Sh. Hemant Kumar vs Union Of India & Ors.
2017 Latest Caselaw 604 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.6357/2016

%                                                    2nd February, 2017

SH. HEMANT KUMAR                                       ..... Petitioner
                          Through:       Mr. Girish Kumar, Advocate
                                         with      Ms. Pooja Singh,
                                         Advocate.
                          versus

UNION OF INDIA & ORS.                                   ..... Respondents

                   Through:              Mr. Vikrant Goyal, Advocate
                                         for respondent No.1.
                                         Mr. Sandeep Mahapatra,
                                         Advocate with Mr. Dhruv
                                         Malik, Advocate for respondent
                                         Nos.2 to 5.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Petitioner is an employee of the respondent no.2/Oil and

Natural Gas Corporation (ONGC). Petitioner in the course of his

employment was allotted by the employer the premises being Flat no.

B-26, 7th Floor, ONGC Housing Complex, Sector-39, Noida-201301.

2. Admittedly, the petitioner's license with respect to the flat

was cancelled on account of the petitioner being transferred by the

employer to Mumbai region, Uran Finance, Uran Plant, Navi Mumbai.

The revised transfer order in this regard is dated 22.5.2015. Petitioner

submitted a surrender letter of the licenced premises to the employer

on 29.5.2015 without actually handing over the possession, because as

per the case of the petitioner his estranged wife was living in the

premises and he has no control over his estranged wife who is refusing

to hand over possession of the premises to him or to the employer

directly.

3. The limited issue which is called for decision in the

present writ petition is that can a licencee claim that he will not

continue to pay licence fee by surrendering nominal possession only

but not actual physical possession on the ground that one of his family

members is refusing to vacate the licenced flat. I have repeatedly put a

query to the counsel for the petitioner to show me any law or any rule

of the employer/organization that surrendering of nominal possession

is enough and that the licencee/employee thereafter is not liable to pay

the licence fee, but obviously since there is no such law or any rule or

provision of the employer/organization, the same could not be pointed

out to this Court. In the opinion of this Court also such a stand of an

employee, if accepted, would result in an employer without any fault of

its own being subjected to the disadvantage that neither it would be

able to recover possession of the licenced premises belonging to the

employer but further that employee will not be liable to pay any

licence fee or illegal occupation charges although physical vacant

possession is not surrendered, simply on the ground that one family

member of the licencee is occupying the premises and refusing to

vacate. This Court would not subscribe to such a view which will

result in causing such disadvantage to the employer.

4. The wife of the petitioner Ms. Sakshi is present in the

Court and I have put a specific query to her that whether she wants

some reasonable time to vacate the premises, of course not exceeding a

month or two, inasmuch as the licence has expired way back in May,

2015 but Ms. Sakshi says that her lawyer will come and answer the

query of the Court. In a case such as the present where no legal rights

whatsoever of the wife is found so as to occupy the licenced flat of the

employer, and anyone who occupies a premises under a licencee will

surely be bound by the terms imposed upon the main licencee being

the petitioner-husband in this case i.e the person who claims under the

licencee cannot claim any rights beyond the rights of the main

licencee, and therefore, such a person under the licencee has to

necessarily vacate on the licence of the main licencee coming to an

end.

5. It is now settled law in view of Full Bench judgment of

this Court in the case of Chandu lal Vs. Municipal Corporation of

Delhi, AIR 1978 Delhi 174 that once a licencee is always a licencee

and in case a licencee after expiry of the licenced period refuses to

vacate the premises, then the licencor can use reasonable force to

throw out a licencee. Throwing out a licencee means throwing out not

only the licencee but all persons who claim through the licencee. The

position in law is that a licencee is never in legal possession of a

licenced premises because a licencee only has a right of ingress and

egress to the licenced premises and consequently on the licence being

terminated the licencee can no longer enter the licenced premises. The

relevant para of the judgment in the case of Chandu lal (supra) reads

as under:-

26. There is a catena of authorities in support of the proposition that in the case of a license there is something less than a right to enjoy the property in the licensee; it cannot be exercised by servants and agents and is terminable while on the other hand, in the case of a lease, there is a transfer to a right to enjoy the property or in other words the lessee is entitled to enjoy the property. A bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an Interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain this right. He is entitled to resist in defense of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser. If, however, the licensor uses excessive force, he may make himself liable to be punished under a prosecution, but he will Infringe no right of the licensee, No doubt a person in exclusive possession of the property is prima facie to be

considered to be a tenant, nevertheless he would not be held to be so if the circumstances negative any intention to create a tenancy.

(underlining added)

6. In view of the above, this writ petition is based on no legal

cause of action inasmuch as there is no law or rule of the

employer/organization by which the lincence or charges for use and

occupation fee cease to be paid merely on handing over of nominal

possession without handing over actual vacant physical possession.

Petitioner will be liable therefore to pay licence fee or any other

charges payable to the employer as per its rules to the respondent no.2

till actual physical possession of the licenced premises is received back

by the employer/respondent no.2. In view of the facts of the present

case I further direct that wife of petitioner Ms. Sakshi will be given a

notice of one month from today to vacate the licenced premises

inasmuch as Ms. Sakshi has already had more than around one and

half years time to vacate the premises which has not been vacated, and

after expiry of one month from today, the respondents along with

petitioner can approach the concerned police authorities who will

provide police assistance, and the respondents will not use more than

reasonable force than which is necessary so that the licenced premises

being Flat no.B-26, 7th Floor, ONGC Housing Complex, Sector-39,

Noida-201301 are got vacated by the respondent no.2 and actual

physical vacant possession thereof is received by respondent no.2 from

whoever is in possession of the aforesaid licenced premises.

7. Writ petition is disposed of in terms of aforesaid

observations.

FEBRUARY 02, 2017                           VALMIKI J. MEHTA, J
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