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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 6 / 1998
Dr. Mohd.Abdul Aziz s/o Yaar Mohd.
(Died ) Through LRs:
1) Zubeda Begum wd/o Dr. Mohammed Abdul Aziz
Aged about 78 years
2) Dr.Mohammad Abdul Salim
s/o Dr. Mohammad Abdul Aziz
Aged 60 years
3) Suraiyya Jabeen w/o Siddique Ali Khan Patel
Aged 50 years, R/o Aziz Manzil
Mominpura nagpur.
4) Mohammad Abdul Wahid
s/o Dr. Mohammad Abdul Aziz
Aged 54 years,
Appellant Nos.1 ,2 and 4 R/o
Faiz Shabbir memorial Building
Adjacent to Chandralok Building
Central Avenue Nagpur. ... ...APPELLANTS
v e r s u s
1) Corporation of City of Nagpur
Through its Municipal Commissioner
Nagpur.
2) The Municipal Commissioner
Corporation of the City of Nagpur.
3) The Additional Deputy Municipal
Corporation of the City of
Nagpur. ...RESPONDENTS
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Mr J J Chandurkar , Advocate for appellants
Mr. C S Kaptan, Advocate for Respondents
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CORAM: A.P.BHANGALE, J.
DATED : 17th December, 2009
JUDGMENT :
This Second Appeal stems from the judgment and decree
dated 1st April, 1997 passed by learned Joint District Judge, Nagpur
in Regular Civil Appeal No.289/1991, by which the judgment and
decree in Regular Civil Suit No. 994/1975 dated 17.08.1979 was
set aside and the suit by the original plaintiff-Dr Mohammad Abdul
Aziz s/o Yaar Mohammed was dismissed as also cross-objections
(Exh.8). The present appellants claim as legal heirs and
representatives of the original plaintiff.
2. The facts in brief are : The suit house / structure stands
on Municipal land bearing Plot No.1 at Mohammad Ali Sarai Road,
Mominpura, Nagpur. It is the case of the original plaintiff that suit
house is a permanent structure with brick walls and ceiling of
Bagada tile. The original plaintiff claimed as licensee since
2.10.1972 at licence fee of Rs. 65/- per month. It is claimed that
previous owner of the house structure had granted permanent licence in
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favour of the plaintiff and he became owner on account of transfer of
licence by the order of the Municipal Secretary. The original plaintiff
claimed that he is grantee of irrevocable licence under section 60 of
the Easement Act.
3. The original plaintiff was informed on 12.8.1975 by letter
pursuant to order by Additional Deputy Municipal Commissioner dated
21.07.1975 that licence allotted to the plaintiff is canceled and he shall
remove the suit structure within 45 days, failing which Municipal
Corporation would remove the same.
4. The plaintiff by notice dated 19.08.1975 claimed that it is
irrevocable licence and that the Municipal Corporation can not
transfer the land to MSEB as it intended. The plaintiff challenged
proposed municipal action by Regular Civil Suit No. 994/1975 which
was heard by Joint Civil Judge, J.D. Nagpur and decreed in favour
of the plaintiff restraining defendant-Municipal Corporation from
interfering with possession/occupation of the plaintiff. The first
Appellate Court, however, reversed the decree and dismissed the suit
by judgment and decree sought to be impugned herein.
5. The substantial questions of law are :
(a) "Whether licence claimed by the
original plaintiff was irrevocable?
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(b) Whether present appellants as heirs and
legal representatives are entitled to inherit and
remain in occupation of suit structure upon
Municipal land, claiming protection of sec. 60 (b)
of the Easement Act?
6. Learned Counsel for the appellants contended that their
predecessor-in-title ( original plaintiff ) had purchased the suit house by
public auction for Rs.11,500/- and sale of house was confirmed on
6.9.1972 by Deputy Municipal Commissioner, Nagpur, and since
2.10.1972 licence in respect of plot of land was granted at Rs.
65 /- per month as licence fee. Suit house is permanent structure
and licence was irrevocable. He did not dispute that the suit structure
is situated on Municipal land and the notice dated 12.8.1975 was
received by original plaintiff for cancellation of licence.
7. The learned Advocate for respondent- Municipal Corporation
submitted that there was no documents to support the claim in the suit
and the first Appellate Court recorded findings of the fact which are
neither illegal nor perverse. Hence no interference is required in
Second Appeal as licence may be revoked by the grantor unless it is
coupled with transfer of property and such transfer is in force.
Admittedly, suit structure was constructed by previous occupant
licencee and not by the plaintiff. Hence licence was revocable and
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hence revoked by notice.
8. Having heard these submissions and perusing the records, it
has to be concluded that there was no evidence to believe that the
respondent had granted licence in respect of occupation of land in
question to the original plaintiff coupled with grant of interest in
immovable property. There is nothing on record to establish that the
original plaintiff had constructed house acting upon licence or executed
works of permanent nature in incurring expenditure in the execution of
works. Therefore, the original plaintiff could not have claimed benefit
of Section 60 (b) of the Easement Act.
Substantial questions of law raised above are therefore
answered as :
(a) .. No
(b) .. No
9. There is no reason to believe that Municipal Secretary had
power to grant irrevocable licence. Assuming that licence was granted
by Municipal Secretary, the Executive Municipal Secretary in law can
only grant such licence which can be revoked or withdrawn, in view of
statutory powers to evict person from Corporation premises. Clause
(a) and (b) of Section 60 of the Easement Act will have no application
to licence even if granted by Municipal Secretary under the City of
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Nagpur Municipal Corporation Act, being a special Act qua the
Easement Act for licence granted by or on behalf of Municipal
Corporation. Special Act excludes the provisions of General Act. Hence
licence granted by or on behalf of Municipal Corporation is revocable.
No one can by merely purchasing a structure upon Municipal land
claim “irrevocable licence” without grant of interest in the land or
permission to construct permanent house on the land. Even
otherwise, mere licence does not create any interest in immovable
property in view of Section 52 of the Easement Act. The first Appellate
Court has considered the fact on record and applied the legal principles
correctly and decided the first Appeal as last court of facts. No ground
is made out for interference in Second Appeal by this Court as there was
no documentary evidence whatsoever to establish grant of permission
or licence to occupy the site and putting up permanent construction of
house thereon in favour of the original plaintiff. Therefore, no shelter
can be taken by legal heirs or representatives of original plaintiff under
section 60 (b) of the Easement Act. I do not find any reason to
exercise jurisdiction under section 100 of the Civil Procedure Code, to
take a different view than that of the first Appellate Court as there is
no merit in the appeal. Appeal is dismissed. The appellants are
granted three months time from today, to vacate the suit site and
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handing over vacant possession to Respondents. Unconditional
undertaking be filed accordingly within a week, failing which
appellants shall be liable to be dispossessed of the suit structure
forthwith.
JUDGE
sahare
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