PDA

View Full Version : Execution of works of a permanent character



vustudents
05-04-2012, 05:43 PM
Execution of works of a permanent character


When a licensee acting upon the license his executed a work of a permanent character, and incurred expenses in its execution, the license becomes irrevocable. The law embodied in this clause is based on sound principles of justice and equity. This rule is meant to avoid the injustice which would be inflicted upon the licensee, if after he had laid out money in works of a permanent character, the licensor terminated his license. Therefore, before it is successfully pleaded that a license is irrevocable under section 60, clause (b), it must be show that the licensee has acted upon the license, executed a work of a permanent character, and incurred expenses thereon. Whether a particular work is a work of a permanent character and whether the licensee has incurred expenses therein, are question of fact.
(1) Acting upon the license: To attract the application of clause (b) it is necessary that the work of a permanent character must be executed in pursuance of the license. The license must itself contain a term for the execution of the work. If the work is carried out independently of the terms of the license, the license, will not be irrevocable under clause(b). The words “acting upon the license” used in section 60, sub-clause (b) of the act mean “acting upon a right granted to do, upon the land of the grantor, something which would be unlawful in the absence of such a right. ILR (1969) 1 All. 657. A person would be “acting upon the license” within section 60 (b) only when he executes a work of a permanent character upon the land of licensor and not when he executes a work of a permanent character on his own land. AIR 1975 Pat. 17. Where the licensor never consented to the raising of the constructions, his mere silence when the building was raised does not make the license irrevocable under clause(b). In a suit for eviction on the ground that the defendant a licensee of the disputed property under the plaintiff the defence inter alia was that the defendant had erected valuable constructions cost and he could not be evicted there from. Held, it is true that the defendant has erected some pucca structures and has spent some money for the same, but it is hardly a proper inference to hold that the same was done by him acting on the license, granted by the plaintiff or his predecessor. In this view even the principle underlying section 60 of the easements act, would not apply as the statute requires such acts on the parts of the licensee, acting on the license. From this standpoint the defendant would not be entitled even to compensation. AIR 1967 Cal 204. A person would be “acting upon the license’ within section 60 (b) only when he executes a work of a permanent character upon the lead of the licensor and not when he executes a work of a permanent character on his own land. AIR 1975 Pat 17. Where the licensor never consented to the raising of the constructions, his mere silence when the building was raised dose not make the license irrevocable under clause (b). 1990 (6) ALR 111. In AIR 1975 All 373, it was held: When the licensee acting upon a license has executed a work of permanent character and incurred expenses in the execution the license cannot be revoked by the by the grantor. The man who stands by and allows another person to build on his land, in the belief that he has power or authority to do so, and incurs expenses in such building, cannot turn round and claim the removal of such building on the ground that the latter has no authority to build. He is estopped by his conduct from adopting that course and the law will presume an authority from him is such cases. Since acting on the agreement the defendant made costly constructions of permanent nature, the license had become irrevocable..
(2) Executed work of a permanent character: The word “of a permanent character” speak of a clear connotation of the words “executing the work” in the context of the execution of work, would mean putting up some permanent structures in the premises, for example, a bathroom or a loft of permanent duration or some such things. The word “work”, therefore, is to be necessarily interpreted to have connection with the construction of some structure on the land and brining of some additional moveable assets for the purpose of running a business of hotel, cannot be said to be execution of work of a permanent character. AIR 1080 Guj. 41. Whether the building is a work of a permanent character depends on the nature of the building and not on the intention of the person additional moveable assets for the purpose occupying it. AIR 1926 All. 714. What is not of temporary nature must be treated as work of a permanent character. AIR 1981 Ker. 233. Where a license is granted to erect a cinema theatre on the land and licensee constructed the theatre incurring large expenses it was held in the case of P. M. Jacob v. Executive Officer, AIR 1981 Ker. 233: Considering the nature and purpose of the construction the theatre was a work of permanent character which the licensee had constructed at his expense action on the license. It was a work of a permanent character even though it might fall under the rubric of a temporary building under the rules for the purpose of the license. The permanency is not related to the to the material used for the purpose of the construction but it stated to be related to the duration for which it is intended to be used. Where land is given to a mind servant to put up a hut the license was not for putting up a permanent structure. AIR 1983 (NOC) 54 (Guj). The building of walls in the process of putting up a building is a work of a permanent character and simply because the building is incomplete it cannot be said that it is not work of a permanent character. AIR 1975 Pat 17. Foundation of a building is a work of a permanent character involving expense; and the grantor would not be entitled under section 60 of the act to revoke the license after such a work has been executed. Where, therefore, the licensee has neither surrendered the license, nor abandoned it, the grantor is not entitled to recover the property after demolishing the building constructed thereon, AIR 1969 Ker 23. The expression ‘work of a permanent character’ is intended to denote some work has been which is not merely of a temporary nature. Where the land is given for building purposes, if the licensees do not put up costly constructions but merely build a puuca well so as to include the land in their respective houses and to make it a part and parcel of their respective houses and to be a work of permanent nature. AIR 1954 All 773. Sinking a well and erecting compound wall can be considered to be works of a permanent character within the meaning of section 60 AIR 1940 Lah. 18. A license to construct a mere shed was revocable as the work was not of a permanent character. AIR 1975 Ker 99. The construction by a licensee of a thatch with a tiled roof on the licensed site can be said to be of a permanent character even though it may have been used only for tethering cattle and storing fodder. AIR 1962 All. 444. Even a hut may be considered a work of a permanent character. AIR 1926 Nag. 376. A katcha thatched house may be a work of a permanent character, where it has been used as a residence for a good many years and there is not evidence that it is only a temporary structure. AIR 1924 All 750.
(3) Incurred expenses in executing work: For the application or clause (b) it is necessary that the licensee should incur expenses in the execution of the work of a permanent nature. It may be noted that the amount expended is not required to be considerable for making a license irrevocable. Thus in the case of Manzoor Ahmad v. Muhomed Abdul Jamil, ILR 56 All. 207, a letters patent appeal confirming the decision in the case of Mahomed Abdul Jamil v. Manzoor Ahmad, AIR 1932 All. 572, the fact the rupees twenty-five were expended in construction a well was held to be sufficient to make the license irrevocable.
Denial of title of licensor: Unlike the case of a lease, a license is not determined by forfeiture even if the license’ title is denied by the licensee. In the absence of an express condition or a statutory provision prescribing forfeiture on the ground of denial of owner’s title, it cannot be said that denial of the licensor’s title leads to the forfeiture of licensee’s right to continue in possession. 1980 All. WC 552.
When revocation on payment of compensation: Under the easements act a license is either revocable or irrevocable. If the circumstances mentioned in clauses (a) and (b) do not exist, a license is revocable. If they do exist, then the license is irrevocable. However, if the license is given for a is given for a consideration and is of a revocable nature, and the terms of the agreement creating the license lay down a particular way in which it can be revoked and subsequently it is revoked contrary to such terms, under section 64, the licensee would be entitled to compensation. There is no authority to show that a license which is irrevocable under section 60 of the easement act can be revoked by paying compensation. Where the husband built a house on the land of his wife knowing it to be of his wife, in absence of any agreement or gift to the husband, upon divorce the option of taking the building to paying compensation or permitting removal of the building material is which the owner of the land. Hence the husband has to remove the material if the divorced wife is not willing to pay the compensation for the building. AIR 1961 Ker 147. Where a bare license has been granted to vend fruits so long as he continued to pay rent regularly and the licensor terminated the license for no default in payment of rent it was held that the licensor was entitled to compensation but could not obtain an injunction enabling him to continue to enjoy the right under the license. AIR 1954 Mys. 89.
Revocation by transferee or successor or licensor: Where the license has become irrevocable as under section 60(b), a licensor cannot put an end to an irrevocable license by a transfer pf the property affected by the license and a transfer does not ipso facto extinguished a license. As the grantor of the license cannot himself revoked it, the transferred also cannot revoke it. The transferee does not get any better rights than those possessed by the transferor. The provisions of section 59 are in this respect subject to the provisions of section of section 60. AIR 1958 MP 343. According to the case of Muhammad Yousuf v. Ahmad Ali, 1989 A L D 517, license cannot be revoked by grantor under section S. 60 easements act, 1882, if licensee acting upon terms of the license itself has executed a work of permanent character and incurred expenses in such execution. Such a defence will only be available when the licensee can show that in compliance with the terms of the license itself he had incurred expenses in execution of work of permanent character. Grant of land with right to construct houses thereon. House constructed over substantial part of the land. Remaining part of land used for tethering cattle and other acts. License could not be revoked. Provisions of S. 60 (b) were attracted. 1990 MLD 420. Where a licensor of certain accommodation dies leaving behind his window and other heirs, the license comes to an end, and can be validly terminated by the widow alone- -her act being binding on the other heirs- -and the licensee is liable to be evicted from the accommodation. 1980 ALJ 131. When a catering contract is sought to be revoked the licensee is entitled to a reasonable notice in accordance with the provision of Sec. 63 of the easements act, if, however, the license is revoked without reasonable note the remedy of the licensee is by way of damages and not by way of an injunction. However where a license is revocable, the licensee is entitled to reasonable notice if, however the license is revoked without such notice, the remedy is by way of damages ant not by way of injunction. PLD 1965 SC 8, 17.
Constructing by license on premises- - effect: Evidence on record evidently showing that licensee/applicant had raised construction over disputed plot only after service of notice on him by licenser to quit the same. Courts below, held, rightly concluded that licensee had failed to establish that by such construction, license granted in his favour had becomes irrevocable under S. 60 of act. Inferences concurrently drawn by two courts below neither perverse nor contrary to record, could not be interfered with in revisional jurisdiction of high court, when no misreading of evidence on part of courts below was pointed out. 1988 C L C 1152.
Prospecting licensee- - cancellation: Cancellation of prospecting license by authority without show cause notice was illegal because of being in defiance of principal of natural justice. Licensee’s obligations were to get a scheme approved by the authority so as to employ technical staff, to lay roads, residential accommodation for the staff land laboures. Firms, complying with such requirements. Work order was issued and the firm started operation extracting coal. Necessary fee for such purpose was also deposited of by the firm. Cancellation of prospecting license merely on basis of decree of dissolution of firm, without show-cause notice was thus unwarranted. Prospecting license once granted was irrevocable within the ambit of S. 60 (b) of the easement act. Licensing authority’s action in canceling license for prospecting oil was declared to be without jurisdiction lawful authority. 1989 CLC 1255.