ORDER
Chandrakantaraj Urs, J.
1. This Writ Petition is before the Division Bench by an order of reference dated 15-12-1989 made by the learned Single Judge in view of the preliminary objection raised before him that the Writ Petition was not maintainable as it was by rival traders.
2. The learned Single Judge in his order of reference has stated in detail the cases relied upon by the parties in support of their rival contentions. The respondents contended that the petition was not maintainable because three of the petitioners were rival cinema theatre owners and as such they could not have locus-stand to prosecute a remedy under Article 226 of the Constitution. That contention was supported by the decisions of the Supreme Court rendered in (1) THE NAGAR RICE AND FLOUR MILLS AND ORS. v. N. TEEKAPPA GOWDA & BROTHERS AND ORS., : [1970]3SCR846 , (2) JASBHAI MOTIBHAI DESAI v. ROSHAN KUMAR, HAJI BASHIR AHMED AND ORS., AIR 1976 SC 578 and (3) the decision of this Court in the case of B.N. SAMPATH IYENGAR v. DISTRICT MAGISTRATE, MYSORE, 1981(1) KLJ 339. However, the learned Single Judge was impressed by the decision of the Supreme Court in the case of B.D. BHOJAGOWDA v. SRIDHARA KRUPA FILMS AND ORS., S.L.P. Nos. 4507 & 8257 of 1984 DD 24-4-1984. in which observation had been made having regard to the language of Section 6 of the Karnataka Cinema (Regulation) Act, 1964 (hereinafter referred to as the 'Act'), a rival operator who had been given a statutory right to file objections to the grant of a no objection certificate had the right to move the Court under Article 226 of the Constitution in the event of his objections being over-ruled by the Competent Authority under the Act or the Rules thereunder. In that context, the Bench consisting of Hon'ble Mr. Justice P.N. Bhagwati, as he then was and Hon'ble Mr. Justice Sabyasachi Mukharji, the learned present Chief Justice, proceeded to dismiss the Special Leave Petitions subject to the observation. In that circumstance, the learned Single Judge held it was proper for this Court to dispose of the Writ Petition by a ruling of the Division Bench and as such referred the matter under Section 9 of the Karnataka High Court Act.
3. The facts leading to the Writ Petition may be briefly stated and they are as follows:
Petitioners 1 to 4 are the residents of Siraguppa town of Bellary District in Karnataka State. Petitioners 5 to 7 are owners of theatres in the same town. They felt aggrieved by the grant of a no objection certificate to the first and second respondents for the construction of another theatre in the same town. Despite their objections and in contravention of Rule 27(2) of the Karnataka Cinema (Regulation) Rules, 1971, it is to be stated, as is borne out by the impugned order as at Annexure 'G', the application for grant of a no objection certificate to construct a fourth permanent theatre at Siraguppa was rejected by the second respondent, the District Magistrate, Bellary District, Bellary, the Competent Authority under the Act and the Rules framed thereunder. But on a representation made by respondents 1 and 2, who were applicants before him for the grant of no objection certificate, the Government directed re-consideration of his earlier decision rejecting the application pointing out what the Government thought was the correct interpretation of Rule 27(2) in regard to the meaning and scope of determination of the number of theatres on the basis of the population of a place in a metropolitan area or other places. On receiving such directions as per Government letter No. HD 628 CNA 84 dated 3-12-1984, the matter was once again taken by the third respondent District Magistrate and arguments of the Counsel representing the applicants before him as well as the objectors including the petitioners were heard. It may be useful to state at this stage of narration of facts, as submitted from the Bar, that petitioners 1, 4 and 7 have since expressed their desire not to prosecute this petition. It is submitted by the learned Counsel for the remaining petitioners - that they have been won-over by the other side. I do not think we should state anything more than this in that regard. The District Magistrate after considering all the arguments advanced before him and having regard to the interpretation suggested by the Government in the afore-mentioned letter of 3-12-1984, decided to grant the no objection certificate for the construction of a cinema theatre. It is that order which is challenged in this Writ Petition by the petitioners inter alia on the ground that there is clear contravention of Rule 27(2) having regard to the population of Siraguppa town.
4. Mr. Suryanarayana Rao, learned Counsel for the petitioners, has strenuously contended before us that despite the decision of the Supreme Court in Nagar Rice Mill's case, Jasbhai Motibhai Desai's case and Sampath lyengar's case supra, the observations made by a Smaller Bench in 1984 in the Special Leave Petition adverted to by us earlier should be binding on this Court in the light of what has been observed by the Supreme Court in SHAMARAJ HEGDE v. VENKATESH BHAT, ILR 1987 KAR 3245.
5. Our attention has been specifically drawn to paragraph 32, wherein it has been observed by the Supreme Court that when there is a specific Decision of the High Court or the Supreme Court with reference to a particular statute, that Decision would have a greater binding authority than any observation made or Ruling rendered in respect of statute of another State or any other statute, unless such specific Ruling has been over-ruled by a larger Bench of the High Court or by the Supreme Court in exercise of its appellate powers.
6. Therefore, the thrust of the argument is that the Ruling of the Supreme Court in the aforementioned cases concerning locus stand had no longer any application, because Section 6 of the Karnataka Cinemas (Regulation) Act among other things expressly provided for a rival theatre owner to file his objections and as such if such objections were overruled, as observed by the Supreme Court in the aforementioned Special Leave Petition of 1984 he would have a right to challenge that under Article 226 of the Constitution.
7. We have carefully considered the submission and we do not think we should say anything more than what follows.
8. The Special Leave Petition came to be dismissed ex parte subject to the observations in regard to the doubt the Bench had about the application of the ratio decidendi in Nagar Rice Mills' case and Jasbhai Motibhai Desai's case having regard to the language of Section 6 of the Karnataka Cinema (Regulations) Act, 1964. We do not consider it to be a precedent or a decision rendered which is of a binding nature under Article 141 of the Constitution. Even the obiter by the Supreme Court is no doubt binding, but when the obiter is made ex parte, it is doubtful that such obiter is binding.
9. In any event, we are of the view that the earlier decisions particularly Jasbhai Motibhai Desai's case 2 was rendered after elaborately considering the commercial interest promoted by the appellant before the Supreme Court and in the earlier Nagar Rice Mills' case, which went to Supreme Court from this State against the Judgment of this Court. The principle laid down was that certiorari proceedings and the relief therefrom would not be available to a rival trader to promote his commercial interest. In this case, undoubtedly two of the remaining theatre owners, who are petitioners are rival traders. They had filed their objections separately, distinct from the objections filed by some members of the public. It is immaterial whether they are similar or identical. The fact remains that there were separate objections and by the impugned order they obtained a distinct cause of action independently of the public. We are unable to make out whether the theatre-owners-petitioners are the ones who are really prosecuting the petition or the members of the public who are aggrieved by the impugned order and therefore prosecuting the petition.
10. In that circumstance, we could not express any opinion about the locus stand of the theatre owners to prosecute this petition, as we intend to dispose of this Writ Petition on other grounds and for other reasons.
11. Therefore, we have heard the learned Counsel for the petitioners Sri Suryanarayana Rao on the merits of the case and we have heard Mr. Datar, Senior Counsel for the contesting respondents and Sri P.R. Ramesh, learned Government Pleader for respondent-3, the Competent Authority and respondent-4, the State of Karnataka, which is only a formal party.
12. We have been taken through the various Sections in the Act and the Rules and we think it is proper to advert to Sections 7 and 8 and Rules 3(18) and 27. Section 7 reads as follows:
'Power of Licensing Authority to limit number of places that can be licensed in any area-The Licensing Authority may, after consideration of the matters set-forth in Section 6, and subject to such Rules as may be prescribed, by order, limit the number of places in any area in respect of which licences under this Act may be granted.'
Section 8 reads as follows:
'Restriction on power of Licensing Authority - The Licensing Authority shall not grant a licence unless is it satisfied that -
(a) the Rules made under this Act have been substantially complied with;
(b) adequate precautions have been taken in the place in respect of which the licence is to be granted, to provide for the safety, convenience and comfort of the persons attending exhibitions therein and
(c) the limit regarding the number of places for the area, determined under Section 7, is not exceeded.'
Rule 3(18) defines 'population' to mean the total number of inhabitants as at the last preceding official census plus the annual increase at the rate of five percent.
Rule 27 provides for the grant of no objection certificate to construct a cinema theatre. It prohibits the grant of no objection certificate unless certain conditions are satisfied and those conditions are set out under various clauses of Sub-rule (1) of Rule 27. Sub-rule (2)(a) provides as follows:-
'2) (a) In places having a population of ten thousand or more the number of cinema to be permitted shall be determined, -
(i) if it is a metropolitan area on the basis of one cinema for every twenty thousand population or a fraction thereof exceeding ten thousand and
(ii) in other places, on the basis of one cinema for every ten thousand population or a fraction thereof exceeding five thousand.'
Sub-rules (3) and (4) read as follows:
'(3) Nothing in Sub-rule (2) shall apply for location of cinemas in a metropolitan area if the cinema building is owned by the local authority concerned.
(4)(a) Each ward in a metropolitan area shall for the purpose of Section 7 be an area. The Licensing Authority may having regard to the provisions of Section 6 and the provisions of Sub-rule (2) as if each such ward is a place for the purpose of said Sub-rule (2) limit the number of places that can be licensed under the Act in each such ward:
Provided that the total number of places so determined in respect of all such wards shall not exceed the number permissible under Sub-rule (2) in respect of the metropolitan area taken as a whole.
(b) No order under Section 7 shall be made except with the prior approval of the Government .
EXPLANATION - For the purpose of Sub-rules (2), (3) and (4):
(1) 'distance' shall be reckoned along the shortest pathway, lane, street or road connecting the two cinemas and generally used by the members of the public;
(2) 'Metropolitan area' means a city or town declared as a Metropolitan area under Section 8 of the Code of Criminal Procedure, 1973;
(3) 'place' means, in the case of towns and cities having a population of ten thousand and above, the area coming within the jurisdiction of the Local Authority concerned, and in other cases, an area within the radius of five kilo meters from the centre of the Local Authority in which the cinema is proposed to be located.'
13. The summary of the contentions advanced for the petitioners by Mr. Suryanarayana Rao is that the interpretation suggested by the Government and accepted by the third respondent-District Magistrate, the Competent Authority under the Act, was an incorrect interpretation and a fourth cinema house was impermissible having regard to the language of Sub-clause (ii) of Clause (a) of Sub-rule (2) of Rule 27 of the Rules. No doubt, the language employed is such it does give an impression that population of over 5,000 may call for a theatre. We do not think that would be the correct way of understanding the Rule. The expression 'a fraction thereof in excess of 5,000' must be so understood as relatable to 10,000 which is the basis for determination of the number of cinema-houses at 1 for 10,000 population. If that is borne in mind, then whenever there is a population increase in a given place in excess of 10,000 plus 5001, the Competent Authority may permit the establishment of one more theatre in such a town. If it is so understood, it is possible to have two theatres when the population is between 15,001 and 20,000. To have a third theatre such a town must account for a population of 25,001. Similarly, a fourth theatre can be given only when the population is 35,001 and not earlier. If that is the correct way of understanding the Rule, whether applicable to 'other places' or to 'metropolitan area', the only difference being the unit of population with reference to number of theatres, the granting of a no objection certificate when the population was admittedly 29,000 plus, in view of Clause (13) of Rule 3 of the Rules was impermissible. We therefore must record a finding in favour of the proposition put forward by Mr. Suryanarayana Rao that on the date of the impugned order, there was no scope for granting no objection certificate for a fourth cinema house in the town of Siraguppa.
14. But, Mr. H.B. Datar, learned Senior Counsel appearing for the contesting respondents viz., respondents 1 and 2, has drawn our attention to a decision of a learned Single Judge of this Court in Writ Petition 72 of 1988 disposed of on 16th March, 1988 H. Nanjappa v. Chief Secretary and Anr.. In the said decision, the learned Single Judge had occasion to consider the impact of Rule 25 and other Rules in the matter of granting a no objection certificate by the District Magistrate for establishing a permanent theatre. As in this case, before the learned Single Judge, a fourth cinema house was permitted in a town with a population of 36750. That was confirmed in appeal by the Divisional Commissioner. One of the grounds urged before the learned Single Judge was that as on the date of disposal of the petition, the population of the town in question had in terms of Clause 18 of Rule 3 of the Rules had increased to 36,804 and therefore the grant should be sustained even if there was contravention at the time of granting a no objection certificate of Sub-clause (ii) of clause (a) of Sub-rule (2) of Rule 27 of the Rules. He therefore com mended to us that in view of long pendency of the Writ Petition in this Court and the fact that the grant of No Objection Certificate had been stayed by this Court, the Court must take into consideration the lapse of time and increase in the population in the meanwhile and on consideration of equity, follow the same principle as the learned Single Judge and permit respondents 1 and 2 to go ahead and construct a theatre for which a no objection certificate had been granted.
15. According to the calculation made by the respondents, a memo in respect of which has been filed, the present-day population of the town will be around 36,000 and over. Having regard to Clause 18 of Rule 3 of the Rules providing for annual increase of the population at the last census. This position is not disputed by Sri Suryanarayana Rao, the learned Counsel for the petitioners. We are therefore of the view that if this Court in its discretion declines to interfere with the impugned order of the District Magistrate, no serious injustice is caused or there is no likelihood of any violation of Rules as of today and therefore though we have found that on the relevant date a fourth cinema theatre was not permissible in the town as on today we should, for reasons already given, sustain the impugned order.
16. It was next contended by Mr. Suryanarayana Rao that the impugned order must go and must be set aside by the Court in exercise of its jurisdiction under Article 226 because the District Magistrate has no power of review under the Rules, He pointed out, it was clear ex facie, in the impugned order itself that the Competent Authority had rejected the application of respondent 1 and 2 for the reasons that a fourth cinema theatre was not permissible on account of Sub-clause (N) of clause (a) of Rule 27 of the Rules. There is no doubt that statement is true. Admittedly, the respondents did not file an appeal against the rejection by the third respondent in the first instance. But we have already narrated that on account of the direction issued by the State Government, though it is not known to us under what provision of law such a direction was issued, the matter was re-considered and the petitioners did not protest such re-consideration at the relevant time. On the other hand, they participated in the proceedings of re-consideration of the application and advanced arguments through their respective Counsel pressing their objections and failed to succeed before the District Magistrate. To put it simply, they acquiesced in what might have been an illegality had they challenged the direction of the Government in this Court in appropriate proceedings. Not having done that and not having contested, the re-consideration on that ground before the District Magistrate, we do not think, we should now permit the petitioners to raise that ground in this Writ Petition. Therefore, we must reject that contention.
17. It was then urged by Mr. Suryanarayana Rao that there is contravention of Rule 27(1)(h) in as much as the cinema theatre is going to be located within the prohibited distance from a school. It is true. It is clear from the order impugned that the Town Planning Authority had in its Report submitted that a school exists within about 41 meters from the proposed site in which the proposed cinema theatre is going to be constructed. However, in the course of his order, the third respondent noticed the arguments advanced for the respondents-applicants that the other theatres in the town had also been built within the prohibited distance from the schools. However, the District Magistrate, the Competent Authority, made a spot inspection and found that the site was really of a large dimension of nearly one and a half acres and in that view of the matter and the fact that the said schools had high compound, the site was a suitable place for locating a theatre which would be modern as against the neglected theatres which existed prior to the grant of no objection certificate. Therefore, he pursuaded himself to grant the no objection certificate.
18. We are not sure if factually the site is within the prohibited distance and whether it was so established before the Competent Authority. No doubt, Report was there by the Town Planning Authority. The fact however is the said Rule appears to have been observed more in the breach than anything else. We find there is total want of pleadings in this Court in that behalf. The petitioners have not alleged anything about the location of the school and the distance. They have merely stated baldly that in the two schools nearby more than 1,500 students study and on that ground, the location of theatre as decided by the Competent Authority would cause traffic hazards. Added to this, it must be established that the school is a recognised school, the expression used in Section 27(1)(h) of the Rules. That was never pleaded nor established before either this Court or before the Competent Authority. As such we do not suppose to countenance this argument at this stage.
19. For the above reasons, no injustice will be caused to the petitioners if a new theatre is located in the light of increase in the population. Therefore, we sustain the impugned order and reject the Writ Petition. There will be no order as to costs. Rule is discharged.
After we dictated this order, Mr. K. Suryanarayana Rao made an oral application to grant a Certificate of Fitness to appeal to the Supreme Court. In the light of our discussion and in the light of the fact that the persons who are really behind the Petition are the theatre-owners who want to protect their commercial interest, we refuse to grant Fitness Certificate prayed for. Therefore, oral application is rejected.
We also do not consider that any substantial question of law of general importance is required to be considered and decided by the Supreme Court, as such; question, if any, has already been decided by the Supreme Court.
Order accordingly.