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TMI Blog1977 (11) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... se is that in pursuance of the terms of the license, he deposited the security amount equivalent to three months fee and took the physical possession of the Kiosk on let Jan. 1974. He further contends that he had been peacefully carrying on his business in the said Kiosk in accordance with the rules and regulations of the Corporation that on the expiry of the period of license on 30th Nov. 1974, he made a representation to the Commissioner of the Corporation for the extension of license period and that on there commendation of the Commissioner for the extension of the period of the license for a full term of five years in pursuance of the renewal and extension of the license period. the Corporation accepted the license fee subsequently after 30th Nov. 1974. However, the petitioner alleges that on 29th May, 1975, some officials of the Corporation came at the site and threatened him to vacate the Kiosk on which he told the said officials that he had been regularly paying the license fee, as such he could not be evicted arbitrarily and in an illegal manner. It is also alleged that on the threatened action of the officials of the Corporation, nearby shopkeepers collected there and with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion here that the petitioner subsequently with the leave of the Court amended the plaint on 26th Nov. 1976, by incorporating the plea that the document dated 11th Dec. 1973, executed between the parties though described as a license deed was in fact a lease deed in that the intention of the parties was to create a lease of the Kiosk and that by the document in question an interest was created in the Kiosk in favor of the petitioner in recognition of which right, physical possession and control of the Kiosk was delivered to and continues to vest in the petitioner. 6. It may also be noted here that the petitioner before the trial Court as also before the appellate Court pressed his application. for the grant of ad interim injunction on the basis of the averments made in the original plaint. The courts below disposed of the said application on the basis of the unamended plaint. The present petition arises out of the orders passed by the Courts below on the contentions urged before them on the basis of the unamended plaint. In the amended plaint the new dimension which is sought to be added to the controversy is that the deed dated 11th December, 1973 ' though styled as a license ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently vacated by the Court by order dated 22nd July. 1975, and his application under Order 39 Rules 1 and 2 read with S. 151 of the Code was dismissed. He too remained unsuccessful in the appeal. 11. Mohan Lal, petitioner in revision petition No. 535 of 1973 was allotted Kiosk No. 2 his bid was for ₹ 925/- per month. His application for the grant of ad interim injunction was dismissed by the trial Court by its order dated 6th June, 1975. He challenged the aforesaid order in appeal but remained unsuccessful. 12. The appeals of all these petitioners were heard by Shri K, B. Andley, Senior Sub-Judge, Delhi, who by his common order dated 10th September, 1975, dismissed the appeals of the petitioners. The petitioners challenge the correctness of the aforesaid order in these civil revision petitions. 13. These petitions were heard by T. P. S. Chawla, J. The learned Judge on hearing the parties observed that "after a person has been peaceably evicted in the exercise of a valid right of re-entry or self-help, he has no remedy if lie seeks to regain possession. But, I do not think that it necessarily follows from this that the court will also not intervene before such evictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancy was created. the person in possession would not be held to be a tenant. It is trite saying that the intention of the parties is, the real test for ascertaining the character of a document. It is beyond challenge that it a document gives only a right to use the property in a particular way but its possession and control remains with the owner thereof, it will be a license. In such a case the legal possession remains with the owner of the property, the licensee being permitted to make use of the property for a particular purpose. It would, Therefore, be seen that but for the permission the licensee's possession would be unlawful. Exclusive possession does not militate against the concept of a license, if the circumstances negative any intention to create a tenancy (See Associated Hotels of India v. R. N. Kapoor, [1960]1SCR368 ). 16. It is also beyond the pale of controversy that if the circumstances and the conduct of the parties show that what was intended was that the occupier should be granted a personal privilege with no interest in the land, he would be held to be a licensee. 17. In the instant petitions, the Corporation before holding auction on 21st October, 1973 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of the parties is apparent that what was going to be auctioned was "licensee rights" and not "tenancy rights". Apart from the fact that the .heading of deed clearly indicates that it is a "deed of license" the reading of the various clauses of the deed unerringly shows that it possesses the characteristics of a "license". The terms and conditions of the deed are consistent with the grant of a license and 'do not accord with creation of a lease'. 18. Clause I of the deed gives liberty to the petitioners to occupy and use the Kiosk for a period of Ii months in the first instance and thereafter for such duration of renewal as may be mutually agreed to. The deed does not entitle the licensee to any right of alternative accommodation on the earlier termination of license. But for the liberty to occupy the Kiosk, the possession of the petitioners would have been unlawful. Clause 7 enjoins on the licensee not to part with the possession of the Kiosk or allow any other person to occupy the same or to use any part thereof, or to enter into any partnership with any person. With out the written permission of the Commissioner of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. According to S. 105 of the T. P. Act, 1882, a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity in consideration of a price paid or promised, or of money, a share of crops service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. It is clear from the above definition that a lease is not a mere contract but envisages and transfers an interest in the demised property creating a right in favor of the lessee in rem, 22. License is defined in S. 52 of the Easements Act and reads as under: "where one person grants to another, or to a definite number of other persons, a right to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license". 23. From the above definition it is evident that license only makes an action lawful which without it would be unlawful but does not transfer any interest in favor of the lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of a lease, there is a transfer to a right to enjoy the property or in other words the lessee is entitled to enjoy the property. A bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an Interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain this right. He is entitled to resist in defense of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser. If, however, the licensor uses excessive force, he may make himself liable to be punished under a prosecution, but he will Infringe no right of the licensee, No doubt a person in exclusive possession of the property is prima facie to be considered to be a tenant, nevertheless he would not be held to be so if the circumstances negative any intention to create a tenancy. 27. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a license. The precise argument was that there is a fundamental distinction between the capacity of a natural person and that of an artificial person which is created by a statute or charter. To a natural person whatever is not expressly forbidden by law is permitted by the law. It was urged that a natural person has the capacity to do everything save and except those forbidden by law, but in the case of an artificial person such as the Corporation being the creation of the Act, the rule applicable to a natural person is reversed. It was vehemently urged that whatever was not permitted expressly or by necessary implication by the Act was prohibited to be done not by any express or implied prohibition of the legislature but by the doctrine of ultra vires. Support for this submission was sought to be drawn from a Bench decision of Calcutta High Court in Satibhusan Mukherjee v. Corporation of Calcutta AIR 1949 Cal 20, 31. Dilating on the above-noted submission it was contended that under S. 197 of the Act the Corporation shall, for the purpose of the Act, have power to acquire and hold movable and immovable property, or any interest therein. S. 200, it was urged, deals with disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the person in possession and secure his eviction in accordance with the provisions of law. It was accordingly contended that the Corporation was not entitled to take the law into its hands and throw out the petitioners. There is a fallacy in the submission. The petitioners being licensees with liberty to occupy and use the Kiosk for a period of 11 months in the first instance could not be said to be in legal possession of the premises, the legal possession all along remained with the Corporation. On revocation of the license they ceased to enjoy the liberty to continue to occupy the Kiosk so as to drive the Corporation to evict them in due course of law, nor can the petitioners' possession be said to be "settled possession" as was sought to be made out. 35. Shri Saigal next contended that or revocation of the license, the petitioners possession of the Kiosks was that of trespasser and having accepted license fee subsequent to the revocation of the license, the Corporation acquiesced in the possession of the petitioners as trespassers, in the circumstances the Corporation has no right to dispossess the petitioners by force. This submission is equally devoid of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners were bound to show that they have a legal right and that there was an invasion of that right. They have failed to show a legal right. Facts and circumstances. on the contrary, prima facie show that the petitioners on the revocation of the license are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act. 39. We see no infirmity, legal or factual, in the impugned order. The appellate Court in exercising its jurisdiction had neither acted illegally nor with material irregularity, as such as held by the Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, (1972)ILLJ170SC , High Court's powers of revision under section 115 of the Code, cannot be invoked. 40. In view of our discussion on the various points noted above, the petitions fail and are dismissed accordingly. The petitioners shall pay the costs of the respondents. 41. Petitions dismissed. AIR 1978 Delhi 174 DELHI HIGH COURT Civil Rev. Nos. 532, 533 and 534 of 1975 09.11.1977 Chandu Lal Versu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subsists. Describing the action of the Corporation as manifestly illegal, arbitrary, mala fide and discriminatory, the petitioner filed the suit for the grant of a decree for permanent injunction restraining the Corporation from interfering, disturbing or dispossessing him from the Kiosk. The petitioner also filed an application under 0. 39, Rules 1 and 2 read with S. 151 of the Civil P. C. 1908, praying that pending disposal of the suit the Corporation be restrained by way of ad interim injunction from interfering, disturbing or dispossessing from the above-said Kiosk. 3. The Corporation in its written statement by way of preliminary objections urged that the suit was barred in view of Ss. 477 and 478 of the Delhi Municipal Corporation Act, 1957, (herein called 'the Act'); that the petitioner has no locus stand to file the suit; and that the suit as framed is not maintainable. On merits the Corporation admits that the petitioner being the highest bidder was allotted the Kiosk in question for 11 months as a licensee; that on the expiry of the said period the petitioner was asked to vacate the Kiosk; that his request for the extension of the period of license for a furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thus interest in the premises was created in favor of the petitioners and that the deed was indeed camouflaged as a license. 7. The trial Court initially by its order dated 2nd June, 1975, while issuing notice to the Corporation of the application for the grant of ad interim stay issued an ex parte injunction against the Corporation restraining it from dispossessing the petitioner from the Kiosk. However, on hearing the parties by its order dated 22nd July, 1975, the trial Court vacated the ex parted injunction earlier granted holding that the petitioner had failed to make out a prima facie case in his favor and also that the balance of conveniency was in favor of the Corporation. The petitioner remained unsuccessful in appeal The petitioner in the present revision petition challenges the correctness of the order dated 101h September, 1975, passed by the Appellate Court (Senior Sub Judge, Delhi) whereby the petitioner's appeal against the order of the trial Court was dismissed. 8. The facts of the other petitions are identical with the facts of this revision petition. The bid in these cases was field on 21st October, 197 3. The Kiosk was allotted to these petitioners in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that a question of some difficulty and considerable importance arises in these petitions, touching the inner core of the rule of law which by its very nature was bound to be of frequent occurrence which needs to be decided more authoritatively by a larger Bench preferably to be decided by a Full Bench. He, Therefore, directed that the papers be placed before the Chief Justice for such orders as may be deemed fit to make. This is how these petitions have been placed before us. 14. Shri A. L. Saigal, appearing for the petitioners, vehemently contended that a perusal of the so called license deed unerringly shows that it is a lease deed where under transfer of right to enjoy the property for carrying on trade was made in favor of the petitioners; that the petitioners have complete control over the business that they conduct in these Kiosks and they do not work for the Corporation; that the petitioners are the free masters to attend to their business, there being no timing restrictions for carrying on their business; that the petitioners are not the employees or servants of the Corporation; and that they have been put In exclusive possession of their Kiosks to the exclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident that the Corporation had invited bids for the grant of license in respect, of Kiosk and the petitioners made a bid for obtaining a license for working on the premises in question Clause 4 of the terms of auction clearly indicate that the bid "shall be for a period of 11 months in the first instance on monthly license fee basis", while clause 10 unmistakably stated that "the allotment/ license of the Kiosk shall constitute liberty to the licensee to occupy and use the F Kiosk for a period of Ii months in the first instance, and thereafter for such term of renewal as may be mutually agreed from time to time." According to clause 15 the benefit of the license was neither transferable nor heritable. Further clause 22 indicated that the license to occupy the shop was liable to be cancelled at any time by the Commissioner of the Corporation or other officer duly authorised by him, without assigning any reason therefore. Clause 26 entitled the Commissioner of the Corporation, on expiry of the period of or revocation of allotment/ license, to resume exclusive possession and charge of the Kiosk and deal with it In such manner as he may deem fit. Further any goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hfully and diligently comply with all the directions, general or special, as may be given by the Commissioner of the Corporation from time to time. According to clause 13. infringement of any of the terms and conditions of the deed by the licensee will lead to the cancellation of license of the Kiosk and the licensee will have no claim whatsoever on that count. As per clause 14, the license of the Kiosk is liable to be cancelled at any time by the Commissioner of the Corporation or other authorised officer without assigning any reason, in which event the amount of the fee for the remaining period of the license will be refunded to the licensee. Clause 18 of the deed entitles the Commissioner of the Corporation on the expiry of the period of or revocation of allotment /license to resume exclusive possession and charge of the Kiosk and deal with it in such manner as he may deem fit. Any goods, articles or things found lying in the Kiosk shall be liable to be seized, removed and sold by public auction by the Commissioner or any other officer empowered by him. Further, the outstanding Corporation dues, if any, together with the charges for seizure, removal, storage and sale of such goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h possession of the Kiosk or allow any other person to occupy the same or to use any part thereof or to enter into partnership with any other person without the written permission of the Commissioner of the Corporation The liberty to occupy the Kiosk was personal to the petitioners alone. Besides, the petitioners were required "faithfully and diligently" to "comply with all the directions, general or special" that may be given by the Commissioner of the Corporation from time to time. The infringement of any of the terms and conditions of the license was to result in the cancellation of the license. the petitioners having, no claim whatsoever on that account. Further, the license was liable to be cancelled at any time by the Commissioner of the Corporation or other authorised officer without assigning any reason. All these conditions militate against "lease", no interest in the premises passed to the petitioners. The Corporation in the circumstances in enforcing its right of re-entry by self help cannot be said to have taken the law into its own hands or that it was in any manner acting without recourse to law in resuming the possession. The underlying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with an interest in the property. The principle once a licensee always a licensee apples proprio vigore in these cases. The petitioners are not entitled to retain possession against the Corporation, which can take possession of the Kiosk and would not be driven to a Court of law as the mere physical possession of the petitioners confers no right on them. The petitioners. Therefore, in law are not entitled to retain possession against the Corporation, having only the personal privilege to carry on their business which otherwise without the permission granted by the Corporation would be an unlawful act. These well-settled principles - find support from Satwant Singh v. Assistant Passport Officer, New Delhi [1967]3SCR525 ; Associated Hotel's case [1960]1SCR368 (supra); B. M. Lall v. M/s. Dunlop Rubber Co. (India) Ltd., AIR 18 SC 175; Miss Aninha D'Costa v. Mrs. Parvatibai M. Thakur, AIR1966Bom113 ; Beant Singh v. Cantonment Executive Officer, Jammu AIR 1960 J&K 83, Chinna Pillai v. N. Govindaswami Naidu, AIR1969Mad191 ; Milka Singh v. Diane AIR 1964 J&K 99 and Raj Singh v. Union of India, AIR1973Delhi169 . (A Bench decision of this Court). 28. The Supreme Court recently in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid section. On the basis of the above-noted sections it was vehemently contended that the only power that the Corporation had was to acquire and hold movable and immovable property or any interest therein and further the Commissioner of the Corporation could dispose of property by sale or otherwise by granting a lease of the Corporation's immovable property but the aforesaid sections do not empower the Commissioner or the Corporation to grant a license. 32. The argument has to be only noted to be rejected being without any merit. Power to hold immovable property in itself entitles the owner of the property to enjoy he property or its fruit in any manner that the owner may like. To say that the Corporation could hold the immovable property but could not grant a license thereof to fetch income from it is atrocious and untenable argument. 33. Equally meritless was the submission that the Corporation under the Act was entitled only to issue licenses envisaged by the provisions of Ss. 416 and 417 laying down restrictions for establishing a factory etc. without permission of the Commissioner and use of the premises for certain purposes without obtaining a license. This su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporation in any manner acquiesced in the alleged or that the petitioners came to acquire "settled possession". The basic fallacy in this argument is the assumption that on acquiring liberty to occupy the Kiosk possession of it was passed to the petitioners. The petitioners being licensees legal possession all along remained with the Corporation. That being so, as held by the Supreme Court in Munshi Ram v. Delhi Administration AIR 1968 SC 702, the Corporation had a right to reenter the premises and rein state itself provided it does not use more force than necessary. Such an entry would be received only as a resistance to an intrusion upon possession which had never been lost. Further, the law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection authorities, there being degrading to the human the face being of the nothing more spirit than to run away in peril. 36. Reliance on Lallu Yeshwant Singh v. Rao Jagdish Singh AIR 1968 SC 620 and Mohan Lal v. State of Punjab 1970 Ren C J 95 is wholly misplaced, the former case dealt with tenancy rights while the latter case pertained to lease rights. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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