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K.K Subramoniam v. M.P Sreenivasan And Another
Factual and Procedural Background
The plaintiff styled himself as the manager of Prabha Talkies, a theatre exhibiting cinematograph films at Tellicherry, and stated that the proprietor of that theatre was his sister-in-law for whom he was managing the business. The first defendant is the proprietor of Lotus Talkies, another cinema exhibitor, who applied for and obtained a licence from the Tellicherry Municipality (the Municipal Commissioner being the second defendant). The plaintiff objected to the grant of the licence on several grounds, including that the distance between the two theatres was less than prescribed by the rules. The plaintiff characterised the municipal licence as illegal and void and sought a permanent injunction restraining the first defendant from exhibiting cinematograph films in his theatre.
In the trial court the first defendant successfully challenged the maintainability of the suit. The court below (a higher court) held that the suit as framed would lie and that the plaintiff was entitled to seek the reliefs claimed. The matter was further appealed, and in the impugned opinion the court considered whether a civil suit challenging the grant of a licence under the Kerala Cinemas (Regulation) Act, 1958 lay and whether the plaintiff had locus standi. The court ultimately allowed the second appeal and dismissed the suit with costs.
Legal Issues Presented
- Whether a civil suit for injunction by one exhibitor against another exhibitor can be maintained to challenge the improper grant of a licence under the Kerala Cinemas (Regulation) Act, 1958.
- Whether the plaintiff (a manager who says he represents the proprietor) has locus standi to bring the suit in the absence of any authority from the proprietor.
- Whether the Kerala Cinemas (Regulation) Act, 1958 confers exclusive statutory remedies such that civil courts are ousted from entertaining challenges to licence grants, or whether a common-law right remains enforceable in a civil court.
- Whether the statutory restrictions under the Act (and Article 19 of the Constitution) create a personal right in an existing exhibitor to challenge the grant of a licence to another exhibitor.
Arguments of the Parties
Plaintiff's Arguments
- The licence granted to the first defendant by the Tellicherry Municipality was illegal and void because objections (including that the distance between theatres was less than prescribed) were not considered, and thus the plaintiff sought a permanent injunction restraining the defendant from exhibiting films.
- Implicit in the plaintiff's case is his position that, as manager of Prabha Talkies, he could challenge the licence to protect the interests of the theatre he manages.
First Defendant's Arguments
- The first defendant contended that a civil suit for injunction challenging the grant of a licence under the statutory scheme could not be maintained by another theatre owner; the proper machinery to challenge the grant lies under the statute.
- The first defendant further argued that the plaintiff, being only the manager of Prabha Talkies, had no locus standi to file the suit (i.e., lacked authority from the proprietor).
- It was also contended that there had been substantial compliance with the requirements of the licensing rules.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CB (NS) 336 at p. 356 | The tripartite classification: (1) where a common-law liability exists and statute provides special remedy (plaintiff may elect), (2) where statute creates liability but gives no special remedy (common-law remedies apply), and (3) where statute creates a liability and also prescribes a particular remedy (party must adopt statutory remedy). | The court applied this principle to frame the threshold question whether the statutory scheme for cinematograph licensing supplanted civil remedies or left room for civil action; it used the rule to distinguish between rights existing at common law and rights created by statute. |
| Kamaraja Pandiya v. Secy. of State, AIR 1936 Mad 269 (p. 271) | Where there is interference with liberty or property under statutory power, the ordinary rule is that civil courts entertain a cause of action unless there is an express or necessary implication excluding such jurisdiction; but where the right or status is itself created by statute, ordinary courts prima facie have no jurisdiction. | The court cited this case to support the proposition that where the underlying right is not a pre-existing common-law right, statutory remedies may be the exclusive forum, and civil jurisdiction cannot be assumed. |
| Secy. of State v. Allu Jagannadham, AIR 1941 Mad 530 (FB) at p. 532 | Two principles: (1) exclusion of civil court jurisdiction must be explicit or clearly implied; (2) where liability is statutory (as opposed to common law), the party must adopt the remedy provided by the statute. | The court relied on this authority to reiterate the need for explicit exclusion of civil jurisdiction and to argue that where liability is statutory the statutory remedy must be used. |
| N.P. Ponnuswami v. Returning Officer Namakkal, AIR 1952 SC 64 | Cited Willes, J.'s observations with approval in the context of the Representation of the People Act, reinforcing the tripartite rule about statutory versus common-law remedies. | The court noted that higher courts have accepted the Wolverhampton classification, bolstering its conclusion that the statutory scheme must be examined to see if civil remedies remain available. |
| Gregory v. Camden London Borough Council (1966) 1 WLR 899 | Where a public authority acts in the interest of the public (e.g., granting planning permission), private persons affected (even if suffering damage) may not have a legal right to challenge if the matter is essentially between the applicant and the authority; mere damnum without injuria is insufficient. | The court used this authority as an analogous example: even if an existing exhibitor is affected by a licence granted to another, if the licensing decision is exercised in the public interest, a private legal right may not exist and mere damage without legal injury will not sustain the suit. |
| (1907) ILR 31 Bom 604 and (1912) ILR 36 Mad 120 | Examples cited to illustrate cases where the right or status was itself the creation of statute and ordinary courts had prima facie no jurisdiction. | These decisions were referenced by the court as falling into the category where statutory creation of rights led to the conclusion that ordinary civil jurisdiction was not automatically available. |
Court's Reasoning and Analysis
The court began by applying the well-known tripartite principle (Wolveshampton rule) distinguishing situations where civil remedies survive despite statutory provisions from those where the statute creates rights and prescribes exclusive remedies. The court explained that if a right existed at common law and the statute merely provides machinery to enforce it, civil remedies remain available unless the statute expressly or by necessary implication excludes civil jurisdiction. Conversely, where a statute creates a right for the first time and prescribes the means of enforcement, the statutory remedy is generally exclusive.
The court then examined the Kerala Cinemas (Regulation) Act, 1958 in the constitutional context. It observed that the right to carry on the business of cinematograph exhibition falls within Article 19(1)(g) but is subject to reasonable restrictions under Article 19(6) in the interest of the public. Section 5 of the Act prescribes factors the licensing authority must consider (public interest, applicant's status and experience, suitability of place, adequacy of existing places, benefits to locality, possession of other licensed places, and representations by persons already exhibiting nearby). The court characterised these as statutory restrictions intended to regulate the exhibitor's fundamental right in the public interest.
From this statutory scheme the court concluded that the Act's restrictions operate to regulate a fundamental right but do not confer upon another exhibitor a personal right beyond the general public interest. In other words, the licensing provisions create a regulatory framework focused on public interest rather than creating a private right in an individual exhibitor to prevent another from operating. Consequently, even if an exhibitor is affected by the grant of a licence to another, such effect may constitute mere damnum without injuria if no private legal right is shown.
Applying the precedents, particularly Gregory v. Camden and the principles stated in the earlier cases, the court held that the plaintiff did not possess a civil right under the statute which would sustain a suit for injunction against another exhibitor's licence. The court also addressed locus standi separately: the plaintiff claimed to sue as the manager of Prabha Talkies on behalf of his sister-in-law but produced no authority (no power of attorney or other written authority). The court noted the court below's curious reference to Order I, Rule 8 CPC and observed that, because the plaintiff sued purportedly on behalf of the proprietor without authority, he must be non-suited on that simple ground.
The court stated that the case could have been disposed of on the locus standi/authority ground alone, but it also dealt briefly with the other legal questions for fairness to counsel since elaborate arguments had been advanced.
Holding and Implications
Second appeal allowed; the suit stands dismissed with costs throughout.
Direct effect: The plaintiff's suit for a permanent injunction restraining the first defendant from exhibiting cinematograph films is dismissed, and the plaintiff is non-suited for lack of authority to sue on behalf of the proprietor he purportedly represents.
Broader implications: The opinion treats the statutory licensing regime as primarily regulatory in the public interest and indicates that where a statute creates or frames rights and prescribes remedies, private parties may not have a special private remedy in civil courts merely because they are affected. The court did not purport to lay down a new legal principle; instead it applied established authorities to the facts. No new precedent was asserted beyond applying existing authorities to the case at hand.
1. I am afraid the suit is misconceived. Though the maintainability of the suit was challenged by the first defendant successfully in the trial court, the court below has held that the suit as framed would lie and the plaintiff is entitled to seek the reliefs which he has claimed in the suit. Plaintiff has styled himself as the manager of one Prabha Talkies, a theatre exhibiting cinematograph films at Tellicherry. According to him the proprietor of the concern is his sister-in-law and on her behalf he is managing the business. First defendant is the proprietor of one Lotus Talkies engaged in the business of exhibition of cinematograph films for which purpose he applied for license to the Tellicherry Municipality and obtained the same. The Municipal Commissioner of the Tellicherry Municipality is the second defendant. Plaintiff had objected to the issue of license to the first defendant on several grounds including one that the distance between the two theatres was less than what is prescribed by the rules. This objection of the plaintiff was not looked into and therefore the order is characterised as illegal and void. The plaintiff seeks a permanent injunction restraining the defendant from exhibiting cinematograph films in his theatre.
2. A contention is raised by the first defendant as to the sustainability of a plea of improper grant of license in a civil suit. According to him a suit for injunction, as here, cannot be maintained by another theatre owner on the ground that the requirements of the rules have not been properly, complied with in the matter of the issue of license to an exhibitor. Another objection taken is that the plaintiff is only the manager of Prabha Talkies and therefore he has no locus standi to file a suit. It is also contended that even otherwise there has been substantial compliance with the requirements of the rules.
3. Time and again the observations of Willes, J. in the judgment in Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB (NS) 336 at p. 356 have been quoted. The rule, enunciated with precision and clarity by the learned Judge is in these terms:—
“There are three classes of cases in which liability may be established by statute:
(1) There is that class where there is a liability existing at common law which is only remedied by the statute with a special form of remedy; thus, unless the statute contains words expressly excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. (2) Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it: thus the party may adopt an action of debt or other remedy at common law to enforce it. The remedy which by law is properly applicable to the right or the obligation flows as an incident. (3) The third class is where a statute creates a liability not existing at common law, and gives also a particular remedy for enforcing, it ……. With respect to that class it has always been held that the party must adopt the form of remedy given by the statute.”
4. If a person has a right at common law and in regard to this matter a statute is enacted and the statute provides a machinery for working out the remedy if the right is infringed, still such person will be entitled to resort to a civil court to seek his remedies in regard to the infringement of his rights unless the statute excludes such resort to the civil court and confines his remedies to that provided by the statute. That is because even de hors the statute such a person had a civil right and unless the provisions of the statute are to be so read as excluding resort to the civil court for vindicating such civil right ouster of jurisdiction of civil courts cannot be assumed. But this rule does not hold good where the statute creates rights for the first time. In such cases it is the machinery prescribed by the statute which creates such rights that will be available to the person. In such a case unless right is conferred on the civil courts it will not be open to a person to resort to such civil remedies. Varadachariar, J. in Kamaraja Pandiya v. Secy. of State, AIR 1936 Mad 269 at p. 271 said of this, in the following words:—
“The ordinary rule is that where a person's liberty or property is interfered with, under colour of statutory powers, he has a cause of action which the civil Courts are bound to entertain unless a bar to such entertainment has been enacted expressly or at least by necessary implication. Where there is no question of a common law right and an infringement thereof, the position may be different, for in such cases, the ordinary Courts had prima facie no jurisdiction and therefore there is no question of any ouster of their jurisdiction. Decisions like (1907) ILR 31 Bom 604 and (1912) ILR 36 Mad 120 fall under this category, where the right or status was itself the creation of the statute. Even where rights of property are involved, the legislature may point to particular modes of redress.”
5. This principle was again succinctly stated in Secy. of State v. Allu Jagannadham, AIR 1941 Mad 530 (FB) at p. 532 as follows:—
‘Therefore, we have here two principles clearly established. The first is that to exclude the jurisdiction of the civil Courts, the exclusion must be explicitly expressed or clearly implied. The second is that where the liability is statutory as opposed to liability under the common law, the party must adopt the remedy given to him by the statute.” Dealing with the case under the Representation of the People Act the Supreme Court in N.P Ponnuswami v. Returning Officer Namakkal, AIR 1952 SC 64 cited the observations of Willes, J in (1895) 6 CB (NS) 336 at p. 356 with approval. The rule appears to be so well settled that I need not add to the authorities.
6. It is contended by counsel for the appellant that the Kerala Cinemas (Regulation) Act, 1958 (Act 32 of 1958) was not one which conferred any new right for the first time. In fact every citizen of India had a right to carry on the business of cinematograph exhibition. But this fundamental right guaranteed to him under Article 19(1)(g) of the Constitution of India is subject to such reasonable restrictions as may be imposed by law. Such restrictions are to regulate the business. It is in exercise of such regulatory power that Kerala Act 32 of 1958 was passed. Counsel points out that Article 19(6) of the Constitution of India enables such regulatory legislation to be made only in the interest of the public in general and therefore the regulation of Cinematograph exhibition by Kerala Act 32 of 1958 can be only in the interest of the general public. That of course must be so. Section 5 imposes restrictions on the powers of the licensing authority. In deciding whether to grant or refuse a licence, the licensing authority is to have regard to matters specified in Section 5, namely:—
“(a) the interest of the public generally;
(b) the status and previous experience of the applicant;
(c) the suitability of the place where the cinematograph exhibitions are proposed to be given;
(d) the adequacy of existing places for the exhibition of cinematograph films in the locality;
(e) the benefit to any particular locality or localities to be afforded by the opening of a new place of cinematograph exhibition;
(f) the possession by the applicant of other places, if any licensed under this Act, whether in the same locality or elsewhere, and whether at the time of applying for the license or at any, previous time, and shall also take into consideration any representations made by persons already giving cinematograph exhibitions in or near the proposed locality, whether within the jurisdiction of the same local authority or not, or by any public authority within whose jurisdiction the place proposed to be licensed is situated or by any association interested in the giving of cinematograph exhibitions.”
7. These are apparently restrictions intended in the interest of the general public. These restrictions act as restrictions on the exercise of the fundamental right of the exhibitor. They do not confer a right on any other member of the public other than the general right as one of the public to object to the grant. It cannot be said that under the law of the land one exhibitor, could have a grievance if another starts similar business. In fact both have the fundamental right to carry on their business. By reason of the regulation by Act 32 of 1958 no personal right is obtained by the plaintiff. That is why counsel for the appellant first defendant submits that even assuming that plaintiff has interest enough to challenge the licence the machinery which he may invoke must be that provided under the statute itself. Resort cannot be made to the civil court for that purpose. It cannot be contended with any force that even apart from the provisions of the Kerala Cinema (Regulation) Act 32 of 1958 the plaintiff had a right to challenge the opening of another cinema theatre within the Tellicherry Municipality.
8. I am not prepared to agree that there is a civil right in the plaintiff. The plaintiff - (assuming that he has a locus standi to sue as an exhibitor) does not have, as I have indicated earlier, any personal right conferred on him by reason of Act 32 of 1958. His right to object in the matter of grant of the license and his right to take up the matter in appeal are to be exercised only with the ultimate view that the grant of license to the first defendant is in the interest of general public. If that be the case the suit for injunction as now brought by him must fail.
9. In a similar case which arose before the Queen's Bench Division and reported in Gregory v. Camden London Borough Council, (1966) 1 WLR 899, Paull, J. analysed the position. That was an action brought against the London County Council as the Local Planning Authority alleging that the defendants in determining whether to grant planning permission to erect a school for about 700 children on the convent land adjoining the plaintiffs' land granted planning permission which did not accord with the Development plan. It was also contended that the defendants in granting planning permission had neither considered whether the development was within the plan nor whether development would injuriously affect the plaintiffs' land. They sued for a declaration that the permission granted was ultra vires. The question was whether the suit was misconceived. Though the plaintiffs might have had an interest in the matter of grant of the planning permission and they would in a way be affected by such permission the exercise of the duties of the County Council being in the interest of the public the plaintiffs were held to have no legal right. It was a matter between the convent which applied for the planning permission and the County Council which granted it. It was not a matter in which, though plaintiffs showed that they would suffer damage, they would not sustain any action as they had no legal injury. Mere damnum without injuria was held to be not sufficient and that of course is the position here too.
10. On a much simpler ground the case could have been disposed of. But I considered the question only because this matter has now come up to this court and elaborate arguments have been advanced on other questions. I considered that in fairness to counsel I should deal with those questions, briefly. The locus standi of the plaintiff to bring the suit is challenged. Strangely enough the plaintiff is not suing as a power of attorney holder of the exhibitor as whose manager the suit is brought. Stranger too is the reference to O. 1, R. 8 of the CPC by the court below in this context. Plaintiff who says that he is suing on behalf of his sister-in-law apparently without any authority from her must be non-suited on that simple ground. In the result, the second appeal is allowed. The suit stands dismissed with costs throughout.
11. Appeal allowed.
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