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Chandu Lal Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Rev. Nos. 532, 533 and 534 of 1975
Judge
Reported inAIR1978Delhi174
ActsTransfer of Property Act, 1982 - Sections 105; Easements Act, 1882 - Sections 52; Delhi Municipal Corporation Act, 1957 - Sections 197, 201, 416 and 417; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 39, Rule 1
AppellantChandu Lal
RespondentMunicipal Corporation of Delhi
Appellant Advocate A.L. Saigal and; R.S. Bakshi, Advs
Respondent Advocate T.C.B.M. Lal and ; Gopal Narain, Advs.
Cases ReferredHyderabad v. Ajit Prasad Tarway
Excerpt:
landlord & tenant--lease and license--difference between--test for determining the nature of a document--revocation of license--effect of--acceptance of license fee subsequence to the revocation--whether amounts to acquiescence.;that the intention of the parties is the real test for ascertaining the character of a document. it is beyond challenge that if a document gives only a right to use the property in a particular way but its possession and control remains with the owner thereof, it will be a license. in such a case the legal possession remains with the owner of the property, the licensee being permitted to make use of the property for a particular purpose. but for the permission the licensee's possession would be unlawful. exclusive possession does not militate against the.....order1. since common questions of law and facts are involved in these civil revision petitions, it would be appropriate to dispose them of by a single judgment,2. briefly stated the facts pertaining to these revision petitions are as follows: the municipal corporation of delhi (herein called 'the corporation') held an auction on 21st oct., 1973, for allotment of kiosks situated near bus stop, parade ground, opposite red fort, delhi. the petitioners were the highest bidders and consequently each one of them was allotted a kiosk. chandu lal's bid was for kiosk bearing no. 1. the corporation accepted his bid for rs. 450/- per month in respect of the said kiosk and allotted the same to him as a licensee for a period of 11 month commencing from 1st nov. 1973. his case is that in pursuance of.....
Judgment:
ORDER

1. Since common questions of law and facts are involved in these Civil revision petitions, it would be appropriate to dispose them of by a single judgment,

2. Briefly stated the facts pertaining to these revision petitions are as follows: The Municipal Corporation of Delhi (herein called 'the Corporation') held an auction on 21st Oct., 1973, for allotment of Kiosks situated near Bus Stop, Parade Ground, opposite Red Fort, Delhi. The petitioners were the highest bidders and consequently each one of them was allotted a Kiosk. Chandu Lal's bid was for Kiosk bearing No. 1. The Corporation accepted his bid for Rs. 450/- per month in respect of the said Kiosk and allotted the same to him as a licensee for a period of 11 month commencing from 1st Nov. 1973. His case is that in pursuance of the terms of the license, he deposited the security amount equivalent to three months fee and took the physical possession of the Kiosk on let Jan. 1974. He further contends that he had been peacefully carrying on his business in the said Kiosk in accordance with the rules and regulations of the Corporation that on the expiry of the period of license on 30th Nov. 1974, he made a representation to the Commissioner of the Corporation for the extension of license period and that on there commendation of the Commissioner for the extension of the period of the license for a full term of five years in pursuance of the renewal and extension of the license period. the Corporation accepted the license fee subsequently after 30th Nov. 1974. However, the petitioner alleges that on 29th May, 1975, some officials of the Corporation came at the site and threatened him to vacate the Kiosk on which he told the said officials that he had been regularly paying the license fee, as such he could not be evicted arbitrarily and in an illegal manner. It is also alleged that on the threatened action of the officials of the Corporation, nearby shopkeepers collected there and with a great difficulty the said officials were persuaded not to take law In their own hands on which the officials retreated. He, however, contends that an imminent and recurring threat at their hands at any time subsists. Describing the action of the Corporation as manifestly illegal, arbitrary, mala fide and discriminatory, the petitioner filed the suit for the grant of a decree for permanent injunction restraining the Corporation from interfering, disturbing or dispossessing him from the Kiosk. The petitioner also filed an application under 0. 39, Rules 1 and 2 read with S. 151 of the Civil P. C. 1908, praying that pending disposal of the suit the Corporation be restrained by way of ad interim injunction from interfering, disturbing or dispossessing from the above-said Kiosk.

3. The Corporation in its written statement by way of preliminary objections urged that the suit was barred in view of Ss. 477 and 478 of the Delhi Municipal Corporation Act, 1957, (herein called 'the Act'); that the petitioner has no locus stand to file the suit; and that the suit as framed is not maintainable. On merits the Corporation admits that the petitioner being the highest bidder was allotted the Kiosk in question for 11

months as a licensee; that on the expiry of the said period the petitioner was asked to vacate the Kiosk; that his request for the extension of the period of license for a further period of five years was rejected as it was not found possible to extend the period; that the order rejecting the prayer for extending the period was communicated to the petitioner vide letter dated 8th May, 1975; and that thus there was neither any renewal nor extension of the license period as alleged by the petitioner. The Corporation accordingly contends that since the license was for a period of 11 months, the petitioner was bound to vacate the Kiosk on the expiry of the said period. In the premises it is prayed that the Court 'had no legal jurisdiction to try the suit and that for the aforesaid reasons the suit, be dismissed.

4. The application for the grant of ad Interim injunction is resisted on the grounds already noted above. It is contended that the grant of stay would result in immense damage to it in that it had already called tenders and that it was bound to hand over possession to the person who is the highest bidder in the said tender.

5. It may bear mention here that the petitioner subsequently with the leave of the Court amended the plaint on 26th Nov. 1976, by incorporating the plea that the document dated l1th Dec. 1973, executed between the parties though described as a license deed was in fact a lease deed in that the intention of the parties was to create a lease of the Kiosk and that by the document in question an interest was created in the Kiosk in favor of the petitioner in recognition of which right, physical possession and control of the Kiosk was delivered to and continues to vest in the petitioner.

6. It may also be noted here that the petitioner before the trial Court as also before the appellate Court pressed his application. for the grant of ad interim injunction on the basis of the averments made in the original plaint. The courts below disposed of the said application on the basis of the unamended plaint. The present petition arises out of the orders passed by the Courts below on the contentions urged before them on the basis of the unamended plaint. In the amended plaint the new dimension which is sought to be added to the controversy is that the deed dated 11th December, 1973 ' though styled as a license deed was 'in fact a lease deed in that the intention of the parties was to grant a lease in pursuance of which exclusive possession of the Kiosk was given to the petitioners for carrying on the business and thus interest in the premises was created in favor of the petitioners and that the deed was indeed camouflaged as a license.

7. The trial Court initially by its order dated 2nd June, 1975, while issuing notice to the Corporation of the application for the grant of ad interim stay issued an ex parte injunction against the Corporation restraining it from dispossessing the petitioner from the Kiosk. However, on hearing the parties by its order dated 22nd July, 1975, the trial Court vacated the ex parted injunction earlier granted holding that the petitioner had failod to make out a prima facie case in his favor and also that the balance of conveniency was in favor of the Corporation. The petitioner remained unsuccessful in appeal .The petitioner in the present revision petition challenges the correctness of the order dated 101h September, 1975, passed by the Appellate Court (Senior Sub Judge, Delhi) whereby the petitioner's appeal against the order of the trial Court was dismissed.

8. The facts of the other petitions are identical with the facts of this revision petition. The bid in these cases was field on 21st October, 197 3. The Kiosk was allotted to these petitioners in Civil Revision Petitions 533 to 535 of 1973 as 3 licensee for 11 months with effect from 1st November, 1973, in pursuance of the deed dated l1th December, 1973, executed between them and the Corporation, the terms whereof are the same as in the case of Chandu Lal. The other averments in these revision petitions are similar to the averments already noted above in the case of Chandu Lal.

9. Balkishan, petitioner in revision petition No. 533 of 1973 was allotted Kiosk No. 4., his bid was for Rs. 610/per month. On his application for the grant of ad interim injunction the trial Court issued ex parte injunction on 2nd June, 1975 which was subsequently vacated by order dated 22nd July, 1975. He challenged the said order in appeal but remained unsuccessful.

10. Madan Mohan Talwar, petitioner fn revision petition No. 534 of 1975 was allotted Kiosk No. 3, his bid was for Rs. 370/- per month. The ex parte order issued by the trial Court in his case on 2ndJune, 1975, was subsequently vacated by the Court by order dated 22nd July. 1975, and his application under Order 39 Rules 1 and 2 read with S. 151 of the Code was dismissed. He too remained unsuccessful in the appeal.

11. Mohan Lal, petitioner in revision petition No. 535 of 1973 was allotted Kiosk No. 2 his bid was for Rs. 925/- per month. His application for the grant of ad interim injunction was dismissed by the trial Court by its order dated 6th June, 1975. He challenged the aforesaid order in appeal but remained unsuccessful.

12. The appeals of all these petitioners were heard by Shri K, B. Andley, Senior Sub-Judge, Delhi, who by his common order dated 10th September, 1975, dismissed the appeals of the petitioners. The petitioners challenge the correctness of the aforesaid order in these civil revision petitions.

13. These petitions were heard by T. P. S. Chawla, J. The learned Judge on hearing the parties observed that 'after a person has been peaceably evicted in the exercise of a valid right of re-entry or self-help, he has no remedy if lie seeks to regain possession. But, I do not think that it necessarily follows from this that the court will also not intervene before such eviction although the threat is imminent and the use of force can be foreseen'. He felt that the authorities in that respect were not uniform and were not easy to reconcile. The learned Judge accordingly took the view that a question of some difficulty and considerable importance arises in these petitions, touching the inner core of the rule of law which by its very nature was bound to be of frequent occurrence which needs to be decided more authoritatively by a larger Bench preferably to be decided by a Full Bench. He, thereforee, directed that the papers be placed before the Chief Justice for such orders as may be deemed fit to make. This is how these petitions have been placed before us.

14. Shri A. L. Saigal, appearing for the petitioners, vehemently contended that a perusal of the so called license deed unerringly shows that it is a lease deed where under transfer of right to enjoy the property for carrying on trade was made in favor of the petitioners; that the petitioners have complete control over the business that they conduct in these Kiosks and they do not work for the Corporation; that the petitioners are the free masters to attend to their business, there being no timing restrictions for carrying on their business; that the petitioners are not the employees or servants of the Corporation; and that they have been put In exclusive possession of their Kiosks to the exclusion of all others including the Corporation for carrying on their business, He submitted that by giving exclusive possession, interest in the property, namely, to use the premises for business purpose, was transferred to the petitioners. The deed though styled as a license deed in fact is a lease deed, the petitioners being tenants of the premises in question were protected under the provisions of the Delhi Rent Control Act, 1958, and cannot be ejected in a summary manner by resort to force, According to clause (4) of the agreement Mr. Saigal submitted, the possession of the Kiosk was given for purposes of trade.

15. The question accordingly is whether the various clauses of the document in question, when read as a whole, in any manner carve out an interest in the demised property in favor of the petitioners. Although a person who is let into exclusive possession is prima facie to be considered a tenant. Never the less if circumstances negative such a conclusion and show that no tenancy was created. the person in possession would not be held to be a tenant. It is trite saying that the intention of the parties is, the real test for ascertaining the character of a document. It is beyond challenge that it a document gives only a right to use the property in a particular way but its possession and control remains with the owner thereof, it will be a license. In such a case the legal possession remains with the owner of the property, the licensee being permitted to make use of the property for a particular purpose. It would, thereforee, be seen that but for the permission the licensee's possession would be unlawful. Exclusive possession does not militate against the concept of a license, if the circumstances negative any intention to create a tenancy (See Associated Hotels of India v. R. N. Kapoor, : [1960]1SCR368 ).

16. It is also beyond the pale of controversy that if the circumstances and the conduct of the parties show that what was intended was that the occupier should be granted a personal privilege with no interest in the land, he would be held to be a licensee.

17. In the instant petitions, the Corporation before holding auction on 21st October, 1973 had published the 'items and conditions for the grant of license of Kiosk of Red Fort, Delhi and invited bids on those terms. The petitioners participated and made a bid on those terms. It is, thereforee, evident that the Corporation had invited bids for the grant of license in respect, of Kiosk and the petitioners made a bid for obtaining a license for working on the premises in question Clause 4 of the terms of auction clearly indicate that the bid 'shall be for a period of 11 months in the first instance on monthly license fee basis', while clause 10 unmistakably stated that 'the allotment/ license of the Kiosk shall constitute liberty to the licensee to occupy and use the F Kiosk for a period of Ii months in the first instance, and thereafter for such term of renewal as may be mutually agreed from time to time.' According to clause 15 the benefit of the license was neither transferable nor heritable. Further clause 22 indicated that the license to occupy the shop was liable to be cancelled at any time by the Commissioner of the Corporation or other officer duly authorised by him, without assigning any reason thereforee. Clause 26 entitled the Commissioner of the Corporation, on expiry of the period of or revocation of allotment/ license, to resume exclusive possession and charge of the Kiosk and deal with it In such manner as he may deem fit. Further any goods, articles, or things found lying in the Kiosk shall be liable to be seized, removed and sold by public auction by the Commissioner or any other empowered by him. The outstanding Corporation dues, if any, together .With the charge for seizure, removal, storage and sale of such goods, articles or things shall be met out of the sale proceeds; provided always that the allottee/licensee/owner may within seven days of the seizure of his goods, articles, or things may get them released after clearing the outstanding dues and paying the expenses and storage charges. From the various clauses of 'the terms and conditions for the' grant of license of Kiosk' , no apprehension could be entertained by the petitioners that they were bidding for the grant of a lease. They had made a bid with open eyes and knowing full well that they were obtaining only a license for using the premises for carrying on their trade and that the legal possession would remain with the Corporation. The intention of the parties is apparent that what was going to be auctioned was 'licensee rights' and not 'tenancy rights'. Apart from the fact that the .heading of deed clearly indicates that it is a 'deed of license' the reading of the various clauses of the deed unerringly shows that it possesses the characteristics of a 'license'. The terms and conditions of the deed are consistent with the grant of a license and 'do not accord with creation of a lease'.

18. Clause I of the deed gives liberty to the petitioners to occupy and use the Kiosk for a period of Ii months in the first instance and thereafter for such duration of renewal as may be mutually agreed to. The deed does not entitle the licensee to any right of alternative accommodation on the earlier termination of license. But for the liberty to occupy the Kiosk, the possession of the petitioners would have been unlawful. Clause 7 enjoins on the licensee not to part with the possession of the Kiosk or allow any other person to occupy the same or to use any part thereof, or to enter into any partnership with any person. With out the written permission of the Commissioner of the Corporation. Besides, it was specifically agreed that the benefit of the license was restricted to the licensee and was neither transferable nor heritable.

19. Clause 10 envisages that the licensee shall faithfully and diligently comply with all the directions, general or special, as may be given by the Commissioner of the Corporation from time to time. According to clause 13. infringement of any of the terms and conditions of the deed by the licensee will lead to the cancellation of license of the Kiosk and the licensee will have no claim whatsoever on that count. As per clause 14, the license of the Kiosk is liable to be cancelled at any time by the Commissioner of the Corporation or other authorised officer without assigning any reason, in which event the amount of the fee for the remaining period of the license will be refunded to the licensee. Clause 18 of the deed entitles the Commissioner of the Corporation on the expiry of the period of or revocation of allotment /license to resume exclusive possession and charge of the Kiosk and deal with it in such manner as he may deem fit. Any goods, articles or things found lying in the Kiosk shall be liable to be seized, removed and sold by public auction by the Commissioner or any other officer empowered by him. Further, the outstanding Corporation dues, if any, together with the charges for seizure, removal, storage and sale of such goods, articles or things shall be met out of the sale proceeds; provided always that the allottee/licensee/owner may within seven days of the seizure of the goods. articles or things get them released after clearing the outstanding dues and paying the expenses and storage charges.

20. It will, thereforee, be seen that it was made abundantly clear in the terms and conditions for the grant of license of Kiosk, that the highest bidder was to get only the right of an occupier without any right or interest in the Kiosk. The various terms of the deed noted above clearly show that the petitioners were given only physical possession but for which permission their occupation would have been unlawful, while the legal possession all along remained with the Corporation. The term,, of the document dated l1th December, 1973, read in the light of the surrounding circumstances reveal that it operated as a license and that no right or interest in the land was created in favor of the petitioners.

21. According to S. 105 of the T. P. Act, 1882, a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity in consideration of a price paid or promised, or of money, a share of crops service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. It is clear from the above definition that a lease is not a mere contract but envisages and transfers an interest in the demised property creating a right in favor of the lessee in rem,

22. License is defined in S. 52 of the Easements Act and reads as under:

'where one person grants to another, or to a definite number of other persons, a right to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license'.

23. From the above definition it is evident that license only makes an action lawful which without it would be unlawful but does not transfer any interest in favor of the licensee in respect of the property.

24. The petitioners in the instant petitions were given the liberty to occupy the Kiosk for 11 months 'for purposes of trade.' They were forbidden from parting with possession of the Kiosk or allow any other person to occupy the same or to use any part thereof or to enter into partnership with any other person without the written permission of the Commissioner of the Corporation The liberty to occupy the Kiosk was personal to the petitioners alone. Besides, the petitioners were required 'faithfully and diligently' to 'comply with all the directions, general or special' that may be given by the Commissioner of the Corporation from time to time. The infringement of any of the terms and conditions of the license was to result in the cancellation of the license. the petitioners having, no claim whatsoever on that account. Further, the license was liable to be cancelled at any time by the Commissioner of the Corporation or other authorised officer without assigning any reason. All these conditions militate against 'lease', no interest in the premises passed to the petitioners. The Corporation in the circumstances in enforcing its right of re-entry by self help cannot be said to have taken the law into its own hands or that it was in any manner acting without recourse to law in resuming the possession. The underlying assumption in the case of a license is that the owner continues to be in possession and control of the property. In such circumstances the Court cannot throw its protection round the trespasser having no vestige of any right what so ever, and his unlawful act of continuing to occupy the premises, by the issue of a prohibitory order against the lawful owner.

25. In the instant cases the terms an conditions of the license, coupled with the surrounding circumstances, show that a bare license being a matter of personal privilege to occupy the Kiosk was granted in favor of the petitioners and was revocable even though it had been given for valuable consideration. (See Dominion of India v. R. B. Sohan Lal Air 1950 Ep 40.

26. There is a catene, of authorities in support of the proposition that in the case of a license there is something less than a right to enjoy the property in the licensee; it cannot be exercised by servants and agents and is terminable while on the other hand, in the case of a lease, there is a transfer to a right to enjoy the property or in other words the lessee is entitled to enjoy the property. A bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an Interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain this right. He is entitled to resist in defense of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser. If, however, the licensor uses excessive force, he may make himself liable to be punished under a prosecution, but he will Infringe no right of the licensee, No doubt a person in exclusive possession of the property is prima facie to be considered to be a tenant, nevertheless he would not be held to be so if the circumstances negative any intention to create a tenancy.

27. In the instant cases the petitioners' possession of the premises (Kiosk) on the facts and circumstances of the case, cannot be held to be conclusive evidence of their being a lessee as the grant was not coupled with an interest in the property. The principle once a licensee always a licensee apples proprio vigore in these cases. The petitioners are not entitled to retain possession against the Corporation, which can take possession of the Kiosk and would not be driven to a Court of law as the mere physical possession of the petitioners confers no right on them. The petitioners. thereforee, in law are not entitled to retain possession against the Corporation, having only the personal privilege to carry on their business which otherwise without the permission granted by the Corporation would be an unlawful act. These well-settled principles - find support from Satwant Singh v. Assistant Passport Officer, New Delhi : [1967]3SCR525 ; Associated Hotel's case : [1960]1SCR368 (supra); B. M. Lall v. M/s. Dunlop Rubber Co. (India) Ltd., Air 18 Sc 175; Miss Aninha D'Costa v. Mrs. Parvatibai M. Thakur, : AIR1966Bom113 ; Beant Singh v. Cantonment Executive Officer, Jammu Air 1960 J&K; 83, Chinna Pillai v. N. Govindaswami Naidu, : AIR1969Mad191 ; Milka Singh v. Diane Air 1964 J&K; 99 and Raj Singh v. Union of India, : AIR1973Delhi169 . (A Bench decision of this Court).

28. The Supreme Court recently in Board of Revenue v. A. M. Ansari : [1976]3SCR661 , reiterated the position in law in this respect succinctly stating that it is the creation of an Interest in immovable property or a right to possess it that distinguishes a lease from a license. A license does not create an interest In the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease. Further it was observed as to whether a particular transaction creates a lease or a license is always a question of intention of the parties which is to be inferred from the circumstances of each case.

29. So examined, the deed dated 11th Dec. 1973, executed between the parties has to be held to be a license.

30. Shri Saigal, adverting to Ss. 197 and 201 of the Act, next contended that a perusal of the said provisions unmistakably shows that the Corporation could only grant a lease and not a license as the aid provisions of the Act do not warrant the grant of a license. The precise argument was that there is a fundamental distinction between the capacity of a natural person and that of an artificial person which is created by a statute or charter. To a natural person whatever is not expressly forbidden by law is permitted by the law. It was urged that a natural person has the capacity to do everything save and except those forbidden by law, but in the case of an artificial person such as the Corporation being the creation of the Act, the rule applicable to a natural person is reversed. It was vehemently urged that whatever was not permitted expressly or by necessary implication by the Act was prohibited to be done not by any express or implied prohibition of the legislature but by the doctrine of ultra vires. Support for this submission was sought to be drawn from a Bench decision of Calcutta High Court in Satibhusan Mukherjee v. Corporation of Calcutta Air 1949 Cal 20,

31. Dilating on the above-noted submission it was contended that under S. 197 of the Act the Corporation shall, for the purpose of the Act, have power to acquire and hold movable and immovable property, or any interest therein. S. 200, it was urged, deals with disposal of property and empowers the Commissioner of the Corporation in his discretion to dispose of, by sales or otherwise any movable property belonging to the Corporation subject to the limitations contained in the aforesaid section. On the basis of the above-noted sections it was vehemently contended that the only power that the Corporation had was to acquire and hold movable and immovable property or any interest therein and further the Commissioner of the Corporation could dispose of property by sale or otherwise by granting a lease of the Corporation's immovable property but the aforesaid sections do not empower the Commissioner or the Corporation to grant a license.

32. The argument has to be only noted to be rejected being without any merit. Power to hold immovable property in itself entitles the owner of the property to enjoy he property or its fruit in any manner that the owner may like. To say that the Corporation could hold the immovable property but could not grant a license thereof to fetch income from it is atrocious and untenable argument.

33. Equally meritless was the submission that the Corporation under the Act was entitled only to issue licenses envisaged by the provisions of Ss. 416 and 417 laying down restrictions for establishing a factory etc. without permission of the Commissioner and use of the premises for certain purposes without obtaining a license. This submission betrays total lack of appreciation of the concept of a license and a lease known to law.

34. Shri Saigal. then submitted that the petitioners were in possession of- the Kiosk since Jan- 1974 and being in settled possession, the petitioners were not liable to be evicted except in due course of law and that they were further entitled to defend their possession even against the rightful owner who may try to dispossess them. This submission was sought to be reinforced on the basis of case in Puran Singh v. State of Punjab : AIR1975SC1674 . Reliance then was placed on a Branch decision of East Punjah High Court in State of Patiala and E P. States Union v. Mohinder Singh, and Vasudeva Kurup v, Ammini Amma 1964 K Lt 468 wherein it was observed that a person in possession albeit without title, was entitled to remain in possession, even against the lawful owner until evicted in due course of law and that a right course of action in such a case was to bring an appropriate action against the person in possession and secure his eviction in accordance with the provisions of law. It was accordingly contended that the Corporation was not entitled to take the law into its hands and throw out the petitioners. There is a fallacy in the submission. The petitioners being licensees with liberty to occupy and use the Kiosk for a period of 11 months in the first instance could not be said to be in legal possession of the premises, the legal possession all along remained with the Corporation. On revocation of the license they ceased to enjoy the liberty to continue to occupy the Kiosk so as to drive the Corporation to evict them in due course of law, nor can the petitioners' possession be said to be 'settled possession' as was sought to be made out.

35. Shri Saigal next contended that or revocation of the license, the petitioners possession of the Kiosks was that of trespasser and having accepted license fee subsequent to the revocation of the license, the Corporation acquiesced in the possession of the petitioners as trespassers, in the circumstances the Corporation has no right to dispossess the petitioners by force. This submission is equally devoid of force. In accepting license fee subsequent to the revocation of the license, all that can be said is that the license was extended up to the period of the license fee was accepted but it cannot be said that the Corporation in any manner acquiesced in the alleged or that the petitioners came to acquire 'settled possession'. The basic fallacy in this argument is the assumption that on acquiring liberty to occupy the Kiosk possession of it was passed to the petitioners. The petitioners being licensees legal possession all along remained with the Corporation. That being so, as held by the Supreme Court in Munshi Ram v. Delhi Administration Air 1968 Sc 702, the Corporation had a right to reenter the premises and rein state itself provided it does not use more

force than necessary. Such an entry would be received only as a resistance to an intrusion upon possession which had never been lost. Further, the law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection authorities, there being degrading to the human the face being of the nothing more spirit than to run away in peril.

36. Reliance on Lallu Yeshwant Singh v. Rao Jagdish Singh Air 1968 Sc 620 and Mohan Lal v. State of Punjab 1970 Ren C J 95 is wholly misplaced, the former case dealt with tenancy rights while the latter case pertained to lease rights. It was in that context that it wag observed that even an un authorised occupant could be evicted only in the manner authorised by law.

37. No assistance can be derived by the petitioners from Delhi Simla Catholic Archdiocese v. State of U. P., : AIR1976Delhi251 . In that case the right of the State as landlord to seek forcible eviction of the petitioners by exercising the right of re-entry was repelled as the petitioners, on the facts of the case, were held to be lessees,

38. Temporary injunction sought by the petitioners could be granted, if their case was covered by the three well established principles, namely, (1) on making out a prima facie case, (2) on showing balance of convenience in their favor, in that the refusal of the injunction would cause greater inconvenience to them and (3) whether on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioners have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners were bound to show that they have a legal right and that there was an invasion of that right. They have failed to show a legal right. Facts and circumstances. on the contrary, prima facie show that the petitioners on the revocation of the license are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act.

39. We see no infirmity, legal or factual, in the impugned order. The appellate Court in exercising its jurisdiction had neither acted illegally nor with material irregularity, as such as held by the Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, : (1972)ILLJ170SC , High Court's powers of revision under section 115 of the Code, cannot be invoked.

40. In view of our discussion on the various points noted above, the petitions fail and are dismissed accordingly. The petitioners shall pay the costs of the respondents.

41. Petitions dismissed.


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