A.P. Bhangale, J.@mdashThis Second Appeal stems from the judgment and decree dated 1st April, 1997 passed by learned Joint District Judge, Nagpur in Regular Civil Appeal No. 289/1991, by which the judgment and decree in Regular Civil Suit No. 994/1975 dated 17.08.1979 was set aside and the suit by the original plaintiff Dr. Mohammad Abdul Aziz S/o Yaar Mohammed was dismissed as also cross-objections (Exh. 8). The present appellants claim as legal heirs and representatives of the original plaintiff.
2. The facts in brief are : The suit house / structure stands on Municipal land bearing Plot No. 1 at Mohammad Ali Sarai Road, Mominpura, Nagpur. It is the case of the original plaintiff that suit house is a permanent structure with brick walls and ceiling of Bagada tile. The original plaintiff claimed as licensee since 2.10.1972 at licence fee of Rs. 65/per month. It is claimed that previous owner of the house structure had granted permanent licence in favour of the plaintiff and he became owner on account of transfer of licence by the order of the Municipal Secretary. The original plaintiff claimed that he is grantee of irrevocable licence u/s 60 of the Easement Act.
3. The original plaintiff was informed on 12.8.1975 by letter pursuant to order by Additional Deputy Municipal Commissioner dated 21.07.1975 that licence allotted to the plaintiff is canceled and he shall remove the suit structure within 45 days, failing which Municipal Corporation would remove the same.
4. The plaintiff by notice dated 19.08.1975 claimed that it is irrevocable licence and that the Municipal Corporation can not transfer the land to MSEB as it intended. The plaintiff challenged proposed municipal action by Regular Civil Suit No. 994/1975 which was heard by Joint Civil Judge, J.D. Nagpur and decreed in favour of the plaintiff restraining defendant Municipal Corporation from interfering with possession/occupation of the plaintiff. The first Appellate Court, however, reversed the decree and dismissed the suit by judgment and decree sought to be impugned herein.
5. The substantial questions of law are:
(a) "Whether licence claimed by the original plaintiff was irrevocable?
(b) Whether present appellants as heirs and legal representatives are entitled to inherit and remain in occupation of suit structure upon Municipal land, claiming protection of Section 60(b) of the Easement Act?
6. Learned Counsel for the appellants contended that their predecessor-in-title (original plaintiff) had purchased the suit house by public auction for Rs. 11,500/and sale of house was confirmed on 6.9.1972 by Deputy Municipal Commissioner, Nagpur, and since 2.10.1972 licence in respect of plot of land was granted at Rs. 65 /per month as licence fee. Suit house is permanent structure and licence was irrevocable. He did not dispute that the suit structure is situated on Municipal land and the notice dated 12.8.1975 was received by original plaintiff for cancellation of licence.
7. The learned Advocate for respondent Municipal Corporation submitted that there was no documents to support the claim in the suit and the first Appellate Court recorded findings of the fact which are neither illegal nor perverse. Hence no interference is required in Second Appeal as licence may be revoked by the grantor unless it is coupled with transfer of property and such transfer is in force. Admittedly, suit structure was constructed by previous occupant licencee and not by the plaintiff. Hence licence was revocable and hence revoked by notice.
8. Having heard these submissions and perusing the records, it has to be concluded that there was no evidence to believe that the respondent had granted licence in respect of occupation of land in question to the original plaintiff coupled with grant of interest in immovable property. There is nothing on record to establish that the original plaintiff had constructed house acting upon licence or executed works of permanent nature in incurring expenditure in the execution of works. Therefore, the original plaintiff could not have claimed benefit of Section 60(b) of the Easement Act.
Substantial questions of law raised above are therefore answered as:
(a) .. No
(b) .. No
9. There is no reason to believe that Municipal Secretary had power to grant irrevocable licence. Assuming that licence was granted by Municipal Secretary, the Executive Municipal Secretary in law can only grant such licence which can be revoked or withdrawn, in view of statutory powers to evict person from Corporation premises. Clause (a) and (b) of Section 60 of the Easement Act will have no application to licence even if granted by Municipal Secretary under the City of Nagpur Municipal Corporation Act, being a special Act qua the Easement Act for licence granted by or on behalf of Municipal Corporation. Special Act excludes the provisions of General Act. Hence licence granted by or on behalf of Municipal Corporation is revocable. No one can by merely purchasing a structure upon Municipal land claim "irrevocable licence" without grant of interest in the land or permission to construct permanent house on the land. Even otherwise, mere licence does not create any interest in immovable property in view of Section 52 of the Easement Act. The first Appellate Court has considered the fact on record and applied the legal principles correctly and decided the first Appeal as last court of facts. No ground is made out for interference in Second Appeal by this Court as there was no documentary evidence whatsoever to establish grant of permission or licence to occupy the site and putting up permanent construction of house thereon in favour of the original plaintiff. Therefore, no shelter can be taken by legal heirs or representatives of original plaintiff u/s 60(b) of the Easement Act. I do not find any reason to exercise jurisdiction u/s 100 of the Civil Procedure Code, to take a different view than that of the first Appellate Court as there is no merit in the appeal. Appeal is dismissed. The appellants are granted three months time from today, to vacate the suit site and handing over vacant possession to Respondents. Unconditional undertaking be filed accordingly within a week, failing which appellants shall be liable to be dispossessed of the suit structure forthwith.
