Hari Nath Tilhari, J.
1. Heard the petitioner's Counsel.
The petitioner has sought the quashing of order dated 19.1.1993, passed by the District Magistrate, Bijapur and the order dated 28.6.1993, at Annexure-B, to this Writ Petition, passed by the Divisional Commissioner, Belgaum, whereby, the authorities have rejected the petitioner's application for grant of licence which was moved by the petitioner on 13.2.1991, under the Karnataka Cinema Regulations Act, 1964, on the ground that the petitioner has to prove his lawful possession. The petitioner has come up to this court.
2. The petitioner's case is that she had got a licence from the Corporation with respect to the land in dispute and entered the possession lawfully under the permission in the Form of Government lease or licence for 5 years. That the lease expired in 1992 and the petitioner's case is that, that the lease was granted by Municipal Corporation in favour of the petitioner of the land, where the cinema theatre has been established. Lease expired in 1992 July.
3. Petitioner had applied for grant of licence on 13.2.1991. At that time, when the petitioner had applied for licence, the petitioner was in lawful possession.
This is what the learned Counsel contends, but no doubt, had admitted that the lease had expired in 1992. The petitioner has filed his suit for declaration of the rights with respect to the land and had obtained the temporary injunction, but it has no where been stated that the lease granted by the Corporation has been extended.
4. The learned Government Counsel points out that as per her instruction from respondent, the Town Municipal Corporation has passed a resolution on 2.6.1992, that lease of the land will not be extended.
The petitioner's Counsel contended before me that as suit was pending for title, a temporary injunction order was granted restraining the Corporation from interfering with the possession of the petitioner as well as from disturbing with petitioner's possession as such, petitioner's possession is lawful. That Municipal Corporation had not taken action to take possession of the land and petitioner is still continuing in possession. So, the learned Counsel contended that the petitioner's possession has been lawful even, if the lease had expired and no assent had been given for petitioner's continuance in possession by the Corporation. The learned Government Advocate refuted the contention of petitioner's Counsel and submitted that since the lease period has expired, petitioner's possession became unlawful in context of the matter of granting licence and as such, licence could not be granted.
5. Learned Counsel contended that even, if takes the order that had been passed, that will not legalise the position, the position is that petitioner cannot be forcibly turned out from the land by the owner, may be Municipal Council, but it does not come within the expression lawful permission, The learned Counsel further contended that Rent Control Act will apply and it confers protection against licensee. To this contention, learned Government Advocate contended that the Act will not apply to the premises belonging to the Municipal Council.
6. I have applied my mind to the contentions raised by the learned Counsels for the parties.
7. Lawful possession has been considered by their Lordships of the Supreme Court as well as by this Court. In the case of M.C. CHOCKALINGAM v. V. MANICKAVASAGAM, AIOR 1974 SC 104. at page 110, dealing with the Cinema Rules Regulation, their Lordships of the Supreme Court observed as under:
'Mr. Gupte strenuously submits that 'lawful possession' cannot be divorced from an affirmative, positive legal right to possess the properly and since the lease had expired by efflux of time the tenant in this case had no legal right to continue in possession. In the context of Rule 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in 'lawful Possession' of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title.
15. Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the properly, if he can satisfy the licensing authority with regard to his possession also, will indeed be in lawful possession', although the word 'lawful' is not used in the first part. It is in that context that the word 'possession' is even not necessary to be qualified by 'lawful' in the first part of Rule 13. If however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word 'lawful', therefore, naturally assumes significance to the second part while it was not even necessary in the first part. 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 of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a 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's case, : [1968]2SCR203 (supra) had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession in possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.
Their Lordships further observed in Paragraph-16 as under:
'Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise within the limits of the law, Courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the loessor. Besides under Section 108(q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee's continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession. Under Section 5(1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public generally. Public interest is, therefore, also involved in granting or refusing a licence. That being the position, the expression 'lawful possession' in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule 13.'
8. That decision of the Supreme Court has been followed by this Court in the case of KANTHAMMA v. SUDARSHAN, ILR 1981 (2) Knt. 1033 it will be profitable to quote the following observations of this Court, as made in Paragraph-6:
'The primary question that arises for decision is whether the 1st respondent could be said to be in 'lawful possession' of the site within the scope and meaning of the second limb of Rule 6. The question raised does not call for a detailed study in view of the decision of the Supreme Court in M.C. CHOCKALINGAM AND ORS. v. V. MANICKAVASAGAM AND ORS. : [1974]2SCR143 . In that case, the concept of an identical expression under the Madras Cinema (Regulation) Rules, 1957 was examined and observed: 'The word 'lawful', therefore naturally assumes significance in the second part while it was not even necessary in the first part. 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 of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between 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 YESHWANTH SINGH's case : [1968]2SCR203 (supra) 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.'
Dealing with the question of possession qua temporary injunction, whether it is unlawful or lawful? This Court further laid it down:
'The temporary injunction only protects him unlawful interference by the owner, but is not conclusive, much less indicative of the fact that he is a tenant-holding over or a person in lawful possession of the site. It only shows that his right to remain in possession is itself under litigation. The litigious possession as the Supreme Court has observed, stands excluded from the concept of 'lawful possession' in the context of the Second Part of Rule 6.'
9. This Court has held and, as observed in Paragraph-7, in Kanthamma's case, as under:
'Since the 1st respondent claims to be a tenant-holding-over, it may be necessary to refer to the requirements and incidents of such a tenancy. Woodall in the book 'Landlord and tenant' (Woodall-Landlord and Tenant, 27th Edition, Page 271) Summarises: 'Where a tenant for a term of years holds over after the expiration of his lease, he becomes a tenant on sufference; but when he pays, or expressly agrees to pay, any subsequent rent, at the previous yearly rate, a new tenancy from year to year may thereby be created upon the same terms and conditions as those contained in the expired lease, so far as the same are applicable to and not inconsistent with a yearly tenancy. This, however, is a matter of evidence rather than of law, the question being what may fairly be inferred as the intention of the parties.'
It is therefore clear that a person remaining in possession after the expiry of the term of a lease is just a tenant on sufferance with no rights whatsoever. There is a clear-out distinction between a tenant remaining in possession after the expiration of a lease with the consent of the landlord and a tenant remaining in possession without such consent. That has been vividly stated by the Supreme Court in BHAWANJI v. HIMATLAL : [1972]2SCR890 as follows:
'If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at will or holding over in English Law and the latter a tenant at sufferance.'
Thus considered for the present, until the petitioner gets either lease extended or any such other declaration as sought shows any statutory right petitioner cannot be said to be in lawful possession.
10. The learned Counsel for the petitioner further contended that petitioner is entitled to the protection of Rent Control Act. In my opinion, this contention is based on misconception.
11. Karnataka Rent Control Act, as per Section 2 which deals with the application of the Act provides, vide Sub-section 7 as under:
'Section 2 : Application of the Act : (1) parts I and VII of this Act shall be applicable to the whole of the State of Karnataka.
Section 2(7) Nothing in this Act shall apply:-
(a) ...........
(b) : To any premises belonging to a municipal Corporation, municipal council or other municipal body having jurisdiction in any area specified in Schedule I;
12. A reading of this Sub-section 7 of section 2 reveals that this Act did not apply to the lands belonging to the Municipal Corporation taken on lease. Therefore, I am of the opinion, that petitioner is not entitled to protection provided by Section 2(7) of other provisions of the Karnataka Rent Control Act, 1961. In this view of the matter, the impugned order do not appear to be suffering from any error of law or jurisdiction.
This Writ Petition is hereby dismissed as being without merits.