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Om Prakash Gupta Vs. the Commissioner of Police, Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Media and Communication
CourtChennai High Court
Decided On
Reported in(1960)2MLJ50
AppellantOm Prakash Gupta
RespondentThe Commissioner of Police, Madras and ors.
Cases ReferredRaja Chetti v. Jagannathadas
Excerpt:
.....from leading counsel, on both sides as to the meaning and significance of the expression 'lawful possession. he relied on the well-known principle of english and indian law that possession is good title against all but the true owner. 514. learned counsel for the appellant placed strong reliance on a decision of the bombay high court in k. the learned judges were construing section 3(1)(b) of the government premises (eviction) act (xxvii of 1950), under which if the competent authority is satisfied that any person is in unauthorised occupation of any government premises, the competent authority may, by notice served by post or otherwise, order that that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within..........produce documentary evidence to the satisfaction of the licensing authority to show that he is in lawful possession of the site, building and equipment wity the consent of the theatre owner.the lease deed submitted by smt. t.r. rajkumari, owner of the theatre show that the period of lease between you and her in respect of the above theatre expired on 22nd september 1959 she has represented that she has not renewed the lease in your favour from 22nd september, 1959 and that, as such, you are not entitled to be in possession of the theatre.in the circumstances, it is proposed to revoke the validity of the cinema licence immediately for non-compliaoce with the provisions of rule 13. please submit you representation, if any within three days of receipt of this memo failing which it will be.....
Judgment:

Rajamannar, C.J.

1. These appeals from the judgment of Rajagopala Ayyangar, J., arise out of four writ petitions, which were heard and disposed of by him on 25th November, 1959. They were heard together, because they related to the renewal of licences for conducting cinematograph shows in certain theatres in the City. W.A.. No. 151 of 1959 is from the judgment so far as it concerns W.P. No. 1002 of 1959 and relates to the theatre known as Rajkumari Talkies. The other three appeals arising out of W.P. Nos. 969 to 971 of 1959 relate to another theatre called Murugan Talkies. There was another writ, petition, W.P. No. 992 of 1959, which was also heard along with the other writ petitions; but there is no appeal before us in that petition.

2. The two petitioners are lessees of the two aforesaid theatres. The contesting respondents are the owners of the two theatres and the talkie equipment installed in them. Both the Board of Revenue and the Commissioner of Police were made parties, to the petition, insmuch as the relief sought was directed against the orders passed by them. Though the main point which is common to all the appeals, involves an interpretation of Rule 13 of the Rules framed under the Madras Cinemas (Regulation) Act, 1955, it is necessary to state the facts relating to each of the theatres separately We first take up W.P. No. 1002 of 1959, out of which W.A. No. 151 of 1959 arises The petitioner who is the appellant before us one Om Prakash Gupta took on lease the theatre with the furniture and equipment from T.R. Rajkumari, first for a term which ceased on 21st September, 1955. Thereafter, there was a further lease for a term of three years from 22nd September, 1955, with the option on the part of the lessee to obtain a renewal for a further period of one year. That option was exercised and the lease eventually came to an end on 21st September, 1959. During the currency of the lease, the appellant applied for and obtained from the Commissioner of Police icences to exhibit cinematographic films in the theatre under Madras Cinemas (Regulation) Act, 1955, from 1955 onwards. The last of such licences expired on 31st October, 1959. Even before this date, the owner of the theatre appears to have informed the Commissioner of Police that the period of lease would terminate on 21st September, 1959 and that she was unwilling to permit the lessee to continue in possession thereafter. On 8th September, 1959, the Commissioner of Police sent a Memorandum to the lessee in the following terms.

As the lease period for which you executed an agreement expires on 22nd September 1959 the cinema licence pertaining to Rajkumari Talkies, Madras-17, will not be renewed from 22nd September, 1959, in your name, ubless you produce a letter of consent obtained from the owner of the above theatre.

3. On 30th September, 1959, the Commissioner of Police addressed the following communication:

Under Rule 13 of the Madras Cinemas (Regulation) Rules, 1057 the licensee of a cinema theatre shall produce documentary evidence to the satisfaction of the Licensing Authority to show that he is in lawful possession of the site, building and equipment wity the consent of the theatre owner.

The lease deed submitted by Smt. T.R. Rajkumari, owner of the theatre show that the period of lease between you and her in respect of the above theatre expired on 22nd September 1959 She has represented that she has not renewed the lease in your favour from 22nd September, 1959 and that, as such, you are not entitled to be in possession of the theatre.

In the circumstances, it is proposed to revoke the validity of the Cinema Licence immediately for non-compliaoce with the provisions of Rule 13. Please submit you representation, if any within three days of receipt of this memo failing which it will be construed that you have no representation to make, and orders will be passed ex parte.

4. The lessee protested, submitting firstly that the Commissioner had no power to revoke the licence before the expiry of the term of the licence already in force and, secondly, that Rule 3 of the Cinematograph Rules had no application, as he was entitled to be in possession until he was evicted by a proper Court of law. The lessee applied for a renewal of the licence from 1st November, 1959. To this the Commissioner of Police replied thus :

As already informed in my Memorandum No. 27251/E-2/59, dated 21st September, 1959 the Cinema Licence for Rajkumari Talkies, Madras-17, will not berenewed in your favour from 1st November, 1959, unless a letter of consent is produced from the owner of the theatre

5. The lessee preferred an appeal to the Board of Revenue against this order of the Com missioner of Police. The appeal was dismissed. The material portion of the Board's order runs as follows.

The Board is satisfied that, on the facts shown herein, the Commissioner of Police is justified in refusing to renew the licence, as mere juridical possession in the absence of a valid lease is not sufficient.

6. The Board referred to the decision previously rendered by it in the case of the Murugan Talkies, which is the subject-matter of the other three appeals. Thereupon the lessee filed the petition under Article 226 of the Constitution. (W.P. No. 1002 of. 1959) for the issue of a writ of mandamus, directing the Commissioner of Police, Madras, to renew the cinema licence for Rajkumari Talkies for the period from 1st Novembers 1959 to 31st October, i960. Subsequently, the owner of the theatre, T.R. Raj, kumai, and the Board of Revenue were impleaded as additional respondents, besidethe Commissioner of Police, Madras.

7. Rule 13 of the Madras Cinemas (Regulation) Rules, 1957, runs as follows :

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. Before Rajagopala Ayyangar, J., three contentions were raised regarding this rule, namely, (i) That it was ultra vires and invalid, (2) that it would apply only to the grant of a licence in the first instance, and not a renewal of a licence, and (3) that the petitioner (lessee) must be deemed to be in lawful possession of the site, building and equipment, as required by the rule. Before us, the first two of the contentions were not pressed by counsel for the appellant. The argument was therefore confined to the third contention. Rajagopala Ayyangar, J., held that, on the termination of the lease, the appellant could not be said to be in lawful possession of the premises. He also held that the appellant was not entitled to the benefit of the provisions of Madras Buildings (Lease and Rent Control) Act, 1949, as the lease in question was a composite lease of building and equipment. The learned Judge dismissed the W.P. Hence the above appeal.

9. We heard very interesting arguments from leading counsel, on both sides as to the meaning and significance of the expression 'lawful possession.' Mr. K.V. Venka-tasubramanya Ayyar sought to make a distinction between ' lawful possession ' and ' rightful possession.' ' Lawful possession ', he submitted, is possession which is recognised and protected by law. He relied on the well-known principle of English and Indian law that possession is good title against all but the true owner. A person without title but who is in possession and who has been dispossessed otherwise than in due course of law, can bring a suit to be reinstated, even if the person by whom he was dispossessed be the true owner or a person authorised by or claiming under him (vide Narayanan Row v. Dharmachar (1902) 13 M.L.J. 146 : I.L.R. 26 Mad. 514. learned Counsel for the appellant placed strong reliance on a decision of the Bombay High Court in K.K. Verma v. Union of India : AIR1954Bom358 . It was held in that case by a Division Bench consisting of Chagla, C.J., and Dixit, J., that, under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law, and, although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. All that the landlord can do is only to eject his erstwhile tenant by recourse to law by obtaining an order of ejectment. The learned Judges were construing Section 3(1)(b) of the Government Premises (Eviction) Act (XXVII of 1950), under which if the competent authority is satisfied that any person is in unauthorised occupation of any government premises, the competent authority may, by notice served by post or otherwise, order that that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within fifteen days of the date of the service of the notice. The learned Judges held that a tenant of Government Premises who continues in possession after the termination of his tenancy by a notice to quit, cannot be said to be in unauthorised occupation of the premises within the meaning of that provision. One circumstance which was taken into consideration by the learned Judges was that the Act was a penal statute and it would not be proper to give a wider interpretation to the expression 'unauthorised occupation', if a narrow interpretation were possible. Reference was also made to Gulam Mahomed v. Emperor A.I.R. 1919 Bom. 97 where it was held in a criminal case that a tenant at sufference in India has been recognised to have certain limited rights for possession, and it was observed in that case that landlords and tenants should not take the law into their own hands, but should proceed by regular process in the civil Courts, as prescribed by the Legislature.

10. The learned Advocate-General who appeared for the owner of the theatre cited to us a number of decisions of English and Indian Courts in support of his contention that a tenant, on the termination of the lease in his favour, is not entitled to continue in possession and is liable to be evicted by the lessor and that he is also liable for mesne profits. In Henderson v. Squire L.R. (1869) 4 Q.B. 170 a tenant remaining in possession after the end of the term is described as one in wrongful possession. In Jones v. Foley L.R. (1891) 1 Q.B. 730 a tenant, on the expiration of his tenancy, was held to have no right whatever to be on the premises 'He was a trespasser.' The Privy Council ruled in Mahant Jagarnath Das v. Jhanki Singh (1922) 43 M.L.J. 35 : L.R. 49 IndAp 81 : I.L.R. 1 Pat. 340 (P.C.) that a lessee of zerait land is a tenant within the meaning of Section 3(3) of the Bengal Tenancy Act, 1885, only during the continuance of the term of the lease, and that, upon the expiry of the term, he became a trespasser, liable to be ejected. Such a person would be liable for mesne profits (vide Harry Kempson Gray v. Bhagu Mian (1929) 58 M.L.J. 215 : L.R. 57 IndAp 105 : I.L.R. 9 Pat. 621 Indeed, the possession of a tenant, on the expiration of the term of the lease, becomes, wrongful, and, therefore, adverse to the landlord within the meaning of Article 144 of Schedule I of the Limitation Act (vide Shravan Shahasing Patil v. Fattu 1926) 98 I.C. 911 learned Counsel for the lessee-appellant, of course, did not challenge the correctness of any of these decisions. Their attempt was to distinguish them all on the ground that what was laid down in those cases was that the possession of a tenant after the expiry of the term of the lease was 'wrongful'.

11. It is quite true that such a person is liable to be ejected by due process of law. He is also liable for mesne profits. But it cannot be said that his possession was unlawful. So the argument ran.

12. It cannot be denied that there is considerable force in the contention based on the difference--subtle, but essential'--between wrongful possession and unlawful possession. The question is how the expression 'lawful possession', which occurs in Rule 13, should be construed in the relevant context. It must not be overlooked that the Madaras Cinemas (Regulation) Rules were framed in exercise of the powers conferred by the Madras Cinemas (Regulation) Act, 1955. That Act itself was intended to provide for the regulation of exhibitions. Under Section 3 of that Act, no person can give an exhibition by means of a cinematograph elsewhere than in a place licensed under the Act and subject to conditions and restrictions imposed by such licence. Section 5 enumerates the matters, to which the licensing authority must have regard in deciding whether to grant or refuse a licence. These matters are (a) the interest of the public generally, (b), the status and previous experience of the applicant, (c) the suitability of the place, (d) the adequacy of existing theatres, (e) the benefit to the concerned locality, and (/) the possession by the applicant of other theatres. Every licence granted under the Act is to the person to whom it is granted. Sub-section (7) of Section 5 provides for an appeal from the order of the licensing authority refusing to grant a licence.

13. Obviously, the grant of a licence does not by itself confer any proprietary right on the licensee. A licence is not proof of title. The licensing authority who is an executive officer docs not have the requisite power to adjudicate on disputes as to title. Rule 13 makes it necessary for the applicant for the licence, if he is the owner of the site, building and equipment, to produce to the licensing authority the necessary records relating to his ownership and possession thereof. It is for the licensing authority to be satisfied on the records whether the licence should be granted to the applicant as the owner. If the licensing authority entertains any doubt as to the ownership of the applicant, he may refuse to grant the licence; but such refusal would not have any bearing on the actual title of the applicant. To give an instance; supposing A applies for a licence and he produces a sale-deed relating to the premises standing in the name of a third party, but asserts that it is really benami for him, the licensing authority may well refuse to grant the licence. He is not bound to ascertain whether the person in whose name the sale-deed stands is the benamidar of the applicant. Or, to take another instance; suppose A, an applicant, claims a property as the legatee under a registered will, which is produced before the licensing authority. Even if another person were to dispute the genuineness of the will, the licensing authority may well be satisfied with the registered will and grant the applicant a licence. It appears to us that the same consideration would apply to possession. Here, the rule expressly says that the evidence, which the applicant has to adduce to show that he is in lawful possession of the site, building and equipment, should be 'to the satisfaction of the licensing authority'. If an applicant produces certain documentary evidence, but the Commissioner is not satisfied, on such evidence that the applicant is in lawful possession of the site, building and equipment, he can refuse to grant the licence. Will it be open to this Court in the exercise of special jurisdiction conferred by Article 226 of the Constitution to say that the licensing authority should have been satisfied by the documentary evidence produced, as showing that the applicant is in lawful possession of the premises and equipment? There may be, we concede, exceptional cases where this Court might hold that the order of the licensing authority is prima facie perverse. To give an extreme example : suppose there is a judgment of the Supreme Court, declaring that the applicant is in lawful possession of the premises and that judgment is produced before the licensing authority, but the authority, nevertheless, says that he is not satisfied that the applicant is in lawful possession, this Court would interfere. Barring such exceptional cases, we think that it does not lie within the province of this Court to examine the correctness of the view taken by the licensing authority in the case of each applicant as to whether he is or is not in lawful possssion of the premises and equipment.

14. In the present case, admittedly, the lease in favour of the appellant has expired. There is a decision of this Court in Raja Chetti v. Jagannathadas : (1949)2MLJ694 according to which, prima facie, the appellant may not be entitled to the benefit of the provisions of Madras Buildings (Lease and Rent Control) Act. The appellant will therefore be a person who can well be described as one not legally entitled to be in possession. It is one thing to say that he cannot be ousted from the premises without recourse to a Court of Law; but it is another thing to say that he is lawfully entitled to be in possession.

15. If, in this case, the licensing authority had actually renewed the license in favour of the appellant, we would not have interfered. In W.P. No. 608 of 1959, Balakrishna Ayyar, J., refused to interfere, at the instance of the owner of a cinema theatre, with an order of the licensing authority, granting a temporary licence to the lessee whose lease had expired. The learned Judge did not think it necessary to decide whether the possession of a lessee, whose term had expired, but had not surrendered possession to his landlord, is lawful or not. He held that, even if the continued possession was not lawful, the owners had no legal right which was infringed by the grant of the licence by the licensing authority. The learned Judge pointed out that the only manner in which the lessors could get possession would be by filing a suit in a competent civil Court and that the owners could not be allowed to bypass the ordinary civil Courts while resorting to put pressure on the erstwhile tenant in an oblique way. This order of Balakrishna Ayyar, J., was confirmed by a Division Bench, to which one of us was a party, on the ground that the owners had no legal right which was infringed by the impugned order of the Collector. In the instant case, it is a case of licensing authority refusing to grant a licence. Unless we can hold that he was compelled by the relevant statutory provisions to grant the licence to the appellant we cannot issue a writ of mandamus, directing the Commissioner of Police, to renew the licence.

16. It is unfortunate that the result would be the closure of the theatre till the question of possession is decided by a competent Court of Law. The appellant would not be able to exhibit films at the theatre without a licence. Nor can the owner exhibit, because she would not be entitled to a licence unless she is in possession. But, on this ground, we do not think that we would be justified in directing the Commissioner to issue the licence to the appellant. The appeal (W.A. No. 151 of 1959) must therefore be dismissed; but, in the circumstances, there will be no order as to costs.

17. Writ Appeals Nos. 160 to 162 of 1959, which arise out of three connected W.Ps. Nos. 969 to 971 of 1959, relate to Murugan Talkies. The material facts are more or less similar to there in W.A. No. 151 of 1959. There is, however, one fact which is peculiar to this case. The appellant obtained a lease of the premises only, that is, the theatre, from one Paramasiva Mudaliar, impleaded as respondent 3 to the petitions. But the equipment belonged to Rajeswari Ammal, a sister of Paramasiva Mudaliar, impleaded as respondent 4 in the petition, and the appellant obtained the use of this equipment by an agreement of hire entered into between her (Krishnaven; Ammal) and Rajeswari Ammal.

18. The principle of our decision in W.A. No. 151 of 1959 would equally apply to this case on the finding that there was a tripartite agreement, which practically made the lease a composite lease of the theatre, and the equipment. If that be not so, there is another ground on which the appellantmust fail. The appellant is entitled to the use of the equipment only under the agreement of hire, which came to an end on 15th November, 1959. So far as we are aware, there is no statutory provision for extension of the term of hire, similar to the provisions of the Madras Buildings (Lease and Rent Control) Act. The possession of the equipment beyond the date of the hire agreement without the consent of the owner would be per se unlawful. Rule 13 requires that the applicant should be in lawful possession not only of the site and the building, but also of the equipment. Clearly, the appellant cannot be said to be in lawful possession of the equipment after 15th November, 1959. She cannot therefore satisfy the condition required by that rule. It follows that she is not entitled to any relief by way of mandamus or otherwise either against the Commissioner of Police or against the Board of Revenue, or against the Chief Electrical Inspector. The appeals are therefore dismissed, but there will be no order as to costs.


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