SAMARPAN VARISHTHA JAN PARISAR & ORS. versus RAJENDRA PRASAD AGARWAL & ORS. on 6 May 2022

[2022] 3 S.C.R. 625

SAMARPAN VARISHTHA JAN PARISAR & ORS.

v.

RAJENDRA PRASAD AGARWAL & ORS.

(Civil Appeal No. 3520 of 2022)

MAY 06, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Easement Act, 1882: s. 52 – License under – Revocation of –Inmates of the old age home – Legal status of – Held: Possession ofinmates in a room of an old age home is that of a licensee permittedto enjoy possession, without creating any interest in the property –Inmates have a legal right to stay in the room of the old age homeonly so long as they comply with the terms and conditions of suchlicense – They are expected to maintain a minimum level of disciplineand good behaviour and not to cause disturbance to the fellowinmates who are also senior citizens – On facts, behavior ofrespondent-inmates not conducive to fellow inmates and staff, thus,asked to vacate the room – As a licensee, the inmates cannot seekan injunction to stay in the old age home as their possession is nota legal possession but only a permissive possession – Thus, theinjunction granted by the High Court suffers from patent illegality.

Supreme Court-Directions: Inmates in old age home –Unfortunate situation that the parents cannot be taken care of bytheir children and are abandoned to stay in old age homes –Municipal Corporation or the Social Welfare Department to examinethe living conditions of the inmates in the old age home and providethem as comfortable conditions as are possible at that age –Directions to State and District Legal Services Authority to visit theold age home to find out the difficulties being faced by the inmatesand to take redressal steps.

Allowing the appeal, the Court

HELD: 1.1 Law recognizes three types of possession. Oneas that of an owner, including co-owners; second as a tenant, whena right is created in the property; and thirdly permissivepossession, the possession which otherwise would be illegal orthat of as a trespasser. In the instant appeal, the concern is withthe possession falling in third category. [Para 12][630-E-F]

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A1.2 Respondent Nos. 1 and 2 - plaintiffs were permitted tostay in the old age home subject to certain payments to meet thenecessary expenses of food and minor medical care. Thepossession of the respondent nos. 1 and 2 in a room of an old agehome is that of a licensee permitted to enjoy the possession, butwithout creating any interest in the property. The appellants foundBthe behavior of respondent nos. 1 and 2 not conducive to thefellow inmates and the staff of the old age home. This Court willnot exercise a judicial review about the opinion of the appellants.On the legal issue, respondent Nos. 1 and 2, as licensees have alegal right to stay in the room of the old age home only so long asCthey comply with the terms and conditions of such license. Sincerespondent Nos. 1 and 2 had no legal right to protect theirpossession without complying with the corresponding obligations,as their possession is not a legal possession but only a permissivepossession, they cannot seek any injunction to restrain themanagement of the old age home not to dispossess them. [ParaD23][635-G-H; 636-A-C]

1.3 It is an unfortunate situation when the parents cannotbe taken care of by the children, but the fact remains thatabandonment of parents by their children is now a hard fact oflife. Parents do find it difficult to reconcile the situation that at Ethat age they have to stay in old age home. Therefore, one canunderstand the mental trauma which the parents face in theevening of their life but the agony suffered by a parent cannot bea cause of disturbance to the other inmates or to the organizerswho have resolved to take care and run the old age home. The

Finmates in the old age home are licensees and are expected tomaintain a minimum level of discipline and good behaviour andnot to cause disturbance to the fellow inmates who are also seniorcitizens. Therefore, if one parent is the cause of disruption ofpeace of other inmates in the old age home, the administration of the old age home is at liberty to terminate the license and askGthe inmate to vacate the room allotted to them. Even if theorganizers of the old age home are not able to meet theexpectation or requirements of the plaintiffs, that would not confera cause to the plaintiffs to disturb the other inmates. As a licensee,the plaintiffs have no right to stay in the accommodation allottedHwhich is purely an approach to a human problem faced by the SAMARPAN VARISHTHA JAN PARISAR & ORS. v.RAJENDRA PRASAD AGARWAL & ORS.

people in old age. The plaintiffs have even been offered alternativeaccommodation as well. [Para 24][636-C-F]

1.4 As a licensee, the plaintiffs cannot seek an injunctionto stay in the old age home unless they allow other inmates, apeaceful co-existence. Therefore, the injunction granted by theHigh Court suffers from patent illegality and is not warranted inlaw. The appellant would arrange an alternative old age home forrespondent nos. 1 and 2, as one offered by the Social WelfareDepartment. [Para 25, 26][636-G-H]

Associated Hotels of India v. R.N. Kapoor AIR 1959SC 1262 : [1960] SCR 368; Sohan Lal Naraindas v.Laxmidas Raghunath Gadit (1971) 1 SCC 276;Maganlal Radia v. State of Maharashtra 1971 Mh.L.J.57; Conrad Dias of Bombay v. Joseph Dias of Bombay1994 SCC OnLine Bom 528; Hyderabad MetropolitanDevelopment Authority (HMDA) & Ors. v. M/s. HotelMalligi Pvt. Ltd. 2017 SCC OnLine Hyd 1; GeneralMerchant Association rep. by Secretary and Treasurer& Ors. v. The Corporation of Chennai, rep. by itsCommissioner, Chennai 1998 SCC OnLine Mad 848;Rame Gowda (Dead) by LRs. v. M. Varadappa Naidu(Dead) by LRs. & Anr. (2004) 1 SCC 769 : [2003] 6Suppl. SCR 850; Maria Margarida Sequeira Fernandes& Ors. v. Erasmo Jack De Sequeira (Dead) through Lrs.(2012) 5 SCC 370 : [2012] 3 SCR 841; Behram Tejani& Ors. v. Azeem Jagani (2017) 2 SCC 759 : [2017] 1SCR 132.

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 3520of 2022.

From the Judgment and Order dated 01.10.2021 of the High Courtof Allahabad, Lucknow Bench at Lucknow in Misc. Single No. 20786 of2020.B

Manoj Swarup, Sr. Adv., Shakti Kanta Pattanaik, Santosh Kumar,Rohit Verma, Navin Kumar, Rajiv Nayak, Advs. for the Appellants.

Mukesh Verma, Pankaj K. Singh, Shashank Singh, AdarshUpadhyay, Amit Singh, Praujal Sharma, Advs. for the Respondents.

CThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theHigh Court of Judicature at Allahabad dated 01.10.2021 whereby therevision petition filed by the plaintiffs-respondents was allowed and interimDinjunction was restored, as was granted by the learned Trial Court.

2. The Municipal Corporation, Lucknow has constructed an oldage home named Samarpan at Adil Nagar, Ring Road, Lucknow. Interms of the advertisement published on 05.12.2004, the appellant wasgranted lease for running such old age home initially for 15 years fromE01.09.2005, but with a condition of renewal for a further period of 15years. One of the conditions in the lease was that an Advisory Boardshall be constituted by the lessee i.e., the appellant. The appellant framedrules and regulations for grant of services at the old age home. Suchrules and regulations contemplated that the cooperation fund depositedby the inmates shall be used for accommodation, food, bed and otherFessential services of living and general treatment but expensive medical treatment and expenditure was to be borne by the inmates themselves.It also provided that if any rules of the complex are violated by anyinmate, the Administration has got full right to expel him and dismiss hismembership by issuing him one month period’s notice. The relevant clauseGreads thus:

“21. If the Rules of the Complex are violated by any inmate person,the Administration has got full right to expel him and dismiss hismembership by issuing him one month period’s advance notice.The Management reserves its right to do so.”

3. It was on 23.04.2016, the plaintiffs-respondents filled up anadmission form to stay in the old age home giving the details about hisfour children, one son and three daughters. Two of the daughters stay atLucknow and one son and one daughter are staying in Faizabad. Theplaintiffs had also executed affidavits to comply with the rules andregulations as mentioned above.

4. There is a dispute as to whether the plaintiff no.2 is a psychiatricpatient and misbehaves with the other inmates and staff, but withoutgoing into that fact, the question required to be answered is that what isthe right of the inhabitant of an old age home to stay in such old agehome.

5. It is stated that in terms of the conditions of the lease, theCommittee held its meeting on 26.10.2019. In the said meeting, the standof the plaintiffs was that if the administration has received any complaintagainst them, then they may be pardoned and they ensured that no suchcomplaint would be received in the future. It was pointed that in difficulttime of old age, the approach of the appellant should be compassionatewith due generosity. It was decided by the Committee to allow onemonth’s more time to the plaintiffs so as to observe their behaviour. If noreforms were visible then, they would be told to leave the premises interms of Rule 21.

6. Since no behavioral change was visible, the appellant cancelledthe membership of the plaintiffs on 22.11.2019. It is thereafter, theplaintiffs filed a suit for injunction before the Civil Court, accompaniedby an application for ad-interim injunction. On such application for interiminjunction, the trial Court passed an order on 17.12.2019 that the plaintiffsshould not be dispossessed during the pendency of the suit. However, inappeal, such order was vacated by the Court of Additional District Judge,Lucknow, on 20.10.2020. In further revision preferred by the plaintiffs,the order was set aside.

7. The plaintiffs have filed a counter affidavit before this Court,inter alia demanding an inquiry into the financial irregularities,embezzlement, internal mis-management of old age home and theirmiseries, extortion and torture. It is the stand of the plaintiffs-respondentsthat they acted as a whistle blower to highlight the financialmisappropriations, misdeeds and inhumane attitude. The complaint wasmade regarding quality of food, facilities or medical treatment, misuse ofdonated vehicles etc.

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A8. In a separate affidavit filed by Shri Sunil Kumar Sharma, ACPGazipur, it is stated that the plaintiffs are old-aged parents who havebeen abandoned by their own children. There are 24 other inmates butno such complaint has been made by them in the police station. It wasalso mentioned therein that as against security of Rs.25,000/-, theappellant has sought the deposit of Rs.75,000/-. It may be stated thatBStation House Officer was not a party to this suit but was impleaded bythe plaintiffs before the High Court in the revision petition under Article227 of the Constitution.

9. In a rejoinder affidavit filed by the appellant, the assertionsmade by Shri Sharma have been denied. It has been pointed out that twoCdaughters Shikha Agarwal and Ruchika Agarwal visit their parents andhave given affidavits that they will act as guardian of their parents andwill take care of their medical needs. It is also pointed that Shri HarpalSingh, the Supervisor of the District Social Welfare Department visitedthe old age home on 08.11.2020 and offered an alternative old age homeDof Social Welfare Department free of cost to the plaintiffs.

10. The learned counsel appearing for Municipal Corporation andthe State submitted that they have nothing to add in the present appeal.

11. We have heard learned counsel for the parties and find thatthe issue required to be examined herein is that what is the status of theEinmates in the old age home, are they licensee and/or they have a rightto stay in the old age home for the lifetime as a matter of right.

12. Law recognizes three types of possession. One as that of anowner, including co-owners; second as a tenant, when a right is createdin the property; and thirdly permissive possession, the possession whichFotherwise would be illegal or that of as a trespasser. In the presentappeal, we are concerned with the possession falling in third category.This Court in a judgment reported as Associated Hotels of India v.R.N. Kapoor[1] has held that in case of a licensee, the legal possessioncontinues with the owner as in terms of Section 52 of the IndianGEasements Act, 1882, grant of a mere right to do upon the property ofanother, something which would in the absence of such right be unlawful.Thus, this is the essential characteristic which distinguishes a licensefrom a lease.

13. In Sohan Lal Naraindas v. Laxmidas Raghunath Gadit[2],it has been held that a lease creates an interest in the property whereasa license creates no estate or interest in the immovable property of thegrantor. It was held as under:

“8. A licence confers a right to do or continue to do something inor upon immovable property of grantor which but for the grant ofthe right may be unlawful, but it creates no estate or interest inthe immovable property of the grantor. A lease on the other handcreates an interest in the property demised.”

14. In Maganlal Radia v. State of Maharashtra[3], a lessee fileda petition under Article 226 of the Constitution for the writ of Certiorarito quash and set aside the orders passed by the Collector, Bombay callinghim to vacate a plot situated on the Chowpatty Foreshore. One of thequestions examined was whether the petitioner had a right to continue inpossession for as long as possible. It was held as under:

“1. …As a matter of substantive law, therefore, the petitionerhas no colour of right to remain in possession of the suit premisesand has no answer to the respondents’ claim that he should vacatethe land in question, and the present petition appears to have beenfiled merely for the purpose of gaining time and remaining inpossession as long as possible.”

15. The High Court declined to entertain the petition on the groundthat the petitioner was merely a licencee. It was held that the injusticethat would have been caused if the present petition was entertainedwould be greater in view of the fact that the licence was for a purelytemporary purpose.

16. In a later judgment reported as Conrad Dias of Bombay v.Joseph Dias of Bombay[4], the father filed a suit against his son forinjunction restraining the defendant from entering or remaining in thesuit premises. It was held that the son who is residing with the parents inthe house cannot claim any legal character much less, the character ofa licensee as defined in Section 52 of the Easements Act. He is residingsimpliciter as a member of the family and nothing more and nothing less.It was also held that the son has not claimed either tenancy or a licence 2 (1971) 1 SCC 2763 1971 Mh.L.J. 574 1994 SCC OnLine Bom 528

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Aand, thus, he has no legal character or status, except staying in the houseas a member of the family. In view of the findings recorded, the appealpreferred by the son was dismissed.

17. In Hyderabad Metropolitan Development Authority(HMDA) & Ors. v. M/s. Hotel Malligi Pvt. Ltd.[5], the respondent wasBgranted a licence by the appellant over the land admeasuring 2500 squaremeters. The Court reiterated the principle that unlike a lessee, the legalincidence of a licence, in normal parlance, is that the licensee has noright to possession of the demised property as the legal possession alwaysremains with the licensor. Thus, it was held as under:

C“26. The concept of a licence, being wholly different from that ofa lease, it is not open to the licensee to assert any leasehold rightsover the licensed premises after expiry of the licence period andseek to prolong its occupation thereof. Its status upon expiry ofthe licence period is that of a trespasser. In any event, even if thelicensee is in a position to establish that it was lawfully deprivedDof the benefits of the licence during its subsistence, the only reliefthat it can seek is in the form of compensation/damages. There isno legal and tenable basis for a licensee to assert a right to continuein occupation of the licensed premises after expiry of the licenceperiod. The Court below seems to have been unmindful of theEdistinction between a licence and a lease, as is clear from theorder dated 29.09.2016 passed in Arbitration O.P. No. 2229 of2016, where it used the terms licence and lease interchangeably.”

18. The Division Bench of Madras High Court in a judgmentreported as General Merchant Association rep. by Secretary andFTreasurer & Ors. v. The Corporation of Chennai, rep. by itsCommissioner, Chennai[6] held that appellants were allottees of a shopin the Corporation Fruit Market. The shopkeepers challenged the actionof the Corporation terminating their licence and calling upon the licenceesto vacate and surrender possession of the respective shops in theiroccupation. It was held, while dismissing the writ petitions, as under:G“24. The entire case law on the subject revolves around the cardinaltouch stone at which the relationship between the parties whoclaim to be licensors or licensees or lessors or lessees has to be 5 2017 SCC OnLine Hyd 1H6 1998 SCC OnLine Mad 848

5 2017 SCC OnLine Hyd 1H6 1998 SCC OnLine Mad 848

decided is whether the grant creates an interest or estate in theproperty within the subject matter of the agreement. Delivery ofexclusive possession, as has been held would not be conclusive tohold that the grant is a lease. The surrounding circumstances andthe conduct of the parties as in the present case show that nointerest in the property have not been created at any point of timein favour of the writ petitioners/licensees of the MunicipalCorporation stalls and the claims of the petitioners that they arelessees is far-fetched and cannot be sustained.

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26. It is also equally well settled the position of a licensee aftertermination becomes unlawful and the licensee is not entitled toany injunction restraining the licensor from evicting him as unlikea tenant a licensee does not have judicial possession and thepossession always remains with the licensor and what was grantedis a privilege in terms of the licence, which in the absence of sucha grant becomes unlawful.

27. The occupation of the writ petitioners with respect to the stalls/shops in public market is referable to the licence originally grantedas their status is that of a licensee. Once such a licence is terminated,the possession of the stalls become unlawful as they have no rightand the possession of such possession after termination is notprotected by any statutory provision. In terms of Section 63 of theEasements Act 1982, where licence is revoked the licensee isentitled to reasonable time to leave the property for removing allhis goods which he has been allowed to place. A person continuingin the premises after the termination of licence, his status is asalready pointed out is unlawful and he has no semblance of anyright to continue in the premises.”

19. A three-Judge Bench of this Court in a judgment reported asRame Gowda (Dead) by LRs. v. M. Varadappa Naidu (Dead) byLRs. & Anr.[7] was considering the question of ad-interim injunction. Itwas held that the person in peaceful possession is entitled to retain hispossession and in order to protect such possession, he may even usereasonable force to keep out a trespasser. It was further held that it isthe settled possession or effective possession of a person without title 7 (2004) 1 SCC 769

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Awhich would entitle him to protect his possession even as against thetrue owner. It was held as under:

“9. …The “settled possession” must be (i) effective, (ii)undisturbed, and (iii) to the knowledge of the owner or withoutany attempt at concealment by the trespasser. The phrase “settledBpossession” does not carry any special charm or magic in it; noris it a ritualistic formula which can be confined in a straitjacket.An occupation of the property by a person as an agent or a servantacting at the instance of the owner will not amount to actualphysical possession.”

C20. Another three-Judge Bench in a judgment reported as MariaMargarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira(Dead) through LRs[8] was examining the question of injunction betweenthe plaintiff – brother, who was given the property in question as acaretaker, the owner being sister of the plaintiff. An argument was raisedbefore this Court that the possession of a caretaker can never be aDpossession in one’s right and no suit for injunction under Section 6 of theSpecific Relief Act was maintainable. It was held as under:

“83. Grant or refusal of an injunction in a civil suit is the mostimportant stage in the civil trial. Due care, caution, diligence andattention must be bestowed by the judicial officers and JudgesEwhile granting or refusing injunction. In most cases, the fate ofthe case is decided by grant or refusal of an injunction. Experiencehas shown that once an injunction is granted, getting it vacatedwould become a nightmare for the defendant.

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97. Principles of law which emerge in this case are crystallised asunder:

(1) No one acquires title to the property if he or she was allowedto stay in the premises gratuitously. Even by long possession ofyears or decades such person would not acquire any right or interestGin the said property.

(2) Caretaker, watchman or servant can never acquire interest inthe property irrespective of his long possession. The caretaker orservant has to give possession forthwith on demand.

(3) The courts are not justified in protecting the possession of acaretaker, servant or any person who was allowed to live in thepremises for some time either as a friend, relative, caretaker oras a servant.

(4) The protection of the court can only be granted or extended tothe person who has valid, subsisting rent agreement, leaseagreement or licence agreement in his favour.

(5) The caretaker or agent holds property of the principal only onbehalf of the principal. He acquires no right or interest whatsoeverfor himself in such property irrespective of his long stay orpossession.”

21. In view of such finding, the appeal was allowed and possessionof the suit premises was directed to be handed over to the appellant, theowner.

22. In another judgment reported as Behram Tejani & Ors. v.Azeem Jagani[9], the respondent in appeal filed a suit claiming injunction,restraining the defendants from dispossession of the plaintiff from thesuit premises. This Court held as under:

“14. Thus, a person holding the premises gratuitously or in thecapacity as a caretaker or a servant would not acquire any rightor interest in the property and even long possession in that capacitywould be of no legal consequences. In the circumstances, theCity Civil Court was right and justified in rejecting the prayer forinterim injunction and that decision ought not to have been setaside by the High Court. We, therefore, allow the appeal, set asidethe judgment under appeal and restore the order dated 29-4-2013passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit No. 408 of 2013.”

23. Now, adverting to the facts of the present appeal, theRespondent Nos. 1 and 2 – plaintiffs were permitted to stay in the oldage home subject to certain payments to meet the necessary expensesof food and minor medical care. The possession of the respondent nos.1 and 2 in a room of an old age home is that of a licensee permitted toenjoy the possession, but without creating any interest in the property.The appellants found the behavior of respondent nos. 1 and 2 not 9 (2017) 2 SCC 759

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Aconducive to the fellow inmates and the staff of the old age home. ThisCourt will not exercise a judicial review about the opinion of the appellants.On the legal issue, respondent Nos. 1 and 2, as licensees have a legalright to stay in the room of the old age home only so long as they complywith the terms and conditions of such license. Since respondent Nos. 1and 2 had no legal right to protect their possession without complyingBwith the corresponding obligations, as their possession is not a legalpossession but only a permissive possession, they cannot seek anyinjunction to restrain the management of the old age home not todispossess them.

24. It is an unfortunate situation when the parents cannot be takenCcare of by the children, but the fact remains that abandonment of parentsby their children is now a hard fact of life. Parents do find it difficult toreconcile the situation that at that age they have to stay in old age home.Therefore, one can understand the mental trauma which the parentsface in the evening of their life but the agony suffered by a parent cannotDbe a cause of disturbance to the other inmates or to the organizers whohave resolved to take care and run the old age home. The inmates in theold age home are licensees and are expected to maintain a minimumlevel of discipline and good behaviour and not to cause disturbance tothe fellow inmates who are also senior citizens. Therefore, if one parentis the cause of disruption of peace of other inmates in the old age home,Ethe administration of the old age home is at liberty to terminate the licenseand ask the inmate to vacate the room allotted to them. Even if theorganizers of the old age home are not able to meet the expectation orrequirements of the plaintiffs, that would not confer a cause to theplaintiffs to disturb the other inmates. As a licensee, the plaintiffs have Fno right to stay in the accommodation allotted which is purely an approachto a human problem faced by the people in old age. The plaintiffs haveeven been offered alternative accommodation as well.

25. As a licensee, the plaintiffs cannot seek an injunction to stayin the old age home unless they allow other inmates, a peaceful co-Gexistence. Therefore, we find that the injunction granted by the HighCourt suffers from patent illegality. Therefore, the injunction granted bythe High Court is not warranted in law.

26. The appellant shall arrange an alternative old age home forrespondent nos. 1 and 2, as one offered by the Social WelfareHDepartment.

SAMARPAN VARISHTHA JAN PARISAR v. RAJENDRAPRASAD AGARWAL [HEMANT GUPTA, J.]

27. However, we observe that it is open to the MunicipalCorporation or the Social Welfare Department to examine the livingconditions of the inmates in the old age home so that the inmates live inas comfortable conditions as are possible at that age.

28. We also direct the Uttar Pradesh State Legal Services Authorityto depute a para-legal volunteer to visit the old age home on such intervalsas is possible and the Member Secretary of the District Legal ServicesAuthority to visit the old age home at least once a month initially to findout the difficulties being faced by the inmates and to take redressalsteps, including to provide legal aid if required by the inmates of the oldage home.

29. With the aforesaid directions and liberty, the present appeal isallowed and ad-interim injunction sought by the plaintiffs–respondentsstand dismissed.

Nidhi Jain(Assisted by : Shashwat Jain, LCRA)

Appeal allowed.

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