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2000 DIGILAW 279 (AP)

R. v. Ram Bhupal Prasad VS Doda Ranga Rao

2000-04-11

N.Y.HANUMANTHAPPA, S.ANANDA REDDY

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N. Y. HANUMANTHAPPA, J. ( 1 ) THIS writ appeal is filed against the judgment of the learned single Judge made in Writ Petition No. 14048 of 1998 dated 1-3-1999. ( 2 ) BEFORE proceeding with the case, it is necessary to know the previous history of the case. ( 3 ) WHEN the matter came up for hearing keeping in view the position in which the parties were placed this Court had suggested for a compromise. Accordingly, the counsel for the parties took time for compromise and the matter was adjourned. Subsequently, the compromise petition was drafted and produced before the Court, but the same was not signed by the parties. The counsel appearing for the respondent landlord then submitted to the Court that the respondent landlord could not come to the Court and as soon as his signature is obtained, the court can proceed with the recording of the compromise. Accordingly, the matter was adjourned from time to time to facilitate the respondent landlord and his counsel to sign the compromise petition. But, to the surprise of the Court, a submission was made on behalf of the respondent landlord that the respondent was not aggreable for the terms of the compromise as he has no faith that the appellant would comply with the terms of the compromise and he requested that the matter may be heard on merits. Accordingly the matter came up for hearing. ( 4 ) THE brief facts of the case are that the respondent writ petitioner is the landlord of the cinema theatre Leela Mahal. On 16-4-1950 lease was granted in favour of the appellant at Rs. 750. 00 p. m. The landlord filed R. C. C. No. 58/1992 on the file of the Principal District Munsif-cum-Rent Controller, Guntur seeking eviction of the appellant on various grounds including wilful default in payment of rents, sub-letting the premises and unauthorised additions to the building besides requirement of the building for bona fide personal occupation. The said R. C. C. was allowed by an order dated 24-6-1996 and eviction was ordered. Aggrieved by the said order, the appellant carried the matter in appeal in R. C. A. 22/96 on the file of the Principal Subordinate Judge, Guntur and obtained stay of eviction on 13-6-96 in I. A. No. 2366/96. The said R. C. C. was allowed by an order dated 24-6-1996 and eviction was ordered. Aggrieved by the said order, the appellant carried the matter in appeal in R. C. A. 22/96 on the file of the Principal Subordinate Judge, Guntur and obtained stay of eviction on 13-6-96 in I. A. No. 2366/96. The landlord then made a representation dated 12-8-1996 to the Joint Collector requesting him not to grant any licence to the appellant under Rule 11-B (2) of the A. P. Cinema (Regulation) Rules, 1970. Then on 14-3-1997 the 3rd respondent issued proceedings reviewing the licence on the ground that the tenant obtained stay of eviction. It was further stated that the landlord can prefer an appeal against the said renewal. On 16-6-1997 the landlord made another representation to the 3rd respondent. He filed W. P. No. 31887/97 praying to declare the running of the cinema theatre as illegal. No interim order was issued. On 8-4-1998 the Joint Collector wrote a letter renewing the licence for six months from 1-4-1998 to 31-10-1998. Then the respondent/writ petitioner filed another writ petition No. 14048/98 seeking quashing of the proceedings of the 2nd respondent dated 8-4-1998 and temporary licence was issued to the 3rd respondent from 1-10-1998 to 31-3-99 subject to the final order that may be passed in the writ petition. ( 5 ) WHEN the matters came up for hearing before the learned single Judge, the learned Judge dismissed Writ Petition No. 31887/98 on the ground that it has become infructuous. ( 6 ) WITH regard to the other writ petition namely Writ Petition No. 14048/1998 wherein the impugned order renewing the licence up to 31-3-1999 was challenged, the learned Judge decided the matter on merits. ( 7 ) THE main argument tht was addressed before the learned single Judge was that under Rule 11-B (2) of the Rules framed under the A. P. Cinemas (Regulation) Act, 1955, renewal of licence is contemplated, provided the licensing authority is satisfied that the applicant is in lawful possession of the site, building and equipment. ( 7 ) THE main argument tht was addressed before the learned single Judge was that under Rule 11-B (2) of the Rules framed under the A. P. Cinemas (Regulation) Act, 1955, renewal of licence is contemplated, provided the licensing authority is satisfied that the applicant is in lawful possession of the site, building and equipment. The learned Judge further referred the following decisions in M. C. Chockalingam v. V. Manickavasagam, AIR 1974 SC 104 : (1974) 2 SCR 143 ; Krishna Kishore Firm v. Government of A. P. , AIR 1990 SC 2292 ; Smt. Y. Anasuya v. Government of A. P. rep by its Secretary, Home (Gen-A) 1993 (1) ALT 661 ; Om Prakash Gupta v. The Commissioner of Police, Madras, (1960) 2 MKJ 50. While holding that the appellant is not entitled for renewal of licence under Rule 11-B (2) of the Rules, in spite of the stay granted by the appellate authority in R. C. A. No. 22/96 the learned Judge allowed the writ petition by setting aside the impugned order renewing the licence of the appellant upto 31-3-1999. Aggrieved by the same, the appellant preferred the present appeal. ( 8 ) SRI A. T. M. Ranga Ramanujam, learned Senior Advocate appearing for the appellant attacked the order of the learned single Judge on several grounds. According to him the writ petition was not maintainable against the order passed under 11-B (2) of the above rules; that when disputed questions of fact are involved, the learned Judge should have directed the landlord to agitate his rights before the appellate authority instead of exercising power under Article 226; that the appellant s possession was not a litigious one but a lawful one because by virtue of the order of stay granted by the appellate Court whatever possession the appellant was holding, he was entitled to continue. He further contended that the learned single Judge without considering the proper interpretation of lawful possession and the effect of stay, allowed the writ petition by simply placing reliance on some of the decisions referred to above. ( 9 ) SRI Subba Reddy, learned counsel who came on record subsequently on behalf of the respondent landlord supported the order passed by the learned single Judge. ( 9 ) SRI Subba Reddy, learned counsel who came on record subsequently on behalf of the respondent landlord supported the order passed by the learned single Judge. He further contended that there is no need for availing the alternative remedy of filing an appeal before the Government against the order of the Joint Collector granting temporary licence for a period of six months as the order of stay was not vitiated by law. When once the tenant suffers an order of eviction his possession becomes unlawful one. Further if he is continuing in possession by any order of stay his possession will be a jurisdictional one and his possession cannot be equated to lawful possession. Further he contended that the conduct of the appellant does not inspire confidence to grant any concession to him. He further relied on the decision of the Supreme Court in R. V. Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140 , wherein the appellant was a party to the said decision wherein the Supreme Court held thus at page 143 :"tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the term or expiry of the lease by efflux of time. 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. The possession of a tenant at sufferance is protected till he is evicted in the course of law. But his possession is not legal nor lawful. In other words, his possession is unlawful or litigious possession. Refusal to renew cinema licence of the licensee who was holding the property after expiry of lease period as tenant at sufferance was proper. " ( 10 ) SRI Subba Reddy, also contended that the order passed by the learned single Judge, is a well considered one and the same be upheld. In order to resolve the controversy between the parties, it is proper to reform some of the provisions of the Cinematographic Act and the Rules framed thereunder. " ( 10 ) SRI Subba Reddy, also contended that the order passed by the learned single Judge, is a well considered one and the same be upheld. In order to resolve the controversy between the parties, it is proper to reform some of the provisions of the Cinematographic Act and the Rules framed thereunder. ( 11 ) SECTION 5 (2) of the Act reads as under:"subject to foregoing provisions of this Section and to the control of the Government, the licensing authority may grant licences under this Act to such persons as that authority thinks fit and on such terms and conditions and subject to such restrictions as it may determine. "11a. Rule 11-B of the A. P. Cinemas (Regulations) Rules, 1970 reads as under :"11-B. Grant of Licence to Cinema Buildings : (1) Within fifteen days of receipt of such application, the licnsing authority shall (a) If the application is not in accordance with the rules dispose it of in accordance with Clause (a) of sub-rule 9 (B) (b) If the application is in order, forward a copy of the application together with its enclosures to the Electrical Inspector and the Executive Engineer (Randb) (in the case of permanent cinema building only) asking for their reports and permanent certificates within thirty days from the date of receipt of the copy of the application and obtain their acknowledgments. (2) On receipt of the reports and certificates referred to in clause (b) for sub-rule (1) or, if the same have not been received in time on consideration of the certificates referred to in clause (c) of Rule 11-A on merits, if the licensing authority is satisfied that the applicant is in lawful possession of the site, building and equipment he shall, within ten days from the date of receipt of the above reports and certificates or the due date for the receipt of above reports and certificates, grant a licence in Form-B with or without adding additional conditions thereto, consistent with the provisions of these rules, as he may deem fit in the interest of the health and safety of the public;provided that if the licensing authority is satisfied that the provisions of these rules have not been fulfilled and or that, in the case of a cinema building the provisions in appendix IV are not fulilled he may refuse to grant the licence applied for and communicate to the applicant the reasons for such refusal. Provided also that the period of validity of a licence shall so far it may be co-related with the period of validity of electrical and fire certificate granted in accordance with the provisions in Appendix VI. (3) (a) The licensing authority-while granting or renewing a licence in form-B shall also fix the maximum rates of payment for admission to the different classes in the licenced premises. (b) These rates shall not be increased during the currency of the licence without an order in writing by the licensing authority permitting such increase. (c) The order of the licencsing authority is liable to be cancelled or modified by the Government, if they consider such a course just or necessary. (d) Any person aggrieved by the licensing authority may appeal to the Government who may make such order as it deems fit. "under Rule 11b the Joint Collector has the power to grant licence. ( 12 ) IT is not in dispute that prior to order of eviction the appellant was in possession of the theatre exhibiting the films as per the contract that was entered between the parties after obtaining a valid licence from the competent authority. "under Rule 11b the Joint Collector has the power to grant licence. ( 12 ) IT is not in dispute that prior to order of eviction the appellant was in possession of the theatre exhibiting the films as per the contract that was entered between the parties after obtaining a valid licence from the competent authority. When the landlord has not disputed the authority of the Joint Collector to grant an order of licence or to renew it, it is not open for him to question his authority in issuing a temporary licence. It is not his case that the Joint Collector issued the licence without hearing the objector namely the landlord. ( 13 ) UNDER Rule 11 (B)3 (d) any person aggrieved by the order of the licensing authority has got a right of appeal to the Government. There is no explanation why the landlord did not approach the Government when the dispute involved between the parties should have been resolved more effectively and immediately and this Court should not have entertained the writ petition because the scope of Art. 226 is only to correct any error apparent on the face of the order passed by the lower authority or if any order is in contravention of principles of natural justice or in abuse. ( 14 ) WHETHER the possession of the appellant herein was lawful or litigious one is yet to be considered by the statutory appellate authority. It is not the case of the landlord that appellant has not obtained stay in the appeal pending before the Subordinate Civil Judge, Guntur or though obtained but latter vacated. ( 15 ) HEARD both the counsel. ( 16 ) IN M. C. Chockalingam v. Manickavasagam cited (supra), the Supreme Court held as under at page 110; of AIR :"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 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 cannot be established without the concomitant existence of 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. The Court in Lalu Yeshwant Singh s case (1968) 2 SCR 203 : ( AIR 1968 SC 620 ) had not to consider whether judicial possession in that case was also possession. We are clearly of opinion that judicial possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. " ( 17 ) SIMILAR view was taken by the Supreme Court in the case of Palace De Wales v. The State of Tamil Nadu 1995 (2) Current Tamil Nadu cases 146. ( 18 ) OF course, Sri M. Subba Reddy, also placed reliance on the decision rendered in Smt. Y. Anasuya v. Goverment of A. P. even though the said decision is not relevant to the facts of the present case. ( 19 ) ON hearing the learned counsel for both the sides and on perusing the order of the learned single Judge wherein the learned single Judge without referring to all these issues held that when once an order of eviction is passed against the appellant, his possession if any becomes unlawful or litigous as such, not entitled for obtaining temporary licence, in our view, is quite incorrect. Secondly, when there is a provision for appeal, the learned single Judge should have directed the parties to agitate their rights before the appellate forum including the question of locus standi. As far as the landlord s locus standi is concerned, this issue is not canvassed either before the licensing authority or before the learned Judge and that question cannot be gone into at this stage of the proceedings. ( 20 ) FOR the aforementioned reasons, this appeal is allowed. The order passed by the learned single Judge is set aside. As far as the landlord s locus standi is concerned, this issue is not canvassed either before the licensing authority or before the learned Judge and that question cannot be gone into at this stage of the proceedings. ( 20 ) FOR the aforementioned reasons, this appeal is allowed. The order passed by the learned single Judge is set aside. The Principal Subordinate Judge, Guntur is directed to dispose of the RCA 22/96 on merits without being influenced by any of the observations made either in this order or in the order of the learned single Judge. Since the RCA is of the year 1996, we fail to understand why the Principal Subordinate Judge has not yet disposed of the RCA when the controversy is of serious nature. We hope that the learned Subordinate Judge will give his attention to this RCA which is pending on his file and shall dispose of the same by the end of June, 2000 positively. ( 21 ) FURTHER it is also made clear that the parties appearing in this case would cooperate with the Principal Subordinate Judge in disposing of the appeal within the time stipulated without seeking any further time. However, with regard to payment of rent it is made clear that the appellant will continue to pay the rent at the rate of Rs. 10,000. 00 per month in view of the agreed terms. The appeal is accordingly allowed. No costs. Appeal allowed.