VAMAKASITY v. EXECUTIVE OFFICER, OCHIRA PANCHAYAT — 1981 DIGILAW 342 (KER)

Judgment :- 1. Petitioner with her husband and daughter owns an extent of 55 cents of land in Perinad Village. According to the petitioner, this land was granted on a licence to one Vijayan, who however contends in some other proceedings that he has been put in possession of the same as a lessee. In O. S. No. 122 of 1980 of the Karunagappally Munsiff's Court, the question directly arises as between the petitioner and Vijayan as to whether this transaction between them in respect of the property, evidenced in this case by Ext. P5 is a lease or licence. 2. The period of occupation stipulated in the deed Ext. P5 was ten years and the purpose of the grant was conduct of cinema in the property for the stipulated period. 3. The fourth respondent applied to the Executive Officer, Oachira Panchayat, the second respondent for grant of a licence for conducting the cinema in the property for the year 1978-79 under the provisions of the Kerala Cinemas (Regulation) Act, 1958. The fourth respondent was conducting cinema shows in the site from 1969 and it would appear that in the earlier periods he had applied for and obtained licence as Manager of the Cinema under Vijayan. In regard to the year 1978-79, petitioner and her daughter objected to the issuance of the licence. By order dated 19-10-1979 the Executive Officer rejected the application for licence. Consequently, fourth respondent moved this Court in O P. No. 4163 of 1979 challenging the Executive Officer's order. Before filing the writ petition, he had filed an appeal to the Panchayat from the order of the Executive Officer. During the pendency of the writ petition - O. P. No. 4163 of 1979 the Panchayat passed a resolution directing the Executive Officer to issue a licence to the first respondent after obtaining from him an agreement to discharge the arrears of tax due to the Panchayat in respect of the said cinema by the prior licencee in monthly instalments of Rupees One hundred each 4. Fourth respondent, then moved in the pending O.P. No. 4163 for implementation of the Panchayat resolution He was able to get the O.P. disposed of on the basis of the submission made on behalf of the Panchayat that the Executive Officer was bound to implement the Panchayat decision. Fourth respondent, then moved in the pending O.P. No. 4163 for implementation of the Panchayat resolution He was able to get the O.P. disposed of on the basis of the submission made on behalf of the Panchayat that the Executive Officer was bound to implement the Panchayat decision. The present petitioner or the other co-owners of the property were not parties to that writ petition. 5. However, being aggrieved by the direction given in the O.P., though not a party to the O.P, the present petitioner filed an appeal to the Division Bench W.A.155 of 1980. In disposing of the said appeal, allowing the same, Chief Justice Eradi speaking for the Bench, pointed out that the Panchayat had acted in violation of the principles of natural justice in allowing an appeal from the Executive Officer's order without hearing the owners of the property on whose objections, the proceedings under appeal had been passed. In the original petition, the owners of the property had not been made parties and further, it was also not brought to the notice of the learned single judge who had disposed of the writ petition that the Executive Officer had rejected the prayer for the grant of the licence as the applicant had not established any valid right to be in possession of the land Therefore, the learned Chief Justice observed that the direction of the learned judge for implementation of the Panchayat resolution ought not to have been made. The judgment in the O. P. was accordingly set aside. The court then said: "It is made clear that we are not expressing any opinion on the question as to the entitlement or otherwise of the writ petitioner to the grant of the licence. We are informed that the period of the licence that had been granted to the writ petitioner in implementation of Ext.-P12 had expired on 19 8 1980 and that subsequently it has been renewed till 14101980 Counsel appearing for the appellant submitted before us that in the interest of justice, notwithstanding the quashing of Ext. P12 the writ petitioner may be allowed to conduct the cinema on the premises till the date of expiry of the current licence, namely 14-10-1980. P12 the writ petitioner may be allowed to conduct the cinema on the premises till the date of expiry of the current licence, namely 14-10-1980. We direct that no renewal of the said licence should be granted by the Executive Authority or by the Panchayat until after the appellant before us and the other joint owners of the property are afforded an opportunity to make their representations touching the matter and the licensing authority is DULY SATISFIED THAT THE APPLICANT HAS a legal right to apply for and obtain a licence in respect of the plot under the Act." (emphasis added) 6. In pursuance of the aforesaid directions, the Executive Officer issued notice to the petitioner in the matter of renewal of licence. Along with the other joint owners petitioner filed objections to the issual of the licence prayed for by the fourth respondent. While holding that the said respondent had not established any legal right to the property or to possession of the same, the Executive Officer granted him time of one month to produce proof of his right over the property. However, at the same time a temporary licence for one month was also issued to the applicant. 7. Petitioner challenged this grant in O. P. No. 4301 of 1980. But in view of the fact that the application for licence was rejected by the Executive Officer pending O. P. and the appellate authority the Panchayat submitted before court that no temporary licence would be issued under R.24 of the Cinemas Regulation Rules, the O. P. was dismissed as infructuous. Meanwhile, the fourth respondent had filed an appeal before the Panchayat, the third respondent under S.5(7) of the Kerala Cinemas Regulation) Act for setting aside the order of the Executive Authority. The Panchayat purported to hold that the fourth respondent is entitled to the benefit of S.106 of the Kerala Land Reforms Act on the basis that he must be deemed to be an assignee of Vijayan, taking the transaction evidenced by Ext. P5 to be a lease. The Panchayat took the view that Ext. P5 evidences a lease transaction and the requirements of S.106 of the Kerala Land Reforms. Act are satisfied in the case. According to the Panchayat, fourth respondent has bow the ownership and possession of the land and therefore it directed the Executive Officer to issue a licence for the conduct of the cinema. The Panchayat took the view that Ext. P5 evidences a lease transaction and the requirements of S.106 of the Kerala Land Reforms. Act are satisfied in the case. According to the Panchayat, fourth respondent has bow the ownership and possession of the land and therefore it directed the Executive Officer to issue a licence for the conduct of the cinema. Ext. P6 produced in this proceedings is the copy of the order of the Panchayat which is dated 9-2-1981. On the same, the Panchayat Executive Officer has passed orders renewing the licence, a copy of which is marked in this case as Ext. P7. 8. The petitioner questions Exts.P6 and P7 as being illegal and without jurisdiction and seeks to quash them. According to him, the Panchayat has exercised its appellate powers mala fide and the statutory revision cannot in the circumstances be an appropriate or efficacious alternate remedy. The petitioner's case is that the appellate authority has no jurisdiction to decide a question as to whether a person applying for licence or the renewal of licence is a lessee entitled to fixity of tenure under S.106 of the Kerala Land Reforms Act which power vests in the civil courts or the Land Tribunals in accordance with the statute. What the Licensing Authority and the Appellate Authority are entitled to do under S.5 of the Kerala Cinemas (Regulation) Act and the rules framed thereunder, is only to scrutinise the documents produced before them to find out whether there is any legal possession with the applicant in respect of the property. The third respondent is only entitled to direct the appellant before it to obtain an adjudication on his claim before an appropriate authority or the civil court and thereafter apply for the issue of a licence or the renewal of the licence. 9. The order Ext. P6 is vitiated by errors of law, according to the petitioner because Ext. P5 is evidence of only a licence and not a lease. There is no right in the grantee under Ext. P5 capable of being assigned. He would also submit that there is no evidence to show that 'building' within the meaning of S.106 of the Kerala Land Reforms Act was constructed by the grantee before the crucial date specified in the section. 10. There is no right in the grantee under Ext. P5 capable of being assigned. He would also submit that there is no evidence to show that 'building' within the meaning of S.106 of the Kerala Land Reforms Act was constructed by the grantee before the crucial date specified in the section. 10. The petitioner has also got a case that the finding that the fourth respondent is entitled to the benefits of S.106 of the Kerala Land Reforms Act is based on mere surmises and conjectures and has no foundation in fact or law. The petitioner's counsel, Shri Balasubramanyan here pointed out that the observation in Ext. P6 that the "real tenant" bXmA° hmSIimcmb has transferred his rights under the "tenancy" agreement to the fourth respondent herein is without any basis and asserted that no such document of transfer had been produced before the Panchayat. 11. A further argument has been advanced by the petitioner that the order Ext. P6 does not entitle the Appellate Authority to direct the grant of the licence under the Act concerned. Only a unanimous decision by the Appellate Authority would amount to a valid decision under the Act and the Rules. A substantial number of members constituting the Appellate Authority, having objected to the appeal being allowed, the decision contained in Ext. P6 cannot have the legal effect of overturning the decision of the licensing authority under S.5 of the Kerala Cinemas (Regulation) Act. 12. The speed with which Ext, P6 was written up and the further fact that Ext. P7 was issued the same day immediately after the Panchayat resolution are pointed out by the petitioner for contending that the decision was not a bona fide one. There is also the contention that no opportunity was given to the petitioner to show that S.106 of the Kerala Land Reforms Act has no application to the case. 13. Both Panchayat, the third respondent and the fourth respondent have countered the petitioner's contentions. The Panchayat states that the fourth respondent was conducting the cinema and the licence was being issued in his name from 1969 onwards up to date. The granting of such licence was not objected to at any time till 1980 because the said Vijayan has transferred his rights over the land to the fourth respondent. Ext. The Panchayat states that the fourth respondent was conducting the cinema and the licence was being issued in his name from 1969 onwards up to date. The granting of such licence was not objected to at any time till 1980 because the said Vijayan has transferred his rights over the land to the fourth respondent. Ext. P6, the counter affidavit filed on behalf of the Panchayat states, has been passed on merits and the Panchayat Committee has jurisdiction to pass Ext. P6 order under the provi-sions of the Cinemas (Regulation) Act. When the applicant of licence pleads the benefit of statutory provisions from eviction, the appellate authority is entitled to consider the same. It cannot abdicate its functions. It is also pleaded that when the Panchayat Committee considers an appeal, the majority decision of the Panchayat Committee has to prevail. It is not necessary that the decision should be unanimous. Mala fides and undue influence are denied. Exts. P6 and P7 are valid and no principles of natural justice are violated. 14. Fourth respondent in his counter contends that Ext. P5 evidences a lease. The finding of the Panchayat that the fourth respondent is entitled to the benefits of S.106 of the K. L. R. Act is correct. The fourth respondent refutes any kind of illegality or jurisdictional error which would vitiate Ext. P6 or P7. 15. I might first state that there are no materials on record which would support the petitioner's case of mala fides or violation of principles of natural justice. The court cannot on mere surmises or conjectures infer mala fides in a statutory authority. In the light of the records before me, I will reject these allegations as having been not established. Nor do I find any basis for the contention of the petitioner that the decision of the Panchayat functioning as appellate authority should be an unanimous decision in the absence of a specific provision in the Cinemas (Regulation) Act that such a decision could be taken on the majority view Under S.5 (7) of the Kerala Cinemas (Regulation) Act, when in the matter of issual of licence, the same has been done on the decision of the executive authority taken without the previous concurrence of the local authority, the appeal lies to the local authority. When the appeal is to the local authority, naturally it will have to take a decision on the question, in the manner in which decisions are to be taken by the authority as provided in the Statute constituting that authority. Under the Kerala Panchayats Act, Panchayat takes decisions on matters before it by way of resolutions, on majority vote at the meetings of the Panchayat. (See S.43 and R.8 of the Kerala Panchayats Meetings and Committees Rules, 1962). Even in the absence of Statutory provisions, when a decision has to be taken by a number of persons in a meeting of these persons, under the general law of meetings, the same will have to be on majority. 16. Now we will go into the other contentions raised by the petitioner. A licence is issued under the Cinemas (Regulation) Act under S.5 of the said Act. The relevant provision therein may be quoted herein: "5. (1) The licensing authority shall, in deciding whether to grant or refuse a licence, have regard to the following matters, namely: - [a] the interest of the public generally; [b] the status and previous experience of the applicant; [c] the suitability of the place where the cinematograph exhibitions are proposed to be given; [d] the adequacy of existing places for the exhibition of cinematograph film in the locality; [e] the benefit to any particular locality or localities to be afforded by the opening of new place of cinematograph exhibition; [f] the possession by the applicant of other places, if any licensed under this Act, whether in the same locality or elsewhere, and whether at the time of applying for the licence or at any previous time, and shall also take into consideration any representations made by persons already giving cinematograph exhibitions in or near the proposed locality whether within the jurisdiction of the same local authority or not, or by any police authority within whose jurisdiction the place proposed to be licensed is situated or by any association interested in the giving of cinematograph exhibitions. [2] The licensing authority shall not grant a licence unless it is satisfied that [a] the rules made under this Act have been substantially complied with, and [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 to the persons attending exhibitions therein: Provided that the licensing authority shall, before refusing to grant a licence under this Act, give the applicant an opportunity of showing cause against the proposed action." Rule 17(iii) of the Cinemas Regulation Rules, 1975 framed under the above Act is also pertinent in the context. 17 (iii) documentary evidence pertaining to the ownership and possession of the site, building and equipment and if he is not the owner, documentary evidence to show that he is in lawful possession of the site, building and equipments to the satisfaction of the Licensing Authority." 17. What is 'lawful possession' on the basis of a similar rule in Madras State has been explained by the Supreme Court in M. C. Chockalingam v. V. Manickavasagam (AIR. 1974 SC. 104) 'Turning to R.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 this ownership but also regarding his possession' It is implicit, that the owner having 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 R.13. 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 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 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 R.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 Laliu Jeshwant 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 always per se be equated with lawful possession." 18. The question of lawful possession being a jurisdictional factor in the grant of licences, the Licensing Authority has jurisdiction to decide the same. No doubt, the decision is not conclusive to bind the civil court or the Land Tribunal. And if there is already a decision by the civil court or the Land Tribunal on the matter, that will be binding on the Licensing Authority. But for taking a decision as to whether a licence should be granted or not, collaterally the Licensing Authority will have to take a decision whether the applicant has got lawful possession of the property. And there also as a jurisdictional factor, certainly not conclusive as between the parties, the Licensing Authority can find whether an applicant can sustain his possession under S.106 of the Kerala Land Reforms Act. If one refuses to recognise the right of an authority to take a decision on a collateral fact as a jurisdictional factor for entering the decision for which the authority is empowered, it will be impossible for statutory authorities to function properly. If one refuses to recognise the right of an authority to take a decision on a collateral fact as a jurisdictional factor for entering the decision for which the authority is empowered, it will be impossible for statutory authorities to function properly. No doubt, as is well established, by a wrong decision on a jurisdictional factor, a tribunal of limited jurisdiction cannot give itself jurisdiction. The correctness of the decision on the same can be questioned in appropriate proceedings. It can be challenged before this Court under Art.226 or 227. 19. However, T am not able to comprehend the argument advanced by Shri. V. Parameswara Menon, learned counsel for the fourth respondent, that the owner of the property has no locus standi to challenge the decision of the Licensing Authority or the Panchayat under Art.226 of the Constitution No doubt, as pointed out in V. D. Kumarappin v. Secretary, Home Department (AIR. 1960 Kerala 378) and relied on in Manjunath v. Veerandra Kumar (1981 (2) KLJ 147) 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. It is difficult to say however, that the owner of land, who objects to licence being granted to a person who claims to be in legal possession of the land counter to the owner's claim that he is not in such possession, is not interested in the subject-matter of such grant of licence. Licence in such cases would certainly be casting a cloud on the landlord's right. While it may be true that a mere irregularity in the issuing of a licence cannot be questioned by a person who has no right to obtain a licence in his favour as held in Bharat Bhushan v. C.&C. Magistrate (AIR. 1956 All. 99), I am notable to accept as correct many of the broad propositions laid down in that decision. For example the statement there that under S.5(3) of the Cinematograph Act, the State Government need not issue notice to parties before it exercises its control on the ground that the directions are neither judicial nor quasi judicial. 1956 All. 99), I am notable to accept as correct many of the broad propositions laid down in that decision. For example the statement there that under S.5(3) of the Cinematograph Act, the State Government need not issue notice to parties before it exercises its control on the ground that the directions are neither judicial nor quasi judicial. Even if such directions are administrative in essence, as it will indirectly at least affect the right of a rival claimant to the theatre, issue of notice to interested parties is essential. Moreover, administrative authorities cannot cast a cloud on a person's right to property or immediate possession of the same without hearing him. 20. Mr. Balasubramanyan is quite right in stating that there are no records produced in the matter to indicate that Vijayan had transferred his rights under Ext.P5 to the fourth respondent. Even if Vijayan has not transferred his rights it may be that if the applicant establishes by proper evidence that he is in possession with the due permission of Vijayan and Vijayan has no objection to the grant of licence and further that Vijayan is found to be in lawful possession, applicant can be granted licence. However, the Panchayat has not considered the question on that basis. Therefore, I would set aside Exts. P6 and P7 The Executive Officer in his decision has also not considered all aspects of the matter. Therefore, I would quash his decision also and direct him to consider the question afresh after affording the parties further opportunity in the matter of establishing their respective contentions. O. P. is allowed as above. No costs.