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Maganlal Radia Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case Number O.C.J. Miscellaneous Petition No. 597 of 1969
Judge
Reported in(1970)72BOMLR734
AppellantMaganlal Radia
RespondentState of Maharashtra
DispositionAppeal dismissed
Excerpt:
constitution of india, article 226 - specific relief act (47 of 1963), section 6--licensee whose licence in respect of property revoked evicted by summary procedure--whether licensee can maintain writ petition against order of eviction.;a licensee whose licence has been revoked, even though he may have actual possession of the property in question, is not, protected by law in so far as he is not entitled to avail himself of the remedy provided by section 6 of the specific relief act, 1968. if such a person is evicted by a summary procedure, he cannot be said to be a party aggrieved and is not entitled to maintain a writ petition.;associated hotels of india v. r.n. kapoor [1959] a.i.r. s.c. 1262, lakhiram, v. vidyut etc. industries (1963) 65 bom. l.r. 604, amirudin v. mahamad (1891) i.l.r...........question formulated above is concerned, unlike a tenant, a licensee never had and does not have juridical possession. this is apparent from the very definition of 'licence' in section 52 of the indian easements act, 1882, as being the grant of a mere right to do upon the property of another something which would, in the absence of such right, be unlawful. that is, indeed one of the essential characteristics that distinguish a licence from a lease, as laid down by the supreme court in the case of associated hotels of india v. b.n. kapoor : [1960]1scr368 . it is further stated in that proposition by the supreme court that, in the case of a licence 'the legal possession continues with the owner' a point of considerable importance for the purpose of the present order. that is precisely.....
Judgment:

Vimadalal, J.

1. The petitioner, who is the sole proprietor of Radia's Flotilla Club situated on the Chowpatty Foreshore at Marine Drive in Bombay, has presented this petition under Article 226 of the Constitution for a writ of certiorari to quash and set aside the orders and/or decisions contained in the letters dated February 12,1968, February 23, 1968 and July 16,1968 whereby he has been called upon to vacate the land on which the said club stands and to remove all structures standing thereon, as well as for a writ of mandamus directing the respondents to forbear from enforcing Section 53 of the Maharashtra Land Revenue Code, 1966, and to withdraw and/or cancel the said impugned orders and/or decisions. Though the petitioner has not used the word ' licence' in the petition, it is amply clear from the averments that are to be found in paras. 4, S and 6 of the petition that his occupation of the land in question was permissive as far as the Collector of Bombay was concerned and constituted merely a licence to use the same. This legal character of the petitioner emerges not merely from the averments in the petition, but is stated in unequivocal terms in the correspondence relating to the grant in respect of the said land which has been annexed to the petition, and which shows beyond doubt that what the petitioner was granted was a licence, and, that too, of a purely temporary nature. The mere fact that the Collector has, curiously enough, in the impugned letters used the words 'tenancy' and 'tenancy-at-will' cannot make any difference to the true legal character of the petitioner which was that of a licensee. The Collector of Bombay (respondent No. 2) has terminated that licence (wrongly called a tenancy therein) by his letter dated February 12, 1968 which is one of the documents impugned in this petition. As a matter of substantive law, therefore, the petitioner has no colour of right to remain in possession of the suit premises and has no answer to the respondents' claim that he should vacate the land in question, and the present petition appears to have been filed merely for the purpose of gaining time and remaining in possession as long as possible. Once a Rule is issued on this petition, interim relief would ordinarily have to be granted, if the petition is not to be rendered infructuous, and that would enable the petitioner to continue in possession of the land in question perhaps for some years till the petition is heard and finally decided. As there are several oases in which petitions are filed by tenants or licensees and, in some cases, even by persons who are alleged to be trespassers ab initio, without a vestige of a right to remain in possession with the sole object of continuing in possession of the premises as long as possible, I fixed this matter and two other matters viz. Misc. Petitions Nos. 572 and 521 of 1969 on my Board for argument. I directed that notice before admission be given to the other side and the three matters have been fully argued before me by learned Counsel for the parties concerned. It may be mentioned that Misc. Petition No. 572 of 1969 was a petition by an erstwhile tenant whose tenancy had been duly terminated and who was not protected by the Bombay Rent Act; Misc. Petition No. 521 of 1969 was filed by a licensee of the petitioner in the said Misc. Petition No. 572 of 1969; and the present petition was filed by a person who is a licensee of the Government which owns the land, as already stated above. I have already delivered judgment to-day in Misc. Petition No. 572 of 1969 which I have summarily dismissed for reasons stated in my Order See 72 Bom. L.R. 729, and Misc. Petition No. 521 of 1969 had to follow suit since the petitioner therein claimed through the petitioner in the former petition.

2. The same two questions that arose in Misc. Petition No. 572 of 1969 arise in the present case also viz. (1) whether the petitioner could be said to be a party aggrieved so as to entitle him to seek relief under Article 226 of the Constitution; and (2) whether, even if the petitioner could be said to be a party aggrieved, the Court should, in the exercise of its discretion, refuse to entertain his petition on the ground that to do so would work injustice in a broad sense, and would enable the petitioner to continue in possession when, as a matter of substantive law, he has no answer to the respondents' claim for possession. The present petition stands, however, on a slightly different footing from Misc. Petition No, 572 of 1969 in so far as the petitioner before me is a licensee whose licence has been revoked, and not a tenant whose tenancy has been terminated as in that case.

3. As for as the first question formulated above is concerned, unlike a tenant, a licensee never had and does not have juridical possession. This is apparent from the very definition of 'licence' in Section 52 of the Indian Easements Act, 1882, as being the grant of a mere right to do upon the property of another something which would, in the absence of such right, be unlawful. That is, indeed one of the essential characteristics that distinguish a licence from a lease, as laid down by the Supreme Court in the case of Associated Hotels of India v. B.N. Kapoor : [1960]1SCR368 . It is further stated in that proposition by the Supreme Court that, in the case of a licence 'the legal possession continues with the owner' a point of considerable importance for the purpose of the present order. That is precisely the reason why in the decision of a Division Bench of this Court in the case of Lakhiram v. Vidyut Etc. Industries : (1963)65BOMLR604 where the Court was considering the question of the proper form of the relief to be claimed in a suit against a licensee, Patel J., in delivering the judgment of the Bench, did not draw any distinction between a trespasser ab initio, and a licensee who becomes a trespasser by remaining in possession after the revocation of his licence. In fact, the judgment of Patel. J. in the said case, when carefully read, shows that in both the cases discussed by him, (in the middle of page 608), though he draws a distinction as to the person who is in 'physical possession' of the property, it is implicit that juridical possession always remains with the licensor. The above discussion leads to the conclusion that though a licensee may or may not have actual possession of the property of which he is permitted the use, he certainly does not have legal or juridical possession of the same.

4. A Division Bench of this Court has, in the case of Amirudin v. Mahamad Jamal I.L.R. (1891) Bom. 685 decided as far back as the year 1891 that it is only juridical possession which could give a person the right to invoke the aid of the Court under Section 9 of the Specific Relief Act, 1877, which, it may be stated, corresponds to Section 6 of the Specific Relief Act, 1963. The Court was, no doubt, concerned in the said case with a trespasser ab initio, but the proposition as laid down is not confined to the case of a trespasser ab initio, but would, in my opinion, be equally applicable to a licensee who becomes a trespasser on the revocation of his licence. Indeed, that is how the ratio of the judgment of Sir Charles Sargent C.J. in the said case has been stated by no less a person than Sir Dinshah Mulla in his commentary on the Indian Contract and Specific Relief Acts (8th Edn.), at p. 750. In the case of a licensee whose licence has been revoked, therefore, the position is that even though he may have actual possession of the property in question, that possession is not juridical possession and is not protected by law, in so far as he is not entitled to avail himself of the remedy provided by Section 9 of the Specific Relief Act, 1877, or Section 6 of the Specific Relief Act, 1968, which has now replaced that section.

5. It has been held by a Division Bench of this Court in the case of K. K. Verma v. Union of India : AIR1954Bom358 that the possession of a tenant whose tenancy has been terminated is juridical and is protected by Section 9 of the Specific Relief Act, 1877, and he, therefore, never becomes a trespasser. That, however, will not be the legal position in the case of a licensee whose licence has been revoked in view of the authorities discussed above which lead to the contrary conclusion. It cannot be said that a licensee whose licence has been revoked and whose possession is not juridical and is not protected by law ha? the right not to be dispossessed except by due process of law. If such a person is evicted by a summary procedure which, according to him, cannot be said to be 'due process of law', he is not a party aggrieved and is not entitled to maintain a writ petition. That disposes of the first of the two questions formulated by me at the beginning of this Order.

6. I will now deal with the second question formulated above viz., whether, even if the petitioner is a party aggrieved, the Court should, in the exercise of its discretion, refuse to entertain his petition on the ground that to do so would work injustice to the owner in so far as it would allow the petitioner to continue in possession till . the disposal of the petition without any colour of right. For the reasons stated in the Order passed by me to-day in Misc. Petition No. 572 of 1959 which are applicable, a fortiori, in the case of the present petitioner who was merely a licensee, I must decline to entertain the petition on that ground also. It may be mentioned that the injustice that would be caused, if the present petition is entertained, would be all the greater in view of the fact that not only was the grant of licence made for a purely temporary purpose, but it was made on the clear understanding that the petitioner would hand over possession of the land on seven days' notice without claming any compensation. To entertain the petition and to permit the petitioner who had agreed to remove himself from the premises within seven days to remain in possession till the disposal of the petition would result in gross injustice and would be an abuse of the writ jurisdiction of this Court which it should not countenance.

7. In the result, I decline to entertain this petition on both the grounds stated above and dismiss the same summarily. In the view which I have taken above, it is not necessary for me to deal with the other points which were raised by Mr. Setalvad who appeared for the respondents in response to the notice which was directed to be issued to him. The objection on the ground of delay which was raised by Mr. Setalvad, in particular, is of substance, but I find it unnecessary to deal with the same.


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