DURJENDRA KRISHNA Vs. K SHAW

JUDGEMENT

(1.) The opposite party K. Shaw filed an application before the Rent Controller for standardisation of rent for what he claimed was held by him as a tenant under the present petitioner, viz., a portion of , the roof and parapet of 1 R.G. Kar Raod, Calcutta, where admittedly the opposite party displayed an advertisement by fixing a hoarding on a portion of the roof and the parapet. The petitioner raised an objection that this was no case of lease but that the opposite party K. Shaw was a mere licensee and not a lessee and accordingly the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 were not available to him. The learned Rent Controller accepted this contention and rejected this application on this ground. On appeal the learned Subordinate Judge held that this was not a case of mere license and that the paramount intention of the parties was to create a tenancy in respect of the roof and that the grantee was in the position of a tenant. He accordingly allowed the appeal and remanded the case to the Rent Controller with a direction for disposing of the application for standardisation of rent in accordance with law.

(2.) It is contended before us by Mr. Atul Chandra Gupta on behalf of the petitioner that on a proper interpretation of the documents that are produced and the evidence on the record it should be held that there was no demise and that only a license was granted to the opposite party and that the opposite party K. Shaw was not a tenant within the meaning of the Transfer of Property Act or within the meaning of the West Bengal Premises Rent Control Act, 1950.

(3.) There is no dispute before us as regards the principle to be applied in deciding whether a person is a lessee or a licensee. The princi ples were laid down recently by their Lord ships of the Privy Council in -- 'H.E. Wijesuriya v. Attorney. General for Ceylon' in (1950) A.C. 493. In that case their Lordships had to consider whether the provisions in a permit to be given to the appellant to tap and take the produce of the rubber trees on certain Crown lands created a lease or a license. Their Lordships observed: