ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10051 OF 2009 Hussain Mahmood Shirazi. .. Petitioner. ( Org. Plaintiff ) Vs Juhu Princess Co-operative Housing Society Ltd. .. Respondent ( Org. Defendant ) -- Shri Uday Warunjikar for the Petitioner. Shri H.S. Deshpande i/by Shri Prabhakar K. Shetty for the Respondent. -- CORAM : A.S.OKA, J. DATE : 16TH APRIL, 2010 ORAL JUDGMENT : Heard the learned counsel appearing for the Petitioner. The Petitioner is the original Plaintiff and the Respondent is the original Defendant. A suit has been filed by the Petitioner in the Court of Small Causes for claiming a declaration of a tenancy in respect of an area admeasuring 4 feet x 4 feet in the compound of the Respondent Housing Society wherein the hoarding structure of the Petitioner is embodied. In the alternative, a prayer has been made that the Petitioner be declared as a licensee in respect of the suit premises. The case made out in the plaint is that the Respondent Society was desirous of generating income by giving a part of the compound and terrace of the building of the Respondent – Society for display of hoardings. In the plaint, reliance is place on a letter dated 15th February, 2001. It is stated that irrevocable permission was granted by the Respondent to the Petitioner to erect two hoardings in the premises of the Respondent-Society. The reliance is placed on an agreement dated 17th March, 2001 executed by and between the parties. The case made out in the Plaint in paragraph (7) reads thus:- “7. The Plaintiff states that pursuant to the execution of the abovesaid agreements the Plaintiff caused to be erected in the compound area ad-measuring 4 feet x 4 feet =16 square feet, a hoarding structure with a tin board of size ad- admeasuring 40 feet x 20 feet, the Plaintiff states that the area admeasuring 4 feet x 4 feet = 16 square feet in the compound of building known as Juhu Princess Co-operative Society Limited at Plot Nos.10 & 11, C.T.S. Nos. 935 & 936, Juhu Tara Road, Juhu, Mumbai – 400 049, shall hereinafter be known and referred to as the suit premises. The Plaintiff states that the suit hoarding structure is affixed and embodied in the suit premises, the Plaintiff states that the Plaintiff has erected the hoarding structure at his own costs.” 2. In Paragraph 13 of the Plaint, it is contended that as the structure has been constructed by the Petitioner in an open space provided by the Respondent, in view of Clause (b) of Section 60 of the Indian Easements Act, irrevocable licence has been created in favour of the Petitioner. 3. In the suit filed by the Petitioner, a notice for temporary injunction was taken out. The notice was made absolute by restraining the Respondent- Plaintiff from dispossessing the Petitioner from the suit premises viz. area of 4 feet x 4 feet in the compound of the building of the Respondent – Society. Certain directions were issued to the Petitioner to pay compensation. An appeal was preferred by the Petitioner before the Appellate Bench of the Court of Small Causes which has been allowed and the order of temporary injunction has been set aside. 4. The learned counsel appearing for the Petitioner on instructions states that as of today, the Petitioner is confining the case to prayer clause (b) in the plaint under which a declaration has been sought that irrevocable licence has been granted by the Respondent in respect of the suit premises. The learned counsel appearing for the Petitioner has also placed on record copies of the agreement dated 17th March, 2001 as well as further agreement dated 17th March, 2001 executed by and between the parties. 5. Inviting my attention to Paragraph 7 of the plaint, he submitted that the Petitioner has executed the work of permanent nature and incurred expenditure in execution of the said work and therefore, licence granted to the Petitioner has become irrevocable. He pointed out the nature of the structure erected by the Petitioner as averred in the Paragraph 7 of the Plaint. He has placed reliance on various decisions including the decision of the Apex Court in the case of Ram Sarup Gupta Vs. Bishun Narain Inter College & Others, [ AIR 1987 SC 1242 ]. He submitted that as there is sufficient material on record to show that the licence is irrevocable, the Petitioner cannot evict the Respondent. He has relied upon another set of judgments in support of his contention that in any event the Petitioner is in settled possession of the suit premises for the last number of years and therefore, the Petitioner cannot be evicted without following due process of law. 6. I have carefully considered the submissions. The first question is whether any prima facie case is made out by the Petitioner or not. Therefore, the question is whether a prima facie case of existence of irrevocable licence was made out by the Petitioner. In the Paragraph 7 of the Plaint, as already quoted above in the earlier part of the judgment, the Petitioner claimed to be in possession of an area of 4 feet x 4 feet. It is stated that the hoarding structure with a tin board of size 40 feet x 20 feet has been erected in the said area and the hoarding structure is affixed and embodied in the suit premises. 7. This aspect has been considered by the appeal bench of the Court of Small Causes. A finding of fact has been recorded in Paragraph 15 of the judgment which reads thus: - “..It is true that after execution of this letter, agreement was executed between the parties to this appeal. From the record it is clear that plaintiff was permitted to occupy some portion for the purpose of displaying their hoarding and the hoarding was 40’ x 20’. For the purpose of displaying the said hoarding two pillars were constructed in the compound of the building, as it appears from the photographs. Therefore, for the purpose of displaying the hoarding some construction was made, then at this stage, it cannot be said that this is a construction of permanent nature. Of course, original suit is pending before the Court and parties will adduce evidence as to what material was used for the construction, whether it is temporary or permanent. However, from the Photographs, at this stage, such an inference that construction is of permanent nature, cannot be drawn.” 8. Thus, prima facie finding of the Appellate Bench of the Court of Small Causes based on the photographs is that the structure is not of a permanent nature. The said prima facie finding is consistent with the statement made in paragraph 7 of the Plaint. All that the Petitioner has erected is a hoarding which is made up of a tin board and that the hoarding may have been affixed on the pillars erected in the area of 4 feet x 4 feet. The hoarding on pillars can be easily removed. It is not the case of the Petitioner that the pillars are concrete or RCC pillars. Therefore, pillars can be removed easily. Therefore, it is not possible to find fault with the prima facie finding recorded by the appellate bench of the Court of Small Causes. 9. There is another important aspect of the matter. The Petitioner has produced a copy of the agreement dated 17th March, 2001. Clause (4) of the said agreement reads thus:- “4. The permission granted herein is specially for the purpose of the use of the portion of the premises within the parameters mentioned therein. The use shall be restricted to the fitting up illuminated hoarding and/or neon sign in the premises at the Advertiser’s own cost and liability.” . The Clause (8) of the said Agreement reads thus: - “8. Either party shall have full rights to terminate this agreement, by prior notice, in writing by not less than one calender month, to the other party without assigning any reasons for doing so.” . Most important clause is the Clause (10) of the said Agreement which reads thus:- “10. In default of payment of compensation/service charge for breach of terms hereof, the Society shall be entitled to FORTHWITH terminate this agreement by giving notice, in writing, of not less than one calender month to the Advertiser. If the Advertiser fails to comply with the said notice, and remove their hoarding from the said building, the Society shall be entitled to dismantle the said hoarding or give it to any third party without any objection from the Advertiser.” 10. On 28th August, 2006, a notice of termination was issued by the Respondent Society to the Petitioner. Under Clause 10 of the agreement on which reliance has been placed by the Petitioner, the Respondent Society is entitled to dismantle the hoardings erected by the Petitioner or to give it to any third party. Perusal of the Plaint shows that a specific reliance has been placed by the Petitioner on the said agreement. There is a specific averment to that effect made in Paragraph 6 of the Plaint. It is pertinent to note that in the plaint, the Petitioner has not challenged the terms and conditions of the agreement. Prima facie, the Petitioner is bound by the said terms and conditions of the agreement. 11. Grant of temporary injunction is always a discretionary and equitable relief. The agreement between the parties prima facie shows that the Respondent is entitled to dismantle the hoardings on termination of the agreement. There is a prima facie finding recorded that what is erected by the Petitioner is not of a permanent nature. The suit is not filed for merely protecting the possession of the Petitioner. The suit is filed for a declaration of tenancy and in the alternative, a declaration that an irrevocable licence has been created in favour of the Petitioner. After having failed to establish the prima facie case, now the Petitioner cannot contend that he is in a settled possession of the suit premises on the basis of the agreement relied upon by the Petitioner and therefore, he should be protected. The possession of the Petitioner is purely of a temporary and permissive nature. Considering the relevant clauses of the agreement, this is not a case where the Court should grant discretionary and equitable relief in favour of the Petitioner. No case for interference in writ jurisdiction under Article 227 of the Constitution of India is made out. The Writ Petition is accordingly rejected. 12. It must be stated here that the observations made by this Court are for the limited purposes for considering the prayer made for temporary injunction. The suit will be decided on its own merits without being influenced by the observations made by the Appellate Bench of the Court of Small Cause and by this Court. 13. The learned counsel appearing for the Petitioner prays that his structure may be protected for a reasonable time. The request is opposed by the learned counsel appearing for the Respondent. For a period of ten weeks from today, status quo as of today shall be maintained by the parties. JUDGE