S. B. Sinha ( 1 ) WHETHER an agreement for erection of oil storage tank together with pump house, chowkidar cabins, switch room, residential rooms and verandah for storing oil decanted from the railway tankers, which bring petroleum products to the site at which they are decanted, would amount to lease or licence, is the question which falls for consideration in this batch of Letters Patent Appeals, which arise out of various judgments and orders passed by learned Single Judges of this Court. ( 2 ) THE said question arose in view of the orders passed by the Additional district Judge, Delhi in various house tax appeals filed under Section 169 of the delhi Municipal Corporation Act, (in short the Act) against the orders passed by the assessing Officers in terms whereof rateable value of the properties in question were enhanced on the ground that the said constructions do not come within the definition of "building" attracting house tax under the said Act. ( 3 ) BEFORE adverting to the question involved we may notice the basic fact of the matter. The respondent herein had been granted separate and distinct licences by the president of India acting through Superintendent of Northern Railway, Delhi for the purpose of maintaining depot for storage of petroleum products at a yearly licence fee of Rs. 20,640/- and Rs. 31,000/- per annum respectively. ( 4 ) THE properties in question were assessed at a rateable value which were sought to be increased. Objections thereto were filed by the respondents. A contention was raised that the storage tanks would not come within the purview of the definition of building as contained in Section 2 (3) of the Act and thus no tax would be leviable as provided under Section 114 of the said Act. In the said appeal the following questions were raised: (a) Whether such steel structures are buildings within the meaning of delhi Municipal Corporation Act or not? (b) Whether such structures can be termed as a land within the meaning of Delhi Municipal Corporation Act or not? relying on or on the basis of a judgment of Bombay High Court titled Indian Oil corporation v. Municipal Corporation of Greater Bombay, 77 (1974) Bombay Law reporter 314, (decided by Justice Bhola and Makki, JJ.) dated 27/28th March, 1974, it was held that such structures are not building within the meaning of the said Act. relying on or on the basis of a judgment of Bombay High Court titled Indian Oil corporation v. Municipal Corporation of Greater Bombay, 77 (1974) Bombay Law reporter 314, (decided by Justice Bhola and Makki, JJ.) dated 27/28th March, 1974, it was held that such structures are not building within the meaning of the said Act. It was held by the Bombay High Court: "it is difficult to comprehend that anything which is resting by its own weight can ever be said to be attached to earth at all. It would not be correct to say that a light article would not be said to be attached to earth but a heavy article would be. I am unable to agree that the size and weight can determine the question attached to the earth or not. Attachment is a physical characteristic. It is the mode of manner of annexation or attachment that would be decisive. If some how it becomes a part or parcel of land then it is attached to the earth but not otherwise. We, therefore, hold that the six oil-storage tanks with which we are concerned cannot be described as "land" for the purpose of their rateability under the relevant provisions of the Bombay Municipal corporation. " ( 5 ) THE learned Additional District Judge also came to the conclusion that the respondent is not a person primarily responsible for payment of property tax within the meaning of Section 120 of the DMC Act, and thus the order of assessment impugned before him were held to be not sustainable. ( 6 ) THE appeals preferred by the respondent herein were therefore allowed by the learned Judge. ( 7 ) QUESTIONING the said orders writ petitions were filed by the appellant herein. ( 8 ) BEFORE adverting to the question involved in these appeals, we may notice the relevant provisions of the MCD Act. "2 (3 ). "building" means a house, out-house, stable, latrine, urinal, shed, hut wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter". "2 (24 ). "land" includes benefits to arise out of land, things attached to the each or permanently fastened to anything attached to the earth and rights created by law over any street: 119. Taxation of Union properties. "2 (24 ). "land" includes benefits to arise out of land, things attached to the each or permanently fastened to anything attached to the earth and rights created by law over any street: 119. Taxation of Union properties. (1) Notwithstanding anything contained in the foregoing provisions of this chapter, lands and buildings being properties of the union shall be exempt from the property taxes specified in Section 114: provided that nothing in this sub-section shall prevent the Corporation from levying any of the said taxes on such lands and buildings to which immediately before the 26th January, 1950 they were liable or treated as liable so long as that tax continues to be levied by the Corporation on other lands and buildings. 120 (2 ). If any land has been let for a term exceeding one year to a tenant and such tenant has built upon the land, the property taxes assessed in respect of that land and the building erected thereon shall be primarily leviable upon the said tenant, whether the land and building are in the occupation of such tenant or a sub- tenant of such tenant. 123. Property taxes a first charge on premises on which they are assessed. Property taxes due under this Act in respect of any land or building shall, subject to the prior payment of the land revenue if any, due to the Government thereon be a first charge (a) in the case of any land or building held immediately from the government, upon the interest in such land or building of the person liable for such taxes and upon the goods and other movable properties if any found within or upon such land or building and belonging to such person; and (b) in the case of any other land or building upon such land or building and upon the goods and other movable properties, if any, found within or upon such land or building and belonging to the person liable for such taxes. " ( 9 ) BY reason of the impugned judgment, Mahinder Narain,j. (as the learned judge then was), held that the oil storage tank would not be a building within the meaning of "building" under the DMC Act. Learned Judge further held that as the instrument had been executed on behalf of the President of India, which is termed to be a licence. Learned Judge further held that as the instrument had been executed on behalf of the President of India, which is termed to be a licence. Section 120 (l) (c) of the Delhi Municipal Corporation Act would not be attracted in relation thereto. ( 10 ) A Division Bench of this Court in terms of its order dated 12th February, 2000 noticed the difference in opinion in some judgments of the learned Judge of this court and observed as under: "these are nine Letters Patent Appeals directed against the judgment of learned Single Judges of this Court. LPAs 52 to 58/87 (MCD v. Pradeep Oil mills) are directed against the judgment of Mahinder Narain, J. dated 5. 8. 1996 while LPAs 227 to 228/96 (Bharat Petroleum Corporation Ltd. v. MCD) are directed against the judgment of Mohd. Shamim J. dated 11. 9. 1996. It has been brought to our notice that the judgment in Pradeep Oil Mills case has been affirmed by a Division Bench of this Court in Gas Authority of India Ltd. v. MCD, 1999 (2) AD 371. The other judgment of this Court in the case of Bhanil petroleum Corporation Limited has been affirmed by another Division Bench of this Court in MCD v. Batra Brothers, 1997 (4) AD 317. One of the issues involved in all these cases is as to whether the document whereby interest in land is purported to have been created is a lease or licence. The appellants are challenging the findings of the learned Single Judges in the respective cases. In our view the appellants are entitled to challenge the findings contained in judgments under appeal and cannot be denied this right for the reason that Division benches of the Court in some matters between other parties have affirmed the findings of the learned Single Judges. In the event of this Court agreeing with the appellants, the observations of the two Division Benches of this Court by which both the judgments under appeal have already been approved may lead to an anomalous situation. Therefore, we deem it appropriate that these appeals be heard and decided by a larger bench. "( 11 ) MR. In the event of this Court agreeing with the appellants, the observations of the two Division Benches of this Court by which both the judgments under appeal have already been approved may lead to an anomalous situation. Therefore, we deem it appropriate that these appeals be heard and decided by a larger bench. "( 11 ) MR. Nandra jog, learned Counsel appearing for the appellant submit that the question as to whether such an oil storage tank would be building or not is no longer res Integra in view of judgment of the Supreme Court in Municipal corporation of Greater Bombay v. Indian Oil Corporation, AIR 1991 SC 686 . ( 12 ) COUNSEL, however, submitted that the question as to whether the indentures in question constitute lease or licence so as to attract the provisions of Section 120 of the Act would depend upon the construction thereof. It was urged that having regard to the nature of the interest conveyed, the learned Single Judge committed a manifest error in construing the same to be a licence. According to the learned counsel the land having been used for the purpose of construction of a building, the object thereof being clear, it could not have been construed to be a licence and must be construed to be a lease. Learned Counsel submitted that it is not a case where it could be said that no interest in the land had been created by reason of the instruments in question. ( 13 ) LEARNED Counsel for the respondent however submitted that the indentures in question are licences and not leases. Distinction between a lease and licence is well known. ( 14 ) WE may at this juncture notice the definition of lease and licence as envisaged under Section 105 of the Transfer of Property Act and Section 52 of the indian Easements Act. Section 105 of Transfer of Property Act reads thus: "105. Lease Defined. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. " section 52 of the Easements Act, 1882 reads thus: "license, defined. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called,-a license. " ( 15 ) A licence may be created on deal or parole and it would be revocable. However, when it is accompanied with grant it becomes irrevocable. A mere licence does not create interest in the property to which it relates. Licence may be personal or contractual. A licensee without the grant creates a right in the licensor to enter into a land and enjoy it. In Halsbury s Laws of England, Fourth Edn. , Vol. 27 at page 21 it is stated: "licence coupled with grant of interest. A licence coupled with a grant of an interest in property is not revocable. Such a licence is capable of assignment, and covenants may be made to run with it. A right to enter on land and enjoy a profit a prendre or other incorporeal hereditament is a licence coupled with an interest and is irrevocable. Formerly it was necessary that the grant of the interest should be valid; thus, if the interest was an incorporeal hereditament, such as a right to make and use a watercourse, the grant was not valid unless under seal, and the licence, unless so made, was therefore a mere licence and was revocable but since 1873 the Court has been bound to give effect to equitable doctrines and it will restrain the revocation of a licence coupled with a grant which should be, but is not, under seal. " ( 16 ) LEASE on the other hand, would amount to transfer of property. In Associated Hotels of India Ltd. v. R. N. Kapoor, AIR 1959 SC 1262 , the following proposition has been held to be well established for ascertaining whether a transaction amounts to lease or licence. "27. There is a marked distinction between a lease and a licence. In Associated Hotels of India Ltd. v. R. N. Kapoor, AIR 1959 SC 1262 , the following proposition has been held to be well established for ascertaining whether a transaction amounts to lease or licence. "27. There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of aright to enjoy suchproperty made for acertain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas Section 52 of the Indian Easement Act defines a licence. Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licencee is permitted to make use of the premises for a particular purpose. But for the permission his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear through sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial option is reflected in Erringtan v. Errington, 1952 (1) All ER 149, wherein Lord Denning reviewing the case law on the subject summarises the result of his discussion thus at p. 155: "the result of all these cases is that, although a person who is let into exclusive possession is, prima facie to be considered to be tenant, nevertheless he will not beheld to be so if the circumstances negative any intention to create a tenancey. "see also Corporation of Calicut v. K. Sreemnivasan, IV (2002) SLT 38= 2002 (5) SCC 361 . ( 17 ) DISTINCTION between lease and licence is marked by the last clause of Section 52 of the Easement Act as by reason of a licence, no estate or interest in the property is created. ( 18 ) A licence, inter alia, (a) is not assignable; (b) does not entitle the licensee to sue the stranger in his own name; (c) it is revocable and (d) it is determined when the grantor makes subsequent assignment. Rights and obligations of the lessor as contained in the Transfer of Property Act, 1882 are also subject to the contract to the contrary. Even the right of assignment of leasehold property may be curtailed by an agreement. ( 19 ) HOWEVER, we may notice that in the present case grant has been made by the President of India in terms of Section 2 of the Government Grants Act, 1895 and the Transfer of Property Act, 1882 thus, may not in the instant case. ( 20 ) IN terms of the provisions of Government Grants Act, the rights and obligations of the parties would be governed by the provisions of the said Act in terms whereof which the Government is entitled to impose limitations and restrictions upon the grants and other transfer made by it or under its authority. Provisions of government Grants Act therefore are not of much relevance for determination of the question at hand. ( 21 ) HAVING the aforesaid legal principles in mind we have to consider the grant in question. ( 22 ) BY reason of the said grant, grantee has been described as licensee but the same is not determinative. In terms of Clause (1) of the said indenture the licensee was to have the use of a piece of land for maintaining a depot for petroleum goods received through railways but thereby his rights to deal with the property and the goods brought thereon had not been taken away. An embargo has been placed as regards the user of the construction made thereon to the extent that the same would be used solely for the storage of petroleum products but such restriction by itself can also be imposed in a case of lease. An embargo has been placed as regards the user of the construction made thereon to the extent that the same would be used solely for the storage of petroleum products but such restriction by itself can also be imposed in a case of lease. Constructions are to be made as per specifications approved by the Chief Inspector of Explosives which condition was also otherwise governed by the provisions of Explosives Act. Pipelines are required to be laid at railway levels or demised in favour of the grantee, where for expenses are to be paid by it. Pipelines are to be laid underground in such a manner that vehicles can pass over that. The licensee in terms of Clause 7 is required to pay the sum specified therein which has been described as rent . He is also required to pay all taxes payable in respect of the said land for the time being found to be payable and proportionately and all cesses, and taxes in respect of the premises applicable to the land, tanks, works and conveniences if the same be not separately assessed in respect thereof. The licensee shall not be entitled to assign, mortgage, sub-let or otherwise transfer the privileges without previously obtaining the consent in writing of the administration. The licensee shall not use the said land or any part thereof or permit the same to be used for worship, or religious or educational purposes or for any other purpose not specified in Clausel thereof but such a claim is not determinative. Clause (9) of the said indenture stipulates that either party would be entitled to terminate the licence without assigning any reasons by giving to the other party at any time three calendar months notice in writing. Even under Section 106 of the transfer of Property Act noreason is required to be assigned for determining the lease. Clause 11 of the indenture provides that nothing contained herein be construed to create a tenancy in favour of the licensee of the said land but again the description of the grant is not decisive Administration has been given power under Clause 12 to re-enter upon and retake and absolutely retain the possession of the said land but the same could be permissible in law only upon determination of grant which would require 3 months prior notice. Clause 12 further provides that the licensee shall at all times keep the Administration indemnified against and shall reimburse it towards all claims, demands, suits, losses, damages, costs etc. which it may sustain or incur by reason of inconsequence of any injury to any person or to any property resulting from any explosion or leakage of any petroleum kept or placed by the licensee upon the said land. Again the said claim does not have much relevance in the interpretation of a grant. Further the licensee was not entitled to any claim from the administration in respect of any damage which he might sustain on account of fire or other cause which claim is of not much importance. Clause 14 of the indenture provides that the licensee shall follow all petroleum rules and regulations applicable to the construction, maintenance of petrol pump or stores and for public safety. All taxes in respect of the said patrol pump, stores, buildings under the control of the licensee shall be paid by the licensee. The rights of the parties on determination of the grant have been specified. ( 23 ) THE learned Counsel appearing for the appellant would contend that even by reason of the said grant a bundle of rights have been conferred upon the grantee. Legal possession was to be with the grantee and even for the purpose of determining the agreement three months notice is necessary. ( 24 ) A deed as is well known must be read in its entirety and reasonably. The intention of the parties must also as far as possible be gathered from the expression used in the document. ( 25 ) IN Union Bank of India v. Chandrakant Gordhandas Shah, 1994 (6) SCC 271 , an instrument was held to be a deed of lease as the lessee was conferred right to exclusive possession where for various terms of the indenture which were taken into consideration for finding out whether the same was lease or a licence. ( 26 ) IN Vayallakath Muhammedkutty v. Illikkal Moosakutty, 1996 (6) JT 665 , where the defendant was given exclusive possession of the disputed premises for running a hotel but was not given the permission to sub-lease the property, the document was held to be a licence. "9. . . . . ( 26 ) IN Vayallakath Muhammedkutty v. Illikkal Moosakutty, 1996 (6) JT 665 , where the defendant was given exclusive possession of the disputed premises for running a hotel but was not given the permission to sub-lease the property, the document was held to be a licence. "9. . . . . this Court has indicated that for a consideration as to whether a document creates a licence or lease, the substance of the document must be preferred to the form. It is not correct to say that exclusive possession of a party is irrelevant but at the same it is also not conclusive. The other tests, namely, intention of the parties and whether the document creates any interest in the property or not are important considerations. " ( 27 ) IN Om Parkash v. Dr. Ravinder Kumar Sharma, 1995 (Suppl.) 4 SCC 115, a deal was held to be a licence where the keys of the premises was to be taken in the morning and returned in the evening and a portion thereof was occupied by the mother of the licensor. ( 28 ) IN Lilawati H. Hiranandani v. Usha Tandon, 1995 (Suppl.) 4 SCC 158, an assignment made to the effect that the owner permitted the licensee to occupy a portion with no right or interest created in his favour and also undertaken to vacant the premises within one month, was held to be a case of licence. In Swaran Singh v. Madan Singh, 1995 (Suppl.) 1 SCC 306, it was held: "3. On a careful consideration of the above arguments, we feel that there is no substance in any one of them. To our mind it is very clear that the right granted under the above document is nothing but a licence. Our reasons are as under: (1) the nomenclature of the document is licence. Of course, we hasten to add that nomenclautre is not always conclusive; (2) the document in question in no unambiguous terms says that the possession and control shall remain with the owner. This is a clear indication of the fact that no interest in immovable property has been conferred on the grantee. If it were to be a case of lease under Section 105 of the Transfer of Property Act, there must be an interest in the immovable property. This is a clear indication of the fact that no interest in immovable property has been conferred on the grantee. If it were to be a case of lease under Section 105 of the Transfer of Property Act, there must be an interest in the immovable property. On the contrary, if it were to be a licence under section 52 of the Easements Act, no such interest in immovable property is created. The case on hand is one of such. (4) No doubt there is a statement in the document that "i shall not sublet it to further anybody else. This is nothing more than an affirmation of the requirement that the licensee must use the property. No doubt under Section 52 of the Easements Act, licence is personal but where an affirmationis made that such an affirmation cannot alter the relationship of the parties as lessor and lessee. In this view factually the case Capt. BVD Douzav. Antonio Faust of emandes, Quoted from the judgment and order dated 3. 5. 1993 of Andhra Pradesh Admn. Tribunal at Hyderabad in OA No. 47322/91 and 5668/92, is distinguishable. " ( 29 ) IN Delta International Ltd. v. Shyam Sundar Ganeriwala, III (1999) SLT 553= 1999 (4) SCC 545 . It has been held that where the parties have been advised by the lawyers and document has been termed to be a licence it should ordinarily be held to be a licence. Reference in this connection may also be made to Iclci v. State of maharashtra, 1999 (5) SCC 708 . ( 30 ) WE may further notice a learned Single Judge of this Court in Bharat petroleum in 46 (1996) DLT 237, has taken a similar view wherein he differed with the views of Mahinder Narain, J. The aforementioned decision of the learned Single judge is in question in LPA 225-227 of 1996. Bharat Petroleum s case has been affirmed by a Division Bench comprising of y. K. Sabharwal and D. K. Jain, JJ. in MCD v. Batra Brothers, 1997 (4) AD 317. ( 31 ) ON the other hand, in Gas Authority v. MCD, a Division Bench comprising of Devinder Gupta and Rama Moorthy, JJ. have affirmed the decision of Mahinder narain J. in Pradip Oil Corporation, reported in 1986 (2) Municipalities and Corporation cases 127. in MCD v. Batra Brothers, 1997 (4) AD 317. ( 31 ) ON the other hand, in Gas Authority v. MCD, a Division Bench comprising of Devinder Gupta and Rama Moorthy, JJ. have affirmed the decision of Mahinder narain J. in Pradip Oil Corporation, reported in 1986 (2) Municipalities and Corporation cases 127. ( 32 ) WHAT in the aforementioned premises is required to be considered and determined as to whether the agreement should be interpreted as lease or licence having regard to the object sought to be achieved by the provisions of Delhi municipal Corporation Act. ( 33 ) BY reason of the provisions of the DMC Act, the Corporation is required to render several services as specified therein for the purpose whereof, tax is required to be imposed both on land as also on building. ( 34 ) DEFINITION of land and building as noticed hereinbefore as provided for therein must be given its full effect. ( 35 ) AS noticed hereinbefore in the case of Municipal Corporation of Greater bombay (supra), even an oil tanker has been held to be building which having regard to the statutory interpretation in other statutes it might not have been so held. ( 36 ) TAX is imposed upon the holders of land and building by Delhi Municipal corporation which is compensatory in nature. The word letting out in the context of the grant therefore must receive the purposive meaning. The indenture may have to be construed in the light of Section 105 Transfer of Property Act or Section 52 of the Easement Act but object of the said Act has also same role to play. A question may arise as to whether such impost would be tax or fee. The expression quid proquo may not necessarily be interpreted in a narrow or stricter sense (See Corporation of calcutta v. Liberty Cinema, AIR 1965 SC 1107 . A question may arise as to whether such impost would be tax or fee. The expression quid proquo may not necessarily be interpreted in a narrow or stricter sense (See Corporation of calcutta v. Liberty Cinema, AIR 1965 SC 1107 . ( 37 ) WHETHER a document will constitute lease or licence would inter alia depend upon certain interpreted criteria which are: (a) to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (b) that real test is the intention of the parties whether they intended to create a lease or a licence; (c) 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; and (d) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. " ( 38 ) WHETHER any indenture constitutes lease, or licence the nomenclature of the document may not be decisive, as it is necessary to consider the substance of the transaction and not its mere form. Particular words and phrases may be used in a document but such usage may be for various purposes. The document having regard to the purport and object of the Act, must thus be construed having regard to the principal object and purport thereof. For the said purpose even the doctrine of purposive construction may be taken recourse to. But once the Court is in a position to ascertain the substance thereof so as to enable it to arrive at a finding as to whether thereby an interest in the land is created or not the same would sub serve the purpose. ( 39 ) THE grantor in the case is the Union of India. Grantee was a company. The grantor was described as a licensor whereas the grantee has been described as a licensee. By reason of such grant the appellant herein have been granted exclusive right to use a piece of the Railway land for the purposes mentioned therein, viz. , constructing and maintaining thereon tanks, buildings and other conveniences and for receiving and storing therein the petroleum in bulk. By reason of such grant the appellant herein have been granted exclusive right to use a piece of the Railway land for the purposes mentioned therein, viz. , constructing and maintaining thereon tanks, buildings and other conveniences and for receiving and storing therein the petroleum in bulk. Such constructions are not temporary in nature. They are also not to be reserved for user for a very short period. Such constructions are admittedly to be raised so as to enable the grantee the right of extensive user for a long time. Such constructions ad storage would be subject to the provisions of the Petroleum Act, 1934 and other laws. The Railway Administration of course has the right of entry in the land and the building and also a right to direct pull down, rebuild or repair the whole area and/or any part of the works and conveniences which according to the administration have been improperly constructed or contains defective designs, constructions or materials or in want of repair. Such alterations and repairs however, would not infringe the requirement of the Petroleum Rules, 1937. The appellant was to pay rent @ Rs. 30,656/- per annum from October, 1954. Such payment was to be made on a specific date. The appellant was also in terms of the said document as indicated hereinbefore were to pay all cesses, rates and taxes payable in respect of such land, tanks, buildings, works and conveniences situated thereupon and proportionate cesses, rates and taxes imposed in respect of the premises tanks, buildings, works and conveniences, by reason of the said grant, the appellant was not altogether prohibited from transferring the rights obtained thereunder but therefor only prior approval was required to be taken. User of such premises has been prohibited only in respect of worship or religious or educational purposes or for the purposes specified in Clause (1 ). Thereof Clause 10 provides that either party would be at liberty to determine and put to an end the grant by giving to the other party three calendar months notice in writing and only upon expiry whereof such privileges may be so determined by the administration, without any claim for compensation whatsoever cm the part of the appellant. The deed postulates that buildings and other conveniences may betaken over by the administration on mutually agreed terms. The deed postulates that buildings and other conveniences may betaken over by the administration on mutually agreed terms. However, the appellant on such determination of the grant would be enti tied to pull down and remove from the site the materials at its own expense within two months upon determination thereof. (Emphasis supplied) ( 40 ) CLAUSE 11 of the said indenture whereupon Mr. Sethi placed strong reliance, reads thus: "11. Nothing herein contained shall be construed to create a tenancy in favour of the Licensee (s) of the said premises and the Administration may for their mere motion upon the determination of this licence re-enter upon and retake and absolutely retain possession of the said land. " ( 41 ) HOWEVER, such a covenant cannot be conclusive as regards determination of the rights of the parties under a covenant. ( 42 ) THE respondents are in possession of the buildings in question since 1958. They have been permitted to raise huge constructions. The nature of construction is of wide range. An administration block alongwith tanks for storing petroleum had been constructed. A boundary wall around installations and administrative block had also been constructed. Indisputably the grantee are in exclusive possession over the lands in question alongwith construction thereon without any let or hindrance from the administration. Since 1962 they had been continuously carrying on their business without any interference from any quarter whatsoever. ( 43 ) WHEREIN exclusive possession has been granted, as noticed hereinbefore, a tenancy will be presumed. It is for the grantor to show that despite the right to possess the demised premises exclusive; a right or interest in the property has not been created. The burden therefor would be on the grantor to prove contra. ( 44 ) IN Street v. Mount ford, reported in 1985 Appeal Cases 809, it is stated that when exclusive possession is granted in lieu of only rent payable therefor, the presumption that the instrument is that of a lease becomes stronger. In this case the administration has also option to revise the rent. Had it been a case of mere right to use the property, such provision would not have been there. The manner in which the rent is to be paid is also significant. In this case the administration has also option to revise the rent. Had it been a case of mere right to use the property, such provision would not have been there. The manner in which the rent is to be paid is also significant. It is to be paid annually in a case of a licence pure and simple, the indenture would not normally contain a claim that rent would be paid annually. ( 45 ) IN Delta International Ltd. v. Shyam Sundar Ganeriwalla and Another (supra), whereupon strong reliance has been placed by the learned Counsel for the grantee, it is stated: "25. Hence for determining whether the phrase "demised premises" should be construed as a lease or a licence as expressly stated in the agreement, the phrase or the words is to be construed in the context in which it is used. In the present case the said phrase is used in Clause 18 three times alongwith the term "licence fee" which was to be paid by the licensee and the manner of this payment. It provides that "licence fee" for the demised premises was Rs 3,950/- per month and the licence fee was payable for the said demised premises as proved therein, that is to say Rs. 23,700/- for six months in advance and that the said licence fee is to be adjusted in respect of the demised premises per month. The phrase "demised premises" is used for recovering the licence fee. If the intention of the parties was to create a lease, then the wore! "rent" would have been easily used at all the [ilaccs. "demised premises", in the present case, includes not only the premises, but fittings, fixtures a; id the petrol service station also. Licence was granted specifically to run the petrol service station on the terms and conditions specified therein. i here ,nc ,-i number of other terms and conditions in the document which indicate that it was a licence deed. Firstly, the licence was for the purpose of running the petrol service station which was set up by the licensor. The possible grant of sub-lease was reserved for the future in the event of Delta obtaining consent from its landlord Malika Investments Company. Firstly, the licence was for the purpose of running the petrol service station which was set up by the licensor. The possible grant of sub-lease was reserved for the future in the event of Delta obtaining consent from its landlord Malika Investments Company. The licensee was not obliged to pay any part of the out goings in respect of the premises which indicates that the charges attendant upon occupation of the premises were to be paid and borne by the licensor. He was also required to keep the plant and machinery at the said premises in good repair and was required to obtain necessary insurance policies for the business. A further clause to the effect that the licensee was permitted to carry on business in the name of the licensor indicates that the premises were not let out otherwise there was no question of permitting the use of the licensor s name. It is true that there are certain other clauses which may indicate a different intention if they are construed in isolation such as a term to the effect that the licensee was entitled to grant a sub-licence to operate the petrol station or that they were entitled to install other machinery. But, at the same time, the clauses are to be read in the context of the fact that the licensor had decided not to run the business of petrol service station and that by the impugned deed right to run the said business alongwith the premises was given to the licensee. Further, Clause 9 specifically provides that the licensor shall be at liberty to withdraw and/or revoke the leave and licence in case there is any default of the term smentioned in the documents. Clause 16providesthatif the sub-lease is granted then the licence was required to purchase the equipments, fittings and fixtures as mentioned in the Second Schedule at a price of Rs. 2,50,000/- within a period of one year from the date thereof. Admittedly, sublease is not granted and the amount of Rs. 2,50,000/- as agreed is also not paid by anyone. " (Emphasis supplied to highlight the distinctive features of the grant in question) ( 46 ) WE may having regard to the aforementioned discussion safely presume that for the purpose of carrying on business the grantee must have taken electric and telephone connection in relation whereto no bar had been created under the grant. " (Emphasis supplied to highlight the distinctive features of the grant in question) ( 46 ) WE may having regard to the aforementioned discussion safely presume that for the purpose of carrying on business the grantee must have taken electric and telephone connection in relation whereto no bar had been created under the grant. The administration may have kept reserved unto itself a right to enter the premises but thereby the right of exclusive possession of the grantee has not been taken away. The right of possession of the grantee is to the exclusion of the lessor. The possession of the grantee is not for a limited hour in a day. The administration in terms of the grant cannot possess the premises in exclusion of the grantee or alongwith it. "in Megarry s Manual of the Law of Read Property, 7th edition at page 309 the learned Author states: "what must be considered is what the parties have in fact done, and not what they intended, or pretended to do. Their intention is important, however, in deciding whether or not they in tended to enter into legal relations, or whether the transaction was a mere family arrangement or act of friendship or generosity. "exclusive possession would entitle the tenant to exclude all others from the premises during the term. However, as regards pretences or shams the learned Author states: "in determining whether or not a tenancy has been granted, the Court will ignore any provisions in the agreement which are mere pretences or shams seeking to negative a tenancy. "a necessary feature of a lease is that the lessee shall acquire a right of possession to the exclusion of the lessor. ( 47 ) IN Fachhini v. Bryson, reported in (1952) 1 TLR1386:214 LT 192, Denning, l. J. stated: " In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such a family arrangement, an act of friendship or generosity or such like, to negative any intention to create a tenancy. "interestingly it may be noticed that in Facchini (supra), also there existed a clause "nothing in this agreement shall be construed to create a tenancy. " ( 48 ) IN Capt. B. V. D souzav. "interestingly it may be noticed that in Facchini (supra), also there existed a clause "nothing in this agreement shall be construed to create a tenancy. " ( 48 ) IN Capt. B. V. D souzav. An tonio Faustofernandes reported in (1989)3 SCC 574 , the Apex Court while construing an agreement which was labelled as leave and licence held: "however, this cannot answer the disputed issue as it creates a licence or lease, the substance of the document must be referred to the form. As was observed by this Court in Associated Hotels of India Ltd. v. R. N. Kapoor, AIR 1959 SC 1262 , the real test is the intention of the parties whether they intended to create a lease or licence. If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property "of which the legal possession continues with the owner" it is a licence. If the party in whose favour the document is executed gets exclusive possession of the property prima facie he must be considered to be a tenant: although this factor by itself will not be decisive. Judged in this light, there does not appear to be any scope for interpreting Ex. 20 as an agreement of leave and licence. " ( 49 ) IN that case the Apex Court noted the observations of Lord Denning MR in Shell-Mex and B. P. Ltd. v. Manchester Garages Ltd. , reported in (1971) 1 All ER 841, wherein it is stated: "i turn, therefore, to the point: was this transaction a licence or a tenancy? This does not depend on the label which is put on it. It depends on the nature of the transaction itself: see Addisombe Garden Estates Ltd. v. Grabbe. Broadly speaking, we have to see whether it is a personal privilege given to a person, in which case it is a licence or whether it grants an interest in land, in which case it is a tenancy. At one time it used to be thought that exclusive possession was a decisive factor, but that is not so. " ( 50 ) REFERENCE, in this connection, may be made to Smt. Rajbir Kaur and Another v. M/s. S. Chokosiri and Co. , reported in AIR 1988 SC 1845 ; Vallabh Das v. Dr. At one time it used to be thought that exclusive possession was a decisive factor, but that is not so. " ( 50 ) REFERENCE, in this connection, may be made to Smt. Rajbir Kaur and Another v. M/s. S. Chokosiri and Co. , reported in AIR 1988 SC 1845 ; Vallabh Das v. Dr. Madanlal and Others, reported in AIR 1970 SC 987 , and Roop Chand v. Gopi Chand thelia, reported in AIR 1989 SC 1416 . The Apex Court in the said discussion in no uncertain terms stated that exclusive possession of a property would prima facie constitute a tenancy subject to intention of the parties which has to be gathered not only from reading the contents of the agreement as a whole, and the circumstances attending thereto but also the conduct of the parties. In some cases even the conduct of the parties contrary to the terms of the agreement had been taken into consideration for the purpose of arriving at the real intention of the parties. It may be true that the document has been described as a licence and the grantor has to be labeled as licensor but such labelling is not decisive.