1. Learned Standing Counsel fairly stated that the issue raised in this case is a pure question of law which has to be determined by construction of licence deed, (Annexure 2 to the writ petition), so as to find out whether it results in grant of a "Lease" in the garb of a "Deed of Licence" or, in fact, it is a "Licence" only and, therefore, the writ petition may be heard finally at this stage under the Rules of the Court, as he does not propose to file any counter affidavit but would address this Court from the documents available on record as also the statutory provisions and various authorities on the subject. In these circumstances, with the consent of learned counsels, I proceed to hear this matter so as to decide finally at this stage under the Rules of the Court.
2. Heard Sri K.R.Sirohi, Senior Advocate assisted by Sri Yogesh Kumar Singh, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
3. The writ petition is directed against order dated 11.12.2013 passed by respondent no.2 in Stamp Revision No.26/2008-09/Meerut (M/s Godwin Construction Vs. State), under Section 56, Indian Stamp Act, 1899 (hereinafter referred to as "Act, 1899") as well as order dated 20.2.2008 passed by respondent no.3 in Case No.94/V 358/02-03 (State Vs. M/s Godwin Construction) under Section 33(4) of Act, 1899 (Annexures 10 and 9 to the writ petition).
4. Following two questions have been raised:
(a) Whether from terms and conditions of agreement in question, the document can be said to be a mere "deed of licence" or it is a "lease deed"?
(b) Whether Section 33 of Act, 1899, is applicable in the case in hand?
5. Before answering aforesaid questions, it would be appropriate to have a bird eye view to the relevant facts and contents of documents relevant in the matter.
6. The petitioner is a Company, engaged in construction activities and development of land etc.. Meerut Development Authority (hereinafter referred to as "MDA") acquired certain land under Land Acquisition Act for its development as residential-cum-commercial scheme, which was subsequently termed as "Ganga Nagar Housing Scheme". The Scheme sought to be executed in private partnership as per U.P. Government's Urban Residential Scheme, 1995 by allotment of land to developers and contractors. For the land in question, measuring 44,145.79 sq. meters, an auction was held on 9.11.2001. The petitioner was the highest bidder. Therefore, the land was allotted to him in the aforesaid auction @ Rs.860/- per sq. meter. The alleged licence deed was executed between MDA and petitioner on 19.2.2002. The relevant part of said licence deed reads as under:
"And whereas Second Party has been the highest bidder in Tender Cum Auction dated 9.11.2001, at the rate of Rs.860/- per sq. meter. Hence this agreement is being executed and all the terms and conditions, tender, Payment Schedule, and other relevant documents & also resolution of party No.2 are being made part of this agreement. The parties shall remain bound with the same. The party of the Second part has so far only deposited an amount of Rs.75,93,076/- which is uptodate as per Payment Schedule, as agreed upon in terms of Tender Cum Auction. So possession of land area measuring 44,145.79 sq.mt. as licensee is being given today as per annexed Site Plan and the stipulated period starts today i.e. Feb. 19. The Licensee will not deliver possession to his nominee without getting the Deed executed by M.D.A. in favour of nominee. A total amount Rs.45,55,846/- on total salable area of the transferable area shall be charged from all the allottees which shall be recovered from final allottees in proportionate to their salable areas, but this amount will be realized through the licensee and he will be responsible to deposit it." (emphasis added)
7. The document appended to the said deed shows that total cost of property measuring 44,145.79 sq.meters was shown as Rs.3,79,65,380/-, which was payable by petitioner, in ten six monthly instalments after deducting the amount already deposited by him i.e. Rs.75,93,076/-. A copy of terms and conditions, which was made part of aforesaid deed has also been placed on record at page 36 to 44. This Court propose to refer therefrom at a later stage.
8. The Additional District Magistrate (Finance & Revenue), Meerut, issued a notice dated 26.11.2002, in purported exercise of power under Section 33/47A of Act, 1899 stating that document in question is a lease agreement and stamp duty paid thereon is not in accordance with statute, therefore, petitioner may show as to why proper stamp duty be not determined and it be required to pay the same along with penalty, if any. A letter was also issued by Deputy Commissioner, Stamps on 27.12.2002 addressed to District Stamp Officer, Meerut informing that there is a deficiency of stamp to the extent of Rs.11,08,290/- in the aforesaid document.
9. The petitioner submitted objection dated 01.2.2008 stating that since document in question was not compulsorily registrable, therefore, it has not been registered and hence proceedings under Section 47A of Act, 1899 are illegal since it is attracted only when document is presented for registration and not otherwise.
10. Collector, Meerut thereafter passed order dated 20.2.2008 under Section 33(4) of Act, 1899 holding that document in question is a 'lease' and, therefore, compulsorily registrable under Section 17 of Registration Act. The stamp duty is payable as per Schedule 1-B, Item 35(b), which comes to Rs.37,96,600/-. It also rejected objection that determination of sufficiency of stamp commences only when the document is presented for registration. It held that as per Section 2(16) of Act, 1899, with the execution of document, provisions of stamp duty gets attracted. Ultimately, he held that petitioner is liable to pay deficiency of stamp of Rs.37,96,500/- and an equal amount towards penalty. The petitioner, aggrieved by the aforesaid order, preferred revision under Section 56 of Act, 1899, which has been dismissed by Revisional Authority, vide order dated 11.12.2013.
11. Both the authorities i.e. respondents no.3 and 2, respectively, have held that document in question is a "lease deed" and therefore, stamp duty is payable as per Schedule 1-B, item 35(b) of Act, 1899.
12. Sri K.R.Sirohi, learned Senior Advocate submitted that document in question is nothing but a mere agreement for construction and development of property in question and no lease rights have been conferred upon petitioner so as to constitute the said document as 'lease', defined under Section 105 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") and/or Section 2(16) of Act, 1899. He drew my attention to various clauses of terms and conditions of aforesaid scheme, which form part of alleged licence deed and said that petitioner has to develop by raising construction etc. over land in question and thereafter the developed property/houses constructed thereon, shall be allotted to the individuals. The only responsibility of petitioner is to develop the land, construct houses, etc. and get the same allotted and transferred to actual beneficiaries. Beyond that, no rights have been conferred upon petitioner, what to say of an interest in the land and, therefore, it cannot be said that document in question would constitute a "lease deed" so as to attract chargeability of stamp duty under Schedule 1-B, item 35(b) of Act, 1899.
13. Learned Standing Counsel, on the contrary said that careful reading of various clauses and stipulations in the instrument would show that in effect the document is a "lease" and, therefore, chargeable to stamp duty, accordingly. Respondents no.2 and 3 therefore, have rightly determined deficiency of stamp duty. Since the petitioner is guilty of non registration and non payment of appropriate stamp duty, therefore, penalty has also been imposed, though authorities have taken a lineant view and therefore, penalty only to the extent of equal to the amount of deficiency of stamp duty has been imposed, instead of imposing multi fold penalty.
14. From the record, it cannot be doubted that petitioner has not got a work contract of raising construction over land possessed by MDA and paid for the work done. On the contrary, a sum of about Rs.3 crores is the cost of total land allotted to petitioner. Whenever a person is given a work contract or only a development contract, normally, question of payment of price of land by such contractor or such person does/would not arise but in the present case, as per terms and conditions, total cost of land, allotted to person concerned, will have to be paid by him. 10% of the cost he has to pay within 15 days from the date of allotment, after auction, or from the date of opening of tender. Next 10%, he will have to deposit within one month from the date of dispatch of allotment letter and rest 80%, if deposited within six months, no interest would be payable thereon. But if it is to be deposited in ten, six monthly instalments, the incumbent will have to pay an interest @ 16.5% on 72% of the total cost of the land provided the first instalment is deposited within six months from the date of allotment letter. It also says that in case of sale of land or property by such allottee to others, it will have to deposit a pre-determined amount with MDA before execution of sale deed. This is a kind of premium to be paid to MDA, though right to select and onward allotment of land has been given to petitioner. Para 6 of terms and conditions, which form part of alleged licence deed, is reproduced, which contains conditions as noted above:
^^6- Hkw[k.Mksa ds ewY; dh Hkqxrku izfdz;k ¼1½ jks&gkÅflax @ MqIysDl gkÅflax @ xzqi gkÅflax @ Hkw[k.Mh; fodkl djus gsrq Hkwfe ds vkoaVu vkWQj tkjh gksus ds mijkUr Hkwfe ds dqy ewY; dh 10% /kujkf'k ¼/kjksgj /kujkf'k dks lek;ksftr djrs gq,½ izkf/kdj.k esa mPpre cksyhnkrk @ fufonknkrk }kjk 15 fnu esa tek djuh gksxh mlds mijkUr gh vkoaVu i= fuxZr fd;k tk;sxkA Hkwfe dk vkoaVu i= fuxZr gksus ds ,d ekg ds vUnj Hkwfe ds dqy ewY; dh vxyh 10% /kujkf'k ¼vkoaVu /kujkf'k½ izkf/kdj.k esa tek djuh gksxhA vkoaVu i= fuxZr gksus dh frfFk ls vo'ks"k 80% /kujkf'k ij 6 ekg dh vof/k gsrq dksbZ C;kt ns; ugha gksxk vFkkZr 80% /kujkf'k ij rS;kjh dh tkus okyh 10 NekbZ fd'rksa esa ls izFke fd'r vkoaVu i= tkjh gksus ds fnukad ls 6 ekg ds vUnj fcuk C;kt ds ns; gksxh vkSj 'ks"k 72% /kujkf'k ij 16-5% okf"kZd C;kt lfgr lk<+s pkj o"kZ dh 9 Nekgh fd'rksa esa izkf/kdj.k esa tek djuh gksxhA le; ls [email protected] fd'rksa dk Hkqxrku u fd;s tkus dh n'kk esa fu/kkZfjr fd'[email protected] /kujkf'k ij mPpre [email protected] [email protected] [email protected] vkoaVh }kjk 22% vfrfjDr n.M C;kt ds lkFk ns; gksxh rFkk 12% QzhgksYM /kujkf'k dk Hkqxrku vxzfyf[kr fu;e 7 ¼dCtk gLrkUrj.k½ esa mfYyf[kr jhfr ls ns; gksxkA ;fn fufonk Lohd`r gksus ds mijkUr vkoaVu vkWQj i= tkjh djus ds i'pkr Hkwfe ds dqy ewY; dh 10% /kujkf'k ¼/kjksgj /kujkf'k dks lek;ksftr djrs gq,½ vkosnd }kjk fu/kkZfjr le; vof/k rd tek ugha dh tkrh gS rks tek /kjksgj /kujkf'k tCr dj yh tk;sxhA yxkrkj 2 fd'rksa dk le; ls Hkqxrku u fd;s tkus ij vkoklh; cYd Hkw[k.M dk vkoaVu @ ykbZlSUl fujLr dj izkf/kdj.k esa tek /kjksgj /kujkf'k iw.kZ :i ls tCr djrs gq, 'ks"k cph gqbZ /kujkf'k esa ls 15% dVkSrh dj 'ks"k /kujkf'k fcuk C;kt ds okil dh tk;sxh rFkk Hkwfe ls csn[ky dj izkf/kdj.k }kjk vkoafVr Hkwfe ij dCtk izkIr dj fy;k tk;sxkA vkoaVh }kjk bl lEcU/k esa fdlh Hkh U;k;ky; esa dksbZ okn nk;j ugha fd;k tk ldsxkA ¼2½ [email protected] dks izkf/kdj.k }kjk tkjh fd;s x;s fd'r i= esa mfYyf[kr fd'rksa dk ;Fkkor~ Hkqxrku djuk gksxk fdUrq ;g Hkh vko';d gksxk fd Hkw[k.Mksa @ ifjlEifRr;ksa dks ,d iwoZ fuf'pr nj ij csps tkus ij Hkw[[email protected];ksa ds fufeRr /kujkf'k cSukek djus ls iwoZ izkf/kdj.k esa tek djuh gksxhA bl izdkj [email protected] }kjk nh tkus okyh /kujkf'k;ksa dk lek;kstu] nh tkus okyh pkyw fd'rksa esa ugha gksxk oju~ [email protected] ykbZlSUlh }kjk bl izdkj fd'rks ls i`Fkd tek dh x;h /kujkf'k;ksa dk lekos'ku vfUre vo'ks"k fd'r ,oa cdk;k ns; QzhgksYM ds lkis{k dj fy;k tkosxkA^^ (emphasis added) "6. Process of Payment of the Cost of the Plots (1) For the development of Row Housing/Duplex Housing/ Group Housing/Plot, the allotment letter shall be issued only after deposite of 10% of the total cost of the land (after adjusting the earnest money) with the authority by the highest bidder/tenderer within 15 days of issuance of the land's allotment offer. The next 10% (allotment amount) of the total cost of the land shall have to be deposited with the authority within one month of issuance of land's allotment letter. No interest on the remaining 80% amount shall be payable for 6 months from the date of issuance of the allotment letter i.e. Out of 10 half yearly instalments due against the 80% amount, the first one shall be payable without interest within 6 months from the date of issuance of the allotment letter; and the remaining 72% amount with 16.50% interest per annum thereon shall have to be deposited with the authority in 9 half yearly instalments spanning 4.5 years. In case of non-payment of the instalments/allotment amount in time, the respective instalment/allotment amount shall be payable by the highest bidder/tenderer/licensee/allottee with 22% extra as penal interest, and 12% shall be payable as freehold charges in such a manner as provided in Rule 7 (Transfer of Possession) quoted hereinafter. If, after acceptance of the tender and issuance of the allotment offer letter, the 10% of the total cost of the land (after adjusting the earnest money) is not deposited by the applicant within the stipulated period then the amount of earnest money deposited shall be forfeited. In case of non-payment of two consecutive instalments in time, the allotment/licence of the residential bulk plots shall be cancelled, forfeiting the entire earnest money deposited with the authority; and after making 15% deductions from the remaining deposited amount, the balance shall be returned without interest and possession over the allotted land shall be taken back by the authority dispossessing the applicant of the land. No suit in this respect shall be filed by the allottee before any court.
(2) The licensee/allottee shall have to pay the instalments as specified in the instalment schedule but it shall also be important that on selling the plots/assets at a predetermined rate, the amounts towards the plots/assets shall be required to be deposited with the authority before execution of the sale-deed. In this way, the amounts so paid by the developers/licensees shall not be adjusted in the instalments currently being paid, rather the amounts so paid by the developers/licensees apart from the instalments shall be adjusted against the last remaining instalment and the freehold dues."
(English Translation by Court)
15. Clause 7 of aforesaid terms and conditions states that after execution of agreement and payment of 20% of cost of allotted land as also 12% of amount towards freehold, possession would be handed over to the allottee with his status as freehold purchaser in instalments. It also says that all stamp duty and registration charges payable shall be borne by allottee. In the alternative, it is provided in para 7 of terms and conditions that if the allottee proposes to take possession as a licensee, he can do so after depositing 20% of the cost of allotted land to MDA. But in that case, responsibility of payment of 12% freehold charge etc. from subsequent allottees of developed and constructed property would be responsibility of licensee. On the amount of freehold, developer or licensee will not be liable to pay any interest but entire amount towards freehold charges of 12% shall be paid by developer/licensee along with last instalment of the cost of allotted land.
16. For ready reference, para 7 is also reproduced as under:
^^7- dCtk gLrkUrj.k vkoaVh ls jks&gkÅ[email protected] MqIysDl gkÅ[email protected] xzqi gkÅflax @Hkw[k.Mh; fodkl djus gsrq vkoafVr Hkwfe ds ewY; dk 20% /kujkf'k ,oa 12% QzhgksYM dh /kujkf'k rFkk nLrkost 'kqYd :i;s 50 @& dk Hkqxrku izkIr gks tkus ds mijkUr ;kstuk dks fdz;kfUor djus ds fy;s izkf/kdj.k ds lkFk fu;ekuqlkj fu/kkZfjr LVkEi isij ij vuqcU/k fucfU/kr djkus ds mijkUr Hkwfe dk dCtk Qzh&gksYM fd'r dzsrk ds :i esa fn;k tk;sxk rFkk voaVh }kjk iw.kZ Hkqxrku djus ds i'pkr dCtk vuqcU/k ds fu"iknu @ fucU/ku ds le; miHkksx esa vk;h LVkEi M~;wVh dk fu;ekuqlkj lek;kstu djus ds i'pkr~ 'ks"k ns; LVkEi M~;wVh ij iw.kZ LoRo ds vk/kkj ij vkoafVr vkoklh; cYd Hkw[k.M dk fodz; foys[k dk fucU/ku fd;k tk;sxkA vkoaVh dks fodz; foys[k ds fu"iknu ds le; nLrkost 'kqYd :i;s [email protected]& tek djus gksaxsA vuqcU/k @ fodz; foys[k ds fu"iknu @ fucU/ku dk leLr O;; vkoaVh }kjk ogu fd;k tk;sxkA vFkok ;fn mPpre cksyh @ fufonknkrk Hkwfe dk dCtk crkSj ykbZlSUlh ysuk pkgrk gS rks vkoafVr Hkwfe ds ewY; dk 20% tek djus ds mijkUr izkf/kdj.k ds lkFk ykbZlsUl MhM dk fu"iknu djds vkoafVr Hkw[k.M dk dCtk crkSj ykbZlSUlh izkIr dj ldrk gS c'krsZ fd dqy Hkw[k.M ewY; dk 12% QzhgksYM en esa ns; /kujkf'k] ykbZlSUlh }kjk fodflr @ fufeZr lEifRr;ksa dks vius ukfer O;fDr;ksa ds i{k esa fucU/ku ds le;] tek djus @ ukfer O;fDr ls tek djkus dk nkf;Ro ykbZlSUlh dk gksxkA bl QzhgksYM dh /kujkf'k ij MsoyilZ @ ykbZlSUlh }kjk dksbZ C;kt ns; ugha gksxk rFkk fd'r i= }kjk fu/kkZfjr le;kof/k ds iw.kZ gksus ls iwoZ MsoyilZ @ ykbZlSUlh }kjk QzhgksYM dh cdk;k lEiw.kZ /kujkf'k dk Hkqxrku vfUre fd'r ds lkFk fd;k tkosxkA ykbZlSUlh dks ykbZlSUl MhM ds fu"iknu gsrq ns; @ fu/kkZfjr LVkEi M~;wVh dk tujy LVkEi o :i;s 50 @& nLrkost 'kqYd izkf/kdj.k dk;kZy; esa tek djuk gksxk rFkk blh izdkj ykbZlSUlh ds ukfer O;fDr ds i{k esa ifjlEifRr ds fodz; foys[k dk fu"iknu djrs le; ns; @ ykxw LVkEi M~;wVh ,oa :i;s 50 @& izfr ukfer O;fDr izkf/kdj.k dk;kZy; esa tek djuk gksxkA fodz; foys[k ds fu"iknu @ fucU/ku dk leLr O;; ykbZlSUlh ds ukfer O;fDr }kjk ogu fd;k tk;sxkA** "7. Transfer of Possession For implementation of the scheme after receipt of payment from the allotee equal to 20% of the cost of allotted land, 12% as freehold charges and Rs. 50/- as document charges for the development of Row Housing/Duplex Housing/Group Housing/Plot, he/she shall be given possession of the land on freehold basis as a buyer paying instalments after entering into an registered agreement with the authority on the requisite stamp paper as per rules; and after entire payment by the allottee, the sale-deed of the allotted residential bulk plots shall be executed on the basis of full title on payment of remaining stamp duty payable after adjusting the stamp duty that was paid at the time of executing/registering the agreement for handing over the possession. At the time of execution of the sale-deed, the allottee shall be required to pay Rs. 50/- as document charges. All the expenses related to the execution/registration of the agreement/sale-deed shall be borne by the allottee.
OR If the highest bidder/tenderer wants to take possession of the land as a licensee, he can take possession of the allotted plot as a licensee by depositing 20% of the cost of the allotted land and after executing the licence deed with the authority, provided at the time of registration of the agreement by the licensee in favour of his nominees for developed/constructed assets, it shall be his liability to pay 12% of the total cost of the plot payable as freehold charges or have this amount deposited by the nominees. No interest shall be payable by the developers/licensees on this freehold amount, and the entire remaining amount of the freehold charges shall be paid by the developers/licensees with the last instalment before expiry of the stipulated period as specified in the allotment schedule. The licensee shall be required to deposit with the office of the authority the general stamps for stamp duty payable for execution of the licence deed and Rs. 50/- as document charges; and similarly, while executing the sale-deed for the assets in favour of the allotee's nominee, the payable/applicable stamp duty and Rs. 50/- per nominee shall be required to be deposited with the office of the authority. Entire expenses related to the execution of the sale-deed shall be borne by the allotee's nominee." (English Translation by Court)
17. Then there are a few more clauses which have some relevance in the matter in dispute i.e. Clauses 9, 10, 11, 15, 16, 18 and 20. Only relevant part of aforesaid clauses are being reproduced as under:
^^9- lsokvksa rFkk lqfo/kkvksa dk izkfo/kku xaxkuxj] osn O;kliqjh] jke euksgj yksfg;k uxj ;kstukvksa ds Hkw[k.M ds fy;s eq[; ekxZ ij Vªd MsªUl] Vaªd lhoj] ,d LFkku ij tyiwfrZ dk duSD'ku o ;kstuk esa miyC/k [email protected] ds0oh0 ykbZu ds ,d LFkku ij fo|qr duSD'ku miyC/k jgsxkA vkoafVr Hkw[k.M esa leLr vkUrfjd fodkl vkoaVh }kjk Lo;a djk;s tk;saxsA Hkfo"; esa fodkl izkf/kdj.k }kjk lhost V~hVesUV IykUV dk tc dHkh izkfo/kku fd;k tk;sxk rks ml lsok ij gksus okyk O;; lekuqikfrd :i ls ykbZlSUlh @ vkoaVh }kjk izkf/kdj.k dks ns; gksxkA^^ ^^10- ys&vkÅV rFkk Hkou fMtkbZuksa dk izLrqfrdj.k vkoaVh }kjk jks&gkÅ[email protected] gkÅ[email protected] gkÅ[email protected] Hkw[k.Mh; fodkl djus gsrq vkoafVr Hkwfe dk vkoaVu izkIr djus ds 4 ekg dh vof/k ds vUnj Hkou mifof/k 2000 esa mfYyf[kr fu/kkZfjr ekudksa ,oa le; le; ij tkjh 'kklukns'kksa ds izkfo/kkuksa ds vUrxZr Hkwfe dk ys&vkÅV rFkk Hkouksa ds fMtkbZu fodkl izkf/kdj.k esa izLrqr djus gksaxsA ys&vkmV Iyku Hkou mifof/k 2000 esa mfYyf[kr izkfo/kkuksa ds vuqlkj jks&gkÅflax @ MqIysDl gkÅflax @ xzqi gkÅflax @ Hkw[k.Mh; fodkl djus gsrq vkoafVr Hkwfe ij vkoklh; Hkouksa dk fuekZ.k vuqeU; gksxkA ys&vkÅV Iyku ,oa Hkouksa ds fuekZ.k dh vuqefr ds fy;s izLrqr izLrko esa fuEu fooj.k vo'; izLrqr fd;s tk;sxsaA----^^ ^^11- ekufp=ksa ij vukifRr ,oa fodkl O;; dk Hkqxrku fodkl ,oa Hkou fuekZ.k ds ekufp=ksa ij 6 lIrkg dh vof/k esa ;k rks leLr vkifRr;kWa ,d lkFk izLrqr dj nh tk;sxh vFkok izLrko ij bl vk'k; dk vukifRr izek.k i= fuxZr dj fn;k tk;sxk fd vkoaVh vkUrfjd fodkl dk;Z vkjEHk djus ds fy;s fodkl O;; dk vuqeku rFkk Hkouksa dk izLrkfor fuekZ.k O;; lwfpr djsaA fodkl ,oa fuekZ.k dk;Z dh fof'kf"V;kWa] fMtkbZu rFkk vkx.ku ij fdlh ekU;rk izkIr bUthfu;j ls izek.k i= izkIr fd;k tk;sxkA ^^15- dk;Z lekfIr leLr pj.kksa dk fodkl ,oa fuekZ.k dk;Z izR;sd pj.k gsrq iwoZ fu/kkZfjr le;kof/k esa iw.kZ djuk gksxkA mPpre fufonknkrk @ cksyhnkrk ¼ykbZlsUlh @ vkoaVh½ ds fy;s vkoafVr vkoklh; Hkw[k.M dk lEiw.kZ fodkl djus ds fy, vf/kd ls vf/kd 5 o"kksZa dh gksxhA bl fu/kkZfjr vof/k esa vFkok lEcfU/kr vfHkdj.k }kjk Lohd`r le; lkj.kh ds vuqlkj izR;sd pj.k dk fodkl @ fuekZ.k dk;Z iw.kZ dj fy;k tk;sxkA fufeZr @ fodflr Hkouksa @ Hkw[k.Mksa ds lEcU/k esa mPpre~ fufonknkrk @ cksyhnkrk ¼ykbZlSUlh @ vkoaVh½ }kjk dk;Z lekfIr dh fyf[kr lwpuk fodkl izkf/kdj.k dks nh tk;sxhA fodkl izkf/kdj.k }kjk bl lwpuk ds 1 ekg ds mijkUr ;k Hkhrj dk;Z ;fn iwoZ vuqeksfnr fof'kf"Vrkvksa ds vuq:i ik;s x;s rks dk;Z lgh :i ls lekIr gksus dk izek.k i= ¼lfVZfQdsV vkWQ dEiyh'ku½ vkoaVh @ ykbZlSUlh dks ns fn;k tk;sxkA^^ ^^16- jks&gkÅ[email protected] gkÅ[email protected] gkÅflax gsrq Hkw[k.M izkIr [email protected][k.Mh; fodkl djus ds Hkw[k.M ij lEifRr vkoaVu rFkk LofoRr iksf"kr izk.kkyh dk izkfo/kku fodkl izkf/kdkj.k dks izFke NekbZ fd'r ds Hkqxrku ds mijkUr dzsrkvksa ls LofoRr iksf"kr ;kstuk ds vk/kkj ij vkosnu izkIr dj vUrfje :i ls vkoaVu dj ldrs gSa ijUrq fdlh Hkh izdkj Hkou ds vkoafV;ksa ls izkIr /kujkf'k vkoaVh }kjk O;; dh x;h /kujkf'k ls 90% ls vf/kd ugha gksxhA^^ ^^18- jks&gkÅflax @ MqIysDl gkÅflax @ xzqi gkÅflax @ Hkw[k.Mh; fodkl djus ds fuekZ.k gsrq vkoafVr Hkwfe ij fuekZ.k gsrq fodflr lsokvksa dk j[k&j[kko fodkl dk;Z ,oa Hkouksa ds fuekZ.k dh lekfIr ds i'pkr~ lHkh vkUrfjd lsokvksa] lM+dksa rFkk ikdksaZ vkfn dk j[k&j[kko mPpre~ [email protected] ¼[email protected]½ }kjk dk;kZof/k lekfIr ls iwoZ rd Lo;a vius O;; ij fd;k tk;sxkA^^ ^^20- dk;Z lekfIr ds i'pkr~ vkoaVh dk mRrjnkf;Ro dk;Z lekfIr ds i'pkr~ fodkl ,oa fuekZ.k dk;ksZ esa ik;h x;h dfe;ksa ds fy;s mPpre [email protected] ¼[email protected]½ dk mRrjnkf;Ro gksxk ftlds fy;s vuqekfur fodkl ,oa fuekZ.k O;; ds 5 % ds cjkcj /kujkf'k vkoaVh }kjk fodkl izkf/kdj.k dks ifjlEifRr ds vkoaVu ds i'pkr~ ,d o"kZ dh vof/k gsrq cSad xkjUVh ds :i esa miyC/k djk;h tk;sxhA ;fn ,slh dqy /kujkf'k fodkl ls iwoZ tek fodkl O;; ds 50% ls vf/kd gks rks vo'ks"k /kujkf'k fuekZ.k dk;Z lekfIr ds izek.k i= fn;s tkus ls iwoZ fodkl izkf/kdj.k }kjk izkIr dj yh tk;sxhA
----
leLr cdk;k ,oa ns; /kujkf'k Hkw&jktLo ds cdk;k ds :i esa [email protected] ykbZlSUlh ls olwy dh tk ldrh gSA fodkl izkf/kdj.k rFkk mPpre~ [email protected] ¼[email protected] vkoaVh½ ds e/; bu izkfo/kkuksa ds vuqikyu dks ysdj ;fn dksbZ fookn mRiUu gksrk gS rks mik/;{k] esjB fodkl izkf/kdj.k }kjk fu;qDr fookpd }kjk fopkj dj QSlyk fd;k tk;sxkA
----
;fn fufonk lg&[email protected]@ykbZlSUlh }kjk vkoklh; cYd Hkw[k.Mksa ds lEcU/k izkf/kdj.k }kjk dh x;h dkfLVax dh vko';drk eglwl dh tkrh gS rks izkf/kdj.k }kjk vkoklh; cYd Hkw[k.M ds fuLrkj.k gsrq dh x;h dkfLVax dks bPNqd fufonk lg&[email protected] fcYMlZ @ykbZlSUlh dks miyC/k djk;k tk;sxkA [email protected] Hkfo"; esa iz'kklu rFkk d`"kdksa ds e/; U;k;ky; dh vuqefr ds mijkUr c<+h gqbZ izfrdj dh /kujkf'k lEcU/kh le>kSrs vFkok Msoyij ,oa lEcfU/kr d`"[email protected]`"kdksa ds e/; gksus okys izfrdj lEcU/kh le>kSrs ls lEcfU/kr c<+h gqbZ njksa dks vius vkoafV;ksa ls olwyus gsrq vf/kHkkfjr gksxk rFkk ;g vfrfjDr /kujkf'k izkf/kdj.k ds iw.kZ :i ls vFkok lekuqikfrd :i ls] tSlh Hkh fLFkfr gks] Msoyij }kjk vkoaVh ls ysdj ns; gksxhA** "9. Provisions of services and facilities:
For the plots of Ganga Nagar, Vedvyas Puri and Ram Manohar Lohiya Nagar Schemes, there shall be available trunk drains on main road, trunk sewerage, water connection at one place and one electricity connection at one place of 33/11 K.V. Line. All the internal developments in allotted plot shall be undertaken by the allottee himself. Whenever provision regarding sewage treatment plant is made in future, expenditure incurred on the said service shall be proportionately paid to the Authority by the licensee/ allottee."
"10. Presentation of lay-out and building designs:
For the development of Row Housing/ Duplex Housing/ /Group Housing/ plots, lay-out and designs of houses shall be presented to the Development Authority as per prescribed standards mentioned in Building Bye-laws 2000 and as per provisions contained in Government Orders issued from time to time, by the allottee within a period of 4 months of his taking over the allotment of allotted land. Under the provisions of the Lay-out Plan Building Bye-law 2000, construction of residential houses shall be permissible on the allotted land for the development of Row Housing/ Duplex Housing/ Group Housing. The proposal presented for permission of lay-out plans and building construction must contain the following particulars."
"11. No-objection on maps and payment of development charges:
Against developments and the maps of building construction, either all the objections shall be presented together or no-objection certificate shall be issued that estimates of development expenditures and costs of proposed construction of buildings shall be conveyed, so as to start internal development work. Certificate from any recognized engineer shall be obtained in respect of specifications of development and construction work and in respect of design and estimate."
"15. Completion of work:
Development and construction work of all the phases shall be completed within pre-stipulated period for every phase. The period for entire development of residential plots allotted to highest tenderer/bidder (licensee/allottee) shall be a maximum of 5 years. Development/ construction work for every phase shall be completed within stipulated period or time-schedule approved by concerned authority. A written intimation about the conclusion of work in respect of constructed/ developed houses/ plots shall be given to development authority by the highest tenderer/ bidder (licensee/allottee). If after/within one month of this intimation, the said works are found to be as per specifications approved by the development authority, certificate of due completion of work shall be issued to allottee/ licensee."
"16. Provision for land allotment and self-financed scheme in respect of plots to be obtained/ to be developed for Row Housing/ Duplex Housing/ Group Housing:
After payment of first half-yearly installment to development authority, allotment can be provisionally made by obtaining applications from purchasers on self-financed basis but the amount received from allottees of houses shall not exceed 90 percent of the amount incurred by the allottee."
"18. Maintenance of services developed for construction on allotted land for construction of Row Housing/ Duplex Housing/ Group Housing/ development of residential plots:
After completion of development work and construction of houses, all the internal services, roads and parks, etc. shall be maintained by the highest tenderer/ bidder (licensee/allottee) with his own expenses until the expiry of stipulated period."
"20. Responsibility of allottee after the completion of work:
For any deficiency found in development and construction works after the conclusion of work, the highest tenderer/bidder (licensee/allottee) shall bear its responsibility for which an amount equal to 5 percent of estimated development and construction expenses shall, in the form of bank-guarantee, be made available by the allottee to development authority for a period of one year after the allotment of property. If such amount exceeds 50 percent of development expenses deposited prior to development, remaining amount shall be realized by the development authority before the issuance of the certificate of completion.
....
All arrears and dues may be realized from the allottee/ licensee as revenue dues.
If any dispute arises between the development authority and the highest tenderer/ bidder (licensee/allottee) over adherence to these provisions, decision thereon shall be taken after due consideration by the arbitrator appointed by the Vice-Chairman, Meerut Development Authority.
...
If tenderer-cum-bidders/ developers/ licensees realize the need of casting to be done by the development authority in connection with bulk residential plots; casting done by the authority for disposal of bulk residential plots shall be conveyed to desirous tenderer-cum-bidders/ builders/ licensees.
In future, it shall be incumbent on licensee/ allottee to realize from their allottees the compensation amount enhanced with the permission of the court, following the settlement between administration and farmers; or enhanced rates of compensation following the settlement between developer and concerned farmer/farmers; and this additional amount shall be liable to be paid, fully or in equal ratio as the case may be, to the authority by the developer realizing the same from their allottees."
(English Translation by Court)
18. The case, set up by petitioner is that it has obtained possession of land in question only as a licensee and therefore, a deed of licence has been executed. Learned counsel for the petitioner however, could not dispute that it is not terminology used by parties to an instrument which shall determine its nature but it is the substance of the contents of documents, which would be relevant to throw light on the question whether document is "lease" or a mere "licence".
19. The term "licence" is defined in Section 52 of Indian Easement Act, 1882 (hereinafter referred to as "IE Act, 1882") and reads as under:
"52. "Licence" defined. -Where one person grants to another, or to a definite number if other persons, a right to do, or continue 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 licence."
20. A bare perusal of this definition shows that a "licence" does not create any estate or interest in the property to which it relates. There are some other restrictions contained in IE Act, 1882 with reference to a Licence inasmuch vide Section 56 thereof it is not assignable and vide Section 60 it is revocable by grantor. The "Licence" does not entitle the licensee to sue stranger in his own name and it can be determined when the grantor makes an assignment of the subject matter.
21. The term "Lease" is defined in Section 105 of Transfer of Property Act, 1882 (hereinafter referred to as "TP Act, 1882") and it read as under:
"105. Lease defined.- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express of 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."
22. Broadly the definition of "lease" shows that the relationship of lessor and lessee is one of contract. If an agreement vests in the lessee a right of possession for certain time, it operates as a conveyance or transfer, then it is a lease. The essential elements of a lease are:
(i) the parties;
(ii) the subject matter; or immovable property
(iii) the demise, or partial transfer;
(iv) the term, or the period;
(v) the consideration, or rent
23. It is also worthy to notice that an "Agreement to Lease" is neither a "Lease" nor "Licence". The "Lease", as contemplated under Section 105 of TP ACT, 1882 creates a right or an interest in the enjoyment of demised property and a tenant or a sub-tenant is entitled to remain in possession thereof until the lease is duly terminated and eviction takes place in accordance with law.
24. Differentiating "Licence" from "Lease", element of transfer of interest was emphasized by Baron Alderson in Wood Vs. Leadbitter (1845) 153 ER 351, at page 354, and it said:
"A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful"
25. The distinction between "lease" and "licence" was also pointed out in Glenwood Lumber Co. Vs. Phillips (1904) AC 405 at page 408 and it says:
"If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself."
26. The definition of "Licence" under Section 52 of IE Act, 1882 excludes from its pale, any transaction, which otherwise, amount to an "easement" or involves a transfer of interest in property which is usually involved in the case of a transfer of right to enjoy it. These two rights, i.e., "easement" and "lease" in their very nature are appurtenant to the property. The grant, however, only of the right to use premises without being entitled to the exclusive possession thereof operates merely as a licence. This Court cannot take converse implications of the above proposition, necessarily, and always be true, namely, whenever there is exclusive possession, the idea of a "licence" is not necessarily ruled out. Exclusive possession itself is not decisive in favour of a "lease" and against a mere "licence". Even the grant of exclusive possession may turn out to be only a "licence" in certain circumstances and not a "lease", viz. where the grantor himself has no power to grant lease. It can be said that whether a transaction is a "lease" or "licence" turns on the operative intention of the parties. There is no single, simple litmus-test to distinguish one from another. Though the term "creation of an interest in the property" is said to be the crucial necessary ingredient in favour of "lease", but this itself is quite complicated and sometimes travels in a grey area as to whether a right to enjoy property in a particular case results in creation of an interest in the property or it is only a privilege to enjoy the property.
27. Lord Denning MR, considered the test of determining whether an occupier is a licensee or tenant in Marchant Vs. Charters (1977) 3 All ER 918 at page 922 (C.A.) and said:
"Gathering the cases together, what does it come to? What is the test to see whether the occupier of one room in a house is a tenant or a licensee? It does not depend on whether he or she has exclusive possession or not. It does not depend on whether the room is furnished or not. It does not depend on the whether the occupation is permanent or temporary. It does not depend on the label which the parties put on it. All these are factors which may influence the decision but none of them is conclusive. All the circumstances have to be worked out. Eventually the answer depends on the nature and quality of the occupancy. Was it intended that the occupier should have a stake in the room or did not he have only permission for himself personally to occupy the room, whether under a contract or not, in which case he is a licensee?"
28. In Cobb Vs. Lane (1952) a All ER 1199, it was held that the solution to determine would depend on the intention of parties.
29. In Associated Hotels of India Ltd.Vs. R.N. Kapoor AIR 1959 SC 1262 in the majority judgment of Hon'ble K. Subbarao, J. it was observed that though document therein used the phraseology appropriate to a "licence" but it is the substance of instrument that matters and not the form for otherwise clever drafting can camouflage the real intention of the parties. Having said so, the Court discussed a "Lease" and "Licence by observing:
"(1) The real test is the intention of the parties, whether they intended to create a lease or a licence;
(2) if the document creates an interest in the property, it is a lease; but, if it only permits another to use the property, of which the legal possession continues with the owner, it is a licence; and (3) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease."
30. Therein two rooms were given to ''A' in a Hotel called "Imperial Hotel" under an agreement to one R.N. Kapoor. These Rooms were described as Ladies' and Gents' Cloak Rooms, where Sri Kapoor used to carry on his business as a hair-dresser. Under a deed executed between the Hotel and Sri Kapoor, he secured possession and agreed to pay certain amount of fee/rent/charges. The question was whether it was an arrangement of a "Licence" or a "Lease". In these facts and circumstances and looking to the proposition as noticed above, Hon'ble K. Subbarao J. held that judged by the aforesaid tests, it cannot be held that the document executed between parties was that of a licence. It did not confer a bare personal privilege on Sri Kapoor to make use of the rooms. It puts him in exclusive possession, untrammelled by the control and free from the directions of Hotel officials. There was also a condition that in case Sri Kapoor is forced to close his business, he may transfer the premises to any person with the consent of licensor. The Court said that this condition was destructive of any theory of licence. In the words of the Court:
"The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. The solitary circumstance that the rooms let out in the present case are situated in a building wherein a hotel is run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document- writer hardly conceals the real intent."
31. The Court said that the above rooms cannot be treated at par with the rooms of the Hotel used for boarding and lodging of travellers etc. and other persons. It said that a Hotel in common parlance means a place where a proprietor makes it his business to furnish food or lodging, or both to travellers or other persons. A building cannot be run as a hotel unless services necessary for the comfortable stay of lodgers and boarders are maintained. Services so maintained vary with the standard of the hotel and the class of persons to which it caters; but the amenities must have relation to the hotel business. Provisions for heating or lighting, supply of hot water, sanitary arrangements, sleeping facilities, and such others are some of the amenities a hotel offers to its customers. But every amenity however remote and unconnected with the business of a hotel cannot be described as service in a hotel. The idea of a hotel can be better clarified by illustration than by definition and by giving examples of what is a room in a hotel and also what is not a room in a hotel. The Court then said:
"(1) A owns a building in a part whereof he runs a hotel but leases out a room to B in the part of the building not used as hotel;
(2) A runs a hotel in the entire building but lets out a room to B for a purpose unconnected with the hotel business;
(3) A runs a hotel in the entire building and lets out a room to B for carrying on his business different from that of a hotel, though incidentally the inmates of the hotel take advantage of it because of its proximity;
(4) A lets out a room in such a building to another with an express condition that he should cater only to the needs of the inmates of the hotel; and (5) A lets out a room in a hotel to a lodger, who can command all the services and amenities of a hotel."
32. The Court said that in the first illustration, the room has never been a part of a hotel though it is part of a building where a hotel is run. In the second, though a room was once part of a hotel, it ceased to be one, for it has been let out for a non-hotel purpose. In the fifth, it is let out as part of a hotel, and, therefore, it is definitely a room in a hotel. In the fourth, the room may still continue as part of the hotel as it is let out to provide an amenity or service connected with the hotel. But to extend the scope of the words to the third illustration is to obliterate the distinction between a room in a hotel and a room in any other building. If a room in a building, which is not a hotel but situated near a hotel, is let out to a tenant to carry on his business of a hair-dresser, it is not exempted from the operation of the Act. If that be so, a similar room in a building, wherein a hotel is situated is let out for a similar purpose; it has to be treated in the same way.
33. Again the distinction between "Lease" and "Licence" was considered in Mrs. M.N. Clubwala and another Vs. Fida Hussain Sahib and others AIR 1965 SC 610. The Court said:
"Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties, which has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties."
34. The Court said that essence of a "Licence" is that it is revocable at the will of the grantor but the provision in the Licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a Licence. In other words, mere necessity of giving notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a "Lease". Similarly, it would be important to know actual possession of premises has been given to the licensee or not to determine its nature, whether it is a "Lease" or a "Licence", but even if the exclusive possession of the premises is passed to a person, his right to exclusive possession would not be a conclusive evidence of existence of a tenancy though it would be a condition of first importance. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere "Licence" but is a "Lease".
35. In B.M. Lall (Dead) by Legal Representatives Vs. Dunlop Rubber and Company Limited and others AIR 1968 SC 175, a Three-Judge Bench considered certain conditions to find out whether they resulted in a "Lease" or a "Licence". Referring to Section 105 of TP Act, 1882 and Section 52 of IE Act, 1882, the Court said:
"A lease is the transfer of a right to enjoy the premises; whereas a licence is a privilege to do something on the premises which otherwise would be unlawful. If the agreement is in writing, it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licensee. The transaction is a lease if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not conclusive,"
36. In Qudrat Ullah Vs. Municipal Board, Barelly AIR 1974 SC 396, the Court said:
"There is no simple litmus test to distinguish a lease as defined in s. 105 Transfer of Property Act from a licence as defined in s. 52, Easements Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property, entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result. Marginal variations to this broad statement are possible and Ex. '1' and '4' fall in the grey area of unclear recitals."
37. In Smt. Rajbir Kaur and another Vs. M/s Chokosiri and Company AIR 1988 SC 1845 the Court said that one of the twin principal tests by which a lease is distinguishable from the relationship created under a licence is the element of right to exclusive possession involving the transfer of an interest in the property; the other being the 'rent' stipulated for the grant.
38. The Court also said that whether a grant amounts to a "Lease" or only a "Licence" is a question of substance and not of words and the label which the parties chose to put on it. To give exclusive possession, there need not be express words to that effect; it is sufficient if the nature of acts done by the grantee shows that he has and intended to have right to exclusive possession. The fact that the agreement contains a clause that no tenancy is to be created, will not, by itself, preclude the instrument from creating a lease.
39. The question as to when a document will be interpreted to have resulted in grant of a "Licence" or a "Lease" has again been considered in Delta International Ltd. Vs. Shyam Sundar Ganeriwalla and another AIR 1999 SC 2607 and having gone through the various authorities of Apex Court, in para 15 of the judgment, the Court culled out certain principles discerned from the judgments discussed therein and has noticed those principles as under:
"(1) To find out whether the document creates lease or licence real test is to find out 'the intention of the parties'; keeping in mind that in cases where exclusive possession is given, the line between lease and licence is very thin.
(2) The intention of the parties is to be gathered from the document itself. Mainly, intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties.
(3) In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would be most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease.
(4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. But in cases where the landlord alleges that the tenant has sublet the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed enter into inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed; the tenant and the subtenant may jointly set up the plea of a licence against the landlord which is a camouflage. In such cases, the mask is to be removed or veil is to be lifted and the true intention behind a facade of a self-serving conveniently drafted instrument is to be gathered from all the relevant circumstances. Same would be the position where the owner of the premises and the person in need of the premises executes a deed labelling it as a licence deed to avoid the operation of rent legislation.
(5) Prima facie, in absence of a sufficient title or interest to carve out or to create a similar tenancy by the sitting tenant, in favour of a third person, the person in possession to whom the possession is handed over cannot claim that the sub-tenancy was created in his favour; because a person having no right cannot confer any title of tenancy or sub-tenancy. A tenant protected under statutory provisions with regard to occupation of the premises having no right to sublet or transfer the premises, cannot confer any better title. But, this question is not required to be finally determined in this matter.
(6) Further lease or licence is a matter of contract between the parties. Section 107 of the Transfer of Property Act inter alia provides that leases of immoveable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. This contract between the parties is to be interpreted or construed on the well laid principles for construction of contractual terms, viz. for the purpose of construction of contracts, the intention of the parties is the meaning of the words they have used and there can be no intention independent of that meaning; when the terms of the contract are vague or having double intendment one which is lawful should be preferred; and the construction may be put on the instrument perfectly consistent with his doing only what he had a right to do."
40. The Court also observed that if it is pleaded that the document is a camouflage, the mask or veil is required to be removed for determining the true intent and purpose of the document.
41. Again this issue has been considered in C. M. Beena and another Vs. P.N. Ramachandra Rao 2004 (3) SCC 595 and therein the Court said:
"Generally speaking the difference between a 'lease' and 'licence' is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful."
42. In Corporation of Calicut Vs. K. Sreenivasan (2002) 3 SCR 783, the Court has reproduced following passage from Evans & Smith in The Law of Landlord and Tenant (Fourth Edition):
" A lease, because it confers an estate in land, is much more than a mere personal or contractual agreement for the occupation of a freeholder's land by a tenant. A lease, whether fixed-term or periodic, confers a right in property, enabling the tenant to exclude all third parties, including the landlord, from possession, for the duration of the lease, in return for which a rent or periodical payment is reserved out of the land. A contractual licence confers no more than a permission on the occupier to do some act on the owner's land which would otherwise constitute a trespass. If exclusive possession is not conferred by an agreement, it is a licence."
43. It is said that the fundamental and apparent difference between a tenant and a licensee is that a tenant, who has exclusive possession, has an estate in land, as opposed to a personal permission to occupy. If, however, owner of land proves that he never intended to accept the occupier as tenant, then the fact that occupier pays regular sums for his occupation does not make the occupier a tenant.
44. In Pradeep Oil Corporation Vs. Municipal Corporation of Delhi 2011 (5) SCC 270, the Court emphasized that the "lease" and "licence" is marked by the last clause of Section 52 of IE Act, 1882 as by reason of a licence, no estate or interest in the property is created. It has considered certain other features that a licence is not assignable. It does not entitle the licensee to sue the stranger in his own name. It is revocable. It is determined when the grantor makes subsequent assignment.
45. In order to construe a document as "Lease", the Court in Pradeep Oil Corporation (supra) referred to a Clause in the agreement that a three months' notice would be given for determination of agreement. The Court said that such a clause in a document has a significant role to play in the matter of construction thereof. If the parties to the agreement intended that by reason of such agreement, merely a "licence" would be created; such a term could not have been inserted. The Court further said:
"It is well settled legal position that a licence can be revoked at any time at the pleasure of the licensor. Even otherwise, unless the parties to the agreement had an intention to enter into a deed of lease the Administration would not have agreed to demise the premises on payment of rent in lieu of grant of exclusive possession of the demised land and further stipulated service of three months' notice calling upon either party to terminate the agreement. In view of the same, the argument advanced by the learned counsel of the appellant that a stipulation having been made in the agreement itself that by reasons thereof the grantee shall not be a tenant and thus the deed must be construed to be a licence cannot be accepted. In our considered view, such a clause may at best be one of the factors for construction of the document in question but the same by itself certainly be a decisive factor."
46. Before proceeding further, it would also be worthy to notice that the instrument in question is being considered by this Court to find out whether the stamp duty payable therein treating it to be a "Licence" is correct or it is chargeable treating it a "Lease". In Act, 1899, the term "Lease" is separately defined in Section 2 (16) as under:
"(16) 'Lease'.- 'Lease" means a lease of immovable property and includes also-
" (a) a patta;
(b) a kabuliyat or other undertaking in writing, not being a counterpart of a lease, to cultivate or occupy or pay or deliver rent for immovable property;
(c) any instrument by which tolls of any description are let;
(d) any writing on an application for a lease intended to signify that the application is granted;
(e) any instrument by which mining lease is granted in respect of minor minerals as defined in Clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957."
47. The definition of "Lease" under Act, 1899 is a bit wider than what it is provided under TP Act, 1882. In the sum and substance, it can be said that a licence is a right or permission granted by a competent authority or the owner of premises to carry on business or to do an act which, without such licence/ permission would be illegal. In other words, it is a formal or official permit or permission to carry on some business or do some act which, without the licence, would be unlawful and the word 'Licence' and 'permit' are often used synonymously. The word "Lease" is frequently used to designate the contract by which relationship of landlord and tenant is created. A "Lease" is a species of contract for possession and profits of land and tenements, either for life or for a short period of time, or during the pleasure of parties or a contract for the possession and profit of the land for a determinate period with the recompense of rent. A lease may be regarded as a conveyance or grant of an estate or interest in the real property, for limited period with conditions attached. A "Licence" is distinguishable from a "Lease" in more than one ways. "Licence" generally provides to the Licensee, less rights in real estate than a "Lease". If a contract gives exclusive possession of premises against all the world, including the owner, it is a "Lease", but if it merely confers a privilege to occupy the premises under the owner, it is a "Licence". Accordingly, a licence in a property is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein, and is thus subject to management and control retained by owner. A lease generally conveys an interest in the land, requires a writing to comply with the Statute of frauds and transfers possession, while the "Licence" merely excuses acts done by one, on the land in possession of another, that without licence, would be trespasses, and conveys no interest in land.
48. In the light of above discussion, this Court proceed to examine terms and conditions of alleged licence deed to find out whether it is indeed a "licence deed" or in the garb thereof, it is a document executing a 'lease'.
49. The cost of land is required to be deposited by petitioner, though in instalments. Once the cost of land is paid, concept of licence would immediately disappear. The rights akin to ownership are sought to be transferred to the petitioner but there are several conditions, which show that actual ownership after development of land shall be conferred with involvement of petitioner to individual allottees, whom petitioner would allot developed property and obtain consideration of land and developed property, etc., as the case may be. The kind of interest created with petitioner, therefore, cannot be construed as a mere licence wherein incumbent gets no interest in the property in question. In the present case, MDA retains no right of possession and control over property in question, provided petitioner pays price of land, which has been allowed to be paid in instalments in regular manner and clear the same. Having done so, right to sell property in question would then be vested in the petitioner subject to further payment of accrued amount with MDA and observance of other conditions like timely development according to approved plan etc..
50. In other words, what I finds that in the garb of licence deed, a nomenclature is sought to be evolved by petitioner and MDA among themselves so as to exclude occasion of execution of sale deed twice, which help them in evading stamp duty, besides the fact that nomenclature of 'licence deed' has been given to the instrument in question knowing it well that rights, which are being conferred upon petitioner/allottee are much more than licence and in fact within the ambit of the term "lease". There is already provision for complete transfer of possession to petitioner and no provision demonstrating any control over land in question by MDA, provided allottee has paid consideration amount in its entirety and also continued to pay other charges etc. besides observing development activities in the manner/ conditions of lease, (the petitioner claimed to be licensee) which have been settled. Various relevant stipulations/conditions and terms have already been referred to above which demonstrate that rights created in favour of petitioner, are clearly a lease and not a mere licence. Therefore, it cannot be said that instrument in question in fact is only a 'licence deed'. It is camouflage to a real 'lease deed' and has been titled as "licence deed" just to evade genuine and lawful stamp duty payable under Act, 1899.
51. The question no.(a), therefore, formulated in para 4 above, is answered against petitioner.
52. Now comes the second question i.e. Section 33 of Act, 1899, whether attracted in the case in hand, or, not. The document in question came to the notice of Collector and he found that requisite stamp duty has not been paid thereon, therefore, he is entitled to impound the same. Section 33(1) of Act, 1899 is very wide and says that it may come to the notice of the person concerned not only when it produced but also in the performance of his functions. I, therefore, have no hesitation in holding that proceedings in question are within the ambit of Section 33(1) of Act, 1899. The second question is also answered in favour of respondents and against petitioner.
53. In the result, the writ petition lacks merit. Dismissed.
54. No costs.
Order Date :- 17.4.2014 KA