Kerala High Court
Lions Club Of Thrikkakara vs Greater Cochin Development Authority ...
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY,THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938
RSA.No. 86 of 2014 (B)
----------------------
AGAINST THE JUDGMENT AND DECREE DATED 20-12-2013 IN AS 41/2012 of II ADDITIONAL
SUB COURT, ERNAKULAM
AGAINST THE JUDGMENT AND DECREE DATED 31-08-2011 IN OS 860/2010 of II
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
APPELLANT/RESPONDENT/PLAINTIFF:
------------------------------------------------------
LIONS CLUB OF THRIKKAKARA
AIRPORT SEAPORT ROAD, KAKKANADU,
REPRESENTED BY ITS PRESIDENT,
PRADEEP MENON, AGED 52 YEARS,
S/O.LATE KARUNAKARA MENON, G.1,
ASOKAAPARTMENTS, OPP: COLLECTORATE,
KAKKANAD - 682 030.
BY ADVS.SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
SRI.BASIL MATHEW
RESPONDENT/APPELLANT/DEFENDANT:
---------------------------------------------------------
GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA),
A BODY INCORPORATED UNDER THE TOWN PLANNING ACT,
HAVING ITS OFFICE AT KADAVANTHARA,
REPRESENTED BY ITS SECRETARY,
KADAVANTHARA, KOCHI - 682 020.
BY ADV. SRI.ABDUL HAKHIM M.A., SC, GCDA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
23-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[CR]
B. KEMAL PASHA, J.
`````````````````````````````````````````````````````````````
R.S.A. No.86 of 2014 B
`````````````````````````````````````````````````````````````
Dated this the 23rd day of February, 2017
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ (1) What are the circumstances in which a licence can become irrevocable?
(2) Can a licence be made irrevocable on agreement of parties?
(3) Whether Section 62 is subject to the provisions contained in Section 60 of the Indian Easements Act, 1882?
These are the main questions arise for consideration in this Second Appeal.
2. Challenging the judgment and decree passed by the II Additional Sub Court, Ernakulam in A.S. No.41/2012, RSA.86/2014 : 2 : the plaintiff in O.S. No.860/2010 of the II Additional Munsiff's Court, Ernakulam has come up in Second Appeal.
3. Suit is one for perpetual injunction restraining the defendant and his men and agents from dispossessing the plaintiff from the plaint schedule property, demolishing the community hall constructed therein and doing anything detrimental to the rights of the plaintiff over the plaint schedule property. The plaintiff is the Lions Club, Thrikkakkara.
4. The trial court, after recording evidence and hearing either side, decreed the suit in terms of the plaint. Aggrieved by the judgment and decree, the defendant, Greater Cochin Development Authority (GCDA), went in appeal through A.S. No.41/2012. The lower appellate court, after hearing both sides, allowed the appeal by setting aside the judgment and decree passed by the trial court, and dismissed the suit.
5. The case of the plaintiff is that the defendant RSA.86/2014 : 3 : handed over 40 cents of land belongs to the defendant, to the plaintiff through Ext.A1 licence deed No.334/89 of the Thrikkakkara Sub Registry. Thereafter, the plaintiff constructed a community hall in the plaint schedule property complying the terms of Ext.A1 licence deed. According to the plaintiff, the licence created through Ext.A1 has become a permanent and irrevocable licence. The licence was granted for the purpose of setting up a community hall, library, reading room, park, tuition centre, nursery school and a clinic. By alleging that the plaintiff has ceased to occupy the scheduled property and has not made the constructions agreed to between the parties in Ext.A1 and has failed to start the library, reading room, park, clinic and nursery school, the defendant issued Ext.A2 notice dated 16.08.2010 directing the plaintiff to surrender vacant possession of the property to the defendant. Apprehending trespass and forcible eviction from the part of the defendant, the suit was filed.
RSA.86/2014 : 4 :
6. The defendant contested the suit and contented that the plaintiff has failed to comply with the terms and conditions of the licence whereby, paving way to the defendant to revoke the licence as per clause 7 in Ext.A1. It has been specifically contended that apart from making a temporary construction in the property styling it as a community hall, the plaintiff has failed to construct any library, reading room, clinic, park, tuition centre, and nursery school. On 22.04.2005, the Executive Committee of the GCDA had resolved to revoke the licence and to recover possession of the property from the plaintiff. Consequently, Ext.B5 proceedings dated 18.05.2005 based on Ext.B2, was passed by the Secretary of the GCDA, whereby revoking Ext.A1 licence granted to the plaintiff. The Town Planner was ordered to take possession of the land vide Ext.B5. Ext.B3 notice dated 21.10.2005 based on Ext.B5 order, was issued by the Secretary of the GCDA to the plaintiff, informing the plaintiff regarding the revocation of the licence RSA.86/2014 : 5 : and by calling upon the plaintiff to surrender vacant possession of the property. Pursuant to Ext.B3, the plaintiff issued Ext.B6 representation dated 09.11.2006 seeking permission to continue at the premises. According to the defendant, the plaintiff is not entitled to continue at the premises and to seek a decree of perpetual injunction as the one sought for.
7. This Court has admitted this Second Appeal on the following substantial questions of law:
"(1) Is not the appellant entitled to get the benefit of Section 60(b) of Indian Easements Act and if so, is not the appellant entitled to get a decree for injunction against dispossession?
(ii) Is not Section 60(b) of the Indian Easements Act an exception to Section 62(f)?"
8. Heard learned counsel for the appellant Sri.Vinod Bhat and learned counsel for the respondent Sri.Abdul Hakkim.
RSA.86/2014 : 6 :
9. Learned counsel for the appellant has argued that the licence has become irrevocable within the meaning of Section 60(b) of the Indian Easements Act, 1882 (hereinafter referred to as "the Easements Act") when the plaintiff licensee has executed a work of a permanent character and incurred expense in the execution of the work in the property. It is also argued that Section 62 of the Easements Act is subject to Section 60 and, therefore, the conditions incorporated in Ext.A1 for the revocation of the licence cannot be exercised in the case of an irrevocable licence. It has also been argued that the courts below ought to have interpreted Ext.A1 by applying the 'cy-pres doctrine', when the plaintiff has constructed a community hall for public good in the property. It has also been argued that after revoking the licence years back, the defendant has not taken any steps till the filing of the suit in the year 2010 to get the property vacated and, therefore, the defendant cannot be permitted to snatch away the property from the RSA.86/2014 : 7 : plaintiff.
10. The first question to be decided is the characteristics of Ext.A1 regarding the nature of the construction made by the plaintiff in the plaint schedule property. From Ext.A1, it is evident that the plaintiff had applied for allotment of 40 cents of land set apart for common purpose by the defendant, for constructing a community hall, library, reading room and park and also for starting a dispensary, nursery school and a tuition centre. The defendant approved and accepted the said proposal in its entirety and it is for the said purpose, the defendant granted Ext.A1 licence to the plaintiff. Clause No.1 in Ext.A1 also details the said purpose by stating that the licensor thereby granted leave and licence to the licensee, to build and maintain at its own cost a community hall, library, reading room, park, clinic, nursery school and tuition centre in the said property.
11. In clause No.3 of Ext.A1, it was specifically RSA.86/2014 : 8 : mentioned that in the council for the administration of the community hall and the other institutions aforesaid, a member each from the Thrikkakkara Panchayat, the GCDA, and the association of local residents of Pattupurackal scheme, shall be included. Clause No.7 says that the licensor reserves the right to revoke the licence in case of breach of any of the terms and conditions contained in Ext.A1.
12. The learned counsel for the respondent has pointed out that there is total violation of clause No.3 in Ext.A1 from the part of the plaintiff, since any council for the administration of the community hall and the other institutions mentioned therein was not formed. It has been pointed out that any member from the Thrikkakkara Panchayat, the GCDA and the association of local residents of Pattupurackal scheme, were not made members of such a council and, therefore, the power under clause 7 can be invoked by the defendant.
RSA.86/2014 : 9 :
13. According to the learned counsel for the respondent, Section 62(f) of the Easements Act will come into play in the case of violation of the conditions of licence. As per Section 62(f), where the licence is granted for a specific purpose and the purpose is attained or abandoned or becomes impracticable, such a licence is deemed to be revoked. It is the admitted case that till now, the plaintiff has not constructed and established the park, nursery school, tuition centre, clinic, etc. The learned counsel for the appellant has argued that the plaintiff has constructed a community hall, the portion of which is being used as the library and reading room.
14. When the learned counsel for the appellant has argued that the provisions contained under Section 62 of the Easements Act is subject to Section 60, it has to be considered whether Section 60 is applicable to the facts and circumstances of the present case. By analysing the evidence, and on a scrutiny of Ext.C1 Commissioner's RSA.86/2014 : 10 : report, the lower appellate court has concluded that the construction made by the plaintiff in the plaint schedule property is not one of a permanent character. It can be seen that a building has been constructed in the plaint schedule property. According to the defendant, it is only a shed. Per contra, the appellant styles it as a building of a permanent character. The building has walls on all its sides and tiled flooring. There is no evidence with regard to the details of the super structure. At the same time, it is evident that the same is thatched with Aluminium sheets. When considering the said aspects, it is evident that the said building or shed, whatever it is, is a construction of a semi permanent nature. When the construction is of a semi permanent nature, it does not take in a construction of a permanent character. In such case, Section 60(b) has no application with regard to the said construction in order to make the licence an irrevocable one.
15. Learned counsel for the respondent has invited RSA.86/2014 : 11 : the attention of this Court to the decision in Philomina v. Executive Officer [1987 (2) KLT 89], wherein it was held in paragraph 12 as follows:-
"However, if the parties themselves have entered into an agreement, for the licence to expire or terminate by efflux of time, or on the happening of any particular event or contingency, S.60(b) does not apply."
16. Learned counsel for the appellant has relied on the following passage in paragraph 852 of B.B.Katiyar Law of Easements and Licences, Fifteenth Edition:-
"A reference to the provisions of section 60 and section 64 shows that the Legislature in terms contemplated the revocability of all licences other than the licences mentioned in section 60 by providing for compensation for breach as is further shown by the various contingencies under which a licence is deemed to be revoked under section 62. But section 60 which lays down a rule of revocability, gives a further right to the grantor to revoke a licence at any time during the periods stated in section 62 unless it is one of the RSA.86/2014 : 12 : licences which fall under clauses (a) and (b) of section 60. Apart from section 60 and apart from the two categories mentioned therein, a grantor of a licence cannot be precluded, under the law of contract, from revoking the contract because of the contractual engagement into which he has entered. Therefore, except in the cases mentioned in clauses (a) and (b) of section 60, any licence, whether coupled with an agreement or not, is always revocable. The very nature of a grant in the grant of a licence is such that the person who grants it can take back the grant. Hence, apart from clauses (a) and (b) of Section 60, a licence cannot be irrevocable."
17. The author has endorsed the view that the decisions, which take the contrary view that the conditions of irrevocability in Section 60 are subject to any special agreement between the parties, do not lay down the correct law. According to him, it must not be overlooked that the Act is exhaustive on matters pertaining to Easements and Licences and that no words of qualification occur in Section 60 itself.
RSA.86/2014 : 13 :
18. On a conjoint reading of the provisions contained under Sections 60 and 62, it seems that the grounds for deemed revocation of licence contained in Section 62 are subject to the provisions of Section 60. Section 60 deals with the instances wherein a licence can be revoked. As per Section 60, a licence may be revoked by the grantor unless
(a) it is coupled with a transfer of property and such transfer is in force and (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution. Except the cases covered by Section 60(a) or 60(b), all other licences can be revoked. In cases wherein the conditions enumerated under Section 60
(a) or 60(b) are there, the licence becomes irrevocable. When a licence becomes irrevocable, it cannot be said that there can be a deemed revocation on any of the grounds mentioned under Section 62. The said question does not arise here in this particular case, when this Court has already found that the construction made by the plaintiff in RSA.86/2014 : 14 : the plaint schedule property is one of a semi permanent nature.
19. Regarding the validity of clause No.7 in Ext.A1, it has to be noted that the same cannot be pressed into service in the case of an irrevocable licence. Even though in the decision in Philomina (supra), it was held that if the parties themselves have entered into an agreement, for the revocation of that licence on the happening of a particular event or contingency, Section 60(b) does not apply, such an agreement will amount to contracting out. When the Easements Act is exhaustive with regard to all sorts of easements and licences, one can only go by the provisions contained in the Easements Act for construing a document of licence. If an agreement is entered into between the parties thereby creating a licence, and conditions contrary to the provisions of the Easements Act are incorporated therein, those conditions can only be treated as contracting out and nothing more.
RSA.86/2014 : 15 :
20. Section 60 of the Easements Act deals with as to what all licences may be revoked. As per Section 61, the revocation of a licence may be express or implied. Section 62 deals with situations wherein licences are deemed to be revoked. From the scheme of the Easements Act, it is clear that the situations contemplated under Section 62 are subject to the provisions contained in Section 60.
21. The learned counsel for the appellant has relied on the decision in Joseph Severance v. Benny Mathew [2005 (4) KLT 290 (SC)] and argued that when a licence was revoked by the licensor years back, and has failed to sue for a decree of mandatory injunction for getting back the licensed premises, the only remedy available to such a licensor to get back the property is a suit for recovery of possession based on title and not for mandatory injunction. The argument is that in such a case, the plaintiff cannot be thrown out of the premises by the defendant without recourse to have the execution of a decree for recovery of RSA.86/2014 : 16 : possession based on title. The said argument is double edged. When the licence has been revoked and for a long time, the licensor has not sued for mandatory injunction, the licensee assumes the status of a trespasser, after the revocation of the licence. In such case, such a trespasser cannot maintain a suit for injunction against the true owner. Of course, in such case, the said licensee, who assumes the status of a trespasser, can maintain a suit for injunction against any person other than the true owner. Here, in this case, the defendant is the true owner. Therefore, when the licence has been revoked, the licensee cannot maintain a suit for injunction against the defendant, who is the true owner.
22. On the above aspect, the learned counsel for the respondent has invited the attention of this Court to the decision in Eldho v. Manual and others [2014 (3) KLT 787], wherein it was held that in a case in which there was implied revocation of a licence simplicitor, a licensee cannot protect RSA.86/2014 : 17 : his possession against the licensor and of course, he could protect his possession against persons other than the licensor.
23. Lastly, the learned counsel for the appellant has canvassed an argument that the lower appellate court ought to have construed Ext.A1 licence deed by applying the principles contained in the cy-pres doctrine. Normally, the principles of cy-pres doctrine can be applied only in the cases of Trust created through Trust deeds either express or implied, or in the case of Wills or gift deeds containing terms of Trust.
24. In Odgers' Construction of Deeds and Statutes, Fifth Edition, it has been stated in page 34 that-
"A deed that is intended and made to one purpose may enure to another, for if it will not take effect in that way it is intended it may take effect in another way; provided it may have that effect consistently with the intention of the parties."
25. Page 89 of Odgers' (supra) contains the decision RSA.86/2014 : 18 : in Re Thorp [(1943) 1 All England Reporter 257], wherein it was held:-
"In Re Thorp there was a legacy to "The Tangier Society for the Prevention of Cruelty to Animals." There was no such society, but society called "the People's Dispensary for the Sick Animals of the Poor" had a branch at Tangier and the testatrix had subscribed to a fund called "The Tangier Fund." It was held that the People's Dispensary was intended by the legacy, which was to be taken by it and earmarked for the Tangier work. Even where a court has to reject a gift for uncertainty, if it is charitable, the court may be able to apply the cy-pres doctrine."
26. This is not a case wherein the cy-pres doctrine can be applied. The appellant has no case that any Trust has been created and that the defendant is in the position of a settler. Ext.A1 licence was entered into with specific objectives like the construction of a community hall, library room, reading room, park, nursery school, clinic and tuition centre.
RSA.86/2014 : 19 :
27. The learned counsel for the appellant has argued that a perusal of Ext.A1 will not give rise to a view that all such constructions should be carried out and that it is discretionary on the part of the plaintiff to decide as to what among the aforesaid should be constructed. The argument precisely is that even if there is a failure to construct the nursery school, park, tuition centre or clinic, it cannot be said that the licensee has violated the terms of Ext.A1. In order to construe a document and to gather the intention of the parties, the document as a whole has to be construed and the express words used in it have to be considered. On going through the proposal forwarded by the plaintiff and the acceptance of the proposal by the defendant as contained in Ext.A1 and the further clauses including clause No.7 incorporated therein, it seems that the licence was granted by the defendant to the plaintiff specifically for all the aforesaid objectives and, therefore, it cannot be said that the plaintiff has discretion in establishing the objectives RSA.86/2014 : 20 : contained in Ext.A1.
28. It has been answered that the appellant is not entitled to the protection under Section 60(b) of the Easements Act. Similarly, when the licence has already been revoked, the status of the plaintiff has become as one of a trespasser and, therefore, the plaintiff cannot sustain a suit for injunction against the defendant, who is the true owner. From the discussions made above, it has clearly come out that the judgment of the lower appellate court does not suffer from any illegality. Hence, this Second Appeal is only to be dismissed and I do so.
In the result, this Regular Second Appeal is dismissed. There is no order as to costs. All pending interlocutory applications in this appeal are closed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/23/02 // True Copy // PA to Judge