The Licensee, Sri Lala Talkies vs The District Collector, Madurai District and Others

S.S. Subramani, J.—Petitioner seeks the issuance of writ of certiorari calling for the records of the Secretary to Government, (Home

Cinema-H) Department, in G.O.N.(1D) 666, dated 24.2.1997, on the file of 3rd respondent and quash the same.

Petitioner is the licensee of Sri Lala Talkies, Vadipatti, Madurai District. It originally belonged to late Pon. Perumalsamy Naidu. On his death,

the same devolved on his three sons, namely, Perumal, Pon-Subbiah and Thirumalaisamy Naidu. Of the three sons, Perumal is the petitioner and

Pon-Subbiah is the 4th respondent herein. After the death of their father, a partition was effected in which the theatre was not the subject-matter.

Even now the theatre and compound are retained as common property by the three brothers and all the three are even now co-owners. It is said

that ''C'' Form licence was issued to the petitioner since he is a co-owner. But, one of the co-owners, namely, 4th respondent filed application

before the 1st respondent for cancellation of ''C'' Form licence, and, as per order dated 27.7.1996, the ''C'' Form licence was cancelled.

Aggrieved by that Order, petitioner preferred an appeal to the Joint Commissioner of Land Administration. The appellate authority set aside the

order and directed that time should be given to the parties to settle the dispute amicably, and till then the theatre should not be allowed to be

closed. A direction was given to issue ''E'' form licence to run the theatre. Aggrieved by the Order, the 4th respondent filed a revision before the

3rd respondent-Government to set aside the order of the appellate authority. The 3rd respondent also set aside the order of the appellate authority

and restored the Order of 1st respondent. The order of 3rd respondent is now challenged in this writ petition on the ground that the Authorities

have not rightly considered Rule 13 of the Tamil Nadu Cinemas (Regulation) Rules, 1957. It is contended that the petitioner is a co-owner and he

is the person in lawful possession, and either way he is entitled to get a licence.

Counter affidavit has been filed by 4th respondent stating that without the consent of co-owners, licence cannot be granted, and the order of 3rd

respondent does not call for any interference.

I heard learned Additional Government Pleader also who argued an instructions, and he also supported the stand taken by the Government.

Before going to the merits and demerits of the case, it is better to consider as to what Rule 13 of the Tamil Nadu Cinemas (Regulation) Rules

provides. Rule 13 (1) which is relevant for our purpose, reads thus:

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.

[Italics supplied]

As per that Rule, licence will have to be given either to the owner of the site, building or equipment. If either of these is satisfied, licence could be

granted. On a reading of Rule 13(1), according to me, petitioner satisfied all the ingredients.

It is admitted case that petitioner and 4th respondent are co-owners along with another brother. It is also admitted that in regard to cinema

theatre and the premises, the same has been left in common, and even now it is undivided. Since it is admitted that the parties are co-owners,

according to me, that will be sufficient to grant licence.

In ''Salmond on Jurisprudence'' - 12th Edition (1966), the learned Author P.J. Fitzgerald has considered this question in the Chapter ''Sale

Ownership and Co-ownership'', at page 254. The relevant portion of that Chapter reads thus:

As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the

same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is

that of co-ownership.

This question has again come up for consideration in the decision reported in Sri Ram Pasricha Vs. Jagannath and Others, . There, the question

was, whether a co-owner is entitled to evict a tenant. After extracting the passage from Salmond on Jurisprudence (referred to above), Their

Lordships have held thus, in paragraphs 27 and 28:

Jurisprudentially it is hot correct to say that a co-owner of a property is not its owner. He owns every part of the common composite property

along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when

partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admitted by the landlord and co-owner of the

premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner

of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord

of the defendants.

Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira v. Santi Sudha Bose ILR (1968)2 Cal. 70, that a

permanent leasee is not an owner within the meaning of Section 13(1 )(f) a co-owner would not be in a better position. We are of opinion that a

co-owner is as much an owner of the entire properly as any sole owner of a property is We, however, express no opinion about the case of a

permanent lessee as this point does not arise in this appeal.

[Italics supplied]

The said principle was again reiterated and followed in the decision reported in Kanta Goel Vs. B.P. Pathak and Others, . There, the question

that came for consideration was, whether a co-owner should join other co-owners in eviction proceedings. It was held by the Supreme Court that

it is not necessary.

Finally, the Supreme Court had occasion to consider a question where a landlord became a co-owner in respect of a non-residential building

subsequent to the filing of the eviction petition. Under Tamil Nadu Buildings (Lease and Rent Control) Act, if the landlord is occupying a non-

residential building of his own, he is not entitled to evict a tenant from another non-residential building. In the case reported is Super Forgings and

Steels (Sales) Pvt. Ltd. Vs. Thyabally Rasuljee (Dead) through Lrs., subsequent to the filing of eviction petition, landlord inherited non-residential

property of which he was a co-owner. The question raised was, whether the property could be said to be his own property. Their Lordships held

that a co-owner is as much an owner of the property as any sole owner of the property is. If the said legal principle is accepted, I feel that the

petitioner satisfies one of the requirements of the Rule that he is the owner of the site, building and equipment. May be, he is not the exclusive

owner. But that is not what the Rule contemplates. The Rule contemplates that he should be the owner of the site, building and equipment. A co-

owner is legally the owner for all purposes. That itself will be sufficient to set aside the impugned order.

The fact that the petitioner is in possession is not disputed. The case of 4th respondent is that only on the basis of consent i.e., admitting his

status as a co-owner, the petitioner is in possession. If he happens to be the owner, the question of lawful possession does not arise. Even if the

question of lawful possession arises, a co-owner in possession is always considered to be in lawful possession of the property.

In the decision reported in M. Dhanalakshmi Ammal v. Government of Tamil Nadu represented by The Secretary to Government, Home and

Cinema Dept. 1993 W.L.R. 958, a Division Bench of this Court had occasion to consider similar question, viz., what is meant by ''lawful

possession''. In that case, their Lordships found that the petitioner therein being a joint owner of equipment and other movables had undivided

interest in them and, therefore, he is a person in lawful possession and so he was entitled to the issuance of a ''C'' form licence. In the case on hand,

petitioner is in a better position. All the three sons have inherited rights from their father, and all of them are entitled to the site, building and

equipment, and it is left as a common property of all the three brothers.

A question may arise whether petitioner is entitled to do cinema business without the consent of others. A co-owner is entitled to enjoy the

property and make use of the same without detriment to the other co-owners. At the most, he will be liable for accounts. In a joint property, any

co-owner has to use such property usefully, in the sense that his user should not amount to ouster of their co-owners. In this case, petitioner admits

the right of other co-owners, and he does not want the rights of other co-owners to be taken away. If a theatre is closed, it is a loss to the entire

family. It is settled law that a co-owner is entitled to make use of joint property in a way quite consistent with the continuance of joint ownership

and possession, so long as he is not excluding the right of any co-sharer.

If that be so, even the objection of the 4th respondent is not relevant for consideration. The licensing authority is bound to consider only Rule 13 of

the Tamil Nadu Cinema (Regulation) Rules. If the petitioner is a lawful owner, there cannot be any objection for the j. rant of licence. In this case, I

find that the petitioner has satisfied both the grounds. In a similar case, viz., in R. Dhasaiyan and Anr. v. The Government of Tamil Nadu and others

W.P.No. 17859 of 1997 order dated 8.12.1997, I have taken a similar view.

In the result, the impugned order is quashed and I direct the first respondent to consider the case of the petitioner for grant of ''C'' form licence,

within a period of one month from the date of production of a copy of this order. 1 make it clear that none of the parties to the writ petition is

entitled to take-up any other issue. First respondent, on the petitioner producing a copy of this order, shall pass final orders within the stipulated

time. The writ petition is allowed as indicated above. No costs. W.M.P.No. 3352 of 1998 is closed.