JUDGMENT M. Katju, J.
1. We have heard learned counsel for the parties.
2. The petitioner is challenging the impugned order dated 30.10.2002, Annexure-1 to the writ petition cancelling her licence to run a canteen in S.S.P.G. Hospital, Varanast and a public call office (P.C.O.) within the premises of Rajkiya Mahila Chikitsalaya, Varanasi.
3. It is alleged in paragraph 4 of the writ petition that the petitioner was granted a licence to run a P.C.O. within the premises of Rajkiya Manila Chikitsalaya, Varanasl, by the order of Chief Medical Superintendent of the said hospital dated 21.10.2000 vide Annexure-3 to the writ petition. It is alleged that there is no complaint against her regarding running of the P.C.O. and she has invested a lot of money. In paragraph 7 of the writ petition, it is alleged that the petitioner was granted a licence for running a canteen within the premises of S.S.P.G. hospital vide order dated 24.9.2002, Annexure-4 to the writ petition. It is alleged that the petitioner has raised temporary construction and has invested one lac rupees in this business.
4. It is alleged in paragraph 14 of the writ petition that the local M.L.A. wanted to get allotted the said premises for his own man and hence he made a complaint dated 27.10.2002 against the petitioner. It is alleged in paragraph 15 of the writ petition that on the basis of the said complaint without giving opportunity of hearing to the petitioner, the impugned order dated 30.10.2002 was passed cancelling the licences for both the canteen as well as the P.C.O.
5. Learned counsel for the petitioner submitted that the impugned order is illegal because it was passed without giving opportunity of hearing to the petitioner.
6. In our opinion, this argument suffers from misconception. In our opinion, the petitioner was only a licensee and not a lessee of the canteen as well as the P.C.O. It may be noted that both the canteen as well as the P.C.O. are situate within the premises of a Government hospital. Any activity within the premises of a Government property can only be by the licensee of the Government and it cannot be said that a lease has been granted in favour of the petitioner.
7. A licence Is defined in Section 52 of the Indian Easement Act as follows :
"Where one person grants to another, or to a definite number of 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."
8. The essential distinction between a lease and licence is that a lease is transfer of an interest in the land, while in the case of licence there is no such transfer, although the licensee is given permission by the owner of the land to occupy it for a certain period or do something on it which in the absence of such permission would be illegal vide B.M. Lall (dead) by L.Rs. v. Dunlop Rubber & Co., Ltd., AIR 1968 SC 175, Capt. B. V. D'Souza v. Antonio, AIR 1989 SC 1816 and State of West Bengal v. Saradiya Thakurani, AIR 1971 SC 2097. In Capt. B.V. D'Souza's case, it was held that the real test whether it is lease or licence is the Intention of the parties.
9. A perusal of the order dated 30.10.2002, shows that the licence which has been granted to the petitioner for running the canteen specifically stated that any construction made by the petitioner will be of temporary nature, and the licensee will vacate the premises whenever the hospital administration so desires. Hence, it is clear that the intention was only to create a licence and not a lease. As regards order dated 21.10.2000 (Annexure-3 to the petition) this states that the petitioner is given permission (anumati) to set up a P.C.O. The use of the word "anumati" shows that the intention was only to give a licence and not a lease to the petitioner.
10. The allotments to the petitioner were in our opinion only licences granted to her to operate the canteen and P.C.O. within the premises of Government hospitals. By no stretch of imagination, can it be said that the petitioner acquired any interest in the land of the Government hospital. It is settled law that a licence can be terminated at any time vide Section 60 of the Indian Easement Act. In our opinion, the licence of the petitioner was not coupled with the transfer of property, nor was the licensee permitted by the licensor to execute work of a permanent character. Hence Clauses (a) and (b) of Section 60 of the Indian Easement Act will not apply.
11. Since a licensee acquires no interest in the property, hence, in our opinion, it is not necessary to give an opportunity of hearing before cancelling the licence. A licence can be revoked by the grantor at any time, and it is not necessary to give opportunity of hearing to the licensee for revoking the licence.
12. In view of the above, there is no force in this petition and it is dismissed. However, if the respondent desires to grant licence of a similar nature that will be done after advertising it in well known newspapers having wide circulation and thereafter holding public auction or public tender in which all eligible persons may apply so as to comply with Article 14 of the Constitution.