judgement:
Civil Appeal No. 1985 of 1975.
Appeal by Special Leave from the Judgment and order dated the 28th November 1975 of the Andhra Pradesh High Court in Writ Appeal No. 1038 of 1973.
M. N. Phadke and B. Kantarao, for the Appellant.
V. section Desai K. R. Chaudhury, section L. Setia and Mrs. V. Khanna, for Respondent No. 1.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Counsel for the appellant a jolted transport operator has assertively argued for an untenable position, heedless of the true nature of 'transport permit ' jurisprudence.
The sole issue on which limited leave has been granted to him by this Court under article 136 lends itself to straight forward resolution, once we grasp the .
public character of the litigation and public purpose of the jurisdiction where per nits regulating the plying of stage carriages are awarded or refused.
The conscience of this branch of public law is justice to the public, although, in the process of adjudication, private claims to carry on transport business through permits are comparatively evaluated.
Public interest is the paramount consideration, while private rights, fundamental though, apparently constitute the quasi lis for decision.
The touchstone of better merit is solely the ability to serve the public, and the hierarchy of transport tribunals, bearing true faith and allegiance to section 47 of the Motor Vehicles Act, 1948 (for short, the Act) have the duty and, therefore, the power to consider as factors pertinent to the larger scheme of efficient public transport.
To equate and thereby hamstring this jurisdiction and processual law with what governs a civil proceeding under the Civil Procedure Code, is to miss the policing policy of the law and maim the amplitude of the power duty complete.
In other words, the duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits.
The pro bono publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedural trappings.
The minimal facts.
The appellant and the 1st respondent, among others, applied for permits to ply a stage carriage on a specified route in the Krishna District, Andhra Pradesh.
Although there were two permits for issuance, one was given to R2 and that has become final.
We are now concerned only with the other permit which had been granted by the Regional Transport Authority (acronymically, RTA) to the appellant but was switched over to the 1st respondent by the 1034 State Transport Appellate Tribunal (STAT) or taking into consideration a fresh ground and supporting evidence to the effect that the appellant was guilty of a transport tax violation and had compounded that offence under section 60(3) of the Act.
The power in this behalf was stated to be based on section 15 of the Andhra Pradesh State Transports Appellate Tribunal Rules, 1971 (hereinafter referred to as the Appellate rules), which reads: "15.
Additional Evidence (i) The parties to the appeal 9 or application shall not be entitled to produce additional evidence whether oral or documentary before the Tribunal but, (a) if the authority from whose order the appeal or application is preferred has refused to admit evidence which ought to have been admitted, or (b) if the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed; or (c) if the Tribunal requires any documents to be produced or any witnesses to be examined to enable it to pass just orders, or (d) for any other sufficient reason, the Tribunal may allow such evidence or documents to be produced or witnesses examined: Provided that where such evidence is received the other party shall be entitled, to produce rebutting evidence, if any.
(ii) If the Tribunal is of opinion that any witness should be examined in connection with any case before it, it may instead of examining him before itself, issue a commission to the concerned Regional Transport Authorities or the State Transport Authority as.
the case may be, or to an Advocate or such other suitable person as it may deem fit, in the circumstances of the case.
" The vires of this rule was challenged before us and we will examine the contention.
But, to continue the narrative" when the appellate authority deprived the appellant of his permit he attacked the order without avail, before the High Court at both tiers.
Undaunted he has carried the appeal to this Court where the controversy is confined to the validity of section 15, although we have heard arguments on a wider basis to appreciate the point made by counsel.
The argument of ultra vires urged before us rests on The scope of sections 57(4) and 64 of the Motor Vehicles Act and the fitment of section 15 into the purpose and text of these provisions.
Having heard counsel on both sides, we are disinclined to accede to the submission of Shri Phadke for the appellant.
Why ? We will proceed to answer.
1035 Rulings galore, of this Court and the High Courts, have focussed A on section 47 of the Act to emphasize that the quasi judicial bodies entrust ed with the work of issuing stage carriage permits must be conscious of the brooding presence of public interest, in the midst of the sparring contest of private applicants.
A casual perusal of that provision brings home this juristic under pinning of the jurisdiction.
Against this background, we may notice the meaning of the clauses which broaden the nature of the enquiry and mark it off from a traditional civil litigation.
Passengers ' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for a permit have a place in the scheme and may make representations on a variety of matters.
So also, in an appeal, the RTA itself may be heard.
Thus, the considerations going into the judicial verdict are dominated by public interest; non parties who have only to present points germane to public interest are allowed to represent their point of view.
Why? Because the object of thus regulatory statute is to promote smooth public transport and subject to the weighty factors bearing thereon set down in section 47(1) of the Act and, indeed, with a view to serve the public the better, applicants are chosen in recognition of their fundamental right under article 19 canalised by reasonable restrictions in public interest.
To imprison such an enquiry into the familiar mould of a civil proceeding in ordinary courts is to be pathological, if one may say so.
A freer, healthier, approach is the prescription.
Of course, Shri Phadke is right in that any representation, ground or evidence presented by anyone prejudicing the right of an applicant has to be considered only subject to the canons of natural justice and in the discretion of quasi judicial authority.
Justice to the public and the parties can and must be harmonised.
Such is the simplistic statement of the law.
A few more facts and some more law are necessary.
As stated earlier, the appellant got the permit from the RTA although both the contestants before us were equally qualified, having obtained equal marks on the basis of the Andhra Pradesh Motor Vehicles Rules (for short, the MV rules).
The appellate result went against the appellant because another applicant who had filed an appeal before the STAT produced, at that stage, a certificate from the concerned authority to prove that the present appellant had used a contract carriage as a stage carriage on a trip to Tirupati and had compounded this offence by payment of a fee of Rs. 2,340/ .
This circumstance was regarded by the STAT as a blot on the history sheet of the appellant, although inadvertently omitted from the history sheet prepared officially for the consideration of the RTA.
It is admitted on all hands that this semi punishment had not been mentioned in the representations of any party under section 57(3) of the MV Act.
Therefore, an objection was raised before the STAT that this ground was new, although the episode which formed its basis existed prior to the disposal of the applications by the RTA.
It was further urged that such new grounds could not be heard from an objector who had not included it in his representation made within the time limited by section 57(4) of the Act.
However, the STAT over ruled these objections and proceeded on the footing that this was material information 1036 A relevant to section 47(1) and used it, after giving a fair opportunity to the affected appellant to meet it.
Consequentially, he upset the award of the permit to the appellant since this factor tilted the scales against the appellant.
We cannot, in this Court, and especially on a limited leave, look into the evaluation.
These foundational facts are common ground, but the divergence rises on the exercise of the power under s.15 of the Appellate Rules.
Shri Phadke contended that a representationist, under section 57(3) & (4), had to abide by the time limit discipline of the provision and could not transgress it by making an additional representation at the appellate stage beyond the time limited by section 57(4).
If section 15 permitted such a course, it violated the substantive provision of the Act.
Since a stream cannot rise above its source and rules cannot go beyond the sections of the Act, this Court must hold the said rule avoid.
Any way, if section 57(3) & (4) had a more spacious connotation than was attributed to it by Shri Phadke, section 15 could have full play and be accommodated within the parent provision in the Act regulating procedure.
This was the counter contention of Shri V. section Desai for the contesting respondent.
Before proceeding further, it is useful to extract section 57(3) and (4) and test whether the rule making power has exceeded the ambit of section 57 or gone counter to it in framing section 15 (earlier extracted): "57.
Procedure in applying for and granting permits. x x x x (3) on receipt of an application for stage carriage permit or a public carrier 's permit, the Regional Trans port Authority shall make the application available for inspection at the office of the authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connect`ion therewith may be submitted and the date, not being less than thirty days from such publication, on which and the time and place at which, the application and any representations received, will be considered: Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the applications relate, beyond the limit filed in that behalf under sub section (3) of Section 47 or sub section (2) of Section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub section.
(4) No representation in connection with an application referred to in sub section (3) shall be considered 1037 by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.
" We unhesitatingly agree with Shri Phadke that natural justice that J fine facet of judicial ethos must broadly inform exercise of power by administrative tribunals.
This obligates such bodies to give an 'a affected party a fair opportunity to meet any evidence obnoxious to his case if it is to be pressed into service against him.
In the pre sent instance, it is not disputed, as the High Court has noted, that the canons of natural justice have been conformed to.
The surviving issue therefore is as to whether there is any soundness in the submission that section 57(3) & (4) read with section 47 builds barricades against receiving any information by the STAT from any representator beyond the time filed in the above sub sections of section 57.
Administrative law a growing branch of Indian jurisprudence has a mission.
Where the trellis work of technical procedures and rules of evidence usually applicable to ordinary courts under the Code contains too many taboos regarding pleadings and too many prescriptions regarding trials, administrative bodies, manned by lay and legal men, charged with duties which are wider than decision of individual disputes between specific parties and operating quasi judicially at the public interest level, have to enjoy more liberal powers and less formal and more flexible processes if they are to fulfil the statutory behest efficaciously.
To over judicialize is to undermine.
In the construction of statutes establishing administrative agencies and r defining their powers, there is little scope for the deep rooted shibboleth that into the statute must be, read, by lawyer 's instinct, the requirements of the trial of a civil suit or the hearing of an appeal by the ordinary courts of the land.
This may result in defeating their obvious purpose.
We will therefore briefly examine the legislative goal of the statute under construction, the general policy of the legislature in enacting the relevant sections and the definition of the sources from which information or evidence may be sought by the tribunal working within the framework of the Act.
Mr Justice Frankfurter has aptly stated that 'the answers to the problem of an art are in its exercise ' and John Chipman had paid that the process of statutory construction is a practical art (See: Extrinsic Aid in the Construction of Statutes by V. section Deshpande Journal of Indian Law Institute Vol.
II, April June 1969, p. 123, 126).
Thus, the true test of the amplitude and correct interpretation of section 57(3) & (4) is to be found in a study of its area and its exercise, as intended by its makers.
The oft quoted saying of Mr. Justice Holmes that 'the meaning of a sentence it to be felt rather than to be proved ' also helps us to feel our way through the public law area sketched by section 57(3) & (4) understood in the background of section 47 and the conspectus of other provisions.
We have to shake off from our minds that the type of litigation contemplated by section 57 is the thrust and parry in a civil suit or appeal.
With these observations we may take a bird 's eye view of the relevant provisions of the Act to give us a hang of the subject and help us interpret adequately.
1038 Section 42 of the Act insists on a permit being taken by every transport operator.
Section 44 lays down how the RTA is to be constituted.
It has a mixed composition of lay aud judicially trained me, the reason being that the process of adjudication is not purely legal pugilis but a broader search taking note of public considerations which may not be brought to its notice by contenders for permits.
The nature of the enquiry is reflected in the very structure of the body.
Section 46 speaks of applications for stage carriage permits.
When we reach section 47, we have to take a close up of that provision.
Properly understood, section 47 enjoins upon the RTA to have regard to the presiding idea of public interest generally and in its ramifications as set out in section 47(1) (a) to (f).
In addition, the RTA shall also receive representations as mentioned therein and take them into the reckoning.
It is not as if the sole source of decision making materials consists of the representations made under section 57(3) within the time stipulated in section 57(4).
The primary channel, it , looks, is the information that the RTA may gather, bearing on matters touched upon in section 47(1) (a) to (f), supplemented by facts stated in representations referred to in section 57(3).
Once we grasp this essential truth, the resolution of the conflict raised in this case is easy.
The focus is not on who, as between A and B, has the title to the permit, but on who, as between A and B, should be preferred to better sene the public interest.
We may, as a result of the above discussion, set down the following five propositions: 1.
Stage carriage permits are granted for providing an F. efficient public transport system.
The adjudicatory content has dual elements public interest in the best stage carriage service and private title to better sene the public.
The procedure is flexible, free from the rigidly of court trials, and this flexibility flows from the duty of the tribunal charged with the task of picking out him who has the best plus points for playing a good bus service, to discharge it properly.
A people conscious power cannot be pared down in a self defeating manner.
An activist tribunal (RTA, and, in exceptional case, even the STAT) may even collect useful information bearing on considerations set out in section 47 and, after public exposure of such information at the hearing and reasonable opportunity to meet it, if anyone is adversely affected, put it into the crucible of judgment.
The antithesis is not between the right of representation within the time limited by section 57(4) and beyond it but between representations by statutorily authorised entities under sections 47 and 57 and receipt of relevant 1039 evidence or information from any source whatsoever at any stage whatsoever but subject to the wholesome rules of natural justice.
These fivefold guidelines squarely accommodate section 15 within the framework of sections 47, 57 and 54 of the Act and there is no spill over breaching the banks of the provisions.
The rule merely gives effect to what the sections intend and is not therefore ultra vires.
Here the certificate of payment of compounding fees was filed by one of the appellants before the STAT and was received not as a representation under section 57(4) but as some information the STAT regarded had a bearing on matters falling under section 47.
It is important to note that section 15 does not entitle parties to the appeal or application to produce additional evidence but clothes the tribunal with discretionary power to allow such evidence.
What is received is not qua representation under section 57(4) but qua evidence with public interest flavor.
The rule is good and covers familiar ground to enable just orders being passed.
A reference to order XLI, rule 27 C.P.C. and section 540 Crl.
P.C. proves this point.
Justice to the public is the keynote of sections 47, 57 and section 15.
We are not lobbying for unconventional procedures of quasi judicial tribunals but interpreting the relevant provisions according to well established canons.
We must listen to the signature tune of quasi judicial justice to appreciate the note.
We may also highlight the basic principle that subject to statutory regulations, each tribunal has its inherent power to device its own procedure.
Novelty, if it improves purposeful efficiency, is not anathema.
But caution must be exercised in going against time tried procedures lest processual law prove a charter for chaos.
Like wise, it is necessary to mention that while a 'representator ' under section 47, read with section 57, has a right to make representations and be heard, subject to the limitations written into those provisions, those who fall under it or outside it have no right to bring in evidence or urge grounds as and when they please or at all unless the tribunal, in its discretion, chooses to accept such extra information.
The first is a right of the 'representator ' the second is the power of the tribunal.
F We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(l) and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154).
In United Motor Works(2), the Patna Case, the Court observed: "It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed thereunder do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or 1040 before the Appellate Transport Authority.
The principle is well established that in the absence of any such prescribed procedure the appellate authority may adopt any procedure which it thinks best for hearing the appeal provide always that the rules of natural justice are observed.
The matter has been clearly put by Lord Loreburn in the course of his speech in Board of Education vs Rice as follows: "Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds.
In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law.
It will, I suppose, usually be of an administrative kind; but sometimes it will involve a matter of law as well as a matter of fact, or even depend upon matter of law alone.
In such cases the Board of Education will have to ascertain the law and also to ascertain the facts.
I need not add that ill doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything.
But I do not think they are bound to treat such a question as though it were a trial.
They have no power to administer an oath, and need not examine witnesses.
They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradieting any relevant statement prejudicial to their view." Ramaswami C. J., (as he then was) also laid down: "It is.
manifest that the power of the appellate authority is co extensive with the power of the Regional ' Transport Authority in this respect, and there is no reason why the appellate authority should not take these matters into consideration in deciding the appeal under section 64 of the Act" It is trite that an appeal is a re hearing and ordinarily appellate power is as wide as original power.
The facts of the Patna case (supra) bear a close parallel to our case.
Another point with which we are not concerned and also decided in the Patna judgment (one of the two writ petitions heard together) was challenged in the Supreme Court and reversed.
That bears upon the interstate routes which does not arise in the instant appeal before us.
In Cumbum Roadways(1) Kailsam J. (as he then was), speaking for the Full Bench, stressed the same view.
The head note in the Report is sufficiently explicit and we quote: "The representator, who makes the representation other wise than under section 57(4) will not have a right to have his 1041 objection heard and considered, but there is no prohibition against the authority taking the information furnished by the objector and acting on it after giving an opportunity to the affected party, to prove that the information is false or that it should not be acted upon.
The jurisdiction of the Regional Transport Authority or the Appellate Tribunal to act upon any information, whether it was brought to its notice by the objector or by the Transport Authority cannot be questioned.
But it is within the discretion of the Regional Transport Authority or the Appellate Tribunal to accept the information taking into account the relevant circumstances under which the information was brought before it.
If the authority decides to accept, it is bound to ` give a reasonable opportunity to the affected person to show cause as to why the information should not be acted upon.
r When the authority is acting on the information, but not as a representation by the objector, the person affected can not object to the authority considering the information on the ground that it was brought to its notice by one of the objectors without including the information in the representation made by the objector.
The right of the representer as such is no doubt limited, for, he has no right to insist that any representation made otherwise than under section 57(4) should be considered in the manner prescribed under section 57(5).
But that does not in any way debar the authority under section 47(1) of the Act from taking the information into account for deciding to whom the permit should be given in the interests of the public.
" The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke does not really consider the issue from the position we have delineated and turns on approach which is not quite correct.
Our conclusion therefore is that section 15 is intra vires and, further that the said rule merely makes patent what is otherwise latent in the statutory provisions.
The appeal accordingly, fails and is dismissed with costs.
P.B.R Appeal dismissed.

summary:
Tribunal If had power to admit evidence beyond the time limited by 57(4).
Rule 15 of the Andhra Pradesh State Transport Appellate Tribunal Rule 1971, states that parties to the appeal or application shall not be entitled to produce additional evidence, whether oral or documentary, before the Tribunal except in cases stated therein but it empowers the Tribunal to allow evidence or documents to be produced or witnesses to be examined for any other sufficient reason.
The Regional Transport Authority granted a stage carriage permit to the appellant.
Before the State Transport Appellate Tribunal another applicant produced certain information against the appellant which was not mentioned either in his history sheet or in the representations of any party under section 57(3) of the Act.
Rejecting the appellant 's objection that such new grounds could not be heard from an rejector at the stage of appeal, the State Transport Appellate Tribunal cancelled the appellant 's permit and gave it to respondent On appeal it was contended that a representation under section 57(4) could not be made at the appellate stage beyond the time limited by that section and if rule IS permitted it, it violated the substantive provisions of the Act.
Dismissing the appeal, ^ HELD: Rule 15 is intra vires and it merely makes patent what is otherwise latent in the statutory provisions.
Rule 15 does not entitle parries to the appeal or application to produce additional evidence but clothes the Tribunal with dn creationary power to allow such evidence.
What is received is not qua representation under 8.
57(4) but qua evidence with public interest flavor.
[1041F 1039C] United Motor Works, A.l.
R. 1964 Pat.
154 and Cumbum Roadways, A.I.R. 1965 Mad.
79, approved.
(a) Public interest is the paramount consideration in transport business while private rights apparently constitute a quasi lis for decision.
The touchstone of better merit is solely the ability to serve the public and the hierarchy of transport tribunals, bearing true faith and allegiance to section 47 of the Motor Vehicles Act.
1948 have the duty and, therefore, the power to consider all factors pertinent to the larger scheme of efficient public transport.
The duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits.
The pro bono publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedural trappings.
[1033E G] (b) Section 47 enjoins upon the Regional Transport Authority to have regard to the presiding idea of public interest generally and in ib ramification as set out in section 47(1)(a) to (f).
In addition, the RTA shall also receive representations as mentioned therein and take them into the reckoning.
It is not as if the sole source of decision making materials consists of the representations made under section 57(3) within the time stipulated in section 57(4).
The primary channel the information that the RTA may gather bearing on matters touched upon in 47(1)(a) to (f) supplemented by facts stated in representation referred to In 1033 section 57(3).
Under section 47 passengers ' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for A a permit have a place in the scheme and may make representation on a variety of matters.
So also, in an appeal, the RTA itself may be heard.
Thus the consideration going into the judicial verdict are dominated by public interest.
non parties who have Only to present points germane to public interest are allowed to represent their point of view.
[1038C; 1035B C]


judgement:
Civil Appeal No. 491 of 1975.
Appeal by Special Leave from the Judgment and order dated the 24th June 1974 of the Orissa High Court in Second Appeal No. 8 of 471 Gobind Das and B. Parthasarthi, for the Appellant.
Santosh Chatterjee and G.S. Chatterjee, for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave which is directed against the judgment and decree dated June 24, 1974, of the High Court of Orissa at Cuttack reversing the judgment and decree dated September 23, 1970, of the first appellate court which in turn reversed the judgement and decree dated April 10, 1970, of the Trial Court relates to the controversy regarding the appellants right to store and sell dry 'Mahaprasad ' in the suit premises consisting of two pucca rooms standing on plot No. 167 in 'Bihar Bedha ' (outer compound) of the Hoary Holy public temple of Lord Jagannath Ji in Puri (here in after referred to as 'the Temple '), which to use the language of the illuminating and instructive preamble of Shri Jagannath Temple Act, 1954 (Orissa Act No. 11 of 1955) (hereinafter referred to as 'the Act ', has ever since its inception been an institution of unique national importance, in which millions of Hindu devotees from regions far and 103 wide have reposed their faith and belief and have regarded it as the epitome of their tradition and culture.
The facts giving rise to this appeal are: on August 7, 1969, one Gopal Suar, since deceased, who was the father and predecessor in interest of the present appellants describing himself as sevak of the temple brought a Suit in the Court of the Munsiff, Puri, being suit No. 160 of 1969, for permanent injunction restraining, the respondents herein from interfering with his right of storing and selling dry 'Mahaprasad ' in the suit premises.
The case of the original plaintiff was that by means of 'Sanand ' (Exhibit I) Raja Sri Dibyasingha Deb, the then Superintendent of the Temple, granted to his great grandfather, Gangadhar Suar, a permanent lease of the site on which the two suit rooms stood on an annual rent of Rs. 7/ that it was provided in the 'Sanad ' that the grantee or lessee would be entitled to enjoy the site from generation to generation and in case a permanent structure was constructed thereon, the rent would be enhanced to Rs. 14/ per year; that as a result of the death of his great grandfather, Gangadhar Suar, of his grandfather Bela Suar, and of his father, Chakhi Suar, he had become the sole owner of the property; that a few days after the commencement of the lease, two permanent pucca rooms for storing and selling 'Mahaprasad ' where constructed by his great grandfather, Gangadhar Suar, who according to the stipulation contained in the aforesaid Sanad ' became liable to pay an annual rent of Rs. 14% that since the commencement of the lease, his ancestors had from generation to generation been using the suit property as a store room and as a shop for selling dry 'Mahaprasad ' in their capacity as tenants of the Raja of Puri who was the Superintendent of the Temple and the said right of his had been acknowledged and duly recorded in the record of rights.
that ever since the taking over of the management of the Temple by tile Government, he had been paying annual rent as per terms of the lease to the respondent who had accepted him as a tenant; that he had been occupying and enjoying the suit property as before without any let or hinderence either by the respondents or by their predecessor in interest; that on August 1, 1969, his son intimated to him that respondent No. 2 had, by means of notice dated July 31, 1969, called upon him to close the shop on pain of daily fine of Rs. 100/ , as in the opinion of the respondent, he had been using the land in inner bedha of` the Temple for storage and sale of 'Mahaprasad ' which adversely affected the discipline and dignity of the Temple; that on being so informed, he personally approached respondent No. 2 and represented to him that he was the permanent lessee of the suit property and had acquired indefeasible right of storing and selling 'Mahaprasad ' thereon and the respondents could not interfere with that right but his representation fell flat and respondent No. 2 threatened to close his shop forcibly, to impose penalty on him, and to dismiss him from the 'seva '; that after sometime, respondent No. 2 served him within another notice imposing on accumulated penalty of Rs. 4,600/ at the rate of Rs. 100/ per diem and that there being no provision in the Act empowering the respondents to do any of the aforesaid things, there action was arbitrary, illegal and without jurisdiction.
104 The suit was vigorously contested by the respondent.
While denying The grant of the open site to the plaintiff 's ancestor.
Gangadhar Suar.
, as alleged, as also the construction of two pucca rooms by the latter and the storage and sale thereon of 'Mahaprasad ' by the plaintiffs ' ancestors, the respondents averred inter alia that the Raja of Puri being merely a Superintendent or a Manager of the Temple it was beyond his competence to transfer a portion of the Temple permanently in favour of any individual and the 'Sanand ' set up by the plaintiff was as such ineffectual, invalid and inoperative and did not confer any right , title or interest on him or his ancestors and was not binding on the Respondents; that according to the established custom and usage of.
the Temple. 'Mahaprasad ' could not be stored and sold in a 'saraghara ' but was to be sold in Anand Bazar the place specifically set apart for the purpose, and that since the plaintiff had been committing a breach of discipline and violating the orders of the respondents be storing and selling 'Mahaprasad ' in the 'Saraghara ' standing on plot No. 167 (which had been recorded in the record of rights as 'khas dakhali ' land of the respondents and was never intended for storage and sale of 'Mahaprasad ') and was thus acting in a manner derogatory to the dignity of the Temple, the respondents in whom the governance and administration of the Temple and its endowments vested under section 5 of the Act were competent to take action under sections 21 (A) and 30(A) of the Act.
After framing the necessary issues and recording the evidence adduced by the parties, the Trial Court dismissed the suit holding that as sections 15 and 30(A) of the Act cast statutory obligation on the respondents to ensure maintenance of order and discipline and proper hygienic conditions in the Temple and proper standard of cleanliness and purity of the offerings made therein, they could not be restrained by a permanent injunction from stopping the plaintiff to sell 'Mahaprasad ' at a place other than the one specified for the purpose.
On appeal, however, the Sub Judge (Additional District Magistrate) Puri, decreed the suit.
Aggrieved by this decision, the respondents preferred an appeal to the High Court which accepted the same and dismissed the suit Counsel for the appellants has urged before us suit the suit property did not form part of the Temple; that the transaction, evidenced by 'Sanands ' (Exhibits I & II) issued by the Raja of Puri as Superintendent of the Temple in exercise of his right of superintendent and management of the Temple amounted to a permanent lease of the suit property and not merely to a licence, and that the appellants had an indefeasible right of storing and selling Mahaprasad in the suit Saraonara.
We shall deal with these contention seriatim Regarding the first contention raised on behalf of the appellants we may observe that according to section 2(d) of Act No. XIV of 1952 called the Puri Shri Jagannath Temple (Administration) Act, 1952, 'Temple ' means "the Temple of Lord Jagannath of Puri, other temples within its premises, all their appurtenant and subordinate shrines other sacred places and tanks and any additions which may be made thereto after the commencement of the Act".
It may also he 105 mentioned that pursuant to section 3 of that Act a Special officer with prescribed qualifications was appointed by the State Government for preparation of the consolidated record of rights and duties of different sevaks and pujaries and other persons connected with the seva, puja or management of the Temple as also for preparation of a list of List immovable properties endowed to L ord Jagannath Temple and the extent of the premises of the Temple and what it comprises.
In the report prepared by the said officer which was published in the Orissa Gazette (Extraordinary) and is final and entries whereof cannot be questioned except in the manner provided in section 5 of that Act, it is recorded that the Temple of Lord Jagannath occupies an area of 10 acres and its premises include all appurtenance and subordinate shrines and the outer and inner compounds and that the suit plot No. 167 lies in the Baisi Pahacha ' area in between the inner and outer compounds of the Temple and that access to it is though the main gate li e. 'Singhadawara ' (lion 's gate) of the Temple.
It is, therefore, clear beyond any manner of doubt that the Suit premises form part of the Temple.
The first contention of counsel for the appellants is, therefore, repelled.
For a proper appreciation of the second contention, it is necessary to bear in mind the essential difference between a lease and a licence.
It is now well settled by a catena of decisions of this Court that it is the creation of an interest in immovable property that distinguishes a lease from a licence.
Reference in this connection may be made with advantage to the decision of this Court in Associated Hotels of India Ltd vs R. N. Kapoor(1) where Subba Rao, J. (with whom Das, J. agreed observed as follows: "If a document gives only a right to use the property in a Particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence.
The legal possession, therefore, continues to be With the owner of the property, but the licensee in permitted to make use of the premises for a particular purpose.
But for the permission, his occupation would he unlawful.
It does not create in his favour any estate or interest in the property.
There is, therefore, clear distinction between the two con concepts.
The dividing line is clear though sometimes it be becomes very thin or even blurred.
At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee.
But there was a change and the recent trend of judicial opinion is reflected in Errington vs Errington , wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155: The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so (1) A.I.R.1959.S.C.1262 106 if the circumstances negative any intention to create a tenancy".
"The Court of Appeal again in Cobb vs Lane 1952 I All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document.
At p. 1201, Somervell L.J., stated: ". the solution that would seem to have been found is, has one would expect, that it must depend on the intention of the parties".
Denning L.J. said much to the same effect at p. 1202: 'The question in all these cases is one of intention: did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have personal privilege with no interest in the land ?" The following propositions may, therefore, be taken as will established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the forms; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates all interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document.
a party gets exclusive possession of the property, 'perima facie ' he is considered to be a tenant.
but circumstances may be established which negative the intention to create a lease".
Again in Quadrat Ullah vs Municipal Board, Bareiliy(1) this Court observed: "There is no simple litmus test to distinguish a lease as defined in section 105, Transfer of Property Act from a licence as defined in section 52, Easements Act, but the character of the transaction turns on the operative intent of the parties.
To put it pithily, if an interest is immovable property; entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result.
" Then again in Board of revenue vs A. M.Ansari(2)this very Bench while approving the observations made by Lord Shaw while delivering the judgement of the Board in Kauri T Timber Company Limited vs The Commissioner of Taxes(3) held that in order that a (1) ; (2) ; (3) [1913] A. C. 771 (776).
107 agreement can be said to partake of the character of lease, it is necessary that the grantee should have obtained an interest m and possession of land.
The following observations made therein are apposite: "A licence does not create an interest ill the property to which it relates while a lease does.
There is in other words transfer of a right to enjoy the property in case of a lease.
As to whether d particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case.
For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not lo its from.
" Bearing in mind the above observations, let us now scrutinize the terms of Sanand (Exhibit I) which reads thus: "Order hereby is issued to the Parichhas Karjees (Officers) of the temple as follows: one Gangadhara Suar of Kundhaibenta Sahi has filed an application before the Raja for opening a 'Sera Ghara ' (store Room of Mahaprasad) at the top step of twenty two steps adjoining the inner compound of the temple and the Eastern Gate Way having space of 10 cubits of length to wards south and width of 10 cubits.
It is ordered that he is permitted to open the said store room with hereditary right on payment of` one gold Mohara as Salami and rupees seven as annual rent.
If he at any time constructs a pucca house, he shall pay rupees fourteen as annual rent.
" A careful '.
persual of the recitals in the Sanand (which does not reveal the identity of the plot with precision) would show that the Sanand did not create any interest in the size in question in favour of the plaintiff 's great grandfather.
It merely permitted him to open a Saraghara which meant a room for storing articles for the sole purpose of preparing Bhog for the three presiding deities.
The Sanand did not also confer the right of exclusive possession of the suit property on the grantee.
This is evident from the right of 'dakhale khas ' of the respondents in the suit property as also from the proved fact that 'Saraghara ' was not kept open by the Temple authorities from midnight to 6.00 A.M. during which interval, the plaintiff could in no case occupy it nor could he have access to it.
lt has also been found to have been established from the plaintiff 's evidence itself that the employees of the Raja of Puri used to clean the refuse etc.
which got accumulated before the suit 'Saraghara '.
Thus none of the elements of lease can be said to be present in the instant case.
In M N Chubwala vs Eide Hussain Sahib(1) this Court rejected the claim of holders of certain stalls in a market that they were lessees and not (1) A. I. R. 108 licences there of the ground that they had no right to us them after the closure of the market at night and the responsibility of cleaning and disinfecting the stalls and closing the market at night lay on the landlord and not on the stall holders.
No help can be derived by the appellants from Exhibit II which relates to a quarrel in 'Kotha Bhog Nities ' and is not relevant for the purpose with which we are concerned at the present stage.
Now assuming without holding that the Sanand amounted to a lease, it cannot even then be held to be valid as permanent alienation of the temple debutter property is prohibited.
The position is stated thus at page 489 of Mulla 's Treatise on Principles of Hindu law (11th Edition): "The power of a shebait or a mohunt to alienate debenture property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Pershad vs Mussamat Babooee As held in that case, he has no power to alienate debutter property expect in a case of need or for the benefit of the estate.
He is not entitled to sell the property for the purpose of investing , the price of it so as to bring in an income larger than that derived from the property itself.
Nor can he, except for legal necessity grant a permanent lease of debutter property , though he may create proper derivative tenures and estates conformable to usage.
" In the present case, the position of the Raja of Puri who granted the Sanand (exhibit) was merely that of a shebait.
He could not have granted a permanent lease of the property in question to the great grandfather of the plaintiff without necessity or without benefit to the estat e which have not at all been made out hl this case Again the lease being a permanent one for a fixed rent could not have been granted at all by the Raja of Puri.
Reference in this connection may usefully be made to page 931 of Mayne`s Treatise on Hindu Law (11th Edition), where the position is stated as follows: "It is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of unavoidable necessity ; for, to fix the rent, though adequate at the time in perpetuity.
in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to lime would be a breach of duty on the part of the manager.
In Palaniappa Chetty vs Streemath Deivasikamony (1917 ) 44 I.A. 147.
Lord Atkinson observed: "Three authorities have been cited which establish that it is a breach of duty on the part or a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debutter lands at a fixed rent.
however adequate that rent may be at the time of granting, reason of the fact that, by this means, the debutter estate (1) 44 I. A 147 109 Is deprived of the chance it would have, if the rent were variable of deriving benefit from the enhancement in value in the future of the lands leased.
" In Palaniappa Chetty & Anr.
vs Deivasikamony Pandara(1) alluded to in the above quoted passage, it was also held: "A permanent lease of temple lands at a fixed rent, or rent free for a premium, whether the lands are agricultural lands or a building site, is valid only if made for a necessity of the institution.
It is not justified by a local custom, or by a practice of the institution, to grant lands in that manner.
The phrase "benefit of the estate", as used in the decisions with regard to the circumstances justifying an alienation by the manager for an infant heir or by the trustee of a religious endowment cannot be precisely defined but includes the preservation of the estate from extinction, its defence against hostile litigation, its protection from inundation, and similar circumstances.
" The present case is, in our opinion, fully covered by the decision in Shibessouree Debia vs Mothooranath Acharjo(2) where it was laid down a general rule that apart from unavoidable necessity to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach duty in the mohunt.
Thus viewed from any angle the 'Sanand ' could not be held to be any more than a licence and could not clothe the ancestors of the plaintiff or the plaintiff with the status of a lessee.
This takes us to the last contention raised before us by counsel for the appellants which is also devoid of substance.
A bare perusal of Exhibit I is enough to show that it does not confer any right of selling 'Mahaprasad ' on the plaintiff or on his legal representatives.
Exhibit II cannot also be usefully pressed into service by the appellants as it relates to the sale of 'Rahani Bhog ', and not of 'dry Mahaprasad '.
Thus all the contentions raised by counsel for the appellants fail.
For the foregoing reasons, we affirm the judgment of the High Court and dismiss the appeal with costs.
The appellants are, however, as mutually agreed to between the parties, given one month 's time to vacate the premises.
The cumulative penalty of Rs. 4,600/ to which the appellants have been subjected also being excessive is reduced to Rs. 500%` P P. Appeal dismissed.
(1) 441.
A. 147 (2) 13 M. 1.
A. 270.

dataset_name: IN-Abs

summary:
The appellant 's great grandfather was granted a Sanad in respect of 2 rooms in the Jagannath temple by the Superintendent of temple at the annual rent of Rs. 7/ .
The Sanad provided that the grantee would be entitled to enjoy the said 2 rooms from generation to generation and in case a permanent structure was constructed thereon the rent would be enhanced to Rs. 14/ per year.
After the death of great grand father of the appellant the grand father and thereafter the father of the appellant continued storing and selling dry 'Mahaprasad ' in the said property and continued to pay Rs. 14/ per year.
The respondents who have the management of Jagannath temple at present under the Puri Jagannath Temple (Administration) Act, 1952, called upon the appellants ' father to close and to hand over the possession of the two rooms to the management on the ground that the storage and sale of Mahaprasad in the Bihar Bedha of the temple affected adversely the discipline and dignity of the temple.
The appellant 's father was threatened with imposition of a penalty of Rs. 100/ per day in case he did not vacate the premises in question.
The appellant 's father, therefore, tiled the suit in the civil court which after his death has been continued by the present appellant for permanent injunction restraining the respondents from interfering with his right of storing and selling dry Mahaprasad in the suit premises.
According to the plaintiff the permanent lease was granted to him by the Raja Dibyasingha and that since he was continuing to pay the rent regularly he was entitled to continue in the suit premises from generation to generation.
The respondents contested the suit on the ground that it was beyond the competence of Raja of Puri as Manager of the temple to grant a permanent lease and that, therefore, the Sanad was ineffectual, invalid and inoperative, and conferred no rights on the appellant and his ancestors which would bind the present respondents.
Secondly, since the act of storing and selling Mahaprasad at the suit premises constitute a breach of order and discipline, the respondents under the above statute had right to ask the appellant to vacate.
Thirdly what was granted by the Sanad was licence and not a lease.
The trial court dismissed the suit.
However, an appeal was allowed.
The High Court accepted the second appeal and dismissed the suit.
In an appeal by special leave it was contended by the appellants : (1) The suit property did not form part of the temple.
(2) The Sanad granted a permanent lease of the suit property and not merely a licence and therefore the appellant had an indefeasible right of storing and selling Mahaprasad.
Dismissing the appeal, ^ HELD: (1) Section 2(d) of the Puri Sri Jagannath Temple (Administration Act, 1952, defines temple as including the temple of Lord Jagannath of Puri.
Other temples within its premises and all other appurtenant and subordinate shrines, other sacred places and tanks and any additions which may be 102 made there after commencement of the Act.
Records of right prepared under said Act also include the suit premises within the meaning of temple.
[104 H] (2) It is now well settled by a catena of decisions of the Supreme Court that it is the creation of an interest in immovable property that distinguishes a lease from a licence.
The intention of the parties is the real test for ascertaining the character of a document.
At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises it would conclusively establish that he was a lessee.
However, the result of the subsequent cases is that although a person who is let into exclusive possession in prima facie to be considered to be a tenant nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.
To ascertain whether a document creates a licence or lease the substance of the document must be preferred to the form (entire English and Indian case Law reviewed).
[105 D H, 106 A, D] (3) A careful perusal of the recital in the Sanad, which does not revival the identity of the plot with precision would show that the Sanad did not create any interest in the rooms in question in favour of the grantee.
l he Sanad also did not confer the right of exclusive possession of the premises.
It is also evident from the right of "Dakhale Khas" of the respondents in the suit property as also from the proved facts that the Sarghara was not kept open by the temple authorities from mid night to 6 a.m. during which interval the plaintiff could in no case occupy it nor could he have access to it.
It proved that the employees of the Raja of Puri used to clean the refuse etc., which got accumulated in the suit premises.
The Sanad, therefore, created a licence and not a lease.
[107 E H] (4) Even if it is assumed that the Sanad created a lease it could not be valid lease since the Mohant or manager of a Hindu temple is prohibited from grantee a permanent lease except far legal necessity or benefit of the estate.
Tn the present case no such legal necessity or benefit of estate has been proved.
[108 B E]