Andhra HC (Pre-Telangana)
Regional Manager, Apsrtc vs H.S. Sudhindra Aras on 22 September, 2005
Equivalent citations: AIR2006AP207, 2006(1)ALD31, AIR 2006 ANDHRA PRADESH 207, 2006 (4) ALL LJ NOC 851, 2006 (2) ALL LJ NOC 232, 2006 (2) AJHAR (NOC) 680 (AP), 2006 (4) AKAR (NOC) 446 (AP), 2006 A I H C (NOC) 269 (AP), (2006) 5 ALL WC 5237, (2006) 1 UPLBEC 813, (2006) 1 ANDHLD 31
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The respondent was granted a licence by the petitioner, in the year 1997, to run a canteen at Ramayampet Bus Stand. The licence was valid upto the year 2002. Some disputes persisted between the parties, as to the violation of conditions of licence. When the petitioner sought to cancel the licence, on the ground that the respondent violated the conditions, the respondent filed O.S.No. 10 of 2001. A decree was ultimately passed in that suit, granting injunction against the petitioner herein, to be operative, till the end of the licence period, i.e. 2002. Thereafter, the petitioner initiated steps for evicting the respondent. The respondent, in turn, filed O.S. No. 17 of 2003, in the Court of Senior Civil Judge, Medak, for the relief of perpetual injunction. He also filed I.A. No. 296 of 2003, for temporary injunction. The trial Court allowed the I.A., through its order dated 1 1-6-2003. The petitioner filed C.M.A. No. 17 of 2003, in the Court of III Additional District and Sessions Judge (Fast Track Court), Medak. The appeal was dismissed on 30-9-2004. Hence, this revision.
2. Sri P. Vinayaka Swamy, learned Counsel for the petitioner, submits that the respondent was only a licensee, and the question of granting any injunction, against the petitioner, does not arise. He contends that whatever may have been the justification for the Courts below in granting injunction, during the subsistence of licence, there was no basis for them, in granting such a relief, after the expiry of the licence period.
3. Sri S. Sharath. Kumar, learned Counsel for the respondent, on the other hand, submits that though the licence had expired in the year 2002, the petitioner has been receiving rents from the respondent, and in that view of the matter, the licence can be deemed to have been renewed. He contends that till the extended licence is validly terminated, the petitioner is not entitled to evict the respondent.
4. A bus stand was established and maintained by the petitioner at Ramayampet. There is a provision for canteen, for the use of passengers. After inviting tenders for grant of licence, to run the canteen, it has selected the petitioner herein, as a licensee. Accordingly, an agreement was entered into, granting licence, for a period of five years, i.e., from 1997 to 2002. On several occasions, the petitioner imposed fine upon the respondent, alleging that the latter had violated the conditions of licence. When steps were taken to terminate the licence, the respondent filed O.S.No. 10 of 2001, for the relief of perpetual injunction. The suit was ultimately decreed, granting injunction against the petitioner herein, to be in force, till the end of the licence period. After expiry of the licence, the petitioner took steps to evict the respondent. At that stage, the present suit was filed, and an order of temporary injunction was obtained by the respondent.
5. The basis for the claim of the petitioner was that though the licence had expired, there is a deemed renewal of the same, on account of the fact that the petitioner received the rent, after expiry of the licence. The trial Court proceeded on the basis that receipt of rent/licence fee, under Ex.A-7 dated 9-5-2003, gives rise to a presumption, as to the continuance of licence. The petitioner made an attempt, to convince the trial Court, as well as the lower appellate Court, by stating that the respondent violated the conditions of licence, such as, by selling bakery items, cool drinks, etc, and tried to justify its action.
6. In this regard, the distinction between a licence and a lease needs to be noticed. The lessee is delivered possession of the leased property, with the commencement of the lease. The lessor can recover the possession of the same, only after the lease is terminated, in accordance with law. A lease, under the provisions of Transfer of Property Act, which continues to be in force, in one form or the other, even after expiry of the agreed period, till it is terminated in accordance with law. In such cases, the lessee may assume the character of a tenant holding over, or a tenant at sufferance. However, he would be entitled to continue in the leased premises, even after the expiry of the lease period. There may be slight difference, as to the nature of ancillary rights, on account of these variations. However, his basic entitlement, to remain in possession of the property, is recognized in law.
7. In contrast, a licence governed by Chapter VI of the Indian Easements Act, for short "the Act", does not entail any delivery of possession of property, akin to the one under a lease. A licensee is permitted to use the licensed premises, without any legal right to possession thereof. Section 62 of the Act provides for various circumstances, under which a licence can be deemed to have been revoked. Under Clause (c) thereof, if the licence is for a specified period, it is deemed to have been revoked, with the expiry of that period.
8. Even where a licence is revoked, during subsistence of licence, the only facility that the law extends to him, is the one under Section 63 of the Act, viz. reasonable time, to enable him to remove the goods, which he was allowed to place in the licensed property.
9. The Act does not prescribe any separate procedure for cancellation of licences, comparable to Section 106 of the Transfer of Property Act. Therefore, a licensee has no right to continue in the licensed premises, after expiry of licence period. The licensor is not under obligation, either to issue a notice similar to the one under Section 106 of the Transfer of Property Act, or to take any other steps.
10. The effect of receipt of rent, or licence fee, after the expiry of the lease or licence, as the case may be, is also not uniform. Acceptance of the rent by the lessor, after the determination of the lease, would bring about a renewal from year to year, as specified under Section 106 of the Transfer of Property Act (see Section 113). Section 111 of the Transfer of Property Act provides for various modes of determination of lease. Some of the circumstances are provided for, under Clause (g) thereof, such as, the breach of, express conditions by a lessee, renunciation by him, of such character, or adjudication of a lessee as insolvent, etc. Section 112 of the Transfer of Property Act is to the effect that where a lessor, being in a position to determine the lease, by forfeiture, under Clause (g) of Section 111, accepts the rent from the lessee, even after the occurrence of conditions therefor, will be deemed to have waived it. Such is not the case with licences. A licence, once revoked by operation of law, or act of parties, does not get revived, simply because the licence fee is received after such revocation.
11. Another aspect, which needs to be taken note of, is that even where a licensee is evicted, while the licence is subsisting, the only remedy available for the licensee so evicted, is to claim compensation. Section 64 of the Act is clear and unequivocal to this effect. In National Airport Authority and Ors. v. Vijaydutt , the Madhya Pradesh High Court took the view that a licensee can never be said to be in possession of a licensed premises, and even where he was evicted wrongfully, he was at the best entitled for monetary compensation, and not for restoration of possession.
12. In the instant case, the Courts below have undertaken extensive discussion of the facts and situations that existed while the licence was in force. The fact that the licence period had already expired and the legal consequences flowing from it were not properly appreciated. The whole approach was contrary to the specific provisions of the Act. Therefore, the order of temporary injunction, granted by the trial Court and upheld by the lower appellate Court, cannot be sustained.
13. The C.R.P. is accordingly allowed, and the order of temporary injunction, granted in favour of the respondent, is set aside. There shall be no order as to costs.
14. Learned Counsel for the respondent submits that his client needs sometime, to remove the articles, and that he may be granted reasonable time, therefor. The petitioner also has to take necessary steps to issue tender notice, to select a new licensee. Therefore, the respondent is granted two months time, from today, to remove all his articles from the premises in question, failing which, it shall be open to the petitioner to take necessary steps to resume full control over the premises.