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Judgment
Mishra, J.—The Plaintiff/respondent herein has obtained under a deed of agreement the privilege to keep and maintain a shop and use the
premises of the defendant/appellant for the said purpose. The agreement between the defendant/appellant described as the licensor on the one
hand and the plaintiff/respondent described as the licensee on the other hand has got recitals to the effect that the licensor is the owner of the Taj
Coromandal Hotel, that the licensee desired to obtain the privilege and accordingly approached and applied to the licensor for permission of the
licensor for using, keeping and maintaining the shop under the control and supervision and administration of the licensor with the object of providing
amenities and facilities to the residents, customers and visitors of the hotel. The terms and conditions incorporated in the agreement are as follows:
The Licensor shall be entitled at any time doing the subsistence of this Agreement to call upon the Licensee by him/her fifteen days notice in writing
to shift him/her/its business to any other shop made available by the Licensor and the Licensee shall comply with such requisition. The Licensee
agrees to enter into an agreement in respect of such alterative accommodation offered to it/him/her upon terms mutatis mutandis to those contained
in this Agreement.
It is expressly agreed that a purely personal privilege by way of a licence is being given to the licensee to use the shop with the object of providing
facilities and amenities to the residents, customers and visitors of the Hotel and the Licensee shall not transfer or otherwise allow anyone else to
avail of the Licence given to it/him/her. It is further expressly agreed that no interest or demise of any kind whether by way of tenancy or otherwise
is being granted of created in favour of the Licensee, in the shop (sic) part thereof. It is agreed that the shop shall (sic) times be under control and
supervision of the licensor and the licensor shall retain dominion and lawful possession of the shop and shall have the right to direct the mode and
manner of the use of the shop so as to effectively provide for facilities and amenities to residents, customers and visitors of the Hotel, keeping in
line with the decor and standard of the licensor''s Five Star Hold reputation.
The Licence is granted to the licensee personally and the licensee hereby undertakes not to make any change in his/her/its organisation constitution
of the firm either by introducing new partners of associates directly or indirectly in his/her/its business or by converting the ownership into any other
form whatsoever.
The Licensee shall not assign his/her/its business as a going concern far consideration or otherwise. Nor shall he/she/it allow any other person to
carry on his/her/its business in his/her/it''s place without the prior written consent of the licensor which the licensor shall be under no obligation to
give.
The Licensee shall permit the Licensor to retain with the Licensor a set of duplicate keys of the shop and the Licensee here, permits the Licensor to
make use of the said keys during any emergency such as fire, Hot, etc. The Licensee shall not remove or replace the lock on the outer door or
change the locking device on the said outer door of the shop, without the knowledge of the Licensor.
The Licensee shall decorate, furnish and maintain the internal structure of the shop in a manner which will be approved by the General Manage, of
the Hotel and shall carry out repair works of the shop at such times and in such manner as may be directed by the General Manager of the Hotel.
If the shop is not repaired or maintained as (sic)esaid, the Licensor shall be entitled to repair or maintain the shop and on its doing so and making a
demand in respect of cost thereof, the Licensee shall forthwith pay the same without raising any dispute.
The licensee shall keep the shop in clean and orderly conditions to the satisfaction of the General Manner/Manager of the Hotel and its shall be
lawful for any of the officers of the Licensor to enter upon and inspect the shop for ensuring compliance with this condition.
The licensee shall not damage the shop or any part of the Hotel premises and in the event of any damage being caused to the same intentionally or
otherwise, by the Licensee, or his/her/its employees or invitees or customers, the Licensor shall be entitled to repair the damage or make the
requisite replacement and call upon the Licensee to reimburse the cost thereof which the Licensee undertakes to pay forthwith on demand.
The Licensee shall use the shop for the purpose of selling articles mentioned in the Schedule attached hereto and forming part of this Agreement
and shall not use the shop for any other purpose whatsoever. The Licensee shall n(sic)carry on the business of a restaurant or a cafeteria or of
selling liquor or any other business carried on by the Licensor in the hotel which may compete with the business of the Licensor.
The Licensee shall not stoic or bring or keep in the shop heavy articles so as to injure or damage the Shop, or keep goods of combustible or
inflammable nature or any contraband goods.
The Licensee shall not stock or sell any goods or articles which are not suitable or it for sale in a modern Five-Star Hotel or the prices whereof are
not reasonable or are not exhibited on the article itself, or any article of an obnoxious or undesirable nature. The General Manager/Manager of the
Hotel shall be entitled to call upon the Licensee to remove any merchandise or article which violates this condition and to refund the excess price
charged to the consumer and the Licensee shall be bound forthwith to comply with such requisition.
The Licensee all accept from the customers only Indian Currency and shall not accept any foreign currency unless the Licensee possesses and
displays a valid money changer''s licence issued to him/her/it by the Reserve Bank of India in a prominent place in the shop.
The Licensee shall obtain all the Licences and permissions required by law and he/she/it shall be responsible to take out, obtain and keep in force
and pay for all such necessary licences and permits or the purpose of carrying on his/her/its business.
The Licensee shall, subject to the provisions of any law in force in the City of Madras, keep open the shop for the use and benefit of the residents,
customers and visitors of the Hotel from 8:00 a.m. to 12:00 midnight, throughout the year or for such hours as may be prescribed by the General
Manager/Manager of the Hotel from time to time.
The Licensee shall observe and comply with all the provisions of any law including rules and regulations of any local authority in force from time to
time which may be applicable including the provisions of the Sales Tax Acts, Employees State Insurance Scheme, Provident Fund Act, Foreign
Exchange Regulation Act, Hotel Receipts Tax Act, 1980, etc.
The Licensee shall furnish the names and addresses of the members of his/her/its Staff who will work at the Shop, and shall inform the changes, if
any, therein from time to time. The Licensee shall not employ at the shop any person, (1) who is not of a good character or (2) is suffering from
any contagious or infectious disease or (3) is not suitably attired, or (4) incompetent to undertake the assignment given to him/her or (5) prohibited
to be employed under the provisions of any laws/statutes/rules and regulations of any local authority in force, from time to time.
The Licensee shall inform the Licensor of the name, telephone number and the address in Madras, of the representative of the Licensee who could
be contacted at any time of the day or night by phone or otherwise in case of an emergency.
The General Manager/Manager of the Hotel shall be entitled to call upon the Licensee to submit any member of his/her/its staff for medical
examination by a doctor who may be appointed by the General Manager and the Licensee shall be bound to forthwith comply with such requisition
at the cost of the Licensee.
The Licensee shall ensure that all the persons employed by the Licensee behave in an orderly and disciplined manner and that the said employees
are prohibited from carrying on any unfair activities, demonstrations, outside the Hotel or in the vicinity of the Hotel within a distance of ac hundred
metres or outside the shop in the Hotel. The said employees shall be prohibited to place any placards, shout any slogans or demonstrate either
directly or indirectly through other persons whether member of any trade union or otherwise and the License shall always undertake and ensure
that the activities or any acts of commission or omission by the persons employed by the Licensee do not harm the reputation of the Hotel or cause
any damage to the Hotel property.
The Licensee and the members of his/her/its staff shall not use any route to go of come out from the shop or any toilet or wash room other than that
which the General Manager/Manager of the Hotel shall permit them to use from time to time.
The Licensee or the members of his/her/its staff or his/her/its representative shall not visit any guest of the Hotel in his/her room or come near the
main entrance, lobby and other public areas of the Hotel. The Licensee, the members of his/her/its Staff or representative shall not do any act
which may cause nuisance or annoyance to the management of the Hotel or its customers or visitors or residents....
In the event of the Licensee committing breach of any of the terms and conditions of this Agreement, the Licensor shall be entitled to terminate the
Agreement and the Licensee granted by giving 30 (thirty) days'' written notice to the licensee of its intention to do so and on such termination, the
licensee shall remove himself, his servants, agents and belonging from the shop and also pay all the amounts due and payable by him/her/it under
this Agreement before leaving in shop. In the event of termination of licensee as aforesaid, the licensee shall not claim or be entitled to any refund of
licence fees paid in advance, provided that the Licensor shall not be entitled to exercise its right to terminate the Agreement as aforesaid unless the
Licensor shall have first given notice in writing to the Licensee Specifying the breach in respect of which the said right of termination is intended to
be exercised by the Licensor and the Licensee shall have failed to remedy such breach within 30 days of receipt of such notice from the Licensor.
This Licence shall forthwith stand terminated in the event of Licensee death, insolvency, liquidation, winding up, re-constitution, dissolution, etc., of
retirement from the business or closure of Licensee''s business for any reasons whatsoever and it shall be lawful for the Licensor to enter upon the
Shop immediately and take the possession of the Shop....
On the termination or expiry of the Licensee, the Licensee shall not have the right to enter the premises of the Licensor except for the purpose of
removing its goods.
In the event of any dispute arising out of or in any way touching the licence, including the question whether the Licensee is entitled to carry on
exclusively the business under this licence, or interpretation of any of the terms thereof, the same shall he referred to any Arbitrator mutually agreed
upon by the Licensor or the Licensee and it not then by the Joint Arbitrators of the Licensor and Licensee or by an umpire within the meaning of
the Indian Arbitration Act as may be in force and the decision of one Arbitrator, Joint Arbitrators or the Umpire, as the case may be, shall be final
and binding upon the Licensor and the Licensee.
The powers conferred upon the Licensor by this licensee and all notices, consents, directions and approvals to be given by the Licensor shall he in
writing and may unless otherwise expressly provided by any of the conditions aforesaid, be exercised and given by the General Manager/Manager
or any other officer authorised by him for that purpose.
The plaintiff/respondent has moved this Court for a declaration in (sic) alia that she is entitled to be in possession and enjoyment of the suit
property as a tenant and to continue to carry on her business and consequentially has sought the relief of permanent injunction against the
defendant/appellant from interfering with her occupation and possession of the suit property. This, she has done because she has been served with
a letter by the defendant/appellant to vacate the premises and according to her case, except by following the due procedure as prescribed by law,
the defendant/appellant cannot evict her. She has applied for a temporary injunction and her application for the said relief has been granted by the
trial Court. The defendant has preferred this appeal.
According to the defendant/appellant, the plaintiff/respondent has been inducted as a licensee on the terms and conditions as afore quoted and
since she never got possession in the sense of occupation at her will as a tenant, she does not have any claim in the property as a lessee and
consequentially on the expiry of the licence and at the will of the licensor, she has to vacate and hand over vacant possession.
The law on the subject has been stated by now so candidly by the Supreme Court in its judgment that today, it will be an exercise wholly
unnecessary for stating the law that to ascertain whether a document created a licence or lease, the substance of the document must be preferred
to the form and the real test is the intention of the parties whether they intended to create a lease or a licence. If the document created an interest in
the property, it is a lease, but if it only permits another to make use of the properly or which the legal possession continues with the owner it is a
licence and 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.
The above came as the statement of law in a minority judgment of the Supreme Court in the case of Associated Hotels of India Ltd. Vs. R.N.
Kapoor, and has been reiterated ever since in the judgments of the Supreme Court in the case of Mrs. M.N. Clubwala and Another Vs. Fida
Hussain Saheb and Others, , Sohan Lal Naraindas Vs. Laxmidas Raghunath Gadit, and Board of Revenue and Others Vs. A.M. Ansari and
Others, .
In a recent judgement of this Court by us in the case of T. Sekaran v. Thiruvalluvar Transport Corporation (O.S.A. Nos. 18 and 19 of 1994-
judgment dated 25th January 1994 side reported in 1994 1 L.W. 463), we have pointed out that what could be found in section 52 of the Indian
Easements Act is not even a right of casement, much less, any interest in the property and it is distinguishable from a lease where the interest is
created in favour of the lessee and if a particular way or under certain terms while it remains in possession and control of the owner thereof, it is a
licence. On a consideration of all such aspects of law, we have stated in the said judgment that a licensee''s possession is not that of a person in
settled possession and. he is thus not entitled to say that since he has the right to continue in possession until evicted under some decree or order of
the Court, he is entitled to continue in possession.
Learned Counsel appearing for the respondent/plaintiff, however, has submitted that on the basis of what is reasonably inferred from the terms
and conditions of the agreement between the parties, it is fair at least for the purpose of prima facie determination to hold in favour of the
plaintiff/respondent that she has got prime facie possession and until determined otherwise, such possession should not be allowed to be interfered
with even by the owner of the property, that is to say, the defendant/appellant. He has for the said purpose emphasised that where a person is in
settled possession of property even on the assumption that he has no right to remain on the property, he cannot be dispossessed by the owner of
the property except by recourse to law. He has placed reliance upon several judgments of the Courts in the country including the judgment of the
Supreme Court in the case of Municipal Corporation of the City of Baroda Vs. Babubhai Himatlal, ). There can hardly be any exception to such a
rule of equity that in this country where the rule of law alone has to prevail, no one should be permitted to take law in his own hands. At the same
time, however, we have pointed out in our judgment above referred to that in the case of Krishna Rao Mahale (Supra), the Supreme Court has
pointed out that there was no question of the plaintiff of the said case entering upon the premises as a trespasser at all as she has entered into
possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law, but on the facts of the case
before it, the Supreme Court did not examine the question whether there was a licence or a sub-lease.
That a suit for declaration with consequential injunction shall lie and that a Court can in a given circumstance grant temporary injunction if the
cardinal principles for grant of injunction are satisfied and that in case it is possible to suggest that the respondent/plaintiff has entered upon the
premises in her own right and has settled in possession thereof irrespective of any claim of the plaintiff for the possession of the premises as the
licensee and as a consequence, the Court must protect her interests until she is evicted in due course of law, are questions which in our opinion do
not arise in this case at all. Learned Counsel for the respondent/plaintiff has cited before us the following case law where principle as to the rule of
possession and principles for grant of injunction are indicated, but in our opinion, such cases need not be considered in the instant judgment.
(1) Lakhmi Chand Vs. Sarla Devi,
(2) Yeshwant Singh v. Jagdish Singh (AIR 1968 SC 620)
(3) Puran Singh and Others Vs. The State of Punjab,
(4) M. Annapumaiah v. M. Narasimha Rao (AIR A.P. 253)
(5) Shakuntala v. Hira Nand Sharma (AIR 1986 Del 27)
(6) Marybai Marshal Pimenta and Another Vs. Ramnath Gopal Bhuskute and Others,
(7) M/s. Patil Exhibitors (Pvt.) Ltd. v. Bangalore City Corporation (AIR 1986 Kar 194)
(8) Sadhu Ram Vs. Gram Panchayat, Pastana,
7-A. In our view, the instant case is fully covered by the judgment of this Court in the case of T. Sekaran v. Thiruvalluvar Transport Corporation
(supra) and we cannot, but order in the instant case that the respondent/plaintiff has not been able to establish a prima facie case of settled
possession by her in the premises in question, which possession can be declared and permitted by an order of the Court. She, for the said reason,
is not entitled to any order of temporary injunction.
Before we close our judgment, however, we may indicate that the plaintiff/respondent has been in business with the appellant/defendant for quite
some time and In case, the appellant/defendant is continuing with the same kind of business in future and extending licences to others, there is no
reason why it should not extend the same privileges to the respondent/plaintiff. We, for the said reason, granted several adjournments to parties to
come to some understanding. A proposal, however, has been presented to us on behalf of the appellant/defendant in which it says in so many
words that the respondent/plaintiff is carrying on a lucrative business elsewhere in the city of Madras including the appellant/defendant''s group
Hotel Connemara under the name and style of Craft ''N'' Gems and that it would endeavour its best to accommodate the plaintiff in a suitable place
within the hotel complex after the completion of the renovation work in the shopping area, if such shopping area is made available within the hotel
complex and add that in the event of there being no shopping area of all in the hotel and/or the shopping area is not run by outside shop-owners,
then the appellant/hotel will endeavour its best (sic) accommodate the plaintiff in any of its group hotels in South India.
The plaintiff/respondent, however, has not expressed her willingness to accept the above. For the reasons as we have found that the
plaintiff/respondent has not established a prima facie case for possession, we are inclined in interfere with the impugned judgment. The same is
accordingly all aside. The appeal is allowed. The application in O.A. No. 549 of 1991 is dismissed. There shall, however, be named as to costs in
both the Courts.