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Judgment
S.S. Subramani, J.—Petitioner seeks issuance of Writ of Certiorarified Mandamus calling for the records of the first Respondent in G.O.(D)
No. 904 Home (Cinema-I) Department, dated 8.10.1996 which confirms the order of the third Respondent in Cinema Appeal No. 110 of 1993
Dis(L) dated 10.4.1995 which in turn confirmed the order of the fourth Respondent in his proceedings Rc. C1/60727/92 dated 31.7.1993 and
quash the same and direct the Respondents to restore the Form C Licence issued to Petitioner in respect of Shanthi Theatre, Villupuram Town and
pass such further orders.
The necessary facts for disposal of Writ Petition may be summarised thus: The Shanthi Theatre is constructed in the property belonging to one
Venkatachalam Chettiar who executed a lease Deed in favour of first Respondent herein, Krishnamurthy Iyer. He put up a construction, a Cinema
theatre in the leased premises. Petitioner herein obtained an assignment of the lease as per the document dated 27.7.1981. Even before that time,
the theatre was functioning. In the document dated 27.7.1981, there was no mention about the equipments in the theatre. The same also admittedly
belonged to Krishnamurthy Iyer, first Respondent herein.
It is seen that one Jeevarathnammal claiming under Venkatachalam Chettiar, owner of the property did not want ''C Form'' licence to be
renewed and raised objection before the licensing authority. In those proceedings, both the Petitioner and first Respondent were made parties. At
that time, Petitioner herein who has already obtained Sale Deed, contested the claim of Jeevarathnammal, and ultimately it came to this Court in
W.P.6117 of 1982. By virtue of the interim order C Form licence was granted to the Petitioner but finally, learned single Judge dismissed the Writ
Petition and confirmed the order of the authorities holding that Petitioner herein is not entitled to C Form licence on the ground that the transfer of
lease in favour of Petitioner is not valid without the consent of the owner. The matter was taken in WA 1105 of 1995. The order of single Judge
was set aside and permission was granted that the Petitioner is entitled to C Form licence. This Court directed Petitioner herein is entitled to C
Form licence and directed authorities to issue the same. In all those proceedings, Petitioner as well as Respondent herein had a common interest
against the owner Jeevarathnammal and they did not want the owner to take possession of the property.
In this proceeding, Respondent is alleged to have stated that even regarding equipments in the theatre, same has been given possession to the
Petitioner herein. According to the Petitioner, Respondent herein has sold those moveable and equipments to her and along with the sale of lease
right a list was also given to her which contains the items of movables and machineries. Further contention is that there is no necessity to state about
the sale of movables in the assignment of lease document to avoid registration and stamp duty. It is also said that the sale of movables has to
inferred when the same is delivered to the so-called purchaser. Petitioner, who is in possession of those equipments is therefore the owner, though
there is no sale deed evidencing those items.
Even though Petitioner and first Respondent were fighting Jeevararhnammal, dispute arose as between them also. The reason behind is that
these equipments are pledged to Syndicate Bank by the Respondent. According to Respondent, these equipments were handed over to Petitioner
for a period of five year on an understanding that the loan to the Bank will have to be discharged by her. When the Bank issued notice asking
Respondent to clear the loan, he came to know that the assurance by the Petitioner was not kept up and he immediately informed licensing
authority that with regard to the equipments, Petitioner is not the owner or a person in lawful possession and ''C'' Form Licence is to be cancelled.
In this connection it is also to be noted that ''C'' Form Licence is given to Petitioner, pursuant to the direction in W.A.1105 of 1995 dated
14.7.1997 and also by the interim order in the Writ Petition.
On the basis of that application proceedings were initiated by the licensing authority asking Petitioner herein to produce document to show
ownership of the equipments. Petitioner except to state that she is in possession of those equipments and also showed the list, was not in a position
to prove by any documentary evidence that she is the owner.
The licensing authority took into consideration the absence of any ownership deed and also took into consideration the fact that the Respondent
herein was the admitted owner, came to the conclusion that ''C'' Form licence is liable to be suspended or cancelled. The licensing authority held
that under Rule 13 of the Tamil Nadu Cinema Regulation Rules, the ownership over the equipments also will have to be proved by the Licensee
and if she is not the owner, she must at least prove that she is in lawful possession of those equipments. When Respondent has objected to the
continued possession of those equipments by Petitioner, even the lawful possession was found against her. Consequently, ''C'' Form Licence was
cancelled.
Though the matter was taken on appeal and revision, the same were without success. As on date i.e., from 1993 onwards, the theatre is closed
on the ground that Petitioner is not entitled to get ''C'' Form licence.
In this connection, it may be stated that when dispute arose between Petitioner and first Respondent, she also filed a suit as O.S. 228 of 1992
on the file of Subordinate Judge Court, Cuddalore to restrain the Respondent herein from interfering with her possession of the theatre and cinema
equipments. Both the Sub-Court as well as District Court in G.M.A. 50 of 1993 refused to grant injunction. The matter came to this Court in
G.R.P. No. 3459 of 1993. The argument before the learned Judge was that admittedly Petitioner herein is in possession of the landed property
and superstructures on the basis of assignment of Lease. It is also argued before this Court that Respondent himself has admitted that Petitioner is
in possession of the equipments and permission has not been withdrawn. Therefore, it is in lawful possession and the Petitioner is entitled to
injunction. Learned Judge while disposing of the C.R.P., held thus,
... There is a wrong approach on the part of the Court below. He would submit that in view of the finding of the Appellate Court that the Petitioner
has been running the theatre and that the Respondent has given the oral permission to see the machineries by the Petitioner both the Courts below
erred in holding that the Petitioner has not established the alleged purchase and that his possession is not lawful Both the Courts have not properly
appreciated the decision referred to in the judgments which deal with the case of trespassers who are not entitled to any injunction and a person,
who is in wrongful possession is not entitled to protract against the lawful owner by the order of injunction. The question is whether the Petitioner is
in wrongful possession. On the admitted facts, it cannot be said that the Petitioner is in wrongful possession. It is a matter to be decided in the suit
as to whether the sale of the machineries is true or whether the Petitioner was allowed to use the same with the permission granted by the
Respondent etc. is a matter to be decided in the suit. But, in view of the admitted facts, that the Petitioner has been running the theatre and ''C''
Form licence and (sic) licence were obtained in her favour and by using the materials furniture, etc. certainly he is entitled to be protected and
consequently entitled to the order of injunction till the disposal of the suit. Both the Courts below have not property appreciated the facts (sic) case
with regard to the law of injunction and (sic) to the miscarriage of justice....
It is (sic) admitted that O.S. 228 of 1992 was dismissed for default (sic) 1998. The interim order is also not in (sic) on date. The Writ Petition
is filed on (sic).
In the various grounds taken in the Writ Petition it is said that the authorities are wrong in revoking the ''C'' Form licence, when Petitioner is in
possession of the movables. Counsel further submitted when the possession of equipments is admitted, it must be presumed that she is the owner
and any person claiming that the Petitioner is in permissive possession must substantiate the same. The authorities below have not considered these
aspects which resulted in the impugned orders. He seeks to quash the impugned orders and direct Respondents to issue ''C'' Form licence.
First Respondent has filed detailed counter affidavit and also typed set of papers. According to the counter affidavit, the Writ Petition
suppressed the material facts and there is also long delay in filing the Writ Petition. It is submitted that the impugned order already been brought to
the notice of the Division Bench while disposing of the W.A. 1105/94, and apart from the same, when the Civil suit itself has been dismissed, it
cannot be said that the authorities are wrong in deciding the case against Petitioner. It prayed for dismissal of Writ Petition.
Learned Counsel for Respondent raised preliminary objections regarding the maintainability of the Writ Petition on the ground that the
Petitioner has suppressed material facts. It is admitted by the Petitioner himself that O.S. 228 of 1992 filed by her before the Subordinate Judge,
Cuddalore was dismissed on 113.1998 and the Writ Petition was filed only on 11.8.1998, five months thereafter. In the Writ Petition, Petitioner
has given much importance to the order in C.R.P., which arose from the interim order in the suit. When the suit itself has been dismissed, no
importance could be given to the order in C.R.P. and that was the reason why Petitioner has not stated anything about the dismissal of the suit. I
find force in the said contention. Petitioner is duty-bound to inform the Court that the suit was dismissed. Learned Counsel at the time of argument
submitted that since party has already filed application for restoration, he did not think of stating the same in the Writ Petition. I do not think that
the explanation offered by the learned Counsel is a valid reason. Once the suit itself has been dismissed, Petitioner cannot rely on so interim order
passed by this Court. When the Petitioner gave much importance to the interim order, it follows that the result of the suit also important to arrive at
a decision in the interse dispute. The non-mentioning of dismissal of the suit is a material suppression of fact.
Learned Counsel for Respondent also submitted that in W.A. 1105 of 1994 itself the impugned order has been brought to the notice of the
Division Bench. The Writ Appeal was disposed of as early as on 14.7.1997 and Petitioner has filed this Writ Petition one year thereafter. It is
nearly two years since the order was passed. There is long delay and there are latches on the part of Petitioner in coming to this Court. The
Division Bench in paragraph 6 of its order held thus,
The learned Counsel for the third Respondent has brought to our notice a G.O. (D) No. 904 Home (Cinema-I) Department dated 8.10.1996,
which is an order dismissing the revision filed by the Writ Petitioner in respect of lawful possession of the equipment. This question arose on
account of subsequent events relating to the lease of the equipment between the lease (transfer) and the Writ Petitioner. This was not an issue
before the licensing authority on the date of the impugned order. We, therefore, preserve the rights of portion with reference to the said
Government order dated 8.10.1996 and we make it clear that we have not decided in this judgment any right of the Writ Petitioner relating to his
possession of the equipment. In other words, the parties are left to agitate their rights with regard to the matters not decided in this Writ Appeal by
taking independent proceedings. We are linting our order to the quashing of the impugned order of the licensing authority dated 3.4.1982 and
leaving it open to the licensing authority to pass such appropriate orders as may be deemed fit and proper by following the principles of law laid
down in this judgment. We are also making it clear that any other litigation which may be pending between the parties cannot be affected by this
judgment except to the extent (sic) in this judgment.
When this was brought to the notice of the counsel for Petitioner, he said that first Respondent is not party to the Writ Appeal and therefore
these observations will not have any binding effect. I do not think that the said submission of the counsel could be accepted. Jeevarathnammal
contested the claim of the Petitioner from getting C Form licence. One of the ground was that Petitioner herein is not the owner of the equipments
and therefore she is not entitled to get C Form licence. At the time of filing Writ Petition, this was not the matter in issue. When the Writ Appeal
came up for argument, the impugned order was already passed. That was to a certain extent supporting the case of Jeevarathnammal in the sense
that if Petitioner is not proving ownership on the equipments, she must not be given licence. Division Bench dealt with the matter it being a
subsequent event. Even though first Respondent is not EO - nominee party, the parties are left to agitate the matter. In Writ Appeal, when a
direction is given to take independent proceedings it can be inferred that the Petitioner must agitate her rights by taking independent proceedings.
The order of the Division Bench cannot be slightly brushed aside as is argued by the learned Counsel for Petitioner. No reason is also given by
Petitioner why she came to Court two years after the impugned order and one year after disposal of the Writ Appeal There is a long delay and
latches on the part of Petitioner.
Even on merits, I do not think that Petitioner got an arguable case in a proceeding under Article 226 of the Constitution of India.
Rule 13(1) of the Tamil Nadu Cinemas (Regulation) Rules 1957 read thus,
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.
As per the said Rule, Petitioner is bound to produce necessary records relating to the ownership of the equipment also. If she is not the owner, she
must show that she is in lawful possession of the equipments. Petitioner claims that she is the absolute owner and the same is handed over to her
along with the list. The same is seriously disputed by the first Respondent. According to first Respondent, if there was actual sale, this would have
been stated in the Sale Deed itself, it is also said even thereafter, it was the first Respondent who has hypothecated these items to the Bank and
certificate issued by the Bank was also placed before this Court. He also submitted that till date in the various income tax assessments, these
cinema equipments are also stated as part of his assets. The various returns placed before the authorities also placed before this Court. He has also
placed before the Court the letter written by the Syndicate Bank of 12.9.1989 asking to settle the transaction, failing which Cinema equipments
which have been hypothecated to it will be seized and they will be compelled to take recovery proceedings. It is also stated by the counsel that
before the licensing authority Petitioner did not have a case of sale of movables and equipments but it was only a case of handing over possession
of those items. The question of sale is only taken now and therefore it is an after-thought. Even regarding the list submitted to the Petitioner on
which reliance is placed, counsel for Respondent submitted that will not show sale of the items. According to the counsel first Respondent is doing
business in leasing out Cinema equipments and the list that was produced, there is a statement in addition to the above, Chairs and switches are
also handed over to us. This according to the counsel will show that this list was prepared for some other purpose and Petitioner has taken
possession of list given to some lessee of these equipments. Counsel relied on the words, ''handed over to us'' for the said purpose. He said that
even in the case of delivering equipments, the wording would have been different.
Apart from the same, learned Counsel also brought to my notice page 2 of the Writ Petition, wherein it is said thus,
By a document dated 24.11.1981, the first Respondent himself has given a lease of movables like furniture, machineries delivered to the Petitioner
for running the cinema theatre....
This according to the counsel for Respondent will show that the case of movables is false.
Learned Counsel for Petitioner submitted that this is a typographical error and 24.11.1981 must be 24.7.1981. I do not think the argument of
the counsel could be accepted. In C.R.P3459 of 1993 also a reference is made to the document dated 24.11.1981, in the Statement of facts,
given by the learned Judge, it is stated thus,
She also obtained a licence in her own name. By a document dated 24.11.1981, the Respondent/Defendant himself has given a list of movables,
furniture and machineries delivered to the Petitioner for running the cinema theatre. Thus, the Petitioner became the owner....
It is not the case of typographical error as is now argued by the learned Counsel. The document dated 24.11.1981 is not produced before the
Court or before the authorities. A Writ Petition is decided on affidavits. Counsel cannot simply argue that the statement therein is a typographical
error.
Counsel for Petitioner argued that before the Appellate Authority, first Respondent himself admitted that he had sold the equipments. For the
said purpose he has also produced xerox copy of statement given by first Respondent in the application for transfer. I do not find any merit in the
said contention. Columns 6 and 7 was filled by first Respondent. Column 6 deals with whether the application for transfer or assignment in respect
of a permanent cinema or travelling cinema? The answer by first Respondent was that the Transfer for permanent Cinema house. Column 7 is,
''whether the application for transfer or assignment of the licences (here give details of the period for which the licence is proposed) to be
transferred or assigned the consideration fixed for the transaction etc'' For that, first Respondent had stated that the C Form licence may be
transferred due to purchase of the Cinema theatre. He has not stated anything about the equipments in those columns. According to me, the time at
which the application is filed is also relevant. Both Petitioner and Respondent were fighting a common enemy Jeevarathnammal. It was this
assignment that was being considered in that case. The question was whether the lease of the immovable property is liable to be assigned when
there is no provision permitting assignment. Division Bench has held that the assignment is valid. On that date, there was no question as to whether
the equipments have been assigned and parties were not on issue regarding equipments also, there is no statement in that application.
Counsel also relied on the letter written by the first Respondent addressed to the Collector of South Arcot District, the licensing authority.
There also I do not find any specific statement as to the equipments.
After considering the contentions, I do not think that the authorities below were wrong in holding that Petitioner is not entitled to have C Form
licence. When she has failed to prove ownership of equipments or lawful possession the authorities were justified in rejecting the same. Petitioner
attempted to prove the same by filing a Civil suit. There also she failed.
In the result, I do not find any merit in the Writ Petition and consequently the same is dismissed. No costs. W.M.P. 18040 of 1998 is also
dismissed.