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3. The representative facts may be noticed from C.W.J.C. No. 5606/91. There are two petitioners in this case. They are 'traders' carrying wholesale business of sale and purchase of food grains notified as 'agricultural prodeuce' within the meaning of Section 2 (1) (w) read with Section 2(1)(a) of the Market Act. The case of the petitioners is that the 'traders' are not required to pay anything else than the market fee payable under Section 27 of the Act and the licence fee payable under Rule 98 of the Rules, in the name of 'rent' or 'occupational charges' for the occupation of shops and godowns situate at the market yard. However, they were forced to execute lease deeds in respect of the premises stipulating payment of fixed rent @ Rs. 250 per month. Demands for arrears were raised and certificate proceedings were initiated for its realisation. On 2-9-1988 the Managing Director of the Board issued directives in the matter of fixation of rent in respect of buildings, godowns etc. situate at the market yards. According to the petitioners the Board and/or its Managing Director has no power to fix rent. It is the market committee which can fix the rent by written agreement duly executed in the manner laid down in Section 31 of the Act vide decision in the case of Syed Ezaz Ahmad v. State of Bihar, 1992(2) BLJ 736. Enhancement of rent is not permissible in view of the provisions of Transfer of Property. Act, 1882 and Bihar Building (Lease, Rent, Eviction and Control) Act, 1981 (in short, the BBC Act) without taking recourse to the procedure laid down therein, Indeed, the Market Act does not contain any provision for determination of rent/occupational charges. In any view of the matter, the term of the market committee having expired, with the passage of time, no market committee exists and, as such, in the absence of any notification under Section 9(5) of the Act, any enhancement of rent/occupational charges in purported exercise of power under Section 37 of the Act is illegal and without jurisdiction.

4. The respondents have filed counter-affidavit and a supplementary counter-affidavit taking the stand that the traders were paying rent pursuant to agreement executed by them with the Market Committee; they started objecting only after it was enhanced. The agreement provides for enhancement. The shops-cum-godowns were constructed as part of infrastructure to provide facilities to the traders after taking loan from the Bank @ 9.5%. Being a 'local authority' the provisions of the BBC Act are not applicable. In the supplementary counter-affidavit it has been stated that the impugned guidelines contained in the letter dated 2-9-1988 have been issued to rationalise and standardise the rent and to do away with anomalies in the rates prevailing in the different Market areas/It is relevant to mention here that by the said letter dated 2-9-1988 different market yards in the State of Bihar have been classified in four categories on the basis of trading potential at different places. Adverting to the respondents' case, there stand further is that the Market Committees are bound by the directives/guidelines issued by the Board. As regards the petitioners' case of the Market Committees not being in existence, the stand of the respondents is that the Market Committee is a body corporate having perpetual existence under Section 17 of the Act. The Market Secretary is a permanent post under Section 20 of the Act. He is also appointed by the Board and bound to carry on affairs and discharge the duties and functions of the Market Committee and further bound to implement the directive of the Board.

11. According to the petitioners, the Market Committee is a juristic entity vested with certain powers and functions under the Act and the Rules or bye-laws. It has let out premises in question to the traders on certain terms and conditions on the basis of written agreement and it is not competent to enhance the rent without executing fresh agreement which it cannot do as it has ceased to be in existence in the eye of law. Where there is vacum, it is urged, the benefit should go to the individual - as held in Dr. (Miss) Aletta Grace Bell v. Dr(Miss) S. Tirkey, AIR 1996 SC 538. Further, it is said that the relationship between the parties being that of lessor and lessee the rent cannot enhanced except by taking recourse to the provisions of the BBC Act Also, the market committee being a statutory authority cannot travel beyond the scope of power conferred on it by the statute. Reliance is placed on Marathwada University v. Seshrao Balwant Rao Chavan, AIR 1989 SC 1582. It is also submitted that the action of State and its instrumentalities even in contractual field should be just and fair and guided by relevant considerations and in public interest. Reliance in this regard is placed on Dwarka Das Marfatia & Sons v. Board of Trustees, Bombay Port, AIR 1989 SC 1642, and LIC of India v. Consumer Education & Research Centre, (1975) 5 SCC 4182.

14. According to the respondents the relationship between the parties is that of licensor and licensee and not that of lessor and lessee. Further, according to the respondents, being 'local authority' the Market Committee stands out of the purview of the BBC Act in view of provisions of Section 32 of that Act. Having considered the submissions of the Counsel for the parties and examined the terms and conditions of the agreement I am satisfied that it is a case of licence and not lease.

15. Whether it is a case of lease or licence depends on the intention of the parties evidenced by the terms and conditions of the deed. If the deed creates interest in favour of the transferor entitling him to exclusive possession and right of enjoyment it would be lease. Where however the deed simply permits the transferor to use the land without right to exclusive possession it would be a case of licence. Indeed, in the instant case, the very agreement describes the petitioners as licensees. The preface of the agreement states, "whereas the licensee has applied for license to use a building for trade". Clause Thirdly states that "the licensee shall not occupy the said building or without the permission of the market committee use or permit use of the said building for the purposes other than those for which the license is granted." In the fifth clause it is said "the licensee shall not by reason of being allowed to use such building, acquire or be entitled to any right or interest whatsoever, save and except the right, enjoy or use the said building subject to the conditions of this agreement". In clause Seventhly it is provided, "if the Market Committee requires the vacation of the said building within the use and enjoyment of the licensee under this agreement, the licensee shall without objection comply with a requisition for its vacation within one month time after receipt thereof. In Clause Ninthly it is stated "if the license is not renewed, the licensee shall vacate the premises within 30 days". These provisions leave little room for doubt that it is a case of licence and not lease.