S RAMA THEVAR Vs. V S MANICKAM

JUDGEMENT

(1.) THE third respondent in W.P. No. 6177 of 1988 is the appellant in this writ appeal. THE first respondent herein was the petitioner in the writ petition and respondents 2 and 3 herein were respondents 1 and 2 in the writ petition. We are referring to the parties as per their nomenclature in the writ petition. THE third respondent obtained a no objection certificate, for putting up a permanent cinema theatre under the Tamil Nadu Cinemas (Regulation) Act. IX of 1955, hereinafter referred to as the Act and the Tamil Nadu Cinemas (Regulation) Rules, 1937, hereinafter referred to as the Rules. This happened on 1-3 1980. THE very no objection certificate under the act and the rules clearly took note of the fact that the land on which the permanent cinema theatre was sought to be located belonged to the third respondent and eight others. THE parties own different plots in the entirety of the land. Admittedly there was a partnership arrangement to construct and to run the cinema theatre. THE petitioner was one of the partners as per the regular deed of partnership dated 4-3-1981. THE partner ship was at will. THE duration of the no objection certificate being three years having lapsed, the third respondent was endeavouring to get extensions and he did succeed. On behalf of the petitioner, it is stated that the extensions were objected to. Whatever that be, the fact remains that' there were extensions. THE last of the extensions were granted on 27-4-1988. In the meanwhile, the parties have fallen out. THE partnership has been dissolved. Litigation-strife has cropped up. It must be noted here that the parties are the father namely the third respondent and his six daughters, two sons and a son-in-law, the petitioner. We are told the sons are together with the father, the third respondent, but some of the daughters and the son-in-law, the petitioner are at loggerheads with the father, the third res-pondent. THE last of the extension was put in issue in W.P. No. 6177 of 1988 by the petitioner, who is one of the sons-in-law of the third respondent. THE main contention put forth by the petitioner before the learned single Jndge, who heard the writ petition, was that at the time when the impugned exension was granted, the possession of the third respondent could not be characterised as lawful within the meaning of R 13(1) of the Rules and the impugned extension has to be struck down. THE learned single Judge assessed this question taking note of the materials exposed before him and came to the positive conclusion that the third respondent could not be stated to have had lawful possession on the date of the impugned extension. THE learned single Judge did accept the ground of attack put forth on behalf of the petitioner that the impugned order the extension must be struck down also on the simple ground of it being a non-speaking one while doing so, the learned single Judge took note of the ratio of the Division Bench of this Court in Chinnasamy Chettiar v. State of Tamil Nadu 1 to say that reasons, if they are expressed in or could be gleaned from the files, that would suffice the purpose. THE learned single Judge, however, frowned upon the impugned extension on the ground that on the question of the request for extension being genuine or otherwise there has been no expression of opinion. THE learned single Judge was also of the view that the principle of the pronouncement of the bench of this Court in Bala sundaram v. Gopalakrishnan 2 that when a licence is granted to two persons jointly, a renewal of the same cannot be granted on the application of one of them, will apply to the present case. Ultimately, the learned single Judge struck down the impugned extension by allowing the writ petition. This has provoked the third respondent to prefer this writ appeal.

(2.) MR. R.D. Indrasenan, learned counsel appearing for the third respondent, would first contend that this Court exercising jurisdiction under Art. 226 of the constitution cannot interfere with the findingsand the decision rendered by the Authorityunder the Act and the Rules on the question of the possession of the appellant being lawful and do a re-adjudication of thesame. In this behalf, learned counsel reliedon the following pronouncements :

(3.) THE third contention put forth by the learned counsel for the third respondent is, the possession of his client in the present case must be factually held to be lawful and the learned single Judge was not in order in expressing an opinion contrary to it But we find that the facts do not support this contention of the learned counsel for the third respondent. As already noted, at the time of the grant of the no objection certificate on 1-3-1980, the land was found to belong to the third respondent and eight others. THE parties own different plots in the land. Obviously there was a consensus amongst all concerned earlier with regard to the putting up of a permanent cinema theatre making available the entirety of the extent of the land. But that consensus got disrupted and the parties were and are at loggerheads. THE other parties are not prepared to permit the third respondent to have the benefit of the lawful and peaceful possession of the extents of the land owned and belonging to them. THEy do not assent to the third respondent having possession of the extents of land owned by them. THE partnership has been dissolvrd. What semblance of right the third respondent has to be in possession of the extents of land, belonging to others, we are not enlightened with. In that contingency we cannot but characterise the possession claimed by the third respondent as litigious possession. As pointed out by the Supreme Court in M.C. Chockalingam V. v. Manickavasagam 1 , lawful possession is not litigious possession and it must have some foundation in a legal light 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. Again, as pointed out by the Supreme Court in the above pronouncement, the question of lawful possession has got to be assessed from the angle of public interest also and hence it as sumes a peculiar significance of its own. It is not possible to maintain the litigious possession of the applicant as the basis for the grant to serve public interest. However much we tried, we are not able to spell out any semblance of legal right for the third respondent to possess the entirety of the extent of land in question. This patent feature is one, which stares in the face of the court. Though the impugned order of extension is not portent on the aspect, yet the factual materials exposed in the case, when looked into and assessed, only indicate that the possession claimed by the third respondent is nothing short of litigious possession. It is a case of a manifest error committed by the first respondent when the impugned order of extension was passed. We can also characterise the impugned order of extension passed by the first respondent as suffering from non-application of mind to the patent and relevant aspects of the case It is an arbitrary one, and it is prima facie perverse. THE learned single Judge was right in striking down that order.