IMPORTANT POINT
Lease and Licence--Distinction between--It is never a nomenclature in the document that would govern the decision when the issue is put-to test as to whether a document as a lease or a licence--The essential feature that distinguishes a lease from licence is always a transfer of interest in the demised property in a transaction of lease while a licensee does not involve any such transfer of interest.

K.Kannan, J.

1. I. Grounds of consideration :

Of the three grounds of eviction namely i) non-payment of rent ii) sub- letting iii) bona fide requirement of the landlord, only two grounds sans the ground of non-payment of rent remain for consideration, especially after the tenant rendered the rent at first hearing. The grounds found favour that both the Rent Controller and the Appellate Authority and the tenant that faces eminent prospect of eviction is the revision petition before this Court.

II. Difference between lease and license :

2. Even before adverting to the merits of the claim, as regards the grounds, the revision petitioner contends that the property in dispute is governed by a document under Ex.A-2 which refers to a transaction of leave and licence and consequently the provisions of Rent Control Act are not applicable. The counsel for the petitioner places reliance on the judgment of the Supreme Court in Delta International Ltd. v. Shyam Sunder Ganeriwala, 1999(2) RCR(Civil) 471 : 1999(1) RCR(Rent) 447 : AIR 1999 SC 2607 which states that when the agreement specifically recited the nature of transaction as licence and parties were conscious that the document if treated as a lease it would be illegal to create a sub-lease, the agreement would have to be regarded as `leave and licence and not as `lease. The Supreme Court was laying down the law while considering the relevant provisions under the West Bangal Premises Tenancy Act, 1956. This decision assumes significance in the context of the maintainability of the petition by a landlord that only if there was a relationship of landlord and tenant and if the character of the first defendant in possession was that as licensee the petition itself could not have been entertained. This aspect has been considered both by the trial Court as well as the Appellate Court by directing attention to the law in its correct prospective. It is never a nomenclature in the document that would govern the decision when the issue is put to test as to whether a document as a `lease or a `licence. The essential feature that distinguishes a lease from licence is always a transfer of interest in the demised property in a transaction of lease while a licensee does not involve any such transfer of interest. The further notable distinction is that the lease is heritable while license is personal to the grantee. The legal possession of the property is inevitably transferred to a tenant under lease while in a transaction of license the legal possession continues with the licensee and the licensee has a mere right of user of the premises in a particular fashion mentioned under the document. Apart from these distinctions, there is another aspect which is the most predominant consideration namely the intention of the parties.

III. Application of relevant parameters shows the transaction as lease :

3. The Courts below have considered that the possession of the property had been actually handed over to the first respondent and rents had also been paid and receipts issued as `rent. More significantly, the document itself referred to a "licensee" as a person that includes his heirs and assigns. The heritability of the property held in possession by the license is anathema to consider the document as a transaction of license. The exclusive possession of the property with no form of control by the landlord and the heritability of the property are sufficient ingredients to discern that it is only a case of lease and not a licence. The considerations that have weighed with the Rent Controller and the Appellate Authority, in my view, are unassailable and the case could not have been thrown out at the threshold in the manner sought for by the revision petitioner. Indeed such an argument cannot be canvassed by the revision petitioner, since they were not the original licensees themselves. It was the contention that the husband of the first revision petitioner and his brother who was the first respondent