* HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU + WRIT PETITION No.375O of 2O20 o/o 23,d March. 2020 # Sri Vijaya Talkies and another AND $ State of Andhra Pradesh rep. by its Secretary, Home Department, Secretariat, Velagapudi, Amaravathi, Guntur Distract and two others. ... Petitioners ... Respondents. : Sri M. Prasada Rao : Government Pleader for Home : Sri N. Subba Rao, learned counsel represented Sri G. Sai Krishna Srinivas. ! Counsel for the Petitioners ^ Counsel for the 1"t & 2"d respondents ^ Counsel for the 3'd respondent < Gist: > Head Note: ? Cases referred: 11 2019 Lawsuit (SC) 1381 ri nrn zoto sc 3413 ii ein iszq sc l04 = Manu/sc/0338/ 1973 oi nin rsso sc 22s2 = MANU/sc/04 l2l 1990 il nin isso sc t4o = MANU/sc/003s/ lee6 HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU WRIT NNo.37sOof ORDER: 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 2na respondent in Rc.No.424l 19-Ci, dated 11 order by the 1", respon;:',.':i;'::r-::H t:; 19.12.2019, as illegal, arbitrary, unjust and being violative of Section 4,7, g,10 & 11 B(2) of A.p. Cinema (Regulation) Act, 19SS and Rules made there under and being violative of Art. 14, 2l and 300_A of the Constitution of India and consequently direct the 2".1 respondent to restore the license of the pedtioners 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." In view of the fact that a Movie Theatre,s license has been cancelled and as no business was being carried on, with the consent of the both the leamed counsel, the Writ petition itself is taken up for hearing for disposal. Accordingly, the writ petition itself is decided now. This Court has heard Sri M. Prasada Rao, learned counsel appearing for the petitioners, learned Government Pleader for Home, appearing for the 1"t arrd 2nd respondents and Sri N. Subba Rao, learned counsel representing Sri G. Sai Krishna Srinivas, learned counsel for the 3.d respondent. 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. 16 I l The petitioners' case is that there is an agreement of lease dated 25.09.1963 with the ancestors of the 3'd respondent for reasing out the rand measur ing 22so Sq.yards for a period of 25 years. The said lease expired in 25'09'1988' The optlon for renewal was also exercised and the lease was extended for a further period of 10 years' In addition' the petitioners aiso 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 u'as 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' Thus' they' claim to be in possession and enjoyment of the property as a co-owner also. It is also stated that the landlords filed a suit in O.S.No.S16 of 1988 on the file of the Additional Senior Civil Judge, Guntur, but the same was dismissed and an appeal in A.S.No.779 1 of 2001 was also filed, which is sti1l pending before this Court. In addition, as the landlords were not accepting the rent, R.C.A.No.27 of L996 was filed on the file of the Principal Senior Civil Judge, Guntur and the said Court was pleased to allou, the said application, and the rents are being deposited. It is alleged that the landlord-3.a respondent has setup a GPA holder to made a representation to the 2nd respondent stating that the possession of the petitioners 1S illegal, t LY unlaw{ul and thereafter, after a so called hearing, the 2"d respondent passed the impugned order dated 12. l2.2}lg cancelling the license. euestioning the said action, the present Writ Petition is frled. 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 2"a 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 2na respondent cannot enter into the areas of these disputes, particularly the issue of legal / illegal possession. 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 tegitimate document / lease deed cannot be said to be in illegal possession of the property after the lease period, T l \ l expires. Hence, the learned counsel submits that the refusal to extend the license is incorrect. In reply to this, Sri N. Subba Rao, learned counsei for the 3.d respondent argues that there is a distinction between the tllegal possession'of the property under the General Law and the 'lawful possession' that is necessary under Rule 1 1 (b) of the A.P. Cinemas Regulation Rules, 1970 (in short "the Rules"). Retying upon the case 1aw, which is filed along with the counter affidavit, learned counsel for the 3'd respondent argues that the term 'lawful possession'in the context of Rule 1 1 (B) of the Rules, (which falls for consideration presently) means the possession which is free from litigation. Therefore, learned counsel for the 3.d 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. l,earned 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 a1so. 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 in so far 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. 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 edstence 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 u Union of India and Othersr and India in United Bank of India u Satyawati Tondon and Others2. 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. As far as the issue of law raised bv 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 | 2019 Lawsuit (SC) 138 I : AtR 2010 sc 3413 ')\ ! 1 6 with the powers of the licensing authority. Section 7 provides for al appeal and Section 7A 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 "law{ul possession" found rn this rule. The same is reproduced hereunder: " 12) 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 l1-A on merits, if the licensing authority is satisfied that the applicant i9 in lay4lulpossession of the site building and equipment he shall, within ten days from the date of receipt of the above reports and certihcates or the due date for the receipt of above reports and certificates grant a licence in form-B with or wlthout adding additional conditions thereto, consistent with the provisions of these rules, as he may deem ht 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-lV are not fulfil1ed 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-Vl.' 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. I\" ) 7 However, this Court notices that there are judgments of the Hon'ble Supreme Court 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. 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 lalling for interpretation. In M.C.Chockalingam and Ors., u v Manickavasagam and Ors,,3 the Honble 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 la*'ful relationship between the landlord and the tenant. This relationship cannot be established aeainst the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant.' (Emphasis supplied) In another judgment in Krishna Kishore Firm u the Government of A.P. and Ors.,4 the Hon'ble Supreme Court of India cited the earlier judgment ln M.C.Chockalingam case (3 supra) and held as follo'*'s: r AIR t974 SC 104 = Manu/SC /033811913 r AtR t990 sc 2292 = MANU/SC/04r2/r990 .IX\ I L ^ 8 "...The Court held that continuance of lessee's possession after expiry of period of lease was not lardul for purposes of renerval of licence under Madras Cinema Regulation Act, 1955 obviously because lessee was left r.l,ith no interest which could furnish zrny excuse or give it even colour of being legal." This is a case which relied upon by both the parties. In that case, the Hon'lcle Supreme Court of India noticed that 50% of the 7000 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 u State of Andhra Pradesh and Ors.,s. This case also cor-rsidered Krishna Kirshore Firm case (4 supra). This is a case of tenant who continued to remain in possession after the expiry of the.lease. ln paragraph 15 of this judgment, the Hon'ble Supreme Court of India noticed the conditions of tl-re lease which held that the lessee shal1 quit and handover the possession of the property. In paragraph- 16 of the judgment it r,"'as held as follows: "16. A reading of these two r:ovenants 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. Aftcl the expiry of the lease, he is treated to be in unlawful p<.rssession, since he is required to pay darnages for use and occupation at the rate of Rs.1O0 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. , AIR 1996 SC t4o=MANU/SC t0035/1996 IV o 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." Clause 6 (21 ot the lease deed in question in this Writ reads as follows: "vl. 2) on the written request of the LESSEES, made six months before the expiry of the LEASE i.e., on or before the loth 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 ofthe 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 l9'h September, 1988 to l0th 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 ali the licenses to the LESSORS and shall sign all the necessary forms and applications after the expiry of termination this LEASE-" 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 I U\ 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 lavr{ul possession after 1998 for the purpose of renewal of the cinema license and for the purpose of this case. The tenalts possession for the purpose of protecting himself from forceful eviction is different from the "lauful possession" needed for renewal of the license of the theatre as per the rule in question. Apart from this, this Court notices that the petitioner are claiming ownership of the 750 sq.yards of property out of 3038 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 case (5 supraf 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 law{ul 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. 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 0 l0 U for this rule, which would entitle him to seek renewal of the license. If the present case is viewed against the backdrop of the settled law on the subject, it is clear that the total site is 2250 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 1500 sq.yards of Iand their possession is not lavdul 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 law{ul 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 Honble 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 lauful possession in line with the judgments ol the Honble 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 }' .---r e { ,tU 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. In addition to this, the impugned order in question talks of representations being filed by Mr. G. Satya Prasad, dated 28.09.2019, Mr. G.B.S. Prasad, dated 28.09.2079 by Mr.G.Chitambareswara Sarma on 02.11.2019 and lastly by Mr. G.M.K. Prasad, dated 02.11.2019. 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 2"d respondent. As rightly pointed out by the 3.a 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 lrom M.C.Chockalingam case (3 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 blished st the consent of the landlord unless, however, i4 view of a special lalv- hi! !el!se4I becomes irrelevant." (Emphasis supplied) t2 n\.,-. I \- ti o The Hon''ble Supreme Court of India clearly held that the law{ul possession cannot be established without the concomitant existence of la*ful relationship between the landlord and tenant. Four landlords have requested the 2"d 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 hnding of the Hon'ble Supreme Court of India, the consent of the landlord IS necessary for the possession of the petitioners to be 1n 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 1 1-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 la*{ul 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 D\ I 1 t4 a finding and submitted to the jurisdiction of this Court, cannot pursue the statutory appeal. With the above observations, the Writ Petition is dismissed. No order as to costs. As a sequel thereto, the miscellaneous petitions, if any, \#.v.s.s. soMAYdwLU, J Date:23.O3.2O2O. Ssv pending in these Writ Petitions shall also stand dismissed.