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2020 DIGILAW 267 (AP)

Vijaya Talkies v. State of Andhra Pradesh

2020-03-23

D.V.S.S.SOMAYAJULU

body2020
ORDER : D.V.S.S. Somayajulu, J. 1. This writ petition is filed for the following prayer: "...... to issue a writ, order or direction more particularly one in the nature of writ of mandamus, declaring the proceedings of the 2nd respondent in Rc. No. 424/19-C1, dated 12.12.2019 and not passing the order by the 1st respondent though appeal is filed on 19.12.2019, as illegal, arbitrary, unjust and being violative of Sections 4, 7, 9, 10 and 11-B(2) of AP Cinema (Regulation) Act, 1955 and Rules made there under and being violative of Articles 14, 21 and 300-A of the Constitution of India and consequently direct the 2nd respondent to restore the license of the petitioners Cinema Theatre and pass such other order or orders which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case." 2. In view of the fact that a Movie Theatre's license has been cancelled and as no business was being earned on, with the consent of the both the learned Counsel, the writ petition itself is taken up for hearing for disposal Accordingly, the writ petition itself is decided now. 3. This Court has heard Sri M. Prasada Rao, learned Counsel appearing for the petitioners, learned Government Pleader for Home, appearing for the 1st and 2nd respondents and Sri N. Subba Rao, learned Counsel representing Sri G. Sai Krishna Srinivas, learned Counsel for the 3rd respondent. 4. The petitioners before this Court have questioned the proceedings of the 2nd respondent, dated 12.12.2019, by which the license of the petitioners' theatre was cancelled The petitioners' case is that there is an agreement of lease dated 25.9.1963 with the ancestors of the 3rd respondent for leasing out the land measuring 2,250 Sq yards for a period of 25 years. The said lease expired in 25.9.1988 The option for renewal was also exercised and the lease was extended for a further period of 10 years' In addition' the petitioners also owned an adjacent bit of land As per the averment of the writ affidavit, the theatre was constructed in terms of lease and the theatre was being run in the said property. The petitioners claim to be in possession even after the expiry of the lease period. The petitioners have also purchased some part of the land from the original owners/lessors. The petitioners claim to be in possession even after the expiry of the lease period. The petitioners have also purchased some part of the land from the original owners/lessors. Thus, they claim to be in possession and enjoyment of the property as a co-owner also. 5. It is also stated that the landlords filed a suit in OS No. 516 of 1988 on the file of the Additional Senior Civil Judge, Guntur, but the same was dismissed and an appeal in AS No. 7791 of 2001 was also filed, which is still pending before this Court. In addition, as the landlords were not accepting the rent, RCA No. 27 of 1996 was filed on the file of the Principal Senior Civil Judge, Guntur and the said Court was pleased to allow, the said application, and the rents are being deposited. 6. It is alleged that the landlord-3rd respondent has set up a GPA holder to made a representation to the 2nd respondent stating that the possession of the petitioners is illegal, unlawful and thereafter, after a so-called hearing, the 2nd respondent passed the impugned order dated 12.12.2019 cancelling the license. Questioning the said action, the present writ petition is filed. 7. Learned Counsel for the petitioners argued that the entire exercise is illegal, motivated and at the behest of the third party, who is styled as GPA holder, and is an officer of Central Government services. It is stated that having failed in the civil litigation, the present representation was made, which lead to the cancelation of the license. The crux of the challenge is that the 2nd respondent could not comment about the "illegal possession" of the petitioners and that the petitioners' possession, even if it is treated as a possession of a tenant holding over after the expiry of the lease cannot be said to be illegal. It is also stated that as the petitioners are also co-owner's of the property (having acquired a part of the property under registered sale deeds), their possession cannot be treated as illegal possession. It is also argued that as the competent civil Court is seized of the matter the 2nd respondent cannot enter into the areas of these disputes, particularly the issue of legal/illegal possession. 8. It is also argued that as the competent civil Court is seized of the matter the 2nd respondent cannot enter into the areas of these disputes, particularly the issue of legal/illegal possession. 8. Learned Counsel for the petitioners also relies upon the judgments, which are annexed to the writ petition itself to contend that a person, who entered into the property under legitimate document/lease deed cannot be said to be in illegal possession of the property after the lease period, expires. Hence, the learned Counsel submits that the refusal to extend the license is incorrect. 9. In reply to this, Sri N. Subba Rao, learned Counsel for the 3rd respondent argues that there is a distinction between the 'illegal possession' of the property under the General Law and the 'lawful possession' that is necessary under Rule 11-B of the A.P. Cinemas Regulation Rules, 1970 (in short "the Rules"). Retying upon the case law, which is filed alongwith the counter-affidavit, learned Counsel for the 3rd respondent argues that the term 'lawful possession' in the context of Rule 11(B) of the Rules, (which falls for consideration presently) means the possession which is free from litigation. Therefore, learned Counsel for the 3rd respondent contends that the 2nd respondent did not commit any mistake in passing the impugned order. Once, there is a litigation on the property, granting of the license is prohibited. Learned Counsel also submits that as per the agreed terms of the lease, the petitioners were bound to vacate and handover the premises but they did not do so. Apart from this, he also raises two legal issues about the maintainability of the writ petition. He argues that the impugned order was passed based on the representation of other landlords also. He argues that all the parties, who complained, were not made parties to the writ petition. It is his contention that since only part of the order is challenged it has become final as insofar as the other complainants are concerned. Lastly, he also submits that the petitioner has invoked an effective alternative remedy and filed a statutory appeal. Therefore, he argues that the petitioners cannot invoke the jurisdiction of this Court. 10. In reply to this legal submission learned Counsel for the petitioners himself argues that although the statutory appeal was filed it was not heard, and hence the writ is maintainable. Therefore, he argues that the petitioners cannot invoke the jurisdiction of this Court. 10. In reply to this legal submission learned Counsel for the petitioners himself argues that although the statutory appeal was filed it was not heard, and hence the writ is maintainable. Apart from that he states that existence of an alternative remedy does not preclude this Court from entertaining or passing orders in this writ petition. He relies upon the judgments of the Hon'ble Supreme Court of Maharashtra Chess Association v. Union of India and others, 2019 Law Suit 1381 (SC) and United Bank of India v. Satyawati Tondon and others, AIR 2010 SC 3413 . 11. This Court after hearing both the Counsel is of the opinion that the law cited by the learned Counsel for the petitioners, as far as effective alternative remedy is concerned, is applicable. The statutory appeal has not been heard or disposed of. In fact, the prayer also questions the same. Plus, the existence of an alternate remedy is not an absolute bar for entertaining the writ. It is a self-imposed restriction. This Court is of the opinion that, in these circumstances, the petitioners are entitled to invoke the jurisdiction of this Court. 12. As far as the issue of law raised by both the Counsel is concerned, this Court is of the opinion that Section 4 of the Act defines a licensing authority, Section 5/6 of the Act deal with the powers of the licensing authority. Section 7 provides for an appeal and Section 7-A of the Act confers the power of review. That the Joint Collector has the power is not really in dispute. The essential dispute in this case is about the interpretation of Rule 11-B(2) of the Rules. More importantly the interpretation of the words "lawful possession" found in this rule. Section 7 provides for an appeal and Section 7-A of the Act confers the power of review. That the Joint Collector has the power is not really in dispute. The essential dispute in this case is about the interpretation of Rule 11-B(2) of the Rules. More importantly the interpretation of the words "lawful possession" found in this rule. The same is reproduced hereunder: "(2) On receipt of the reports and certificates referred to in clause (b) of 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. (Emphasis supplied) 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 temporary cinema building the provisions in Appendix-IV are not fulfilled 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-relate with the period of validity of electrical and fire certificate granted in accordance with the provisions in Appendix-VI." 13. This Court notices that the learned Counsel for the petitioners has relied upon the case law, which is appended to the writ petition itself. This Court cannot dispute the position of law that has been mentioned in these judgments. However, this Court notices that there are judgments of the Hon'ble Supreme Court of India, relied on by the respondents, which have considered the words "lawful possession" as is found in the rule, which is mentioned above. There is no dispute about the fact that after expiry of the lease the petitioners are in possession of the property. They also claim to be in possession as joint owners of a part of the property. There is no dispute about the fact that after expiry of the lease the petitioners are in possession of the property. They also claim to be in possession as joint owners of a part of the property. The only question is whether this possession of the property after the expiry of the lease is lawful possession in terms of the particular rule that is falling for interpretation. 14. In M.C. Chockalingam and others v. V. Manickavasagam and others, AIR 1974 SC 104 , the Hon'ble Supreme Court of India held as follows: ".....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." (Emphasis supplied) 15. In another judgment in Krishna Kishore Firm v. The Government of A.P. and others, AIR 1990 SC 2292 , the Hon'ble Supreme Court of India cited the earlier judgment in M.C. Chockalingam's case (supra) and held as follows: "...The Court held that continuance of lessee's possession after expiry of period of lease was not lawful for purposes of renewal of licence under Madras Cinema Regulation Act, 1955 obviously because lessee was left with no interest which could furnish any excuse or give it even colour of being legal." 16. This is a case which relied upon by both the parties. In that case, the Hon'ble Supreme Court of India noticed that 50% of the 7,000 Sq. yards was agreed to be sold. Therefore, the Hon'ble Supreme Court of India passed an order directing the licensing authority to consider the renewal of licence. This Court notices that the respondents have relied upon R.V. Bhupal Prasad v. State of Andhra Pradesh and others, AIR 1996 SC 140 . This case also considered Krishna Kishore Firm's case (supra). This is a case of tenant who continued to remain in possession after the expiry of the lease. This Court notices that the respondents have relied upon R.V. Bhupal Prasad v. State of Andhra Pradesh and others, AIR 1996 SC 140 . This case also considered Krishna Kishore Firm's case (supra). This is a case of tenant who continued to remain in possession after the expiry of the lease. In Paragraph 15 of this judgment, the Hon'ble Supreme Court of India noticed the conditions of the lease which held that the lessee shall quit and handover the possession of the property. In Paragraph 16 of the judgment it was held as follows: "16. A reading of these two covenants clearly manifests the intention of the parties that after the expiry of the lease he is enjoined to deliver possession of the demised premises to the landlady. After the expiry of the lease, he is treated to be in unlawful possession, since he is required to pay damages for use and occupation at the rate of Rs. 100 per day till he is evicted in due course of law. Thereby it is clear that his possession was not treated to be juridical possession but only unlawful. He is required to pay damages for use and occupation. Clause 23 indicates that on expiry of the lease, the lessees should sign all necessary applications and papers and cooperate with the lessor to obtain transfer of all the licences. That would clearly indicate the intention, namely, that the appellant shall remain in possession only for the period of twenty years and thereafter his possession becomes unlawful." 17. Clause 6(2) of the lease deed in question in this writ reads as follows: "VI(2). On the written request of the Lessees, made six months before the expiry of the Lease i.e., on or before the 10th March of 1988 the Lessors or their heirs, executors, administrators or assigns as owners of the site with the buildings thereupon constructed under the terms of this Agreement over which the Lessors and their representatives acquire full title under the terms of this Lease, shall, the option of the Lessees, agree to grant a further lease of the buildings and the site at a rent of Rs. 720/- (Rupees Seven hundred and twenty only) per annum for a further period of ten years as from 19th September, 1988 to 10th September, 1988 but otherwise on the same terms and conditions as are herein contained except the renewal clause and subject to any amendments to be made to the terms herein contained by mutual agreement provided always that the Lessees give notice, in writing, to the Lessors six months before the expiry of the period of lease exercising the said option and the Lessees shall transfer all the licenses to the Lessors and shall sign all the necessary forms and applications after the expiry of termination this Lease." 18. Therefore, it is clear from a reading of these conditions of the lease that the tenants agreed to vacate and handover the premises after the expiry of the lease. The purpose of the lease was to enable the tenants to use the property to construct and run a theatre thereon. This lease was for 25 years from 1963 with an option for renewal for another ten years. In that view of the matter, the lease expired by 1998. The possession of the tenants/petitioners cannot therefore be called lawful possession after 1998 for the purpose of renewal of the cinema license and for the purpose of this case. The tenants possession for the purpose of protecting himself from forceful eviction is different from the "lawful possession" needed for renewal of the license of the theatre as per the rule in question. 19. Apart from this, this Court notices that the petitioner are claiming ownership of the 750 Sq. yards of property out of 3,038 Sq. yards of land. They do not have title to the rest of the land. They have independent title to another 788 Sq. yards of land, which is contiguous. In the decision of the Hon'ble Supreme Court of India in R.V. Bhupal Prasad's case (supra), in Paragraph 6 Hon'ble Supreme Court of India held that one of the conditions for the grant of a license is that the applicant shall satisfy the licensing authority that the applicant is in lawful possession of the site, building and equipment. Thereafter, in Paragraph 7 onwards of the report the Hon'ble Supreme Court of India went on to decide what exactly is lawful possession. Thereafter, in Paragraph 7 onwards of the report the Hon'ble Supreme Court of India went on to decide what exactly is lawful possession. Ultimately, the Hon'ble Supreme Court of India came to the conclusion that the possession of the tenant after expiry of the lease is not a lawful possession for this rule, which would entitle him to seek renewal of the license. 20. If the present case is viewed against the backdrop of the settled law on the subject, it is clear that the total site is 2,250 Sq. yards, out of which the petitioners purchased 750 Sq. yards. The right to be called as a co-owner is limited to this 750 Sq. yards. Therefore, for the other 1,500 Sq. yards of land their possession is not lawful possession in terms of the rule, which has fallen for interpretation by the Hon'ble Supreme Court of India. It is a fact that till he is evicted he may be entitled to remain in possession. But for the purpose of granting or renewal of license under the rule mentioned above, the petitioners will have to be proved that they are in "lawful possession" of the land, building and equipment. In the opinion of this Court, if he is not in lawful possession of the part of the site or part of the building or the equipment, he shall not be entitled to renewal of the license. The interpretation placed by the Hon'ble Supreme Court of India on litigious possession is binding on this Court. The petitioners' possession of the land, building and equipment, except to the extent of 750 Sq. yards, which they claims to have acquired pending litigation is not lawful possession in line with the judgments of the Hon'ble Supreme Court of India. Therefore, once the possession of the petitioner is held to be litigated possession or litigious possession, this Court is of the opinion that in view of the interpretation by the Hon'ble Apex Court of the land, the petitioner cannot claim to be entitled to a renewal of the lease or a writ of mandamus and seek to set aside the said order. 21. In addition to this, the impugned order in question talks of representations being filed by Mr. G. Satya Prasad, dated 28.9.2019, Mr. G.B.S. Prasad, dated 28.9.2019 by Mr. G. Chitambareswara Sarma on 2.11.2019 and lastly by Mr. G.M.K. Prasad, dated 2.11.2019. 21. In addition to this, the impugned order in question talks of representations being filed by Mr. G. Satya Prasad, dated 28.9.2019, Mr. G.B.S. Prasad, dated 28.9.2019 by Mr. G. Chitambareswara Sarma on 2.11.2019 and lastly by Mr. G.M.K. Prasad, dated 2.11.2019. These people are claiming to be the co-owners of the property. The impugned order is passed based upon the representations made by all the co-owners of the property to the 2nd respondent. As rightly pointed out by the 3rd respondent, the absence of these parties is fatal to the case of the petitioner. No orders can be passed unless and until all the necessary and proper parties are present before this Court. The passage quoted above from M.C. Chockalingam's case (supra), is again reproduced for the case of clarity: ".....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." (Emphasis supplied) 22. The Hon'ble Supreme Court of India clearly held that the lawful possession cannot be established without the concomitant existence of lawful relationship between the landlord and tenant. Four landlords have requested the 2nd respondent to cancel the lease. Thus, it is clear that the required consent for the "lawful relationship" is absent. Hon'ble Supreme Court of India further held that this relationship cannot be established against the consent of the landlord unless in view of a special law this consent becomes irrelevant. No special law is also quoted/shown for this. Therefore, in view of this clear and categorical finding of the Hon'ble Supreme Court of India, the consent of the landlord is necessary for the possession of the petitioners to be in lawful possession. As the consent is solely lacking and as there is clear litigation between the parties, this Court is of the opinion that the petitioners' possession is a litigious possession and not lawful possession for the purpose of Rule 11-B(2). As the consent is solely lacking and as there is clear litigation between the parties, this Court is of the opinion that the petitioners' possession is a litigious possession and not lawful possession for the purpose of Rule 11-B(2). As a co-owner the petitioner can claim to be in possession but for renewal of the cinema license possession, the consent of the landlords is necessary. Therefore, on both the grounds (a) lack of lawful possession with consent of all landlords and (b) failure to add necessary and proper parties, the writ petition has to fail. In view of the disposal of the writ petition, it is needless to say that the statutory appeal pending before the Government will no longer be relevant and is directed to be closed. The petitioner, who have invited a finding and submitted to the jurisdiction of this Court, cannot pursue the statutory appeal. 23. With the above observations, the writ petition is dismissed. No order as to costs. 24. As a sequel thereto, the miscellaneous petitions, if any, pending in these writ petitions shall also stand dismissed.