Sudhir Kumar Gupta @ Sudhir Prasad Gupta v. The State Of Bihar Through Chief Secretary, Bihar, Patna

discuss the facts of the case, we consider it necessary to do so for the conclusion that we shall arrive at. Patna High Court LPA No.906 of 2013 (2) dt.07-08-2013 3 The Appellants are stated to be petty shopkeepers running STD Booths, Book shops, Tea stalls, Saloon and Eateries in the premises of Bus Stand run by the respondent Corporation at Chapra. According to the Appellants, they have been running the aforesaid business in the premises since long. Earlier also attempts were made to oust them in the year 1998 leading to institution of Title suit No. 153 of 1998. The prayer for temporary injunction against eviction was dismissed on 06.02.1999. The Title Suit itself was dismissed for non prosecution on 19.09.2002. Miscellaneous Appeal No. 15 of 1999 for restoration was also dismissed. The authorities however permitted the Appellants to continue and issued fresh orders as recent as 05.01.2007 including a clause for escalation of licence fee coupled with liable for eviction by one month notice. They were served with an order for eviction to vacate within three days on 05.01.2011 leading to the institution of the writ application giving rise to the present Appeal. Learned counsel for the Appellants submits that they were lessors not licencee. The Corporation cannot act in an arbitrary manner to oust them unceremoniously affecting their right to livelihood under Article 19(1)(g) of the Constitution. Their families run on the bread and butter earned from the shops and they shall suddenly be faced with penury and no source of Patna High Court LPA No.906 of 2013 (2) dt.07-08-2013 4 income. The counter affidavit filed by the Corporation does not demonstrate any positive plan of action or scheme development of the Bus Stand premises which is being made a ruse to forcefully evict the Appellants. Learned Senior counsel for the Corporation submitted that the Appellants are rank encroachers and no formal settlement was ever made in their favour. Even if any license fee was taken from them it does not tantamount to a right of continuance especially when the order to vacate is not arbitrary. It has been given in view of a larger scheme for modernization of the Bus Stand and passenger facilities due to increased traffic flow necessitating use of the additional space. The Corporation has been attempting to evict them for long period evident from their own pleadings of the Title Suit filed in 1998 unsuccessfully. We have considered the submissions made on behalf of the parties. The Appellants are licensees and not lessees. It is not even the case of the Appellants in their pleadings that they fulfilled the requirements of being a tenant entitled to a lease hold right of the premises who could be evicted only by a decree of a Court of law. Undoubtedly a lease can be oral also. But there has to be an animus for transfer of the right in property albeit for a Patna High Court LPA No.906 of 2013 (2) dt.07-08-2013 5 temporary period. An encroacher can never be a lessee. A licensee has no right to continue except in accordance with the condition of the license and he possesses no lease hold rights for continuance till evicted by a process of law. But they have indisputably continued on the premises running petty shops for livelihood. The fact that they would suddenly be left without sources of livelihood for themselves and their families which in its wake shall bring its own problems is also an aspect which is also on our minds. But the latter itself cannot be a ground to give them relief which may otherwise not be available in the law on sympathy alone. The test whether the relationship was of a lessor/lessee or licensor/licencee was considered in (1960) 1 SCR (Associated Hotels of India Ltd v. R.N. Kapoor) observing as follows:- `` 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 interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the terms of the lease, and it follows from it that the lessee gets that right to the Patna High Court LPA No.906 of 2013 (2) dt.07-08-2013 6 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.” Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in 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….. The following propositions may, therefore, be taken as well established: (1) to ascertain whether a document creates a licence or lease, the 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 they intended to create a lease or a licence; (4) 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 Patna High Court LPA No.906 of 2013 (2) dt.07-08-2013 7 licence; and (5) 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…..”. Our jurisdiction under Article 226 discretionary in nature and in the given facts of a case we may refuse to exercise that discretion if even otherwise circumstances persuade us to do so. Once the Appellants filed a Title Suit, failed to obtain injunction and then allowed the suit to be dismissed we do not consider the present a fit case for invoking our extra ordinary jurisdiction on facts. If the premises belong the respondent Corporation, the Appellants are mere licensees, and Corporation proposes to modernize the Chapra Bus Depot on account of increased traffic including parking place for Buses Passenger accommodation and passenger facilities under a policy decision, the appellants cannot claim a preferential right to continue so as to prevail over the desire of the Corporation for modernization of the premises. But we do consider a period of three days as insufficient and inadequate for relocation. A notice had already been given subsequently during the pendency of the writ petition to vacate within a period of one month. Since we find no reason to Patna High Court LPA No.906 of 2013 (2) dt.07-08-2013 8 interfere with the order under Appeal except to the extent that we shall give directions hereinafter, the Appellants are required to vacate the premises by the 20th of September 2013, failing which the Corporation shall be at liberty to take steps appropriately for the same. If as a part of modernization of the Chapra Bus Depot, the Corporation proposes to open shops for passenger facilities, subject to the Appellants’ meeting the requirements of the Corpor;atin, they shall be given preference vis-à-vis fresh applicants. In the event that the number of shops proposed to be permitted by the Corporation is lesser than the number of the Appellants, we leave it to the discretion of the Corporation to decide the criteria on basis of which it shall select from amongst them inter se. But keeping in mind the aspects of livelihood discussed hereinabove and the fact that if they are removed the present premises they may go and occupy/encroach elsewhere in similar manner, we direct that if the Appellants represent before the District Magistrate rehabilitation at another appropriate location to the satisfaction of the administration, the District Administration shall make all reasonable endeavors to rehabilitate them. But this part of our Patna High Court LPA No.906 of 2013 (2) dt.07-08-2013 9 order cannot be construed by the Appellants as a ground to continue in the premises of the Bus Stand after the 20th of September 2013. The later part of our direction hereinabove draws sustenance from (1985) 3 SCC 545 (Olga Tellis v. Bombay Municipal Corporation). Keeping in mind the aspect of a livelihood. The Appeal is disposed with the aforesaid modification of the order under Appeal. (Navin Sinha, J) Md. Ibrarul/- (Vikash Jain, J)