Dodda Ranga Rao vs District Collector, Guntur and others

These two writ petitions are disposed of by common order as the issues involved in both the writ petitions are the same.

The petitioner is the landlord ofthe cinema theatre Leela Mahal. On 16-4-1950 lease was granted in favour of the 3rd respondent at Rs.750/- p.m. The landlord filed RCC No.58 of 1992 on the file of Prl. District Munsif-cum-Rent Controller, Guntur, for eviction of the 3rd respondent on the following grounds : (i) Wilful default in payment of rents ; (ii) sub-letting the premises; (iii) unauthorised additions to the building ; and (iv) Requirement of the building for bona fide personal occupation. The RCC was allowed by order dated 24-6-1996 and eviction was ordered. However, the 3rd respondent carried the matter in appeal in RCA 22 of 1996 on the file of Prl. Subordinate Judge, Guntur, and obtained stay of eviction on 13-6-1996 in IA No.2366 of 1996. The landlord made a representation dated 12-8-1996 to the 1st respondent not to grant any licence to the 3rd respondent under Rule 11-B(2) of the A.P. Cinema (Regulation) Rules, 1970 (for short ''the Rules''). On 14-3-1997 the Joint Collector, R2 herein, issued proceedings reviewing the licence on the ground that the tenant obtained stay of eviction. It was also stated that the landlord can prefer an appeal against the said renewal. On 16-6-1997 the landlord made another representation to respondent No.2 stating that the stay was only a stay of execution of eviction and the eviction order has become final. On 30-9-1997 the landlord filed WP No.31887 of 1997 praying to declare the running of the cinema theatre as illegal. No interim order was issued. On 8-4-1998 the 2nd respondent wrote a letter renewing the licence for six months from 1-4-1998 to 31-10-1998. On 14-5-1998 the landlord-petitioner filed WP No. 14048 of 1998 to quash the proceedings of the 2nd respondent dated 8-4-1998. On 18-9-1998 temporary licence was issued to the 3rd respondent from 1-10-1998 to 31-3-1999, subject to the final order in the writ petition. The petitioner, therefore, filed WP MP No. 3959 of ! 998 to quash the order dated 18-9-1998 renewing the licence from 1-10-1998 to 31-3-1999.

As far as Writ Petition 31887 of 1997 is concerned, this writ petition was filed challenging the order of the 2nd respondent renewing the licence to the 3rd respondent till 31-3-1998. Since that period has expired, the writ petition has become infructuous. WP No.31887 of 1997 is, therefore, dismissed as infructuous.

As regards Writ Petition 14048 of 1998 is concerned, by the impugned order the licence was renewed upto 31-3-1999. Therefore, the matter is considered on merits.

The main argument of the learned Counsel for the petitioner is that under Rule 11-B(2) of the Rules framed under the Andhra Pradesh Cinemas (Regulation) Act, 1955, renewal of licence is contemplated provided the licensing authority is satisfied that the applicant is in lawful possession of the site, building and equipment. The requirement under the said rule is therefore, that the applicant should be in lawful possession. The possession of the 3rd respondent is not a lawful possession, it is contended, he is not entitled for renewal of licence, as his possession is not lawful possession within the meaning of Rule 11-B(2) of the Rules. In support of his contention, learned Counsel for the petitioner relied upon the following decisions : M.C. Chockalingam and Others Vs. V. Manickavasagam and Others, ; Krishna Kishore Firm Vs. The Govt. of A.P. and others, ; Smt. Y. Anasuya Vs. Government of Andhra Pradesh and Others, ; Om Prakash Gupta v. The Commissioner of Police, Madras, (1960) II MLJ 50.

However, learned Counsel for the 3rd respondent contends that by virtue of the stay granted by the appellate authority in RCA 22 of 1996 the 3rd respondent has an excuse to continue in possession and, therefore, his possession should be treated as lawful possession within the meaning of Rule 11-B(2) of the Rules.

The question that falls for consideration is whether the possession of the 3rd respondent is lawful within the meaning of Rule 11-B(2) of the Rules.

In Chockalingam''s case (supra) the Supreme Court, while considering the scope of lawful possession, held-

"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 oflawful 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. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lallu Yeshwant Singh Vs. Rao Jagdish Singh and Others, had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession."

In Krishna Kishore Firm''s case (supra), considering the meaning of litigious and lawful possession, the Supreme Court held as follows:

"The one pertains to dispute in which possession may be conterminous with physical or de facto control, only, whereas the domain of other is control with some legal basis. The former may be uncertain in character and may even be without any basis or interest but the latter is founded on some rule, sanction or excuse. Dictionarily ''litigious'' means "disputed" or "disputable" or "marked by intention to quarrel", "inviting controversy", "relating to or marked by litigation", "that which is the subject of law suit". Lawful on the other hand is defined as, "legal, warranted or authorised by the law."

It was also held -

"Same though about lawful has been brought out by Pollock and Wright by explaining that "Lawful Possession" means a legal possession which is also rightful or at least excusable. Thus that which is not stricto legalo may yet be lawful. It should not be forbidden by law. In fact legal is associated with provisions in the Act, rules etc., whereas lawful visualises all that is not illegal against law or even permissible. Lawful is wider in connotation than legal."

It was further held -

".....from conduct of lessor the tenant''s possession may stand converted into lawful. The other may be where lessor may not agree to renew the lease nor he may acquiesce in his continuance. Such a lessee cannot claim any right or interest. His possession is neither legal nor lawful. Such was the Chockatingam''s case (supra). The Court held that continuance of lessee''s possession after expiry of period of lease was not lawful for purposes for renewal of licence under Madras Cinema Regulation Act 1955 obviously because lessee was left with no interest which could furnish any excuse or given it even colour of being legal."

A Full Bench of this Court in Smt. Y. Anasuya''s case (supra), following (he judgment in Chockalingam''s case (supra), held that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. The Madras High Court in Om Prakash Gupta case (supra) held -

"A lessee in possession of a premises, the lease in whose favour has expired; and who is not entitled to any protection under the Madras Buildings (Lease and Rent Control) Act, 1949, is one who is not legally entitled to be in possession though it may be that he cannot be ousted from the premises without recourse to a Court of law."

It is true that the decisions referred to above are cases which arose under Transfer of Property Act as the period of lease has expired, whereas in the present case the premises in question is governed by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. In other words the 3rd respondent is a statutory tenant. The question therefore, is whether in case of a statutory tenant where eviction proceedings were initiated and eviction was ordered by the Court and he is in continued in possession of the premises by virtue of the stay granted by the appellate authority, can it be said that the tenant is in lawful possession ?

The judgments referred to earlier have defined what is the meaning of ''juridical possession'' and ''litigious possession''. Possession of the tenant by virtue of stay orders isjuridical possession. If it is a juridical possession, according to the Supreme Court in Chockalingam ''s case (supra), it is not a lawful possession. By virtue of the stay order his possession is protected by law against wrongful dispossession, but cannot per se be equated with lawful possession. Therefore, the possession of the tenant in the instant case is that of juridical possession and not lawful possession. Further, by virtue of invoking the jurisdiction of the Court to evict the tenant and by virtue of the judgment of the Rent Controller directing eviction of the tenant-3rd respondent herein, the possession of the 3rd respondent has become litigious. It''s an undisputed fact. Therefore, though the judgments referred to above dealt with leases granted under Transfer of Property Act, the concept and meaning of juridical and litigious possession, as explained categorically by the Supreme Court, is applicable to the possession of the 3rd respondent herein on the facts of the present case. Therefore, if once the possession of the 3rd respondent is that of litigious and juridical, it cannot be treated as lawful possession. If once the possession of the 3rd respondent is not lawful, it follows, he is not entitled for renewal of licence under Rule 11-B(2) of the Rules.

The argument of the learned Counsel for the 3rd respondent that he has an excuse to continue in possession by virtue of the stay granted by the appellate authority and, therefore, his possession should be treated as lawful, cannot be countenanced. The reason being that the meaning of "he has an excuse to continue in possession" is if he is in possession by virtue of acquiring interest subsequently in the property under an agreement of sale or an agreement to lease, or under an unregistered sale-deed or an unregistered lease deed. Under those circumstances only it can be said that he has an excuse to continue in possession.

Therefore, in view of the above discussion, it follows that the 3rd respondent is not entitled for renewal of licence under Rule 11-B(2) of the Rules, inspite of the stay granted by the appellate authority in RCA 22 of 1996. Therefore, the writ petition is allowed with costs. The order renewing the licence of the 3rd respondent upto 31-3-1999 is set aside. Advocate fees is Rs.1,000/- (Rupees One thousand only).