOC to a rival. The opinion does not purport to set a new legal precedent beyond applying and following the cited authorities.

Show full summary ...

    L. Sundararajan v. State Of Tamil Nadu And Others

    1. The petitioner challenges an order passed by the Government rejecting his revision petition and granting a “No Objection Certificate” to the fourth respondent to locate a touring cinema in S. No. 513/1 (Part), 513/2 (part) and 517 (Part) of Avania-puram Village, Madurai South Taluk.

    2. Originally the fourth respondent applied to third respondent for the grant of a ‘No Objection Certificate’ to locate a touring cinema in S. Nos. 513/1 (Part), 513/2 (Part) and 517 (Part) of Avaniapuram Village, Madurai South Taluk. That application was rejected. On appeal to the second respondent, the order of the third respondent (Collector) was set aside and the second respondent granted the ‘No Objection Certificate’ in favour of the fourth respondent. Against that, the petitioner preferred a revision to the Government which has been rejected.

    3. The petitioner alleges in the affidavit filed in support of the writ petition that he is the licensee of an existing touring cinema in Thirupparankundram and the site preferred by the fourth respondent for locating a touring cinema is very near the petitioner's theatre and is totally unfit for locating a cinema theatre. He also alleges that the site chosen by the fourth respondent is not connected by any public road and is not abutting a public thoroughfare as required by Rules 101 of the Cinema (Regulation) Rules. It is alleged that the orders of the first and the second respondents granting ‘No Objection Certificate to the fourth respondent are liable to be set aside solely on the ground that they have not considered the question of adequacy which was projected by the petitioner. The petitioner alleges that the question of adequacy is one of the relevant considerations which should be considered before granting the ‘No Objection Certificate’. The petitioner further alleges that the site chosen by the fourth respondent does not satisfy the requirements of Rule 101(2) of the Tamil Nadu Cinema (Regulation) Rules. According to the petitioner, apart from the fact that there is no public road leading to the site in question, the site also does not have a road frontage on the public thoroughfare upon which the site abuts. The further allegation made in the affidavit is that the site chosen by the fourth respondent is not suitable for cinema exhibition within the meaning of Section 5(1) of the Tamil Nadu Cinemas (Regulation) Act, 1955.

    4. Mr. R. Muthukumaraswamy, learned counsel for the petitioner, contends that the Government Order in G.O Rt. No. 650 Home (Cinemas-B) Department, dated 27-2-1991 which is impugned in this writ petition is liable to be set aside on the ground that before granting the ‘No Objection Certificate’ in favour of the fourth respondent, the respondents have not considered the aspect of adequacy. The learned counsel further states that the petitioner is an aggrieved person since he has got a right of appeal and revision under the Tamil Nadu Cinemas (Regulation) Act, 1955 and rules itself apart from the right to file objections. He further states that the grant of the ‘No Objection Certificate’ to the fourth respondent is in violation of the rules apart from the fact that the question of adequacy has not been considered by the appellate and the revisional authorities.

    5. The question whether the petitioner as the owner of an existing touring cinema can be said to be an aggrieved person by the grant of a ‘No Objection Certificate’ in favour of the fourth respondent has to be decided.

    6. On this question, I have taken the view while disposing of W.P No. 11270 of 1987 by my order dated 9-4-1990. relying on the decision of the Full Bench of this Court in M.L Krishna Murthy v. The District Revenue Officer, Vellore, N.A District, 1989 TLNJ 200 : AIR 1990 Mad 87, that the owner of an existing theatre cannot be said to be an aggrieved person. Though this order of mine has been taken on appeal in W.A No. 813 of 1990 (Marippan P. v. The State of Tamil Nadu, 1990 W.L.R 339) the Division Bench, without deciding that issue, vacated all the findings on that issue. In the view I have taken earlier in W.P No. 11270 of 1987 order dated 9-4-1990. I am not inclined to entertain this writ petition by differing from my previous ruling that the owner of an existing cinema theatre cannot be said to be an aggrieved person.

    7. In J.M Desai v. Roshan Kumar, (1976) 1 SCC 671 : AIR 1976 SC 578 the Supreme Court had an occasion to consider the powers of a High Court under Article 226 of the Constitution especially with regard to the issue of a writ of certiorari in relation to the location of a cinema theatre. In that case, the Bombay Cinemas Regulation Act, 1953 and the Bombay Cinema Rules, 1954 were under consideration. The Supreme Court held that the Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option, in common with the rest of the public, to lodge an objection in response to the notice published under R. 4. The Supreme Court further held that the proprietor of a Cinema theatre holding a licence for exhibiting Cinematograph films has no legal right under the statutory provisions or under the general law which can be said to have been subjected to or threatened with injury as a result of the grant of ‘No Objection Certificate’ to the rival trader.

    8. Mr. Muthukumaraswamy, learned counsel appearing for the petitioner, submits that the above decision of the Supreme Court is distinguishable on the ground that the Tamil Nadu Cinema (Regulation) Act and the Rules enable the persons like the petitioner can file objections to the grant of ‘No Objection Certificate’ and a right of appeal is also given to them under the statute. As such, he states, the petitioner has got a locus standi to maintain this writ petition. I am not able to agree with this contention.

    9. Though the Tamil Nadu Cinemas (Regulation) Act and the rules made thereunder might give a right to object to the grant of ‘No Objection Certificate’, such right, in my view, cannot infringe the-right of the fourth respondent to locate a theatre, especially in the light of the right given under Art. 19(1)(g) of the Constitution to carry on a trade or business subject to reasonable restrictions imposed by law. The objection of the petitioner here seems to be on the ground that another theatre is not necessary in the locality. This aspect has been considered by the Supreme Court in the decision referred to above and after referring to the averments made in para 7 of the writ petition in that case, the Supreme Court observed as follows (at pages (587 & 588) of AIR):

    “Thus, in substance, the appellant's stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity, Juridically, harm of this description is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law. (Salmond on Jurisprudence 12th edn. by Fitzgerald p. 357 para 85). The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large.”

    10. After observing so, the Supreme Court held that an existing theatre owner cannot be said to be a person aggrieved’ and had no locus standi to challenge the grant of the ‘No Objection Certificate’. The Supreme Court has taken note of the earlier view of the Supreme Court in Nagar Rice and Flour Mills v. N.T Gowda, (1970) 1 SCC 575 : AIR 1971 SC 246 that an existing rice mill owner has no locus standi to challenge under Art. 226, the setting up of a new rice-mill by another even if such setting up is in contravention of S. 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed.

    11. As such, even assuming that there is a violation of the rules in the grant of the No Objection Certificate in favour of the fourth respondent herein, as contended by the learned counsel for the petitioner, even then, in view of the decisions of the Supreme Court in Nagar Rice and Flour Mills v. N.T Gowda, (1970) 1 SCC 575 : AIR 1971 SC 246 and J.M Desai v. Roshan Kumar, (1976) 1 SCC 671 : AIR 1976 SC 578, the petitioner herein cannot be said to be an aggrieved person. As such, the distinction sought to be made by the learned counsel for the petitioner is, in my view, without any substance. Still I hold that the dicta laid down by the Full Bench of this Court in M.L Krishnamurthy v. The District Revenue Officer, Vellore, N.A District, 1989 TLNJ 200 : AIR 1990 Mad 87 covers this case and the petitioner cannot be said to be an aggrieved person.

    12. Apart from, that even on merits I think the petitioner has no case’: The appellate Authority has considered all the objections of the petitioner. In fact, the Appellate Authority has held that there is a lay-out road which was duly approved by the Madurai Corporation and that the said road could be used by the cinema going public as a public road to reach the proposed site of the fourth respondent. The Appellate Authority has taken note of the fact that the approved layout road being a public road, no one can have any right to prevent the use of such road by members of the public including the members of the cinema going public. The Appellate Authority has also taken note of the fact that it would suffice if three lamp posts are er-rected along the lay-out road as undertaken by the fourth respondent in order to provide lighting facilities for the benefit of the cinema going public using the said road. The Appellate Authority has also found that the Collector of Madurai has leased out an extent of 4 cents of land in S. No. 518 to the fourth respondent for three years to enable him to build a culvert over the channel to provide access to the public road from the proposed site. As such, even on merits, the petition has to fail. This view has been affirmed by the Government. Accordingly, the writ petition is dismissed. No costs.

    13. Petition dismissed.

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    Comments

    L. Sundararajan v. State Of Tamil Nadu And Others
    (Mar 8, 1991)