Earlier last year, my parents had given out our ground floor on 11 month’s leave and licence to an individual. The leave and licence expired on 30th November, 2016. On, 19th December, 2016 a notice under section 106 of TP Act was sent to him giving him 15 days’ time. That period is also over. Now my parents (licensors) are preparing to file an eviction suite. It is at this critical juncture, I noticed something amiss in the agreement. A. Although, the agreement says ‘Leave and Licence’ agreement, nowhere in the agreement is there any mention that the ownership and possession of the ground floor shall remain with my parents, (the licensors) during the tenure of ‘leave and licence’. I am given to understand that words to that effect make an agreement a ‘leave and licence agreement’. Neither does it say that possession would pass over to the Licensee. Nevertheless, I am told that it will be treated as rent agreement. Additionally, one condition states that in case of breech of agreement and etc. the licensors shall ‘take possession’ of the ground floor. My lawyer is saying that it implies ‘repossession’ of licenced property, which further implies that the agreement had legally transferred ‘possession’ to the licensee. And since there is implied transfer of ‘possession’, it is no longer a ‘Leave and Licence’ agreement. B. Although, the document is signed by both the parties (i.e. licencors and licensee), and 2 withnesses, and notorised, all the other pages of the agreement have remained unsigned. The agreement consists of 3 pages, 1st page being the stamp paper and then 2 dammy pages. The 1st two pages are unsigned and only the last page, is signed. My queries are: 1. Is the agreement still a ‘Leave and Licence’ agreement or is it a rent agreement. If it is still a ‘Leave and Licence’ agreement, under which Act will it be covered. Or will it be covered by West Bengal Tenancy Act. 2. Is the agreement still valid at all, considering that it is not initialed on all pages. PS: My parents live in Kolkata, West Bengal.
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The Validity of the agreement does not matter anymore. the moot question now is that the tenant is occupying the possession without any right. It is a leave and license agreement but all that is not important anymore.
You must focus on the eviction part. let the tenants lawyer come up and rely on the agreement. once he does that he will have to admit it in whole and will also be subject to the 11 month period.
it is necessary to peruse your agreement entered into with the licenceee to advice
2) it is necessary to mention in leave and licence agreement that licensor shall retain the the ownership and possession of the ground floor
3) Supreme Court in Associated Hotels of India Ltd. vs. R.N. Kapoor [AIR 1959 SC 1262] summed the concept of License as under:
“… Under the aforesaid section, if a document gives only a right to use the property in particular way or under certain terms while it remains in the possession and control of the owner thereof, it will be a license. The legal possession, thereof, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property.”
4) it appears to be a rent agreement .
5) the agreement would be valid even if not intialed on all pages
1. Do note that in West Bengal there is no existence of Leave and License . If the agreement receives consideration of money then the same would be treated as rent and depending on the quantum of rent the rent act would be applied.
2. So if in your case the rent is within Rs.6500/- the tenant favouring West Bengal premises Tenancy Act Act will apply. if it is above that then you can file eviction suit under T P Act.
3. Handing over of possession has no considerations in this as without handing over of possession no rent agreement or leave and license agreement.
So send notice of eviction under the Act which is applicable to your case.
If you are from Kolkata feel free to contact me.
1. It is jjust an argument that possession of the leased property is not given which can be counter argued with the logic that if possession is not given then how te leasee will use the leased property? If the leassor keeps his possession of the leased property band is free to enter in the property which he/she has leased to the leassee, then how the security and privacy of the leassee can be maintained? Your said agreement is very much a lease agreement and not a rent agreement.
2. The said agreement can be challenged by the leassee stating that he had signed some other lease agreement of which you have changed the 1st two pages which is different from what he had signed. If he challenges the said agreement, it will be declaraed as invalid for not having his signature on all the pages.
Thank you gentlemen, for your replies. To clarify, Mr Barman, the licence fee is Rs 6,500/- pm. Also, Mr Ganguly, the agreement is notarized with a notary certificate sewed into it. 1. So, under what Act, shall we be filing our eviction suite, TP Act or West Bengal Premises Tenancy Act? From my layman reading of WBPT Act, it appears that it defines ‘tenant’ in such a way that it leaves no scope for ‘leave and license’ agreements. However, I am not sure about lease agreements. This is extremely confusing and frustrating. 2. If, it is under WBPT Act, what grounds can we take for eviction? Note here, that the tenant hasn’t paid rent for the last 5 months. And in one moment of weakness, he gave my parents in writing that he would vacate their premises by 30th September, 2016, which, of course, he hasn’t done. 3. Regarding water supply, can we stop supplying him pumped water, considering that the water pump runs on our electric meter and he doesn’t pay any rent? Since as landlord we can’t deprive him of water supply, what if we make a separate arrangement of tap, connected to the main municipal water line.
You cannot disconnect his water supply
2) you can make separate arrangements of tap to supply water
3) in eviction suit claim eviction on grounds of bonafide personal use . Claim arrears of rent and also rentals on expiry of the agreement
1. It is to be governed under WBPT Act.
2. Yes, you can file case on default, bona fide requirement and surrender of tenancy ground.
3.You can not stop water supply though can disconnect electricty if chargs are not paid.
1. Back dated notarisation is very much possible. So, the fact that two pages of the agreement was not signed by the leassee will be taken advantage of by him. You have executed a 11 months leave and license agreement. You should file the eviction suit as per TP Act.
2. If you are file the eviction suit as per WBPT Act, then you can file it on the ground that he has not paid the lent for more than 5 months and also had assured to vacate the premise within 30.09.2016.
3. You can not stop providing him the basic amenities under any circumstances as per Supreme Court order without the due process of law.
In a leave and licence agreement the juridicial possession of the premises is deemed to remain with the licensor and the licensee is said to be in constructive possession of the said premises. Thus a leave and licence does not create any interest in the premises in favour of the licensee but gives the licensee the mere right to use and occupy the premises for a temporary period.
License is defined in Section-52 of the Indian Easement Act and the said Act is applicable to whole of India. Therefore every license is governed by those provisions under the said Act. When any premises are given on license is popularly known as given on leave and license. Such agreement is known as leave and license Agreement. In every state the jurisdiction of the Court is different. But the agreement of leave and license is valid in every state.
However if you go by WB tenancy act then this would be termed as lease agreement under transfer of property act.
In a leave and licence agreement, the owner is deemed to be in legal or judicial possession of the premises and the licensee is in constructive possession of the premises.
it is possible to introduce specific expression and words which peculiarly by its constructive intention would refer the law it suggests to be subject to, and accordingly interpretation would be drawn. There is one complete statute Indian Contract Act, and if you produce a good contract by which you make a conditional transaction with introduction of intended definitions imported from relevant acts and laws nothing is going to frustrate your contract.
1. If you are confused about which law to be applied to your situation, leave this mater to yor advocate, he shall take care of all those provisions that might be applicable to this situation.
2. The grounds for eviction shall be the same which is applicable to all laws that may be applicable in this situation.
Since you will be taking assistance of a lawyer to file his suit, you may handover the responsibility to the lawyer who will take appropriate steps as per law.
3. Disconnecting the water supply shall be an offence because i is the basic amenity and source of life or sustenance hence do not resort to such illegal activities.