Judgment:
ORDER
Ajit J. Gunjal, J.
1. In this writ petition, the petitioners are seeking a writ of prohibition. The core question which fells for consideration is, in what circumstances, a writ of prohibition can be issued.
2. The facts germane for the disposal of the writ petition are as under:
The petitioners claim to be the registered owners in occupation and possession of Vani Theatre along with fixtures. The said theatre is situated in Chickballapur Town. They are running feature films in the name of M/s. Chitra Exhibitors, which consists of four partners. It is not in dispute that the second respondent was a lessee under the petitioners. It is also not in dispute that the lease period came to an end on 02.11.2002. Since the lease had expired, the petitioners have filed a suit in O.S. No. 164/03 before the competent Civil Court for ejectment and the same is pending adjudication. In the meanwhile, the second respondent has filed a suit for enforcement of an alleged agreement to sell stated to have been executed by the first petitioner i.e., one of the partners of the firm. The said suit is pending adjudication. The second respondent, it appears, had filed a suit in O.S. No. 267/02 seeking relief of injunction restraining the petitioners from dispossessing him without due process of law. Incidentally the subject matter of the suit for injunction is the theatre in question. The learned trial Judge decreed the suit as against which the petitioners filed an appeal which was also dismissed. As against the said findings, the petitioners are before this Court in RSA 396/08. When both, the petitioners as well as the second respondent are at loggerheads and are before the Civil Court, respondent No. 2 makes an application for renewal of licence for running of cinema theatre before the first respondent. The said application for grant of licence was opposed by the petitioners on innumerable grounds. It was submitted before the first respondent that the licence is in the name of M/s. Chitra Exhibitors. Hence, the question of second respondent seeking renewal or grant of fresh licence would not arise. They would specifically refer to the relevant provisions of Karnataka Cinema Regulation Act. The first respondent set down the points for determination, one of them being whether the second respondent was in lawful possession. For the reasons set out in the order, the first respondent has accepted the petition and granted the licence. The same was questioned by the petitioners by way of an appeal in appeal No. 114/08 before Appellate Tribunal. The appeal was accepted by the Tribunal and the order of the first respondent was set at naught. A finding is recorded by the Tribunal in the said proceedings to the effect that the second respondent was not in lawful possession, inasmuch as, once the tenancy is terminated, the second respondent would be a tenant at sufferance. Aggrieved by the order passed by the Tribunal, the second respondent filed a writ petition before this Court in W.P. No. 14991/08. This Court declined to entertain the said writ petition. The second respondent, aggrieved by the order of the learned single Judge, filed an appeal in W.A. No. 2299/08. Incidentally, the said writ appeal was dismissed as withdrawn on the ground of it having become infructuous.
3. Few other relevant facts which are required to be noted are certain proceedings which have taken place during the pendency of the writ appeal. When the writ appeal was listed on 26.12.2008, a request was made by the second respondent in the writ appeal that he may be permitted to file an application before the competent authority for renewal or grant of licence. Permission was accorded. But however, with a rider that any order passed by the competent authority would be subject to the result of the writ appeal. In fact, thereafter, the matter was listed before the Division bench several times. It is to be noticed that the second respondent in the guise of making an application started exhibiting films which warranted the petitioners in making an application seeking a restraint order against the second respondent from exhibiting the films. The Division bench on 17.03.2009 restrained the second respondent from screening the movies until further orders. It is thereafter the writ appeal was dismissed as having become infructuous. Incidentally, it is to be noticed that during this interregnum, the licence which was granted initially had spent itself. Hence, in these circumstances, an application is filed by the second respondent for renewal or for grant of licence. At this stage, the petitioners are before this Court seeking a writ of prohibition.
4. Mr. Raghavendra Rao, learned Counsel appearing for the petitioners vehemently submits that it is an imminent case where a writ of prohibition is required to be issued, inasmuch as, the second respondent has suffered an adverse order at the hands of the Tribunal which is confirmed by the learned single Judge in a writ petition as well as by a Division Bench of this Court in a writ appeal. He further submits that the lawful possession has been dealt extensively by the Tribunal. He submits that once the tenancy is terminated, the occupant's possession would not be lawful, but it would be a tenancy at sufferance. He further submits with reference to the ruling of the Apex Court in the case of Calcutta Discount Co. Ltd. v. Income Tax Officer, reported in : AIR 1961 SC 372 to buttress his contention as to in what circumstances a writ of prohibition would be issued by this Court under Article 226 of the Constitution of India. He submits that a writ of prohibition is somewhat akin to the abuse of the process of jurisdiction. Hence having regard to the positive finding recorded in the earlier proceedings, another application on identical facts for identical relief could not have been entertained by the first respondent.
5. Mr. Nanjunda Reddy, learned senior Counsel appearing for the second respondent submits that in the present circumstances a writ of prohibition cannot be issued, inasmuch as, an authority which is vested with the jurisdiction to deal with the matter cannot be prevented from dealing with the same in accordance with law. A writ of prohibition can be issued only where the authority or the Tribunal is not exercising its jurisdiction and not by one which is vested in it or is exercising the jurisdiction legally. He submits that in the present scenario, the law does not prevent the second respondent in making an application for grant or renewal of licence. According to him, nothing has happened so far. Only a notice is issued on the application. He would press into service a ruling of the Apex Court in the case of S. Govinda Menon v. Union of India and Anr. reported in : AIR 1967 SC 1274 to buttress his contention that a writ of prohibition cannot be issued to a Court or an inferior Tribunal for an error of law until the error makes it go outside its jurisdiction. According to him, distinction must therefore be maintained between want of jurisdiction and the manner in which it is to be exercised.
6. I have given my anxious consideration to the submissions made by the learned Counsel appearing for the petitioners as well as the respondents.
7. Before adverting to the merits of the case, it is necessary to look into in what circumstance a writ of prohibition can be issued. It is to be noticed that a writ of prohibition as a prerogative writ can be issued only in clear cases of excess or abuse of jurisdiction or violation of rules of natural justice or contravention of the laws of the land or the like grounds. It is essential that a justifying cause for its issuance must fully be made out before the inferior Tribunal can be precluded from continuing the proceedings. In case an illegality is complained of, it should be patent and apparent on the face of the record. It should be self evident and should not ordinarily require for its establishment a lengthy enquiry into questions of facts. Nor should it involve a long drawn process of reasoning on points where there may conceivably be two opinions. Unless a clear case for a writ of prohibition is thus made out there can be no justification for prohibiting the Tribunal from functioning in its normal course.
8. If there is an authority to do the act, but the manner of doing it is improper, the writ will not lie. Whatever the power is conferred may be exercised and if it be exercised injudiciously, erroneously or irregularly, it amounts to error merely and not to an usurpation or excess of jurisdiction. In such a case, however gross the error, irregularity or mistake, the writ does not lie, not because there exist other adequate remedies, or such remedies are inhibited, but for the reason that there has been no usurpation of abuse of power. It is also to be noticed that there is an underlying principle between writ of certiorari and writ of prohibition. Both the writs complement each other. They are based upon common principle and hence they can be classified together. A writ of certiorari is to be issued where the jurisdiction exercised ultra vires and a prohibition is to be issued to prevent the such exercise of power. Indeed it is often said that certiorari is to the past and prohibition is to the future.
9. The facts are examined only to see whether a writ of prohibition can be issued. On merits it is to be noticed that respondent-2 herein had sought for renewal of licence or for grant of fresh licence. Indeed it is to be noticed that the said application was permitted to be filed by the court But however the question would be whether that by itself it could be said that the authority gets jurisdiction to entertain an application for an identical relief which he had sought for earlier and was rejected by the Tribunal as well as by this Court. The principle of res judicata in the context of the facts also will have to be looked into. Indeed the principle of res judicata stems from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another, they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. In the case on hand, as observed earlier, the original authority found that the applicant was in lawful possession of the cinema theatre. But however the same is sought to be reversed by the Appellate Tribunal. Indeed a question was raised before the Tribunal, inter alia, contending that once the lease period has expired and notice of termination was issued, the tenancy would be at sufferance, in which case respondent-2 will not fall into the category of the person who is in lawful possession and who can claim renewal of the licence. Indeed, this question fell for consideration before the Tribunal. The Tribunal having regard to the law laid down by the Apex Court in the case of M.C. Chockalingam and Ors. v. Manickavasagm and Ors. A.I.R 1972 SC 104, with reference to lawful possession has observed that if 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. Juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.
10. In another ruling of the Apex Court in the case of R.V. Bhupal Prasad v. State of A.P. and Ors. reported in : (1995) 5 SCC 698, has observed that a tenant at sufferance is one comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is therefore one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. A tenancy at sufferance does not create the relationship of landlord and tenant. The expression 'holding over' is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant holding over or a tenant at will. In the case on hand it is to be noticed that the tenancy by efflux of time came to an end on 2.11.2002. Incidentally, it is to be noticed that the petitioners have also filed a suit for ejectment and the same is pending adjudication.
11. It is to be noticed that the requirement of the applicant is to be found at Rule 6 of the Karnataka Cinemas (Regulations) Rules, 1971, which would relate to ownership or possession to site, building or equipment. The said rule would contemplate that if the applicant for licence is the owner of the site, building or equipment he shall produce before the licensing authority necessary records relating to his ownership and possession and in the alternative if he is not the owner he shall produce to the satisfaction of the licensing authority documentary evidence in proof of his lawful possession of the equipment. Rule 6 would stress on two aspects of the matter. One is that he must be owner of the building or in the alternative there must be documentary evidence in proof of his lawful possession of the site or equipment. In the case on hand, it is to be noticed that by efflux of time the lease stood terminated. Hence a finding was recorded by the Tribunal that the applicant i.e., respondent-2 was not in lawful possession. This finding has attained finality right up to the writ appeal.
12. The requirement under the provisions of the Karnataka Cinemas (Regulations) Act, 1964, contemplates that any person can apply for licence to exhibit a feature film. But however he is required to satisfy the two primary conditions - one is that he must be in lawful possession in his individual capacity or as a tenant and only in those two circumstances an application filed by the persons to be considered for renewal or grant of licence to run a feature film. In the case on hand, it is to be noticed that the tenancy has come to an end by efflux of time and he would become a tenant at sufferance. Under these circumstances, the question would be whether he would be a person possessing requisite qualification to apply for renewal or for grant of licence. Indeed the original authority has proceeded on the footing that notwithstanding the fact that the tenancy has come to an end by efflux of time, since he continues to be in possession he is deemed to be in lawful possession and his application can be considered. But however the Tribunal with reference to the decisions referred to above came to the conclusion that possession of respondent-2 would not be lawful and it would be tenancy at sufferance. Indeed the order passed by the Tribunal was questioned by respondent-2 before this Court in a writ petition. This Court, though for slightly different reasons, declined to entertain the petition. But however by dismissal of the writ petition, the observation and the finding recorded by the Tribunal are tacitly confirmed. A writ appeal was also filed. It is no doubt true, in the writ appeal a request was made by respondent-2 to make an application for renewal of the licence to the competent authority. It is no doubt true that this Court permitted the second respondent to maintain an application before the competent authority. To my mind, that by itself it cannot be said that this Court has permitted the competent authority to entertain an application and pass appropriate order. What was asked for is permission to file an application, but what is more significant is the latter progress in the writ appeal proceeding on the basis of an application made to the competent authority, respondent-2 started exhibiting films. This by itself shows that the original authority would not consider the application of respondent-2 either for grant or refusal of licence or even for exhibiting the films. Indeed, respondent-2 ought to have taken the proceedings to its logical end in the writ appeal itself, in as much as, what was questioned in the writ appeal was the order passed by the learned single Judge confirming the order of the Tribunal. By withdrawal of the writ appeal, the findings recorded by the Tribunal stood confirmed. It is no doubt true that it is open for a litigant to make any number of applications or even file claims for the pleasure of getting it rejected. But however, it would operate as res judicate and could be considered as abuse of the process of the court. In the case on hand, respondent-2 having suffered at the hands of the Tribunal as well as this Court can not re-agitate the matter on identical and same grounds, inasmuch as, his possession is held to be not lawful.
13. The Apex Court in the case of Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta : A.I.R. 1961 SC 372 has observed thus:
Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under Section 34 I.T. Act.
(Emphasis supplied)
Lord Denning on prohibition has observed thus:
It is available to prohibit administrative authorities from exceeding their powers or misusing them. It can prohibit a licensing authority from making rules or granting licences which permit conduct which is contrary to law.
14. It is no doubt true, as contended by the learned senior counsel that the jurisdiction for grant of a writ of prohibition is primarily supervisory in order to restrain the courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. The object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. A writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice. But however it would not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. A writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its jurisdiction. A clear distinction is required to be maintained between want of jurisdiction and the manner in which it is exercised. It is to be exercised even there is coram non judice and also a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue proceedings therein in excess of its jurisdiction. In the case on hand, it is to be noticed that at the initial stage itself the original authority had exercised its jurisdiction when an application was filed by respondent-2. The said application was granted initially and the order of the original authority was set at naught by the subsequent proceedings. The question would be whether the original authority can once again exercise jurisdiction to consider an identical application for an identical relief on the same facts. It would certainly be outside the jurisdiction to consider the same. It is no doubt true that the petitioner filed objections to the application and brought it to the notice of the concerned authority that such a course can not be adopted, in as much as, the matter stood concluded in the earlier proceedings. As observed by the Apex Court a writ of prohibition can certainly be issued to avoid abuse of jurisdiction. The fact that permission was granted by this Court in the writ appeal does not necessarily entail respondent-2 to reopen the pandora box, which stood concluded. Of course, it is open for this Court to direct the petitioner to put forth all these facts in the objections and seek for an order. But however that would be once again a futile exercise, in as much as, on facts and also having regard to the earlier proceedings which stood terminated in favour of the petitioner, whether the petitioner can be given an option to start the entire exercise again and prepare himself for one more round of litigation. Indeed it is often said there must be a finality to all the proceedings. It is to be observed that a litigation must come to an end after the highest court has concluded the lis. It is not necessary at this stage for the petitioner to undergo all the agony of another litigation once again.
15. Having given my anxious consideration, I am of the view that it would be a case where the authority has exercised jurisdiction on an earlier occasion. Consequently it would be a case which would fell in the category where the Tribunal would lack jurisdiction to entertain the application. It would necessarily mean want of jurisdiction.
16. It is no doubt true that the Tribunal or a court can decide even a case wrongly, but however that by itself it cannot be said that the respondent has jurisdiction to decide the issue which has already been decided and concluded in the earlier proceeding.
Consequently, I am of the view that the petitioner is entitled to the relief sought for.
Petition is allowed. A writ of prohibition shall issue against respondent-1 in continuing the proceedings which are pending before him in MAG(ENT)CR28/80-81, vide Annexure-A.
Rule made absolute.