Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal Case

Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal Case / Judgment - 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Samarpan Varishtha Jan Parisar & Ors. .....APPELLANT(S)
Rajendra Prasad Agarwal & Ors. .....RESPONDENT(S)
1. The challenge in the present appeal is to an order passed by the High
Court of Judicature at Allahabad dated 01.10.2021 whereby the
revision petition filed by the plaintiffs-respondents was allowed and
interim injunction was restored, as was granted by the learned Trial
2. The Municipal Corporation, Lucknow has constructed an old age home
named Samarpan at Adil Nagar, Ring Road, Lucknow. In terms of the
advertisement published on 05.12.2004, the appellant was granted
lease for running such old age home initially for 15 years from
01.09.2005, but with a condition of renewal for a further period of 15
years. One of the conditions in the lease was that an Advisory Board
shall be constituted by the lessee i.e., the appellant. The appellant
framed rules and regulations for grant of services at the old age home.
Such rules and regulations contemplated that the cooperation fund
deposited by the inmates shall be used for accommodation, food, bed
and other essential services of living and general treatment but
expensive medical treatment and expenditure was to be borne by the
inmates themselves. It also provided that if any rules of the complex
are violated by any inmate, the Administration has got full right to
expel him and dismiss his membership by issuing him one month
period’s notice. The relevant clause reads thus:
“21. If the Rules of the Complex are violated by any inmate
person, the Administration has got full right to expel him and
dismiss his membership by issuing him one month period’s
advance notice. The Management reserves its right to do so.”
3. It was on 23.04.2016, the plaintiffs-respondents filled up an admission
form to stay in the old age home giving the details about his four
children, one son and three daughters. Two of the daughters stay at
Lucknow and one son and one daughter are staying in Faizabad. The
plaintiffs had also executed affidavits to comply with the rules and
regulations as mentioned above.
4. There is a dispute as to whether the plaintiff no.2 is a psychiatric
patient and misbehaves with the other inmates and staff, but without
going into that fact, the question required to be answered is that what
is the right of the inhabitant of an old age home to stay in such old age
5. It is stated that in terms of the conditions of the lease, the Committee
held its meeting on 26.10.2019. In the said meeting, the stand of the
plaintiffs was that if the administration has received any complaint
against them, then they may be pardoned and they ensured that no
such complaint would be received in the future. It was pointed that in
difficult time of old age, the approach of the appellant should be
compassionate with due generosity. It was decided by the Committee
to allow one month’s more time to the plaintiffs so as to observe their
behaviour. If no reforms were visible then, they would be told to leave
the premises in terms of Rule 21.
6. Since no behavioral change was visible, the appellant cancelled the
membership of the plaintiffs on 22.11.2019. It is thereafter, the
plaintiffs filed a suit for injunction before the Civil Court, accompanied
by an application for ad-interim injunction. On such application for
interim injunction, the trial Court passed an order on 17.12.2019 that
the plaintiffs should not be dispossessed during the pendency of the
suit. However, in appeal, such order was vacated by the Court of
Additional District Judge, Lucknow, on 20.10.2020. In further revision
preferred by the plaintiffs, the order was set aside.
7. The plaintiffs have filed a counter affidavit before this Court, inter alia
demanding an inquiry into the financial irregularities, embezzlement,
internal mis-management of old age home and their miseries, extortion
and torture. It is the stand of the plaintiffs-respondents that they acted
as a whistle blower to highlight the financial misappropriations,
misdeeds and inhumane attitude. The complaint was made regarding
quality of food, facilities or medical treatment, misuse of donated
vehicles etc.
8. In a separate affidavit filed by Shri Sunil Kumar Sharma, ACP Gazipur, it
is stated that the plaintiffs are old-aged parents who have been
abandoned by their own children. There are 24 other inmates but no
such complaint has been made by them in the police station. It was
also mentioned therein that as against security of Rs.25,000/-, the
appellant has sought the deposit of Rs.75,000/-. It may be stated that
Station House Officer was not a party to this suit but was impleaded by
the plaintiffs before the High Court in the revision petition under Article
227 of the Constitution.
9. In a rejoinder affidavit filed by the appellant, the assertions made by
Shri Sharma have been denied. It has been pointed out that two
daughters Shikha Agarwal and Ruchika Agarwal visit their parents and
have given affidavits that they will act as guardian of their parents and
will take care of their medical needs. It is also pointed that Shri Harpal
Singh, the Supervisor of the District Social Welfare Department visited
the old age home on 08.11.2020 and offered an alternative old age
home of Social Welfare Department free of cost to the plaintiffs.
10. The learned counsel appearing for Municipal Corporation and the State
submitted that they have nothing to add in the present appeal.
11. We have heard learned counsel for the parties and find that the issue
required to be examined herein is that what is the status of the
inmates in the old age home, are they licensee and/or they have a
right to stay in the old age home for the lifetime as a matter of right.
12. Law recognizes three types of possession. One as that of an owner,
including co-owners; second as a tenant, when a right is created in the
property; and thirdly permissive possession, the possession which
otherwise would be illegal or that of as a trespasser. In the present
appeal, we are concerned with the possession falling in third category.
This Court in a judgment reported as Associated Hotels of India v.
R.N. Kapoor
 has held that in case of a licensee, the legal possession
continues with the owner as in terms of Section 52 of the Indian
Easements Act, 1882, grant of a mere right to do upon the property of
another, something which would in the absence of such right be
unlawful. Thus, this is the essential characteristic which distinguishes
a license from a lease.
13. In Sohan Lal Naraindas v. Laxmidas Raghunath Gadit
, it has
been held that a lease creates an interest in the property whereas a
license creates no estate or interest in the immovable property of the
grantor. It was held as under:
“8. A licence confers a right to do or continue to do something
1 AIR 1959 SC 1262
2 (1971) 1 SCC 276
in or upon immovable property of grantor which but for the grant
of the right may be unlawful, but it creates no estate or interest
in the immovable property of the grantor. A lease on the other
hand creates an interest in the property demised.”
14. In Maganlal Radia v. State of Maharashtra
, a lessee filed a
petition under Article 226 of the Constitution for the writ of Certiorari to
quash and set aside the orders passed by the Collector, Bombay calling
him to vacate a plot situated on the Chowpatty Foreshore. One of the
questions examined was whether the petitioner had a right to continue
in possession for as long as possible. It was held as under:
“1. …As a matter of substantive law, therefore, the petitioner
has no colour of right to remain in possession of the suit
premises and has no answer to the respondents’ claim that he
should vacate the land in question, and the present petition
appears to have been filed merely for the purpose of gaining
time and remaining in possession as long as possible.”
15. The High Court declined to entertain the petition on the ground that
the petitioner was merely a licencee. It was held that the injustice that
would have been caused if the present petition was entertained would
be greater in view of the fact that the licence was for a purely
temporary purpose.
16. In a later judgment reported as Conrad Dias of Bombay v. Joseph
Dias of Bombay
, the father filed a suit against his son for injunction
restraining the defendant from entering or remaining in the suit
premises. It was held that the son who is residing with the parents in
the house cannot claim any legal character much less, the character of
3 1971 Mh.L.J. 57
4 1994 SCC OnLine Bom 528
a licensee as defined in Section 52 of the Easements Act. He is
residing simpliciter as a member of the family and nothing more and
nothing less. It was also held that the son has not claimed either
tenancy or a licence and, thus, he has no legal character or status,
except staying in the house as a member of the family. In view of the
findings recorded, the appeal preferred by the son was dismissed.
17. In Hyderabad Metropolitan Development Authority (HMDA) &
Ors. v. M/s. Hotel Malligi Pvt. Ltd.
, the respondent was granted a
licence by the appellant over the land admeasuring 2500 square
meters. The Court reiterated the principle that unlike a lessee, the
legal incidence of a licence, in normal parlance, is that the licensee has
no right to possession of the demised property as the legal possession
always remains with the licensor. Thus, it was held as under:
“26. The concept of a licence, being wholly different from that of
a lease, it is not open to the licensee to assert any leasehold
rights over the licensed premises after expiry of the licence
period and seek to prolong its occupation thereof. Its status upon
expiry of the licence period is that of a trespasser. In any event,
even if the licensee is in a position to establish that it was
lawfully deprived of the benefits of the licence during its
subsistence, the only relief that it can seek is in the form of
compensation/damages. There is no legal and tenable basis for a
licensee to assert a right to continue in occupation of the
licensed premises after expiry of the licence period. The Court
below seems to have been unmindful of the distinction between
a licence and a lease, as is clear from the order dated
29.09.2016 passed in Arbitration O.P. No. 2229 of 2016, where it
used the terms licence and lease interchangeably.”
18. The Division Bench of Madras High Court in a judgment reported as
5 2017 SCC OnLine Hyd 1
General Merchant Association rep. by Secretary and Treasurer
& Ors. v. The Corporation of Chennai, rep. by its Commissioner,
 held that appellants were allottees of a shop in the
Corporation Fruit Market. The shopkeepers challenged the action of the
Corporation terminating their licence and calling upon the licencees to
vacate and surrender possession of the respective shops in their
occupation. It was held, while dismissing the writ petitions, as under:
“24. The entire case law on the subject revolves around the
cardinal touch stone at which the relationship between the
parties who claim to be licensors or licensees or lessors or
lessees has to be decided is whether the grant creates an
interest or estate in the property within the subject matter of the
agreement. Delivery of exclusive possession, as has been held
would not be conclusive to hold that the grant is a lease. The
surrounding circumstances and the conduct of the parties as in
the present case show that no interest in the property have not
been created at any point of time in favour of the writ
petitioners/licensees of the Municipal Corporation stalls and the
claims of the petitioners that they are lessees is far-fetched and
cannot be sustained.
xx xx xx
26. It is also equally well settled the position of a licensee after
termination becomes unlawful and the licensee is not entitled to
any injunction restraining the licensor from evicting him as
unlike a tenant a licensee does not have judicial possession and
the possession always remains with the licensor and what was
granted is a privilege in terms of the licence, which in the
absence of such a grant becomes unlawful.
27. The occupation of the writ petitioners with respect to the
stalls/shops in public market is referable to the licence originally
granted as their status is that of a licensee. Once such a licence
is terminated, the possession of the stalls become unlawful as
they have no right and the possession of such possession after
6 1998 SCC OnLine Mad 848
termination is not protected by any statutory provision. In terms
of Section 63 of the Easements Act 1982, where licence is
revoked the licensee is entitled to reasonable time to leave the
property for removing all his goods which he has been allowed to
place. A person continuing in the premises after the termination
of licence, his status is as already pointed out is unlawful and he
has no semblance of any right to continue in the premises.”
19. A three-Judge Bench of this Court in a judgment reported as Rame
Gowda (Dead) by LRs. v. M. Varadappa Naidu (Dead) by LRs. &
 was considering the question of ad-interim injunction. It was
held that the person in peaceful possession is entitled to retain his
possession and in order to protect such possession, he may even use
reasonable force to keep out a trespasser. It was further held that it is
the settled possession or effective possession of a person without title
which would entitle him to protect his possession even as against the
true owner. It was held as under:
“9. …The “settled possession” must be (i) effective, (ii)
undisturbed, and (iii) to the knowledge of the owner or without
any attempt at concealment by the trespasser. The phrase
“settled possession” does not carry any special charm or magic
in it; nor is it a ritualistic formula which can be confined in a
straitjacket. An occupation of the property by a person as an
agent or a servant acting at the instance of the owner will not
amount to actual physical possession.”
20. Another three-Judge Bench in a judgment reported as Maria
Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De
Sequeira (Dead) through LRs
 was examining the question of
7 (2004) 1 SCC 769
8 (2012) 5 SCC 370
injunction between the plaintiff – brother, who was given the property
in question as a caretaker, the owner being sister of the plaintiff. An
argument was raised before this Court that the possession of a
caretaker can never be a possession in one's right and no suit for
injunction under Section 6 of the Specific Relief Act was maintainable.
It was held as under:
“83. Grant or refusal of an injunction in a civil suit is the most
important stage in the civil trial. Due care, caution, diligence and
attention must be bestowed by the judicial officers and Judges
while granting or refusing injunction. In most cases, the fate of
the case is decided by grant or refusal of an injunction.
Experience has shown that once an injunction is granted, getting
it vacated would become a nightmare for the defendant.
xx xx xx
97. Principles of law which emerge in this case are crystallised
as under:
(1) No one acquires title to the property if he or she was allowed
to stay in the premises gratuitously. Even by long possession of
years or decades such person would not acquire any right or
interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in
the property irrespective of his long possession. The caretaker or
servant has to give possession forthwith on demand.
(3) The courts are not justified in protecting the possession of a
caretaker, servant or any person who was allowed to live in the
premises for some time either as a friend, relative, caretaker or
as a servant.
(4) The protection of the court can only be granted or extended
to the person who has valid, subsisting rent agreement, lease
agreement or licence agreement in his favour.
(5) The caretaker or agent holds property of the principal only on
behalf of the principal. He acquires no right or interest
whatsoever for himself in such property irrespective of his long
stay or possession.”
21. In view of such finding, the appeal was allowed and possession of the
suit premises was directed to be handed over to the appellant, the
22. In another judgment reported as Behram Tejani & Ors. v. Azeem
, the respondent in appeal filed a suit claiming injunction,
restraining the defendants from dispossession of the plaintiff from the
suit premises. This Court held as under:
“14. Thus, a person holding the premises gratuitously or in the
capacity as a caretaker or a servant would not acquire any right
or interest in the property and even long possession in that
capacity would be of no legal consequences. In the
circumstances, the City Civil Court was right and justified in
rejecting the prayer for interim injunction and that decision
ought not to have been set aside by the High Court. We,
therefore, allow the appeal, set aside the judgment under appeal
and restore the order dated 29-4-2013 passed by the Bombay
City Civil Court in Notice of Motion No. 344 of 2013 in Suit No.
408 of 2013.”
23. Now, adverting to the facts of the present appeal, the Respondent Nos.
1 and 2 – plaintiffs were permitted to stay in the old age home subject
to certain payments to meet the necessary expenses of food and minor
medical care. The possession of the respondent nos. 1 and 2 in a room
of an old age home is that of a licensee permitted to enjoy the
possession, but without creating any interest in the property. The
9 (2017) 2 SCC 759
appellants found the behavior of respondent nos. 1 and 2 not
conducive to the fellow inmates and the staff of the old age home.
This Court will not exercise a judicial review about the opinion of the
appellants. On the legal issue, respondent Nos. 1 and 2, as licensees
have a legal right to stay in the room of the old age home only so long
as they comply with the terms and conditions of such license. Since
respondent Nos. 1 and 2 had no legal right to protect their possession
without complying with the corresponding obligations, as their
possession is not a legal possession but only a permissive possession,
they cannot seek any injunction to restrain the management of the old
age home not to dispossess them.
24. It is an unfortunate situation when the parents cannot be taken care of
by the children, but the fact remains that abandonment of parents by
their children is now a hard fact of life. Parents do find it difficult to
reconcile the situation that at that age they have to stay in old age
home. Therefore, one can understand the mental trauma which the
parents face in the evening of their life but the agony suffered by a
parent cannot be a cause of disturbance to the other inmates or to the
organizers who have resolved to take care and run the old age home.
The inmates in the old age home are licensees and are expected to
maintain a minimum level of discipline and good behaviour and not to
cause disturbance to the fellow inmates who are also senior citizens.
Therefore, if one parent is the cause of disruption of peace of other
inmates in the old age home, the administration of the old age home is
at liberty to terminate the license and ask the inmate to vacate the
room allotted to them. Even if the organizers of the old age home are
not able to meet the expectation or requirements of the plaintiffs, that
would not confer a cause to the plaintiffs to disturb the other inmates.
As a licensee, the plaintiffs have no right to stay in the accommodation
allotted which is purely an approach to a human problem faced by the
people in old age. The plaintiffs have even been offered alternative
accommodation as well.
25. As a licensee, the plaintiffs cannot seek an injunction to stay in the old
age home unless they allow other inmates, a peaceful co-existence.
Therefore, we find that the injunction granted by the High Court suffers
from patent illegality. Therefore, the injunction granted by the High
Court is not warranted in law.
26. The appellant shall arrange an alternative old age home for respondent
nos. 1 and 2, as one offered by the Social Welfare Department.
27. However, we observe that it is open to the Municipal Corporation or the
Social Welfare Department to examine the living conditions of the
inmates in the old age home so that the inmates live in as comfortable
conditions as are possible at that age.
28. We also direct the Uttar Pradesh State Legal Services Authority to
depute a para-legal volunteer to visit the old age home on such
intervals as is possible and the Member Secretary of the District Legal
Services Authority to visit the old age home at least once a month
initially to find out the difficulties being faced by the inmates and to
take redressal steps, including to provide legal aid if required by the
inmates of the old age home.
29. With the aforesaid directions and liberty, the present appeal is allowed
and ad-interim injunction sought by the plaintiffs–respondents stand
MAY 06, 2022.


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