B. K. RATHT, J. ( 1 ) THE respondent No. 2 of Writ Petition No. 35498 and petitioner of Writ Petition No. 32706 (hereinafter referred to as "respondent No. 2"), moved an application under Section 29a of U. P. Act No. XIII of 1972 for enhancement of rent before the respondent No. 1, which is Annexure no. 1 to the writ petition. The application was opposed by the petitioner of Writ Petition No. 35498 (hereinafter called as "petitioner" ). The respondent No. 1, Rent Control and Eviction officer. Mathura decided the application vide judgment. Annexure-5 to the writ petition, on 25. 5. 1999 and enhanced the rent to Rs. 13. 250 per month from Rs. 40 per year. Aggrieved by the order of respondent No. 1. the petitioner has preferred writ Petition No. 35498 of 1999 under Article 226 of the Constitution of India invoking the extraordinary Jurisdiction of this Court with the request that the order, Annexure-5 to the writ petition, be quashed. ( 2 ) THE respondent No. 2 is also not satisfied with the enhancement of the rent and he has filed writ Petition No. 32706 of 1999 with the request that the judgment of respondent No. 1 is not correct and that the rent be enhanced @ Rs. 2. 000 per square yard since 5. 7. 1976. ( 3 ) I have heard Sri S. V. Goswami. learned counsel for the Nagar Palika Parishad. Mathura, and sri M. D. Singh, learned counsel for Kunwar Vishwendra Singh. respondent No. 2. and have gone through the records. ( 4 ) THE facts of the case are very simple. in the application, it was pleaded by the respondent No. 2 that he is the landlord and the land was given long ago on rent of Rs. 40 per year to the petitioner for construction of the office of Nagar Palika Parishad. That the rent was never enhanced since the tenancy was created. That the rate of the land where the disputed property situated is Rs. 2. 000 per square yard. That. therefore, the rent of the disputed land should be Rs. 1,55,000 per month. Therefore, it has been prayed that the rent be accordingly, settled. ( 5 ) BEFORE coming to the actual controversy between the parties, I may dispose of two objections of the petitioner which, in my opinion, have been raised unnecessarily in this petition. That. therefore, the rent of the disputed land should be Rs. 1,55,000 per month. Therefore, it has been prayed that the rent be accordingly, settled. ( 5 ) BEFORE coming to the actual controversy between the parties, I may dispose of two objections of the petitioner which, in my opinion, have been raised unnecessarily in this petition. ( 6 ) THE first objection is that the application was moved by the respondent No. 2 through Dinesh chandra Agarwal. as holder of power-of-attomey. This objection was taken, as the power-of-attorney was not filed with the application. Later on. the power-of-attorney dated 31. 12. 1990 and Trust Deed dated 29. 6. 1987 executed by the respondent No. 2 in favour of dinesh Chandra Agarwal were filed. By virtue of this power-of-attorney. Dinesh Chandra agarwal could have filed the application on behalf of the respondent No. 2 and controversy does not require a detailed discussion. ( 7 ) THE other objection taken is that the respondent No. 2 is not the owner of the disputed land and it has vested in the State of Rajasthan. That, therefore, he has no right to move the application. In this connection, the learned counsel for the petitioner has referred to the gazette notification, which is Annexure-4 to the writ petition. It is contended that according to this gazette notification, the property has vested in the State of Rajasthan. That the property, which has been left with the respondent No. 2 has been shown separately. 1 have gone carefully with this gazette notification and am of the view that it does not show that the property in dispute has been acquired and has vested in the State of Rajasthan. On the other hand, it appears that it continues to be owned by the respondent No. 2. Apart from this, the petitioner is continuously paying the rent of the premises in dispute to the respondent No. 2 as I shall discuss at latter stage. Therefore, it is also not open to the petitioner to plead that the respondent No. 2 is not the owner of the same and is not entitled to move the application. This argument of the learned counsel for the petitioner is also without any merit. Therefore, it is also not open to the petitioner to plead that the respondent No. 2 is not the owner of the same and is not entitled to move the application. This argument of the learned counsel for the petitioner is also without any merit. ( 8 ) THE main controversy between the parties is that according to the petitioner, he is licensee of the land, which was given to him by the Royal Religious Family, who was owner as King. That the petitioner is not the tenant and, therefore. Section 29a of U. P. Act No. XIII of 1972 has no application. In this regard, it is contended that it was a grant from the King and the petitioner is not a tenant. As against this, it has been contended by the learned counsel for the respondent No. 2 that the exclusive possession was transferred and permanent structure has been raised. The petitioner is enjoying the exclusive possession of the disputed land since long. That, therefore, he is not a licensee. It is further contended that the petitioner in the letters to the respondent No. 2 has been regularly mentioning that the rent is being sent. Several letters have been filed in this regard in Writ Petition No. 32706 of 1999. The first is Annexure-C. A. 1 dated 28. 6. 1980 written by Executive Officer. City Board, Mathura and signed by Accountant on his behalf to the manager. Bharatpur Royal Family Religious Ceremonial Trust. Bharatpur in which it is mentioned that the cheque dated 31. 3. 1980 for Rs. 40. 75 p. is being sent in full payment of the rent. Another letter written by the same person addressed to the same authority is dated 1. 6. 1982, annexure-C. A. 2. In this letter, it has also been mentioned that the amount of rent Rs. 40. 50 p. is being sent by cheque No. 244071 dated 25. 3. 1982. Another letter is Annexure-C. A. 3. dated 9. 12. 1986, in which it is mentioned that the rent of the land of Nagar Palika office is being sent by the demand draft. A Similar letter is Annexure-C. A. 4 dated 23. 2. 1988. It is contended that all these letters show that the rent was being paid. That, therefore, the petitioner is lessee and not a licensee and this amounts to admission. A Similar letter is Annexure-C. A. 4 dated 23. 2. 1988. It is contended that all these letters show that the rent was being paid. That, therefore, the petitioner is lessee and not a licensee and this amounts to admission. ( 9 ) IN this connection, it has also been argued that the copy of the settlement of 1244 Fasli, which is equivalent to 1877 Fasli, is Annexure-6 to the Writ Petition No. 35498 of 1999. In which Raja saheb Bharatpur is shown to be the owner and land has been shown on rent to the Municipal board at Rs. 40 per year. That, therefore, this shows that the land was given on rent and not on premium. It is also contended that the Indian Easement Act was enforced in the year 1882. That the present transaction of lease is prior to the 1882. That at that time, there was no concept of licence and also of the grant of the property on premium. ( 10 ) I have carefully considered the argument of the learned counsel. ( 11 ) IT is no doubt true that many letters of the Executive Officer of the petitioner was written to the respondent mentioning that the rent is being sent. However, it is only a misnomer and it is settled law that because the words "rent or licence fee" have been used it does not show the character of the transaction as lease or licence. These words are used by the parties in ignorance of law and fine distinction between the lease and the licence. The parties cannot turn a tenancy into a licence merely by calling it so. ( 12 ) ADMITTEDLY, no deed is available to show whether the nature of the transaction was a lease or licence. Therefore, from the circumstances, it has to be inferred whether it was a lease or licence. Before considering the material circumstances, it may be mentioned that the argument that concept of licence came in the year 1882 when the Indian Easement Act was enforced is misconceived. The Transfer of Property Act was also enforced in the year 1882 and therefore, on its basis, it cannot be held that there were no transfers of properties prior to 1882. The Transfer of Property Act was also enforced in the year 1882 and therefore, on its basis, it cannot be held that there were no transfers of properties prior to 1882. Both these Act have been enacted to define and amend law relating to the transfer and licenses existing at the time of the enforcement of these Act as is clear from the Preambles of the Acts. The argument that the transaction took place prior to 1882 and, therefore, it cannot be a licence therefore, does not hold good. ( 13 ) ACCORDING to the definitions, the transfer of exclusive possession or transfer of right of enjoyment only is a criterion to find the nature of the transaction. However, in many decisions, it has been held that the transfer of exclusive possession does not show that the transaction is a lease and now it is settled law. On the other hand, it has been held by the different courts that the distinction between the lease and licence is one of the substance or the intention to the parties. In ram Prasad Mandal v. Sneh Lata GHosh, AIR J967 Cal. this view was taken. In many other cases. It was held that the transfer of exclusive possession with payment of amount may be a licence as well as lease and it depends on the intention of the parties. In the present case, there is no document evidencing the transaction and, therefore, the question of interpretation of document does not arise. However, from the facts, it can be safely inferred in this case that it was a grant from the King and, therefore, the King has not executed any agreement of lease. The real test, therefore, in the present case is whether the intention of the parties was to create a lease or licence. ( 14 ) IN the commentary on the Indian Easement Act of Sri B. B. Katiyar. It has been observed that test of exclusive possession is by no means decisive regarding the nature of the transaction. Therefore, on the basis that the petitioner is in exclusive possession of the property in dispute, it cannot be held that he is a tenant. ( 15 ) THE Apex Court in M. N. Club Wala v. Ftda Hussain Saheb. AIR 1965 SC 610 . Therefore, on the basis that the petitioner is in exclusive possession of the property in dispute, it cannot be held that he is a tenant. ( 15 ) THE Apex Court in M. N. Club Wala v. Ftda Hussain Saheb. AIR 1965 SC 610 . has observed that where there is no formal document embodying of the agreement, the Intention is to be inferred from surrounding circumstances and the conduct of the parties. ( 16 ) I could not lay hand on any direct authority which may be applicable in the present case. However, it was observed in Qudrat Ullah u. Municipal Board, Baretlty, AIR 1974 SC 396 , that the intention of parties is material for deciding the nature of the transaction. It was observed in para 7 of the judgment : "there is no simple litmus test to distinguish a lease as defined in Section 105, Transfer of property Act from a licence as defined in Section 52, Easements Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable properly, entitling the transferors to enjoyment, is created, it is a lease, if permission to use land without right to exclusive possession is alone granted a licence is the legal result. " However, the Apex Court in the Judgment has also referred to law laid down on the point in halburys Laws of England. It was held therein that the fact that the agreement grants a right of exclusive possession is not a conclusive evidence of the existence of tenancy, bill it is a consideration of first importance. The instances in which the exclusive possession has been granted but the transaction operated as licence only and not as lease have been mentioned. ( 17 ) HOWEVER, it is true that the present case is not covered by any instance given, but as observed in the case of M. N. Club Wala (supra) by the Apex Court, the intention has to be inferred from surrounding circumstances and conduct of the parties. Therefore, in the present case, surrounding circumstances and conduct of the parties are decisive factors whether the transaction was a lease or licence. ( 18 ) IT is proper to refer to the decision of the Apex Court in Associated Hotels of India Limited v. R. N. Kapoor. AIR 1959 SC 1262 . Therefore, in the present case, surrounding circumstances and conduct of the parties are decisive factors whether the transaction was a lease or licence. ( 18 ) IT is proper to refer to the decision of the Apex Court in Associated Hotels of India Limited v. R. N. Kapoor. AIR 1959 SC 1262 . It was emphasized that to distinguish between a lease and a licence, the following proposition are well established : (i) to ascertain whether a" document is a licence, or lease, the substance of the document must be preferred to the form : (ii) the real lest is the intention of the parties whether they intended to create a lease or licence ; (iii) 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 ;" ( 19 ) IN this case, no formal deed of lease or licence was executed. The grant was to a local body and yearly premium was fixed. No monthly rent was fixed. The grant was given more than a century before and since then, there was no demand for enhancement of rent/premium. It does not appear that the King would have executed a lease of his property in favour of a local body. In india, there are many old grants by the King in favour of their ruled persons. ( 20 ) CONSIDERING the circumstances, it appears that it is a case of grant by the King to the municipal Board, a local body for construction of its office on premium so that ownership may not be challenged. There does not appear to be any question of giving land on lease. ( 21 ) THEREFORE, considering the circumstances. I find that the petitioner, Nagar Palika Parishad is not the tenant of the disputed land and is only a licensee. Therefore, the application under section 29a of the Act was not maintainable. ( 22 ) THE petition No. 35498 of 1999 is accordingly allowed and the order, Annexure-5 to the writ petition is quashed. The Writ Petition No. 32706 of 1999 is dismissed. .