It is further submitted that as the father of the petitioner was a licencee and was temporarily permitted to use the Railway land measuring Ac.1.38 dec. only for agricultural purpose under "Grow More Food" scheme and as the licence has come to an end since 1992-93, the occupation of the land by the petitioner is unauthorized and illegal. Moreover, as the temporary licence had been granted in favour of the father of the petitioner on year to year basis upto the year 1992-93 and the same being neither heritable nor transferable, the present petitioner is a rank trespasser and his occupation of Railway land is wholly unauthorised and unlawful.
The word 'licence' is defined under Section 52 of the Indian Easements Act, which reads as under:
"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 licence."
The aforesaid definition of the word 'licence' makes it clear that no interest in the immovable property is created by grant of licence. It is only a permissive occupation given to the licencee to use the immovable property for a particular purpose. A licence being matter purely personal between the grantor and the grantee, the same is neither heritable nor transferable.
It is well settled in law that the licence is a personal right granted to a person to do something upon the immovable property of the grantor and does not amount to the creation of an interest in the property itself. It is purely a permissive right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is therefore revocable except in certain circumstances expressly provided in the Act itself. The licence has no other effect than to confer a liberty upon the licencee to go upon the land which would otherwise be unlawful.
Orissa High Court
Balaram Barik vs Unknown on 26 September, 2014
THE HONOURABLE SHRI JUSTICE I. MAHANTY AND THE HONOURABLE SHRI JUSTICE S.C. PARIJA
Citation;AIR 2015(NOC)522 orissa
S.C. Parija, J. This writ petition has been filed challenging the action of the Railway authorities-opposite parties, in trying to evict the petitioner from the Railway land in question, with a prayer to direct the opposite parties to grant licence to the petitioner for the said land, which is under his occupation since the time of his father.
2. The brief facts of the case is that one Bholanath Barik, who is the father of the present petitioner, had been granted temporary licence of the Railway land by the opposite parties in the year 1972 for a period of one year, for agricultural purpose under the "Grow More Food" scheme, measuring Ac.1.38 dec., situated between K.M.410/12 to K.M.411/01 (between Cuttack-Balikuda) down side, which was valid upto 30.6.1973. The said licence was being renewed by the Railway authorities from time to time on payment of requisite fees. In March, 1973, the father of the petitioner had written a letter to the Divisional Engineer, South-Eastern Railway, Khurda Road, as per Annexure-3, to permit him to dig a katcha shallow well on the land for the purpose of irrigation, with the undertaking that while relinquishing the said land, he shall restore the same to its original state, before handing over possession of the same.
3. It is the case of the petitioner that though no formal permission was granted, the father of the petitioner had dug a well on the land in question for the purpose of irrigation. It is the further case of the petitioner that as the adjoining land belonging to the Railway was lying vacant and unutilized, the father of the petitioner had occupied the said land for the purpose of agriculture and this fact having come to the knowledge of the Railway authorities, they had intimated to the father of the petitioner vide Annexure-5 that as he is occupying Ac.3.00 dec. of Railway land, against the sanctioned of allotment of Ac.1.38, he is liable to pay difference of occupation fee for the excess area.
4. The further case of the petitioner is that as he was in occupation of the excess Railway land and had constructed a temporary cow-shed on the same, he had intimated the Railway authorities to consider issuance of licence in respect of the said excess Railway land occupied by him.
5. Learned counsel for the petitioner submits that as the petitioner in occupation of the Railway land measuring Ac.3.00 dec. since the time of his father and is operating a cycle stand on the land in question for his livelihood, the Railway authorities should be directed not to evict the petitioner from the said land. It is further submitted that as the petitioner is in occupation of the land since the time of his father, the Railway authorities be directed to grant licence in favour of the petitioner in respect of the said land, on payment of requisite licence fee.
6. Learned counsel for the Railways with reference to the counter affidavit filed submits that Railways had floated a scheme in the name and style of "Grow More Food" and for the said purpose, certain lands of the Railways were identified to be allotted to outsiders on temporary licence basis, for the purpose of agriculture. The father of the petitioner, one Bholanath Barik had submitted an application for temporary allotment of the Railway land for agricultural purpose under "Grow More Food" scheme and accordingly, Railway land measuring Ac.1.38 dec. from K.M.410/12 to K.M.411/01 (between Cuttack-Balikuda) down side was allotted in his favour in the year 1972, for a period of one year. Subsequently, the said licence was renewed from time to time upto 1992-93. After 1992-93, no licence was granted to the father of the petitioner and no licence fee was collected from him.
7. It is further submitted that in the meanwhile the Railway Board took a decision that the Railway land given to the State Government or outsiders or Railway employees should be resumed back for the purpose of afforestation. Accordingly, no further licence was issued in favour of the father of the petitioner in respect of the Railway land in question. It is further submitted that though the father of the petitioner had been temporarily allotted Railway land measuring only Ac.1.38 dec. under "Grow More Food" scheme on year to year basis, solely for the purpose of agriculture, he had forcibly occupied the adjoining Railway land on the plea that the same was lying vacant and unutilized, which is wholly unlawful.
8. It is further submitted that admittedly the petitioner is not using the Railway land in question for agricultural purpose and as the land is situated in Badambadi area of Cuttack city, abutting the Link Road, the petitioner has made temporary structures on it and is using the same for commercial purpose by giving it on rent to different persons for cycle stand/garage/workshop and shop rooms etc. and is collecting rent from them.
9. It is further submitted that as the father of the petitioner was a licencee and was temporarily permitted to use the Railway land measuring Ac.1.38 dec. only for agricultural purpose under "Grow More Food" scheme and as the licence has come to an end since 1992-93, the occupation of the land by the petitioner is unauthorized and illegal. Moreover, as the temporary licence had been granted in favour of the father of the petitioner on year to year basis upto the year 1992-93 and the same being neither heritable nor transferable, the present petitioner is a rank trespasser and his occupation of Railway land is wholly unauthorised and unlawful.
10. The word 'licence' is defined under Section 52 of the Indian Easements Act, which reads as under:
"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 licence."
The aforesaid definition of the word 'licence' makes it clear that no interest in the immovable property is created by grant of licence. It is only a permissive occupation given to the licencee to use the immovable property for a particular purpose. A licence being matter purely personal between the grantor and the grantee, the same is neither heritable nor transferable.
It is well settled in law that the licence is a personal right granted to a person to do something upon the immovable property of the grantor and does not amount to the creation of an interest in the property itself. It is purely a permissive right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is therefore revocable except in certain circumstances expressly provided in the Act itself. The licence has no other effect than to confer a liberty upon the licencee to go upon the land which would otherwise be unlawful.
11. In the present case admittedly the petitioner had never been granted with any licence or permission to occupy Railway land. The father of the petitioner had been granted temporary licence for use of the Railway land situated in the Badambadi area of Cuttack city in the year 1972, for agricultural purpose under "Grow More Food" scheme, which has not been renewed since 1993, as per the policy decision taken by the Railways. Therefore, the occupation of the Railway land by the present petitioner is wholly unauthorized and unlawful.
In view of the above, the prayer made by the petitioner cannot be entertained and the same is accordingly rejected.
12. We have been informed that the Traffic Management Committee appointed by this Court has given a proposal to the Railways for allowing the said land to be used for parking of private passenger buses, which are now being parked on both sides of the Link Road at Badambadi, causing severe traffic congestion in the area. It is brought to our notice that because of the unauthorized and illegal occupation of the Railway land by the present petitioner, who is using the same for commercial purpose, the Railway is not in a position to allow the said land to be used for parking of buses.
13. We accordingly direct the Railway authorities-opposite parties to take immediate steps to evict the petitioner and/or any other person occupying the land in question as a tenant under him and allow the said land to be used for the purpose of parking of private passenger buses, to ease traffic congestion in the area.
Writ petition is accordingly dismissed with the aforesaid directions.
(S.C.PARIJA, J.)
I. MAHANTY. I agree.
(I. MAHANTY, J.)
ORISSA HIGH COURT : CUTTACK.
Dated the 26th September, 2014/M.Panda
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