QUDRAT ULLAH versus MUNICIPAL BOARD, BAREILLY

Citation: [1974] 2 S.C.R. 530 · Decided: 29-11-1973 · Supreme Court of India · Bench: D.G. PALEKAR · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

530 
QUDRAT ULLAH 
v. 
MUNICIPAL BOARD, BAREILL Y 
November 29, 1973 
[D. G. PALEKAR, V. R. KRISHNA IYER AND R. S. SARKARIA, J. J.J 
A 
U. P. (Temporary) Control of Rent and Eviction Act, 1947-Whether contract 
B. 
was a lease or licence or a composite one-Interpretation-Repeal and replacement 
of an earlier Act by a later A.ct-Whether right under the temporary A.ct outlives the 
Act itself. 
The appellant's father had been collecting "tahbazari' dues under a contract 
from the Municipal Board. Under the terms of the contract the contractor had the 
right of use of sheds and shops as enjoyed by the Municipal Board as proprietor 
and the contractor was empowered to let them to sub-tenants on rent. 
IQ addition, 
the contract granted certain other strips which were the flanks of the central road 
C 
strip running between the stalls. In 1951, the Municipal Board filed a suit against 
the contractor praying that the Board be put in absolute proprietary possession over 
certain sheds, passages and some shops on the ground that the contract was a licence. 
The contractor pleaded the status and protection of a tenant under the U. P. 
(Temporary) Control of Rent & Eviction Act (U. P. Act 3of1947). 
The trial court dismissed the suit, ·having regard to the then existing rent contrpl 
law.. The Hiah Court held that the contract was a combination of a lease and 
licence, a lease with respect to sheds and shops and licence as regards patrts or foot-
paths adjoining the roads; that a pavement could not be said to be "accommo-
dation .. as defined in the Rent Control & Eviction Act and that the contractor- was 
a mere licensee with respect to the pavements. Both the parties appealed to this 
Court. Additional ground was urged by the Board that the 1947 Act having 
been ~ 
by tho Uttar Pradesh Urban Buildinp (Regulations of Letting, Rent 
and Evtction) Act, 1972, the Board was entitled to an ejectrnent decree even if the 
contract Was a lease. 
HELD : (1) There is no simple litmuS test to distinguish a lease as defined in 
s. 105, Transfer of Property Act from a licence as defined in s. 52, Easements Act, 
but the character of the transaction turns on the operative intent of the parties. If 
an interest in immovable property entitling the transferor to enjoyment is created, 
it. is a 1eaae; if pennission to use land without right to exclusive possession is alone 
granted, a licence i~the legal result. [S33HJ 
In the instant case, though the purpose of the transactions was not to grant 
reau.Iar Icuel of Jand but to make over to the contractor the rifht to collect Muni-
cipal market dues only, it is not possible to ignore the effect o c1ear recitals trans-
ferrina to the contractor more rights than a mere licence implies. The shops and 
sheds referred to in the contract arc the subject matter of a lease not licence only. 
The contract _presupposes the application of the Act which is compatible only with 
the creation of a lease. 
Associated Hotels case, [19591 S.C.R. 265, followed. 
(2) The High Court was not right in holding that the agreement wu a mere 
licence as regards the 'patris ar footpaths adjoining the roads. The earlier contract 
says; that "those in yelloW colour shall remain in possession of the first party". Fur-
ther the bazar dues constit1;1te a benefit arising out of the land and may be immovable 
·property which can be leased out. [536H; S37E) 
Ramjiwan v. Hanoman Pars/rad, I. L. R. 16 Lucknow 191, referred to. 
E. 
(3) By definition 'accommodation' inc1udes gardens, grounds and outhouses, 
B 
if any, appurtenant to such building or part of a building. While the pavements 
were appurtenant to the shops or Sheds leased, the paths and walks are separate 
entities and not in fact or law attached to them. These are no appendages, no 
adjuncts, no space so bound to the use of the buildings as to be treated as belonaing 
A 
B 
c 
D 
E 
p 
G 
H 
QUDRAT ULLAH v. MUNIC. BOARD (Krishna Iyer,/.) 
531 
to them. Since the patrls and pavements were not appurtenances, they fell outside 
the contours of "accommodation" let out and constitute the subject of a distinct, 
though connected demise incorporated in the same documents. Every nexus is not 
an appurtenance. The la'.w connotes principal and subsidiary items integrated by 
use which is absent in the present case. Since the contract covers one of the leases 
which is protected'"by the Act, ejectment in respect of the unprotected lease must 
follow. The decree for eviction gran

Excerpt shown. Read the full judgment & AI analysis in Lexace.