Madras High Court
M.C. Kuppuswamy And 2 Others vs The Commissioner Of Police, Greater ... on 20 November, 1997
Equivalent citations: 1998(1)CTC601, (1998)IIMLJ113
ORDER
1. This writ of certiorarified mandamus filed under Article 226 of the Constitution of India is to quash the order of the first respondent, the licensing authority in R.C.No.319/085685/E2(l)/96 dated 6.8.1996 renewing the licence in favour of the second respondent to run the cinema theatre, by name, Kapali Talkies.
2. The facts are not in dispute. The petitioner are the owners of the above mentioned cinema theatre, by name Kapali talkies and the second respondent was given a composite lease of the land, buildings with all the fittings furnitures fixtures, machineries and the entire cinematographic equipments like projectors, screen, complete sound system, record player and all other things required for running the cinema theatre. The original lease was in favour of the second respondent in the year 1984 and periodically it was renewed, and finally, the lease was renewed for 1.4.1996 to 30.9.1996. Therefore, the second respondent had the right to run the abovesaid cinema theatre upto 30.9.1996. In the meanwhile, he applied to the first respondent,the licensing authority, for the renewal of the 'C' Form licence to run the cinema theatre for the period from 1.8.1996 to 14.2.1998. The first respondent, renewed the licence by the order which is being under the challenge on 6.8.1996 for the period from 1.8.1996 to 14.2.1998. The impugned order is challenged on the ground that the first respondent had no powers to renew the licence beyond the period of lease, i.e. for the period from 1.10.1996 to 14.2.1998. As the second respondent had no right to be in possession of the premises to run the cinema the atre, after 1.10.96 the petitioners have come forward with this writ of certiorari to quash the above said order.
3. Thought the first respondent has filed the counter stating that he complied with the conditions mentioned in Rule 92 of the Tamil Nadu Cinemas (Regulation) Rules, 1957 (hereinafter referred to as the 'Rules'), the second respondent has filed a counter raising three points. They are, first, the proceedings under Article 226 of the Constitution of India is not maintainable when especially there is statutory remedy under the Tamil Nadu Cinemas (Regulation) Act, 1955, by way of filing an appeal. The second contention is that in the suit filed by the second respondent before the IV Assistant Judge, City Civil Court, Madras, in O.S. No. 13903 of 1996, the petitioner have given undertaking that they would not dispossess the second respondent from the cinema theatre or interfere with his business by any force or by unlawful means and they would take appropriate legal proceedings against the second respondent in appropriate forum to take vacant possession of the cinema theatre, that this undertaking of the petitioners will amount to the permission given to the second respondent making his possession lawful, till he is dispossessed by due process of law, and therefore, till such proceedings are initiated for taking possession, the 2nd Respondent's possession is lawful, for which the first Respondent has powers to grant licence. The third point raised by the second respondent is on the basis of equity contending that he has spend about Rs. 25 lakhs for the improvement of the theatre and has also installed machineries on the hope that he would be allowed to continue in possession of the building by extending the lease, and therefore, if the licence is not renewed, he will be put to irreparable loss, which cannot be compensated. So the only question is whether the second respondent lessee, whose lease period has expired by 30.9.1996, is entitled to have the licence renewed beyond the abovesaid period and whether his possession is lawful within the meaning of the Rule 13 of the Rules.
4. There is a direct decision on this point in respect of the very same property rendered against the previous lessee, by name V. Manickavasagam. Only after the lease period of the said Manickavasagam, the said cinema theatre was given lease to the second respondent herein. The previous lessee, Manickavasagam, applied for the grant of licence before the first respondent herein, and he also granted the renewal of the licence beyond period of lease and when this was challenged by the landlords, the Board of Revenue set aside the order of the renewal and the same also was confirmed by the single Judge of this Court in the writ proceedings. However, the Bench of this Court set aside that order and affirmed the grant of 'C' Form licence by the Commissioner of Police. But ultimately, when the matter was taken up before the Apex Court, the Apex Court in M.C. Chocklingam v. V. Manickavasagam, has found that the possession by the lessee beyond the period of lease will be unlawful for the purpose of Rule 13 of the Rules. The Apex Court would observe that, "If however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with record to his lawful possession of the property. The word 'lawful', therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting at suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongful or forcibly dispossessed from it. This Court in Lallu Yeshwant Singh v Rao Jagdish Singh, , had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. Again in para 16, it observes that, "Law in genera) prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108(q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lease's continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession .... That being the position, the expression 'lawful possession' in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Madras Cinemas (Regulation) Act, 1955 (Act 9 of 1955). Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule 13. The High Court is, therefore, not correct in its interpretation of Rule 13. The Board of Revenue in appeal was on the other hand, right in interfering with the order of the licensing authority and the learned single Judge of the High Court rightly refused to interfere with the order of the Board under Article 226 of the Constitution." This decision lays down the principle that the possession of a lessee beyond the period of lease is unlawful for the purpose of Rule 13 of the Rules. This has been followed by the Apex Court in the later decision in R.V. Bhupal Prasad v. State of Andhra Pradesh, . In that case, the licensing authority refused to renew the cinema licence after expiry of the lease period as he was a tenant at sufferance. The Apex Court would observe in para 8 that, "The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edition), at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance." In para 13, the Apex Court observed that, "In view of the settled position of law, the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the theatre is unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respondent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry". These decisions have settled the proposition of law that the second respondent's possession after 30.9.1996 is unlawful as the landlords have not approved of his possession by extension of lease.
5. Rule 13 of the Rules reads that, "(1) If the applicant for the licence is the owner of the site, building and equipment, he shall produce to the licensing authority the necessary records relating to his ownership and possession thereof. If he is not the owner, he shall, to the satisfaction of the licensing authority, produce documentary evidence to show that he is in lawful possession of the site, building and equipment." In view of the decisions cited above, when the possession after 30.9.1996 is not lawful, the licensing authority while exercising the power under Rule 13(1) of the Rules is bound to apply their mind to find out whether the licensee will have the lawful possession for the period of the licence. Unfortunately, it appears that the first respondent had not ascertained the fact as to the period upto which the lease was granted. Had he known that the lease was only upto 30.9.1996, he would not have ventured to grant the 'C' Form licence for the period upto 14.2.1998. Therefore, it goes without saying that the licence for the period subsequent to 30.9.1996 is not valid and the first respondent, licensing authority, had no power to grant such licence.
6. The learned Senior counsel for the second respondent Mrs. Nalini Chidambaram relied upon the two decisions which are, Krishna Kishors Firm v. The Government of Andhra Pradesh and others, 1991(1) L.W. 1 and Palace-of-Wales v. The State of Tamil Nadu and another, in support of her contention that the possession of the second respondent is lawful. In the first case, i.e. in Krishna Kishore Firm's case, 1991 (1) LW 1, the Court has found that there was a sale agreement by one of the sharers to sell his share to the lessee, and therefore, the Supreme Court has found that when a person having physical control acquires an interest to hold or continue by virtue of an agreement of sale, it cannot be said that he had no interest in the property and his possession was forbidden. The seller himself cannot disturb his possession in view of the sale agreement with him, and therefore, in that case, it was found that the possession of the lessee was lawful only for the sole reason of his possession under part performance of the contract. In the next decision, which is from this Court, in Palace-de- Wales's case, also the matter arose under the Tamil Nadu Cinemas Regulation Rules, but the lessee in that case was found to be statutory tenant entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, this Court has held that even though the landlord had refused to renew the lease, the lessee therein, being a statutory tenant, had the right to continue in possession even after the expiry of the lease, and therefore, it was found that he was in lawful possession of the building, and he was entitled to the renewal of licence. Hence both these decisions are discernible and they cannot be made applicable for the present case, when especially already the Supreme Court has laid down the law in respect of the very same property in the decision cited above in M.C. Chockalingam v V. Manickavasagam, . No doubt, this Court in Sri Hanuman Vahama Panchaparva Kattalai attached to Sri Venkatachailpathi Peruma Temple Pulivalam v. R.P. Subramanian, 1994 (1) L.W. 467 took the view that the tenant by sufferance who is in possession beyond the period of lease is lawful and be cannot be treated as a trespasser. But this view has been over-ruled by the Apex Court in M.C. Chockalingam v. V. Manickavasagam, . Therefore, at no stretch of imagination, the second respondent can contend that his possession is lawful after the expiry of the period of lease.
7. But the learned counsel Mrs. Nalini Chidambaram contended that the petitioners and the other co-owners of the property had given an unconditional undertaking before the IV Assistant Judge, City Civil Court, Madras, when the tenant filed O.S.No. 13903 of 1996 for injunction against the owners, that they would not dispossess the second respondent the business either by force or by unlawful means, and they would take appropriate legal proceedings to take vacant possession of the cinema theatre, that this undertaking given by the owners of the building will amount to the permission given by them to the second respondent to be in possession till he is evicted by due process of law, and therefore, his possession is lawful. The learned senior counsel further contended that as this solemn undertaking has been given before the Court of law, it has to be taken that the Court also has agreed for the possession of the second respondent, that when the petitioners and the other co-owners have stated in so much words and also made endorsement in the injunction application that they would take appropriate legal proceedings against the second respondent in the appropriate forum for taking delivery of possession, they have no right to interfere with the possession of the second respondent till he is evicted under due process of law, that when the owners themselves had no right to interfere with the possession of the second respondent, certainly, it will amount to lawful possession, and therefore, the second respondent is entitled to the licence within the meaning of Rule 13 of the Rules. But, I am unable to agree with this contention of the learned senior counsel.
8. The undertaking given by the owners of the property is only to avoid the breach of peace by interference with the possession of the lessee. The law does not permit any interference in the possession of another man, to forcibly dispossess him. Section 6 of the Specific Relief Act, 1963 directs the person who is entitled to lawful possession to file a suit for recovery of possession though he was wrongfully dispossessed. Therefore, the statute forbids the forcible dispossession of a person, as it may lead to other consequences, especially, the breach of peace in the area. Therefore, the petitioners and the other co-owners were bound to represent before the Court when they were made parties to O.S.No.13903 of 1996, that they had no intention of forcible dispossession of the erstwhile lessee, the second respondent herein, and as they had to resort to the civil proceedings for recovery of possession of the property, such an undertaking was given by them in writing. We cannot expect a lawful owner of the property, to represent before a Court of law that he would smash the gates of his building and forcibly dispossess a person in wrongful occupation for the reason that he had trespassed into his property. Every citizen is expected to follow the procedures laid down by the statute for any remedy and be cannot take the law in his own hands to have the remedy, even if he has the right to recover the property and the law is on his side. However, he has to seek the remedy only through Court of law. Therefore, what was represented by the petitioners and others before the fourth Assistant Judge, City Court, Madras in O.S.No.13903 of 1996 is nothing but their confidence in the procedure to recover possession of the property through Court and this is what was expected of from the owners at that time when the second respondent had filed a suit for injunction. However, that undertaking will not in any way confer right on the second respondent to clothe him lawful possession, because, the Apex Court in the decision mentioned above in M.C. Chockalingam v. V. Manickavasagam, has found that the possession at sufferance is unlawful as that of trespasser. Therefore, the contention of the learned senior counsel Mrs. Nalini Chidambaram that for the reason of the undertaking given by the petitioners, the second respondent's possession has become lawful, is unacceptable and is rejected outright.
9. The third contention raised in the counter is that the second respondent has invested huge amount of Rs. 25 lakhs for installing new projectors and certain other equipments with the hope that the lease would be continued for a substantial period and he would be put to great hardship if the licence is cancelled. This Court cannot go into the facts whether the second respondent has spent any amount for the improvement of the cinema theatre. He is fully aware of the fact that the lease was only upto 30.9.1996. When be applied for the extension in the month of August 1996, be could have ascertained the views of the landlords as to whether they were willing to renew the lease, of the lease would come to an end with 30.9.1997. Even though we do not know the exact time at which this expenditure was incurred by the second respondent, at least before incurring such expenses, he could have ascertained the views of the landlords or take their consent. Therefore, even if he had invested such a huge amount, though we are not in a position to verify that, it will not take away the right of the landlords to determine the lease or allow him to continue in possession beyond the period of lease or enable him to have the licence renewed beyond the period of lease.
10. One other contention raised by the learned senior counsel Mrs. Nalini Chidambaram is the forum of these proceedings taken by the petitioner. According to her, the statute itself provides the appeal before the concerned authority, but the petitioners without resorting to that procedure has straight away come to this Court with application under Article 226 of the Constitution of India, such procedure should not be allowed when especially the statute provides the right of appeal, and therefore, this writ has to be dismissed. It is true that Section 5(7) of the Tamil Nadu Cinemas (Regulation) Act, 1955, permits for an appeal by the aggrieved person against the order of the licensing authority to the concerned authority and Rule 45 of the Rules permits for such appeal within a period of thirty days from the date of the receipt of the order.
11. But the learned senior counsel for the petitioners Mr. V.R. Venkataraman would contend that the petitioners were not even aware of such an Order passed by the first respondent, because, they were not a party to the application made by the second respondent to the first respondent that only when the second respondent sent a letter along with the copy of the order on 4.10.1996, they came to know about the extension of licence, that when they were not a party to the proceedings before the Commissioner of Police, they cannot file an appeal against that order. He further contended that without the copy of the order passed by the first respondent, no appeal can be filed, but the first respondent in his counter in para 13, has stated that there is no provision in Tamil Nadu Cinemas (Regulation) Act or rules to furnish a copy of the order to the petitioners herein, and therefore, when the licensing authority itself is refusing to grant a copy of the order, there is no possibility for filing any appeal by the petitioners and except resorting to writ proceedings, there is no other way for the petitioners. As we are able to see from para 13 of the counter filed by the first respondent that he was not inclined to grant a copy of the order to the petitioners on the ground that the rules do not permit for granting of any order, there was no possibility of getting the order copy from the first respondent for the purpose of filing an appeal. Under those circumstances, we cannot find fault with the petitioners for having not filed any appeal against the order of the licensing authority.
12. In BabuRam v. ZilaParishad, , the Supreme Court has held that when the order is against the natural justice, the aggrieved party is entitled to resort to the writ court. The Supreme Court further observed in para 3 that, "There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writ for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice". Already it has been answered that the first respondent has no power to grant the license for the period beyond 30.9.1996 as the possession of the second respondent was unlawful. As, the first respondent had no jurisdiction to grant licence beyond the said period, and the jurisdiction of the 1st Respondent is questioned in this proceedings, certainly this petition is maintainable under Article 226 of the Constitution of India. Therefore, taking into consideration of all these aspects, it cannot be stated that the petitioners are not entitled to resort to this proceedings.
13. In view of the discussion above, and also for the reason that the license beyond 30.9.1996 is invalid, the impugned order of the first respondent is liable to be quashed for the period subsequent to 1.10.1996. Hence, the same is quashed. The writ petition is ordered accordingly. There will be no order as to costs. Consequently, W.M.P. No.20196 of 1996 is closed.