V. Sabitha vs APSRTC, Hyderabad

Heard the learned Counsel on both sides.

This CMA arises out of an application filed by the appellant, plaintiff in the suit, seeking a temporary injunction restraining the respondent and their subordinates from interfering with her peaceful possession of the suit schedule premises i.e., the pop-corn stall being run by her at Imliban bus-stand, Gowliguda, Hyderabad, pending disposal of the suit filed for permanent injunction.

The appellant was granted a licence by the respondent-corporation to run a popcorn stall in the bus-stand for a period of four years commencing from 9-10-1995 to 8-10-1999 on a fee of Rs.13,600/- per" mensem. Alleging that even before the expiry of the said licence granted to her and without considering her request for the grant of a renewal, the officials of the respondent started to interfere with her lawful possession and enjoyment of the said stall on 20-7-1999 without issuing any prior notice, the appellant filed the suit seeking permanent injunction and applied for the grant of a temporary injunction pending the disposal of the suit.

The respondent-corporation resisted the said application contending that the appellant had no right to continue in possession beyond 8-10-1999 and denying the allegation that the officials of the respondent tried to unlawfully interfere with the possession of the appellant on 20-7-1999. It was also contended that the appellant has no right for renewal of the licence in view of the circular dated 10-10-1996, issued by the corporation superseding all earlier circular instructions, according to which all the existing licences of canteen/stall/shops etc., shall be terminated after completion of the present period and as such the respondent-corporation is taking steps to call for fresh tenders in view of the said circular.

After hearing both parties, by the impugned order, the lower Court granted a temporary injunction in favour of the plaintiff-appellant till 8-10-1999 only holding that the appellant has no right to continue in possession beyond 8-10-1999 on which date the licence period expires.

Sri M. V. Ramana Reddy, the learned senior Counsel appearing for the appellant sought to assail the order by contending that as per the terms and conditions of the deed of licence/agreement dated 27-9-1995 read with the terms and conditions set out in tender notification, the appellant has got a vested right for the renewal of the licence in her favour for a further period of two years from 8-10-1999 and that, in any case, the appellant is entitled to remain in possession till she is evicled by due process of law and as such she is entitled for temporary injunction till such time she is evicted in accordance with law.

On the other hand, Smt. Nanda R. Rao, appearing for the respondent-corporation, has submitted that the impugned order is perfectly valid and unexceptionable and calls for no interference. She further submitted, on receipt of instructions, that fresh tenders were called by notification dated 25-8-1999, that the bids received pursuant to the said notification were opened on 9-9-1999 and after negotiations, the offer of the highest bidder was accepted for a monthly fee of Rs.39,100/- for a period of three years.

It is not in dispute that the petitioner was granted a licence for running a popcorn stall in the bus-stand for a period of four years commencing from 9-10-1995 to 8-10-1999. Ex.A1 is a copy of the deed of licence/agreement dated 27-9-1995 entered into between the corporation and the appellant in that behalf. Undoubtedly the rights and obligations of the parties are governed by the terms and conditions of the said agreement. Clause (1) of the said agreement specifically stipulates that the period of licence is from 9-10-1995 to 8-10-1999 only. The agreement docs not contain any provision for renewal of the licence for any further period after 8-10-1999. On the contrary, clause (26) of the agreement provides that on the expiry of the period of licence or on its termination, as the case may be, the licensee shall deliver vacant possession of the premises in tact to the licensor forthwith. The said clause further provides that in the event of licensee failing to deliver vacant possession to the licensor, the licensor shall have the right to take possession of the premises by putting his own lock and key to the said premises. The learned Counsel for the appellant, however, seeks to rely on clause 22 which reads as follows:

"All the above terms and conditions will form part of agreement of the licensee and the licensee will be bound by these conditions in addition to any other conditions prescribed by the corporation."

According to the learned Counsel for the appellant, "all the above terms" refers to the terms and conditions set out in the tender notification issued by the corporation prior to the grant of the licence. The learned Counsel for the respondent, however, disputes the same and submits that it only refers to clauses (1) to (21) of the agreement. The terms and conditions set out in the tender notification issued earlier, no doubt, contain a clause which mentions that the period of licence is for four years and, thereafter, the licence will be renewed for a further period of two years only subject to the conditions mentioned therein. According to the learned Counsel for the appellant, this clause in the tender notification must be treated as a part and parcel of the agreement or deed of licence in view of clause (22) of (he agreement. He further contends that the interpretation sought to be placed by the learned Counsel for the respondent on clause (22) has no meaning inasmuch as clauses (1) to (21) are already part and parcel of the agreement and it isnot at all necessary to state that they will form part of the agreement and licence. While I find some force in this submission of the learned Counsel for the appellant, however, it) the absence of any express provision in the agreement making all the terms and conditions set out in the tender notification part and parcel of the agreement, it may not be possible to read all those conditions into the agreement. If the intention of the parties was to make all the terms and conditions set out in the lender notification including the clause relating to the renewal of the licence as part and parcel of the agreement of licence, nothing prevented the parties from stating so explicitly in the agreement. When the terms of the contract are reduced to writing, the rights and obligations of the parties will be governed by the written contract which is finally entered into between them. I am, therefore, unable to accede to the submission of the learned Counsel for the appellant that under the agreement, the appellant has got a vested right for renewal of the licence for a further period of two years beyond 8-10-1999. This conclusion is reinforced by the fact that such contention was not put forward in the lower Court by the appellant or in the plaint and this contention is raised for the first time in this appeal. Further the respondent seeks to rely on the circular dated 6-10-1996 according to which all the existing licences in respect of canteen, stall, shops etc., shall be terminated after the completion of the present period and fresh tenders should be called for. The validity of this circular was upheld by a Division Bench of this Court by judgment dated 19-9-1997 in Writ Appeal No.490 of 1997 and Batch (reported in S. Sudhakara Gupta Vs. APSRTC, Mushirabad, Hyd. and Others, A SLP filed in the Supreme Court against the said judgment was dismissed by the Supreme Court confirming the judgment of the Division Bench. The learned Counsel for the appellant, however, pointed out that in the said judgment, the Division Bench held that such circulars issued by the corporation cannot be regarded as regulations framed in exercise of the power conferred by Section 25 of the Road Transport Corporations Act, 1950 and they are purely administrative instructions issued by the corporation to its subordinates in the matter of granting licences and they did not create any enforceable legal rights. In that case, the licensees wanted to place reliance on certain circulars which provided for the grant of renewal of licences. The Division Bench negatived the said claim with the observation that the said circulars are merely administrative instructions and they cannot create any enforceable legal rights in favour of the licensees. This decision, in my view, does not render any assistance to the appellant herein inasmuch as the Division Bench specifically upheld the right of the corporation to terminate the licences by giving one month''s notice without assigning any reasons as provided in the agreement and also to call for fresh tenders on the expiry of the licence period or on the termination of the licence as the case may be.

For all the aforesaid reasons, the first contention of the learned Counsel for the appellant has to fail.

Coming to the alternative submission made by the learned Counsel for the appellant that, in any case, the appellant has a right to continue in occupation of the premises till she is evicted in accordance with law and as such she is entitled for the grant of a temporary injunction, there is abundant authority to negative the said contention. In numerous judgments of this Court, it has been held time and again that a licensee has no right to continue in possession after the expiry of the licence period, that his possession after the expiry of the licence period is unlawful and the licensor has a right to takepossession of the licensed premises and that the licensee is not entitled for the grant of injunction. See Janatha Modern Mills v. G. Satyanarayana, 1995 (1) ALD 205, APSRTC v. Mallesh, 1995 (3) ALD 898 (DB), A. Rajagopa! v. Regional Manager, APSRTC, 1997 (1) ALD 678, A.P.S.R.T.C., Mushirabad and Others Vs. N.R. Nagappaiah, , and the imreported judgment in CRP No.2903 of 1999 dated 12-8-1999. In view of these binding precedents, it is not possible to accept the submission of the learned Counsel for the appellant. The learned Counsel for the appellant, however, tried to draw support from the decision of the Supreme Court in Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao, , wherein it has been held that a person in settled possession of property even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. That was a case where the licensor unlawfully dispossessed the licensee before the expiry of the licence period. On a suit filed by the licensee, a decree for recovery of possession was granted in his favour notwithstanding the fact that the licence had expired during the pendency of the legal proceedings. The said judgment, in my view, does not throw any light on the question whether the licensee is entitled for the grant of injunction after the expiry of the licence period merely on the ground that the licensor is required to take recourse to law for evicting him. It is well settled that ihc party seeking temporary injunction has to satisfy the triple requirements of prima facie case, balance of convenience and irreparable injury. Prima facie case means the plaintiff must show the existence of a legal right in him to continue in possession. It is the settled legal position in view of the numerous decisions mentioned above that the possession of a licensee after the expiry of the licence period is unlawful and he is akin to a trespasser. It is equally well settled that a trespasser has no right to seek an injunction against the real owner. In R.V. Bhupal Prasad Vs. State of Andhra Pradesh and others, , the Supreme Court pointed out the distinction between "lawful possession" and "litigious possession" or "juridical possession" in the following words:

"Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between, him and a trespasser. The possession of a tenant at sufferance is protected till he is evicted in due course of law. But his possession is not legal nor lawful. In other words, his possession is unlawful or litigious possession."

In para 13 of the said judgment, it is further held as follows:

"In view of the settled position of law, the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the theatre in unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respondent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry."

On that finding it was held that the appellant was not entitled for renewal of the licence under the A.P. Cinemas (Regulation) Act and Rules in his favour. On the same analogy, the appellant herein whose licence expires on 8-10-1999 is not entitled for the grant of any temporary injunction in his favour beyond 8-10-1999.

The learned Counsel for (he appellant has finally submitted that in view of Section 60 of the Indian Easements Act, 1882, the licence granted to the appellant cannot be revoked by the grantor as it is coupled with transfer of property. The said section provides that a licence maybe revoked by the grantor unless --(a) it is coupled with a transfer of properly and such transfer is in force. 1 fail to see how this section can render any assistance to the appellant. In the first place it is not established that the licence granted to the appellant is coupled with a transfer of property. It is well settled that a mere licence permitting the licensee to use any property for a specified purpose for a limited time, unlike lease, does not involve the transfer of interest in such property in favour of the licensee. Even assuming for the sake of argument that the licence granted to the appellant is coupled with transfer of any property, admittedly such transfer is no longer in force as the period of licence has already expired. I do not, therefore, find any force in this submission of the learned Counsel for the appellant.

For all the foregoing reasons, the appeal fails and it is accordingly dismissed. However, having regard fo the facts and circumstances of the case, the appellant is granted one week''s time from today to vacate the premises. No costs.