P. Sivakumar v. Chalakudy Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939** ## **WP(C).No. 26168 of 2017 (U)** **----------------------------** **PETITIONER : -----------------------** **P. SIVAKUMAR, S/O.LATE G.PADMANABHA PILLAI, PADMASAROVARAM, ALUVA.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM** **RESPONDENT(S):** **----------------------------** **1. CHALAKUDY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHALAKUDY-680 307.** **2. THE SECRETARY, CHALAKUDY MUNICIPALITY, MUNICIPAL OFFICE, CHALAKUDY-680 307.** **3. THE CHAIRPERSON, CHALAKUDY MUNICIPALITY, MUNICIPAL OFFICE, CHALAKUDY-680 307.** **R1 & R2 BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SMT.BINDU SREEDHAR** **SMT.MANJU S. PANICKER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 26168 of 2017 (U)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** - **EXHIBIT P1 TRUE COPY OF LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, EAST CHALAKUDY VILLAGE DATED 22-04-2017.** - **EXHIBIT P2 TRUE COPY OF OCCUPANCY CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 15-12-2014.** - **EXHIBIT P3 TRUE COPY OF THE APPROVAL LETTER ISSUED BY FILMS DIVISION, MINISTRY OF INFORMATION AND BROADCASTING FOR SCREE I DATED 02-12-2016.** - **EXHIBIT P3(A) TRUE COPY OF THE APPROVAL LETTER ISSUED BY FILMS DIVISION, MINISTRY OF INFORMATION AND BROADCASTING FOR SCREE II DATED 02-12-2016.** - **EXHIBIT P3(B) TRUE COPY OF THE APPROVAL LETTER ISSUED BY FILMS DIVISION, MINISTRY OF INFORMATION AND BROADCASTING FOR SCREE III DATED 02-12-2016.** - **EXHIBIT P4 TRUE COPY OF FORM D CERTIFICATE ISSUED BY ADDL.CHIEF ELECTRICAL INSPECTOR FOR SCREEN NO.I DATED 15-12-2014.** - **EXHIBIT P4(A) TRUE COPY OF FORM D CERTIFICATE ISSUED BY ADDL.CHIEF ELECTRICAL INSPECTOR FOR SCREEN NO.II DATED 15-12-2014.** - **EXHIBIT P4(B) TRUE COPY OF FORM D CERTIFICATE ISSUED BY ADDL.CHIEF ELECTRICAL INSPECTOR FOR SCREEN NO.III DATED 15-12-2014.** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE CHIEF ELECTRICAL INSPECTOR DATED 23-12-2014.** - **EXHIBIT P6 TRUE COPY OF THE STRUCTURAL STABILITY CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER, PWD BUILDINGS SECTION, CHALAKUDY DATED 15-12-2016.** - **EXHIBIT P7 TRUE COPY OF THE NOC ISSUED BY THE STATION HOUSE OFFICER, FIRE AND RESCUE STATION, CHALAKUDY DATED 17-11-2016.** - **EXHIBIT P8 TRUE COPY OF THE LICENCE FOR EXHIBITION OF CINEMATOGRAPH SHOWS IN SCREE NO.I ISSUED BY THE 2ND RESPONDENT DATED 28-12-2016.** - **EXHIBIT P8(A) TRUE COPY OF THE LICENCE FOR EXHIBITION OF CINEMATOGRAPH SHOWS IN SCREE NO.II ISSUED BY THE 2ND RESPONDENT DATED 28-12-2016.** **2/-** **-2-** ## **WP(C).No. 26168 of 2017 (U)** - **EXHIBIT P8(B) TRUE COPY OF THE LICENCE FOR EXHIBITION OF CINEMATOGRAPH SHOWS IN SCREE NO.III ISSUED BY THE 2ND RESPONDENT DATED 28-12-2016.** - **EXHIBIT P9 TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 24-11-2014.** - **EXHIBIT P10 TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 23-1-2017.** - **EXHIBIT P11 TRUE COPY OF THE D&O LICENCE ISSUED BY THE 1ST RESPONDENT FOR THE THEATRE COMPLEX DATED 13-01-2015.** - **EXHIBIT P12 TRUE COPY OF THE D&O LICENCE ISSUED BY THE 1ST RESPONDENT FOR THE FOR THE OFFICE AND SNACK COUNTER IN THE THEATRE COMPLEX DATED 13-01-2015.** - **EXHIBIT P13 TRUE COPY OF THE RECEIPT NO.0079806 ISSUED BY THE 1ST RESPONDENT FOR THE LICENCE RENEWAL FEE FOR 2017-18 DATED 16-02-2017.** - **EXHIBIT P14 TRUE COPY OF THE RECEIPT NO.0079807 ISSUED BY THE 1ST RESPONDENT FOR THE LICENCE RENEWAL FEE FOR 2017-18 DATED 16-02-2017.** - **EXHIBIT P15 TRUE COPY OF THE NOTICE NO.H2-2670/17 ISSUED BY THE 2ND RESPONDENT DATED 20-06-2017.** - **EXHIBIT P16 TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 22-07-2017.** - **EXHIBIT P17 TRUE COPY OF THE CONSENT LETTER ISSUED BY MRS. PARVATHY RAJAN DATED 22-07-2017.** - **EXHIBIT P17(A) TRUE COPY OF THE CONSENT LETTER ISSUED BY MR.CHANDRASHEKARAN DATED 22-07-2017.** - **EXHIBIT P17(B) TRUE COPY OF THE CONSENT LETTER ISSUED BY MRS. AMMU AYYAPPAN DATED 22-07-2017.** **EXHIBIT P18 TRUE COPY OF THE LOCATION SKETCH DATED NIL.** - **EXHIBIT P19 TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 04-08-2017.** - **EXHIBIT P20 TRUE COPY OF THE AUTHORISATION LETTER NO.H2-2670/17 ISSUED BY THE 2ND RESPONDENT DATED 04-08-2017.** **3/-** **-3-** **WP(C).No. 26168 of 2017 (U)** **RESPONDENT(S)' EXHIBITS -----------------------------------------** **EXHIBIT R2(A) PHOTOCOPY OF THE RESOLUTION DATED 03/08/2017 EXHIBIT R2(B) PHOTOCOPY OF THE LETTER ISSUED BY THE THEATRE MANAGEMENT. EXHIBIT R2(C) PHOTOCOPY OF LETTER SUBMITTED BY THE OPERATIONS MANAGER ON 22/07/2017** ## **/TRUE COPY/** **P.S.TO JUDGE** ## **sts** K. Vinod Chandran, J ---------------------------------------- W.P.(C).No.26168 of 2017-U ----------------------------------------Dated this the 09[th] day of August, 2017 ## **JUDGMENT** The petitioner is the brother of the owner of a multiplex cinema complex, within the jurisdiction of the 1[st] respondent. The operation of the three theaters in the complex commenced on 18.12.2014 and has been continued till now. The petitioner challenge the notice issued by the Secretary at Exhibit P15 and the authorization letter P20, which together resulted in the closing down of the cinema theaters. 2. The writ petition was filed day before yesterday and though this Court was inclined to grant an interim order, on the specific request made by the learned Counsel for the Municipality it was posted yesterday. A counter-affidavit was filed by the Municipality and considerable arguments were advanced by both sides. Due to paucity of time and also for reason of the Counsel seeking time for clarification; the matter was again posted today. Today after the matter was considerably heard, both Counsel requested that only an interim order be passed. However, this Court is of the opinion that there is no - 2 - WP(C) No.26168 of 2017 necessity to pass an interim order especially since pleadings are completed and the matter fully heard. Hence it was specifically informed to the Counsel that the writ petition would be disposed of and again permitted to further argue the matter. 3. The facts indicate that the theater-complex was granted occupancy certificate by Exhibit P2. They had also obtained the Certificate to 'exhibit approved films', in three screens coming within the theater-complex, from the Ministry of Information and Broadcasting, Government of India, as is seen from Exhibit P3 series. The Electrical Inspectorate had also issued Exhibits P4, P4(a) and P4 (b) certificates of suitability. Sanction was accorded by the Office of the Chief Electrical Inspector as is evidenced from Exhibit P5. The certificate issued by the PWD, Building Section and the No Objection Certificate of the Fire and Rescue Services Department are produced as Exhibits P6 and P7. Based on all these orders, the Secretary of the Municipality issued 'License for Exhibition of Cinematograph Shows' {Exhibits P8, P8(a) and P8(b)} under the Kerala Cinemas (Regulation) Rules, 1975 (the said Rules have been superseded by the Rules of 1988, but the form shows the year of the superseded rules). A consent to operate was issued by the Pollution Control Board, which was valid - 3 - WP(C) No.26168 of 2017 till 28.02.2017, evidenced by Exhibit P9. The consent has been renewed and the validity extended to 28.02.2020 by Exhibit P10. 4. Exhibits P11 and P12 are the D&O licenses issued under Section 447 of the Kerala Panchayath Raj Act,1994; respectively of the cinema theaters and the coffee and snacks counter. Exhibits P13 and P14 evidence the license fee payment for the year 2017-2018; remitted along with the application for renewal of license. The theater-complex then was faced with Exhibit P15 notice served on 21.07.2017, which was far beyond the 30 days as prescribed under Section 447 (6) of the Kerala Municipality Act, 1994. The theater-complex hence had a deemed license is the argument raised. Exhibit P15, which is in purported response to the renewal application projects the ground of the Consent to Operate issued by the Pollution Control Board having not been renewed. Subsequently Exhibit P20 authorization letter was issued based on a decision of the Council of the Municipality to close down the theater-complex and the same has been effected. The theater-complex has not been able to run the shows after that. Hence, the petitioner is before this Court. 5. The learned Counsel appearing for the respondent Municipality, as a preliminary objection contests the _locus standi_ of the - 4 - WP(C) No.26168 of 2017 petitioner and challenge the maintainability, on ground of alternative remedy being available, by way of an appeal before the Local Self Government Institutions Tribunal, against a decision of the Council. On merits, it is argued that before a D & O license is obtained there should be an establishment permit under Section 448 of the Municipality Act. The theater-complex definitely will come within the definition of work place and there are more than five persons employed therein. Without an establishment permit the theater-complex could not have been established, especially when electrical power is used and generators and motors are installed. It is also submitted that the D&O license issued by the Secretary, only indicates the generators installed within the theater-complex and not the motor which has a capacity of 750HP. Specific reference is made to the Kerala Municipalities (Licence to Dangerous and Offensive Trades and Factories) Rules, 2011 ( for brevity Rules of 2011) to contend that Item No.105 in Schedule-I takes in cinema theaters and as per Rule 12 without an Establishment Permit under Section 448, the theater-complex could not have been granted D&O license by the Secretary under Section 447. 6. The learned Counsel for the petitioner submits that cinema theater does not come under either Schedule-I or II of the Rules - 5 - WP(C) No.26168 of 2017 of 2011. It is also submitted that the Council has no authority to take a decision as seen from Exhibit R2(a), since the petitioner was issued with license by the Secretary. If at all the D & O license, issued as seen from Exhibit P11 and the licenses for Exhibition of Cinematograph Shows, under Exhibits P8, P8(a) and P8(b); are to be canceled, the Secretary had to initiate the proceedings. Further it is submitted that the decision of the Council was without any notice to the petitioner and the same can be interfered with; in a petition under Article 226. Another compelling argument raised is based on Section 6 of the Kerala Cinemas (Regulation) Act, 1958 (Cinemas Regulation Act), which excludes applicability of the Kerala Municipality Act , 1994 for licenses issued under that Act. 7. As to the _locus standi,_ the Registry had also raised a defect, but however later the writ petition was numbered on the petitioner specifically pointing out the second paragraph of the writ petition. The second paragraph of the writ petition indicates that the petitioner's brother, who is the owner of the theater-complex, is in judicial custody as of now. The petitioner had averred that he is managing the affairs of the theater-complex and hence he be permitted to file the above writ petition on behalf of his brother. This Court, on the - 6 - WP(C) No.26168 of 2017 basis of the above submission, does not find any reason to entertain or sustain the contest on _locus standi_ raised by the Municipality. 8. The other preliminary ground raised is of the alternate remedy available from the order at Exhibit R2(a). As was argued by the learned Counsel for the petitioner, the Municipality has not been able to point out any specific provision which enables the Council to interfere with a license granted by the Secretary. The Council, if at all, was of the opinion that an establishment permit was not obtained and that stood against the continuance of the theater-complex, ought to have directed the Secretary to take appropriate proceedings to cancel the license. The “Power to revoke license” as per the Kerala Cinemas (Regulation) Act, 1958, Rule 11, is on the licensing authority, who is the Secretary of the local authority. Yet again, the decision was arrived at without any notice to the owner of the theater-complex or the persons who were managing it. Considering the fact that there is clear violation of principles of natural justice and the Council having exceeded its jurisdiction, this Court is of the opinion that exercise of extraordinary jurisdiction is imminent in the present case. A running business in a theater-complex was abruptly stopped without notice and in excess of the authority conferred; which makes the invocation of the extraordinary - 7 - WP(C) No.26168 of 2017 powers most apt. 9. The learned Counsel for the respondent-Municipality placed heavy reliance on the decision in _**Essar Telecom Infrastructure (P) Ltd. v. State of Kerala**_ **[2011 (2) KLT 516].** It is pointed out that the expansive definition given to “work place” makes it mandatory for the theater-complex to have an establishment permit under Section 448 of the Municipality Act. That was a case in which the questions arose as to whether a Mobile Tower would come within the definition of “building” requiring a permit under the Building Rules applicable to the Panchayat/Municipality and whether the provisions under the Kerala Municipality Act, 1994 and the Kerala Panchayat Raj Act, 1994; respectively Section 448 and Section 233, for establishment of industries, workshops or work places would be applicable. The Division Bench of this Court found that a mobile tower would be a building as defined under the Building Rules; but will not be a work place as defined under Section 448 or Section 233, of the respective enactments, for reason of it not employing more than five persons. 10. This Court is of the opinion that the aforesaid decision does not aid the Municipality at all, especially in the teeth of the provisions pointed out from the Kerala Cinemas (Regulation) Act, 1958. - 8 - WP(C) No.26168 of 2017 This Court does not harbor any doubt as to whether a theater-complex would be a work place. It would be so, for reason of the electric power used and also for reason of the establishment employing more than five persons. Section 6 of Kerala Cinemas (Regulation) Act, 1958 can be usefully read: ## **“6. Licensing authority to permit construction and reconstruction of buildings, installation of machinery, etc. for cinematograph exhibitions -- Any person who intends--** (a) to use any place for the exhibition of cinematograph films; or (b) to use any site for constructing a building thereon for the exhibition of cinematograph films; or (c) to construct any building for such exhibition: or (d) to instal any machinery in any place where cinematograph exhibitions are proposed to be given shall make an application in writing to the licensing authority for permission therefor, together with such particulars as may be prescribed and any provision contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) and the Kerala Municipality Act, 1994 (20 of 1994) or in the rules made under any of them in so far as it relates to any of the matters specified above, shall not apply to any application made under this Section.” - 9 - WP(C) No.26168 of 2017 11. An establishment permit would have been necessary from the Council; but for sub-clause (d) of Section 6(1) of the Kerala Cinemas (Regulation) Act, 1958, which specifically exempts the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 insofar as the matters specified therein, being the licensing of cinematograph exhibitions. The licensing authority as constituted under the Cinemas Regulation Act, is the Secretary of the local authority as per Section 4 of that Act. There are also restrictions on the powers of the licensing authority as laid out in Section 5 of the Act, which are quite different from the considerations applicable to a dangerous and offensive trade. A theater complex is a place where there is a concentration of the public and the safety standards are quite different from a polluting or hazardous industry. In some aspects the concerns are graver and in others not so compelling; hence a separate enactment. The “Approval of Building Permits and Issue of Licenses” are governed by the stringent provisions under Rule 12 of the Kerala Cinemas (Regulation) Rules 1988. This Court is also not inclined to accept the argument of the Municipality that cinema theaters would be covered under Item 105 of Schedule I of the Rules of 2011, which takes in: “ ”. ÕcÕØÞÏÞÕÖcJßÈÞÏß æÎ×ßÈùß dÉÕVJßMßAáµ - 10 - WP(C) No.26168 of 2017 12. The theater-complex has been granted license under The Kerala Cinemas (Regulation) Rules, 1988 [superseding the Rules of 1975], as evidenced from Exhibits P8, P8(a) and P8(b). It is also to be noticed that the license issued by the Secretary specifically notices the Film Division Certificate, Electrical Inspectorate Certificate and Structural Soundness Certificate. The Electrical Inspectorate's certificates produced at Exhibit P4 series, notices the generators and the capacity of the Alternator and Engine. The Chief Electrical Inspector has also sanctioned the installation of the generators as evidenced by Exhibit P-5; in the last column of which, at the place specified for “Connected load”, includes the 2 generators which have been installed in the complex. These are the certificates based on which the Secretary of the Municipality has issued the license under the Cinemas Regulation Act. The sanction issued by the Electrical Inspectorate makes redundant any establishment permit under Section 448 of the Municipality Act, which has to be considered by the Council. Hence, the exclusion of the provisions under the Municipality Act, since the Cinemas Regulation Act mandates a certification and sanction from a technical authority more competent to look into the safety aspects of a public place where there is a concentration of the public within confined - 11 - WP(C) No.26168 of 2017 spaces too. 13. The learned Counsel for the respondent-Municipality has a contention that the generators installed can be exempted only if it is for the exhibition of cinemas and in the subject theater-complex it is used for other purposes, including the functioning of elevators. This Court is not inclined to accept such a constrained interpretation insofar as the exemption specifically granted under the Kerala Cinemas (Regulation) Act, 1958. In this context, as pointed out by the learned Counsel for the petitioner, the Kerala Cinemas (Regulation) Rules, 1988 is to be noticed. Under Rule 112, in all cinema theaters licensed as Air Conditioned theaters, standby power supply of adequate capacity, as determined by the Chief Electrical Inspector to Government, in conformity with I.S.I. Standards, shall be compulsorily installed to ensure adequate circulation of cooled fresh air. Hence, there can be no contention taken up of the generator being permissible for usage for the purpose of exhibition of cinematograph movie alone. The ancillary matters carried on, including air conditioning, cannot be said to be excluded since the exemption available, from the clear words employed in Cinemas Regulation Act, is from the provisions of the Municipality Act. There is no scope for bringing in the provisions of the - 12 - WP(C) No.26168 of 2017 exempted statute by way of a strained interpretation. It is also to be emphasized that the Municipality had never earlier raised a contention of lack of establishment permit in the years when the theater-complex was operated and there is also no complaint raised from any member of the public as to any health hazard being occasioned by its functioning. 14. The learned Counsel for the respondent-Municipality on the question of license fees payable, has a contention that license fee as available under Schedule III, item Nos.10 and 11, of the Kerala Municipalities (Licence to Dangerous and Offensive Trades and Factories) Rules of 2011 has not been paid. It is very evident that the D&O license was issued and continued all these years. If the Municipality had a contention that more license fee has to be paid, then a demand ought to have been raised. Without raising a demand, the Municipality cannot now attempt to close down the theater-complex and in any event that is not a ground on which closure can be effected. 15. Further, it is to be specifically noticed that the contention with respect to installation of generator was never intimated to the theater-complex. The notice issued by the Secretary at Exhibit P15 also rejected the consideration of the application for renewal of D&O license only on the ground that there is no Consent Renewal by the Pollution - 13 - WP(C) No.26168 of 2017 Control Board. The decision of the Council also referred to the Consent Renewal of the Pollution Control Board having not been produced before the Municipality. It is in the authorisation, at Exhibit P20, that the allegation with respect to generator and the motor being operated without permission was noticed. This Court having found that there is no requirement for an establishment permit under Section 448 of the Kerala Municipality Act, 1994; the said defect, as noticed in the authorisation which was not at any time earlier put to the petitioner, cannot survive. 16. Likewise, the renewal of Consent to Operate effected by the Pollution Control Board is produced at Exhibit P10. The learned Counsel for the respondent-Municipality has a contention that the averments in the writ petition that the Consent Renewal was produced before the Municipality is not correct especially going by the letter issued by the Manager of the theater-complex, as is seen at Exhibit R2 (c). True, there is some discrepancy in the averments in the writ petition which goes against Exhibit R2(c) issued by the Manager. However, they are not serious enough to non-suit the petitioner and in any event as of now the Consent has been renewed by the Pollution Control Board, as seen from Exhibit P10. That was the only ground available in - 14 - WP(C) No.26168 of 2017 Exhibit P15 notice issued by the Secretary and the decision taken by the Council at Exhibit R2(a). 17. For all the above reasons, this Court does not find any reason to permit the Municipality to close down the theater-complex. Exhibits P15 and P20 are unsustainable and would stand set aside. The decision of the Council, produced at Exhibit R2(a), cannot be acted upon for reason of the Council having acted without any authority and without following principles of natural justice. The theater-complex is entitled to be functioned without interference from the Municipality on the objections urged and negatived herein above. Writ petition allowed. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]