Bolegowda Vs. the District Magistrate, Bangalore Rural District and Another - Court Judgment

Excerpt:
- mines and minerals (regulation and development) act (67 of 1957) section 9-a & mineral concession rules, 1960, rules 31 & 27: [ram mohan reddy, j] power to tax - levy of lease rent and supervision charges on leased forest land release of forest land for mining purposes in favour of petitioners subject to payment of lease rent and supervision charges - impost of lease rent and supervision charges not established to be by way of tax under article 265 in exercise of executive functions under article 162 of constitution. it is illegal being without authority of law. the preamble in the orders of the state government, impugned, discloses reference to particulars regarding recommendations made by the state to central government for release of forest land for mining purposes in favour of the petitioners and the approval conveyed by the central government, while the operative portion of the orders accords approval for the release of the said lands in favour of the lessees, subject to payment of lease rent and supervision charges, amongst other conditions such as payment of royalty, forest development tax and other taxes as per the prevailing rates, to the forest department. neither the orders impugned nor the statement of objections filed by the state disclose the jurisdiction of the state government to impose lease rent and supervision charges nor the method or rate at which the amounts are calculated. orders impugned do not disclose whether the primary purpose of the state government in imposing the lease rent and supervision charges is to regulate and, if so, it is not a tax, even if it is assumed that it is to raise revenue for the public. it is also not known as to whether the impost is partly for revenue or partly for regulation. it is also not known whether the levy has some direct and definite relationship with the land as a unit, or the mode of determining the value of the land such as annual or capital value or its productivity. the state having not discharged its obligation to establish that the impugned government orders are under articles 265 and entry 49, list ii, in exercise of executive function under article 162 of the constitution of india, in respect of a matter which the state legislature has not legislated upon, coupled with the absence of relevant material, the condition in the orders impugned to pay lease rent and supervision charges is not an impost in accordance with law. [ram mohan reddy, j.] constitution of india - articles 226 and 227 - lease rent and supervision charges on the leased forest land -demand notices by the state government - authority of the state government - challenge to - held, power to tax is not an incidental power under the constitution. the government has general authority to raise revenue and choose the methods of doing so. a financial levy must have a mode of assessment, though, is not determinative of the character of a tax. it is permissible to classify land by reference to its user as a separate unit for the purpose of levy of cess. the state having not discharged its obligation to establish that the impugned government orders are under article 265 and entry 49 list ii, in exercise of executive function under article 162 of the constitution of india, in respect of a matter which the state legislature has not legislated upon, coupled with the absence of relevant material, the condition in the orders impugned to pay lease rent and supervision charges is not an impost in accordance with law. as a consequence, the demand notices calling upon the petitioners to pay the balance lease rentals and supervision charges are without authority of law. - further held, it is also not known whether the levy has some direct and definite relationship with the land as a unit, or the mode of determining the value of the land such as annual or capital value or its productivity. the condition incorporated in the orders impugned to pay the tax is both sketchy and skimpy in details, unable to identify its primary object, so as to distinguish its ultimate or incidental results or consequences to determine the character of the levy. writ petitions are allowed. - balaraj for respondent 2 as well as smt. sridharan, counsel for the respondent 2 as well as the learned government advocate smt. 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'.their lordships further observe: all these questions can be well adjudicated and decided by the licensing authority before granting the renewal of the licence. so far as temporary grant of permit was concerned as these questions will have to be decided it may take some time and if the permission would not have been granted the respondents who had raised construction after making investment and run cinema for a good long time would definitely have been subjected to much loss.order1. i have heard the learned counsel for the petitioner sri m.r. rajgopal iyengar and sri a.c. balaraj for respondent 2 as well as smt. bharathi nagesh, learned government advocate.2. the facts of the case in the nutshell are that the petitioner filed this petition for a writ of certiorari quashing the order dated 11-03-1997 passed by respondent 1 in m.a.g. (2) t.t. 13 of 1990-91, annexure-k to the petition. petitioner has also sought for issue of a writ of prohibition, prohibiting respondent 1 to proceed with the enquiry as per the proceedings in m.a.g. (2) t.t. 13 of 1990-91 as per annexure-h and k since respondent 2 has no right to continue in possession on the expiry of the lease.3. the petitioner claims that he is the owner of the agricultural land bearing survey no. 123/1 in dodda alahalli village, kanakapura taluk, in bangalore rural district, measuring 21 guntas. the petitioner, according to the petitioner's case, had leased out this land in favour of the present respondent 2 on 27-6-1984 for a period of 10 years. according to the petitioner the lessee had taken the land on lease for the purpose of running a touring cinema by constructing a touring theatre on the said land, and built cinema theatre thereon. the petitioner has filed the copy of the document whereunder the respondent 2 was permitted to make use of that land and to build up the cinema theatre. respondent 2 according to the petitioner raised construction of the touring cinema theatre thereon. according to the petitioner this was granted for 10 years. thereafter the petitioner applied for conversion and he was granted a certificate. petitioner's case isthat conversion of the land was granted. there is no dispute that there was no doubt that the petitioner was granted permission to run the cinema by name indiraji touring talkies on the basis of the deed annexure-b. the petitioner's case is that specifically the respondent 2 had applied for renewal of the licence to run and to continue the running of cinema in the name indiraji touring talkies. to that application the petitioner filed the objection with the allegation and ground to the effect that the 10 years lease having expired, the respondent's possession over the land is unlawful and therefore no renewal could be granted after 1994. petitioner's case is that the application along with objection is yet pending for disposal and decision. during the pendency of that application the opposite party, the district magistrate, bangalore rural district passed the order annexure-k dated 11-03-1997, permitting the petitioner to run the cinema show and fixed 1-4-1997 as the date for arguments. having felt aggrieved from this order the owner of the land has filed this petition under article 226.4. i have heard sri m.r. eajagopal iyengar, counsel for the petitioner and sri balaraj holding brief for sri b.g. sridharan, counsel for the respondent 2 as well as the learned government advocate smt. bharati nagesh.5. sri rajagopal lyengar submitted that after the expiry of 10 years period of the lease the possession of the petitioner over the land in question became unlawful and therefore licence could not be granted. he further submitted that the respondent had applied for shifting and he had been permitted to shift the same. but he has not yet shifted the cinema or the theatre from the place where he has been allowed. learned counsel contended that in view of these circumstances the respondent 1 had acted illegally and committed an error of law apparent on record and of jurisdiction in allowing the respondent to run the cinema. learned counsel admitted that main application for grant of licence is yet pending disposal.6. on behalf of the respondents it was attempted to contend that the respondent's possession was not unlawful because rent control act gives protection against eviction. it was also submitted that the consent or permission which the petitioner had granted in writing to the respondent to construct the theatre on his land and to run the cinema thereon even if expired, the respondent is protected under the easement act by virtue ofsections 60 and 62 of the act. therefore, the respondent is entitled to the benefit of section 60 of the indian easement act, 1882, and his possession is lawful even after the expiry of 10 years and further submitted that under section 60 also the possession is lawful. in the rejoinder the respondent's counsel submitted that the rent control act only apply if the area comes within the area mentioned in schedule 2, and that the respondent may not be entitled for the benefit of sections 60 and 62 of the easement act.7. these nice questions of law and fact can be decided only on relevant facts are established whether ex. p. is a licence or a lease; whether the respondent has constructed the cinema in pursuance of that document; whether it is otherwise revocable or not as urged by the petitioner's counsel. as regards whether the benefit of rent control act is applicable, the fact has to be established that the land is situated within the area to which the rent control act would apply. i am not expressing any opinion in the absence of material facts being placed before the court. these questions are left to be decided if such questions are raised before the authority who has to determine the question as to whether the respondent is in lawful possession or in unlawful possession. the meaning of term unlawful possession no doubt has been explained by their lordships of the supreme court in the case of m.c. chockalingam and others v v. manickavasagam and others and it will be profitable to quote the following observations of their lordships of the supreme court which throw light on the interpretation of the expression lawful and unlawful possession. their lordships of the supreme court observed in para 14 as under:'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'.their lordships further observe:'lawful possession cannot be established without the concomitant existence of a lawful relationship between thelandlord 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'.8. in the light of these observations the authorities have to determine whether the application for renewal of licence is lawful or not. this court is not expressing any opinion on the points or questions urged by the learned counsel for the parties, but has only laid down the guidelines for the district magistrate. all these questions can be well adjudicated and decided by the licensing authority before granting the renewal of the licence. so far as temporary grant of permit was concerned as these questions will have to be decided it may take some time and if the permission would not have been granted the respondents who had raised construction after making investment and run cinema for a good long time would definitely have been subjected to much loss. therefore in such circumstances looking to the past that he was allowed to run the cinema by the district magistrate who might have allowed the running of the cinema till the date of decision. in such circumstances interim order only appears to be with the object to protect the respondent from the likelihood of loss. but that does not mean that temporary interim order will tantamount to holding that the respondent has been in lawful or unlawful possession. in the circumstances, i think it proper to dispose of the petition with the following observations:let the application for renewal of licence be decided expeditiously within a period of 4 months from the date of communication of this order and parties may be allowed to raise the plea available to either of them and after taking those pleas and evidence into consideration which parties may decide whether that land does or does not come within the area of the rent control act; operation area. during this period it will be open to the authority to consider whether the respondent can further continue the exhibition of films or not. the order granted earlier will not be interfered with. writ petition is finally disposed of as above i.e., with above observation.

Judgment:
ORDER

1. I have heard the learned Counsel for the petitioner Sri M.R. Rajgopal Iyengar and Sri A.C. Balaraj for respondent 2 as well as Smt. Bharathi Nagesh, learned Government Advocate.

2. The facts of the case in the nutshell are that the petitioner filed this petition for a writ of certiorari quashing the order dated 11-03-1997 passed by respondent 1 in M.A.G. (2) T.T. 13 of 1990-91, Annexure-K to the petition. Petitioner has also sought for issue of a writ of prohibition, prohibiting respondent 1 to proceed with the enquiry as per the proceedings in M.A.G. (2) T.T. 13 of 1990-91 as per Annexure-H and K since respondent 2 has no right to continue in possession on the expiry of the lease.

3. The petitioner claims that he is the owner of the agricultural land bearing Survey No. 123/1 in Dodda Alahalli village, Kanakapura taluk, in Bangalore rural district, measuring 21 guntas. The petitioner, according to the petitioner's case, had leased out this land in favour of the present respondent 2 on 27-6-1984 for a period of 10 years. According to the petitioner the lessee had taken the land on lease for the purpose of running a touring cinema by constructing a touring theatre on the said land, and built cinema theatre thereon. The petitioner has filed the copy of the document whereunder the respondent 2 was permitted to make use of that land and to build up the cinema theatre. Respondent 2 according to the petitioner raised construction of the touring cinema theatre thereon. According to the petitioner this was granted for 10 years. Thereafter the petitioner applied for conversion and he was granted a certificate. Petitioner's case isthat conversion of the land was granted. There is no dispute that there was no doubt that the petitioner was granted permission to run the cinema by name Indiraji Touring Talkies on the basis of the deed Annexure-B. The petitioner's case is that specifically the respondent 2 had applied for renewal of the licence to run and to continue the running of cinema in the name Indiraji Touring Talkies. To that application the petitioner filed the objection with the allegation and ground to the effect that the 10 years lease having expired, the respondent's possession over the land is unlawful and therefore no renewal could be granted after 1994. Petitioner's case is that the application along with objection is yet pending for disposal and decision. During the pendency of that application the opposite party, the District Magistrate, Bangalore rural district passed the order Annexure-K dated 11-03-1997, permitting the petitioner to run the cinema show and fixed 1-4-1997 as the date for arguments. Having felt aggrieved from this order the owner of the land has filed this petition under Article 226.

4. I have heard Sri M.R. Eajagopal Iyengar, Counsel for the petitioner and Sri Balaraj holding brief for Sri B.G. Sridharan, Counsel for the respondent 2 as well as the learned Government Advocate Smt. Bharati Nagesh.

5. Sri Rajagopal lyengar submitted that after the expiry of 10 years period of the lease the possession of the petitioner over the land in question became unlawful and therefore licence could not be granted. He further submitted that the respondent had applied for shifting and he had been permitted to shift the same. But he has not yet shifted the cinema or the theatre from the place where he has been allowed. Learned Counsel contended that in view of these circumstances the respondent 1 had acted illegally and committed an error of law apparent on record and of jurisdiction in allowing the respondent to run the cinema. Learned Counsel admitted that main application for grant of licence is yet pending disposal.

6. On behalf of the respondents it was attempted to contend that the respondent's possession was not unlawful because Rent Control Act gives protection against eviction. It was also submitted that the consent or permission which the petitioner had granted in writing to the respondent to construct the theatre on his land and to run the cinema thereon even if expired, the respondent is protected under the Easement Act by virtue ofSections 60 and 62 of the Act. Therefore, the respondent is entitled to the benefit of Section 60 of the Indian Easement Act, 1882, and his possession is lawful even after the expiry of 10 years and further submitted that under Section 60 also the possession is lawful. In the rejoinder the respondent's Counsel submitted that the Rent Control Act only apply if the area comes within the area mentioned in Schedule 2, and that the respondent may not be entitled for the benefit of Sections 60 and 62 of the Easement Act.

7. These nice questions of law and fact can be decided only on relevant facts are established whether Ex. P. is a licence or a lease; whether the respondent has constructed the cinema in pursuance of that document; whether it is otherwise revocable or not as urged by the petitioner's Counsel. As regards whether the benefit of Rent Control Act is applicable, the fact has to be established that the land is situated within the area to which the Rent Control Act would apply. I am not expressing any opinion in the absence of material facts being placed before the Court. These questions are left to be decided if such questions are raised before the authority who has to determine the question as to whether the respondent is in lawful possession or in unlawful possession. The meaning of term unlawful possession no doubt has been explained by their lordships of the Supreme Court in the case of M.C. Chockalingam and Others v V. Manickavasagam and Others and it will be profitable to quote the following observations of their Lordships of the Supreme Court which throw light on the interpretation of the expression lawful and unlawful possession. Their Lordships of the Supreme Court observed in Para 14 as under:

'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'.

Their Lordships further observe:

'Lawful possession cannot be established without the concomitant existence of a lawful relationship between thelandlord 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'.

8. In the light of these observations the authorities have to determine whether the application for renewal of licence is lawful or not. This Court is not expressing any opinion on the points or questions urged by the learned Counsel for the parties, but has only laid down the guidelines for the District Magistrate. All these questions can be well adjudicated and decided by the Licensing Authority before granting the renewal of the licence. So far as temporary grant of permit was concerned as these questions will have to be decided it may take some time and if the permission would not have been granted the respondents who had raised construction after making investment and run cinema for a good long time would definitely have been subjected to much loss. Therefore in such circumstances looking to the past that he was allowed to run the cinema by the District Magistrate who might have allowed the running of the cinema till the date of decision. In such circumstances interim order only appears to be with the object to protect the respondent from the likelihood of loss. But that does not mean that temporary interim order will tantamount to holding that the respondent has been in lawful or unlawful possession. In the circumstances, I think it proper to dispose of the petition with the following observations:

Let the application for renewal of licence be decided expeditiously within a period of 4 months from the date of communication of this order and parties may be allowed to raise the plea available to either of them and after taking those pleas and evidence into consideration which parties may decide whether that land does or does not come within the area of the Rent Control Act; operation area. During this period it will be open to the authority to consider whether the respondent can further continue the exhibition of films or not. The order granted earlier will not be interfered with. Writ petition is finally disposed of as above i.e., with above observation.