V S BALAKRISHNAN Vs. PUDUKOTTAI MUNICIPALITY

JUDGEMENT

(1.) THIS writ appeal is preferred against the order dated 25.6.1993 passed by the learned single Judge in W.P.No.1615 of 1990. As the writ petition has been dismissed, the petitioner has come up in appeal.

(2.) IN the writ petitioner, the petitioner/ appellant sought for quashing of the notification dated 29.1.1990 in Na.Ka.A.4/15423/89 proposing to put up the right to collect fees in the weekly market for the period from 1.4.1989 to 31.3.1990 at the Pudukottai Municipality. The notification was challenged by the petitioner on the grounds that he is the lessee of the market in question as the same was leased to him under the indenture dated 5.4.1989 that though it was for the period between 1.4.1989 and 31.3.1990 it would not be open to the Municipality to evict the petitioner on the expiry of the period of lease without resorting to the procedure known to law. The Municipality opposed the writ petition and contended that the weekly market in question was not leased to the petitioner/appellant and he was only a licensee of the right of collecting fees in the weekly market for the period from 1.4.1989 to 31.3.1990, that right came to an end on 31.3.1990. Therefore, the petitioner/ appellant was not entitled to continue to collect the fees from the weekly market beyond 31.3.1990. As such the Municipality was entitled to conduct an auction of the right to collect the fees from the weekly market for the period subsequent to 31.3.1990 and it was that right which was put up for auction in the notification dated 29.1.1990. IN the writ petition, the petitioner had secured an interim order staying the proposed auction. Consequently, no auction was held and by this process the petitioner continues to collect the licence fees from those who conduct business in the market in question.

(3.) LEARNED counsel for the appellant has placed reliance on a decision of the Supreme Court in Qudral Ullah v. Bareilly Municipality Board, (1074)1 S.C.C. 202: A.I.R. 1074 S.C. 306, wherein also a question arose whether the document concerned therein was a licence or a lease. On the construction of the document, their Lordships of the Supreme Court held that it was only a lease and not a licence. The principles on the basis of which the document was held to be a lease, if applied to the facts of the case on hand, would show that the document in the instant case cannot at all be construed to be a lease. It may be relevant to notice the following principles to which reference was made in the aforesaid decision: Merely because the relationship is described as that of licensce and licensor, it will not be a decisive consideration, what is necessary to be seen is the intention of the parties, in the instant case, we have pointed out that the intention of the parties is explicitly stated and what was auctioned was the right of collecting the fees in the weekly market, and not to lease the market. Another test stated is that the exclusive possession, and in that regard it is stated that the agreement, if it grants a right of exclusive possession, is not in itself conclusive evidence of the existence of a tenancy but it is a consideration of the first importance. In the instant case, we have pointed out that no exclusive possession has been given to the appellant/ petitioner and the right of inspection has been retained and the appellant has been injuncted from assigning or parting with possession and benefit of the licence or of the liberties that have been granted to him under the document. In addition to this, it is also necessary to point out that the notification issued for auctioning the right of collecting the fees in the weekly market stated that the auction purchaser shall collect a certain amount from the various types of stalls. Applying the aforesaid tests it is not possible to hold that the document in question in the instant case is a lease deed. As already pointed out, the Municipality never intended to lease out the market in question and no exclusive possession had been given to the petitioner. What was auctioned and when was put up for auction, was the right of collecting the fees in the weekly market. No exclusive possession of the market building as such was given to the appellant. It is a case in which the use of the market in a particular way for a particular purpose, namely, for collecting the fees from the weekly market was given on certain conditions, while the Municipal Council retained its control over the market building. The appellant was not given the property, i.e. market to the exclusion of the Municipal Council. The petitioner/ appellant also did not understand that what was given to him was a lease. Taking into consideration all the circumstances surrounding the document and the terms of the document, we came to the conclusion that the document in question is only a licence. Therefore, the learned single Judge is justified in holding that the document in question is a licence and not a lease.