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P.A. Kalaiyappan Vs. the Commissioner of Land Revenue and Commercial Taxes and Two ors. - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication
CourtChennai High Court
Decided On
Reported in(1980)1MLJ473
AppellantP.A. Kalaiyappan
RespondentThe Commissioner of Land Revenue and Commercial Taxes and Two ors.
Excerpt:
- .....for, he should satisfy the licencing authority by production of documentary evidence that he is in lawful possession of the site. the question therefore for consideration is whether the application filed by the petitioner on 11th may, 1978 was not in order by reason of the fact that in support of the lawful possession of the site, the petitioner produced the unregistered documents in a case where a lease is to be registered. there could be no doubt about the genuineness of the unregistered documents as they are on stamp papers and executed by the owner. the owner of the property also had never disputed that he had leased the property to the petitioner in possession of the property as and from 9th may, 1978. when the application was referred to the panchayat and the police asking for.....
Judgment:
ORDER

V. Ramaswami, J.

1. This is a petition for the issue of a writ of certiorarified mandamus to call for the records of the Board of Revenue dated 26th October, 1978 and to quash the same and to direct a no-objection certificate to be granted to the petitioner in respect of S. No. 176/1 and 2 of Nilamalagiamangalam Village, Tiruvadanai Taluk, Ramanathapuram District.

2. The petitioner applied for a no-objection certificate for locating a touring cinema in the site mentioned above by an application dated 10th May, 1978 received by the Collector on 1lth May, 1978. The petitioner had deposited the required fee in the treasury and complied with all the conditions for applying for a no-objection certificate. Since he is not the owner of the site, in column 13 of the application in Form A, he stated that he had taken the site on lease and enclosed two copies of unregistered lease deeds in respect of the property. The Collector returned the application with an endorsement on 18th May, 1978 that he should produce a registered lease deed in respect of the property. The petitioner obtained from the owner of the property a fresh registered lease deed dated 22nd May, 1978 in respect of S. No. 176/2 measuring 87 cents and resubmitted the application with the registered lease deed on 24th May, 1978. He also obtained another registered lease deed on 7th June, 1978 in respect of Survey No. 176/1 measuring 1 acre 15 cents and sent the same to the Collector. In the meantime, the third respondent by his application dated 20th May, 1978 which was received by the Collector on 22nd May, 1978 applied for the grant of a no-objection certificate in respect of Survey Nos. 62/3, 62/4 and 62/5 in the same village. That application. was found to be in order. In that case also the third respondent was not the owner of the property, but he had obtained a registered lease deed dated 15th May, 1978 and he enclosed the document along with the application. Both these applications were considered by the 2nd respondent, the Collector of Ramanathapuram. Since the sites in respect of which the petitioner and the third respondent applied for the grant of a no-objection certificate were within the prohibited distance within the meaning of Rule 14(2) of the Rules relating to Tamil Nadu Cinemas (Regulation) Act, 1956, the Collector proceeded to consider as to whom the no-objection certificate could be granted as between the petitioner and the 3rd respondent. Ultimately though the Collector found that both the petitioner and the third respondent were entitled to a no-objection certificate since the application of the third respondent was anterior in time, he held that 'the third respondent is entitled to get the no-objection certificate. This was on the ground that the application of the petitioner was not in order of 11th May 1978 when he presented it and it was incomplete in regard to the production of the lease deed; But the third respondent's application which was received on 22nd May, 1978 was in order. This view of the Collector was confirmed by the Board of Revenue and the appeal preferred by the petitioner herein was dismissed by the Board of Revenue on 26th October, 1978. Thereafter the petitioner has filed this writ petition on 29th January, 1979 and was admitted on 31st January, 1979.

3. The petitioner has applied for a stay of the operation of the Board's order in C.M.P. No. 409 of 1979. Though this Court granted an interim stay on 31st January, 1979, it was later vacated when it transpired that the third respondent had already obtained a 'C Form licence and begun exhibition of the pictures.

4. The learned Counsel for the petitioner strenuously contended that his application filed on 11th May, 1978 was complete in all respects, that he was in possession of the site in respect of which he has asked for a no- objection certificate even from 9th May, 1978 that his possession of the site cannot he stated to be unlawful even as on 11th May, 1978 though his possession was under unregistered documents and that therefore his application was in order and should be treated as in order with effect from that date. If that is so, his application was anterior in time to the application filed by the third respondent on 22nd May, 1978 and he is entitled to the grant of the no-objection certificate. The learned Counsel for the third respondent on the other hand contended that the two unregistered lease deeds produced by the petitioner along with his application on 11th May, 1978 were not legal documents as they were not registered and that the lease was from year to year and for more than one year. The registered document which was produced by the petitioner later on 24th May, 1978 related only to Survey No. 176/2 and that too it was effective only from 22nd May, 1978 and it did not trace back to 9th May, 1978 when the unregistered document was executed. The other document relating to S. No. 176/1 is dated 7th June, 1978 and the possession of the property can be said to be legal in respect of S. No. 176/1 only with effect from 22nd May, 1978 and in respect of S. No. 176/2 from 7th June, 1978. Rule 13 requires that in cases where the applicant is not the owner of the site in respect of which a no-objection certificate is asked for, he should satisfy the licencing authority by production of documentary evidence that he is in lawful possession of the site. The question therefore for consideration is whether the application filed by the petitioner on 11th May, 1978 was not in order by reason of the fact that in support of the lawful possession of the site, the petitioner produced the unregistered documents in a case where a lease is to be registered. There could be no doubt about the genuineness of the unregistered documents as they are on stamp papers and executed by the owner. The owner of the property also had never disputed that he had leased the property to the petitioner in possession of the property as and from 9th May, 1978. When the application was referred to the Panchayat and the police asking for reports as to whether the petitioner was in lawful possession, they reported that the petitioner was in lawful possession. Though the rule requires production of documentary evidence to show that the petitioner is in lawful possession of the site it cannot be stated that in every case lawful possession can be proved only by registered lease deed. In a case where there is no dispute between the owner and the leases and where it is admitted that the applicant is in possession in pursuance of a lease agreement between the owner and the applicant, I am of the view that even an unregistered lease deed can be relied on to show that he is in lawful possession. It is true that such unregistered documents cannot be a legal evidence; but the use of the words 'producing documentary evidence to show that he is in lawful possession of the site' in the rule cannot be interpreted as meaning that the documentary evidence shall be produced even at the time of application. In a case where the lease is oral and there is no dispute about the lease agreement between the owner and the applicant, it is possible to prove legal possession by reference to other documents such as entries in village accounts and registers. Therefore in every case it is a question of satisfying the licensing authority as to whether the applicant is in lawful possession. Therefore, it is not necessary for the petitioner to have produced registered documents relating to his possession even at the time when he applied for the licence. If he could show at the time when the application is considered by the Collector that he was and continues to be in lawful possession, from the date of application it should be taken as. sufficient compliance with the rule. In the circumstances, I am satisfied that the petitioner was in lawful possession even from 11th May, 1978. The petitioner is therefore entitled to the grant of a no-objection certificate prayed for.

5. The learned Counsel for the third respondent contended that though the appeal filed by the petitioner was dismissed by the Board on 26th October, 1978 he did not take steps to file a writ petition till 29th January, 1979. The petitioner and the third respondent are closely related and the petitioner was aware that the third respondent was taking all steps to complete the construction of the theatre and he had in fact completed the theatre to the knowledge of the petitioner before 29th January, 1979 when the petitioner filed the writ petition. Even before the stay order was communicated to the Collector, the 'C' Form licence also was obtained by the third respondent and in those circumstances, the learned Counsel for the third respondent submitted that the equity is in his favour and it requires that at least he should be permitted to continue till the petitioner obtains 'C' Form licence. I think the learned Counsel for the 3rd respondent, is well-founded in this contention. It may also be mentioned that by permitting the third respondent to continue to exhibit cinema till a 'C' Form licence is given to the petitioner, the petitioner is not going to be prejudiced in any way.

6. Accordingly, the writ petition is allowed and that part of the orders of the Collector and the Board of Revenue refusing to grant a no-objection certificate to the petitioner are set aside and the Collector is directed, as agreed to by the third respondent, to cancel the licence in favour of the third respondent simultaneously with the grant of the 'C' Form licence to the petitioner, so that Rule 14(2) will not be violated. There will be no order as to costs.


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