MOTSONS Versus TRUSTEES OF THE PORT OF KARACHI

1. In these two Revision Applications the questions of fact as well as law are similar. Therefore, I intend to dispose them of by a single judgment.

2. In both the Revision Applications, each of the applicants was given compartment in the Port Trust area by the respondent for use as bonded ware‑house, for storing imported goods before the clearance by the Customs, on payment of certain monthly licence fee/rent specified in the licence issued in the name of each of the applicants. The respondent issued a notice to each of the applicants separately under section 3 of Port Authorities Lands and Building (Recovery of Possession) Ordinance, 1962, to vacate the said premises in their respective possession within one week, failing which the same would be taken over at their risk and cost under the provisions of the said Ordinance. Under this notice the applicants were also intimated, that necessary orders had been issued to stop incoming cargo in their respective compartments, so that, a minimum stock is left in the compartments in order to enable them to vacate the same within this notice period.

3. Both the applicants claiming to be tenants of the respondent filed separate suits in the Civil Court for injunction praying, that the respondents and their employees be permanently restrained from taking any action under the said notice or to stop incoming, outgoing stores from the ware‑houses in their respective possession. The applicants also moved applications under Order XXXIX, Rules 1 and 2 C.P.C. for issue of injunction to the above effect pending the disposal of the suits. The learned Civil Judge in Civil Suit No.4258 of 1983, holding the applicant in R.A. No.114 of 1985 to be licensee and not lessee, rejected the application of the applicant under Order XXXIX, Rules 1 and 2, C.P.C. His appeal was also dismissed by the learned Additional Sessions Judge. However, the application under Order XXXIX, Rules 1 and 2, C.P.C. of applicant in R.A. No. 126 of 1985 was allowed by the learned Civil Judge in Civil Suit No. 2519 of 1983. In appeal the learned Additional District and Sessions Judge, set aside this order. Hence these Revision Applications.

4. The main controversy between the parties appears to be as to whether the applicants are licensees or lessees of the respondent? Lease has been defined in section 105 of the Transfer of Property Act, as under:‑‑

5. "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 crop service or any other thing of value, to be rendered periodically or on specified occasions to the transfer by the transferee, who accepts the transfer on such terms."

6. Licence is defined in section 52 of Easements Act of 1882 as a right to do or to continue to do in or upon immovable property of the grantor something which would in absence of such right be unlawful and such right does not amount to an easement or an interest in the property.

7. It will ha seen _ that there is a thin difference between a1 lease and a licence. The only difference is, that a licence does not create any estate or interest in the property to which it relates. The question to be considered while determining, whether the transaction is lease or licence is the intention of the parties, which can be gathered on true construction of the agreement and not merely from the description given by the parties. If the agreement only gives the use of the property in a particular manner or on certain terms, while it remains in possession and control of the owner, it will be a, licence.

8. In both the suits the agreement under which the applicants were given the right to use the premises question has been produced. It bears the heading 'Conditions of Temporary Licence', it shows the number of compartments of the bonded ware‑house and the name of the party to which it has been allotted. It also 'mentions the amount payable as licence fee per month to be paid in advance by the first of every calendar month. Condition No. 5 provides, "the premises are subject to one week's notice to vacate on either side. If the licensee will fail or neglect to hand Aver possession of the premises after the termination or expiry of licence the K .P . T . will be at liberty to evict the licensee summarily without recourse to any course of law. "

9. Here it may be pointed, that in both the suits there is no prayer for declaration, that the applicants are lessees or the tenants of the respondents or for declaration, that notices were illegal. The suits are only for permanent injunction. Therefore, the Court has to R consider as to whether in view of this admitted agreement between the parties it was a fit case for issuance of temporary injunction. For the purpose of that decision, the consideration, whether the applicants are licensees or lessees is incidental.

10. It is contended, that under the agreement the applicants have been given exclusive possession of their respective compartments, and as such, this agreement has to be considered as lease agreement as there is transfer of interest in the property, viz. the compartments. In alternative, it is contended, that even if the agreement is held to be licence, still it is irrevocable licence under clauses (a) and (b) of section 60 of the Easements Act, as licence is coupled with the transfer ‑of property and the applicants acting upon licence had executed work of permanent character and incurred expenses by making alterations and additions in the compartments. We need not to go deep into the question as to whether the applicants are lessees or licensees of the respondents or whether the licence is revocable or is hit by clauses (a) and (b) of section 60. The respondents have taken action and propose to take further action under the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962, hereinafter called the Ordinance. The notice was issued by the respondents to the applicants for eviction under section 3 of this Ordinance. The lease is defined in clause (d) of section 2 of Ordinance as under:‑‑

11. 'Lease' has the same meaning as in the Transfer of Property Act, 1882 (IV of 1881), and includes an allotment; and "lessee", which includes his heirs, assigns, legal representatives and all persons inducted by him into the demised land, shall be construed accordingly:"

12. Allotment is defined in sub‑clause (e) of this section to mean as under:‑‑

13. "'Allotment' means permission to occupy temporarily any premises either free of rent or on an agreed rental, without conferring any right or interest in respect thereof on the person to whom such permission has been granted."

14. Thus, it will be seen, that definition of allotment in the Ordinance is similar to the definition of licence under section 52 of the Easements Act, and the definition of the lease is wider than the definition of the lease in the Transfer of Property Act. The lease under the Ordinance not only includes regular lease, but also licence. It is, therefore, for the purpose of action under this Ordinance, not material whether the agreement between the parties constitutes lease or licence. Section 3 provides for eviction of the lessee. It reads as under:‑‑

15. "Eviction of outgoing lessees and unauthorized occupants from land. (1) If, on the expiry, whether before or after the commencement of Ordinance, of the period of any lease in respect of any land or building of which a Port Authority is the lessor, or on the determination of such lease on the ground of breach of any covenant or in pursuance of a condition in the lease imposing any obligation on the lessee to give up possession of the demised land or building in the event of such land or building being required for the purpose of a Port Authority, the lessee refused or failed, or refuses or fails to vacate and deliver vacant possession of such land or building to the Port Authority, then, notwithstanding anything contained in any other law for the time being in force or in any contract, such Port Authority may, by notice in writing, require such lessee to vacate and deliver vacant possession of such land or building, and to remove structures, if any, erected or built thereon by him, within such time as may be specified in the notice.

(2) If the Port Authority is satisfied, after making such enquiry as it may think fit, that a person is an unauthorized occupant of any land or building it may by notice in writing require such person to vacate such land or building and deliver vacant possession thereof to it, and to remove structures, if any, created or built thereon by him, within such time as may be specified in the notice.

(3) If any person to whom a notice is issued under subsection (1) or subsection (2):

(a) fails to comply with the notice, the Port Authority shall make a complaint in writing to that effect to the Authorized Officer or

(b) vacates the land or building, but does not remove the structures thereon, the Port Authority may take possession of such land or building and demolish such structures."

16. When the complaint is lodged under section 3 before the authorised officer, section 4 lays down the procedure for the proceedings before the authorised officer. Section 5 provides for appeal against the order of authorized officer. Section 9 bars the jurisdiction of the Court to question anything done under this Ordinance by or at the instance of a Port Authority, or to grant an injunction, or to make any. other order, in relation to any notice or complaint issued or made by a Port Authority under this Ordinance, or in relation to any proceeding before an authorized officer.

17. The applicant in Revision Application No. 114 of 1985 in his plaint does not seek any relief against the order of issuance of notice or any action under this Ordinance. He only prays for declaration, that he is entitled to use of the premises till he is evicted from the said premises under process of law and injunction to this effect. However, the applicant in Revision Application No. 126 of 1985 prays in the plaint for injunction against respondent from taking any action under the said notice or stop incoming and outgoing cargo to and from the warehouse. However, it may be noted, that in both, the suits, there is no prayer for declaration of notice to be illegal or ultra vires or for cancellation of the notice.

18. It has already been pointed, that for the eviction of the applicants the respondents propose to take action under the Ordinance, and they have made their intention clear by issuing notice under section 3 of the Ordinance. This Ordinance being a special law and later in time would override the provisions of Transfer of Property Act and Easements Act with regard to the determination of lease or C revocation of licence or the mode of eviction of the lessee or licensee. However, the respondents are bound strictly to follow the procedure laid down in this Ordinance.

19. The applicants in these applications are admittedly lessees as defined in the Ordinance, and therefore, the notice issued by the respondent would be deemed to have been issued under subsection (1) of section 3 of the Ordinance. In this subsection, the use of words "notwithstanding anything contained in any other law for the time being in force, or in any contract" clearly indicates, that the provisions of. this Ordinance have got overriding effect, even over the terms of contract or the temporary licence issued to the applicants by the respondents. This notice can be divided into two parts. In the first part, as required under subsection (1) of section 3, the respondent has,‑ for the reasons shown in the notice, called upon the applicants to vacate and deliver the vacant possession of the premises in question within the time specified therein. In the second part of the notice, the applicants have been intimated, that the orders have been issued to stop the incoming cargo in the premises in question. This part of notice is neither under any provisions of the Ordinance nor it is in accordance with any term of the licence. The contention of the applicants is that they have right to be proceeded against for eviction under the Ordinance, and that till they are ejected under the Ordinance, they cannot be restrained from enjoying the possession and use of the premises as they are paying and have to pay rent till their eviction or till the possession is taken from them in accordance with the provisions of the Ordinance.

20. The main contention, that weighed with the learned appellate Court, while refusing to grant temporary injunction to the applicant was, that the contract between the parties was a licence and therefore, it was not enforceable contract under section 21 of the Specific Relief

21. Act and consequently, injunction could not be granted in view of clause (f) of section 56 of the Specific Relief Act, which lays down "Injunction cannot be granted to prevent the breach of contract the performance of which would not be specifically enforced." The' mere fact, that the contract between the parties is described as licence would not necessarily prove, that it is a licence. I have already pointed above, that the applicants contend, that the contract was a lease as there was transfer of interest in the premises to the applicants, who were given exclusive possession of the same, and further, that in alternative,, it was an irrevocable contract under section 60 of the Easement Act. However, this question can be determined by the trial Court after parties have laid evidence but at present it cannot be considered, that the applicants have no arguable case. Section 9 of the Ordinance bars the jurisdiction of the Court to call in question, that part of notice, which is in accordance with the provisions of the Ordinance or for issuance of injunction from taking any further action under the Ordinance. As already pointed out the second part of the notice is neither in accordance with the provisions of Ordinance, so that, it can come within the ambit of section 9 of the Ordinance, nor it .is in accordance with any terms of the contract. The Ordinance authorises the respondent to evict the applicants, but at the same time it confers certain rights upon the applicants also. One of the such rights is right of appeal. The other right is, that they are to be dealt with in accordance with the provisions of this Ordinance. Their assertion, that till ejected in accordance with this Ordinance, they have the right to use the premises in question cannot be summarily. rejected. They are using the premises for the purpose of business and it cannot be disputed, that if denied this right they would suffer loss, which cannot be exactly assessed in the terms of money, and as such can be considered as irreparable loss. If the injunction is refused more inconvenience will be caused to the applicants rather than to the respondents, who will not get any benefit by stopping the applicant's incoming or outgoing cargo, unless they got the possession of the premises in accordance with the provisions or the Ordinance. Thus, the balance of convenience also can be said to be in favour of the applicants. As such the applicants have been able to make out prima facie case for issuance of temporary injunction.

22. The learned Appellate Court had failed to exercise the discretion under Order XXXIX by erroneously holding rather prematurely, that the contract was a licence, and, therefore, no injunction could be issued in view of the clause (f) of section 56 of the Specific Relief Act. As already pointed, this issue could be decided by the trial Court at the time of final decision and the applicants have an arguable case with regard to their contentions, that the contract was a lease or in alternative an irrevocable licence. In view of the above discussions, I set aside the impugned orders of the learned Appellate Court and order, that the temporary injunction be issued restraining the respondents from interfering with the use by the applicants of their respective compartments and from stopping their incoming or outgoing cargo. However, this injunction would not prevent the respondents from proceeding against the applicants for their eviction under the provisions of the Ordinance. As a matter of fact, it is not understood, why respondents slept over their remedy under Ordinance by not proceedings further under the relevant provisions of the Ordinance. It is for them to decide whether to take further action under the Ordinance or not. However, they can't be allowed to use coercive measures for eviction of the applicants by circumventing the procedure laid down in the Ordinance which has specifically been enacted for the benefit of the respondents.

23. The Revision Applications were disposed of by a short order, dated 22‑4‑1987. The above are the reasons in support of the said order.

24. H. B.T./M‑363/K Order accordingly.