K. Sreedhar Rao, J.
1. The appellant applied to R.2 for N.O.C. for building a Permanent Cinema Theatre in Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk. The proposed construction was the part of Sy. No. 54/2A of Nagadevanahalli. R.2 gave No Objection for construction of Cinema Theatre. The area in question is declared to be a residential area in the C.D.P. The appellant made an application to R.3 for change of fond use for construction of Cinema Theatre. The R3 rejected the application on the ground that the proposed Cinema Theatre if constructed would create traffic hazards and cause nuisance to the residential area, accordingly rejected the application. The Deputy Commissioner in view of the rejection of change of requirement of land use rejected the application for grant of No Objection Certificate as per Annexure-D.
2. The appellant filed a writ petition challenging the orders passed under Annexure-D. The learned single Judge holds that construction of Cinema Theatre is not permitted in a residential area according to Zonal Regulations. Hence found that the order at Annexure-D and C is sound and proper.
3. The learned Counsel for the appellant Sri P.D. Surana referred to the provisions of Section 11(2) & Rule 27(1)(i) (a)(vi) of The Karnataka Cinema (Regulation) Act, 1954 & Rules and the relevant zonal regulations are extracted hereunder:
Section 11:- Construction or reconstruction of building or use of places for exhibition of cinematograph films only to be made after obtaining permission of licensing authority.-
(1) XXXX XXXX XXXXX
(2) No provision contained in the enactments specified in the Schedule or any other law for the time being in force regulating the erection or construction of buildings, or in the rules or bye-laws made under any such enactment or law shall apply to an application under sub-Section(1) in so far as such provision relates to any of the matters specified in the said sub-Section.
Rule 27: Conditions for the grant of No objection Certificate:
(1) No Objection Certificate shall not be granted under this chapter in respect of any cinema unless.-
xxxx xxxxx xxxx
(b)(i): the cinema site is situated in a predominantly commercial area or in the proposed commercial zone in any outline Development Plan or Comprehensive Development Plan prepared for the area by a Competent Authority Under Section 4(c) of the Mysore Town and Country Planning Act, 1961, or the Local Authority concerned: Provided that where an outline or Comprehensive Development Plan has not been prepared, existing predominantly commercial area shall be taken into consideration.
Zoning of lands use and regulations, BDA-Annexure-II lays down the permissible constructions in residential zone, which is extracted hereunder:
Residential Zone:
(a) Uses that are permissible.- Dwellings, Hostels including working women's and gents Hostels, Dharmasalas, Places of public worship, Schools offering General Education course up to Secondary education, Public libraries, Post and Telegraph Offices, KEB counters, BWSSB counters, clubs, Semi-Public recreational uses, milk booths and neighbourhood or convenience shops, occupying a floor area not exceeding 20.00 sq. metrs. Doctor's consulting rooms, Offices of Advocates, other professions in public interest not exceeding 20.00 sq. metrs. Of floor area in a building.(Emphasis supplied)
(b) Uses that are permissible under special circumstances by the Authority.- Municipal, Statutory Authorities, State and Central Government Offices, Banks, Public Utility Buildings. Colleges, Cemeteries, Golf Clubs, Tailoring, Laundry, Hospitals for human care except those meant for mental treatment, Nursing Homes, Philanthropic uses, fuel storage depots, filling stations, huller and flour mills. Coffee grinding machines including service industries with a maximum power up to 5 HP for all the industries as per the list given in Schedule I and 10 HP in case of Huller and flour mills. The power required for air conditioners, lifts and computers shall be excluded while calculating the Horse-power specified above.
(Emphasis supplied)
4. With reference to the above provisions it is strenuously argued that the enactments enumerated in the Schedule are not made applicable for construction of Cinema Theatre. In other words, the building laws applicable to other buildings are not applicable to the construction of a cinema theatre. The Karnataka Cinema (Regulation) Act is a self contained Code, which takes care of environment, nuisance, traffic, hazards, parking places, the fire safety measures and engineering aspects of the building. The technical standards prescribed for construction of Cinema Theatre is more vigorous and rigid than the normal building by-laws. In that view argued that Section 11 declares that the conflicting and inconsistent provisions in any other allied enactment is not made applicable for construction of a cinema theatre under Karnataka Cinema (Regulation) Act, 1954.
5. Sri U. Abdul Khader, learned Counsel appearing for B.D.A. submitted that in the Zonal Regulations pertaining to Commercial Zones, there is a specific mention of Cinema Theatre, whereas in the residential zone, only the construction for semi-public recreational use is permitted. There is no specific mention of Cinema Theatre in the items enumerated in residential zone. Therefore, the zonal Regulation does not permit construction of cinema Theatre in residential zone.
6. The Cinema Regulation is a special enactment. The Karnataka Town and Country Planning Act, is a general enactment. Whenever there is a conflict between special enactment and general enactment, the provisions of special enactment will prevail over the general enactment. In the light of the said principle, it is to be held that the provisions of Cinema Regulation Act will prevail over the provisions of the Karnataka Town and Country Planning Act.
7. That apart, the careful consideration of relevant provisions of Karnataka Cinema (Regulation) Act, 1954, and the Zonal Regulations, indicate that the construction of Cinema theatre in a residential zone is permitted with certain conditions prescribed under Rule 27. It is also in the discretion of the District Magistrate to relax any of the conditions in a suitable case provided adequate precautionary and safety measures are taken. The Zonal regulations also permit use of the land for Semi-Public Recreation. The Cinema Theatre is very much a semi Public Recreation. We don't find any good reason to give rigid interpretation to the expression 'Semi Public Recreation' to exclude Cinema Theatre from its purview. It is to be seen that the Karnataka Cinema (Regulation) Act, permits construction of permanent cinema theatre in residential area. The zonal Regulations also do not insist the change of land use for construction of building for semi public recreation.
8. The learned single Judge has failed to consider the above relevant provisions of law while deciding the writ petition.
9. In view of the reasons and discussions made above, the Writ Appeal is allowed.
10. The impugned orders at Annexures 'C' and 'D' are quashed.
11. The District Magistrate is directed to consider the application of the appellant in the light of the above observations.
12. The Addl. Government Advocate is permitted to file memo of appearing within two weeks.