• Leave and License

What is the maximum tenure that can be allowed in a Leave and License agreement? If the tenure of such agreement is more than 11 months then can it be treated as tenancy or does it remain a Leave and License during the subsistence of the Leave and License agreement?
Asked 7 years ago in Property Law
Religion: Muslim

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10 Answers

there is no fixed tenure for leave and license but it must contain clause that premises if given on leave and license basis and either it may be subject to renewal or not. In East India Hotels Ltd. v. Syndicate Bank, 1992, leave and license was given for 12 years and the supreme court has held that it is valid leave and license and no relationship of landlord and tenant is arise therefrom.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

1) merely because agreement for leave and licence is more than 11 months does not imply it is tenancy agreement

2) you can enter into leave and licence agreement for 33 months with a renewal clause

3) agreement should be duly stamped and registered

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. Do note that in WB there is no concept of leave and license,

2. once money is paid towards taking a premises on rent the person would be treated as either as tenant or lessee.

3.mere 11 months of agreement or mentioning him as licensee in the agreement does not make the agreement as leave and license.

4.So whether you mention 11 months or 11 years the person would be your tenant only and he can be evicted only on the ground as mentioned in WB Premises Tenancy Act.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

You would be governed by provisions of West Bengal premises tenancy act or transfer of property act depending upon the amount of rent

2) since mr barman is from West Bengal he can guide you further in the matter

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. The mere fact that the duration of the agreement exceeds 11 months does not ipso facto make it a tenancy agreement.

2. There is no limit to the duration of the leave and license agreement.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Indian Easements Act is a central legislation, the operation of which can be ousted or limited by the State Legislature. Only a WB based lawyer can answer on whether the Act is applicable to the state in the form it has been enacted by the Parliament.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. I concur with Mr.Burman that Indian Easements Act has no application to the state of WB. Following passage from the judgment of Calcutta High Court in the case of "Madhulata Kankani vs Homant Bangur'' says it all.

"20. We are unable to accept the submission of Mr. Deb that the provisions of the Indian Easements Act being based on the principles of justice, equity and good conscience as would appear from the object and reason of the said statute, Section 60 of the Act will literally apply to the case in hand notwithstanding the fact that the Act has no application to the State of West Bengal and that the aforesaid Supreme Court decision does not stand in the way of invoking Section 60 of the Act to the facts of the present case. "

2. 'Itc Limited vs Chowringhee Residency Private' decided by Calcutta HC is another judgment that may be read by the querist who claims to have dealt with many lawyers, but seemingly hasn't enriched himself despite his multiple parleys with legal minds.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

R. K. Chakraborty vs state of west Bengal 2011 scc online cal 2550: easement act is applicable in west Bengal.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

The reason apartments are often licensed for 11 months is that it allows the licensor to remove the tenant with minimum notice, as the Rent Control Act (which favours tenants) does not apply to agreements of less than 12 months. This notice period will be stated in the contract and is usually agreed upon by both parties. Lease agreements give greater rights to tenants, which property owners aren’t comfortable with. Firstly, it gives tenants the right to occupy the property rented for a longer duration. A license, however, gives the tenant the right to merely use the property for a limited time only, thereby ensuring regular renewal of the terms. This regular renewal protects the interest of the property owner, which a lease does not do. Lease agreements potentially encourage tenants to permanently occupy the premises, giving them an interest in the property. Under such circumstances it can be difficult for the landlord to evict the tenant.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

Calcutta High Court

Madhulata Kankani vs Homant Bangur on 9 February, 2005

Equivalent citations: AIR 2005 Cal 268, 2005 (2) CHN 1

Author: B Bhattacharya

Bench: B Bhattacharya, R N Sinha

JUDGMENT Bhaskar Bhattacharya, J.

1. This first miscellaneous appeal is at the instance of a plaintiff in a suit for declaration and permanent injunction and is directed against Order No. 14 dated October 7, 2004 passed by the learned Judge, 4th Bench, City Civil Court at Calcutta in Title Suit No. 972 of 2004 thereby dismissing an application for temporary injunction filed by the present appellant.

2. The appellant herein filed a suit being the aforesaid Title Suit No. 972 of 2004 in the City Civil Court at Calcutta thereby praying for declaration that she has acquired a licence coupled with grant in respect of a lawn/garden situated -at premises No. 10, Bakery Road, P.S. Hastings, Kolkata - 700 022 comprising an area of 12 cottahs of land and for permanent injunction restraining the defendants, their servants, agents and successors-in-office from making any construction on the suit property or changing the nature and character of the same.

3. In connection with the aforesaid suit, the plaintiff-appellant also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure thereby praying for temporary injunction restraining the defendants from carrying on any construction at the suit property or changing the nature and character of the same during the pendency of the said suit.

4. The case made out by the appellant in the plaint as well as in the application for temporary injunction may be summarised thus:

(a) The property situated at 10, Bakery Road is a trust property of M/s. M. B. Commercial Trust of which defendant Nos. 1 to 4 are the trustees.

(b) The said premises consist, inter alia, of a two-storied building, temple, servants' quarters, garages and a lawn/garden. The said lawn and garden situated at the said premises comprises an area of approximately 12 cottahs and such garden is the subject-matter of the suit.

(c) The said building situated by the side of the suit property has eleven flats, six flats are on the ground floor and five flats on the first floor. Each of the said eleven flats except one is occupied by various tenants being the plaintiff and the proforma defendant Nos. 5 to 16. Since January, 1992, the plaintiff is a tenant .in respect of a flat situated on the first floor of the building together with servants' quarters and garages. The plaintiff has also the right to use and enjoy the roof-top of the said building and other common areas of the said building and together with the suit property.

(d) The plaintiffs right has been confirmed by endorsement on a letter dated May 4, 1994 bearing signature of the Secretary of the Trust showing that the plaintiff has right over the first floor flat together with servants' quarters, garages and the right to use and enjoy the roof-top of the said building and other common areas together with the suit property.

(e) The suit property has all along been occupied and enjoyed by the plaintiff from the inception of the tenancy and the same is being used for the purpose of holding various social functions, and as a regular playground of all the children residing at the said building and also for various other common purposes. The suit property was in exclusive use and occupation of the plaintiff and other tenants of the said premises and all expenses towards maintenance of the suit property have all along been incurred by the tenants.

(f) The plaintiff has, thus, acquired a licence coupled with grant in respect of the suit property and plaintiff and other tenants have the exclusive right to occupy, use and enjoy the suit property.

(g) On Juno 15, 2004 at about 9:30 a.m. the plaintiff found that some outsiders had entered into the suit property and started cutting down the trees and hedges grown on the suit property and when the husband of the plaintiff approached those people, the latter represented themselves to be the men and representatives engaged by the respondent Nos. 1 to 4 for cutting down all the trees from the suit property and putting up a boundary wall around the suit property. On further enquiry, those people told the plaintiff and her husband that the respondent Nos. 1 to 4 were going to construct a new building on the suit property.

(h) The aforesaid act of defendant Nos. 1 to 4 was illegal resulting in violation of the right of the plaintiff to occupy, use and enjoy the suit property. Hence the suit and the application for injunction.

5. The aforesaid application was opposed by the defendant Nos. 1 to 4 by filing written objection thereby denying the material allegations made in the application for injunction and the sum and substance of the said written objection may be summed up thus:

1. The plaintiff filed the said suit without disclosing any rent receipt or documents showing right to use any area or portion other than one flat situated on the first floor and the servants' quarters and one car garage of premises No. 10, Bakery Road, Kolkata.

2. The suit was bad for misjoinder and multifariousness of cause of action. The M.B. Commercial Trust is the owner of the entire premises No. 10, Bakery Road consisting of a total area of land measuring 3 bighas 2 cottahs 5 chittaks and 25 sq. ft. and the plaintiff is one of the tenants under the said Trust and is in use and occupation only in respect of one flat of the first floor and one servants' quarter and the garage at the monthly rental of Rs. 1200/- per month and her tenancy had already been terminated.

3. The Trust is the owner of the suit property which is in exclusive use and control of land, garden and garage. The plaintiff had no occasion to exercise any right, title and interest over and in respect of the lawn or garden and her right was restricted to the tenanted portion and its free ingress and egress as would appear from the copy of the rent receipt issued by the trust. The plaintiff had suppressed the said document.

4. Prior to the filing of the present suit, one of the other tenants of the self-same premises filed a suit and prayed for order of injunction and other relief. In the said suit being Title Suit No. 972 of 2004, the plaintiff therein obtained an ex-parte order of injunction dated January 21,2004 but against such order, the Trust preferred an appeal before the High Court and by an order dated 12th July, 2004, the High Court was pleased to dispose of the appeal by setting aside the exparte order of injunction.

5. After passing of the order passed by the Division Bench of Calcutta High Court dated July 12, 2004, the plaintiff of the said Suit No. 972 of 2004 did not take any step on subsequent dates nor did he even pray for an order of extension of the order of injunction after having realised that purpose of filing of Title Suit No. 972 of 2004 became infructuous. The plaintiff of Title Suit No. 972 of 2004 has filed an application for amendment of plaint and in the present suit, the plaintiff of Title Suit No. 972 of 2004 is one of the defendants.

6. The plaintiff had no right to use or enjoy the roof-top of the said building or other common area of the said building and the said premises together with suit property as alleged. The claim of the suit property by way of purported letter dated May 4, 1994 bearing endorsement of Secretary of the trust evidencing tenancy in respect of the first floor flat together with servants' quarter garage and the right to use and enjoy the roof-top the other common areas of the said building and premises together with the suit property is not true and correct and the said document is fabricated one and the said document was prepared not by the Trust or the authorised representative thereto. The said Secretary had no authority or power to give such endorsement which is contrary to records as the tenancy of the plaintiff is restricted to the building portion and the plaintiff has no right over the suit property. The defendants are entitled to change the nature and character of the property being lawful owners thereof.

6. Ultimately, the learned Trial Judge by the order impugned herein has dismissed the application for injunction holding that the plaintiff had failed to prove prima facie case to have an order of injunction.

7. Being dissatisfied, the plaintiff has come up with the present appeal.

8. Mr. Deb, the learned Counsel appearing on behalf of the plaintiff, has contended before this Court that the learned Trial Judge erred in law in rejecting the application by not considering the case made out by the plaintiff in proper perspective, Mr Deb contends that his client has made out a case that in the suit property there is a licence coupled with the grant of tenancy in the building but the learned Trial Judge failed to consider that aspect of the matter. Mr Deb contends that learned Trial Judge proceeded to ascertain whether the suit property is part of the tenancy and after finding that the same is not the part of tenancy, rejected the application for injunction. According to Mr Deb, his client never claimed the suit property as part of tenancy but asserted that from the very inception of the tenancy, his client was given licence to use the suit property coupled with such tenancy and as such, in view of Section 60 of the Indian Easements Act, such licence is irrevocable so long the tenancy is not terminated in accordance with the law.

9. In support of the aforesaid contentions, Mr. Deb relied upon the following decisions:

1. Arpan Ali and Anr. v. Jnanendra Nath Pal Chowdhury and Anr. ;

2. Yarlagadda China Rattaya and Anr. v. Donepudi Venkataramayya and Ors. ;

3. Janardan Mahadeo Bhase and Ors. v. Ram Chandra Mahadeo Bhase and Ors. reported in AIR 1927 Bombay 240.

10. The aforesaid contentions of Mr. Deb have been seriously disputed by Mr. Kapoor, the learned senior Advocate appearing on behalf of the defendant Nos. 1 to 4. Mr. Kapoor contends that it will appear from the so-called letter dated May 4,1994 that the plaintiff claimed right over the lawn in question as a part of tenancy but in the present case she had come up with a different case that although the same was not part of tenancy, the same is the outcome of licence coupled with the grant of tenancy. Mr. Kapoor contends in support of the alleged right the plaintiff could not produce any document showing creation of such licence. He further contends that even the plaintiff could not disclose who granted such licence in her favour. Mr. Kapoor further contends that if such licence was really granted, she ought to have stated such fact in her alleged letter dated May 4,1994 when she is in possession of the tenanted portion form January, 1992.

11. Mr. Kapoor further contends that another tenant of the property in the past filed a different suit claiming self-same right and obtained ex parte order of injunction but when this Court in appeal vacated the order of injunction, a fresh suit has been filed through another tenant, namely, the plaintiff, for the purpose of achieving the self-same object.

12. According to Mr. Kapoor, defendant Nos. 1 to 4 undisputedty being the owner of the suit property, no injunction could be granted against the lawful owner when the plaintiff failed to establish any right of tenancy over the property. Mr. Kapoor contends that if some of the tenants, for some time use the other adjoining property of the landlord than the tenanted portion for the purpose of any social function, and even if landlord permitted them to use the lawn for the time being, such permission cannot become irrevocable by invoking provisions contained in Section 60 of the Easements Act. Mr. Kapoor, thus, prays for dismissal of the appeal.

13. Therefore, the only question that arises for determination in this appeal is whether in the facts and circumstances of the case the learned Trial Judge was justified in refusing the prayer for temporary injunction prayed for by the appellant.

14. In order to succeed in an application for temporary injunction restraining the defendants from doing any act, the plaintiff must prove existence of three conditions: First, the plaintiff must have a strong prima facie case to go for trial. Secondly, the balance of convenience and inconvenience must be in favour of granting temporary injunction and thirdly, the plaintiff must establish that if the temporary injunction as prayed for is not granted, he will suffer irreparable loss and injury.

15. We, therefore, proceed to consider whether the plaintiff has established the aforesaid three conditions.

16. So far the prima facie case is concerned, the plaintiff has in the plaint made out a case that a licence was granted in favour of the plaintiff which is coupled with the grant of tenancy in respect of the first floor flat along with right of user of roof-top and garage and servants' quarter. Mr Deb, the learned Counsel appearing on behalf of the appellant has made it clear before this Court at the time' of hearing that his client never claimed that such licence is part of tenancy and as such, the same was not reflected in the rent receipt. Mr. Deb heavily relies upon the endorsement of the then Secretary of the Trust confirming right of licence over the suit property.

17. After going through the said letter dated 4th May, 1994 written by the plaintiff to the Trust, it appears that in the said letter the plaintiff claimed that she is a tenant in respect of the flat in first floor and that she is also tenant in respect of a drive way, garage, lawn and the roof-top of the premises as tenant thereof along with other occupiers. Therefore, in the said letter the plaintiff never made out a case that the lawn or garden was not part of her tenancy but it was a separate licence granted coupled with grant; on the other hand, the last line of the said letter specifically asserted that she was claiming such right as "tenant thereof along with other occupiers. On the said letter there is endorsement of the then Secretary of the Trust confirming permission of maintenance and enjoyment of roof, garage and lawn along with other cotenants.

18. Therefore, the then Secretary did not accept the aforesaid assertion of the plaintiff that the Trust permitted her to enjoy the roof-top and garden as part of tenancy along with other co-tenant. Although, Mr. Kapoor appearing on behalf of the landlord has vehemently contended that the said letter is not a genuine one and at the same time, the then Secretary had no such right to confirm any such permission, even if we accept that the endorsement made by the Secretary is correct, it merely confirmed existence of permission to enjoy the garden or maintain the garden with other co-tenants. Such permission is nothing but a licence and if such licence is not "coupled with grant", the same cannot be irrevocable even according to Section 60 of the Easements Act. In the present case no written agreement has been produced by the plaintiff showing terms of tenancy. It appears from the rent receipt produced by the plaintiff with the affidavit-in-reply before the learned Trial Judge that such rent receipt disclosed the existence of right of the plaintiff in the first floor flat, servants' quarter and garage. If in addition to the said terms any other licence was granted coupled with the tenancy as incident thereof, it is expected that such right which is irrevocable in nature according to the plaintiff, should also have been mentioned in the rent receipt. Therefore, even if we ignore the objection raised by Mr. Kapoor as regards authority of the Secretary of the Trust to confirm such permission, all that came out from the said endorsement is that the plaintiff was permitted to use roof-top and garden but not as part of her tenancy right. If that be so, the intention of the parties was never to create irrevocable licence in favour of plaintiff. Moreover, this licence is not essential for enjoyment of the tenancy right of the plaintiff in the flat of the first floor of the premises. Therefore, we are not prepared to accept the contention of Mr. Deb that permission to use the garden or maintain garden was created at the time of creation of tenancy and such permission was irrevocable in nature during the subsistence of tenancy. At this stage, we cannot lose sight of the fact that the provisions contained in the Indian Easements Act have no application to the State of West Bengal. The consistent view of this Court was that notwithstanding such fact, the principles mentioned in the said statute are applicable to this State. However, the Apex Court in the case of Panchu Gopal Barua v. Umesh Chandra Goswami and Ors. while dealing with a case from the State of Assam where the Easements Act has no application deviated from the said view taken by the Gauhati High Court and observed that the High Court could only apply the principles of justice, equity and good conscience in deciding a case where the provisions of the Easements Act had no application but the provisions contained in the said Act could not be applicable. The following observations of the Apex Court are quoted below:

"The learned Single Judge noticed that the Easements Act had no application to the State of Assam, but went on to opine that the defendant was protected by Section 60(b) of the Act which 'operates' in this case relying upon the view expressed by Tek Chand, J. in Jagat Singh v . District Board, AIR 1940 Lahore 509, which had relied upon the opinion of Suleman, C. J. in Mathuri v. Bhola Nath .

The approach of the learned Single Judge in our opinion was erroneous. Once it was found that the Easements Act had no application to the State of Assam, the question of "clearing the way for Section 60(b) of the Act of operate" cannot at all arise. Of course, the principles of "justice, equity and good conscience" on which Section 60(b) of the Easements Act rests may apply in the facts and circumstances of a given case but that is not to say that though the Easements Act does not apply, provisions of section 60(b) of the Easements Act still "operate". Since, the legislature did not intend the Act to apply to Assam, the learned Single Judge could not have defeated that intendment by holding that "the defendant of the present case was protected by section 60(b) of the Act". It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary."

19. Therefore, after the decision of the Supreme Court in the aforesaid case we cannot extend the provisions of Section 60 of the Easements Act to the case in hand but we should be guided by the principles of justice, equity and good conscience and without taking aid of the said provision should decide the question whether the permission given by a landlord to use his other property to a tenant which is not incidental to the enjoyment of the tenancy confers irrevocable right of licence in favour of the tenant during the subsistence of tenancy. In our view, unless such license is specifically mentioned as irrevocable, we cannot infer in favour of irrevocability unless such right is "incidental to the tenancy". In this case, the appellant being a tenant of the first floor of the building the adjoining garden to the building cannot by any stretch of imagination be called incidental to the tenancy and even if any permission was given to the tenant to use the same, such permission is revocable. Our aforesaid view finds support from the observation of the Division Bench of this Court consisting of R. C. Mitter and Latifur Rahaman, JJ. in the case of Arpan Ali (supra), where the said Bench at page 416 has clearly stated that the licence coupled with the grant in order to be irrevocable must be one which is incident to the grant.

20. We are unable to accept the submission of Mr. Deb that the provisions of the Indian Easements Act being based on the principles of justice, equity and good conscience as would appear from the object and reason of the said statute, Section 60 of the Act will literally apply to the case in hand notwithstanding the fact that the Act has no application to the State of West Bengal and that the aforesaid Supreme Court decision does not stand in the way of invoking Section 60 of the Act to the facts of the present case.

21. We, thus, find that the plaintiff has failed to prove the prima facie case to have an order of injunction.

22. Apart from prima facie case, the balance of convenience and inconvenience is also in favour of refusing the prayer for injunction. The defendant Nos. 1 to 4 being undisputedly owners of the said land have right to construct building over the property and in the process, if any injunction' is passed restraining the landlords from making any construction but ultimately if the suit fails, the defendant will be in more disadvantageous position than that of plaintiff, in the event the injunction is refused and the suit succeeds in the long run. If the plaintiff ultimately succeeds, she can be compensated for not permitting her to use the garden or maintain the garden along with other co-tenants. At this stage we cannot also shut our eyes to the fact that apart from plaintiff, one other tenant came in the past asserting such right but he was unsuccessful in obtaining an order of injunction and other tenants are not coming forward claiming such right in spite of the full knowledge that landlords are trying to construct over the suit property. It is needless to mention that refusal of injunction cannot amount to "irreparable loss and injury" to the plaintiff so as to grant the relief. Thus, none of the aforesaid three conditions is satisfied in this case so as to grant temporary injunction in favour of the appellant.

23. We now propose to deal with the decisions cited by Mr. Deb.

24. In the case of Yarlagadda China Rattaya and Anr. (supra), the Andhra Pradesh High Court was considering a question whether Section 62(c) of the Easements Act was applicable in the facts of that case and in the case of Janardan Mahadeo Bhase and Ors. (supra), the Bombay High Court was considering the provisions contained in section 60 of the Easements Act. In both the aforesaid cases, the said Act was very much applicable to the areas where the respective suit property was situated. But in the case before us, the said statute has no application and as pointed out by the Supreme Court in the case of Panchu Gopal Barua (supra), we are to decide the case in hand on the basis of the principles of justice, equity and good conscience. Even in. those cases, the licences those were granted were coupled with the grant and were incidental to the grant, whereas in the case before us, the permission was prima facie neither coupled with the grant nor was the same an incident to the tenancy granted in favour of the appellant. Thus, those decisions have no application to the facts of the present case. The case of Arpan Ali (supra), has already been discussed and the said decision in no way support the case of the appellant but on the contrary, supports the view that a licence in order to be irrevocable must be coupled with the grant and must be an incident to the grant.

25. The decisions cited by Mr. Deb are, therefore, of no avail to his client.

26. We, thus, find no reason to interfere with the ultimate conclusion arrived at by the learned Trial Judge refusing to grant temporary injunction in favour of the appellant. The appeal is, accordingly, dismissed. The observations made herein are all tentative for the purpose of disposal of this appeal and will not be binding upon the learned Trial Judge at the time of disposal of the suit on the basis of evidence. In the facts and circumstances, there will be, however, no order as to costs.

Rajendra Nath Sinha, J.

27. I agree.

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

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