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1999 DIGILAW 450 (KAR)

K. Srinivasa Murthy Setty v. District Magistrate

1999-08-25

G.C.BHARUKA, MOHAMED ANWAR

body1999
JUDGMENT G.C. Bharuka, J.—The writ Petitioner has preferred this intra Court appeal against the order dated 5.7.1999 passed by the learned single Judge, which is to the following effect: The controversy in the present Writ Petition is regarding the lawful possession of the Petitioner for running the cinema. It has been brought to this Court in Writ Appeal Nos. 2546-47 of 1999, a Division Bench has already referred this controversy, on 23.6.1999, to the Full Bench because of conflict of judgments in K.E. Goverdhan Vs. N. Krishna Rao, ILR (1986) KAR 1024 and Bhagyashree Combines a Registered Partnership Firm, Bellary v. District Magistrate, Bellary and Ors. AIR 1998 Kar 328 . Looking to the controversy, since the matter has already been referred to the Full Bench, I consider that whatever decision may be given by the Full Bench, would be applicable to the Petitioner and the Petitioner would be free to move the Respondents for grant of licence if the matter is decided in his favour at that stage. Writ Petition is disposed of accordingly. 2. The relevant facts lie in a short compass. The Appellant had taken two adjacent pieces of lands on lease from second Respondent Sri H.C. Revanasiddiah under two lease deeds dated 8.10.1975 and 23.8.1979 for a period of 20 years and had constructed a cinema hall thereon. Though according to the writ Petitioner, the leases were to expire on 1.1.2002 since the period of 20 years had to commence from 1.1.1982, which according to him is the date on which film shows had started. But it has been found by the licensing authority, the District Magistrate, as well as the Commissioner, being the appellate authority, that the lease period had expired during 1996. Accordingly the said authority has refused to renew the licence under the provisions of the Karnataka Cinema (Regulation) Act, 1964 ("the Act". for short) read with Karnataka Cinema (Regulation) Rules, 1971, on the ground that the possession of the Petitioner is not lawful. The authorities under the Act have also held that Harihar town, where the leased land situate is not covered by the provisions of the Karnataka Rent Control Act, 1961. 3. Now it is admitted by both the parties that Harihar town lies within the limits of a municipal city under the Karnataka Municipalities Act, 1964. The authorities under the Act have also held that Harihar town, where the leased land situate is not covered by the provisions of the Karnataka Rent Control Act, 1961. 3. Now it is admitted by both the parties that Harihar town lies within the limits of a municipal city under the Karnataka Municipalities Act, 1964. The Municipality for the said town was constituted under notification No. HUD 354 MLR 95, dated 7.10.1995. A copy of the gazette notification to the said effect has been placed before us. Therefore one of the grounds assigned by the District Magistrate and the Divisional Commissioner for rejecting the application for renewal of the cinema licence of the Appellant is on the face of it is based on the error of record. 4. Now to find out as to whether the possession of the writ Petitioner over the demised land is lawful or not one is required to refer to the provisions contained in Clauses (n) and (r) of Section 3(r) of the Karnataka Rent Control Act, 1961, (in short "the Rent Act".) which defines the 'tenant' in the following terms: 3. Definitions.-In this Act, unless the context otherwise requires- (n) "premises". means- (i) a building as defined in Clause (a); (ii) any land not used for agricultural purposes; (r) "Tenant". means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority. 4. Section 21(1) of the Rent Act, inter alia, provides that: 21. 4. Section 21(1) of the Rent Act, inter alia, provides that: 21. Protection of tenants against eviction.-(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant: Provided that the court may on an application made to it, make an order for recovery of possession of a premises on one or more of the following grounds only, namely: (a) .... to (p) .... 5. Admittedly in view of the above definition the writ Petitioner is a tenant in respect of the lands in question and according to Section 21 of the Karnataka Rent Control Act, 1961, his possession is statutorily protected unless the Court finds that the tenant is liable to be evicted on any of the grounds mentioned in various clauses of the proviso to Section 21(1). We find that mere expiry of lease by efflux of time is not a ground as per the said section for directing eviction of the tenant. It is also a matter of record that the landlord-Respondent-2 has already initiated an eviction proceeding in HRC 3 of 1986 which is pending on the file of the Munsiff, Harihar, which still needs to be adjudicated. Therefore, till appropriate decree for eviction is passed under the Rent Control Act, the writ Petitioner in the capacity of a statutory tenant, is well within his rights to remain on the land and his possession cannot be held to be unlawful. This aspect of the law has been duly considered by the Supreme Court in the case of M.C. Chockalingam and Others Vs. V. Manickavasagam and Others, AIR 1974 SC 104 in paragraph 14 whereof it has been held that: 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. V. Manickavasagam and Others, AIR 1974 SC 104 in paragraph 14 whereof it has been held that: 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 Rule 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. (emphasis supplied) 6. From the above declaration of law by the Supreme Court it is clear that despite expiry of lease, if the possession of the tenant is protected by a Rent Control Legislation then the same cannot be held to be unlawful. In the present cases, as noticed above, despite expiry of the lease, possession of the Petitioner-Appellant is squarely protected by Section 21(1) of the Karnataka Rent Control Act, which permits eviction of a tenant only on the grounds mentioned in its proviso under the above statutory provision, the legislation has not permitted expiry of lease as one of the grounds for eviction of a tenant. Therefore even if the lease as contracted to between the parties was for a fixed period, it became inconsequential for determining unlawfulness of the possession of the tenant. 7. So far as in the case of Bhagyashree Combines Vs. District Magistrate, Bellary and Ors, AIR 1998 Kar 328 is concerned the question which had fallen for consideration before the Division Bench was as to whether leasing of a cinema business with right to use the licence obtained (to screen pictures) and held by the lessors can be said to be letting out of a building as defined under the Karnataka Rent Control Act? No such question is involved in the present case since the Appellant herein has admittedly taken on lease the vacant pieces of lands and not any cinema business as such. 8. No such question is involved in the present case since the Appellant herein has admittedly taken on lease the vacant pieces of lands and not any cinema business as such. 8. In the above view of the matter, in our opinion, the question referred to the Full Bench as noticed by the learned Single Judge is of no consequence for deciding the validity of the impugned orders passed by the authorities under the Cinema Act. Accordingly the impugned order of the learned Single Judge is set aside. We also hereby quash the orders passed by the District Magistrate dated 25.1.1999 (Annexure-B) and that of the Divisional Commissioner dated 30.4.1999 (Annexure-C). 9. The appeal is accordingly allowed with costs. The advocate's fee is assessed at Rs. 1,100/- to be paid by the second Respondent. 10. Now the licensing authority will afresh consider the application filed by the writ Petitioner for renewal of the cinema licence in accordance with law and take appropriate decision within one month from the date of communication of this order by the present Appellant.