St. Isables Hospital vs A.V. Murugan

Defendant in O.S.No.7746 of 1998 on the file of II Assistant City Civil Court, Madras is the revision petitioner herein.

Defendant is St. Isables Hospital and it entered into an arrangement with plaintiff whereby plaintiff was permitted to collect parking fee from the

two-wheelers coming to the hospital for which he has to pay Rs.1,000 per month on the first day of every month. According to plaintiff, the said

arrangement is a lease and defendant is not entitled to dispossess plaintiff except in accordance with law. It is said that after the arrangement the

monthly payment was enhanced to Rs.1,500 from 1994 onwards and the same arrangement continues till date. According to him, he employed

four persons to look after parking arrangements inside the hospital premises.

Reason for filing the suit was that an alleged demand was made by defendant enhancing the amount from Rs.12,000 per annum to Rs.1.00 lakh

per annum, which the plaintiff did not oblige and consequently, defendant threatened to dispossess him. Suit was therefore laid for a decree of

permanent prohibitory injunction restraining defendant and their men from interfering with plaintiff''s peaceful possession and enjoyment of parking

lot in St. Isables Hospital premises at No.18 Oliver Road, Mylapore, Madras, except in accordance with law, and for consequential reliefs.

Scheduled property is described thus.

Parking lot in St. Isables Hospital at premises No.18, Oliver Road, Mylapore, Madras 600 004 situated within the Registration Sub district of

Mylapore and Registration District of Madras south.

Along with the suit, plaintiff also moved an application for injunction as I.A.No.18475 of 1998. Relief sought for in the suit and injunction

application are same. Trial Court granted ad interim injunction initially. But after count affidavit was filed by defendant, the same was vacated.

In the counter affidavit of petitioner it is said that the arrangement between plaintiff and defendant is only that of licence and no lease is created.

The right is only to collect parking fee from the two wheelers and there is no interest in immovable property is created. It is bare privilege. The

allegation that there is a demand for enhancement of fee is also denied. It is said that there had been several complaints against plaintiff and one of

the main complaint was that he is extracting huge amounts from the visitors than permitted, and he is extorting money from innocent visitors. When

no interest is created in the property, there cannot be any question of injunction.

As I said earlier, after counter affidavit was filed, trial court heard the injunction application in detail and as per order dated 2.2.1999 vacated

the interim order. Trial Court held that the arrangement between plaintiff and petitioner is only that of licensor and licensee and consequently no

right or interest in immovable property.

The matter was taken in appeal by plaintiff in C.M.A.No.32 of 1999 on the file of IV Additional City Civil Court, Madras. Lower appellate

court after extracting the contentions held that the question whether lease or licence can be decided only in the suit and till then status-quo will have

to be maintained and granted injunction. It is also directed lower court to dispose of the suit within a time frame. The said order is challenged in this

revision petition by defendant.

Since caveat was entered by respondent, I heard the revision at the admission stage itself.

Before going into the rival contentions, it is better to extract the arrangement between the parties, which read thus,

This agreement entered into at Madras this the 3rd day of June, 93 (3rd June, 1993) between the Administrator of St. Isabel Hospital, 18, Oliver

Road, Madras -4, hereinafter called the party of the First Part and by Mr. M.U.Murugan having its branch office at No.27, Kanda Street, Shenoy

Nagar, Madras-30, hereafter called the Second Party of the Second part.

Whereas the party of the first part has offered to permit the right to collect the Two Wheeler Parking fees charges from the vehicles of the

patients/visitors coming to the hospital only, and shall not permit parking or collecting fees of the two wheelers of the outside parties.

And whereas the party of second part has accepted to the Administrator to enter into this agreement subject to the following terms and conditions;

The party of the 2nd part shall pay a sum of Rs.1,000 per month on the 1st of every month at the first party''s office.

No outside vehicle are permitted to be parked in the premises.

No 3rd party should entertain the contract; or disturb the hospital premises.

This agreement ceases to exist with one month notice on either side.

It is admitted by plaintiff that on the basis of this arrangement, he was allowed to collect parking fee. Though the period has expired, it is admitted

that the same arrangement continues though monthly payment has been increased from Rs.l,000 to Rs. 1,500.

After hearing counsel on both sides, I find that the arrangement between parties is only to permit plaintiff to collect parking fees from the

vehicle owners. No portion of immovable property belonging to hospital was given to plaintiff for his enjoyment. It is well settled that for a lease,

immovable property must be given for enjoyment. If there is no immovable property given for enjoyment and right given to plaintiff is only to collect

fees from the vehicles, it can only be said as privilege or licence, Lower Appellate Court even though has taken this document, did not express any

opinion. It only said that it is also a matter which has to be decided after taking oral and documentary evidence. When the document itself is clear,

there is no scope for adducing any oral evidence.

In V.S.Balakrishnan v. Puddukottai Municipality rep. by the Commissioner Puddukottai, Puddukottai Dist, and another, 1994 (I) L.W 571

Justice Srinivasan (as he then was) had occasion to consider similar question. That is the case where writ petitioner before this Court was the

successful bidder ion the auction conducted by the Puddukottai Municipality for the right to collect fees in the weekly market. The Municipality

wanted to conduct auction after the expiry of the permit and the said notification was sought to be quashed before this Court on the ground that he

has got lease and he is not liable to be dispossessed. Learned Judge said that if there is no intention between parties to deal with any immovable

properties, transaction will only amount to licence and Municipality is entitled to auction the right on the expiry of the term. The decision in Qudrat

Ullah Vs. Municipal Board, Bareilly, rendered by a Bench consisting of Justice V.R. Krishna Iyer was also considered, in paragraphs 7 to 9 the

judgment learned Judge held thus,

Reliance is placed by learned counsel for the petitioner on two clauses in the document dated 5.4.1989. In clause I it is stated that the

Municipal Council has granted upto the licences the same and exclusive licence and authority to only collecting the fees in the weekly market by

leasing to vendors, situated at the registration sub-district. It is submitted that the expression used is ""leasing to vendors"". According to the

petitioner, a right to lease out the property has been conferred on the petitioner by the Municipality under the document. Secondly, reliance is

placed on the last clause of the document which reads thus:-

He shall maintain the marked shops and stalls and be in possession with the right of leasing the shops and stalls, The licences shall hand over

possession of the building and vacant lands on the expiry of term in the same condition in which he is now put in possession.

My attention is drawn to the judgment of the Supreme Court in Qudrat Ullah Vs. Municipal Board, Bareilly, . It is also a case where under an

agreement with Municipality a person is allowed to collect the rents and bazar dues from sheds and shops, and the internal roads within the market

the deed was held to be a lease deed and not a mere licence. It was observed that whether, a deed is a lease or a licence depends on the intention

of the parties. If an interest in immovable property entitling the transfer or to enjoyment is created it is lease, if permission to use and without right

to exclusive possession is alone granted in it is a licence. A look at the facts of the case shows that along with the document in question, plans were

prepared and the property was clearly delineated which was dealt with the document. The relevant clause indicated that exclusive possession was

given to the transferee and he was allowed to enjoy the immovable property which was the subject matter of the document in question. In these

circumstances, the court held that it was a lease and not a mere licence. The ruling will have no hearing on the facts and merits of the case. It is very

clear from the Notification of auction that what was sought to be conferred or conveyed was only a right to collect the fees in the weekly market.

The Notification related to about 15 items. The comparison of description of the other items shows that the Municipality intended only to confer a

right to collect fees and nothing also. The document dated 5.4.1989 on which reliance is placed, docs not contain any description of any

immovable property. The schedule merely refers to the right to collect fees in the weekly market. It is written in Tamil as follows:-

That shows very clearly that the parties did not intend to deal with any immovable property under the document. When it is a question of intention

of the parties, it is clear from the documents in question that there was no intention to deal with any immovable property.

The mere fact that in Clause-1, the expression used in ""leasing to vendors"" will not show that an interest in the immovable property was

conferred on the transferee. In the document, in the context, me clause only means that a successful bidder in the auction will have the right to

collect the fees from the persons who come to vend their goods in the weekly market by fixing appropriate prices for their respective portions. The

last clause in the document which refers to ""Possession"" would only mean that so long as the period for which the petitioner is entitled to collect the

fees in the weekly market he is to bound to keep the premises in good order and he is bound to be incharge of the same.

The clause does not mean that the petitioner is given exclusive possession of the property with an interest therein. The possession that is given to

the petitioner in the document is only for the purpose of his exercising the right to collect fees from the vendors who come to the weekly market.

On a construction of the document dated 5.4.1989 which is clear that what was given to the petitioner was only a licence and not a lease. If the

contention of the petitioner that he is a tenant of an immovable property is to be accepted, the document dated 5.8.1989 cannot be looked into at

all. It is typed on a stamp paper of Rs.5 and the document is not properly used and the petitioner cannot prove his case. Apart from this, if it is a

question of tenancy in favour of the petitioner it is expressly for a specific period from 1.4.1989 to 31.3.1990. On the expiry of the period, the

petitioner is bound to vacate the premises. It is not in dispute that the Municipality never collected rent or accepted the continuance of the tenancy

after 31.3.1990. When the Municipality took steps to hold auction for the further period commencing from 1.4.1990 the petitioner has rushed to

the court under Article 236 of the constitution of India. This petition was filed even on 12.2.1990 before the expiry of the period. Even if the

petitioner is held to be a tenant he cannot continue in possession after 31.3.1990 as the period of the lease came to an end.

Similar view was taken in the Division Bench decision of this Court reported in M/s. Bharat Petroleum Corporation Ltd. v. V. Antony and 2

others, 1995 (2) LW 743, wherein it is declared that a licencsee who has no interest in the land and who is occupying the same under permission,

cannot give a larger right creating on interest in land in favour of the plaintiff.

In The Madurai City Municipal Corporation Vs. Boominathan and Another, , learned brother Judge P. Sathasivam was considering the case of

right to collect fees for Municipality. Learned Judge has taken a view that it is purely a licence.

In this case, petitioner is not given possession of any property and to claim benefit of lease there must be exclusive possession. There is no

schedule of property in the arrangement and from the plaint description also it is clear that plaintiff himself admitted that there is no definite

property. It if is a case so lease, the document itself becomes inadmissible for want of proper stamps duty. It is written in a white paper without any

stamps. From the pleading of plaint plaintiff also has no case that he is in exclusive possession of immovable property belonging to petitioner. u/s

105 of Transfer of Property Act, unless there is transfer of immovable property for enjoyment, there cannot be any lease.

Learned counsel for respondent submitted that various receipt have been issued by hospital wherein it is stated that they are receiving the same

as rent for cycle stand. Learned counsel brought to my notice receipts dated 2.4.1996, 11.7.1997 and 12.10.1998. Counsel emphasised the word

''rent'' and contended that unless there is lease, there is no question of payment of rent. I do not find any merit in the said submission.

In Dr. H.S. Rikhy and Others Vs. The New Delhi Municipal Committee, , the Honourable Supreme Court has held that merely because the

word ''rent'' is used in the receipts, that is not conclusive to show that the landlord and tenant relationship is created. In para 6 of the judgment their

Lordships have held thus.

It was also contended that it was admitted by the respondent that rent was received and receipts for rent were granted by its agents. The use of

the word ''rent'' is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive

possession of premises occupied by him. It may also be used in the generic sense, without importing the legal significance aforesaid, of

compensation for use and occupation. ''Rent'' in the legal sense can only be reserved on a demise of immovable property. Reference may be made

in this connection, to paragraphs 1193 and 1193 of Halsbury''s Laws of England (Third Edition, Vol.23) at pages 536-537. Hence, the use of the

term rent cannot preclude the landlord from pleading that there was no relationship of landlord and tenant. The question must, therefore, depend

upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the

tenant."" (Italics supplied)

In State of Punjab and Another Vs. British India Corporation Ltd., , their Lordships have held thus,

The word ''rent'' in its wider sense means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect

of the use and occupation of any land or building.

In a very recent decision of the Honourable Supreme Court reported in Suhas Yeshwant Chopde Vs. Sachhidanand D. Purekar, of the

judgment, their Lordships have held thus,

It will thus he noticed that the substance of the agreement was that it was an agreement of sale of the flat and Rs.40,000 to be paid as security

deposit. There was no provision that in the even of the sale transaction not going through or not fructifying, the respondent would continue as a

tenant. It is true that the document used the word ""monthly rent of Rs.1,000 but it is now well settled by several decisions of this Court that mere

use of the word ""rent"" is not decisive of the relationship between the parties."" (Italics supplied)

In Kesava Panicker v. Ismail Sait, 1963 (I) KLR 453 also similar view was taken.

The said decision was followed by Kerala High Court and the same is reported in Sorab Vs. Viswanatha Menon and Another, , wherein

learned Judge said that the fact that the word ''rent'' was used did not alter the real nature of the transaction.

In Goyle''s Law of Easements and Licences, Second Edition 1966, learned author in page 221 has said thus.

The word ""rent"" is used in a wider sense which means any payment made for the use of and occupation of any land and building and includes any

payment by licensee for use and occupation of any land and building.

From theses decisions it is clear that merely because the word ''rent'' is used that is not going to change the nature of the transaction. Even

according to plaintiff, he has not only the right to collect parking fees and he wanted to interpret that agreement as lease. As I said earlier, the

amount will have to be paid every month and while issuing receipts, the same is stated as ''rent''. When the intention of the parties is clear that no

portion of immovable property is transferred or covered for enjoyment and no exclusive possession is given to plaintiff, there cannot be any lease

as contended by counsel. The entire immovable property wherein vehicles are parked is under the control of defendant and maintained by it, and it

is in their exclusive possession. Vehicles coming from outside are allowed to be parked therein. Plaintiff is allowed to realise fees from those vehicle

courts.

Learned counsel for respondent submitted that the question whether lease or licence will have to be finally determined only in the suit and if the

injunction is vacated, the very purpose of the suit will become infructuous. He therefore wanted the direction given by lower appellate court is to be

confirmed and till then the status-quo is to be maintained. For the said purpose counsel also relied on the Bench decision of this Court reported in

M/s. ITC Ltd., v. M/s. New Kashmir Stores, 1998 (2) LW 443.

I do not find any merit in the said submission. In that decision relied on by the counsel, the subject matter ie., the movable property was

admittedly in the possession of plaintiff. In those circumstance, it was held that whether it is lease or licence will have to be taken into consideration

from various other circumstances for which evidence is necessary. But the facts herein are entirely different.

For grant of injunction, plaintiff will have to prove that he has got prima facie case, balance of convenience and irreparable injury. When it is

admitted that his right to sue is only on the basis of document which is extracted above and the same do not shown that he has no right over

immovable property nor he is in exclusive possession of the same, it cannot be said that he has any prima facie case.

Learned senior counsel for petitioner submitted that there were so many complaint against plaintiff and that is why they wanted to put an end

with the arrangement with him. At this stage, I am not concerned about whether there is allegations against plaintiff. This Court is concerned only as

to whether plaintiff has any enforceable right in the Court of law so as to get injunction.

In the result, the revision petition is allowed. The order of lower appellate court is set aside and that of trial court is restored. The injunction

application filed by respondent in I.A. No.18475 of 1998 stands dismissed. Taking into consideration the facts and circumstances of the case I feel

it is a fit case that petitioner must be allowed costs both before this Court as well as lower court. In C.R.P. the advocate fee it quantified as

Rs.3,000. C.M.P.Nos. 21203 and 21204 of 1999 are closed.