Case: B.M. Lall (Dead) By L. Rs Vs. Dunlop Rubber & Co. Ltd. & Ors

Bachawat, J.1. The respondents are limited companies having their head offices in Calcutta. On May 15, 1953, the two Companies jointly purchased the premises known as Kings Court at No. 46-B Chowringhee Road, Calcutta, for the purpose of providing residential accommodation for their staff. They instituted a suit against one B. M. Lall, since deceased, predecessor of the appellants in C. A. No. 2253/66 for recovery of possession of flat No. 8 in the aforesaid premises in his occupation as a tenant, and another suit against the appellant in C. A. No. 2254/66 for recovery of possession of flat No. 9 in his occupation as a tenant, on the ground that they reasonably required the flats for the occupation of their staff. By Section 13 (1) of the West Bengal Premises Tenancy Act, 1956, (West Bengal Act XII of 1956), the tenants are protected from eviction except on one or more of the grounds specified in the sub-section. The grounds mentioned in clause (f) of S. 19 (1) are :-"Where the premises are reasonably required by the landlord either for purposes of building or re-building or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held:"The respondents claim that they reasonably require the flat for their own occupation. The trial court dismissed the suits. From these decrees, the respondents flied appeals in the High Court at Calcutta. The High Court set aside the decrees passed by the trial court and decreed the suits. The present appeals have been flied under Certificates granted by the High Court.2. The High Court held that (1) a limited company can be a landlord within the meaning of S. 13 (1) (f) and can reasonably require the premises for its own occupation, and (2) where there are several landlords, the requirement of the premises by the landlords for the occupation of one or more of them is sufficient to bring the case within section 13 (1) (f). These findings are not challenged in this Court. Before us it is also conceded by all the appearing parties that the respondents are entitled to a decree for recovery of possession of the two flats under Section 13 11) (f), if they establish that they reasonably require the Bats for the occupation of respondent No. 2, Guest Keen and Williams Ltd. only.3. The two courts concurrently found that respondent No. 2 reasonably requires the flats for the occupation of its staff. The Company is under an obligation to provide free residential accommodation for its officers in properties either rented or owned by it. In view of the acute scarcity of accommodation in the city, it is not possible to find other convenient flats for officers who were transferred to the city from other stations. Suitable provision for the accommodation of officers visiting Calcutta on tour is a matter of necessity. The sole question is whether the occupation by its staff officers would be the companys own occupation. The point of dispute on which the two courts differed is whether the officer to whom the flat would be allotted would occupy it as a tenant or as a licensee. It is common case before us that if he is a licensee his occupation would be on behalf of the company and its requirement would be for its own occupation. On the other hand, if he is a tenant his occupation would be on his own account and the companys requirement would not be for its own occupation. It appears that the officers provided with accommodation by the Company are required to execute agreements in a standard form. The terms and conditions of the agreement are as follows :-1. The Licensee whilst in the employment of the Company at Calcutta and for the sole purpose of the Licensee being more conveniently situated in such employment is hereby permitted by the Company to occupy as a Licensee during the term of his employment at Calcutta Flat No. 25, situated in the Companys property known as Kings Court, Calcutta, or such other flat as may be allotted to the Licensee at the companys discretion (hereinafter referred to as the said premises") subject to the terms and conditions hereinafter contained.2. In the event of the Company deciding to levy Licence fees and the Company reserves the right to do so without prig notice, the Licensee shall pay to the Company each month such Licence fees which may be varied by the Company from time to time at its discretion and the Company shall be entitled to deduct such Licence fees from the emoluments or to become due to the license from the Company.3. The occupation of the said premises by the Licensee is a condition of his employment at Calcutta with the company and such right of occupation shall forthwith cease upon his employment being terminated by the company or on his leaving such employment or on his transfer away from Calcutta or on his death whichever is earlier. Notice given by the Company to the Licensee of termination of employment or of transfer away from Calcutta shall be deemed to be sufficient notice of revocation of the licence.4. The company shall be entitled to determine forthwith the licence hereby granted if the licensee shall fail to comply with any of terms and conditions herein contained and on his part to be observed and non-compliance with the terms and conditions herein contained may be deemed by the company to be misconduct.5. These presents shall not or shall not be deemed to create any relationship of landlord and tenant between the company and licensee in respect of the said premises.6. The company shall pay all present and future revenue and municipal taxes payable in respect of the said premises and keep the said premises in repair during the continuance of these presents.Conditions to be complied with by the licence1. The Licensee shall pay the cost of electricity and gas consumed within the said premises and the comply may at its discretion deduct such charges from the emoluments due or to become due to the Licensee from the company.2. The Licensee shall not cause or permit to be caused any disturbance or sance in or in the vicinity of the said premises.3. No structure or alteration temporary or Permanent, other than common ornaments hall be erected, fixed or carried out by the Licensee in the said premises or garden without prior written permission from the - company. The Licensee shall not do or permit to be done any act or thing which causes damage or is liable to cause damage to the said premises. The cost of rectification of such damage will be recoverable in accordance with condition (1).4. Alterations of or extensions to the installed electrical circuit are strictly prohibited.5. No notice advertisement or placard other than the Licensees own name, which may be fixed to the main door of the said Premises, shall be fixed or permitted to be fixed to any portion of the said premises.8. The said premises shall be used entirely as a dwelling place and no business or trade shall be carried out on the said premises or any part thereof without prior written permission from the company.7. The Licensee will not permit any persons other than his own personal servants to occupy the servants quarters allotted to him by the company and will not permit the garage allotted to him by the company to be used for residential purpose.8. The Licensee shall not take in any paying guest without prior written permission from the company and such permission shall be deemed to have been withdrawn when the paying guest ceases to reside.9. The Licensee shall not let or part with possession of the whole or any part of the premises to any person, firm or company. During periods when the Licensee Is absent from Calcutta the Company may assign the premises to any other employee or suitable person at its sole discretion.4. The question is whether the occupier under this agreement is a tenant or a licensee. The distinction between a leave and a license is well known. Section 105 of the Transfer of Property Act defines a lease. Section 52 of the Indian Easement Act defines a license. A lease is the transfer of a right to enjoy the premises; where-as a license 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 when its, language is ambiguous, having regard to tits object, and the circumstances uncle 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 license 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 not decisive.The test of exclusive possession is not conclusive see Errington v Errington and Woods, (1952) 1 KB 290 (298) Associated Hotels of India Ltd. v. R. N. Kapoor, (1960) 1 SCR 368 at pp. 381-385= (AIR 1959 SC 1262 at pp. 1268-1270) though It is a very important indication in favour of tenancy. See Addiscombe Garden Estates Lull v. Crabbe, 1958-1 QB 513 at p. 525. A servant in occupation of premises belonging to his master may be a tenant or a licensee, see Halsburys Paws of England, Third Edition, Vol. 23, Art. 990, p. 411. A service occupation is 8 particular kind of license whereby a servant is required to live in the premises for the better performance of his duties. Formerly, the occupation of the servant was regarded as a tenancy unless it was a service occupation, see Nippon Menkwa Kalmshiki v. F. Portlock, AIR 1922 Bom 70 . Now it is settled law that a servant may be a licensee though he may not be in service occupation. In Torbett v. Faulkner, (1952) 2 TLR 659 at p. 660, Denning, L. J. said:"A service occupation is, in truth; only one form of license. It is a particular kind of license whereby a servant is required to live in the house in order the better to do his work. But it is now settled that there are other kinds of licence which a servant may have. A servant may in some circumstances be a licensee even though he is not required to live in the house, but is only permitted to do so because of its convenience for his work-see Ford v. Langford, (1949) 65 ILR 138, per Lord Justice Asquith and Webb, Ltd. v. Webb (unreported, October 24, 1951)-and even though he pays the rates, Gorham Contractors, Ltd. v. Field (unreported March 26, 1952), and even though he has exclusive possession, Cobb v. lane, (l952) I TLR 1037"The Lord Justice then continued :"If a servant is given a personal privilege to stay in a house for the greater convenience of his work, and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of the house is quantified in money; but if he is given an interest in the land, separate and distinct from his contract of service, at a sum properly to be regarded as a rent, then he is a tenant, and none the less a tenant because he is also a servant. The distinction depends on the truth of the relationship and not on the label which the parties choose to put it: see Facchini v Bryson, (1952) I TLR 1386."The last observation covers the present case Under the standard form of agreement of respondent No. 2, the occupation of the officer ceases not only on the termination of his employment hut also on his transfer from Calcutta and on his death. The company is at liberty to allot any other flat to the officer. During the absence of the servant from Calcutta, the company is at liberty to assign the premises to any other employee or other person. The accommodation is free, but the Company reserves the right to levy license fees. All the terms of the agreement are consistent with the expressed intention that the officer is permitted to occupy the flat as a licensee and nothing in the agreement shall be deemed to create the relationship of landlord and tenant.The agreement on its true construction read in the light of the surrounding circumstances operates as a License and not as a tenancy. It creates no interest in the land. It gives only a personal privilege or license to the servant to occupy the premises for the greater convenience of his work.5. The High Court rightly held that the respondents reasonably require the flats for respondent No. 2s own occupation through Officers holding the flats on its behalf as licensee. If so, it is conceded that it is not necessary for the respondents to establish the reasonable requirement by respondent No. 1 also for its own occupation.The High Court decided this issue also in favour of the respondents is the decision on this issue is not necessary for the disposal of this appeal, we express no opinion on it. The High Court rightly decreed the suits.

Decision:
0[ds]The last observation covers the present case Under the standard form of agreement of respondent No. 2, the occupation of the officer ceases not only on the termination of his employment hut also on his transfer from Calcutta and on his death. The company is at liberty to allot any other flat to the officer. During the absence of the servant from Calcutta, the company is at liberty to assign the premises to any other employee or other person. The accommodation is free, but the Company reserves the right to levy license fees. All the terms of the agreement are consistent with the expressed intention that the officer is permitted to occupy the flat as a licensee and nothing in the agreement shall be deemed to create the relationship of landlord and tenant.The agreement on its true construction read in the light of the surrounding circumstances operates as a License and not as a tenancy. It creates no interest in the land. It gives only a personal privilege or license to the servant to occupy the premises for the greater convenience of his work.5. The High Court rightly held that the respondents reasonably require the flats for respondent No. 2s own occupation through Officers holding the flats on its behalf as licensee. If so, it is conceded that it is not necessary for the respondents to establish the reasonable requirement by respondent No. 1 also for its own occupation.The High Court decided this issue also in favour of the respondents is the decision on this issue is not necessary for the disposal of this appeal, we express no opinion on it. The High Court rightly decreed the suits.