V. R. MANJUNATH v. M. V. VEERENDRA KUMAR — 1981 DIGILAW 18 (KAR)

G. N. SABHAHIT, J. ( 1 ) THIS writ petition is directed against an order renewing licence as per Ext.-A, in respect of a theatre situate at No. 1, old Madras Road, Bangalore, in favour of respondent-1. ( 2 ) THE writ-petitioner, according to him, is the landlord of the premises and his grievance is tha,t Respondent-1 was not in lawful possession of the theatre and the land on the date on which the district Magistrate renewed the licence. According to him, under Rule 6 of the karnataka Cinemas (Regulations) rules, 1971, it was necessary for the applicant before the District Magistrate to produce documents and to prove to the satisfaction of the licensing authority that he was in lawful possession of the site and the theatre with equipment, before the licence could be renewed. It is the case of the present writ-petition- erlandlord that he had leased the theatre for a period of ten years from 10-7-1970 and the lease came to an end by efflux of time on 9-7-1980 and, as such, he submitted that the applicant, on the date on which he applied for renewal of licence was not in lawful possession of the theatre and the premises and, as such, the licence could not be renewed. ( 3 ) THE writ petition is resisted firstly on the ground that the present writ- petitioner has no locus standi to come up with this writ petition as he has not suffered any pers9nal injury or grievance and, secondly, that there is no merit in the contention that respondent-1 in the writ petition was not in lawful possession of the premises and the theatre on the date on which the licence was renewed. ( 4 ) THE points, therefore, that arise for my consideration in this proceeding are: (1) Whether the present writ-petitioner has locus standi to institute the present writ petition? and (2) Whether the District Magistrate was justified in holding that the applicant, viz. , respondent-1 in the writ petition, was in lawful possession of the premises, including the theatre, on the date on which the licence was renewed. and (2) Whether the District Magistrate was justified in holding that the applicant, viz. , respondent-1 in the writ petition, was in lawful possession of the premises, including the theatre, on the date on which the licence was renewed. ( 5 ) THE learned Advocate Shri Byra reddy appearing for respondent-1 invited my attention to a decision of the supreme Court in the case of Jasbhai motibhai Desai v. Roshan Kumar Haji bashir Ahmed (1), wherein it is laid down that before a writ petition to invoke certiorari jurisdiction is entertained, the Court should satisfy itself as to the locus standi of the petitioner. Speaking on this aspect, the Supreme court of India, in para-48 of the judgment, observes:"it is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well-established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money. "the observations are unexceptionable. Speaking about the standing of a petitioner, the Supreme Court of India, at para-33 has observed:"this Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under article 226, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter- See State of Orissa v. Mahadan Gopal, 1952 SCR 28 ; Calcutta Gas Co. v. State of WB, 1982 supp. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter- See State of Orissa v. Mahadan Gopal, 1952 SCR 28 ; Calcutta Gas Co. v. State of WB, 1982 supp. 1 SCR 1; Ram Umeshwari suthoo v. Member, Board of Revenue, orissa, (1967) 1 SCA 413; Gadda Venkateshwara Rao v. Government of AP, air 1966 SC 828 ; State of Orissa v. Rajasaheb Chandanmall, AIR 1972 SC 2112 ; Dr. Satyanarayana Sinha v. M\s. 5. Lal and Co. AIR 1973 SC 2720 ". Similar observations are made by this court. ( 6 ) THUS, it is necessary to find out whether the writ-petitioner has personal or individual right in the subject-matter of the application and whether there is infringement of some legal right or prejudice to some legal interest inhering in the petitioner. ( 7 ) THE learned Advocate Shri V. K. Govindarajulu appearing for the writ- petitioner no doubt invited my attention to the fact that the writ-petitioner is the landlord of the premises and, as such, he is interested. ( 8 ) BUT, what the Supreme Court of india has stressed is that he should be interested in the subject-matter of the petition and tha,t there should be, as a general rule, some infringement of some legal right vested in him. ( 9 ) THE point, therefore, that arises for my consideration is: 'whether by respondent-1 getting his licence renewed to run the cinematograph, any right inhering in the petitioner is affected adversely?' ( 10 ) SPEAKING on this aspect, the High court of Kerala in the case of in a similar case, has observed:"the grant of a licence to the respondent could in no way impair his right as landlord to recover possession of the talkies if he was otherwise entitled just as the refusal of a licence could in no way enlarge his rights. " ( 11 ) THUS, it is obvious that the granting or refusing of a licence in favour of the present respondent-1 would not in any way affect the rights of the present writ-petitioner as a landlord. " ( 11 ) THUS, it is obvious that the granting or refusing of a licence in favour of the present respondent-1 would not in any way affect the rights of the present writ-petitioner as a landlord. ( 12 ) BUT, the learned Advocate appearing for the writ-petitioner came out with the truth when he stated that if the licence is not issued to the present respondent-1, it would be easy for him to recover possession, which is obviously an oblique motive. It cannot confer any standing of the present writ petitioner to invoke the certiorari jurisdiction. Without more, the writ petition is liable to be dismissed. Since, however, the matter was argued, on merits also at some length before me, I would proceed to consider also the merits of the case. ( 13 ) THE learned Advocate appearing for the writ-petitioner invited my attention to a decision of the Supreme Court in the case of in para-14 of the judgment, considering Rule 13 of the madras Rules on the subject, which is similar to our Rule, the Supreme Court has observed thus:"mr. Gupte strenuously submits that 'lawful possession" cannot be divorced from an affirmative, positive legal right to possess the property and since the lease had expired by efflux of time the tenant in this case had no legal right to continue in possession. In the context of R. 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in 'lawful possession,' of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through court process, such as under the Rent control Act. Section 6 of the Specific relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title. "he, further invited my attention to para-15 of the judgment, which reads thus:"turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. "he, further invited my attention to para-15 of the judgment, which reads thus:"turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner haying a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in 'lawful possession', although the word 'lawful' is not used in the first part. It is in that context that the word 'possession' is even not necessary to be qualified by 'lawful' in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is ho question of his showing title to the property and the only requirement of the law is to pror duce to the satisfaction of the authority documentary evidence with regard 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 a 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 wrongfully or forcibly dispossessed from it. This Court in Lallu yeshwant Singh's Case, (1968) 2 SCR 203 = ( AIR 1968 SC 620 )-Supra) 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. This Court in Lallu yeshwant Singh's Case, (1968) 2 SCR 203 = ( AIR 1968 SC 620 )-Supra) 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. "relying on these passages, the learned advocate appearing for the writ-petitioner submitted that the possession of the tenant was not lawful and, if at all, it was litigious and nothing better. ( 14 ) REPELLING this contention, the learned Advocate for respondent-1 invited my attention to Clauses 15 and 17 of the lease deed (produced at Ext.-B) wherein there is clearly an option to renew the lease given to the tenant, on terms mutually agreed upon by the parties. Relying on these, he submitted that there was a, legal foundation for possession of the tenant and, as such. respondent-1 (tenant) was in lawful possession as a tenant having exercised his option to renew the lease as per the notice issued to the landlord on 27-2- 1980. Alternatively, he submitted that even after the expiry of the lease, the landlord, viz. , the present writ-petitioner, went on accepting the rent from month to month and further he did not exhibit any intention not to renew the lease as he did not comply with what was mentioned in Clause 2 of the agreement by adjusting the deposit of Rs. 25,000 towards rents of the last months. Thus, he submitted that there was fresh tenancy created by holding over as contemplated under S. 116 of the Transfer of Property Act and even in that view, his possession was lawful. Thus, he submitted that lawful possession was established on the facts of this case with the concomitant existence of lawful relationship between the landlord and the tenant. ( 15 ) I would presently proceed to consider the merits in the rival contentions. ( 16 ) IN the case of referred to supra, it is necessary to remember that there was no option given to the tenant to renew the lease. The Supreme Court of India was considering the case of a lease which came to an end by efflux of time, pure and simple. In the present case, however, there are clauses In the lease deed itself which enable the tenant to renew the lease. The Supreme Court of India was considering the case of a lease which came to an end by efflux of time, pure and simple. In the present case, however, there are clauses In the lease deed itself which enable the tenant to renew the lease. ( 17 ) CLAUSE 15 of the lease deed reads:"after the expiry of the said term of ten years, if the lessee wishes to continue the lease, it will be on, such terms and conditions 'to be agreed upon between the lessor and lessee," (Emphasis added ). Again, in Clause 17, it is stated:"the lessee shall, on the expiry of the term of the lease, if not renewed or on the expiry of the term of the renewed lease or on the sooner determination thereof as provided here- under, deliver vacant possession of the cinema theatre to the lessor. " ( 18 ) THUS, it is obvious, by mere perusal of Clauses 15 and 17 of the lease deed, that the parties intended that the lessee shall have the option to renew the lease deed on such terms and conditions to be agreed upon between the lessor and the lessee. ( 19 ) IT is settled law that even if there is any ambiguity in construing the clauses with regard to the renewal of the lease, the benefit shall go to the grantee and not to the lessor. ( 20 ) IN a similar case, our High Court, in the case of has observed in para-6 of the judgment thus:"this takes us to the renewal clause i. e. , clause 3rd of Ex. L. The second defendant claims that the lease, in his favour stood duly renewed on 1-3-47 for a further period of 5 years as per the renewal clause. The said clause reads: 'after the expiry of the, period of 5 years fixed under this lease the lessees shall have the option of 5 years but subject only to such terms and conditions as may be mutually agreed upon. 'the parties are at controversy as regards the true meaning of this clause. According to the plaintiff, the clause means that the lessor and the lessee may choose to renew the lease if they are able to agree on the terms. In other words, he contends that it was merely an agreement to negotiate for a fresh lease. 'the parties are at controversy as regards the true meaning of this clause. According to the plaintiff, the clause means that the lessor and the lessee may choose to renew the lease if they are able to agree on the terms. In other words, he contends that it was merely an agreement to negotiate for a fresh lease. Ordinarily the renewal clause in a lease deed is an important term of the agreement. Courts will be reluctant to ignore that clause on the ground that it is vague, unless on a reasonable construction no meaning can be attached to it. " We think that the parties to ex. L did attach some meaning to that clause. What then is its import? one way of reading this clause is, that the parties had agreed to renew the lease, for a further period of five years in accordance with the original terms, unless otherwise modified by mutual agreement. The relevant portion of the clause says: 'the lessees shall have the option of five years but subject only to such terms and conditions as may be mutually agreed upon'. An agreement to renew the lease without more must be deemed to be an agreement to renew as per the original terms. This appears to us to be a reasonable interpretation to be placed on clause 14 of Ex. L. Even if we agree with the plaintiff's contention that the renewal provided is dependent on the agreement between the parties on other terms, on the basis of decided cases, we have no hesitation in reading that clause as providing for an agreement between the parties on terms reasonable. If the parties are at variance as to those terms then the Courts will step in. See Probinson v. Thames Mead Park estate Ltd (1947) 1 Ch. 334; Foley v. Classique Coaches Ltd. (1934) 2 KB 1; killas and Co. Ltd. v. Acros Ltd. 1932-147 LT 503; Jardine Skinner and co. v. Rani Surat Sundari Debi, 5 Ind app 164 (PC); Prodyot Commar tagore v. Maynuddin Mia, AIR 1938 cal. 724 ). ( 21 ) THESE observations made by a division Bench of this Court apply on all fours to clauses 15 and 17 of the present lease deed. Ltd. v. Acros Ltd. 1932-147 LT 503; Jardine Skinner and co. v. Rani Surat Sundari Debi, 5 Ind app 164 (PC); Prodyot Commar tagore v. Maynuddin Mia, AIR 1938 cal. 724 ). ( 21 ) THESE observations made by a division Bench of this Court apply on all fours to clauses 15 and 17 of the present lease deed. It is the option of the tenant to claim renewal of the lease and, if the terms are to be varied they should be settled on nutual consent of the parties; if they are at variance, it is for the Court to settle the terms. But, there can be no doubt about the option given to the tenant for renewal. In the instant case, as stated above, the tenant has exercised the option to renew the lease by notice to the landlord before the expiry of the lease i. e. ,. 27-2-80. Therefore, it is obvious that a fresh lease has come into existence and there is already relationship of landlord and tenant between the parties and the possession of respondent-1 is perfectly lawful on the date when licence was renewed. ( 22 ) THE learned Advocate appearing for the writ petitioner, however, invited my attention to a decision of this Court in the wherein the clause that came up for consideration reads as follows: -"on the expiry of the period of lease specified hereinbefore and in respect of any new lease, the Lessors may enter into at that time, the lessors are agreeable to give first priority to the Lessees' application for fresh lease provided the Lessees agree to the terms and conditions of the Lessors to be stipulated a,t that time. ". Interpreting this clause, his Lordship held:"under the renewal clause no right is given to the petitioner to claim renewal as of right, at her discretion. " ( 23 ) THERE can be no quarrel with this proposition. The renewal clause makes it amply clear on the facts of the case that if at all the lessor intends to lease the property, the right being his, first choice should be given to the tenant. Therefore, the option was entirely with the lessor and not with the lessee. That is what the Court hap held. The ruling has no application to the facts of the present case. Therefore, the option was entirely with the lessor and not with the lessee. That is what the Court hap held. The ruling has no application to the facts of the present case. ( 24 ) THAT being so, I am satisfied that the tenant in this case, having exercised his option to renew the lease, has been continuing in lawful possession. ( 25 ) I will presently advert to the alternative plea raised by the learned advocate appearing for respondent-1. He invited my attention to Clause (2) of the lease deed, which reads:"the lessee has paid an Advance of rs. 25,000 to the lessor; the said advance shall bear no interest. This advance of Rs. 25,000 shall be adjusted towards the rent due for the last months of the tenancy. " ( 26 ) IT is an undisputed fact that this amount of Rs. 25,000 was never appropriated by the lessor towards rents for the last months of tenancy expiring on 9-7-80. That only shows that he had no intention to determine the lease. Not merely that. After the period was over, he went on accepting the rents, which obviously brought into effect a fresh tenancy as contemplated under S. 116 of the Transfer of Property Act by the doctrine of holding over. That also creates the relationship of landlord and tenant and the possession of the tenant is rendered quite lawful. ( 27 ) IN this connection, the learned advocate appearing for the writ petitioner, invited my attention to the fact that in November 1980 he issued a notice to the tenant clarifying his intention to determine the tenancy and not to continue respondent-1 as a tenant. ( 28 ) THE short point, in the circum- stances. 'that arises for my consideration in this context is: "whether a specific expression of intention to the contrary would set at nought the tenancy which has already come into existence by the doctrine of holding over?" ( 29 ) IN this connectiqn, the learned advocate appearing for respondent -. 1 invited my attention to a decision of the federal Court. ( 30 ) THIS decision was rendered by eminent Judges like Kama, C. J. , Fazal ali, Patanjali Sastri, Mahajan and B. K. Mukherjea. The judgment of majority was rendered by B. K. Mukherjea, J. , for himself and for Fazal Ali and Mahajan, JJ. 1 invited my attention to a decision of the federal Court. ( 30 ) THIS decision was rendered by eminent Judges like Kama, C. J. , Fazal ali, Patanjali Sastri, Mahajan and B. K. Mukherjea. The judgment of majority was rendered by B. K. Mukherjea, J. , for himself and for Fazal Ali and Mahajan, JJ. In that decision, it is laid down (Per Majority) thus:"the tenancy which is created by the 'holding over' of a lessee or under- lessee is new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and it cannot be disputed that to bring new tenancy in to existence, there must be a bilateral act. What Section 116 contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's or sublessee's continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise. That assent of the landlord which is founded on acceptance of rent must be acceptance, of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. "it is further held thus. "when the cheque was cashed by A, it was done without any reservation or condition whatever. As the agreement between the parties was complete by acceptance of rent as such by A when he cashed the cheque any subsequent protest by him could' not alter its legal consequences. . . " ( 31 ) THUS, it is obvious that the subsequent notice issued by the landlord in the instant case would not in any way alter the legal character that came into existence by the land lord accepting the rent, by his subsequent notice issued in November 1980. ( 32 ) IT is needless for me to point out that the decision of the Federal Court rendered per majority has been approved and accepted by the Supreme Court of India in decisions more than one. ( 33 ) THAT being BO, even on this stand, it is clear that the tenant was in lawful possession of the theatre on the date on which the licence was renewed. ( 33 ) THAT being BO, even on this stand, it is clear that the tenant was in lawful possession of the theatre on the date on which the licence was renewed. ( 34 ) IT is no doubt true that the learned District Magistrate has not used the legal parlance for obvious reasons. But, the conclusion reached by him that tenant has been in lawful possession of the premises is perfectly justified. That being so, there (is absolutely no ground to challenge the renewal of the licence in the present writ petition. ( 35 ) IN the result, therefore, on grounds more than one, the writ petition is liable to be dismissed and i dismiss the same. ( 36 ) SHRI M. R. Achar, the learned high Court Government Advocate, is permitted to file his memo of appearance within four weeks. No costs. --- *** --- .