Onkar Nath Tiwary v. The State Of Bihar

from doing so. We direct that the Collector, East Champaran shall ensure that in future counter affidavits are filed well in time so that the proceedings are not unnecessarily hindered by filing of the same when the matter is taken up without proper opportunity to the petitioners for studying and dealing with the same. Learned counsel for the appellants submits that the Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 3 lands in question belonged to the State Government. It was handed over to the erstwhile Bihar Agricultural Produce Market Committee, now dissolved. The committee constructed a market complex called „Meena Bazar‟ at Gandhi Chowk next to Moti Jheel. It then leased out the shops to the appellants which are valid till 31.3.2015. The appellants are not encroachers, but tenants and can be removed only in accordance with law through a decree for eviction ordered by a competent Court of law.

Their entry to the shops is not unauthorized or illegal and they cannot be classified as encroachers. The learned Single Judge has erred in holding that they were “licensees”. It is apparently erroneous from the recitals in the agreement describing it as a lease. The defence taken in the counter affidavit for lack of a registered agreement is not sustainable as it shall still be evidence of a landlord-tenant relationship and under Section- 17(2)(vii) of the Indian Registration Act, 1908, the grant being of immovable property by the Government, registration was not compulsory. Learned counsel for the State submitted that the rights granted to the appellants was that of a licensee. The protection that may be available to a tenant cannot be availed by them. The lease agreement was for a period beyond 11 months and was therefore compulsorily registrable under Section-17 of the Indian Registration Act.

The lands on which Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 4 the market was constructed and allotted to the appellants are required for beautification of the area around the Moti Jheel. The learned Single Judge opined that the document signed between the parties was not a lease agreement but a licence. Hence, the protection as a tenant was not available to them under the Transfer of Property Act. The allotment had been made on a public land illegally and therefore initiation of proceedings and the final order under the Act required no interference. Since the lands were required for beautification, the action by the respondents did not warrant interference under Article-226. If so advised, the appellants may take recourse to their remedies under the Act or such other forum as may be advised. We have considered the submissions on behalf of the parties. The Bihar State Agriculture Produce Marketing Board has since been dissolved and its assets are being administered through the Special Officer-cum-Sub-divisional Officer under the State Government.

The vesting of the lands by the State Government in the erstwhile Board and construction of the shops by the latter are undisputed. It is not the case of the respondents that the Board granted lease contrary to any restrictions placed by the State Government at the time of vesting. If a written agreement was executed between the Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 5 parties, the nature of relationship inter se and the intention of the parties has to be first gathered from the language used in the agreement itself. If the language is clear and specific, there is no occasion for the Court to read it in any other manner than what the parties intended. It is only in the case of any ambiguity that the Court may interpret the document. The agreement between the parties annexed to the writ petition in no uncertain terms describes them as “lessor” and “lessee” and uses the words “leased out” for letting out the shops to the appellants.

The agreement provides for a security deposit to be made refundable at the time of vacating the premises. There are restrictions against subletting and making of modifications of the shops. The costs for white washing, use of electricity and maintenance of the premises have to be borne by the Appellants. The appellants would be bound by any further directions that may be given with regard to the room, rent and maintenance. Breach of terms would lead to eviction. The “rental amount” is to be deposited in the first week of every month. The appellants are liable to vacate on one month‟s notice. On expiry of the agreement the option for renewal rests with the respondents provided the appellants apply 15 days before expiry. The tenancy would not be inheritable. In (2007) 10 SCC 231 (P.S. Rana Krishna Reddy Vs. N.K. Bhaggalaximi) it was observed at Paragraph-13 as Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 6 follows:- “13.

A document, as is well known, must be read in its entirety. The intention of the parties, it is equally well settled, must be gathered from the document itself. All part of the deed must be read in their entirety so as to ascertain the nature thereof.” We find it difficult to uphold the reasoning in the order under Appeal that the Appellants were “licensees”. The terms lease and license have different connotation. Merely because in both the ownership of the property leased or licensed may vest in another will not lead to the presumption of a “licensee” unless conditions for the same are fulfilled. Under a lease, there is limited transfer of possession, ownership and enjoyment of the property temporarily to the lessee for a specified duration subject to terms and conditions. In case of a license, ownership and possession remains with the licensor, giving only permission permissive user to the licensee.

While a lessee may have a right to continue for the duration of the lease, can contest premature termination and can be ousted only by the order a competent Court, such protection is not available to a licensee. This distinction was noticed in (1960) 1 SCR 368 (Associated Hotels of India Ltd. v. R.N. Kapoor) observing :- “28. There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 7 interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor.

Whereas Section 52 of the Indian Easements Act defines a licence thus:

Where one person grants to another, or to a definite number of other persons, a right to do or continue 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 licence.

remains terms while Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property.

There is, therefore, clear distinction between the two concepts……. lease, licence or The following propositions may, therefore, be taken as well established: (1) To ascertain whether a document creates a substance of the document must be preferred to the form; (2) the real test is the intention of the parties — whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. The difference between a Lease and Licence has again been noticed in (2004) 3 SCC 595 (C.M. Beena v. P.N. Ramachandra Rao) observing as follows :- “16..“Lease” is defined in Section 105 of the Transfer of Property Act, 1882 while “licence” is Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 8 defined in Section 52 of the Indian Easements Act, 1882.

Generally speaking, the difference between a “lease” and “licence” is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful (see Associated Hotels of India Ltd. v. R.N. Kapoor)…” If the lease was for a period beyond one year, unregistered in nature, and we for the sake of discussion ignore Section-17(2)(vii) of the Act relied upon on behalf of the appellants, the unregistered lease would still be admissible in evidence to the extent that it demonstrates a landlord-tenant relationship.

If that be so, the tenant could be evicted only by a process known to the law through a decree of eviction. The Constitution Bench of the Supreme Court in AIR 1961 SC 1570 (Bishan Das V/s. The State of Punjab) held:- “14. The petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 9 invasion by the executive of peaceful possession of property. " Relying on the same [1996] 2 PLJR 621 (Hindusthan Petroleum Corporation Limited Vs.

State Of Bihar) it has been observed :- land as a sublessee “33. Even if it is assumed that the predecessor-in- interest of the petitioner Company inducted in the plot of in 1958 has subsequently become a tenant at sufferance, it is settled beyond all controversy that such a tenant cannot be evicted except in accordance with the procedure established under the law. Learned counsel for the petitioner Company in support of this proposition has relied on a series of judgments starting from the decision of the Bombay High Court in the case of Brigadier K. K. Verma V/s. Union of India, reported in AIR 1954 Bom 358. Chief Justice Chagla (as His Lordship then was) making a valid distinction between Indian and English law on the point made the following crisp observations in paragraph 4, page 360 of the report and they are quoted below : -"Under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law.

Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and is protected by statute. Under S. 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court under S. 9 and claim possession against owner. Therefore, our law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. Whereas the trespassers possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser. "This is still the law. So the petitioner Company can never be treated as a trespasser.” that possession The Bihar Public Land Encroachment Act in its Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 10 preamble reads “An Act to make better provision for removal and prevention of encroachment on public lands”.

Section-2(1)(a) defines encroachment to mean unauthorized occupation of any public land and includes erection of a building or other structures over a public land. In the present case, the appellants were inducted as tenants and cannot be called unauthorized occupants encroaching the shops allotted to them. They have not raised any constructions on the land either. The counter affidavit does not take any legal defence tenable in the law and yet seeks to contest the Letters Patent Appeal. It is not the case of the respondents that the State Government had restrained the Board from either raising the constructions or settling the same by lease. The only ground alleged is that the Chairman of the Board made the settlement without a registered agreement. Significantly, the counter affidavit does not use the word “licence” at any stage, but on the contrary uses the word “lease” repeatedly with regard to the settlement made with the appellants.

We are satisfied on the face of it that the Act has no application in the facts of the case. Resort to the provisions of the same is held to be a clear abuse of the process of law. Beautification of the town may be a laudable object, but it cannot be countenanced by assumption of powers and jurisdiction not available in law to the respondents. Patna High Court LPA No.313 of 2013 (5) dt.16-07-2013 11 Before we part with, our attention has been invited by the respondents to a clause in the lease agreement that the tenancy was not inheritable. Appellant No.5 has been deceased and I.A. No.1817/13 urges that his wife is in tenancy occupation. We are therefore unable to grant any relief to the applicant in I.A. No.1817/13 in view of the aforesaid clause in the lease agreement. She may pursue her remedies as advised in accordance with law. The order under appeal is held to be not sustainable and is set aside along with orders /notices dated 1.2.2011 and 1.3.2011. The appeal is allowed. (Navin Sinha, J) (Vikash Jain, J) K.C.jha/-