Civil Revision No. 647 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 647 of 2009 Date of Decision: July 22, 2010 Municipal Council, Palwal .....Petitioner Versus Lekh Raj and others ….Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Sanjay S. Chauhan, Advocate, for the petitioner. Shri Surya Parkash, Advocate, for respondent Nos. 1 and 2. Shri RKS Brar, Additional AG, Haryana. Hemant Gupta, J. (Oral) Challenge in the present revision petition is to the order passed by the learned first Appellate Court on 27.8.2008, whereby on an application filed by the plaintiff-respondents under Order 39 Rules 1 and 2 of the Code of Civil Procedure, it was ordered that the possession of the plaintiffs is not that of rank trespasser and the defendants could seek eviction of the plaintiffs in due course of law. The plaintiff-respondents filed a suit for permanent injunction along with an application for ad-interim injunction. It was pleaded that the plaintiffs are statutory tenants under the Municipal Council since the year 1976. At the time of inception of tenancy, the rate of rent was Rs.250/- per month, which is now Rs.1005/- per Civil Revision No. 647 of 2009 [2] month. Therefore, it was alleged that the plaintiffs are in possession of the suit property and cannot be dispossessed by force, whereas the officers of the defendants are harassing the plaintiffs without any justification and causing obstructions in the running of the business of the plaintiffs. In the written statement, the stand of the defendants was that the land in question was given to the plaintiffs on Teh Bazari for exhibiting Rehris on Old G.T. Road and not for constructing any type of shop etc. The plaintiffs have constructed two shops measuring 6’ x 3’ over the drain/water channel, illegally, unauthorisedly and without the permission of the Municipal Council and without getting any site plan sanctioned. It was also pleaded that at the property in dispute is a public premises and the provisions of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short `the Act’) do not apply. The learned trial Court dismissed the application for ad- interim injunction holding that Section 181 of the Haryana Municipal Act, 1973 clearly authorizes Municipal Committee, the Executive Officer or the Secretary that by notice any person who has committed a breach of the provisions of sub-section (i) to stop unauthorised construction to remove or alter any such encroachment. The Court has to bear in mind the detriment, while granting ad-interim injunction, to the public property and public premises. The Court found that the Municipal Council is authorised to remove unauthorised construction over the drain/water channel as per Section 181 of the Haryana Municipal Act, 1973 and consequently dismissed the application. The learned first Appellate Court, inter- alia, found that there is serious dispute regarding title of the property and that the plaintiffs have proved their possession over the suit property and are entitled to the protection. Civil Revision No. 647 of 2009 [3] Learned counsel for the petitioner has vehemently argued that it is the admitted case of the plaintiffs that they were inducted as tenants over the suit property earlier on payment of rent of Rs.250/- per month and now on payment of Rs.1005/- per month. Thus, it cannot be said that there is any dispute about the identity of the property and/or its title as the plaintiffs have admitted themselves to be the tenants under the petitioner-Municipal Council. It is contended that the provisions of the Act are not applicable to the premises in dispute and the plaintiffs are not the protected tenants in view of the notification dated 3.6.1959 issued under the Punjab Urban Rent Restriction Act, 1949, now valid and in operation in terms of Act No. 24. It is also contended that Teh Bazari is a licence granted to the occupier and such licence does not create any interest in favour of the person in whose favour such permission is granted. Therefore, the Municipal Council is competent to revoke the licence and take possession of the property in dispute. Reliance is placed upon Pritam Kumar and another v. Nagar Palika (Municipal Committee), Ratia, District Hissar, 1985(2) PLR 99 which, in turn, relied upon a Division Bench judgment reported Sardar Singh v. New Delhi Municipal Committee and another, 1966 P.L.R. 169. On the other hand, learned counsel for the respondents has referred to S.R. Ejaz v. Tamil Nadu Handloom Weavers Co-op. Society Ltd., 2002 AIR Supreme Court 1152; Ram Gowda v. M. Varadappa Naidu, (2004)1 SCC 769; Metro Marins v. Bonus Watch Co. Ltd. (2004)7 SCC 478; Pramod Kapoor v. Nanu B. Amin 1993(1) CCC 114 (Allahabad); Parkash Singh v. State of Haryana, 2002(2) PLR 771 (P&H) and Tarsem Singh v. State of Haryana, 2005(3) PLR 595 (P&H) to contend that the plaintiffs are in established possession and, therefore, are entitled to protect their possession. Relying upon The Municipal Committee, Sirsa v. Arjan Dass, 1986 PLJ 550 (P&H), it is Civil Revision No. 647 of 2009 [4] contended that the plaintiffs are in possession of the property in dispute for the last more than 30years and, therefore, the plaintiffs cannot be dispossessed. I have heard learned counsel for the parties, but find that the learned first Appellate Court has committed grave illegality and irregularity in granting ad-interim injunction in favour of the plaintiffs. The entire basis of the order passed by the learned first Appellate Court is patently incorrect. There is neither any dispute regarding title nor identification of the property as it is the pleaded case of the plaintiffs that they are tenants over the property in dispute under the Municipal Council. In terms of Section 118 of the Indian Evidence Act, 1872, a tenant cannot deny the title of his landlord. Therefore, the reasoning given by the first Appellate Court is not sustainable in law. Still further, the provisions of the Act are not applicable in terms of the notification dated 3.6.1959 issued under East Punjab Urban Rent Restriction Act, 1949. As per the said notification, the provisions of the Act are not applicable to the building and rented land belonging to the Municipal Committee, Notified Area Committee, Board and Panchayat. Therefore, the plaintiffs are not the protected tenants entitled to protection of the Act. The Teh Bazari, is nothing but a licence to remain in occupation of the land on payment of requisite fee. It is not a tenancy as it is only permissible use. This Court in Pritam Kumar’s case (supra) has held to the following effect:- “5. I have duly considered the argument but regret my inability to accept it. It is not disputed that the plaintiffs were paying Rs. 60/- and Rs. 36/- per mensem respectively to the defendant as Teh Bazari which is evident from the receipts produced by them on the record. It has been settled by a Division Bench of this Court in Sardar Singh v. New Delhi Municipal Committee and another, 1966 P.L.R. 169 (Delhi Civil Revision No. 647 of 2009 [5] Section) that where some sort of permission or licence is given by the Committee by accepting teh bazari fee it cannot be held that any legal right was granted. The licence is not of the nature which cannot be revoked. It is further held that bare licence without more was revocable at the Will and pleasure of the licensor. The learned Bench placed reliance on Administration Municipal Committee v. Milap Chand Lurinda Ram, AIR 1953 Punjab 260, wherein Kapur, J. (as he then was) held that when the permission was withdrawn, the licensee became a trespasser and the structure which was erected with permission on the public road became one without permission of the Committee in writing. It was also observed that the Committee could then remove that construction without any delay by resorting to the provisions of sub-section (2) of Section 173 of the Punjab Municipal Act. Same view was taken by Goyal, J. in Smt. Geeta and another v. Ashok Kumar, 1982 P.L.R. 291. The learned Judge observed that the licensee after revocation of the licence would have no right to seek temporary or permanent injunction against the licensor restraining him from entering upon the property. The matter was examined by a Full Bench of the Delhi High Court in Chandu Lal v. Municipal Corporation of Delhi, AIR 1978 Delhi 174 : 1979(1) R.C.R.(Rent) 62. In that case the Delhi Municipal Corporation held an auction for the grant of licence of Kiosks and the petitioner was given the same in that auction. One of the terms of the auction was that the licence would be for 11 months in the first instance and thereafter for such term of renewal as may be mutually agreed from time to time. It was further mentioned that the licence was liable to be cancelled without assigning any reason and the Corporation was entitled to resume possession after revocation of the licence. The Municipal Corporation of Delhi cancelled the licence of the petitioner who instituted a suit for the grant of decree for permanent injunction restraining the Corporation for interfering, disturbing or dispossessing him from the Kiosks. He also filed an application for ad interim injunction. The Full Bench, after considering the matter, observed thus : "Temporary injunction sought by the petitioners could be granted, if their case was covered by the Civil Revision No. 647 of 2009 [6] three well-established principles, namely, (1) on making out a prima facie case, (2) on showing balance of convenience in their favour, in that the refusal of the injunction would cause greater inconvenience to them, and (3) whether on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioners have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners are bound to show that they have a legal right and that there was an invasion of that right. They have failed to show a legal right. Facts and circumstances, on the contrary, prima facie show that the petitioners on the revocation of the licence are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act." (emphasis supplied) 6. From the aforesaid cases it emerges that in case of a licence if the licensor revokes the licence, the licensee is left with no legal right in the property and is, therefore, not entitled to temporary or permanent injunction against the licensor. Sadhu Ram's and Madan Mohan's cases (supra) to which reference has been made by the learned counsel for the petitioners do not relate to the licensees. Thus they are distinguishable and the ratio therein is not applicable to the facts of the present case.” Thus, the plaintiffs as a licencee have no right to seek injunction against the present petitioner, who is the owner of the land in dispute. The judgment referred to by the learned counsel in Municipal Committee Sirsa's case (supra) is not applicable to the facts of the present case. In the aforesaid case, the plea was that of an encroachment for more than 30 years, whereas in the present case, the plaintiffs pleaded tenancy. Having admitted title of the defendant- petitioner on payment of rent, the plaintiffs cannot assert title in themselves. Therefore, with the sheer passage of time, a tenant Civil Revision No. 647 of 2009 [7] cannot seek title in himself nor the plaintiffs have in fact, asserted such title. Therefore, the said judgment is of no help to the plaintiffs. The other judgments have been relied upon by the plaintiffs to establish their possession as a trespasser. There is no dispute with the proposition laid down in the aforesaid judgments. In the present case, possession of the plaintiffs is that of a licencee. As a licencee, the plaintiffs cannot seek injunction to restrain the Municipal Council to evict the plaintiff in accordance with law i.e. under the provisions of the Act or to take action under the Haryana Municipal Act, 1973. Therefore, I am of the opinion that the order passed by the learned first Appellate Court is patently illegal, unjustified and has caused substantial injury to the public property. Consequently, the impugned order is set aside. The ad- interim injunction application filed by the plaintiffs is dismissed with liberty to the defendant-petitioner to seek eviction of the plaintiffs in accordance with the provisions of the Act or under the Haryana Municipal Act, 1973 or any other law as may be available to the defendant-petitioner. Allowed in the above terms. [HEMANT GUPTA ] JUDGE July 22, 2010 ds