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IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Tukaram Sawant .... Appellant.
Versus
Mangalalaxmi Chinubhai Shah others .... Respondents.
First Appeal No. 299 of 1977, decided on 14/15-12-1988.
Advocates appeared :
R.T. Walawalkar, for appellant.
Shiraz Rahimtoola, i/by Law Charter, for respondents.
Section 52
See Transfer of Property Act, 1882, Section 105.
Sections 60 and 52-Suit for eviction against licensee- To carryon business- Benefit of irrevocability clause claimed - Held-Licensee cannot claim the benefit merely because he had carried out business of permanent nature by incurring expenditure.
The important question is not as to the nature of the work that has been done by the Appellant. The major hurdle that he has to cross is whether the work was done by him by acting upon the licence. A licensee is not entitled to plead irrevocability because he has carried out a work of permanent nature by incurring expenditure. He has to show that what he has done viz. executing a work of permanent nature, is pursuant to a right granted to do upon the land of the grantor something which would be unlawful in the absence of such a right.
The fact that money was spent on the installation of a crusher and a bench at the site, and, further assuming that this entitled expenditure would not make the licence irrevocable as is assumed by the Defendant.
The inaction of a licensor to the encroachments or advances made by a bare licensee does not convert that bare licence into a licence coupled with the grant of an interest in the property.
Section 105-Lease--Tenancy created by manager of the property - Not the sole owner-Held, entitled to create a tenancy, and is binding upon all the owners.
A co-owner managing the property can bind the other co-owners, unless her action be a fraud upon the rights of the other co-owners.
The transaction whatever it was to the benefit of the body of owners and not to their detriment. It is unthinkable that they were unaware or had not connived at Kashibal had done. Had it been otherwise, action would have certainly been taken against the Defendant much prior to the sale in favour of the Plaintiffs. One managing the property on behalf of the body of owners is entitled to create a tenancy, and the tenancy so created, is binding upon all the owners. Therefore, the alleged disability of one of the co-owners to create a tenancy does not stand scrutiny.
Sections 105 and 106 - Easements Act, Section 52 Lease and licence-Lease of a transfer of right- Licence is a privilege-Held-No transfer of Interest in property could not be lease is a licence.
Section 105 of the Transfer of Property Act, 1882 defines lease, lessor lessee and rent.
A lease of an immovable property is the transfer of a right to enjoy such property and the service or other thing to be rendered by lessee, is called the rent.
The distinction between a lease and the licence is well known though difficult of application, unless the facts are properly determined. A lease is the transfer of a right to enjoy the premises, whereas a licence is a privilege to do something on the premises which otherwise would be unlawful Transaction is a lease if it grants an interest in the land, it is a licence if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties chose to put up on the transaction though relevant, is not decisive.
Because there was no transfer of an interest in property, the transaction in favour of the Defendant could not be said to be a lease. A lease of an open space is permitted in law.
Sections 13 (1) (e) and 15-A (as amended in 1973)-Decree for eviction-Challenged Held-A licence in respect of open premises is not protected from eviction.
The benefit of protection given to licensees under Maharashtra Act 17 of 1973 is not available to every licensee. The benefit is restricted to a licensee in occupation "of any premises or any part thereof, which is not less than a room. A licence in respect of open premises is not protected.
2. Shobha Sadan comprising a multi-storeyed structure together with land appurtenant thereto formerly belonged to Shyamaldas Gordhandas Gandhi and others. The building stands on land owned by the Bombay Municipal Corporation (BMC). One of the Gandhis was a lady known as Kashibai. Respondents/plaintiffs acquired the property under a deed of assignment dated 6 June, 1973.
3. Plaintiffs' case was that the lease under which their predecessors-in-title and they held the land on which stood the structure Shobha Sadan belonged to the BMC and one of the conditions which bound the lessees was not to use or permit the open land to be built upon except with the previous consent of the BMC Defendant was permitted by the Gandhis to use a small portion touching the southern side gate measuring 3' x 10'. This was not given to his exclusive possession All that he was entitled to do on the said space was, to put up a crusher for extracting sugarcane juice and selling the same. The open space was kept for exit and entry of the tenants and occupants of the building. Defendant was to use the open space without any structure permanent or otherwise thereon. The licence in favour of the defendant came to an end with the assignment in favour of the plaintiffs. Defendant was not paying any compensation either to the Gandhis or to the plaintiffs He had no right, title or interest in the space or any part thereof entitling him to continue his occupation Defendant with the object of putting forth a claim on the property, on or about 13 December 1974, unauthorisedly constructed a shed with roof of corrugated asbestos cement sheets covering an area of 14' x 20'. The shed had not been put up after obtaining the BMC's permission. In fact the BMC had called upon the plaintiffs to evict the defendant, his being there on the site itself being a violation of the clause earlier mentioned. As a result of the doings of the defendant, plaintiffs had to give an undertaking that they would get his fixtures removed from the land. As an earnest of this commitment, they were required to make a deposit of Rs. 200/- with the BMC. Repeatedly called upon to vacated defendant has ignored the demand and hence this suit. They claim possession of the space measuring 14' x 20' after removal therefrom of the defendant as also the fixtures and annexures brought in by him. Plaintiffs further pray for past damages totalling to Rs. 2750/- calculated at the rate of Rs. 150/- per month. Pendente-lite and future damages are requested to be ascertained under a decretal direction.
4. Defendant in his written statement denied the assignment pleaded by the plaintiffs. It was not true to say that Shobha Sadan was put up on the land subject to the condition about keeping the appurtenant land vacant. He was not a mere licensee and that too of site measuring 3' x 10'. A licence not being created there was no question of it having come to an end with the transfer of title vis-a-vis Shobha Sadan to the plaintiffs. The land had been given on lease to him on rental of Rs. 15/- per month. The lease was granted by the then owner of the building to him in or about 1986 After taking the site on lease, he erected a shed resting on wooden poles. The original rent of Rs. 15/- was increased from time to time and last the aggregate rent was Rs. 70/- per month. Rent at this rate had been paid to the Gandhis. Plaintiffs were taking advantage of the fact that rent receipts had never been issued by their transferors. He was ever ready and willing to pay the rent at the same rate to the plaintiffs, who however refused to accept the same. In case the tenancy set up by him was not
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