1 wp1940.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1940 OF 2011 KJ M/s.Ace Advertising )..Petitioners Versus Marga Darshan Co-operative Housing ) Society Limited & Anr. )..Respondents ---- Mr.Shoaib I. Menon for the petitioners. Mr.Satish P. Nagvenkar for the respondent no.1. Mr.S.D.Rairikar AGP for the respondent no.2. ---- CORAM : MRS.MRIDULA BHATKAR,J DATE : 11.8.2011 JUDGMENT :- 1 Pursuant to the order of this Court dated 16.3.2011, matter is taken up for final hearing 2 The petitioners are the partnership firm doing a business in the advertising. They have entered into an agreement on 5.10.2001 with the respondent -society to display the hoardings of the advertisement at building no.1 & building no.2 of the property 2 wp1940.11.sxw of the society for the consideration of Rs.20,000/- per month and on payment of deposit of Rs.60,000/- as a security. As per the contract, they erected the poles and steel frames to display the hoardings. They incurred expenses of Rs.25/- lakhs and they have been displaying the advertisements on the hoardings since 2001. However, society terminated the license and gave notice to the petitioners to remove hoardings or otherwise society would remove. On receipt of such notice and the disturbance caused, the petitioners filed a suit i.e. R.A.D Suit No.897 of 2006 for an injunction. The Judge of the Small Causes Court granted interim relief in favour of the petitioners on 26.2.2008. However, the said order was challenged by the respondents in Appeal No.123 of 2008 and appellate Court of the Small Causes Court, allowed the said appeal on 28.1.2011. 3 Against the said order, the petitioners have filed this Writ petition. 4 Learned Advocate Mr.Menon for the petitioners, submitted 3 wp1940.11.sxw that the petitioners have spent huge amount of Rs.25 lakhs for construction of the frames and poles. The structure is assessed by the Corporation. In fact, it was agreed by both the parties in the year 1988-89 but the written agreement came into existence in 2001. He argued that the petitioners are displaying the hoardings since 2001 till today and are paying the license fees to the society. Learned Advocate relied on the letter sent by the Secretary of the society on 25.2.2002, wherein the Secretary of the Society has mentioned that though the agreement of 2001 only for a period of five years, the agreement should be for the period of 10 years and be renewed time to time. However, as society might have faced legal hurdles so as a good gesture of the petitioners, the earlier agreement of 10 years was withdrawn and the petitioners have generously cancelled the said agreement of 10 years and replaced the agreement of 5 years. The Secretary in the said letter has appreciated and acknowledged all these facts and has expressed that society was interested in continuing the said agreement with the petitioners by renewing the agreement after every 5 years. Learned Advocate submitted that this assurance was given by the 4 wp1940.11.sxw society and thus, the license given to the petitioners is an irrevocable license and the petitioners directly gets the protection under Section 60(B) of the Easements Act 1882. 5 Learned Advocate has submitted that even if the termination of the agreement or license is considered as legal and if the petitioners’ status has become un-authorised occupant then also without due process of law, petitioners cannot be removed by the respondents, much less, by force as stated in the letter of termination dated 12.12.2005 sent by the respondents. He submitted that he has right to go for the trial and lead evidence in order to buttress his argument for temporary injunction under Order 39, Rules-1 & 2 of the Code of Civil Procedure 1908. He relied on (1) Pramila Lalbhai Dabhoya Vs. Harish Lalbhai Dabhoya (2005(4) ALL MR 288 ; (2) Mansharam Vs. Dhule Nagar Palika (1994 Mh.L.J. 806) ; (3) Krishna Ram Mahale Vs. Shobha Venkat Rao ( (1989) 4 SCC 131; (4) Suresh Sopan Kadam Vs. Jaganath Genu Kadam (1999(2) BCR 619) ; (5) Smt.Shakuntala Vs.Hira Nand Sharma & Ors. (AIR 1986 SC 997); (6) State of U.P Vs. 5 wp1940.11.sxw Dharmander Prasad Singh (AIR 1989 SC 997) (7) Inayat Hussain Fakhruddin Vs.Union of India (1979 Mh.L.J. 514). 6 Learned Advocate heavily relied on ruling of Krishna Ram Mahale Vs. Shobha Venkat Rao (1989 4 SCC 131) wherein suit was filed under Section 6 and the Supreme Court has held that occupant who has unlawfully obtained the possession, cannot be dis-possessed without recourse of law. 7 Learned Advocate appearing for the respondents in reply, has submitted that the respondents are displaying the advertisements and are in arrears of the compensation amount. He submitted that MMRDA by notices dated 12.12.2005 and 19.12.2005 informed to the society that the display of the suit hoardings are to be dis- continued as the place of the same hoardings are coming in the way of road-widening by MHADA and therefore, the society was under legal obligations to comply with the said statutory notices and so the notice of termination of the license was given by the society. It was submitted that first leave and license agreement 6 wp1940.11.sxw dated 10.10.1989 which was entered into by the parties was extended and thereafter the final agreement was executed for a period of 5 years on 5.10.2001. The said agreement came to an end in the year 2006 and no further agreement was executed by the society. The letter dated 25.2.2002 relied by the plaintiffs’ Secretary giving assurance of further renewal to the appellants is challenged by the society and it was submitted that no such resolution was passed by the society to extend the license of the plaintiffs in the year 2006. It was further agreed that the consent terms dated 17.3.2006 were filed by the appellants and the respondent-society in S.C.Suit No.5610 of 2005 before the City Civil Court, Bombay. Learned Counsel denied that a license granted to the appellants is an irrevocable license as per Section 60 of the Easements Act 1882. It was also denied that no statutory monthly tenancy or lease was ever created in favour of the appellants. It is further denied that any provision under the Maharashtra Rent Control Act 1999 can be attracted and the appellants are the protected tenants. Learned Counsel has submitted that the appellants have not come to the Court with 7 wp1940.11.sxw clean hands as they are the trespassers and they cannot be protected. Learned Counsel in support of his submission, gave the list of the authorities which is taken on record. Out of which, he mainly relied on DTTDC Vs. M/s.D.R.Mehra & Sons reported in AIR 1996 Delhi 351 and on another single Judge ruling of our High Court in Ajay Mittal Industrial Premises Co..Op. Society Vs.M/s.Raj Publicity. reported in 2004(4) Mh.L.J 305. 8 In the present matter, there is no dispute that the appellant and the respondent-society have entered into two agreements dated 10.10.1989 and 22.12.2001 and pursuant to the said agreements, appellants have made the frames and displayed hoardings. The record shows that since 2005 the appellants and the society are in the litigations about the display of hoardings. The place where hoardings were displayed was in the way of road- widening, MMRDA wanted to acquire the land and MMRDA had issued the notices in the year 2005 . In the S.C Suit No.5610 of 2005 the appellants i.e. Original plaintiffs and the society filed consent terms dated 17.3.2006 that in the event of any statutory 8 wp1940.11.sxw notice served on the society in respect of the hoardings then the appellants would remove the hoardings within a period of 72 hours and at that time the society undertook that they would not interfere with the plaintiffs’ display and the possession of the hoardings without due process of law. Subsequently, the disputed place was excluded from the road widening. 9 Admittedly, when the consent terms were filed, the agreement dated 22.12.2001 for a period of 5 years, was in force. Appellants-society thereafter terminated the license by giving notice dated 26.10.2006 which initiated the filing of RAD Suit No. 897 of 2006 and the present proceedings. The appellants have challenged the order passed by the appellate Court rejecting relief of temporary injunction to the appellants against the respondent- society. The agreement dated 22.12.2001 between the parties has created a contractual right by way of license in favour of the appellants. The main force of the argument of the appellants was that the license granted in favour of the appellants is falling under Section 60 of the Easements Act 1882 and it is irrevocable. In 9 wp1940.11.sxw support of his submission, he relied on the ruling in the case of Panchugopal Barua Vs. Umesh Chandra Goswami reported in 1997(1) RCR[Rent Control Reporter] 370. In this case, Supreme Court has held that the grant of license becomes irrevocable if three ingredients are present i.e. (1) occupier must be licensee (2) he should have acted upon the licence, and (3) executed a work of permanent character and incurred expenses for execution of the work. Considering the facts of the present case, the petitioners does not satisfy all the above three ingredients as laid down by the Supreme Court. He further relied on Ram Sarup Gupta Vs. Bishun Narain Inter College reported in AIR 1987 SC 1242. In this case a school was constructed and to meet the need of the additional accommodation, the licensee management made permanent construction on the open land which was attached to the main building and at that time the licensor did not object and thereafter the licensor had transferred the said property to the plaintiff in that suit who gave notice, terminating license of the managing committee and in that matter, the licensor has donated the property to the school and there was subsequent conduct of the 10 wp1940.11.sxw licensor and therefore, it was rightly held that the license was irrevocable and the licensor or the transferee could not revoke and evict. Thus the facts are distinguishable from the present case. He further relied on Dayaram Vs. Deorao reported in AIR 1926 Nagpur 376. In order to test this submission, we have to consider the type of license granted to the appellants. It was not a license of construction of a room or any premises. Though it is a structure and assessed by the Corporation, it is a metal frame where hoardings are displayed. Therefore, there is no question of appellants having any possession of any such premises of the society. The intention of the parties to the agreement is ought to be taken into while deciding the question of right created to the licensee/grantee. The construction of the steel frame was made to facilitate to display the hoardings and displaying hoardings was never intended in perpetual. Therefore, the contract was entered into for a specific period and not in perpetuity. Therefore, the erection of the frames and the poles and the foundation for the said poles, cannot be said as a permanent structure. There was no transfer of property from respondent-society to the appellants as 11 wp1940.11.sxw contemplated in Section 60 of the Easements Act 1882. This agreement has created a temporary right in favour of the appellants as a user. License is a permission and that can be cancelled by the granter after efflux of time or after the period of the agreement is over. It is not disputed that after agreement dated 22.12.2001, no further agreement was entered into by the appellants and the society and there was no renewal of the license as such. The letter written by the Secretary is on record. However, the truthfulness of the said letter was challenged. These factors were considered by the appellate Court while rightly refusing relief of temporary injunction in favour of the appellants. It is true that at the time of issuing notice, there was no notice from either MHADA or BMC in respect of removal of the hoardings. However, society did not want to continue the contract, may be by way of abundant precaution or for any other reason. 10 In DTTDC Vs. M/s. D.R.Mehara & Sons reported in AIR 1996 DELHI 351, the Division Bench of Delhi High Court has held in paragraph nos.15 & 16 as under :- 12 wp1940.11.sxw “15. In our view injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to Court with clean hands. When he does these things there will be no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the Court to protect his illegal possession. 16. It is argued for the appellant that this may be anomalous. It is said that the trespasser has a “right” to an injunction against the true owner, and this is complementary to the duty of the owner not to evict the trespasser outside the judicial process. In our view, there is no anomaly. Each of these is based on a different legal principle. If the plaintiff wants the defendant to act in accordance with law he must first abide by the law himself and vacate the property as one would expect a law abiding citizen to behave.” 11 Thus, once the licensor has terminated the license and has not renewed, it is the responsibility of the licensee to regard the terms and conditions of the agreement and to remove the structure. Undoubtedly, after termination of the license, the appellants are using the space for displaying advertisement unlawfully and they are taking the advantage of the agreement 13 wp1940.11.sxw which came to an end in December-2006. Such kind of a continuation on the lands of the appellants is unlawful and amounts to abuse of the permission which was given to them earlier, such persons are not entitled to get any protection under the law. No injunction can be granted in favour of the appellants. The appellants in a given case, cannot claim any settled possession. 12 The single Judge of this Court has earlier in the case of Ajay Mittal Industrial Premises Co-op. Soc. Vs. Mr.Raj Publicity reported in 2004 [4] Mh.L.J. 305, has taken a similar view and no interim injunction was granted to display the hoardings while deciding the application of interim relief. 13 Hence no error is found in the judgment of the appellate Court. Writ petition is dismissed. Petitioners are given time till 15th September-2011 to remove frame and hoardings. (MRS.MRIDULA BHATKAR,J) 14 Learned Advocate Ms.Patil instructed by Mr.Shoaib I.Menon 14 wp1940.11.sxw for the petitioners submits that the order may be stayed for 12 weeks as petitioners want to move to the Apex Court. Learned Advocate for the respondents opposes the said request. In view of the circumstances, and the legal position, time granted to remove frame and hoardings till 15th September-2011 is sufficient. (MRS.MRIDULA BHATKAR,J)