IN THE HIGH COURT OF DELHI AT NEW DELHI WPfC) No.3913/2004 & CrYl3212/2004 Scifiirved on : 113^005 Date of DecLsioja 2S^- July, 2005 MUNiaPAL CORPORATION OF DELHI .....FeMouer Througli: Ms. Ainita Gupta aud Ncciima Tiwari, Advocates, Versus M/3NORTHDELHIPOWERLTD. ...JRespondent Throu^: Mr. Anil Pajswar^lr. Amar Gupta, Mr. Maiisoor Aii Sho]iet,MrAuupam Verma, iidvocaies. CORAMi THE HON'BLE MR..JUSTICE S.RAVINDRA BHAT 1. Wiiediej'xepoitersof localpapers maybe allowed to see tlie judgment;? 2. To be referred to tlie Reporter or not? 3. Whetiiertliejudgment siiouldbe reported in ihe Digest? S.RAY3NDRA BHAT. T. i 1. Tlie MunicipalCorporationof Delhi(MCD) has preferreddiispetitionunder Ne. 3913/2004 S CM.3212/20 04 1 of 25 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified :4 Articie 226 of ilie Constitution of India, challenging a decision of tiie Additional District Judge dated 3-1.2004. The Additional District Judge uiereinafter called "die Tribunal") had allowed an appeal filed by tlie respondent. Tne appeal was directed against an order of MCD, dated 26.3.2003, assessing a vacant plot, occupied by tlie said respondent, near sub station. Civil Lines; tlie rateable value fixed was Rs.58,53,960/- widi effect from 1.4.2002. 2. TLie respondent ( hereafter, "NDPL'") is a Company; it was handed over certain activities pursuant to electricity reforms in Delhi. Tlie erstwhile Delhi Vidyut Board (DVB) was dismantled, by virtue of tlie Delhi Electricity Reforms Act. 2000 fnereinafter called "the Reforms Act") Electricitv generation, Transmission and distribution were unbundled. As a result, for tlie purposes of carrying out tlie various tasks or activities different sets of corporate entities were created. A ti-ansfer Scheme, known as "tlie Delhi Electricity Reforms (Transfer Scheme) Rules, 2001, was formulated under tiie Reforms Act. 3. Tne position taken by MCD in diis case is uiat by virtue of Sections 119 and 120 of die Municipal Corporation of Delhi Act (hereinafter ca.lled die 1957 Act) die respondent is liable to assessment; and has to pay tax. The res;pondent,on die odier hand, asserts diat a joint reading of die provisions of Liie Reforms Act, die Traiisfer Scheme and 1957 Act lead to die conclusion SgfO 1^0.3913/2004 & CM.3212/20 04 2 ef 25 tliat it is merely a licencee of tlie piopexties; tliey coriLinue to vest in tiie Government. Hence it is not liable to taxation. 4. Tne MCD passed an Assessment Order dated March 26, 2003 in res^pectof vacant plot near Sub Station, Civil Line Zone ("the property") which was intended for establishment of 66 KV Grid. Tne NDPL appealed to tiie Tribunal, which, by die impugned Order, held diat die Respondent is not liable to pay property tax in respect of die said property as it is a licensee in res-pect of die property; and diat die property is exempt from payment of property tax under Section 119(1) of die Delhi Municipal Corporation Act, 1957 ("die Act"). A brief narrative is necessary for a fuller appreciation and I determination of die controversy in issue. 5. On January 6, 2001, die Government of NCT of Delhi (Depaitment of Power) (liereinafter referred to as "GNCT") decided to un-bundle Ctelhi Vidyiat Board ("DVB") into six successor companies, including diree distribution companies. Tne Reforms Act, was notified on March 8, 2001; it, had.come into effect from Tsfovember 3, 2000. 6. Section 15(1) of die Reforms Act provides asunder "Wiih effect from ihe date on which a transfer scheme prepared by ihe Government to give effect to the objects and purposes of this Act, is published or such further date as miiy be specified by the Government (hereinafter referred to as "the effective date") any property, interest in property, rights and liabiUties which immediately before ihe effective date belonged to ihe Board shall vest In the Government. " HPfC) No. 3913/2004 £ CM.3212/2004 3 of 25 1. Inexerciseof the powersconferredby Section15, 16 and 60 of tiie ReforirisAct, tlie Delhi ElectricityReform(TransferScheme)Rules,2001 was notified on November 20, 2001 by tlie GNCT tiirougli an order (hereafter referred to as tiie "Transfer Scheme"). Section 3(1) of tlie Transfer Scheme provides as under "On andfrom the diiie of the transferlo be notified for ike purpose, all the assets, liabilities and -y > proceedingsof the Board simtl stand transferredto and vest in the Government absolutely and in consideration thereof the loans, subventions and oMigaiio?is of ike Board to the Government shall stand extinguishedand cancelled, which shall be in full andfinal settlementof all claims whatsoeverof the Board." S. Under tlie Transfer Scheme, tlie assets of DVB were classified as follows (Para 4[1]):- "(a) Rights and interestsin PragatiPowerProjectas set out in Schedule d 'A'/ 4 (b) GenerationUndertakingas setout inSchedule'B'; (cjTransmissionUndertakingasset out in Schedule'C; (d) DistributionUndertakingas setoutinSchedule'D': (e) DistributionUndertakingas set out inSchedule'E'; (f\ DistributionUndertakingas setout in Schedule'F': (g) HoldingCompanywithassetsandliabilitiesojs set out in Schedule'G'. While tiie 'disuibution undertaMng'as set out in Schedule 'F' comprised of aPfCV No. 3313/2004 5 CM.3212/2004 4 of 25 (!) various assets such as 66 KV and 33 KY Grid Sub Stations, transmissionline, variousotiierinstallations,plant and niMiinery,roads, buildingsetc. utilized for die purposeofdistributionas detailedat Points I,II and III, tlie proviso to Para III, in ScheduleF (which relatesto tiie transferof assets and liabilitiesto NDPL) prescribes diat; "Providedthai noiwilhsiandingLII and ill aboveand thai ike land was being used invnediaielybeforedate ofike transferexclusively orprimarilyfor ike businessofthe transferee,no part ofthe land shallform part of the assetsof transferredunder these rules. Tne transfereeshall be entitledto use such land as a licenseeof the Governmenton paymentof a consolidatedamount of One rupee onlyper monthduringtheperiodthe transfereehas the sanctionor license or authorization to undertake the distribution business. Aa- and when such license or sanction or authorization is revoked or cancelled or not renewed or the area of supply where the land is situated is withdrawn from the transferee, the license to the transfereein respectofsuchlandshallstandamcelled. 9. Tlie MCD assailstlie impugnedorder of die tribunal,on tiie grounddiat NDPLis liableto municipaltaxfor liie propertyasper Sections120(l)(c) and 120(2)ofdie Act. MCD alsoreliesupon Section15(2)ofdie Reforms Act, to contenddiat die land was transferredby die Governmentto die NDPL, and dielatter is dierefore,liable to pay property tax. 10.It has been averred by MCD, and contendedon its behalf by learned counsel, Ms. AmiLa Gupta, diat die erstwhile DVB was paying tax in respectofdie saine land; diereis no materialchangein circumstancesto exeuTOtdie NDPL from such liability. Iv-e.3913/2004 & CM.3212/2004 ^ of 25 y. 11.Learned counsel for MCD submitted dia£ die NDPL could not claim immunityfiom taKation by relying upon Section 119 of the MCD Act, sinceprovisionsin Section120constitutedan exceptionto tiiatpiovision, and spelt out die conditionsunder which bodies and entities such as NDPL were liable to taxation. It was also submitted drat the issue is coveredby die decisionof diiscourtin 43(1991)DLT 601 : Internaiional AirpariAuthorityofIndia vi. MunicipalCorporationof Delhi( hereafter, die "IniemalionalAirportAuthoritycase"). It wasalso contendeddiatdie real character of die possession of die propertyby NDPL,was as a lessee, and not a license,even diough die latter nomenclauirewas adoptedin die transfer scheme. Ttie counsel relied upon Section 15(1) of tiie Reforms Act, and stated uiat die arrangement termed as a license is of an indefinite period; die nature of business activity, viz distributionof electricity, envisioneda prolonged,as opposedto short-termuse of the property.The ^ descriptionas alicensefee, and the levy of nominallicensefee did not detract from die real nature, of the arrangement,which is a 'tenancy" or lease. Hie respondentin fact is in occupationfor more dian one year; it has no restrictionupon die nature of enjoymentof property,nor is diere any iir^edimentin die ReformsAct or die Transferschemefrom putting up buildings,and using its materials.In short,apartfrom the description as license,diearrangementwouldbe a "letting",of diepremises. 1 WPiCi No. 3913/2004 & CM.3212/2004 S of 25 y i2.Ii is coiiLended,on die odier hand, on behalf of die resi also filed written submissions)that it was issuea a lice londent (which nse, under die lion and retail Refofiiis Act and die Transfer Scheme lor tiie distribt supply of electricityin Nordi and Nordi-^estDemi circ Capital Territory of Delhi. By virtde of clause 5(1) Scheme,assetsdefinedas "distribution"assetsas set out les of National ifj of Transfer Schedule 'F to in die Scheme stood transferred to die Res;pondent. Tiie •assets did not includeland(includingdie saidproperty).Ownershipoflandscontinueto vest widi die Government. In respect of distribution undertaking transferredto die Respondent,too, clause5(3) (of die TransferScheme) providesdiat: "Tne rights in the undertakingor the assets transferredto the transfereeshall be subject to the restrictionsand Umitations, specifiedin theserulesorin theappiicaole^cheaule. 13.Itwas. diereforecontendedon behalfofdieresponaent,tiiat. (i) Tne saidpropertyisa vacantplot; ni)Triesaidpropertyisintendedfor establishmentof 66 KV Grid; dii) The said property is part of die land which never formed 'distributionundertaking'as setoutin Schedule'F' and die rigm, titleandownershipin respectdieretoremainwidi die Government; (ivl Tlie Respondentis entitled to use die land including die saiu HPfCt ITq. 3913/2004 S Ged.3212/20 04 7 of 2^ r M property as a licensee of tiie Government on payment of consolidated aiiiount of one rupee per montli during die period die Respondent has sanction/iicence/audiorizationto undertake die distribution business. (v) Tne period of license for die land including die said property is co-terminus widi sajiction/licence/audiorizationin favour of die Respondentto undertakedistributionbusinessand no prior noticeof terminationis requiredto begiven. 14. It was also submitted diat die Respondent is not liable to pay propertytaxinrespectofdie saidpropertyfordie reasonsdiat: (a) The right, tide and ownership of land utilized for die purpose of 'Distribution Undertaking' including die said propertyis vestedin die Governmentand, dierefore,by virtue of Section 119(1) of die DMC Act, no tax can be levied in respect of die said property. (b) Section120 has no applicationto diepresentcase,in view of die iudsriKnt of die Suureme Court in (2001) 1 SCC 455: ^ W J- . Housing A Urban Development Corpn. Ltd. vs. MCD A Another ( hereafter, "the HUDCO Case "). (c) Tneissue is concludedby die Full Benchjudgmentof diis court in 100 (2002) DLT 442 (FB) : Municipal Corporation of Delhi vs. Pradip Oil Corporationand Anr ( hereafter "the ParadipOil Corporationcase),where die meaningof die term JSPiC) No. 3913/2004 & Ca.321.2/2004 S of 25 possession, and license, had been considej-ed,and &e Court had concludeddiat wheneveran arrangementlike tlie presentoneis enteredinto, die ownej*is not divestedof possession;hence, tlie respondentis notliable to pay property tax. Pravisiom of ihe MCD Act The relevant provisions of die MCD Act read as follows: "il9. Taxation of Unionproperties.— (1) Noiwiihsianding anyihim contained in the foregoing provisionsof this Chapter, landsand buildingsbeingproperties of the Unionshallbe exemptfrom ihepropertytaxesspecifiedin section 114: Provided that nothing ^[in this sub-section]shall prevent the Corporation from levyingany of the said taxes on such lands and buildingsto which immediatelybefore the 26th January, 1950, they were liableor treatedas liable,so longas that tax continues to be leviedbythe Corporationonotherlandsand buildings. (2) Where thepossessionofanylandor building,beingproperty ^ ofthe Union,hasbeendeliveredinpursuanceofsection20ofthe DisplacedPersons (Compensationand Rehabilitation}Act, 1954 (44 of 1954) to a displacedperson, or any association of displacedpersons, whetherincorporatedornot, or to any other person [hereafter in this sub-section and the proviso to sub section (1) of section 120 referred to as the transferee], the property taxes specified in section 114 shall be leviable and shall be deemed to have been leviable in respect of such land or buildingwith effectfrom the 7thdayofApril, 195S or the date on which possession thereof has been deliveredto the transferee, whichever is later, and such property taxes shdl, notwithstandinganything contained in theproviso to sub-section (1) of section 126 or any other provision of this Act, be recoverablewith effectfrom thatdayor date, as ihe case may be. SPfO No. 3313/2004 5 CM.3212/S0Q4 3 ef 25 \ J J 120. Incidence ufproperty taxes.— (1) The properly taxes shall be primarily leviable as folloH's:— (a) if the land or building is let, upon the lessor; (b) if the land or building is sub-let, upon the superior lessor; (c) if the land or building is unlet, upon the person in whom the right to let the same vests: Provided that the property taxes in respect of land or building, being property of the Union, possession of which has been delivered in pursuance of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954), shall be primarily leviable upon the transferee.] (2) Ifany land has been letfor a term exceeding one year to a tenant and such tenant his built upon the land, the property taxes assessed in respect of that land and the building erected thereon shall be primarily leviable upon the said tenant, whether the land and building are in the occupation ofsuch tenant or a sub-tenant ofsuch tenant. Explanaiion.—Tne temi "tenant" includes any person deriving title to the land or the building erected upon such land from the tenant whether by operation of law or by transfer inter vivos. (3) The liability of the several owners of any building which is, or purports to be, severally owned in parts or flats or rooms, for payment of properly taxes or any instalment thereof payable during the period of such ownership shall be joint and several. HgfC'i No. 3913/2004 & Qd.3212/2004 10 ef 25 121. AppoHionmeniof iiabiliiyforproperiytaxes when tke premises assessed are let or sub-let.— (1) if any land or buildingassessed toproperly taxes is lei, and its rateable value exceeds the amount of rent payable in respect thereof to ihe person upon whom under ihe provisions of section 120 the said iaxes are leviable,thaiperson shall be entitledto receivefrom his tenant the differencebetweenthe amount of theproperty taxes levied upon him and the amount which would be leviableuponhim ifihesaid taxes were calculatedon ihe amount ofrentpayable to him. (2) if ihe landor buildingissub-letandits raieablevalue exceedsthe a^nouniof rentpayable in respectthereofto ihe tenant by his sub-tenant, or ihe amount of rent payablein respectthereofto a sub-ienaniby ihe person holdingunderihe sub-tenant,the tenantshallbe entitled to receivefrom his sub-ienanior ihesub-tenantshall be eniiiledto receivefrom iheperson holding underhim, as ihe case may be, ihe difference between any sum recovered under this section from such tenant or sub tenantand ihe amount ofproperty taxes which wouldbe leviable in respect of ihe said land or building if ihe raieable value thereof were equal to the difference between the amount of rent which such tenant or sub tenant receives and ihe amount of rent whichhe pays. (3) Any person eniiiled to receive any sum under this section shxiU have, for ihe recovery thereof ihe same rightsand remediesas ifsuch sum were rentpayableto him by ihepersonfrom whomheis entitledto receivethe same. 122. Recoveryofproperiy iaxesfrom occupiers.— (1) On ihefailure to recoverany sum due on accountof propertytaxesinrespectofany landor buildingfrom the personprimarilyliable therefor under section 12G, the Comjnissionershall recoverfrom everyoccupier of such aPfCV N6. 3913/2004 a Qi.3212/2004 11 of 25 r? ,v- •' land or building by aiiacJimtnl, in accordance with seciion 162 of ihe reni payable by such occupier, a portion of the tokd sum due which bears, as nearly as may he, the same proporiion to thai sum as the rent annually payable by such occupier bears lo the total canount of reni annually payable in respect of the whole of the land or building. (2) An occupier from whom any sum is recovered under sub-section (1) shall be entitled to be rebvbursed by the person primarily liable for the payment, and may in addiiion to having recourse to other remedies thai miiy be open to him, deduct the amount so recovered from the amount of any rent from time to time becoming due from him to such person. " 15.In die present case, die lands were originally that of Delhi Vidyut Board; tiiat organization was paying property tax. However, with the advent of die Reforms Act, die land vested in die first instance widi die Government. Hie first limb of die subtiiission made, therefore is diat die title continues to vest in die Government, and by operation of Section 119, die respondent NDPL cannot be made liable for payment of property tax. 16. Tlie contention of the MCD, on the odier hand, is diat die erstwhile DVB was paying tax; die NDPL is its successor, and dierefore, bound by all its obligations, including die liability to pay property tax. 17. Section 119 exempts Union property from municipal ta^tion, under the Delhi Municipal Coiporation Act. Tnis provision is in line widi die mandate of Article 2S5 of die Constitution of India, which grants Union KPfO iv'e. 3913/2004 & CM.3212/20 04 i \. 3 piopci-iyimmumty from taxation. 18. The termsofSection119 carveout two exceptions;first, prrjpertiesthat were subject to taxation before January, 1950 or propertiestliat stood transferred under Section 20 of die Displaced Persons ( Compensation and Rehabilitation) Act, 1954, witli effect from 7'*^ April, 1958, or from any otlierdate, wouldbe subjectto taxationin die handsof die transferee,from any ofdie laterof tlie two respectivedates. 19. Learnedcounsel for MCD contendeduiat in view of die judgn^ntin the IniemalionalAirportAuihorilycase, the respondentNDPL is liable to paypropertytax. Tnatjudgmentwasconcernedwididieinterpretation of die expression"vesting"under Section 12 (l)(a) of die International Airports AuuiorityAct. Tlie property,before vestingin die Audiority, hadvestedwidi die CentralGovernment.Hence, die Audiorityclaimed benefit of Section 119 (1) of die MCD Act. The court repelled die contention, and held diat by virtue of Section 12(1) (a), whatever had vestedwidi liie CentralGovernment,vestedwidi die Audiority;henceit could not claim exemption from taxation. As would be evident from die facts, and die provisions of law, die property itself vested widi die Audiority, a statutory corporation.Hence, diere was no question of application of Section 119(1) of die Act. Trie SupremeCourt had occasion to inteipjtetSection 119 of die ifPfC) No. 3313/2004 & GM.3212/2QQ4 13 of 25 -1^ Act, in tlie HUDCG case. Tne cuui't held as follows: '6. li is clearfrom a readingofsub-seciion(1) of Section 119 thai lands and buildings whichare iheproperties of the Union are exempt from property tax, Mr. M.L. Varma, learned Senior Counsel appearing for the respondents, however, contended thai under sub-section (2) of Section 119 whenpossessionof ihe land isgiven to anyperson then propertytax canbe recoveredfrom thatperson" "7 . Inour opinion,on a correct readingofSection119(2), the aforesaidconsequencedoes notfollow. Sub-section(2) ofSection119providesthat wherepossessionofthelandor / buildingbeing thepropertyof the Unionhas been delivered in pursuance of Section 2G of the Displaced Persons (Compensationand Rehabiliiaiion)Act to (a) a displaced person,or (b\ an associationof displacedpersons,or (c) to any other person, then the property tax can be recovered from theperson inpossession. It is clear that the expression "to any other person" can only be thai person to whom possessionhasbeendeliveredinpursuanceoftheprovisions ofSection20 of the DisplacedPersons(Compensationand Rehabilitation)Act. Thisobviouslyis not the position in the present case. Possession H/iis not given to the appellant under the said Act and, therefore, sub-seciion (2) of Section 119 does not come into play." j "S. From iheaforesaiddiscussion,it clearlyfollows that the land in questionbeing exemptfrom taxby virtueofSection119(1)of the Act as it is theproperty of the Union andfurthermore even under Section120(1)no tiLK in respectof land couldhave been leviedin the present case on the appellantprior to the same being lei to them in 1997." It is deaf tlmt tiiequestionofwhetlierti'ie NDPLis liableunderSection 119(2) wouldhave to be aiisweredin die light of the aboveruling. Tliatprovision,by way of an exceptionto die Union property'simtminityfrom taxation,in my HgfO No. 3913/2004 £ CM.3212/2004 14 of 25 J consideredview,can have no application- 20.The next question is wliemej- the NDPL is liable to pay tax, by virtueof provisionsof Section 120 of tlie MCD AcL Section 120(1)visualizesdiree Situationswhere tax can be recovered,and delineatesdie primaryliability upon personsconcerned,in diosesiruatiais.The firsttwo,concernproperties ^ Which are let or sub-let; die liabilityin such cases is upon die lessor or superiorlessor, as die case may be. Tlie diird simation,coveredby clause (iii)is wherediepremisesare unlet;dieliabilityis upon dieperson -'enmed to lei .Tlie questionwhich has to be consideredis whettierdie respondent NDPLhada"rightto let";in siiort,whedier,it hadsomeinterestin dielaud, whichenabledit to letdieproperly.Tliisquestionhas to be examined,along widitlieprovisionofsection120(2),sincebodiinvolvethe issueof"letting" jv ojr "tenancy" 21.Section120(2)statesdiat if any land has beenletforatermexceedingone year to atenant aiid such tenanthas builtupon tlie land, tiie propertytaxes assessed in respect of tliat land and die buildingelected dieron ^lall be primarilyleviableupon die saidtenant,whetherdie land and buildingare in the occupationofsuch tenantorasub-tenantofsucli tenant.Tneexplanation expansively defines "tenant" as follows: ExplanaliorL- Tne term "lemini"includesanypersonderivim; iitleto ike landor the buildingerectedupon xuck landfrom the KF(C) ITo.3313/2004 s CM.3212/:?nn^ 2.5 of 25 -y > 1 ienani whether by optraiion of law or by transfer inter vivas. " The question tiiat arises, tlierefore, is wiietiier tiie respondent NDPL is a (itenant". 22.The counsel for MCD contended diat die term "tenant" has to receive a liberal interpretation; die nomenclature of a particular legal relationship is immaterial, die contents and intent of die parties who enter into it is relevant. Thus, even if an arrangement is called "license" it may, in reality, be a lease, and vice versa. 23.Counsel for NDPL, on die odier hand, contended that a plain reading of the Section 120(2) leads to die conclusion that in order for the said provision to be attracted, diere must be a lease/tenancy. In die present case, die land utilized for die purposes of die 'distribution undertaking' including die said property were permitted to be used by die Government under a statutory licence. As such, diere is no question of Section 120 sub-section (2) being attracted and the Respondent being held liable to pay property tax in respect of die said property. 24.1n the case of 78(1999) DLT 584 (DB); Gas Authority of India Ltd. Vx Municipal Corporation of Delhi, a Division Bench of die Court held as follows: tfgfO No.3313/2004 S CM.3212/2004 IS of 25 i "46. Far the purposeofpeiitianer'sbusiness,the pipelineis used by afar ikepurposeofiransporiationafgasfrom Ike bowlsofike earlk ullimiielyio Haryanaand U.P. Applyingthefunciianallexi, as applied in the aforementioned cases, at tke most pipelines, whichhave been laid beneaththe land, will have tobe treatedas a 'plant' contained in or situated upon ike land. Holding gas pipelinesio oe plant, until such a plant is specifiedby a public notice by the Commissioner, with tke approval of the Standing Committee,as envisagedin Subsection(3) ofthe Section116 of ine Act, me samesnali not be deemedto beformingapartofsuch landfor the purposeofdeterminingthe ratable value thereof In otherwords,pipelinehas to be whollyexcludedwhiledetermining the ratable valueofthe landas thepetitioneris not ownerofthe land, beingonlya licensee,there was no questionofhavingissued any notice to the petitionerfor the purpose of determining the ratablevalueofthepipelines,namely,theplant. "47. In view of the above, we are af the view that the pipeline, beingaplant, thepetitionerwouldnot be liablefor tax m.erelyon the groundthat the samehas been laidwithin the Municipallimits of Delhi, by virtue of arrangement witk ike private owners. Railways and Government, which arrangement is nothing, but amountsto a licence. Liabilityfor tivcation,ifany, wouldbe only an the respectiveownersofland, through whose landthepipeline is passing and not thai of tke petitioner, as the same wouldbe a plant far the purposes of carrying on petiiioner'sbusiness and valueof the same, in the absencecf any Notificationissuedunder Suo-section (jt af Section 116 will have io be excluded while determiningthe ratable valueof ike land, in caseikesameis liable for tax in ine nanas af the owner af lessor. Consequently, the petitionis 'Mowed. Tke impugnedorderand dem^andarequashed and set aside.. " 25. In die ParadipGil case, die Full Bench had occasionto deal widi die issue ofwho is a tenant,under Section 120(2)ofdie MCD Act. Trie court noticedseveraljudgments,includingdecisionsof die SupremeCourt, as also Section52 of die EasementsAct, while analyzingdie distinctionbetweendie HPfO iv'e.3S13/2004 & CM.3212/20Q4 17 35 / X expfession "lease" and "license". Trie couit held diat "37. Whether a dacumenlcreatesa licenseor lease, would inter alia, dependupon certain interpretedcriteria, whichare: io ascertain whether a document creates a license or lease, the substanceofthe documentmust hepreferred io thefonn; that realtest is the intentionoftheparties-whetherthey intended to create a lease a license; ifthe documentcreatesan interestin the property,it is a lease;but if it onlypenniisanotherio make use of theproperty, of which the legalposition continueswith ike owner, it is a license; and if under the document the party gets exclusive possession of the property, prima facie, he is considered to be tenant; but circumstancesmay be established wkich negative Ike intention to create a II. III. IV. lease. "61. Why the documenthas been termedas a licensedespitethe fact thai therebya right inpropertyiscreated,isnotfor the Court to answer,particularly,when the deedis an oldone. Tne ownerof ike property, be it ike Central Governmentor otherwise, would always oe Keen to see that it is not involved in unnecessary litigation. Tne common knowledge is that the owner of the propertyisalwaysa strongerside. Thegranteeat a relevantpoint oftime wwi- merelya companyincorporatedunder the Companies /id. It mid not become a Public Sector Undertaking, it was interestedin obtaininga grantfor a long lime so as to facilitate storage of all petroleum products. Further purpose of transportationof petroleum products from, the wagons to its storage tank, land is other than belonging to railway administrationwas not available. Companydealingin petroleum products would not have any option other than io succumb to the diktats of the officers of the Railway AdmAnistration. If the respectiveof the labellingof the documentsitspurpose is served sofar as the interestof the