K.C.Das Gupta - (1.) The opposite party K. Shaw filed an application before the Rent Controller for standardisation of rent for what he claimed was held by him as a tenant under the present petitioner, viz., a portion of , the roof and parapet of 1 R.G. Kar Raod, Calcutta, where admittedly the opposite party displayed an advertisement by fixing a hoarding on a portion of the roof and the parapet. The petitioner raised an objection that this was no case of lease but that the opposite party K. Shaw was a mere licensee and not a lessee and accordingly the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 were not available to him. The learned Rent Controller accepted this contention and rejected this application on this ground. On appeal the learned Subordinate Judge held that this was not a case of mere license and that the paramount intention of the parties was to create a tenancy in respect of the roof and that the grantee was in the position of a tenant. He accordingly allowed the appeal and remanded the case to the Rent Controller with a direction for disposing of the application for standardisation of rent in accordance with law.
(2.) It is contended before us by Mr. Atul Chandra Gupta on behalf of the petitioner that on a proper interpretation of the documents that are produced and the evidence on the record it should be held that there was no demise and that only a license was granted to the opposite party and that the opposite party K. Shaw was not a tenant within the meaning of the Transfer of Property Act or within the meaning of the West Bengal Premises Rent Control Act, 1950.
(3.) There is no dispute before us as regards the principle to be applied in deciding whether a person is a lessee or a licensee. The princi ples were laid down recently by their Lord ships of the Privy Council in -- 'H.E. Wijesuriya v. Attorney. General for Ceylon' in (1950) A.C. 493. In that case their Lordships had to consider whether the provisions in a permit to be given to the appellant to tap and take the produce of the rubber trees on certain Crown lands created a lease or a license. Their Lordships observed: "The decisive test is whether on its true con struction the effect of the document is to give exclusive possession to the holder of. the so- called permit; and, adopting this test, they are of opinion that all that is granted by the document is the right to tap and take the produce of the rubber trees within, a defined area together with such rights of occupation or possession and other ancillary rights as are necessary to make the primary right ef fective. They find nothing in the document which would exclude the Crown or its offi cers from entering on, and making such use of, the land as might be thought fit, subject only to the limitation that in doing so they must not derogate from the rights granted to the grantee." This test, it may be mentioned, has been applied in a large number of English cases and on the basis thereof it has been held that an agreement to allow advertisement to be displayed or hoardings to be fixed on a part of a building does not create a lease but only grants a license. In 'Wilson v. Tavener'. (1901) 1 Ch. D. 578, there was an agreement in writing by which the defendant agreed to let the plaintiff erect a hoarding upon the forecourt of a cottage and to allow him the use of a gable end for a bill-posting station at a yearly rent payable on the usual quarter-days from the then ensuing quarter day. Joyce J. held that there was no demise or lease and that the relationship of landlord and tenant was never created between them. The effect of the document was to give the plaintiff a license. In 'Frank Warr & Co. Ltd. v. London County Council', (1904) 1 K. B. 713, the Court of Appeal held, on the construction of a contract made between the lessees of a theatre and the plaintiffs by which it was agreed that the plaintiffs should have the exclusive right for a term of years to supply refreshments in the theatre and for that purpose should have the necessary use of the refreshment rooms, bars and wine cellars of the theatre and that they should have an exclusive right to advertise, and let spaces for advertisements, in certain parts of the theatre, that the contract did not confer on the plaintiffs an interest in land which could form the subject of compensation under the Lands Clauses Consolidation Act, 1845. Collins M.R. pointed out that though the word "let" was used, the subject-matter of the letting was so defined as most carefully to exclude the idea that any interest in land was to be given, Romer L. J. referring to certain parts of the agreement which related to the use of the cellars and the right to advertise and let space for advertisement in certain parts of the theatre stated, "To my mind it is clear that they create nothing more than a licence properly so-called. The agreement for use of the cellars does not necessarily involve that the possession of them is given to the plaintiffs, and therefore does not amount to the grant of an interest in the cellars. Similarly, I think the agreement for the use of parts of the premises for advertisements does not import a grant of the walls or any part of the premises." In 'King v. Alien & Sons, Billposting Ltd', (1916) 2 A. C. 54, where by an agreement in writing the defendants gave the plaintiffs permission to affix posters and advertisements to the flank walls of a picture house proposed to be erected on his property for a period of 4 years, the House of Lords held that the agreement did not create an interest in land but created merely a personal obligation on the part of the licensor to allow the licensees the use of the wall for advertisement.;