Satwir Kumar vs Subhash Kukreja
1997 Latest Caselaw 292 Del

JUDGMENT

Usha Mehra, J.

(1) The petitioner, a retired Government servant a classified landlord, filed a petition under Section 14(c) of the Delhi Rent Control Act (for short the Act). The respondent herein sought leave which was granted by the impugned order. Aggrieved by the same the present petition has been preferred, inter alia, on the ground that the Additional Rent Controller (for short the ARC) by misconstruing the License Deed held that in view of the license deed there exist dispute about relationship of landlord and tenant which is triable issue hence granted leave. According to the petitioner, the learned Arc went by the label of the document instead of its substance. The learned Arc also ignored the fact that the petitioner having already retired on 29th February, 1996 and having been served with notice from the Estate Officer to vacate the accommodation has been forced by pay the market rent. Hence needed bona fide the house for her residence.

(2) In order to appreciate the challenge tO the impugned order, the relevant and brief facts are that the petitioner was employed as Deputy Chief Director (Department of Agriculture and Cooperation), Ministry of Agriculture. She was allottee flat No. 32, Block A, Pandara Road, Delhi. She has been occupying the said flat allotted by the Government. She owns the house in question bearing No. 17-C, Block An (2nd floor), Shalimar Bagh, New Delhi. She let out this house to the respondent herein for residential purpose on a monthly rent of Rs. l,600.00 .She after her retirement had to vacate the Government accommodation. Her allotment was cancelled by the Estate Officer. Accordingly she applied for the vacation of her house by the respondent on 18th July, 1996. The respondent herein sought leave to defend, primarily on the ground that he was not a tenant but alicensee: Moreover, the petitioner was not the landlady of the premises. That the petition had not been properly signed and verified, the material facts and the circumstances had not been disclosed. The petitioner was still in service. She had not been superannuated. This respondent challenged the superannuation of the petitioner and hence her bona fide needs. According to him, she sought ejectment in order to harass the respondent so that she could increase the rent. The learned Arc by the impugned order granted leave on the ground that since possession was given to the respondent as licensee, therefore, dispute regarding relationship of the parties. To prove the intention that it was a lease and not license, evidence was required and held it to be a triable issue.

(3) The law is now well settled that the Court in order to decide the controversy whether the document is a lease or license has to see the dominant purpose of the relationship which parties created while entering into the agreement. The Division Bench of this Court in the case of M/s. Didi Modes Pvt. Ltd. v. M/s. Hind Trading & Manufacturing Co., Air 1996 Delhi 321 laid down the test which the Courts are to follow in order to find out whether the document is a lease or a license. Those are: "(a) The Courts while deciding controversy in cases of lease and/or licence must gather the real intention of parties executing the document. (b) The Courts must look into the dominent purpose of the relationship which parties created while entering into the agreement. (c) Clever phraseology and ingenuity must not be permitted to over shadow the real intention of the parties. (d) The substance of the document must be preferred to the form of the document. (e) The Court must ascertain whether the agreement creates any interest in the property. (f) In some cases even the label given to the transaction may be deceptive and formal language employed in drafting the document may also be misleading, therefore, the Courts have to look into substance of the matter and make all out endeavour to gather the real intention of parties in order to do substantial justice."

(4) The Supreme Court in the case of the Associated Hotels of India v. R.N. Kapoor, , observed that where the question is whether a document is lease or license it is the substance of the document that mattes and not the form, for otherwise clever drafting can camouflage the real intention of the parties.

(5) Section 105 of the Transfer of Properties Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the Act, the lessee is entitled to be put in possession of the property. A lease is, therefore, a transfer of an interest in property. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it, that the lessee gets that right to the exclusion of the lessor. Whereas Section 52 of the Indian Easements Act defines a license as "Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license." Therefore, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a license. It does not create in his favour any right or interest in the property. We have also to see the circumstance and the conduct of the parties where it can be inferred that what was intended was that the occupier should have a personal privilege with no interest in the property in order to prove that it is a license. Therefore, the main important feature which distinguish a license to a lease is the intention of the parties, substance of the document and creation of a right in the property and the exclusive possession of the property. In the case in hand a bare reading of the document, so-called, license deed shows that the intention of the parties was to create an interest of the respondent in the property and this can be seen from paragraph No. 4 which deals as to what monthly rent the respondent would pay though named as license fee. Furthermore, according to the term of this agreement an obligation was caste on the respondent/tenant to carry out repairs. This clause is usually incorporated under the lease agreement. Possession of the suit premises remained with the respondent uninterrupted. This is a very material factor showing the intention of the parties to create a lease only. By mere use of the word "license" the real intention of the parties could not be camouflage. The conduct of the parties show that they had been treating this document to be a lease, that is why the respondent had been paying rent regularly. Counter foils of the rent receipts duly signed by the respondent for the period 1st December, 1989 to 28th February, 1990, 1st October, 1990 to 30th November, 1990, 1st August, 1992 to 31st August, 1992 and 1st July, 1995 to 31st August, 1995 had been placed on record. Respondent half-heatedly tried to deny his signatures on these counter foils of the rent receipts. The conduct of the parties also show that the word "license" was used as a camouflage, in fact if we properly scrutinise this agreement then the intention of the parties becomes abundantly clear that they wanted to create a lease and not a license.

(6) That the Trial Court fell in error going by the lable of the agreement instead of its substance. Reading of the document as a whole show the intention of the parties. Respondent agreed to take the premises on rent of Rs.l,600.00 , the relationship of landlord thus existed. I do not find this to be a triable issue. Counsel for the respondent contends that the intention whether it was a lease or license can only be established by evidence. To my mind, this argument has no force because the Division Bench in the case of M/s. Didi Modes Pvt. Ltd (supra) in paragraph 30 observed that intention can be inferred by properly scrutinising the document itself meaning thereby that there is no need to allow the parties to enter into the witness box because oral evidence cannot alter nor improve in any manner the writing of a document. Hence the intentions have to be inferred from the reading of the document i.e. substance of the agreement nor its label.

(7) Since from the reading of the document, intention of the parties is clear, I, therefore, do not find it to be triable issue. The Court below fell in error in not scrutinising this document properly, therefore, I accordingly hold that the impugned order on this count cannot be sustained. The same is accordingly set aside. So far as the fact that the petitioner is retired from Government service on 29th February, 1996 the documents in this regard are on record and the learned Arc has not disbelieved the same coupled with the fact that the Estate Officer has already cancelled her Government accommodation. It is also not disputed that petitioner has no other alternative suitable accommodation except the house in question. The ownership of the petitioner of this house has also been accepted by the learned Arc, leave in fact was granted because of the document having been erroneously interpreted to be a licence which observation has been set aside. Hence the petitioner is entitled to a decree of eviction under Section 14(c).