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Judgment
The present petition under Article 226 of the Constitution of India has been filed by the petitioner seeking the following reliefs :-
"(i)Call for the entire material record pertaining to the instant controversy from the respondents for its kind perusal;
(ii)Direct respondents to restore the possession of 'Rani Kothi' situate in barman to the petitioners;
(iii)Direct the respondents to initiate appropriate proceedings in favour of petitioners to grant permanent lease/transfer the property for the educational purpose of 'Rani Kothi', Barman, District Narsinghpur (M.P.);
(iv)Direct the respondents to take speedy action on Annexure P/6.
(v)Direct the respondent No.2 & 3 to take suitable action the matter in question after taking suitable direction from respondent No.4.
(vi)Any other relief which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may be granted in favour of the petitioner;
(vii)Cost of the petition be awarded to the petitioner."
It is uncontroverted fact that the property in dispute called 'Rani ki Kothi' situated in Barman, District Narsinghpur was gifted by Maharani Vijaya Raje Scindia to Janpad Sabha, Narsinghpur vide gift deed dated 03.12.1955 (Annexure-P/1) subject to certain conditions. The Administrator, Janpad Assembly, Narsinghpur vide order dated 08.10.1964 (Annexure-P/2) permitted the Principal, Shriniwas Rao Telang N.E.S. College, Barman to utilize it for hostel purposes from the date of its occupation till further order on monthly rent of Rs.40/- subject to certain conditions. A notice was issued by the Chief Executive Officer, Janpad Panchayat, Kareli dated 10.01.2006 (Annexure-P/4) directing the Principal of Shriniwas Rao Telang N.E.S. College, Barman to vacate 'Rani ki Kothi' within three days. Later, possession of 'Rani ki Kothi' was taken over in December, 2010. This petition is filed feeling aggrieved by the action of the respondent, Janpad Panchayat in forceful taking over the possession of 'Rani ki Kothi', Barman.
3 . Learned counsel for the petitioner, in addition to the facts and grounds mentioned in the petition, contends that the 'Rani ki Kothi', Barman was gifted to Janpad Sabha, Narsinghpur for education of boys and girls, for Dharamshala and Maternity house at Barman subject to certain conditions. The Janpad Sabha, later working as Janpad Assembly, granted the premises on lease to the Principal of Shriniwas Rao Telang N.E.S. College, Barman on monthly rent of Rs.40/- for hostel purpose subject to certain conditions. The Principal and the educational institution were utilizing the premises of 'Rani ki Kothi' for educational purposes and also for the residence of Principal and Professors as per the need of the educational institution. They did not violate any of the condition for grant of premises. The respondent no.2 forcefully took over the possession of 'Rani ki Kothi'. Thereafter, the premises and the land is not being utilized for educational purpose in violation of condition of gift deed (Annexure-P/1). Learned counsel submits that the petitioner-Society wishes to utilize the premises for educational purposes. They were illegally deprived of the premises. Therefore, the respondents be directed to restore the possession of 'Rani ki Kothi' to the petitioner and appropriate directions be passed for grant of permanent lease/transfer of 'Rani ki Kothi' for educational purposes to the petitioner.
4 . Per contra, learned counsel for the respondent no.2 opposes the petition and contends that the permission to occupy the premises was granted in favour of the Principal of Shriniwas Rao Telang N.E.S. College, Barman subject to certain conditions. The Principal had violated the conditions by utilizing the premises for his own residence. Later, it was abandoned, therefore, the Janpad Panchayat has taken over the possession of the premises. The petitioner has no right of possession over the premises. Further, the relief as claimed is not amenable to writ jurisdiction under Article 226 of the Constitution of India, therefore, the petition is meritless and deserves to be dismissed. Learned counsel further contends that the petition suffers from legal infirmity as no resolution on part of the New Education Society is available to authorize the President to prosecute this petition. Learned Counsel referred to law laid down in Prabhat College vs. Barkhatullah University, Bhopal (order dated 31.07.2012 passed in W.P 15298/2010) to buttress his contentions.
5 . Learned counsel for rest of the respondents, in addition to the grounds mentioned in the reply, submits that the petitioner has no right over the disputed property 'Rani ki Kothi'. They were permitted to occupy the premises subject to certain conditions which stand violated. Therefore, the possession of the premises was reclaimed by the donee, Janpad Panchayat. Learned counsel also supports the contention that in absence of any resolution authorising the Principal to prosecute the petition on behalf of the society, the present petition is not maintainable.
6 . In reply, learned counsel for the petitioner submits that the petitioner is a registered Society which can sue and be sued through its President Radheshyam Agrawal. The President of the Society is authorised to file present petition on behalf of the Society, therefore, the petition is maintainable.
Heard learned counsel for the parties and perused the record.
8 . This petition is filed by the petitioner- New Education Society, Napier Town, Jabalpur through its President Radhe Shyam Agrawal. Section 6 of the Societies Registration Act, 1860 provides that every registered society may sue or be sued in the name of the President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. The petitioner has not filed any rules, regulations or resolution of the governing body authorizing Shri Radhe Shyam Agrawal as President to file present writ petition on behalf of New Education Society.
9 . The order dated 08.10.1964 (Annexure-P/2) granted permission to occupy 'Rani ki Kothi' for hostel purpose to "Principal, Shriniwas Rao Telang N.E.S. College, Barman" whereas, the present petition is filed by the New Education Society which is a separate legal entity. There is nothing on record to substantiate that Shri Radhe Shyam Agrawal, President of New Education Society has the same legal entity as the Principal, Shriniwas Rao Telang N.E.S. College, Barman, in whose favour the permission was granted vide order dated 08.10.1964. The order does not mention New Education Society or Shri Radhe Shyam Agrawal as Principal of Shriniwas Rao Telang N.E.S. College, Barman. Thus, the authority of the petitioner to prosecute the relief claimed on behalf of the Principal, Shriniwas Rao Telang N.E.S. College, Barman is questionable.
Be that as it may, the lease as defined under Section 105 of the Transfer of Property Act is a transfer intervivos of interest in the immovable property whereas, the order dated 08.10.1964 is an ex-parte executive order granting conditional permission to occupy the premises of 'Rani ki Kothi' for a specific purpose till further orders.
11 . In case of Associated Hotels of India Ltd. v. R.N. Kapoor , reported in (1960) 1 SCR 368 : AIR 1959 SC 1262, it was held that-
28.There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas Section 52 of the Indian Easements Act defines a licence thus:
“Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.”
Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington [(1952) I All ER 149] , wherein Lord Denning reviewing the case-law on the subject summarizes the result of his discussion thus at p. 155:
“The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.”
The court of appeal again in Cobb v. Lane [(1952) I All ER 1199] considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somervell, L.J. stated:
“… the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties.”
Denning, L.J. said much to the same effect at p. 1202:
“The question in all these cases is one of intention : Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land?”
The following propositions may, therefore, be taken as well established : (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties — whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. Judged by the said tests, it is not possible to hold that the document is one of licence. Certainly it does not confer only a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellants. The covenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. The solitary circumstance that the rooms let out in the present case or situated in a building wherein a hotel is run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document-writer hardly conceals the real intent. I, therefore, hold that under the document there was transfer of a right to enjoy the two rooms, and, therefore, it created a tenancy in favour of the respondent.
The order dated 08.10.1964 (Annexure-P/2) is examined in the light of aforesaid proposition of law. The administrator of the Janpad Assembly, Narsinghpur allotted 'Rani ki Kothi' at Barman on payment of monthly rent of Rs.40/- to the Principal, Shriniwas Rao Telang N.E.S. College, Barman for hostel purpose until further orders. It was mentioned in the order that the rent is concessional in view of educational purpose and it is for the maintenance of the building. The order was made subject to following conditions :-
"(1)That no addition or alteration will be carried out by the said Principal without obtaining specific written permission from this office.
(2)That it will be vacated on one month's notice at any time required by this Administration.
(3)That it will not be used for other purposes.
(4)That rent is payable in advance."
The tenure of the order shows that absolute interest was not created in favour of the Principal, Shriniwas Rao Telang N.E.S. College, Barman rather he was permitted to occupy the premises of 'Rani ki Kothi' for a specific purpose subject to specific conditions, untill the premises is required by the administrator. This ex-parte executive order was apparently a license for use and occupation of 'Rani ki Kothi' for hostel purpose.
A licence may be revoked by the guarantor at his will except where it is coupled with the transfer of property or the licensee has executed a work of permanent nature and incurred expenses in the execution (Section 60 of the Indian Easement Act, 1882). The Principal of Shriniwas Rao Telang N.E.S. College, Barman was given a notice dated 10.01.2006 (Annexure-P/4) by the Chief Executive Officer, Janpad Panchayat, Kareli inter-alia stating that the 'Rani ki Kothi' is used for residence of Teachers (Professors) against the condition of the order, therefore, it should be vacated within three days. The Principal replied to the notice through a letter dated 24.01.2006 (Annexure-P/5). The material on record shows that the Tehsildar, Kareli and the Executive Officer, Janpad Panchayat, kareli took over the possession of 'Rani ki Kothi' on 23.12.2010. The petitioner has requested for restoration of possession of 'Rani ki Kothi'.
Once the license is revoked either expressly or impliedly through conduct and the licensee is removed from the possession of the immovable property, the licensee cannot claim re-entry as a matter of right. The licensee may sue for damages, therefore, the relief of restoration of possession cannot be granted in exercise of writ jurisdiction.
The petitioner has no vested interest in 'Rani ki Kothi' by virtue of order dated 08.10.1964, therefore, the petitioner has no right to claim permanent lease or transfer of property for educational purpose.
1 6 . In view of the above discussion, this Court is of considered opinion that the petitioner is not entitled to the relief claimed. The petition being meritless, is dismissed.