A. K. MATHUR, J. - (1.) THIS writ petition along with other writ petitions mentioned in the Schedule A appended to this order, is disposed of by this common order as the question of law involve in these writ petitions is common.
(2.) FOR the convenient disposal of all these writ petitions, the facts given in the case of Prem Kumar vs. State of Rajasthan (S. B. Civil Writ Petition No. 1551/1989) are taken into consideration. The petitioner by this writ petition has prayed that the orders Exs. 2, 3 and 7 may be quashed and the respondents may be directed to accept rent @ Rs. 80/- from the petitioner and adjust the amount already deposited in excess in the previous years. It has also been prayed that decision taken by the Nazul Land Price Fixing Committee for fixing the price of the shops @ Rs. 4500/- per sq. yards may be quashed. The petitioner was allotted a shop No. 4 in the Kamla Nehru Market, Hanumangarh Junction. The petitioner is a vegetable vendor and used to sale vegetables on the foot-path in Hanumangarh Junction market. In the year 1976 for settlement of persons who use to sale vegetables on foot-path, the Municipal Council, Hanumangarh decided to construct the shops and from 1976 to 1978 total 66 shops have been constructed and this market was named as Kamla Nehru Market in Hanumangarh Junction. The size of the shop was 10' x 10'. The Municipal Council, Hanumangarh while allotting these shops in the year 1978 entered into an agreement with the owner of the shops which has been placed on the record as Ex. 1, to pay rent of Rs. 80/- per month. It is alleged that at the time of construction, the cost of each shop varies in between 5000/- to 7000/- It is alleged that in the year 1983 the State Government vide its order dated 10. 8. 1983 issued some guidelines regarding sale and allotment of the shops for residential and commercial purposes falling in Municipal limits. A copy of the order passed by the Government dated 10. 8. 1983 has been placed on the record as Ex. 2. In pursuance of the Government order dated 10:8. 1983 (Ex. 2) the Municipal Council, Hanumangarh in its meeting dated 29. 10. 1983 increased the rent of all the shops to the extent of 10% allotted to the petitioner and other persons in Kamla Nehru Market, Hanuman garh Junction with effect from 1. 11. 1983 and also took a decision that there will be an increase of 10% in rent in every subsequently year. Copy of this decision has also been placed on the record as Ex. 3. It is alleged that during the comp-aign known as 'administration towards the Cities' and in this compaign the Nazul Land Price Fixing Committee formed under Rule 12 of the Rajasthan Municipal (Disposal of Urban Land) Rules, 1974 (hereinafter referred to as 'the Rules of 1974') met in Hanumangarh Town on 15. 9. 1983 decided the price of the shops fall in Hanumangarh Town and fixed the price at the rate of Rs. 300/-per sq. yard for Zone-A, Rs. 250/- for Zone-B, and Rs. 200/- for Zone-C. It is alleged that Municipal Council, Hanumangarh wrote a letter to the Collector, Ganganagar for fixing the price of the shops under the Rules of 1974. Thereafter, a meeting of this Nazul Land Price Fixing Committee was held on 9. 5. 1988 under the Chairmanship of Shri Ram Rakh, Additional Collector, Sri Ganganagar and other members of the Committee and Gurdeep Singh, B. G. Rajbaksh Executive Engineer and Public Construction Department Hanumangarh and Shri B. R. Joshi, Commissioner, Municipal Council, Hanumangarh as Member Secretary. These members of the Nazul Land Price Fixing Committee decided the matter and fixed the price of the shops of Kamla Nehru Market of main road shops at Rs. 4500/- per sq. yards and Rs. 3,500/- per sq. yards of the shops fall inside the market. This Committee also confirmed the Resoulation No. 11 dated 29. 10. 1983 passed by the Municipal Council, Hanumangarh for increasing the rent at the rate of 10% with effect from 1. 11. 1983. A copy of the same has been placed on the record as Ex. 7. In pursuance of this decision a notice was issued in Dainik Tej Keshri dated 26. 11. 1988 a copy whereof has been placed on the record as Ex. 8. In view of the decision taken by the committee to increase the rent by 10% with effect from 1. 11. 1983, in case the increased rent is not deposited or market price of allotment is not deposited then the allotment shall stand automatically cancelled and in this notice it was also mentioned that this notice was to come into force with effect from 1. 12. 1988. Therefore the Kamla Nehru Market Association Hanumangarh Junction district Sri Ganganagar through its Secretary Prakash Chanadra son of Dwarka Das Arora of Shop No. 26 of Kamla Nehru Market filed a writ petition which came to be registered as D. B. Civil Writ Petition No. 243/89. This petition was admitted and a limited stay order in favour of the petitioner was granted. Therefore, the petitioners have filed the present writ petitions individually. The principal submission of the learned counsel for the petitioners is that the petitioners are lessees and not licensees. Therefore, the rent cannot be increased. It is also submitted that the order passed by the State Government dated 10. 8. 1983 (Ex. 2) has not been passed in the purported exercise of any power and the increase in the rate of rent made by the Municipal Council on the basis of this direction of the State Government dated 10. 8. 1983 (Ex. 2) is also without jurisdiction and the same deserves to be quashed. Similarly, it has been urged that valuation fixed by the Nazul Committee is also arbitrary and the same is liable to be quashed. As against this, the respondent Municipal Council has filed a reply and contested the position and it has been submitted that the order (Ex. 2) dated 10. 8. 1983 has been passed by the State Government in the purported exercise of power under Section 297 (2) (f) of the Rajasthan Municipalities Act, 1959 (referred to hereinafter as 'the Act') and submitted that the petitioner is not a lessee but he is a licensee and under section 138 of the Rajasthan Municipalities Act, the State Government can issue a direction to the respondent to increase uniforally the licence fee.
(3.) THE first and foremost question before me is that whether the petitioners are licensees or lessees. THE distinction between the licensee and lessee is very thin. But it depends on the construction of the document and intention of the parties. Even the use of the word 'rent' in the document may not be conclusive of the nature of the deed. Even the expression 'rent' used in the document may in proper construction can be treated as a licence but it will depend on the document and intention of the parties. This distinction between the expressions 'licence' and 'lease' has been subject-matter of controversy before their Lordships of the Supreme Court in Associated Hotels of India Ltd. vs. R. N. Kapoor (l ). In this case, a room was rented out in a hotel and there the question was whether the room which was rented out in a hotel for carrying on the business of hair dresser amounts to lease or licence. In this connection, it was observed as under:- "where the question is whether the document is a lease or a license it is the substance of the agreement that matters and not the form, for otherwise clever drafting can camouflage the real intention of the parties. There is a marked distinction between a lease and a licence. The following propositions maybe taken as well established : (1) To ascertain whether a document creates, a licence or lease, the substance of the document must be preferred to the form, (2) the real test is the intention of the parties whether they intended to create a lease or a licence: (3) if the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence, and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant, but circumstances may be established which negative the intention to create a lease. Applying these tests, held upon the terms of the document that the document was a lease and not a license. The solitary circumstance that the rooms let out in the present case were situated in a building wherein a hotel was run could not make any difference in the chacrater of the holding. Under the document there was transfer of a right to enjoy the rooms, and therefore, it created a tenancy in favour of the tenant. " Similarly, in the case of B. M. Lall (dead) by his legal representatives vs. M/s. Dunlop Rubber Co. (India) Ltd. (2) the question was whether the premises which were given out by the Company to its employees was a lease or license. In this connection, it was observed as under:- "a lease is the transfer of a right to enjoy the premises, whereas a license is a privilege to do something on the premises which otherwise would be unlawful. If the agreement is in writing, it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licensee. The transaction is a lease, if it grants an interest of the land, it is a license if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not conclusive, though it is a very important indication in favour of tenancy. If a servant is given a personal privilege to stay in a house for the greater convenience of his work, and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of the house is quantified in money, but if he is given an interest in the land, separate and distinct from his contract of service, at a sum properly to be regarded as a rent, then he is a tenant, and none the less a tenant because he is also a servant. A limited company which owned certain premises was under an obligation to provide free accommodation to its staff officers by virtue of an agreement. In a suit for recovery of possession of certain flats from the premises which were in occupation of tenants for accommodating its staff officers. Held that the agreement on its true construction read in the light of the surrounding circumstances operated as a license and not as a tenancy. It created no interest in the land. It gave only a personal privilege or license to the servant to occupy the premises for the greater convenience of his work. He being a licensee his occupation would be on behalf of the Company and the requirement would be for its occupation. " ;