JUDGMENT
K.A. Swami, C.J.
1. This writ appeal is preferred against the order dated 25.6.1993 passed by the learned single Judge in W.P. No. 1615 of 1990. As the writ petition has been dismissed, the petitioner has come up in appeal.
2. In the writ petitioner, the petitioner/appellant sought for quashing of the notification dated 29.1.1990 in Na.Ka.A.4/15423/89 proposing to put up the right to collect fees in the weekly market for the period from 1.4.1989 to 31.3.1990 at the Pudukottai Municipality. The notification was challenged by the petitioner on the grounds that he is the lessee of the market in question as the same was leased to him under the indenture dated 5.4.1989 that though it was for the period between 1.4.1989 and 31.3.1990 it would not be open to the Municipality to evict the petitioner on the expiry of the period of lease without resorting to the procedure known to law. The Municipality opposed the writ petition and contended that the weekly market in question was not leased to the petitioner/appellant and he was only a licensee of the right of collecting fees in the weekly market for the period from 1.4.1989 to 31.3.1990, that right came to an end on 31.3.1990. Therefore, the petitioner/appellant was not entitled to continue to collect the fees from the weekly market beyond 31.3.1990. As such the Municipality was entitled to conduct an auction of the right to collect the fees from the weekly market for the period subsequent to 31.3.1990 and it was that right which was put up for auction in the notification dated 29.1.1990. In the writ petition, the petitioner had secured an interim order staying the proposed auction. Consequently, no auction was held and by this process the petitioner continues to collect the licence fees from those who conduct business in the market in question.
3. The learned single Judge has held that the indenture dated 5.4.1989 is a licence and not a lease; that even if it is held to be a lease it has come to an end on 31.3.1990 and as such the petitioner has no right, title or interest in the market in question, as such he is not entitled to the relief sought for in the writ petition. Accordingly, the learned single Judge has dismissed the writ petition.
4. In the light of the contentions urged by learned Counsel for the appellant, the points that arise for consideration in this appeal are as follows:
(i) Whether the indenture dated 5.4.1989 executed by the Municipality in favour of the appellant, can be held to be lease?
(ii) Whether the appellant is entitled to any of the reliefs sought for in the writ petition?
5. In order to decide as to whether the indenture dated 5.4.1989 is a lease or a licence, it is necessary to advert to the relevant portions of the very document itself. Throughout the document, the petitioner/appellant has been described as a licensee only. We are aware of the fact that mere description of the party as a licensee or lessee is not the determining factor as to whether the trans action is a lease or a licence, but while doing so we are only stating the salient features of the indenture which describes the petitioner as a licensee only. The second feature of the document is that it has come into existence consequent to the public auction held on 15.2.1989. In that public auction, what was put up for auction was the right to collect the fees in the weekly market at Pudukottai Municipality during the period 1.4.1989 to 31.3.1990. The appellant/petitioner offered the highest bid of Rs. 7,00,150 for the period his bid was accepted and the deed was executed in his favour. In the very opening portion of the document it has been stated thus:
Whereas the licensee’s bid of Rs. 7,00,150 per year in the public auction held on 15.2.1989 for the right of collecting the fees in the Weekly Market, Pudukottai during the period from 1.4.1989 to 31.3.1990 was accepted by Municipal Council in its resolution No. 638, dated 28.2.1989 subject to the terms and conditions hereinafter contained and also specified in the auction notice.
Thus, it has been specifically stated that what was put up for auction was only the right of collecting the fees in the weekly market, Pudukottai during the period from 1.4.1989 to 31.3.1990 with the conditions that are stated in the indenture dated 5.4.1989. Therefore, it is clear that what was granted to the petitioner/appellant was only the right to collect the fees. The right of inspection of the premises was retained by the Municipality inasmuch as it was one of the obligations of the licensee to permit the officers and servants of the Municipal Council authorised to inspect the premises. It is also further stated in the indenture that the petitioner/appellant shall not use or rent the stall of premises for dwelling or purposes other than that for which it is intended and not assign or under let, part with the possession and benefit of the licence or of the liberties and privileges granted under the deed without first obtaining the written consent of the Municipal Council.
6. However, it is contended by learned Counsel for the appellant that the appellant was given exclusive possession, therefore it was a lease. In support of it he relied upon the following portion in the document:
The licence shall be bound by the conditions laid down in the sale notice published on 6.1.1989. He shall maintain the market shops and stalls and he is in possession with the right of leasing the shops and stalls. The licensee shall hand over possession of the buildings and vacant lands on the expiry of term in the same condition on which he is now put in possession.
It is not possible to agree with the contention, because the aforesaid paragraph cannot be read in isolation and it has to be read alongwith the other portions of the document. His one of the rules of interpretation or construction of a document that it must be read as a whole. A reading of the document as a whole leaves no doubt that it is not a lease, but it is only a licence.
7. Learned counsel for the appellant has placed reliance on a decision of the Supreme Court in Qudrat Ullah v. Bareilly Municipality Board , wherein also a question arose whether the document concerned therein was a licence or a lease. On the construction of the document, their Lordships of the Supreme Court held that it was only a lease and not a licence. The principles on the basis of which the document was held to be a lease, if applied to the facts of the case on hand, would show that the document in the instant case cannot at all be construed to be a lease. It may be relevant to notice the following principles to which reference was made in the aforesaid decision : Merely because the relationship is described as that of licensee and licensor, it will not be a decisive consideration, what is necessary to be seen is the intention of the parties. In the instant case, we have pointed out that the intention of the parties is explicitly stated and what was auctioned was the right of collecting the fees in the weekly market, and not to lease the market. Another test stated is that the exclusive possession, and in that regard it is stated that the agreement, if it grants a right of exclusive possession, is not in itself conclusive evidence of the existence of a tenancy but it is a consideration of the first importance. In the instant case, we have pointed out that no exclusive possession has been given to the appellant/petitioner and the right of inspection has been retained and the appellant has been injuncted from assigning or parting with possession and benefit of the licence or of the liberties that have been granted to him under the document. In addition to this, it is also necessary to point out that the notification issued for auctioning the right of collecting the fees in the weekly market stated that the auction purchaser shall collect a certain amount from the various types of stalls. Applying the aforesaid tests it is not possible to hold that the document in question in the instant case is a lease deed. As already pointed out, the Municipality never intended to lease out the market in question and no exclusive possession had been given to the petitioner. What was auctioned and when was put up for auction, was the right of collecting the fees in the weekly market. No exclusive possession of the market building as such was given to the appellant. It is a case in which the use of the market in a particular way for a particular purpose, namely, for collecting the fees from the weekly market was given on certain conditions, while the Municipal Council retained its control over the market building. The appellant was not given the property, i.e. market to the exclusion of the Municipal Council. The petitioner/appellant also did not understand that what was given to him was a lease. Taking into consideration all the circumstances surrounding the document and the terms of the document, we came to the conclusion that the document in question is only a licence. Therefore, the learned single Judge is justified in holding that the document in question is a licence and not a lease.
8. For the reasons stated above, we see no ground to admit the appeal and the same is rejected.