JUDGMENT
P. Ramakrishnam Raju, J.
1. The petitioners are the owners of 6,224 sq. yards of site forming part of Survey No. 71, Sarojinidevi Road, Secunderabad. Late N.P. Chenoy, father of the first petitioner and Dr. E.P. Chenoy, father of petitioner Nos. 2 to 4, executed a registered lease deed dated 5-34962 in favour of Sri Jainarayana Misra in respect of the said land for a period of 30 years on condition that the lessee should construct a permanent cinema theatre at of the said period, the lessee shall hand over the leased premises including the cinema building with all the appurtenances, furniture, machinery, electrical fixtures, sanitary equipment and all installations to the lessors without claiming any compensation whatsoever. Accordingly, the original lessee constructed Nataraj Cinema Theatre. Later a supplementary lease deed dated 28-11-1966 was also executed where under the lessee was given a right of option to extend the period of lease for a further period of 10 years, after the expiry of the 30 years period and that such an option should be exercised by a notice in writing within a period of six months before the expiry of the original lease period of 30 years. The original lease was further modified by conferring on the lessee a right to assign the interest in the lease property. In view of this, the original lessee Jainarayan Misra along with the lessors executed a lease deed on 19-8-1968 in favour of M/s. Shinde Brothers, respondent No. 2 herein, for the unexpired portion of the lease period, and ever since M/s. Shinde Brothers have been running the Theatre.
2. The period of lease as per the registered lease deed dated 5-3-1962 expired on 5-3-1992. The lessees, respondent Nos. 2 and 3, did not exercise their right of option for extension of lease by notice in writing. The petitioners issued notice dated 17-3-1992 calling upon the respondents to vacate and hand over the premises together with Cinema Theatre since they have no right or interest to run the Theatre after 5-3-1992 or to remain in possession of the premises. On 17-4-1992 an interim reply was sent by the Advocate for the respondent Nos. 2 and 3 which was followed by a detailed reply dated 25-4-1992 stating that option was exercised on 20-5-1991. As the respondent Nos. 2 and 3 did not vacate the premises, the petitioners filed O.S.No. 295 of 1992 on the file of the III Additional Judge, City Civil Court, Secunderabad for eviction of the respondents and for recovery of possession. As the possession of respondent Nos. 2 and 3 is not lawful after 5-3-1992, the petitioners filed an application before the Licensing Authority (Commissioner of Police, Hyderabad) on 28-9-1992 not to grant or renew any licence to respondents No. 2 and 3 under A.P. Cinema Regulation Act, 1955 read with the rules there under. The Licensing Authority by its order dated 4-12-1993 cancelled the licence issued in the name of respondent Nos. 2 and 3. Aggrieved by the said order, respondent No. 3 filed an appeal before the Government which was allowed on 28-9-1994, which is questioned in this writ petition.
3. In the counter-affidavit filed by respondent Nos. 2 and 3, it is stated that respondent Nos. 2 and 3 have exercised the option as contemplated by the supplementary lease by sending a letter by Certificate of Posting on 20-5-1991. In addition to that, a copy of the letter was also personally handed over by the Manager of the Theatre Gannu Singh to the petitioners. As the petitioners are disputing about the right of respondent Nos. 2 and 3 to continue in possession under the agreement entered into between the parties, they were forced to file O.S.No. 923 of 1993 in the Court of the XI Assistant Judge, City Civil Court, Secunderabad against the lessors for specific performance of the covenant for extension of the lease period for 10 years and for execution of the deed as well as for an injunction restraining them from interfering with their possession, which is pending. It is also stated that respondent Nos. 2 and 3 are in legal possession, and therefore, the order passed by the Licensing Authority which is erroneous was rightly set aside by the Government. The writ petition is not maintainable as mere is no error in the impugned order.
4. Respondent No. 1 filed counter supporting the impugned order.
5. Sri K. Ramesh, the learned Counsel appearing for the petitioners submits that respondent Nos. 2 and 3 are not in lawful possession, inasmuch as they have failed to exercise the option within six months before the end of tenancy i.e., 5-3-1992, the date on which the lease expired. However, as per Clause-5 of the supplementary lease deed dated 28-11 -1966, the lessee shall have the option to extend the period of lease by another 10 years after the expiry of period of 30 years and he can exercise the option of extending the period of lease by giving a notice in writing of six months prior to the expiry of original period of 30 years. Therefore, a reading of this clause clearly shows that it is the unilateral choice of the lessee to exercise the option seeking extension and when such an option is exercised, the lessor has no option except to extend it. Hence the question is whether respondent Nos. 2 and 3 have exercised the said option in time. According to them, the option was exercised on 20-5-1991 i.e., well within the stipulated time by sending a letter by Certificate of Posting. That apart a copy of the said letter was delivered by Gannu Singh, Manager of the Theatre to the petitioners. Of course, it is denied by the petitioners. Respondent Nos. 2 and 3 have also filed O.S.No 923 of 1993 for specific performance of the clause for extension of lease by 10 years on the file of the XI Assistant Judge, City Civil Court, Secunderabad. The Certificate of Posting prima facie shows that a letter was posted to the petitioners on 20-5-1991. As such, it is difficult to hold that the respondents have not exercised their option. Of Course the truth or otherwise and its evidentiary value will be decided in the suit which is filed by the respondents for specific performance of the contract. However, Sri Ramesh, relying on Hindustan Petroleum Corporation Ltd. v. Vummidi Kannan, submits that even assuming that the respondent Nos. 2 and 3 have exercised their option, still in the absence of a lease deed executed, there is only a right to obtain fresh lease which is not equivalent to a lease executed. In this case we are only concerned in finding out whether the possession of respondent Nos. 2 and 3 is lawful or not. When the option is exercised, by no stretch of imagination the possession of respondent Nos. 2 and 3 can be termed as unlawful or unauthorised. It is of course well settled that not only for transfer of original licence as well as for renewal of lease under Rule 12-B of the A.P. Cinematography Rules, A.P. Cinemas (Regulation) Rules, 1970, the lessee has to establish his lawful possession vide Y. Anasuya v. Govt. of A.P., (F.B.). As such, the crucial test is whether respondent Nos. 2 and 3 are in lawful possession or not.
6. The learned Counsel for the petitioners next relied on R.M. Mehta v. H.P.F.M. Co. Ltd., AIR 1976 Madras 194 for the proposition that the renewal of lease shall be only by a registered instrument when the original lease deed was by a registered document. No doubt the learned single judge observed that once the option is exercised either by the lessor or the lessee a valid lease does not come into existence unless a registered document is executed. Sri E. Manohar, the learned Senior Advocate appearing for the respondents on the other hand relies on a Division Bench Judgment of this Court in Writ Appeal No. 472 of 1992 and Writ Petition No. 3802 of 1992, dated 23-11-1992, wherein the Division Bench following the decision of the Supreme Court in Rana Vidya Bhushan Singh v. Rati Ram, 1969 (1) S.C.W.R. 341, observed that the lessee can rely upon the unregistered agreement to show his nature of possession. Therefore, this contention of the petitioners has no force.
7. Relying on Thayarammal v. People’s Charity Fund, AIR 1978 Karnataka 125, the petitioner’s Counsel submits that lessee could not be in lawful possession though a suit is filed for specific performance of contract until a lease deed is executed. This case was cited before the Division Bench of which reference has already been made, wherein the learned Chief Justice S.B. Majmudar, as he then was, observed as follows:
“In that case, the clause with which the Karnataka High Court was concerned, was differently worded. The renewal clause did not give an absolute right to the lessee to ask for renewal. On the contrary, the option was only with the lessor and if the lessor exercised the option and offered the theatre for fresh lease, then the right of pre-emption was given to the lessee to claim for renewal. Here, the renewal clause has vested absolute discretion in the lessee to ask for, renewal of the lease and if it is asked for the lessor has no choice except to accept it. In this view of the matter the facts position being altogether different the decision of the Karnataka High Court is of no help to the lessor.”
For the same reasons, the decision of the Karnataka High Court has no application to the facts of this case also.
8. The learned counsel for the petitioners next contends that no presumption of service of notice can arise Under Section 114 of the Evidence Act, when a letter is sent by Certificate of posting and for this proposition he placed reliance on J.Mc. Gaffin v. L.I.C. of India, . In the said decision, a Division Bench of the Calcutta High Court observed thus:
“In Kanak Lata v. Amal Kumar the Court relied on the presumption of service of letters sent under certificate of posting Under Section 114 (f) of the Evidence Act. There could therefore be no dispute about the presumption arising out of service by certificate of posting in appropriate circumstances though presumption however has been held as rebuttable.”
Therefore, the contention that there is no presumption that the letter reached the destination when it was sent by certificate of posting cannot be accepted.
9. The learned Counsel for the petitioners relying on Section 27 of General Clauses Act, contends that service by post means service by registered post only. This in my view does not help the petitioners. Section 27 of the General Clauses Act deals with service under any Central Act or Regulation with which we are not concerned in the present case. For all these reasons the petitioners contention that certificate of posting does not arise any presumption of service of notice cannot be accepted.
10. Sri K. Ramesh, the learned counsel for the petitioners made a feeble submission that as per the renewal clause, the right of option should be exercised by the lessees within six months of the expiry of the lease, and therefore, the notice should be given within six months before the expiry of the lease and not earlier. It is clear from the said clause that option should be exercised by giving a notice in writing of six months prior to the expiry of the aforesaid stipulated period of 30 years, which means that the option should be exercised by a notice of six months, but prior to the expiry of the aforesaid stipulated period. Therefore, the twin requirements are duration of notice must be for six months and six months period of notice should expire before the stipulated period of 30 years. In this case, the lease period had expired by 5-3-1992 and notice was given on 20-5-1991. Hence, both the requirements are complied with. Therefore, this submission also in my view has no substance.
11. The learned counsel for the petitioners relying on R.V. Bhupal Prasad v. State of A.P., (D.N.), submits that the possession of the lessees is not lawful, inasmuch as the period of lease had expired. In the said decision, the Supreme Court observed thus:
“In view of the settled position of law, the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the theatre is unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respondent. His possession cannot be considered to be settled possession. He is a kin to a trespasser, though initially he had lawful entry.”
12. In the case before the Supreme Court, the lease period of 20 years ends by 1-1-1994. Therefore, after the said date the possession of the lessee cannot be treated as lawful possession. But, in this case there is a clause enabling the lessees to extend the lease by another 10 years by exercising the option. This makes all the difference, and therefore, I am of the view that the said decision does not help the petitioners. On the other hand the Judgment in W.A. No. 472/92 cited supra applies to this case on fours.
13. The Licensing Authority has taken the view that there is no adequate evidence except the letter shown by the lessee, and if the lessee is really interested in extending the lease period for another 10 years, he would have taken more substantial action and sent it by registered post, and therefore, a copy of the letter shown by the lessee is not of sufficient evidence in the circumstances. However, the appellate authority has accepted that the letter sent by the lessee is from Bangalore expressing his intention for extension of lease for another 10 years, though unregistered would take the case of the lessee out of “unlawful possession” and bring it within the wider scope of “lawful possession”. It is further found that even the Licensing Authority could not hold that the lessee did not send the letter by registered post (sic. certificate of posting). This finding that the lessee had sent the letter by certificate of posting, exercising option for renewal is a pure finding of fact which cannot be upset in the writ petition under Article 226 of the Constitution.
14. For the above reasons, I do not find any merit in the writ petition, and it is accordingly dismissed. No costs.
15. The learned counsel for the petitioners requests that the suits pending in the lower Court may be directed to be disposed of expeditiously. In view of the urgency, I direct that O.S.No. 923 of 1993 and O.S.No. 295 of 1992 pending on the file of the XI Assistant Judge, and III Additional Judge, City Civil Court, Secunderabad, shall be disposed of as expeditiously as possible, preferably within a period of six months from to-day.