{"id":169582,"date":"2002-05-03T00:00:00","date_gmt":"2002-05-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-corporation-of-calicut-vs-k-sreenivasan-on-3-may-2002"},"modified":"2018-05-31T14:07:57","modified_gmt":"2018-05-31T08:37:57","slug":"the-corporation-of-calicut-vs-k-sreenivasan-on-3-may-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-corporation-of-calicut-vs-k-sreenivasan-on-3-may-2002","title":{"rendered":"The Corporation Of Calicut vs K. Sreenivasan on 3 May, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Corporation Of Calicut vs K. Sreenivasan on 3 May, 2002<\/div>\n
Author: B Agrawal<\/div>\n
Bench: S. Rajendra Babu, B.N. Agrawal<\/div>\n
           CASE NO.:\nAppeal (civil) 3283  of  2002\n\n\n\nPETITIONER:\nTHE CORPORATION OF CALICUT\n\n\tVs.\n\nRESPONDENT:\nK. SREENIVASAN\n\nDATE OF JUDGMENT:\t03\/05\/2002\n\nBENCH:\nS. Rajendra Babu & B.N. Agrawal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
B.N. AGRAWAL,J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThe judgment impugned in this appeal  has been passed by  Kerala High
\nCourt in a Second Appeal whereby the same has been allowed, appellate
\ndecree, upholding that of the trial court dismissing the suit, set aside and the suit
\nhas been decreed.\n<\/p>\n
\tThe short facts are that the appellant-Corporation, which was established
\nby an Act promulgated by Kerala\t Legislature, owned a building\t constructed by
\nit in the year 1972 and immediately after construction\tthe plaintiff-respondent
\nwas put in its occupation as a licensee on payment of licence fee at the rate of
\nRs. 4325\/- per month wherein he was running a lodging house as well as a
\nrestaurant.  As the  plaintiff-respondent defaulted in making payment of licence
\nfee, the licence was terminated on 1.3.1989 whereafter the plaintiff’s continuance
\nin occupation of the building in question became unauthorised leading  to
\nissuance of a  notice\tby the Estate Officer under Section 4 of the Kerala Public
\nBuildings (Eviction of Unauthorised Occupants) Act, 1968 (hereinafter referred to
\nas `the Act’) which was duly served upon the plaintiff-respondent, requiring him
\nto show-cause as to why an order of eviction be not passed against him in view
\nof the fact that his occupation became unauthorised within the meaning of
\nSection 2(f) of the Act inasmuch as the licence granted in his favour was
\nterminated. Thereupon, on 23.6.1989 the Estate Officer after satisfying himself
\nthat the building was in unauthorised occupation of the respondent passed an
\norder of his eviction therefrom.   The said order of eviction was challenged by the
\nplaintiff-respondent before the Civil Court by filing a suit for permanent injunction
\nrestraining the defendant-appellant from evicting the plaintiff from the building
\npursuant to the aforesaid order of eviction stating , inter alia, that the plaintiff was
\ninducted as a tenant and not licensee and in case he was found to be a
\nlicensee, his occupation could not be treated to be unauthorised within the
\nmeaning of Section 2(f) of the Act, as such the Estate Officer could not have
\nassumed\t  jurisdiction and passed  order of eviction.  The suit was contested by
\nthe defendant-appellant on  grounds, inter alia, that the plaintiff was a licensee
\nand not a lessee, that occupation of licensee after termination of the licence
\nbecame unauthorised within the meaning of Section 2(f) of the Act, as such the
\nEstate Officer was quite competent to pass an order of eviction and the suit was
\nbarred under Section 15 of the Act.\n<\/p>\n
\tThe trial court dismissed the suit observing that it was not necessary to go
\ninto the question as to whether the transaction was lease or licence as even if it
\nwas a case of licence, the same was covered by the provisions of Section 2(f) of
\nthe Act, the Estate Officer had jurisdiction to decide the matter and pass an order
\nof eviction and consequently the suit was barred under Section 15 of the Act.
\nOn appeal being preferred, the trial court’s decree was affirmed with a finding
\nthat the transaction in question was licence and not lease.  Thereupon, the
\nplaintiff-respondent filed a Second Appeal before the Kerala High Court which
\nallowed the same, set aside judgment and decree passed by the appellate court
\nupholding those of the trial court and decreed the suit on the ground that the
\nEstate Officer had no jurisdiction to entertain the matter and pass order of
\neviction under the provisions of the Act as occupation of the plaintiff-respondent
\ncannot be treated to be unauthorised within the meaning of Section 2(f) of the Act
\nas case of licensee is not covered therein and consequently the bar created by
\nSection 15 of the Act did not operate.\t  Challenging  decision of the High Court,
\nthe present appeal has been filed by special leave.\n<\/p>\n
\tShri T.L. Vishwanatha Iyer, learned Senior Counsel appearing on behalf of
\nthe appellant, in support of appeal submitted that  case of a licensee is covered
\nby Section 2(f) of the Act and the High Court was not justified in holding
\notherwise and decreeing the suit on the ground that the Estate Officer had no
\njurisdiction to pass the order of eviction.  On the other hand, Shri  P.
\nKrishnamoorthy,\t learned Senior Counsel appearing on behalf of the respondent,
\nsubmitted that occupation of plaintiff, who was a licensee, cannot be treated to
\nbe unauthorised within the meaning of Section 2(f) of the Act and  consequently,
\nthe Estate Officer having no jurisdiction to pass the order of eviction, the suit has
\nbeen rightly decreed by the High Court.\t\tIn view of the rival submissions,  the
\nquestion that arises for consideration of this Court is:\n<\/p>\n
 “whether continuance in occupation of a licensee
\nafter expiry or termination of the authority for
\noccupation granted under the  licence can be treated
\nto be unauthorised  within the meaning of Section 2(f)
\nof the Act?”.\n<\/p>\n
\tThe necessity of enacting Kerala Public Buildings (Eviction of
\nUnauthorised Occupants) Act, 1968 by the Kerala Legislature  appears to be that
\nthe tendency to unauthorisedly occupy public buildings, either from its very
\ninception without any authority whatsoever or continuing in its occupation after
\nthe authority under which a person    was allowed to occupy had either expired or
\nhad been determined for any reason whatsoever, was galloping fast and keeping
\nin mind the  time taken for eviction under ordinary law by resorting to civil suit in a
\nprotracted litigation, a speedy remedy has been provided by enacting such
\nspecial legislation therefor.  `Public building’ has been defined under Section 2(d)
\nof the Act to mean any building or part of a building belonging to or taken on
\nlease\tor   requisitioned by ,\t  or   on   behalf   of,   the\t Government    or   a
\nlocal\t authority   or\t  a   company or a Corporation.\t  `Corporation’ has been
\ndefined under Section 2(aa) to mean a Corporation established or constituted by
\nor under any Central or State Act and owned or controlled by the Government of
\nKerala.\t  Under Section 3 of the Act the State Government is empowered to
\nappoint any Gazetted Officer below the rank of District Collector as Estate Officer
\nfor exercising the powers under the Act and    Section 4 empowers  the Estate
\nOfficer\t to initiate a proceeding for eviction of those persons who are found to be
\nin unauthorised occupation of any public building whereas under Section 5 he is
\ncompetent to pass an order of eviction.\t Section 10 provides for an appeal
\nagainst the order of eviction.\tSection 15 of the Act creates a bar to the institution
\nof a suit challenging the order of eviction passed by the Estate Officer as well as
\nthat passed in\tappeal.\t Section 2(f) of the Act which defines the expression
\n`unauthorised occupation’  may be usefully quoted hereinbelow:-\n<\/p>\n
“S.2(f).- “unauthorised occupation”, in relation to any
\npublic building, means the occupation by any
\nperson of the building without authority for such
\noccupation and includes the continuance in
\noccupation by any person of the public building
\nafter the authority (whether by way of lease or any
\nother mode of transfer) under which he was allowed
\nto occupy the building has expired or has been
\ndetermined for any reason whatsoever.”\n<\/p>\n
\t\t\t\t\t[Emphasis added]<\/p>\n
The definition of expression `unauthorised occupation’ contained in Section 2(f)
\nof the Act is in two parts.  In the first part the said expression has been defined to
\nmean  the occupation by any person of the public building without authority for
\nsuch occupation.  It implies occupation by a person who has entered in
\noccupation of any public building without lawful authority as well as occupation
\nwhich was permissive at the inception but has ceased to be so. The second part
\nof the definition is inclusive in nature and it expressly covers continuance in
\noccupation by any person of the public building after the authority (whether by
\nway of lease or any other mode of transfer) under which he was allowed to
\noccupy the building has expired or has been determined for any reason
\nwhatsoever.  This part covers a case where a person had entered into
\noccupation legally under valid authority, but who continues in occupation after the
\nauthority under which he was put in occupation has expired or has been
\ndetermined.  The words\t`whether by way of lease or any other mode of transfer’
\nin this part of the definition are very wide in amplitude and would, undoubtedly,
\ncover a case where a person has come into occupation of a public building under
\nan authority granted in his favour by the licence, as a licensee, which has expired
\nor has been determined.\n<\/p>\n
`Lease’ has been defined under Section 105 of the Transfer of Property
\nAct, 1882, relevant portion whereof reads thus:-\n<\/p>\n
“S.105. Lease defined.- A lease of immovable
\nproperty is a transfer of a right to enjoy such property,
\nmade for a certain time, express or implied, or in
\nperpetuity, in consideration of a price paid or
\npromised, or of money, a share of crops, service or
\nany other thing of value, to be rendered periodically or
\non specified occasions to the transferor by the
\ntransferee, who accepts the transfer on such terms.”\n<\/p>\n
`Licence’ has been defined under Section 52 of the Indian Easements Act, 1882
\nto mean a grant by one person to another or to a definite number of other
\npersons, a right to do, or continue to do, in or upon immovable property of the
\ngrantor, something which would, in the absence of such right, be unlawful and
\nsuch right does not amount to an easement or an interest in  the property.
\nSection 53 specifies the persons who can grant a licence and Section 54 lays
\ndown that the grant may be express or implied whereas Section 55 defines
\naccessory licences.  According to Section 56 only certain types of licences
\nenumerated thereunder are transferable and not all.  Duties of the grantors are
\nspecified in Sections 57 and   58 whereas Section 59 says that grantor’s
\ntransferee is not bound by the licence.\t Section 60 provides grounds for
\nrevocaiton of licence and Section 62 the contingencies under which a licence is
\ndeemed to be revoked whereas Section 61 lays down that revocation of licence
\nmay be express or implied.  Rights of a licensee, whose licence has been
\nrevoked in accordance with law, to remain in occupation of the property for a
\nreasonable time after its revocation, have been enumerated in Section 63.
\nUnder Section 64 even if a licensee is evicted, though grounds for revocation of
\nlicence do not exist or forcefully evicted, his only remedy is to recover
\ncompensation from grantor and not to resume occupation which undoubtedly
\nwould never mean that a licensee can be forcefully evicted by the grantor without
\ntaking recourse to the provisions of law.  We may usefully refer to the provisions
\nof Section 52 of the Indian Easements Act, 1882 which run thus:\n<\/p>\n
“S.52. Licence defined.- Where one person grants to
\nanother, or to a definite number of other persons, a
\nright to do, or continue to do, in or upon the
\nimmovable property of the grantor, something which
\nwould, in the absence of such right, be unlawful, and
\nsuch right does not amount to an easement or an
\ninterest in the property, the right is called a licence”\n<\/p>\n
\t\t\t\t\t[Emphasis added]<\/p>\n
\tAt this juncture, it may be useful to state that  similar provisions have been
\nmade in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971
\n(hereinafter referred to as `the Central Act’) enacted by the Parliament wherein
\nalso an Estate Officer is authorised to pass an order of eviction of persons who
\nwere found to be in unauthorised occupation of a public premises and expression
\n`unauthorised occupation’ has been defined under Section 2(g) of the Central Act
\nas under:-\n<\/p>\n
“S.2(g).- `unauthorised occupation’ in relation to any
\npublic premises, means the occupation by any person
\nof the public premises without authority for such
\noccupation, and includes the continuance in
\noccupation by any person of the public premises after
\nthe authority (whether by way of grant or any other
\nmode of transfer) under which he was allowed to
\noccupy the premises has expired or has been
\ndetermined for any reason whatsoever”.\n<\/p>\n
\tThis Court while dealing with distinction between `licence’ and `lease’ has
\nenumerated in various decisions as to what are the rights of a licensee.  In the
\ncase of\t Associated Hotels of India Ltd. vs. R.N. Kapoor,  AIR<\/a> 1959 SC 1262, it
\nwas observed at page 1269 thus:-\n<\/p>\n
“.if a document gives only a right to use the property in a
\nparticular way or under certain terms while it remains in possession
\nand control of the owner thereof, it will be a licence.\t The legal
\npossession, therefore, continues to be with the owner of the
\nproperty, but the licensee is permitted to make use of the
\npremises for a particular purpose.  But for the permission, his
\noccupation would be unlawful.”\n<\/p>\n
\t\t\t\t\t\t\t[Emphasis added]<\/p>\n
\tIn the case of\t B.M. Lall vs.\tM\/s. Dunlop Rubber Co. (India) Ltd.. & Anr.,
\nAIR<\/a> 1968 SC 175,  there was an agreement between the employer and the
\nemployee under which occupation of the employee in the premises was to cease
\nnot only on the termination of his employment but also on his transfer from one
\nstation to another and on his death.  The employer was at liberty to allot any
\nother flat to the employee on his transfer to another station and  assign the
\npremises fallen vacant by virtue of transfer to any other employee.  In these
\ncircumstances, the Court observed at page 178 thus:\n<\/p>\n
“All the terms of the agreement are consistent with the expressed
\nintention that the officer is permitted to occupy the flat as a
\nlicensee and nothing in the agreement shall be deemed to create
\nthe relationship of landlord and tenant.  The agreement on its true
\nconstruction read in the light of the surrounding circumstances
\noperates as a license and not as a tenancy.  It creates no interest in
\nthe land.  It gives only a personal privilege or license to the servant
\nto occupy the premises for the greater convenience of his
\nwork.”\n<\/p>\n
\t\t\t\t\t\t\t\t[Emphasis added]<\/p>\n
\tIn the case of Qudrat Ullah . vs. Municipal Board, Bareilly.,  AIR 1974 SC
\n396, it was observed at page 398 thus:-\n<\/p>\n
“If an interest in immovable property, entitling the transferee to
\nenjoyment is created, it is a lease; if permission to use land
\nwithout right to exclusive possession is alone granted, a licence is
\nthe legal result”.\n<\/p>\n
\t\t\t\t\t\t\t[Emphasis added]
\n\tIn the case of\tKhalil Ahmed Bashir Ahmed vs. Tufelhussein Samasbhai
\nSarangpurwala, AIR<\/a> 1988 SC 184, Sabyasachi Mukharji, J., as he then was,
\nobserved at page 190 thus:\n<\/p>\n
 “To put precisely..if permission to use land without exclusive
\npossession was alone granted, a licence was the legal result.  We
\nare of the opinion that this was a licence.”\n<\/p>\n
\t\t\t\t\t\t[Emphasis added]<\/p>\n
\tA Constitution Bench of this Court in the case of Ashoka Marketing Ltd.,
\nand Anr.  vs. Punjab National Bank & Ors., AIR 1991 SC 855, which was case of
\na lessee, was considering the matter under the Central Act and in relation to the
\nprovisions of Section 2(g) of the Act observed\tat page 870 thus:-\n<\/p>\n
“It implies occupation by a person who has entered into occupaiton
\nof any public premises without lawful authority as well as
\noccupation which was permissive at the inception but has ceased
\nto be so..This part covers a case where a person had entered
\ninto occupation legally under valid authority but who continues in
\noccupation after the authority under which he was put in occupation
\nhas expired or has been determined.   The words “whether by way
\nof grant or any other mode of transfer” in this part of the definition
\nare wide in amplitude”.\n<\/p>\n
\tIn the case of M\/s. Jain Ink Manufacturing Company vs. Life Insurance
\nCorporation of India & Anr., AIR<\/a> 1981 SC 670, the Court while considering the
\nimport of expression `unauthorised occupation’ within the meaning of Section
\n2(g) of the Central Act, in relation to a lessee, which provision is similar to that of
\nSection 2(f) of the Act,  observed at page 672 thus:-\n<\/p>\n
“To begin with, it is manifest that S. 2(g) does not use the word
\n`possession’ or the words `entry into possession’ at any point of
\ntime at all.  The section merely requires occupation of any
\npublic premises.  Entry into possession connotes one single
\nterminus, viz., the point of time when a person enters into
\npossession or occupies the property whereas occupation is a
\ncontinuous process which starts right from the point of time when
\nthe person enters into possession or occupies the premises and
\ncontinues, until he leaves the premises.  What is germane for the
\npurpose of interpretation of Section 2(g) is whether or not the
\nperson concerned was in occupation of the public
\npremises when the Premises Act was passed.  In the instant
\ncase, it is not disputed that the appellant continued to occupy the
\nproperty even after the Premises Act came into forceIn these
\ncircumstances, therefore, the case of the appellant squarely falls
\nwithin the ambit of the definition of `unauthorized occupation’ as
\ncontemplated by S.2(g).”\n<\/p>\n
\t\t\t\t\t\t\t[Emphasis added]<\/p>\n
\tIn the case of Jiwan Dass vs. Life Insurance Corporation of India & Anr.,<\/a>
\n1995 (1)  Rent Control Journal 541, while upholding constitutional validity of the
\nCentral Act which was challenged by a tenant, this Court observed that the
\nprovisions of Section 5 of the Central Act, conferring power upon the Estate
\nOfficer to order eviction from public premises,\t would apply in a case of tenancy,
\nlease  or licence and observed at pages 543-44 thus:-\n<\/p>\n
“The statute advisedly empowered the authority to act in the public
\ninterest and determine the tenancy or lease or licence before taking
\naction under Section 5 of the Act..An owner is entitled to deal
\nwith his property in his own way profitable in its use and
\noccupation.  A public authority is equally entitled to use the public
\nproperty to the best advantage as a commercial venture.\t As an
\nintegral incidence of ejectment of a tenant\/licensee is inevitable.”\n<\/p>\n
\t\t\t\t\t\t\t\t[Emphasis added]<\/p>\n
    It is true that a licensee does not acquire any interest in the property by
\nvirtue of grant of licence in his favour in relation to any immovable property, but
\nonce  the authority  to occupy and use the same is granted in his favour by way
\nof licence, he continues to exercise that right so long the authority has not
\nexpired or has not been determined for any reason whatsoever, meaning thereby
\nso long the period of licence has not expired or the same has not been
\ndetermined on the grounds permissible under the contract or law.  Occupation of
\nlicensee is permissive by virtue of the grant of licence in his favour, though he
\ndoes not acquire any right in the property and the property remains in possession
\nand control of the grantor, but by virtue of such a grant, he acquires a right to
\nremain in occupation so long the licence is not revoked and\/or he is not evicted
\nfrom its occupation either in accordance with law or otherwise.\t Main thrust of
\nSection 2(f) of the Act is upon the expression `occupation’ with authority or
\nwithout authority.  If a person without any authority occupies any public building
\nhe would be a  trespasser and his case would be covered by first part of Section
\n2(f) and  would be liable to be evicted under the provisions of the Act instead of
\ntaking recourse to ordinary law\t by filing a properly constituted suit which is
\ndragged on for years together.\tSecond part of Section 2(f) deals with cases
\nwhere a person is in occupation by virtue of an authority granted in his favour
\nirrespective of the fact whether the authority is in the form of  lease or  licence or
\nin any other form.  So far as  case of lease of a public building is concerned,
\nupon expiry of the period  limited thereby or its determination in accordance with
\nlaw,  the special procedure prescribed under the Act providing speedy remedy for
\neviction would apply even though some interest in the immovable property is
\ncreated in favour of the lessee by virtue of creation of lease in his favour.\tBut in
\na case of licence, no interest in the property is created by virtue of the grant, but
\na person acquires a right to continue his occupation  by virtue of the authority
\ngranted in his favour under the licence\t unless the period of licence has expired
\nor the same has been determined or licence has been revoked and\/or the
\nlicensee is evicted by the grantor.  If it is held that Section 2(f) would apply only in
\ncase of lease and not in the case of licence, the position will be very incongruous
\nas in the case of lease, though a lessee acquires interest in the property which is
\na higher right, but he can be evicted under the special procedure  prescribed
\nunder the law providing much speedy remedy whereas in  case of licence, a
\nlicensee, who does not acquire any interest in the property and has only some
\nsort of right of occupation by virtue of the nature of grant in his favour so long he
\nis not evicted, can be evicted through long drawn ordinary procedure of filing a
\ncivil suit.  This could not have been  the intention of the Legislature.  Apart from
\nthat, out of the expressions `whether by way of lease’ or `any other mode of
\ntransfer’, the expression `any other mode of transfer’ is very wide and would not
\nnecessarily mean only that  mode of transfer whereby a right has been created in
\nimmovable property.  The expression `transfer’ under the Transfer of Property
\nAct connotes creation of some interest in immovable property.  But under Section
\n2(f) of the Act such a restricted meaning would defeat the purpose of legislation
\nwhich is  impermissible.  The expression “any other mode of transfer” would
\ndefinitely bring within its sweep the case of a licensee where right of the  grantor
\nto occupy and continue to occupy immovable property is transferred though
\nunder law, the property remains in possession and control of the grantor.  In view
\nof the foregoing discussions, we hold that the expression `unauthorised
\noccupation’ within the meaning of Section 2(f) of the Act would embrace within its
\nambit the case of licensee as well after expiry of the period of licence or upon its
\ndetermination for any reason whatsoever, as such the Estate Officer was quite
\njustified in initiating proceeding under the Act and passing eviction order therein.\n<\/p>\n
    In the result, the appeal is allowed, impugned judgment and decree
\nrendered by the High Court  are set aside and those passed by the appellate
\ncourt upholding judgment of the trial court are restored.  In the circumstances of
\nthe case, there shall be no order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t…J.\n<\/p>\n
\t\t\t\t\t\t\t[S. RAJENDRA BABU]<\/p>\n
\t\t\t\t\t\t\tJ.\n<\/p>\n
\t\t\t\t\t\t\t[B.N. AGRAWAL]
\nMAY 3, 2002.\n<\/p>\n
3<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Corporation Of Calicut vs K. Sreenivasan on 3 May, 2002 Author: B Agrawal Bench: S. Rajendra Babu, B.N. Agrawal CASE NO.: Appeal (civil) 3283 of 2002 PETITIONER: THE CORPORATION OF CALICUT Vs. RESPONDENT: K. SREENIVASAN DATE OF JUDGMENT: 03\/05\/2002 BENCH: S. Rajendra Babu & B.N. Agrawal JUDGMENT: B.N. AGRAWAL,J. Leave […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-169582","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Corporation Of Calicut vs K. 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