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Judgment
D. Murugesan, J.—The writ appeal relates to the grant of ''C'' Form Licence in respect of Ramaratna Theatre, Avadi, Chennai.
For the disposal of the writ appeal the following facts are necessarily to be stated:
As on today, the theatre is run on the basis of ''E'' Permit issued in favour of the appellants viz., Tmt. R. Pushparathinammal, W/o Ramasamy
Nadar and Tmt. Saraswathiammal, W/o Ratnapandi Nadar. No Objection Certificate was issued by the Collector of Chingleput District,
Nandanam, Madras-35 on 01.02.1961, to locate a permanent Cinema Theatre in S. No. 716/1 of Paruthipattu Village, Sriperumbudur Taluk in
terms of Rule 36 of Madras Cinema Rules, as it was known then. Thereafter ''C'' Form Licence was issued by the Collector of Chingleput District,
Nandanam, Madras-35 in favour of T.K. Rathinapandia Nadar, on 18.07.1963, in exercise of the power u/s 5(6) of the Tamil Nadu Cinemas
Regulation Act, 1955. After the demise of T.K. Rathinapandia Nadar, in whose name No Objection Certificate and ''C'' Form Licence were
granted, the ''C'' Form Licence was transferred in the names of Pushparathinam Ammal W/o Ramasamy Nadar and Saraswathi Ammal W/o T.K.
Rathinapandia Nadar on 04.11.1967. The licence was periodically renewed and initially on 30.5.1968 for the period from 01.06.1963 to
17.07.1968 and thereafter on 25.03.1980 for the period from 27.3.1980 to 17.7.1980 and finally it was renewed upto to December 1990.
Thereafter, the licence was not renewed. However, this Court by the order dated 27.4.1994 in W.P. No. 15446 of 1991, directed the District
Collector, Kancheepuram to consider and dispose of the application of the appellants herein for renewal of ''C'' Form Licence dated 16.12.1990
and this Court also further directed that till such time the application is disposed, the respondent would issue ''E'' Permits. Thereafter, the appellants
herein were issued with ''E'' Permits continuously.
A show cause notice dated 04.07.2000 was issued by the third respondent for cancellation of the ''C'' Form Licence. A reply was given by the
appellants, but the same was not accepted and the District Collector by his proceedings dated 13.1.2003, cancelled the ''C'' Form Licence on the
ground that the land in question which was purchased by the predecessors of the appellants was poramboke land and the appellants have not
established their title. The licensing authority having found that the land is a poramboke land had not adverted to the copies of the documents filed
by the appellants viz., the sale deeds. The said order was questioned before this Court by the appellants in W.P. No. 1854 of 2003, but the same
was dismissed by order dated 14.08.2003 with a direction to the appellants to prefer appeal u/s 9A of the Tamil Nadu Cinema (Regulation) Act,
1955 and accordingly an appeal was preferred by the appellants before the Additional Commissioner (Cinema), Chepauk, Chennai -5, the second
respondent herein. The said appeal was also rejected on 30.09.2003 on the same ground found by the licensing authority. A revision filed before
the Secretary to Government, Home (Cinema) Department, Chennai, the first respondent, also rejected by order dated 03.03.2004.
When the above orders were put in issue before this Court in the W.P. No. 35690 of 2003, the challenge was negatived by this Court by order
dated 17.10.2003, on the ground that there is dispute as to the ownership of the property, and therefore the appellants shall move the appropriate
civil Court to get the title declared. The above order is under challenge in this appeal.
Except as to the dispute whether the land is Government Poramboke as claimed by the licensing authority or belongs to the appellants by virtue
of the sale deeds, all other facts which we have narrated are not in dispute.
Keeping the above factual aspect in mind, the grievance of the appellants as against the cancellation of the ''C'' Form Licence must be
considered. Rule 13(1) of Tamil Nadu Cinemas (Regulations) Rules 1957 reads as under:
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 thereon. 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.
In order to make an application for ''C'' Form Licence the applicant shall produce to the licensing authority the necessary records relating to his
ownership as well as possession thereof. By the very said Rule, in case if the applicant is not the owner of the land, he shall also satisfy the licensing
authority by producing documentary evidence to show that he is in lawful possession of the site, building and equipment.
As there is dispute relating to the ownership of the land, the appellants may not be entitled to seek for ''C'' Form Licence on the basis of the first
limb of the Rule. However, the question remains whether the appellants are also entitled to the grant of ''C'' Form Licence only on the basis of
satisfying the licensing authority as to the lawful possession of the land.
To find out whether the appellants are in lawful possession of the land in question viz., an extent of 1.00 acre of land in Survey No. 716/1 of
Paruthipattu Village, we may usually refer the fact that a ''No Objection'' Certificate was issued in terms of Rule 36 of Tamil Nadu Cinema
(Regulation) Rules. That Rule empowers the licensing authority to grant ''No Objection'' Certificate in Form ''B''. At that time when the ''No
Objection'' Certificate was granted the licensing authority shall take into consideration of the matters referred to in Section 5(1) of the Act. The
said Section reads as under:
Restrictions on powers of licensing authority:
(1) The licensing authority shall, in deciding whether to grant or refuse a licence, have regard to the following matters namely -
(a) the interest of the 5[Cinema going public and other sections of the public generally.]
(b) the status, 7[antecedents] and previous experience of the applicant;
(c) the suitability of the place where the cinematograph exhibitions are proposed to be given;
(d) the adequacy of existing places for the exhibition of cinematograph films in the locality;
(e) the benefit to any particular locality or localities to be afforded by the opening of a new place of cinematograph exhibition;
(f) the possession by the applicant, of other places, if any, licensed under this Act, whether in the same locality or elsewhere, and whether at the
time of applying for the licence or at any previous time: and shall also take into consideration any representations made by persons already giving
cinematograph exhibitions in or near the proposed locality or by any local authority or police authority within whose jurisdiction the place proposed
to be licensed is situated or by any association interested in the giving of cinematograph exhibitions.
A grant of No Objection Certificate is with reference to the interest of the Cinema going public and other sections of the public generally; the
status, antecedents and previous experience of the applicant; the suitability of the place; the adequacy of existing places for the exhibition of
cinematograph films in the locality; the benefit to any particular locality or localities to be afforded by the opening of a new place of cinematograph
exhibition etc., and the possession by the applicant.
Even at the stage when ''No Objection'' Certificate is granted, the possession of the applicant is considered and after such issue of ''No
Objection'' Certificate, again the issue of ''C'' Form Licence is considered. In the case on hand such ''C'' Form Licence was issued as early as on
18.07.1963 in favour of T.K. Rathinapandia Nadar. Again when a transfer request was made, the same was considered and the ''C'' Form
Licence was transferred in the name of the appellants on 04.11.1967 and was renewed till the ''C'' Form Licence was cancelled on 13.1.2003.
Factually there is no dispute that the appellants were in possession of the land in question and were running the theatre by virtue of the ''C'' Form
Licence. Even after the cancellation of ''C'' Form Licence the appellants are now running the theatre, of course on the strength of ''E'' Permits
issued pursuant to the directions of this Court. Till today, the possession of the appellants has not been interfered in the manner known to law. In
the event the respondents claim that the land is a Government Poramboke land, certainly it would be open to the Revenue authorities to invoke the
provisions of Section 6 and 7 of the Tamil Nadu Land Encroachment Act to evict the appellants. It is not the case of the licensing authority, that
such action has been taken by the competent authority in respect of the land in question. In view of the above facts, the possession of the
appellants in respect of the land in issue cannot be disputed. This leads to the next question whether it is a lawful possession as referred in Section
13 of the Rules.
What is meant by lawful possession came up for consideration before the Apex Court in the judgment reported in Krishna Kishore Firm Vs.
The Govt. of A.P. and others, and the Apex Court had held as follows:
True the appellant was neither owner nor lessee. Yet was his possession forbidden in law? Was there no excuse for his possession? The error
committed by High Court was to equate lawful with legal. Legal and lawful, normally, convey same sense and are usually interchangeable. What is
legal is lawful. But what is lawful may be so without being formally legal. ""The principal distinction between the terms ''lawful'' and ''legal'' is that
former contemplates the substance of law, the latter the form of law. To say of an act that it is lawful implies that it is authorised, sanctioned or at
any rate not forbidden by law"". Same thought 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. Although provision in Specific Relief Act empowering a person or tenant to recover
possession if he has been evicted forcibly by the Landlord may be juridical and not lawful or a tenant holding over is not in lawful possession unless
landlord agrees or acquiesces expressly or impliedly but that does not alter the legal position about possession of a person not legal yet not without
interest. The provision in specific Relief Act is founded more on public policy than on jurisprudence. But concept of lawful as opposed or in
contradistinction to litigious assumes different dimension.
Even in case where a tenant who is ceased to be a tenant after the expiry of the period of lease is protected by law in so far as his possession
is concerned. This law is settled by the Apex Court in the judgment reported in AIR 1968 SC 620 - Lallu Yeshwant Sing v. Rao Jagdish Singh,
wherein the Apex Court has observed as follows:
Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in
possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. u/s 9 of the Specific Relief Act
a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due
course of law..."" It further points out that this Court in the said case also approved of the decision of the Full Bench of the Allahabad High Court in
Yar Muhammad and Another Vs. Lakshmi Das and Others, , wherein it was observed:
No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under Section 9 of the Specific Relief Act). The
Plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may
be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title suit and the
person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit. It will always be open to
him to establish his title in a regular suit and to recover back possession.
Even long prior to the above judgment a Privy Council in the judgment reported in AIR 1924 PC 144 - Midnapur Zamindary Co. Ltd. v.
Kumar Naresh Narayan Roy, has observed as follows:
In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court.
The law relating to the lawful possession is now well settled even at tenant whose lease period is expired and continuous to be in possession of
the leased land, is said to be in lawful possession of the land and his possession cannot be disturbed except in accordance with law. The only test
would be whether the person claiming to be in possession has any recognition for such possession either legally or otherwise.
Salmond in Jurisprudence (12th Edition), states as follows:
few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its
protection.... Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and
immediate interests to the wide and long-term interests of society in general. But since an attack on a man''s possession is an attack on something
which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend
himsself with force. The result is violence, chaos and disorder.(at pp.265-66)
In English law possession is a good title of right against anyone who cannot show a better. A wrongful possessor has the rights of an owner with
respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this,
and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession,
can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this
way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then
proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be
entitled to retain and recover his possession, until deprived of it by a judgment according to law. (Salmond, ibid., pp. 294-95)
Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the
protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the
contrasted terms petitorium (a proprietary suit) and possessorium (a possessosry suit). (Salmond, ibid., p.295).
Keeping the law declared by the Apex Court and the principles in mind, it is to be considered whether the appellants would be considered to
be in lawful possession of the land in question for the purpose of issue of ''C'' Form Licence. It is amply clear that the Revenue Officials have
issued ''B'' Memos to the appellants in respect of the land in question and the appellants paying the ''B'' Memo charges. By issue of such ''B''
Memos, certainly the possession of the appellants have been recognised by the Government to enable the appellants who are in possession of the
said land to apply for ''C'' Form Licence or renewal of the said licence. The licensing authority has totally misdirected itself while giving the definite
finding that the land belongs to the Government and therefore the appellants are not entitled to the ''C'' Form Licence. The licensing authority has
overlooked the fact as to the entitlement of the appellants to seek for ''C'' Form Licence on the basis of lawful possession. That apart, there are
absolutely no documents paced before the licensing authority even to show that the land is a Government Poramboke, except the statement of the
licensing authority. Of course the Revenue Officials have issued ''B'' Memos to the appellants in respect of the land in question and the appellants
paying the ''B'' Memo charges, the Government is competent to invoke the relevant provisions of the Act to evict the appellants. Till such time the
procedure is adopted or resorted to by the Government, the possession itself recognized by the Government in view of the collection of ''B'' Memo
charges, cannot be held to be illegal though the appellants may be, as per the stand of the Government, encroachers.
In view of the above, the application for grant of ''C'' Form Licence is certainly maintainable on the basis that the appellants are in lawful
possession of the land though they are not claim to be the owner of the land. We hasten to add that we are not decided as to the owner of the land
as there are rival claims which are to be adjudicated and settled elswhere considering the individuals or is only in regard to the possession and to
the entitlement of the appellants for ''C'' Form Licence. There is one more aspect that so long as the appellants are in possession of the land there is
no forceable eviction even except following the procedure contemplated under the law. This possession is protected against the true owner till such
time the true owner exercise power to evict the person in the manner known to law. Hence, as on today, the appellant is in possession of the land
in question and the said possession has been not only recognised by the Government, but also the said possession has not been interfered in the
manner known to law, thereby, the said possession could be termed to be lawful possession. Therefore, the impugned order cancelling the ''C''
Form Licence on the ground that the appellants have not proved the title cannot be sustained.
Accordingly, the impugned orders in the writ petition are set aside. Consequently, the order passed in W.P. No. 12605 of 2004 is also set
aside. The writ appeal is allowed. The appellants are entitled to ''C'' Form Licence. Accordingly, the third respondent viz., the District Collector,
Thiruvallur District, Thiruvallur is directed to renew the ''C'' Form Licence which was granted on 18.7.1963 and subsequently, periodically
renewed.
The observations made in this judgment will not stand in the way of the respondent State to take appropriate action if it is advised to evict the
appellants by invoking the relevant provisions. But in the circumstances, there will be no order as to costs. Consequently, W.A.M.P. No. 4232 of
2004 is closed.