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2002 DIGILAW 134 (MAD)

V. R. Venkatachalam v. State of Tamil Nadu

2002-02-20

A.KULASEKARAN

body2002
Judgment : 1. The petitioner has filed the above writ petition seeking for a writ of certiorarified mandamus to call for the proceedings of the first respondent in G.O.Ms .No. 148 Home (Cinema)Department dated 26.2.2001 of the second respondent made in Cinema Appeal No.10 of 2000 D.Dis.L. dated 17.7.2000 and of the third respondent dated 13.12.1999 and quash the proceedings of the respondent 1 to 3 dated 26-02-2001, 17.7.2000 and 13.12.1999 respectively to include the name of the petitioner and the fourth respondent in “C” form Licence and grant renewal of the same in respect of the Star Talkies, Triplicane High Road, Chennai - 600 005. 2. Heard both sides.. It is the case of the petitioner that Star Talkies is located in Door No. 40 and 41, Triplicane High Road, Chennai. The theater is located in Door No. 40 and Door No.41 has been used as parking area for the above theatre. The lands comprised in Door No.41 is absolutely owned by the petitioner and in Door No. 40, the petitioner is owning 50% undivided share in land and building. The Cinema Theatre was run by Partnership consisting of four persons namely M.V. Babji, M.V. Prakash, M.V. Padmanabhan and M.V. Basha. The equipments and furnitures in the theatre belonged to the partnership firm. After the death of Babji, his son M.V. Pratap was inducted as Partner and after the demise of the said M.V. Pratap, his wife Saraswathi Devi Pratap became one of the partners of the firm. In the year 1993, the petitioner has purchased 50% of the undivided share of the land and building in Door No. 40, Triplicane High Road from the said Saraswathi Devi Pratap. Now, the petitioner is holding 50% of sh are in both land and building at Door No.40 and also 75% share in the partnership, besides that he is the absolute owner of the property in Door No.41. In the year 1996, the petitioner along with the 4th respondent has submitted an application to the 3rd respondent requesting to issue “C” Form Licence and also for inclusion of their names in the “C” Form Licence. Later, the 4th respondent withdrew her consent and opposed the renewal as well as transfer of “C” Form licence in the name of the petitioner. The licensing authority has rejected the application, which was confirmed by the appellate authority, 2nd respondent herein. Later, the 4th respondent withdrew her consent and opposed the renewal as well as transfer of “C” Form licence in the name of the petitioner. The licensing authority has rejected the application, which was confirmed by the appellate authority, 2nd respondent herein. The petitioner has also preferred a revision before the 1st respondent, who has granted “E” Form licence temporarily to run the theatre, later, on 26.2.2001, the revision was dismissed. Hence, this writ petition. 3. Mr. R. Krishnamurthy, learned senior counsel appearing for the petitioner argued that the petitioner is holding major share namely 75% in the partnership firm as well as 50% undivided share in Door No.40, besides he is the absolute owner of the property in Door No.41, Triplicane High Road, Madras as such the petitioner is in lawful possession of the theatre for the purpose of Rule 13 (1) of the Cinema Regulations Rules. The respondents 1 to 3 have committed grave irregularity in rejecting the claim of the petitioner. The findings of the respondents that the petitioner is not in lawful possession as the 4th respondent has opposed the renewal and transfer is unsustainable in law. 4. The learned senior counsel appearing for the petitioner has relied on the following Judgments in support of his case. (i) The Licensee, Sri Lala Talkies, Vadipatty, Madurai Taluki, 1999 (I) MLJ 526 , wherein in Para 12 it has been held as follows: “A question may arise whether petitioner is entitled to do cinema business without the consent of others. A co-owner is entitled to enjoy the property and make use of the same without detriment to the other co-owners. At the most, he will be liable for accounts. In a joint property, any co-owner has to use such property usefully in the sense that his user should not amount to ouster of their co-owners. In this case, petitioner admits the right of other co-owners and he does not want the right of other c o-owners to be taken away. If a theatre is closed, it is a loss to the entire family. It is settled law that a co-owner is entitled to make use of joint property in a way quite consistent with the continuance of joint ownership and possession, so long as he is not excluding the right of any co-sharer. If a theatre is closed, it is a loss to the entire family. It is settled law that a co-owner is entitled to make use of joint property in a way quite consistent with the continuance of joint ownership and possession, so long as he is not excluding the right of any co-sharer. If that be so, even the objection of the 4th respondent is not relevant for consideration. The licensing authority is bound to consider only Rule 13 of the Tamil Nadu Cinema (Regulation) Rules. If the petitioner is a lawful owner, there cannot be any objection for the grant of licence. In this case, I find that the petitioner has satisfied both the grounds. In a similar case viz., in R. Dhasaiyan and another v. The Government of Tamil Nadu and others , W.P. No. 17859 of 1997 order dated 7.12.1997,I have taken a similar view.” ii. P. Subbu Naidu v. The Licencee, Sri Lala Talkies, Vadipatty and Others , 1999 (3) MLJ 688 in Para No.5, the Division Bench of this Court held as follows:- “5. As to the contention of the learned counsel, referring to Rule 13 (l) of the Rules, the learned Single Judge has taken the view that the applicant has to satisfy about the ownership and possession and according to the learned Single Judge, the “possession” contemplated in Rule 13 (1) of the Rule is not the exclusive possession. At any rate, it cannot be said that the respondent No. 1 is not in possession of the theatre for the purposes of law, may be as co-owner. The learned Single Judge, after refe rring to the various decisions, has taken the view that one of the co-owners can use the property to the advantage of all. In case the licence is not granted to the respondent No.1 the effect and position would be, it would not be for the benefit of any of the brothers. In other words, the theatre has to be closed. The proceedings initiated under Sec. 145 of the Code of Criminal Procedure were almost 1 1/2 months subsequent to the order passed in the writ petition. Obviously, those proceedings could not be taken note of. In other words, the theatre has to be closed. The proceedings initiated under Sec. 145 of the Code of Criminal Procedure were almost 1 1/2 months subsequent to the order passed in the writ petition. Obviously, those proceedings could not be taken note of. The proceedings under Sec. 145 of the Code of Criminal Procedure initiated are for different purpose and to achieve different object, and mainly concerned with law and order in regard to the likelihood of breach of peace concerning an immovable property. The parties thereto are to seek appropriate remedy in respect of those proceedings before the competent authority or Forum. Merely because proceedings are initiated under Sec. 145 of the Code of Criminal Procedure it cannot be said th at the licence, if granted, will take away the right of the parties as co-owners over the property. This being the position, we do not find any good or valid ground to admit the writ appeal” 5. Mr. Perumbulavil Radhakrishnan, learned counsel appearing for the fourth respondent argued that the theatre is run by partnership, hence, as far as the possession of the theatre is concerned, the question of co-ownership does not arise; that the respondents 1 to 3 have rightly rejected the claim of the petitioner as such issuing “E” Form permit is contrary to Rule 97 (2) of the Rules; that under Rule 6 Partnership firm is permitted to hold licence and in case any one of the partners objects to it, the renewal shall not be granted; that under Rule 123, “C” Form Licence and copy of the proposed instruments of transfer shall be enclosed along with the application for transfer and in the absence of it, the transfer in the name of the petitioner shall not be considered; that the power of licensing authority is restricted under Section 12 of the Cinematograph Act. Mr. Perumbulavil Radhakrishnan, learned counsel appearing for the 4th respondent relied on the following decision in support of his case. (i) V.T. Ranganayaki Anni v. State of Tamil Nadu, rep. by its Commissioner & Secretary to Government, Home (Cinemas) Department, Fort St. George, Madras-9 and another , 2001 (3) CTC 598 :2001 (3) LW166 wherein in Para-15, a Division Bench of our Court held thus:- “15. (i) V.T. Ranganayaki Anni v. State of Tamil Nadu, rep. by its Commissioner & Secretary to Government, Home (Cinemas) Department, Fort St. George, Madras-9 and another , 2001 (3) CTC 598 :2001 (3) LW166 wherein in Para-15, a Division Bench of our Court held thus:- “15. When we consider the lawful possession with reference to Rule 13 of the said Rules, even in the first part if the applicant either for the grant of licence or renewal, if he 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 having a title to the property, if he can satisfy the licensing authority with regard to his possession also will indeed be in, the lawful possession although the word “lawful” is not used in the first part. It is in this context, the word “possession” is even not necessary to be qualified by lawful in the first part of Rule 13. However, the applicant, for the licence or renewal, 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 its lawful possession of the property. The word “lawful possession” naturally assumes significance in the second part, while it was not even necessary in the first part. The fact that after the expiry of the lease the tenant will be able to continue his possession or the property by filing a suit for injunction restraining the owner of the land from interfering with his possession does not satisfy the requirement of “lawful possession” of the property within the meaning of Rule 13 of the said Rules. After the expiry of the lease, there is no relationship between the landlord and tenant and as such the possession of lease would amount to litigious possession, which is without any legal authority.” 6. Admitted facts in this case are the petitioner is a co-owner holding major shares in the theatre and partnership business, the parties have entered into a partnership agreement to promote the business namely functioning of the theatre and the possession of the petitioner as a co-owner is not disputed by the fourth respondent. 7. Admitted facts in this case are the petitioner is a co-owner holding major shares in the theatre and partnership business, the parties have entered into a partnership agreement to promote the business namely functioning of the theatre and the possession of the petitioner as a co-owner is not disputed by the fourth respondent. 7. Now we look into the relevant provisions of Rule 13 (1) of The Tamil Nadu Cinemas (Regulation) Rules, 1957: Rule 13 (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. 8. The relevant Rules relating to the disputes involved in this case is Rule 13 (1). As per Rule 13, the applicant shall be owner of the site, building and equipment. In case, the applicant is not the owner, he shall produce documentary evidence to prove that he is in lawful possession of the site, building and equipments. The second limb of the said rule namely to prove lawful possession arises only in the case of the applicant not a owner. Admittedly, the petitioner and the fourth respondent are co-owners besides partners of the business of running the theatre as such the petitioner satisfy the first limb of Rule 13 (1) and it is needless to mention that the possession of co-owner is lawful. 9. According to Section 4 of the Indian Partnership Act, partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all of them. Three elements seen in the partnership are (i) there must be an agreement (ii) agreement to share the profits and (iii) business must be carried on by all or any. The third element shows that person who conducts business do so for all, therefore liable to account to all. 10. When a fiction is created by a deed of partnership, it must no doubt be limited; to its purpose, but for the purpose for which it was created shall be considered, the putative state of affairs should be excluded. The third element shows that person who conducts business do so for all, therefore liable to account to all. 10. When a fiction is created by a deed of partnership, it must no doubt be limited; to its purpose, but for the purpose for which it was created shall be considered, the putative state of affairs should be excluded. It is well settled that where a legal fiction is created full effect must be given to it and should be carried to its logical conclusion. When under a partnership that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled to give effect to the fiction and it should be carried to its logical conclusion. 11. Admittedly, in this case, the “C” Form licence was in the name of the firm which was created for the purpose of running the theatre. All the partners are bound to carry on the business of the firm to the greatest common advantage to be just and faithful to each other. The deeming provision of the said section without any doubt stipulates that “the partners are bound to carry on the business”. Admittedly, the 4th respondent has not assigned any reasons whatsoever for not carrying on the business. As I have mentioned supra, the petitioner herein is a co-owner holding major share in the property as well as in the partnership firm as such he satisfy the legal possession required under Rule 13 (1). The petitioner has rightly approached the licensing authority to incorporate his name and the name of the 4th respondent herein in the “C” form licence to continue the business of running the theatre. The reasons assigned by the respondents 1 to 3 for rejecting the claim of the petitioner are invalid. No doubt, the petitioner is bound to render true accounts and full information to the 4th respondent. 12. The renewal of “C” form licence of the partnership enure the benefit of all. The petitioner has prayed for issuance of “C” form licence incorporating his name as well as the name of the 4th respondent. Hence, in the interest of the partnership firm, it is absolutely necessary to issue “C” form licence in the name of the petitioner and the 4th respondent, otherwise the very purpose of partnership will be defeated. The petitioner has prayed for issuance of “C” form licence incorporating his name as well as the name of the 4th respondent. Hence, in the interest of the partnership firm, it is absolutely necessary to issue “C” form licence in the name of the petitioner and the 4th respondent, otherwise the very purpose of partnership will be defeated. Moreover, as I have already pointed, the petitioner has satisfied all the requisite element s. The order passed by the authorities below are liable to be quashed and quashed accordingly. 13. The judgment relied upon by the petitioners are well applicable to the facts and circumstances of the case on hand. The Division Bench Judgment cited by the fourth respondent is not at all applicable to the present case. 14. In the result, this writ petition is allowed as prayed for. No costs. Consequently, connected WMPs are closed.