P L D 1965 Supreme Court 83 (PLP)

FAZLE‑AKBAR, J.‑This is an appeal by special leave from the judgment of the High Court of East Pakistan in a Letters Patent Appeal affirming the judgments of the appellate Courts by which the decree passed by the Munsif, First Court, Dacca, in Title Suit No. 5 of 1963 was reversed and the suit was dismissed. The material facts of the case which are not in controversy may therefore, be shortly stated. By an agreement dated 12th December 1953 made between the Governor‑General‑in‑Council acting through Deputy General Manager, Eastern Bengal Railways, hereinafter referred to as `the Railways' and M. A. Naser, Proprietor of Gulistan Restaurant, Dacca, hereinafter called `the Contractor' the Railways granted to the Contractor for a period of 3 years from 18th December 1953 subject to the conditions and reservations contained therein the right to sell refreshments both solid and liquid of the best quality to the upper class passengers at the Refreshment Rooms at Chittagong, Laksam, Chandpur, Akhaura, Kulaura, Sylhet Bazar, Dacca, Mymensingh, Sitakund and Arikhola and on Buffet Cars on the trains. 7 he said agreement was terminable on 17th December, 1956 on not less than 6 months' notice in writing by either party to the agreement. If it was not so determined the agreement was to continue subject to termination at any time in any subsequent year on not less than 6 months notice in writing given by either party desiring to cancel it. In consideration of the grant of the contract the Contractor agreed to pay to the Railways Licence Fee of Rs.2,740 each year in advance and to deposit a sum of Rs. 11,000 as security for the due fulfilment on his part of the conditions of the agreement. Pursuant to this agreement the Contractor catered refreshments at the aforesaid Railway Stations and on the Buffet Cars. As the contract was not terminated on the expiry of 3 years, the Contractor continued to cater refreshments to the upper class passengers on the same terms and conditions. On 20th September 1960 the General‑Manager addressed the following letter to the Contractor: "Despite issue of repeated warnings and imposition of fines there has been no improvement in catering and service with the result that the Railway Administration has been receiving frequent complaints and thereby earning a bad name." Please take notice that in terms of para. 2 of the Agreement your contract for running upper class Rooms and Buffet Cars will be deemed to have terminated on completion of six months, from the date of issue of this letter. This is without prejudice. You should clear all railway dues before termination of the above contract." On 19th March 1962 the Chief Traffic Manager sent the following telegram to the Contractor: "930/1/CMG Unclassified period of your contract is hereby extended by another six months from 21st instant on the terms and conditions of the existing agreement." On 6th December 1962 the Chief Traffic Manager wrote to the Contractor as follows: "Reference is invited to this office letter No. 93/CE/CMG dated 20th September 1961 and telegram No. 93/C/CMG, dated 19th March 1962. You are hereby informed to hand over the charge of all the Reft. Rooms and Buffet Cars run by you by 31st December 1962 to the authorised individual appointed by the Railway Administration. You are also requested to clear all the Railway dues early." Thereafter this Contractor and others submitted applications for fresh catering contract in respect of the aforesaid Railway Stations and Buffet Cars. Along with his application this Contractor also deposited Rs. 500 as earnest money. On 24th December 1962 the Chief Traffic Manager sent a letter to the Contractor giving the names of the individuals who had been appointed catering contractors for the Refreshment Rooms and Buffet Cars. As he was appointed catering contractor with respect to `Refreshment Rooms at Laksam, Comilla, Akhaura, Sylhet and Buffet Cars of 21 UP and 22 DOWN', he was asked to deposit Rs. 1,440 towards annual Licence Fees and Rs. 4,100 as security deposit by 29th December 1962. On 28th December 1962 the Contractor's lawyer wrote to the Chief Traffic Manager objecting to the legality of termination of the contract and prayed for a month's time to make personal representation to the authorities concerned. In reply the Railways sent the following telegram to the Contractor on 31st December 1962: "In terms of CTM/CRB's XR No. 930/l/CMG of 26‑12‑1962 your contract will be terminated on and from 1‑1‑1963. You are requested to hand over the Room to the new contractors after O hours, positively." On 3rd January 1963 the Contractor filed a suit in the Court of the First Munsif, Dacca for a declaration that the catering contract dated 12th December 1953 was still subsisting and for an injunction restraining the defendants from interfering with his right of catering in terms of the agreement. The suit was contested by the Railways as well as by the Provincial Government. In their joint written statement they contended inter alia that the Railway Administration had unfettered right to terminate the contract with six months' notice in writing, and that the suit for a permanent injunction was not maintainable because the alleged loss of the plaintiff could be adequately compensated by damages. They also took the plea of estoppel, waiver and acquiescence. The suit was decreed by the Munsif, but on appeal his decision was reversed and the suit was dismissed and a second appeal by the plaintiff was also dismissed by the High Court of East Pakistan. A Letters Patent Appeal against the judgment of the learned Single Judge also met with the same fate. The plaintiff was granted special leave to appeal mainly to consider `whether a contract of this kind is one for which protection in law by the method of injunction could be claimed A against termination otherwise than in accordance with the terms of the contract'. In the Letters Patent Appeal it was contended that the articles of agreement constituted an irrevocable licence and hence a suit for injunction was maintainable. The learned Judges of the High Court came to the conclusion `that the agreement created only a contract for catering and did not confer any right to property belonging to the respondent'. r They therefore, relying on section 60 of the Easements Act held: "that the contract envisages a revocable licence within the meaning of section 60 of the Easements Act and that a revocable licence cannot be specifically enforced. This being so no injunction can be granted in this case. See section 21 (d) and 56 (f) of the Specific Relief Act." The fact that by the agreement a licence within the meaning of section 52 of the Easements Act had been granted to the Contractor by the Railways has not been disputed before us. Now section 60 of the Easements Act runs as follows: "A licence may be revoked by the grantor, unless‑ (a) it is coupled with a transfer of property and such transfer is in force: (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution." The first question therefore, is whether this licence satisfies the test of irrevocability laid down in the above section. By the agreement dated 12th December 1953 the Railways granted the Contractor the right "to supply and sell refreshments" to upper class passengers and for the said purpose he was allowed se of Refreshment Rooms and the Buffet Cars. Thus at best be was given a licence to enter upon Refreshment Rooms in the Railway Stations for the purpose of catering refreshments. Under this agreement the Contractor was to provide and maintain at their own expenses plate, crockery, table linen, cutlery, glass, cooking utensils and kitchen equipments. The Railways were to provide (a) furnitures, etc. in most of the Refreshment Rooms and (b) habitable quarters for the Contractor's staff at Stations where available, on payment of rent. Some of the clauses in the Agreement provided how the Contractor was to carry on business, and these also showed that the Contractor was to be under complete control of the Railway Administration. Further the agreement provided: "On the determination of this Agreement, the Governor General may takeover all or any part of the furniture and equipment and stores provided by the Contractors as aforesaid at a valuation mutually agreed upon. In the event of the Governor‑General, not being desirous of taking over any part of the said equipment and stores, the Contractors shall forthwith at the termination of the agreement remove the same, and the same shall in such event be carried free to any station of the Eastern Bengal Railway required by the Contractors and the Contractors shall deliver up possession peacefully and quietly of the buildings and premises in their occupation under the terms of this agreement." The agreement was terminable at will by either party giving 6 months' notice. From the above provisions it is clear that this agreement merely conferred a right to carry on business of catering in the Refreshment Rooms and on the Buffet Cars. They were not given any general right of occupation but only a right to use the Refreshment Rooms allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the property. Nor can it be regarded as a licence `coupled with a transfer of property' within the meaning of section 60 of the Easements Act. Nor can it be suggested that the Contractor was required `to execute any work of permanent character' in connection with the business. No doubt his business may involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as "execution of a work of permanent character". Mr. Pal faintly suggested that provision regarding assignment of the benefits of the agreement indicates that it was intended to be an irrevocable licence. This suggestion, however, overlooks the fact that such assignment was only permissible with the consent of the Administration. After fully examining the provisions of the agreement we have come to the unhesitating conclusion that this licence does not fall either within clause (a) or (b) of section 60 of the Easements Act and therefore, it was revocable at the will of the grantor. We may, however, point out that there may be cases where parties by special contract may make the licence which is prima facie revocable under section 60 an irrevocable one, but these clauses of this agreement envisage no such intention. Thus this being a revocable licence, the revocation thereof cannot be prevented by injunction. In a case like this the licensee is entitled to a reasonable notice in accordance with the D provisions of section 63 of the Easements Act. If however, the licence is revoked without reasonable notice the remedy of the licensee is by way of damages and not by way of an injunction. It may also be pointed out that as this contract cannot be specifically enforced, clause (f) of section 56 of the Specific Relief Act will operate as a bar to the grant of injunction. `' Section 21 of the Specific Relief Act provides that "The following contracts cannot be specifically enforced:‑ (a) a contract for the non‑performance of which compensation in money is an adequate relief ; (b) . . . . . . (c) . . . . . . (d) a contract which is in its nature revocable.": Then section 56 says "An injunction cannot be granted‑ (a) . . . . . . (b) . . . . . . (C) . . . . . . (d) . . . . . . (e) . . . . . . (f) to prevent the breach of a contract the performance of which would not be specifically enforced." From the above provisions licence and as adequate relief may be obtained by way of damages this contract, cannot be specifically enforced and as such no perpetual injunction can be granted in this case. Some arguments were advanced to show that initial notice of termination of the contract was 'waived by the telegram dated 19th March 1962 and that the period of contract was extended by another six months. It was therefore, contended that there was an obligation on the Railways to give further notice of 6 months. It seems that by reason of the request of the Contractor the Railways granted him 6 months more to leave the Railway premises and to remove his goods therefrom. The Contractor then submitted application for a fresh catering contract in respect of those very Stations of which he was the then contractor and his application was granted in respect of some of those Stations. In view of our finding that the present suit is not maintainable it is not necessary for us to express any opinion on the questions: Whether it was an agreed variation or novation of a Contract or a mere extension of time to enable the Contractor to fulfil his obligations under the contract, and whether his subsequent conduct would amount to estoppel, waiver and acquiescence. These questions may be agitated in a properly framed suit. I will then also be for consideration whether the plaintiff who managed to continue as a catering contractor for about two years even after termination of the contract can legitimate complain of want of reasonable notice. In the suit there was also a prayer for a declaration under section 42 of the Specific Relief Act that the contract in question was still subsisting. The learned counsel has not pressed this point before us. Under the provisions of section 42 of the Specific Relief Act a person entitled "to any legal character" or to "any right to property" can institute for a declaratory relief in respect of his title to such legal character or right to property. It will therefore, suffice to say that section 42 does not contemplate a suit like the present one. For the reasons stated above we are of opinion that the dismissal of the present suit was rightly upheld by the Letters Patent Bench of the High Court. This appeal is accordingly dismissed with costs. A. H. Appeal dismissed.