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2017 DIGILAW 406 (DEL)

HEMANT KUMAR v. UNION OF INDIA

2017-02-02

VALMIKI J.MEHTA

body2017
JUDGMENT : VALMIKI J. MEHTA, J. 1. Petitioner is an employee of the respondent no.2/Oil and Natural Gas Corporation (ONGC). Petitioner in the course of his employment was allotted by the employer the premises being Flat no. B-26, 7th Floor, ONGC Housing Complex, Sector-39, Noida-201301. 2. Admittedly, the petitioner’s license with respect to the flat was cancelled on account of the petitioner being transferred by the employer to Mumbai region, Uran Finance, Uran Plant, Navi Mumbai. The revised transfer order in this regard is dated 22.5.2015. Petitioner submitted a surrender letter of the licenced premises to the employer on 29.5.2015 without actually handing over the possession, because as per the case of the petitioner his estranged wife was living in the premises and he has no control over his estranged wife who is refusing to hand over possession of the premises to him or to the employer directly. 3. The limited issue which is called for decision in the present writ petition is that can a licencee claim that he will not continue to pay licence fee by surrendering nominal possession only but not actual physical possession on the ground that one of his family members is refusing to vacate the licenced flat. I have repeatedly put a query to the counsel for the petitioner to show me any law or any rule of the employer/organization that surrendering of nominal possession is enough and that the licencee/employee thereafter is not liable to pay the licence fee, but obviously since there is no such law or any rule or provision of the employer/organization, the same could not be pointed out to this Court. In the opinion of this Court also such a stand of an employee, if accepted, would result in an employer without any fault of its own being subjected to the disadvantage that neither it would be able to recover possession of the licenced premises belonging to the employer but further that employee will not be liable to pay any licence fee or illegal occupation charges although physical vacant possession is not surrendered, simply on the ground that one family member of the licencee is occupying the premises and refusing to vacate. This Court would not subscribe to such a view which will result in causing such disadvantage to the employer. 4. The wife of the petitioner Ms. This Court would not subscribe to such a view which will result in causing such disadvantage to the employer. 4. The wife of the petitioner Ms. Sakshi is present in the Court and I have put a specific query to her that whether she wants some reasonable time to vacate the premises, of course not exceeding a month or two, inasmuch as the licence has expired way back in May, 2015 but Ms. Sakshi says that her lawyer will come and answer the query of the Court. In a case such as the present where no legal rights whatsoever of the wife is found so as to occupy the licenced flat of the employer, and anyone who occupies a premises under a licencee will surely be bound by the terms imposed upon the main licencee being the petitioner-husband in this case i.e the person who claims under the licencee cannot claim any rights beyond the rights of the main licencee, and therefore, such a person under the licencee has to necessarily vacate on the licence of the main licencee coming to an end. 5. It is now settled law in view of Full Bench judgment of this Court in the case of Chandu lal Vs. Municipal Corporation of Delhi, AIR 1978 Delhi 174 that once a licencee is always a licencee and in case a licencee after expiry of the licenced period refuses to vacate the premises, then the licencor can use reasonable force to throw out a licencee. Throwing out a licencee means throwing out not only the licencee but all persons who claim through the licencee. The position in law is that a licencee is never in legal possession of a licenced premises because a licencee only has a right of ingress and egress to the licenced premises and consequently on the licence being terminated the licencee can no longer enter the licenced premises. The relevant para of the judgment in the case of Chandu lal (supra) reads as under:- 26. The relevant para of the judgment in the case of Chandu lal (supra) reads as under:- 26. There is a catena of authorities in support of the proposition that in the case of a license there is something less than a right to enjoy the property in the licensee; it cannot be exercised by servants and agents and is terminable while on the other hand, in the case of a lease, there is a transfer to a right to enjoy the property or in other words the lessee is entitled to enjoy the property. A bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an Interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain this right. He is entitled to resist in defense of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser. If, however, the licensor uses excessive force, he may make himself liable to be punished under a prosecution, but he will Infringe no right of the licensee, No doubt a person in exclusive possession of the property is prima facie to be considered to be a tenant, nevertheless he would not be held to be so if the circumstances negative any intention to create a tenancy. (underlining added) 6. In view of the above, this writ petition is based on no legal cause of action inasmuch as there is no law or rule of the employer/organization by which the lincence or charges for use and occupation fee cease to be paid merely on handing over of nominal possession without handing over actual vacant physical possession. Petitioner will be liable therefore to pay licence fee or any other charges payable to the employer as per its rules to the respondent no.2 till actual physical possession of the licenced premises is received back by the employer/respondent no.2. Petitioner will be liable therefore to pay licence fee or any other charges payable to the employer as per its rules to the respondent no.2 till actual physical possession of the licenced premises is received back by the employer/respondent no.2. In view of the facts of the present case I further direct that wife of petitioner Ms. Sakshi will be given a notice of one month from today to vacate the licenced premises inasmuch as Ms. Sakshi has already had more than around one and half years time to vacate the premises which has not been vacated, and after expiry of one month from today, the respondents along with petitioner can approach the concerned police authorities who will provide police assistance, and the respondents will not use more than reasonable force than which is necessary so that the licenced premises being Flat no.B-26, 7th Floor, ONGC Housing Complex, Sector-39, Noida-201301 are got vacated by the respondent no.2 and actual physical vacant possession thereof is received by respondent no.2 from whoever is in possession of the aforesaid licenced premises. 7. Writ petition is disposed of in terms of aforesaid observations.