JUDGMENT : - R.N. Das, Asit Banerjee, Urmila Datta Sen for the respondent. Asok Kumar Ganguly, J.: The petitioner No.1 is a Public Limited Company having its registered office at 35, Hindusthan Road, Kolkata-700029 and the Cold Storage at Plot No. 22 at Sealdah, South Station area. The petitioner No.2 is the Director and Shareholder of the petitioner No. 1. The petitioner's case is that the petitioner-company was formed on the invitation of the Railway Authorities and the purpose of establishing the petitioner-company was to prevent decomposition of a good portion of the prescribed goods coming by rail such as, fresh meat, milk products, food and vegetables. So by a letter dated 3rd May, 1947 the then General Commercial Manager of Bengal-Assam Railways 1 granted a licence to the petitioner-company for constructing a Cold Storage. The petitioner's further case is after getting the approval of the Railway Authorities, a plan was prepared for construction of a permanent Cold Storage which was duly approved and sanctioned by the Railway Authority and in accordance with the said sanctioned plan, the petitioner-company in 1948 constructed permanent structure for a Cold Storage at its own costs. The petitioner's case is that the Cold Storage of the petitioner-company is unique and there is no other Cold Storage like the one of petitioner-company within the network of the Eastern Railway. The petitioner's further case is that as a result of the functioning of the said Cold Storage various commodities like fish, yeast, sweets, milk curd, honey and apple juice are not only stored but they are also distributed and sent to Railways from the said Cold Storage to various districts. According to the petitioner-company the said Cold Storage is functioning in public interest and caters to the needs of public at large. The petitioner's case is that it is not disputed that the petitioner-company has been duly paying all sums and the licence fees and other taxes as and when demanded by the Rail, way Authorities and initially the Railway Authorities gave to the Cold Storage licence for five years commencing from 1st August, 1947 and the same was renewed from time to time. Thereafter, on 27th August, 1976 the Divisional Subordinate Manager demanded from the petitioner-company enhanced fees in respect of the said Cold Storage with retrospective effect from 1963-64. Thereafter, on 27th August, 1976 the Divisional Subordinate Manager demanded from the petitioner-company enhanced fees in respect of the said Cold Storage with retrospective effect from 1963-64. As the petitioner-company refused to pay the said enhanced licence fees the General Manager Estern Railway by a letter dated 25th September, 1977 allegedly cancelled the licence granted to the petitioner-company on the purported ground for non-execution of further lease and non-payment of licence fees. Against such cancellation, the petitioner-company made a representation to the Railway Administration and thereafter a joint meeting was held on 10th October, 1981 between the representative of the General Manager and the petitioner company and a settlement was arrived at. Pursuant to the settlement, the General Manager, Eastern Railway demanded from the petitioner-company a certain amount of money by way of licence fees and the same was paid by the petitioner-company. Again on 22nd November, 1984 a notice was issued to the petitioner-company directing the petitioner to vacate the land on which the Cold Storage of the petitioner was constructed. The said notice was issued purportedly under the Public Premises [Eviction of Unauthorized Occupants] Act, 1971 [hereinafter referred to as the said Act] and by the said notice the respondent demanded from the petitioner a sum of Rs. l,29,404.50p. towards further licence fees. Again the petitioner made a representation to the Railway authorities against the said notice issued on 22nd November, 1984. But as nothing happened, the petitioner company filed a writ petition which was numbered Civil Order (C.O.) No. 3229(W) of 1985 for cancellation of the notice dated 22nd November, 1984 and an order was passed by Hon'ble Court on 27th November, 1985 to restrain the respondent from enforcing t he said notice. Pursuant to the said order, the petitioner-company deposited a sum of Rs. 75,000/- in equal instalments. The said Civil Order was thereafter heard by the Hon'ble Court on 30th June, 2000 and an order was passed holding that the notice dated 22nd November, 1984 has spent its force by cfflux of time and since the petitioner company paid the rent in respect of land in question at the enhanced rate and the same was accepted the said notice cannot be given effect to. By the said order liberty was given to the respondent-authorities to take necessary steps in the matter of eviction of the petitioner-company in accordance with law. By the said order liberty was given to the respondent-authorities to take necessary steps in the matter of eviction of the petitioner-company in accordance with law. In the said order dated 30th June, 2000, the learned Judge recorded the submission of the respondents that for the development work of the Sealdah Station, the premises in which Cold Storage is situated is required by the respondents. According to the learned Counsel, the Hon'ble Judge gave liberty to the respondent-authorities to take necessary steps in the matter of eviction of the petitioner-company in accordance with law in respect of the land in question. The petitioner's case is that on 17th September, 2000 the petitioner further paid by cheque a sum of Rs. 1,00,000/- towards the rent of the land. Thereafter, on 14th October, 2000, the Railway Authorities issued a purported notice dated 10th October, 2000 under clause b(ii) and sub-section (2) of section 4 of the said Act. By the said notice, the petitioners were directed to appear on 19th October, 2000 for personal hearing before the authorities issuing the notice and to answer all material questions connected with the matter along with evidence which the petitioner-company wanted to produce in respect of the case. It was also mentioned in the said notice that the same was issued in accordance with the judgment and order dated 30th June, 2000 in C.O. No. 3229(W) of 1985. Then the petitioner-company gave a reply to the said notice by a letter dated 16th October, 2000 and it was denied that the petitioner-company is an unauthorised occupant. The personal hearing was also attended by the representative of the petitioner and he produced all the documents. 2. Thereafter, on 15th March, 2001 an order dated 7th March, 2001 was passed under sub-section (1) of section 5 of the said Act and served on the petitioner company alleging therein that the petitioner-company is an unauthorised occupant in the public premises specified in the Schedule of the said order. The said order also directed the petitioner company to vacate the premises within 15 days and, in the event of refusal on the part of the petitioner-company, all persons connected will be evicted and if necessary by the use of the Police Force. The said order also directed the petitioner company to vacate the premises within 15 days and, in the event of refusal on the part of the petitioner-company, all persons connected will be evicted and if necessary by the use of the Police Force. The petitioner filed another writ petition which was numbered as W.P. No. 4353(W) of 2000 and by a judgment dated 28th March, 2001, the said order was quashed. 3. This Court finds that the said judgment dated 28th March, 2001 is of so me relevance for deciding the points which are at issue in this case specially when the said judgment has become final between parties in the absence of an appeal. 4. While delivering the said judgment, the learned Judge recounted the background of the case and also considered the order dated 30th June, 2000 which was passed by another learned Judge of this Court finally deciding C.O. No. 3229(W) of 1985. 5. The learned Judge in the judgment dated 28th March, 2001, held that (1) the said Act can be used only for the purpose of eviction of an unauthorised occupant; (2) the petitioner-company in whose favour the licence to occupy has been granted cannot be treated an unauthorised occupant of the premises within the meaning of the said Act;(3) in the event such licence to occupy is cancelled or revoked for any good reason, but, the person continues to occupy the said property in question only in that situation, the person can be said to be an unauthorised occupant and then the eviction can be enforced under the provisions of the said Act; (4) in the facts of the case, the licence of the petitioner company has not been revoked on any ground. On the other hand, after issuing the notice for such revocation the licence fee at the enhanced rate was accepted from the petitioner and such notice has spent its force. The learned Judge held that in view of this position, the initiation of the proceeding under the said Act to evict the petitioner is without jurisdiction and the learned Judge quashed the notice dated 10th October, 2000. 6. The learned Judge also recorded the fact that in connection with show cause proceeding, hearing took place before one Officer, namely Mr. M.S. Pal and order was passed by one Mr. Nikhil Kumar Sarkar. 6. The learned Judge also recorded the fact that in connection with show cause proceeding, hearing took place before one Officer, namely Mr. M.S. Pal and order was passed by one Mr. Nikhil Kumar Sarkar. The learned Judge also recorded that in the course of hearing before Mr. M.S. Pal in the month of October 2000, Mr. Pal expressed his lack of knowledge about the requirement of the land in question by the Railway Administration and the same matter was brought on record by the petitioner, but, that aspect of the matter was not controverted by the Railway Administration. 7. The learned Judge also recorded that it may be true that the public need shall outweigh personal interest, but, the learned Judge also recorded that the licence has been granted by the Railways to the petitioner for the purpose of installing a Cold Storage which in turn served the public. After recording those facts, the learned Judge held that it would necessarily demand very strong reason to take back the land from the petitioner No.1 but no reason was furnished till the matter was heard before the learned Judge. 8. After recording the aforesaid facts, the learned Judge held that without revocation of the licence in accordance with law, the Railway Administration cannot take steps under the said Act. 9. After the said judgment of the learned Judge dated 28th March, 2001 a notice was given to the petitioner on 8th October, 2001 stating therein that the said licence granted to the petitioner is revoked for the reasons stated therein. The reasons stated in the impugned notice are that the plot in question is urgently required by the Railway. The Railway Administration for public purpose wants the development of the Sealdah Railway Station and also for the said development work the cold storage' should be removed. This is as per the plan by the competent authority. The development work is already in execution and is under speedy progress. It was said by the learned Counsel that the development work cannot be carried out as per the drawing of M/s. RITES without obtaining vacant and peaceful possession of the premises occupied by the Cold Storage. By the said notice, the petitioner was requested to vacate the Railway plot within 15 days, failing which it was made clear that the Railway Administration will proceed in the matter. 10. By the said notice, the petitioner was requested to vacate the Railway plot within 15 days, failing which it was made clear that the Railway Administration will proceed in the matter. 10. The said impugned notice has been challenged before this Court on various grounds. The main ground of challenge urged by the learned Counsel for the petitioner is that in the instant case the licence granted by the Railway authorities in favour of the petitioner-company for construction of a Cold Storage of a permanent nature is not revocable. In support of the contention, it has been urged by the learned Counsel that under section 60(b) of the Indian Easement Act, 1882 such licence cannot be revoked by the grantor where the licensee acting upon the licence has executed work of a permanent nature and incurred expenses in the execution and such construction of a permanent nature was done with the consent and approval of the licensor. 11. The learned Counsel urged that the Cold Storage of permanent nature was with the consent of the Railways constructed by the petitioner at its own costs. This fact has not been disputed by the Railway authorities at all. Therefore, the licence granted by the Railway authorities is irrevocable. In support of the fact that the construction has been made by the petitioner with the sanction of the Railway authorities, the petitioner has referred to an order dated 2nd May, 1947. From the said order, it appears that the General Manager, Bengal Assam Railways, accorded sanction to the licensee for construction of a building with 'Pucca' wall for the purpose of Cold Storage as a special case and request was made to fix the licence fee and forward the structural plan duly approved for counter-signature of the other authorities. 12. While dealing with the averment made in para 5 of the writ petition, to the effect that the Cold Storage was constructed on a permanent basis after receiving the approval from the Railway authorities on a plan which was duly approved and sanctioned by the Railways the respondents have not disputed those facts in their affidavit-in-opposition. It has also not been disputed that the said Cold Storage was constructed by the petitioner-company at its own costs. 13. In para 11 of the affidavit-in-opposition which deals with para 5 of the writ petition, the aforesaid facts have not been disputed. It has also not been disputed that the said Cold Storage was constructed by the petitioner-company at its own costs. 13. In para 11 of the affidavit-in-opposition which deals with para 5 of the writ petition, the aforesaid facts have not been disputed. It has merely been stated that the statement made in para 5 of the writ petition are misconceived and irrelevant and some comments have been made on Annexure 2'. Therefore, relying on those facts, the petitioner has made out a case of irrevocable licence issued in its favour in 1947. 14. The learned Counsel also urged that even if the Indian Easement Act, 1882 is not applicable in West Bengal, the principles are applicable. The learned Counsel further submitted that, in the instant case, in the impugned order dated 8th October, 2001, the Railway authorities have not shown any reason for requirement of the land in question. The learned Counsel further submitted that by the order dated 8th October, 2001, the respondent authorities are purporting to revoke the licence and directing the petitioner-company to vacate the plot within 15 days. The learned Counsel further submitted that if the said notice is read as a whole, the same will show that the Railway authorities not only purported to revoke the licence, but also directed the petitioner-company to deliver peaceful and vacant possession of the said land within 15 days. The petitioner-company would have been evicted from the said place is clear from the fact that on 22nd October, 2001 i.e. with the immediate expiry of 15 days from 8th October, 2001, the Railway authorities armed with Police came to the petitioner's Cold Storage and demanded vacant possession forthwith. But the petitioner could not be evicted in view of filing of this writ petition on which an interim order was issued on 9th October, 2001 thereby restraining the Railway authorities from giving effect to the order dated 8th October, 2001. These facts have been brought on record in the affidavit-in-reply filed by, the petitioner. The learned Counsel also relied on various judgments in support of his contentions, which will be considered later. 15. These facts have been brought on record in the affidavit-in-reply filed by, the petitioner. The learned Counsel also relied on various judgments in support of his contentions, which will be considered later. 15. The learned Counsel for the Railway authorities, on the other hand, submitted that the writ petition is premature and not maintainable inasmuch as in the writ petition the notice dated 8th October, 2001 has been challenged but the same was passed pursuant to the leave granted to respondents vide order dated 30th June, 2000 in C.O. No. 3229(W) of 1985 and also vide order dated 28th March, 2001 in W.P. No. 4353(W) of 2000. The learned Counsel submits that since there is no appeal against those orders, the parties are bound by the direction given in those orders and the Railway Administration issued the notice. The learned Counsel submitted that as yet no notice has been issued by the Estate Officer under the Act. If such a notice is issued, the petitioner has a right to raise his objection before the concerned Estate Officer against the said notice and, thereafter, the Estate Officer mayor may not pass an order of eviction under section 5 of the said Act. The learned Counsel further submitted that an Estate Officer is a statutory body and is authorised to determine all questions which have been raised by the petitioner in this writ petition. The learned Counsel for the petitioner further submitted that if an order adverse to the interest of the petitioner is passed, under section 5 of the said Act, the petitioner shall have a right to appeal and such appeal shall be filed before a District Judge. But, the writ petition, at this stage, is wholly premature inasmuch as no such proceeding under the said Act has been initiated and only a notice has been issued directing revocation of licence. The learned Counsel of course urged that in the event a proceeding is initiated under the provisions of the said Act, the petitioner has adequate alternative remedy under the said Act and the filing of the writ petition by the petitioner at this stage is premature and misconceived. 16. The learned Counsel also submitted that the question of irrevocable licence has been raised for the first time before this Court and was not raised before. This plea is barred by principle of res judicata. 16. The learned Counsel also submitted that the question of irrevocable licence has been raised for the first time before this Court and was not raised before. This plea is barred by principle of res judicata. The learned Counsel also submitted that the eviction of the petitioner from the Railway land is for a public purpose, viz., reconstruction of the Sealdah Station and its development. In such matter, the Railway authorities should also proceed expeditiously in accordance with the leave granted by the Hon'ble Court. The 'learned Counsel urged that section 60 of the Indian Easement Act, 1882 is not applicable in the State of West Bengal. Apart from that since in the instant case, the land is covered under the Transfer of Property Act which is a statutory provision the equitable principles are not attracted. The learned Counsel further submitted that the petitioner is a monthly lessee under the provisions of the Transfer of Property Act and as a lessee, the petitioner is a tenant who can be evicted with 15 days notice. In this case, the petitioner has been given 15 days notice for the termination of the tenancy as a lessee. 17. The learned Counsel also submitted that the use of the word licence in notice or agreement is not enough to decide whether it is a lease or licence. The same depends on the facts and circumstances of the case and, in the instant case, the petitioner is a lessee on a monthly basis and is liable to be evicted under the provisions of the Transfer of Property Act. 18. These are the rival contentions of the parties. Before deciding any of issues raised by the parties, this court is of the opinion that it has first to decide whether the writ petition is premature or not since this goes to the root of the matter. From the tenor of the impugned order dated 8th October, 2001, it is clear that the said order clearly purports to revoke the licence of the petitioner-company. From the tenor of the impugned order dated 8th October, 2001, it is clear that the said order clearly purports to revoke the licence of the petitioner-company. Apart from that the said order also directs the petitioner to vacate the plot in question within 15 days and the consequences of failure on the part of the petitioner to vacate was also mentioned in the said notice namely that in the case of failure the administration will proceed in the matter in accordance with law for the purpose of evicting the petitioner. Therefore, there is a clear threat to evict the petitioner. From the disclosure made In the Affidavit-in-Reply, it appears that a letter dated 22nd October, 2001 was addressed by the petitioner-company to the Divisional Railway Manager, D.R.M. Building, Sealdah that in spite of communication of the court's order dated 19th October, 2001, on 22nd October, 2001 at 4-00 p.m. various officers of the Railway with a contingent of police force came to the Cold Storage and demanded immediate vacation of the premises by petitioner. The said fact, which was brought on record, has not been disputed by the Railway authorities. From the aforesaid fact it is clear if the interim protection was not granted by this Court, the petitioner would have been evicted from the plot of land in terms of the recital contained in page 2 of the impugned notice which is at page 78 of the writ petition. Therefore, this court finds that the impugned order is not merely one for revocation of licence, but, the same was also issued for evicting the petitioner and such threat of eviction contained in the impugned order was actually translated into practice by the respondents. Therefore, it cannot be said that the writ petition is premature. Thus court cannot accept the said objection of the Railways. 19. The next point urged by the respondent is that the petitioner is a monthly lessee and such lease can be terminated by issuance of notice under section 106 of the Transfer of Property Act. While arguing this case, it has been denied by the learned Counsel for the respondent that the petitioner-company is a licensee. It is difficult for this Court to accept the said contention. The consistent case of the respondent is that the petitioner is a licensee. While arguing this case, it has been denied by the learned Counsel for the respondent that the petitioner-company is a licensee. It is difficult for this Court to accept the said contention. The consistent case of the respondent is that the petitioner is a licensee. In fact, in the latest judgment of this Hon'ble Court between the same parties, Justice Barin Ghosh, learned Judge while delivering the judgment made it clear that the petitioner is a licensee. The learned Judge also recorded that previous attempt by the Railway Authorities to cancel the licence of the petitioner by order dated 29th September, 1979 failed. The learned Judge also held that subsequent thereto the licence of the petitioner was not revoked on any ground and on the contrary the licence fees at enhanced rate was accepted. It is because of this reason that the learned Judge held that the initiation of the proceeding under the said Act is without jurisdiction. The said finding of the learned Judge has become final between the parties and the respondents are admittedly proceeding on the basis of the leave granted under the said order. Therefore, while purporting to proceed under leave granted under the order dated 28th March, 2001, the respondents cannot urge that the findings made in the said order do not bind them. Any reasonable reading of the said judgment and order dated 28th March, 2001 makes it clear that the petitioner is a licensee. Admittedly, the respondents are bound by the findings recorded in that judgment and they are estopped from contending to the contrary. This is estoppel by matters of record which is the present day doctrine of estoppel 'per rem judicatum. 20. In the affidavit-in-opposition filed before this Court also the respondents have stated in para 20 "it is further reiterated that licence was granted to the petitioner No.1 by the then Bengal-Assam Railways without any execution of formal agreement". From para 4(b) of the said affidavit it also appears that the Railway Authorities issued in 1977 a notice upon the petitioner on the ground of non-payment of licence fees and for termination of licence. From para 4(b) of the said affidavit it also appears that the Railway Authorities issued in 1977 a notice upon the petitioner on the ground of non-payment of licence fees and for termination of licence. In para 13 of the said affidavit the stand is that revision of licence fees is a policy of the Railway Administration and every licensee is duty bound to pay the same along with arrears as per the existing terms and conditions of the licence and the petitioners also have consequently to pay the enhanced rate. There is a clear admission by the respondent in para 13 of the affidavit-in-opposition that the petitioner is a licensee. 21. This is the consistent stand of the Railways and no case is made out in the pleading that the petitioner is a lessee on a monthly basis. This Court is unable to accept the contention of the respondents that the petitioner is not a licensee. Apart from that from Annexure 'P-l' it also appears that the petitioner was treated as a proposed' licensee by the Chief Commercial Manager. Thereafter, in 1979 another letter was addressed to the petitioner by the Divisional Superintendent, Sealdah, claiming only licence fees. The learned Counsel for the respondents cannot jettison their case and contend from the bar that the petitioner is a lessee. It is well known that when a positive case has been made out in the pleading, the party cannot give up the said case before the Court at time of argument and make out a new case which is not based on the pleading between the parties. Reference in this connection be made in the judgment of the Privy Council in the case of Siddique Md. Shah vs. Mummad Saran and Ors., reported in AIR 1932 Privy Council 57. Speaking for the Judicial Committee Vi count Dunedin stated when a claim was not made in the defence no amount of evidence can be considered on that plea which was never put forward. Similar principles have been reiterated in the case of Ramswarup Gupta vs. Inter College and Ors., reported in AIR 1987 SC 1242 . The learned Judges of Hon'ble Supreme Court held that in the absence of pleading evidence if any produced by the parties cannot be considered and no party should be permitted to travel beyond its pleading. Similar principles have been reiterated in the case of Ramswarup Gupta vs. Inter College and Ors., reported in AIR 1987 SC 1242 . The learned Judges of Hon'ble Supreme Court held that in the absence of pleading evidence if any produced by the parties cannot be considered and no party should be permitted to travel beyond its pleading. In the instant case, both the pleadings in the affidavit-in-opposition and the supporting annexure show that the respondents have always treated the petitioners as licensee. 22. Therefore, the Court cannot permit the Railways to give up its consistent case and adopt a new case. 23. The question which now crops up is whether the licence of the petitioner is revocable or not and whether in the name of development of Sealdah Station, the petitioners licence can be revoked. Along with this question is connected the question of applicability of the principles of Easement Act in West Bengal. 24. The question of revocation of licence is governed by the provision of section 60 of Easement Act. Under section 60 of the Easement Act, it is made clear that the licence may be revoked by the grantor unless it is coupled with a transfer of property and such transfer is in force. Clause (b) of section 60 further provides where the licensee acting upon the licence has executed work of permanent nature and incurred expenses in the execution, such a licence is not revocable by the grantor. Therefore, in order to make a licence irrevocable three conditions are required. (1) Licensee relying on the licence has executed work of permanent nature. (2) The said work of permanent nature has been done by acting upon the licence. (3) The licensee has incurred expenditure in the execution of the work of permanent nature. 25. In the instant case, it is not in dispute that the petitioner as a licensee has constructed structure of permanent nature at its own cost and this has been done with the consent and approval of the grantor. This principles under section 60(b) of the Easement Act has received judicial as well as statutory recognition in India and the learned Counsel for the petitioner-company has relied on certain decisions on this aspect of matter. 26. This principles under section 60(b) of the Easement Act has received judicial as well as statutory recognition in India and the learned Counsel for the petitioner-company has relied on certain decisions on this aspect of matter. 26. For the purpose of contending that under section 60(b) of Easement Act such a licensee is irrevocable, the learned Judges in the case of Ramswarup (supra) discussed the principles of section 60(b) of Easement Act in para 12 of the judgment. Following those principles in the facts of this case, there is no doubt that the licence granted in the instant case is irrevocable. The learned Counsel for the petitioner also placed reliance on the same proposition reiterated in the Single Bengh judgment in the case of M.F. De Souza vs. Children's Education Uplift Society, reported in AIR 1959 Bombay 533. In the said judgment the learned Judges referred to a passage in Corpus Juris Secundum which I hereby quote: " As a general rule a mere license, that is, one which is merely a personal privilege not coupled with an interest in the land, may be revoked by the licensor at any time, at his pleasure. This rule generally applies regardless of how long the use of confer a continuing right, and even though the license was created by a deed or other written in its modifications and exceptions, and does not apply whether the license is coupled with or partakes of the character of an casement and the rights under it are affirmatively and definitely fixed and settled, or where it constitutes part of a contract between the parties...." 27. Reliance was also placed by the learned Counsel for the petitioner in the case of Gopalan Nair vs. Theui Amma Thankamma and Anr., reported in AIR 1969 Kerala 23. 28. Now the question is whether those principles are applicable to West Bengal. On this aspect of the matter the learned Counsel for the petitioner has submitted that Indian Easement Act, 1882 then not attracted to State of West Bengal but the principles do apply. On this aspect the learned Counsel for the petitioner relied on an old Calcutta decision in the case of Baroda Prosad Pal & Anr. vs. Asutosh Pal & Ors., reported in AIR 1941 Calcutta 289. On this aspect the learned Counsel for the petitioner relied on an old Calcutta decision in the case of Baroda Prosad Pal & Anr. vs. Asutosh Pal & Ors., reported in AIR 1941 Calcutta 289. At page 290 of the said judgment the learned Judge observed that the Easement Act does not apply to the province of Bengal but the principles underlying the Act are made applicable in deciding the questions regarding the right of easement. The learned Judge also held that the principles underlying the section are general principles and there is no reason why they should not be applied in Bengal. 29. Reliance was also placed on a subsequent judgment of Calcutta High Court in the case of Bhupati Bhusan Mondal & Ors. vs. Jddunath Ghosal & Ors., reported in AIR 1955 Calcutta 70. The same view has also been taken by the Calcutta High Court subsequently in the case of Phatik Lal Pal vs. Sujit Das, reported in 1978(2) CW 270 and this was also repeated by Division Bench of Calcutta High Court in the judgment in the case of Baidyanath Dutta & Ors. vs. Radheshyam Dutta, reported in AIR 1979 Calcutta 97. [see para 12] 30. Reliance was also placed in the case of Single Bench judgment of Calcutta High Court in the case of P. Bhaskaran vs. Indian Iron & Steel Co. Ltd. & Ors., reported in 71 CWN 302. The learned Counsel summed up the legal position by saying that licence as a general rule is revocable at the will of the grantor. But if the licensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution, the licence becomes irrevocable. 31. The learned Counsel for the respondent, however, relied on Supreme Court judgment in the case of I.B.M. Lall (deed) vs. M/s. Dunlop Rubber Co. (India) Ltd. & Anr., reported in AIR 1968 SC 175 , for the purpose of contending that whether a particular agreement is a lease or licence has to be ascertained from the substance and not from the label which the parties choose to put upon the transaction. Such label though relevant, is not decisive. In the said judgment the learned Judges made a distinction between a lease and licence by saying that a license is merely a privilege to do something on the premises which otherwise would be unlawful. Such label though relevant, is not decisive. In the said judgment the learned Judges made a distinction between a lease and licence by saying that a license is merely a privilege to do something on the premises which otherwise would be unlawful. Whereas lease is a transfer of right to the land to enjoy the premises. Those propositions laid down by Supreme Court are all settled propositions but in the facts of this case, they are not applicable. For the reasons discussed above, it is clear that the respondents have always treated the petitioner as licensee and the judgment of this court has also treated the relationship between the petitioner and the railway authorities as one of the licensee and licensor and the respondents are bound by the said judgment. Therefore, they cannot now contend to the contrary. 32. In support of the contention that the transaction in this question between the parties is one of is a lease and not licence, the learned Counsel for the respondents also relied on the Full Bench judgment in the case of Burmah Shell Oil Storage and Distributing Co. Ltd. of India. In re: reported in AIR 1933 Allahabad 735. In that case there was an agreement between the Secretary of State on behalf of the Railway Company and the Oil Company for temporary use and occupation of piece of land at Roorkee on a monthly rent. Under the agreement, the Oil Company was to construct a building and to supply detailed plans and specifications to the railway authorities for approval. The company was further bound to allow the authorised officer of the railway administration free access at all times to the said land and to the petroleum, instalation and was bound whenever so requested by such officer, to rebuild, replace or repair buildings' and other works. The railway administration had the power to determine and cancel the license upon seven clear days' written notice if company was guilty of breach of any condition. On the determination of the said agreement by the railway authorities it was held that the document was a lease. The aforesaid findings were arrived at in the context of the provisions of section 2(16) of the Stamp Act and the learned Judges held that the definition of lease under the Stamp Act is wider than the definition under section 105 of the Transfer of Property Act. The aforesaid findings were arrived at in the context of the provisions of section 2(16) of the Stamp Act and the learned Judges held that the definition of lease under the Stamp Act is wider than the definition under section 105 of the Transfer of Property Act. However, those questions which were discussed in the Burmah Shell Oil Storage (supra) are not relevant here. Here the respondent has not proved the agreement between the parties. Their case is that there is no formal agreement. Since there is no formal agreement as in the case of Burmah Shell Oil Storage (supra) the ratio in that said case is not relevant. Apart from that the question which was considered in the Burmah Shell Oil Storage (supra) was totally different. Here it is the consistent case of the railway authorities that the petitioners are licensees. 33. The learned Counsel for the respondent also relied on the Supreme Court judgment in the case of Associated Hotels of India Ltd. vs. R.N. Kapoor, reported in AIR 1959 SC 1262 . In that case also the learned Judges of the Supreme Court held that where the question is whether the document is lease or licence, it is the substance of the document which must be preferred to the form and the real test is the intention of the parties. In the instant case, no document has been produced. Therefore, this Court is not called upon to decide the nature of the document. In this case the court is considering the stand which has been taken by the respondents. The consistent stand is that the petitioner is a licensee. Therefore, new case cannot be made out by the respondents which was not made out by the respondent at any time before or even in the pleadings in the instant case. 34. The learned Counsel also wanted to establish that the agreement between the parties is not a licence but lease in view of the provision of section 111 of the Transfer of Property Act. In support of the said contention, the learned Counsel relied on a judgment of the Supreme Court in the case of Jagat Ram Sethi vs. Raj Bahadur D.D. Jain & Ors., reported in AIR 1972 SC 1727 . In support of the said contention, the learned Counsel relied on a judgment of the Supreme Court in the case of Jagat Ram Sethi vs. Raj Bahadur D.D. Jain & Ors., reported in AIR 1972 SC 1727 . In para 7 of the said judgment the learned Judges held that there is no provision in the Transfer of Property Act which debarred the lessor from determining the lease under section 111 merely because constructions had been made by the lessee even to the knowledge of the lessor, and from instituting the suit for ejectment. In the instant case, this Court cannot accept the stand of the respondents that the petitioner is a lessee. Apart from that here the railway authorities have not filed any suit but they are proceeding on the basis that after the termination of licence the petitioner is an unauthorised occupant and therefore, they have initiated proceedings under Public Premises (Eviction of Unauthorised Occupants) Act, 1971. 35. This Court is in respectful with the principles in Jagat Ram Sethi (supra) but they cannot be applied to the facts of the present case. 36. The learned Counsel for the respondent also relied on the Constitution Bench decision of the Supreme Court in the case of Ashoka Marketing Ltd. & Anr. vs. Punjab National Bank & Ors., reported in AIR 1991 SC 855 . The learned Judges considered the definition of unauthorised occupants given under section 2(g) of the said Act in para 30 of the said judgment. Considering the said definition, the learned Judges held that under the said definition a person who has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law will also be considered an unauthorised occupants. It has already been made clear by this Court that this Court cannot accept that the relationship between the petitioner and the respondents is one of lessor and lessee. Therefore, said principle laid down in para 30 of the said judgment are not attracted to the facts of this case. 37. The learned Counsel for the respondent also relied on a decision of Calcutta High Court in the case of M/s. Accounting & Secretarial Services Pvt. Ltd. & Anr. vs. Union of India & Anr., reported in AIR 1993 Calcutta 102. 37. The learned Counsel for the respondent also relied on a decision of Calcutta High Court in the case of M/s. Accounting & Secretarial Services Pvt. Ltd. & Anr. vs. Union of India & Anr., reported in AIR 1993 Calcutta 102. The learned Counsel relied on the said judgment for the purpose of canvassing the proposition that notice terminating the tenancy has to read as a whole for ascertaining the reason behind the notice. There is no dispute with the said proposition but in the instant case in the notice under challenge, it is clearly stated that the said notice is for the determination of licence of the petitioner which is consistent with the case of the respondent authorities throughout. There is no scope for arriving at a different intention. 38. Therefore, considering all these aspects this Court has to come to the conclusion that the petitioners are licensees and as licensees they have made the permanent construction of Cold Storage on the land in question and the constructions were made at their own cost on the basis of a plan which is approved by the railway authorities. 39. This being the position the licence becomes an irrevocable licence. But one thing is clear that the Easement Act is not applicable to West Bengal. What are applicable are the broad principles. Therefore, in such a situation, what will be the position? This question has been answered by Sir Asutosh Mookherjee, speaking for the Division Bench in the case of Moti Lal Rai vs. Kalu Mondar, reported in 19 CLJ 321. The learned Judge without referring to the principles of Easement Act held that a licence which is coupled with a grant is consequently irrevocable, or where a licensee on the faith a licence has permanent works, executed such licence can be revoked only upon payment of compensation to the licensee. The learned Counsel for the respondent pointed out that in this judgment the previous judgment of the Calcutta High Court in Miclor vs. Watkins, reported in 12 CLJ 443, has been approved. However, from the principles decided by the Calcutta High Court in Moti Lal (supra) it is clear that where a licensee has executed works of a permanent nature with the consent of the licensor, such licence can be revoked only upon payment of compensation to the licensee. However, from the principles decided by the Calcutta High Court in Moti Lal (supra) it is clear that where a licensee has executed works of a permanent nature with the consent of the licensor, such licence can be revoked only upon payment of compensation to the licensee. Here in the instant case, no such attempt has been made by the respondent authorities and as such, the impugned notice cannot be sustained. 40. This court also finds that the stand of the respondents that the removal of the Cold Storage is necessary for the modernisation of Sealdah Station has also not been properly established on facts in this case. It may be noted here that in the judgment of Hon'ble Judge dated 28th March, 2001, it has been recorded that one Mr. Pal who was hearing the matter on behalf of the railways in connection with the enquiry for eviction under the said Act has stated that he was not aware of any requirement by the railways of the land in question on which stands the Cold Storage. It is also on record that though Mr. Pal heard the matter, he did not pass the impugned. These facts are on record and not disputed by the Railways. In the affidavit-in-opposition filed before this Court in this proceeding the stand of the respondent authorities is that the land on which the existing Cold Storage is situated is required to be converted into G.R.P Barrack Office by dismantling the Cold Storage. This is required to cater to the needs of greater interest of the public. This has been stated in para 21 of the affidavit-in-opposition. A plan has also been annexed to the affidavit in-opposition which shows that the Cold Storage is situated near the Beliaghata Diesel Shed which appears to be out of the main Station Complex. 41. The learned Judge in his judgment dated 28.03.01 also observed that the existence of the Cold Storage is also in the public interest as it caters to the nose to the public. 42. It is not very clear before this Court whether without removing the Cold Storage the plan of modernisation of the Sealdah Station cannot be achieved. In fact, no such clear case has been made out by the railway authorities in the affidavit-in-opposition filed before this Court. 42. It is not very clear before this Court whether without removing the Cold Storage the plan of modernisation of the Sealdah Station cannot be achieved. In fact, no such clear case has been made out by the railway authorities in the affidavit-in-opposition filed before this Court. Some averments have been made in para 4(d) of the affidavit-in-opposition but those averments in 4(d) are very casually made without any particulars and without disclosing any record or material in support of the same. The Court has to bear in mind what is in public interest and what-is of interest to public. Then there is the further question whether in the name of public interest, the respondents are seeking to get rid of the existing Cold Storage which is there since 1947. Of course decision of this question is covered by disputed questions of facts and the Court does not arrive at any definite finding on this score. But this Court merely observes that no clear cut case on behalf of the railways has been made out. 43. In that. view of the matter and having regard to the case made out in the pleading this Court is unable to sustain the pleas of railways that unless the Cold Storage is removed the up coming project of modern is at ion of the Sealdah Station cannot be completed. Even if these pleas are true, the Railways must proceed according to laws. But they have not proceeded according to law in the instant case. 44. For the reasons aforesaid, this Court is of the opinion that irrevocable licence granted in favour of the petitioner cannot be revoked without payment of compensation. So the impugned order which purports to revoke it without any payment of compensation is bad in law and is quashed. 45. There will be, however, no order as to costs. LATER: Urgent xeorx certified copy of this judgment be given to the learned Advocate for the parties, if applied for. Writ petition disposed of.