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Judgment
I. Panduranga Rao, J.—This revision filed petition is filed by the plaintiff. He a suit for a declaration that the period of lease is three years commencing from 19-8-1987 and for consequential injunction.
The facts leading to the filing of the suit, in brief, are as follows.
In the Vaikuntam Queue Complex in Tirumala, the petitioner was granted a licence to cater to the needs of the pilgrims by supplying food stuffs to them while they are waiting in the queue on a monthly rent of Rs. 21,000 for a period of three years from 19-8-1987 to 18-8-1990. According to the revision petitioner, what has been granted in his favour is a lease but not licence.
The grievence of the petitioner is that the Executive Officer, Tirumala Tirupathi Devasthanams has issued a lease as per Ex. A-1 in pursuance of the Board''s resolution whereas the Deputy Executive Officer, Tirumala Tirupathi Devasthanams, Tirupathi without giving any notice has issued Ex. A-2 notice reducing the term of lease from three years to one year which is illegal. In the suit filed by him in O.S.No. 182 of 1988 on the file of the Additional Subordinate Judge''s Court, Tirupathi, the learned Subordinate Judge directed that the status quo as on 18-1-1989 should continue. Thereupon, the petitioner preferred C.M.A. No. 4 of 1989 on the file of the Court of the Additional District Judge, Tirupathi and filed LA.No. 126 of 1989 for temporary injunction. The appellate Court has dismissed that I.A. mainly on the grounds that the transfer under Ex. A-1 is a licence but not lease and that if there is improper revocation of the lease, the remedy to the petitioner is only for damages but a suit for injunction does not lie.
Aggrieved by the said decision, the plaintiff has preferred the above revision-petition.
The learned counsel for the petitioner submitted that both the courts below erred in being guided by the nomenclature used in Ex. A-1 which is not correct; that on a proper reading of Ex. A-1, it is evident that what has been granted to the petitioner is a lease but not a licence; that even otherwise, as per the terms of Ex. A-1 the licence can be terminated only by giving one month''s notice; that such a notice, admittedly, is not given and that the action of the Deputy Executive Officer in reducing the term of the lease or licence from three years to one year is illegal.
The learned counsel for the petitioner relied upon the decision of the Supreme Court in Qudrat Ullah Vs. Municipal Board, Bareilly, and argued that whether a deed is a lease or a licence depends on the intention of the parties and that if an interest in immovable property entitling the transferee to enjoyment is created, it is a lease and if permission to use the land without right to exclusive possession is alone granted, it is a licence. He has also placed reliance upon the decision of Allahabad High Court in Ram Niwas v. Nawabganj Municipality AIR 1976 All 24 wherein it is held that by merely saying that a transaction was a licence and not a lease, the nature of the transaction could not be changed and that a lease could not be converted into a licence merely by calling it a licence. It is held in that decision that the transfer of exclusive possession by an owner must be deemed to be indicative of the intention of the parties that they wanted the transaction to be lease and not a licence.
The learned counsel for the petitioner also placed reliance upon the decision of the Supreme Court in Associated Hotels of India Ltd. Vs. R.N. Kapoor, in which the distinction between ''lease" and "licence" has been pointed out. It is held that where the question is whether the document is a lease or a licence, it if the substance of the agreement that matters and not the form, for otherwise clever drafting can camouflage the real intention of the parties.
Relying upon the terms in Clause (i) in Ex. A-1 that the licence fee is fixed at Rs. 21,000 per month including the rent for the room to be provided in the queue complex, the learned counsel for the petitioner vehemently argued that in the light of that recital that a room would also be provided to the petitioner, exclusive possession of the room was given to the petitioner and that it amounts to lease but not a licence. The Supreme court in Mrs. M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, held that the fact that the premises was in exclusive possession of a person would not make him a lessee. According to their Lordships, if exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, it would be construed as a lease but not a mere licence. The determination of the transaction depends upon the intention of the parties and the intention has to be gathered from the recitals of the document as a whole. It is held in Konchada Ramamurthy Subudhi and Another Vs. Gopinath Naik, , that the real test to determine whether the parties intended to create a lease or licence is: if the document creates an interest in the property, it is a lease; but if it only permit''s another to make use of the property, of which the legal possession continues with the owner, it is a licence.
In the light of the above decisions, it has to be examined whether the real intention of the parties as per the terms of Ex. A-1 is to create an interest in the immovable property viz., a room in Vaikuntam Queue Complex Ex. A-1 only indicates that the licence fee is fixed at Rs. 21,000 per month including the rent for the room to be provided in the Queue Complex.-There is no other indication in Ex. A-1 that exclusive possession of that room has been granted to the Relying upon that clause, and also the recitals in Clauses (ix) and (x) of Ex. A-1 that the licensee shall pay three months rent in advance as deposit and that the rent should be paid before 10th of every succeeding month, the learned counsel for the petitioner tried to submit that what has been granted under Ex. A-1 is a lease but not licence. As I observed already, there is absolutely no indication in Ex. A-1 that exclusive possession of the room was given to the petitioner under the terms of Ex. A-1. On the other hand a complete reading of Ex. A-1 clearly shows that the real intention of the Devasthanam Authorities is to provide facility to the petitioner for sale of eatables to the devotees waiting for darshan of Srivaru in Vaikuntam Queue Complex. The other recitals in Ex. A-1 clearly indicate that what has been granted to the petitioner is only permission to supply food stuffs for sale to the devotees visiting Tirumala and that no interest in immovable property has been created. The mere fact that the petitioner has been permitted to use a room in the Queue Complex does not amount to creating an interest in the immovable property. At any rate, Ex. A-1 does not indicate that right to exclusive possession of the room was intended to be created in favour of the petitioner. The mere use of the word "rent" in Clause (ix) and (x) of Ex. A-1 does not lead to an inference that exclusive right in immovable property has been created in favour of the petitioner. Clause (i) of Ex. A-1 shows that the amount of Rs. 21,000 fixed per month between the parties is the licence fee.
For all the above reasons, I agree with the decision of the courts below that what has been granted to the petitioner under Ex. A-1 is only a licence but not lease of immovable property as contended by the learned counsel for the petitioner.
Even otherwise, the term of licence has expired by 18-8-1990 and the petitioner cannot get any relief in the suit as filed by him. That being the case, the petitioner cannot seek the relief of injunction as the period of licence has already expired.
The learned counsel for the petitioner relying upon the decision in M. Annapurnaiah v. M. Narasimha Rao argued that if the tenant continues to be in possession after the termination of lease, he is a tenant by sufferance; that his possession is juridical and that he is entitled to injunction restraining the landlord from interfering with his possession. In the light of my finding that the transaction covered by Ex. A-1 is a licence but not a lease, the above decision of the Division Bench has no applicant to the facts of this case. Even construing the transaction as a lease, it is represented by the learned counsel for the petitioner that before the petitioner could obtain copy of the order of the trial court and file an appeal before the lower appellate court, the Devasthanam authorities have prevented the petitioner from supplying the food stuffs. As such, the petitioner is no longer acting under the terms of Ex. A-1 at present and, therefore, no injunction can be granted in his favour.
In any view of the matter, therefore, the petitioner cannot get any relief in this revision petition. The revision-petition is accordingly dismissed, but without costs.