1999 PLP 1870 (MLD)

9. Khawaja Saeed-uz-Zafar, learned Deputy Attorney-General, appearing on behalf of the respondents has conversely argued that the provisions of section 60(b) of Easements Act are inapplicable to the facts and circumstances of the present case, the parties can expressly or impliedly agree for the revocation or otherwise of alliance and in such situation, the provisions of section 60 (ibid) would not be attracted; the provisions of section 60 are to be read in conjunction to the section 62, and thus, where a licence has been granted for a limited period, it would be deemed to have revoked on the expiry of such time; the possession of the licence, thereafter would be unlawful and that of a trespasser and the licencsor would be deemed to be in lawful possession, shall have the right to use force in order to evict the licencee from the licenced premises. The superstructure in the shape of petrol pump-cum-servicing station bas not been constructed by the petitioners, rather by their predecessor not under the licence but under the lease which had expired and on the expiry of lease, the entire superstructure as well as installation, fittings had become the ownership of the respondents; the premises which had been given to Haji Saif-ur-Rehman Khan under these two licences including superstructure which was the property of the respondents under earlier terminated lease. In support of his arguments, learned Deputy Attorney-General, has relied on AIR 1950 East Punjab 40, PLD 1966 Dacca 69, PLD 1963 Lahore 418 and PLD 1965 SC 83.

10. I have given my anxious considerations to the respective arguments of both the learned counsel for the parties.

11. In order to appreciate their submissions, and proper application of law, it is worthwhile to reproduce the relevant provisions of section 60 and 62 of the Easements Act, 1882:-- Sections 60.

"Licensee when revocable.-- A license 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 permanent character and incurred expenses in the execution. Section 62.

"Licence when deemed revoked.

A licence is deemed to be revoked. (a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the licence:; (b) ............................................................... (c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled;

12. Reading these provisions together it appears that section 60 has created two exceptions to the general rule that the licence can be revoked at any time by the licensor at his will; first is based upon principle that one cannot derogate from his own grant and the second on the principle of estoppel and acquiescence.

13. Be that as it may, two tests of irrevocability by the Easement Act, will, however, give way to special agreement, if any, of the parties Where the licence is prima facie irrevocable in terms of section 60(b) may become revocable if the parties to the licence agreed in that behalf and there is nothing to prevent the parties from agreeing expressly or by necessary implication that the licence nevertheless shall be revocable. 13-A. It is no doubt true that section 60 mention only two classes of cases in which licence could be regarded as irrevocable; this means that where a case falls in either of the categories, the license is made irrevocable by the operation of law; but apart from the above, there is law of contract and provisions of section 62 and if the parties entered into a contract and arrive at a solemn agreement to the effect that license shall be revocable or shall be for a particular duration it follows that the parties will be bound by such a contract.

14. From the principle of law with regard to the license, it appears that the grant of license may be (i) a grant of simplicitor of (ii) the grant may be coupled with a transfer or (iii) the grant may be coupled with an agreement.

15. As regard the grants coupled with agreement are concerned, they may be of two types: (1) grant and agreement acting upon which a licensee may carry out work of a permanent nature and incur expenses thereon without providing any period of license and with no provisions for its revocation; (2) grants with some other agreements, such as, relating to time for the subsistence of the licence and its termination.

16. Section 60 read with section 62 leave no doubt that any licence with an agreement, say for term of a year, would always be revocable at the volition of the grantor. This is further shown by various contingencies mentioned in section 62, thus, when the licence is for a limited period of time, then the licence is deemed to have been revoked when the period expired. in this case, there is period provided in the licence and, consequently. on the expiry of such time, it would be deemed to have been revoked irrespective of fact whether any superstructure has been raised by the licensee and section 60(b) would have no application.

17. The above proposition is supported by law laid down in AIR 1950 East Punjab, 40 and 1990 Dacca

69. At page 82 of the latter judgment, it has been held that "where a licence is prima facie irrevocable either because it is coupled with a grantor interest or because the licencee had erected works of a permanent nature, there is nothing to prevent the parties from agreeing expressly or by necessary implication that the licence nevertheless shall be revocable".

18. Further in PLD. 1963 Lahore 418, at page 428, it has been laid down that a contractual licence may be revocable or irrevocable according to the express or implied terms of the contract between the parties, meaning hereby that section 60(b) would only be applicable in the absence of an agreement and the parties are at liberty to enter into a contract expressly or impliedly licence being revocable or otherwise.

19. Even from the perusal of the petition it is clear that the petition have not in clear terms stated that any permanent construction has been raised by them or their predecessor acting upon the licence by incurring expenses. Only ground A in the petition has been taken which on close reading show that a legal proposition propounded but no factual assertion in this behalf is contemplated. The learned Deputy Attorney-General is thus right in arguing that on termination of lease the demised premises inclusive of any permanent structure raised under the lease has become the property of the respondents and at the time of grant of licence this petrol pump/Service Station in the constructed shape was given to the petitioners father. Thereafter, neither any construction of permanent nature is alleged to have been raised by the petitioners or even proved on record.

20. Admittedly in this case as stated above, agreement of licence has been revoked and termination letter was also issued to the petitioners on 23-8-1997 (Annexure-L). Contention of learned counsel for the petitioners that licence is irrevocable has no force.

21. As regards second contention that petitioners cannot be dispossessed otherwise then through a civil action, it may be stated that a licensee merely has a right to use the property and such a right does not amount to an easement or an interest in the property but is only a privilege given to the licensee by the licensor. After termination of licensee, the licensor is legally entitled and has a right to deal with his property in the manner he feels like. This right, he gets as owner in possession of the property against possession of the licence, would be deemed to be possession of the lawful owner. He needs not to bring a decree of the Court to obtain and enforce this right but is entitled to resist in defence of his proprietary right the attempts of licensee to come upon his property by exerting necessary and reasonable minimum force to expel the trespasser. If, however, licensor uses excessive force, he may make himself liable to be punished under the prosecution, but he will infringe no right of a licensee.

22. There is another aspect of the matter, admittedly the licence of the petitioners has expired; their possession cannot be termed to be lawful; the termination letter has been issued to them as far back as August, 1997, and thus, petitioners, in view of above, cannot seek indulgence of this Court to grant them an equitable relief. Learned Deputy Attorney-General has rightly argued that Constitutional jurisdiction by High Court, shall not be exercised to perpetuate the injustice, as such jurisdiction being discretionary could only be pressed into service to foster cause of justice, public good, High Court should refuse to exercise its jurisdiction if by doing so, instead of advancing administration of justice, it could be defeated; to provide any relief to the unlawful occupant of a Government property, would be tantamount to provide help and assistance by the Courts.

23. Before parting, it may be mentioned that counsel for the petitioners has requested that in terms of section 63 of the Easement Act, the petitioners are entitled to have reasonable time. I am afraid this plea is not sustainable petitioners have already been granted reasonable time in parting with the possession of the property. The expiry of the licence took place on 1st July, 1994 and the termination notice was affected on 23rd August 1997. This, to, my mind, is more than reasonable time enabling the petitioners to wind-up the matter.

24. In the light of above, do not find any merit in this petition which is hereby dismissed with costs. H.B.T./A-351/L Petition dismissed.