S.S. Satheesachandran, J.@mdashThe appeal is filed by the plaintiff in a suit for declaration that an order passed by the Government cancelling the licence agreement between the plaintiff and the Government is illegal, violative of the terms of the agreement and principles of natural justice, and hence null and void and unenforceable.
2. Plaintiff is a club namely "Trivandrum Golf Club" represented by its Secretary. The defendants in the suit are the Government and some public officials, with two of them sued in their individual capacity. In the suit, over and above seeking a decree of declaration as indicated above, the plaintiff has also asked for a decree of perpetual prohibitory injunction restraining the defendants from evicting the plaintiff from the plaint schedule property and interfering with or obstructing the plaintiff and its members from enjoying such property during the period specified under the licence agreement. An application for interim injunction identical to the perpetual prohibitory injunction sought for, till disposal of the suit, applied by the plaintiff, after hearing both sides, was dismissed by the court below, which, on the materials placed for the purpose of that interlocutory application, came to the conclusion that the plaintiff has not made out a case for the grant of such discretionary relief. Challenge in the appeal is against the order of the court below dismissing the application for interim injunction.
3. Plaintiff, namely, "Trivandrum Golf Club" is hereinafter referred to as the "Club". Subject matter of the litigation is a property having an extent of 25.38 acres of land in Peerorkada village situate at Kawdiar in the heart of Trivandrum city, which is described as the plaint property in the suit. Property originally belonged to the erstwhile Maharaja of Travancore, and pursuant to the accession of the princely state of Travancore with the Union, it became Government land. Admittedly, even long before the accession of the property as Government land, a golf course had been established in such property and was enjoyed by the members of the royal family. After accession of the land to the Government, in 1950, the management of the golf course was entrusted to the Trivandrum Golf Club, which then was an unregistered association, without any written arrangement. Later, after one or two orders passed by the Government with respect to the use of the golf course by the Club, an agreement was entered into between the Government and the Club. Ext.A3 is the copy of that agreement dated 24.6.1967. The Government is styled as the ''licensor'' and the Trivandurm Golf Club, the ''licensee'' in the agreement. The terms of the licence specified that the golf course and attached buildings shall continue to be maintained by the Public Works Department of the Government but the right of user will be with the licensee. Period of the licence was fixed as 99 years. Among other conditions directing the licensee to pay a sum of Rs. 40/- as fee for the user of the golf course and attached buildings, it was also stipulated that the licensor shall have the right to cancel the licence and resume the property at the expiry of 30 years giving the licensee two years notice. In the event of the licensee using the building and premises for any purpose other than for which it was given, it was provided that the licensor shall have the right to cancel the licence and resume the property at any time without notice. The terms of the licence stipulated that the property should not be used for any purpose other than for golf or other sports activities and other incidental social functions connected with sports. While the golf course and the buildings continued to be used by the Club under the licence agreement, complaints about the misuse of the property were levelled from several quarters, and the licensor, the Government initiated proceedings for cancelling the licence of the Club. Such complaints and proceedings taken by the Government have given rise to several rounds of litigations commencing as early from 1999 onwards, as evidenced from the judgments passed by this Court in previous cases, which have been produced and exhibited in the present interlocutory application giving rise to the order impugned in the appeal. A previous order passed by the Government terminating the licence was challenged by the Club and some of its members before this Court and that order was quashed under Ext.A13 common judgment rendered in the petitions holding that the order had been passed flouting the principles of natural justice as the ground on which cancellation was made was not stated in the show cause notice issued to the licensee. However, in Ext.A13 judgment, this Court also held that the Government has unfettered right under Ext.A3 deed to revoke the licence as embodied under Clause xi of that deed. The Government again, after giving notice afresh furnishing particulars of the violation of the terms of the agreement by the Club, cancelled the licence agreement directing the District Collector, Trivandrum to resume the property from the Club. Ext.A25 is the copy of that order. That order is challenged in the suit seeking a declaration that it is void and unenforceable. Pending suit, the plaintiff Club had applied for the interim injunction, which having been turned down under the impugned order, the appeal is preferred.
4. The appellant Club has produced before us five booklets containing the copy of the plaint and copies of several documents, most of which are stated to have been produced before the court below for the purpose of the interlocutory application. Some documents not produced before the court below but only in the appeal, it is submitted by the learned Counsel appearing for the appellant, have significance in adjudging the merit of the claim canvassed by the Club for the interim relief of injunction and also to test the veracity of the order impugned in the appeal. The respondents have filed a statement narrating the sequence of events leading to Ext.A25 termination order. Some supporting documents have also been produced with the above statement, perhaps, to throw more light on the facts stated thereunder. The appellant Club has filed a counter affidavit traversing the various statements filed by the respondents and also a statement showing dates and sequence of events that led to Ext.A25 termination order. We are considering an appeal from an interlocutory order emerging in a suit pending for adjudication. We cannot overlook the statutory interdictions covered under Rule 27 of Order 41 of the CPC in the reception of additional evidence in an appeal against an order passed by the court below on the interlocutory application. No party in such an appeal as of right can claim right to produce additional evidence and seek its consideration by this Court in deciding the correctness of the order impugned. The appellant Club has a case that some of the materials produced before the court below have not been taken into consideration; but, even in such a case, a proper application under Order 41 Rule 27 of the CPC as mandated by the statute is essential, so that this Court may consider whether such additional evidence which is stated to have been produced before the court below but not considered is essential for a proper adjudication of the disputed point between the parties. Needless to point out that any application under Order 41 Rule 27 of the CPC has to be heard along with the appeal at the time of hearing and the reception of additional evidence is permissible only if this Court finds that receiving it is essential for a proper decision in the case. The respondents have moved an application under Order 41 Rule 27 of the CPC for receiving the documents produced as additional evidence. Other than stating that such documents are ''highly necessary'' to substantiate the case of the defendants sufficient ground has not been made out to receive them in appeal. Though the respective Counsel had made some submissions with reference to the additional documents tendered, after hearing the appeal, we find that the documents produced by both sides do not require to be taken into account to pronounce a judgment on the disputed questions involved or for any other substantial cause. Additional evidence in an appeal even under Order 41 Rule 27 of the CPC can be resorted to by the appellate court only after the examination of the evidence on record. That provision does not entitle the appellate court to let in evidence at the appellate stage where even without such evidence it can pronounce the judgment in a case. Having regard to the fact that the order under challenge is passed in an interlocutory application and whatever materials already considered by the court below are sufficient to examine the correctness of the order impugned, we find that fresh materials tendered by the parties do not require to be considered for entering a decision in the appeal. We may also state that in the given facts of the case even if an application had been put up by the appellant under Order 41 Rule 27 of the CPC, no different conclusion is warranted as the materials on record considered by the court below is sufficient to pronounce the judgment as to whether or not the plaintiff is entitled to get an equitable relief of injunction as canvassed for, till the disposal of the suit. Some documents (14 in number), extracts taken from the websites of various golf clubs in India, are produced by the appellant in the appeal with a petition u/s 151 of the CPC for admitting them as evidence to show that all such golf clubs are having the facility of bar. Considering the limited question involved whether the Club, a licensee, has made out a prima facie case for interim injunction, we find such documents have no significance, and hence, the request for their reception by the appellant is not allowed.
5. We heard the learned senior Counsel Sri. T. Krishnanunni, who appeared for the appellant Club and also the learned Additional Advocate General Sri. Ranjith Thampan, for the respondents. The learned senior Counsel Sri. T. Krishnanunni assailed the order of the court below with reference to Ext.A25 order passed by the Government terminating the licence agreement with the plaintiff Club. The attack against Ext.A25 order is projected mainly on three grounds. Inviting our attention to the specific imputations levelled in Ext.A15 show cause notice, the learned Counsel contended that the grounds raised as to infringement of the terms of the licence are not factually true, for which reliance is placed on the terms of the agreement with reference to the various materials produced in the case. It is further contended that Ext.A25 termination order had been passed with a preconceived mind as the Government had already taken a decision to terminate the licence of the plaintiff Club. Referring to each and every specific imputations made in the show cause notice and the reply statement filed by the Club disputing such imputations, the learned Counsel, with reference to the materials tendered, strenuously contended that none of the imputations levelled against the Club as to the infringement of the terms of the licence agreement has any basis, truth or merit.
6. The next line of attack projected by the learned Counsel against Ext.A25 order of termination was that materials not supplied to the Club nor referred to in Ext.A15 show cause notice were relied by the Government in passing the termination order. In that context, reference made in Ext.A25 order as to the website of the Club in which letting out of the rooms in the buildings and also the premises at the rates fixed is pointed out by the learned Counsel contending that no such allegation was raised in the show cause notice calling for any explanation nor at the time of hearing, and so much so, the termination order of the licence passed on such a ground as well is patently illegal and unsustainable under law. Yet another challenge against Ext.A25 order is mooted and pressed into service on the ground that the public official who heard the matter, the Principal Secretary to Government, 2nd defendant, who is impleaded in her personal capacity as well in the suit as the 3rd defendant, was biased and she was predetermined to cancel the licence with the Club in view of what had transpired in the earlier round of litigations between the parties which gave rise to initiation of contempt proceedings by this Court against that official. Even at the time when the hearing on the proceedings under Ext.A15 show cause notice was being held, a SLP filed by the 2nd defendant to remove some observations made by this Court castigating her conduct with regard to the earlier litigation between the parties was pending before the apex court is highlighted by the Counsel to contend that the hearing conducted by that public official was biased, totally unfair and against the principles of natural justice, and so much so, on that sole ground itself Ext.A25 termination order is unsustainable. The Club had raised the apprehension even before the hearing was conducted, imputing bias on the above public official, 2nd defendant, but still she heard the matter and passed the termination order is canvassed by the learned Counsel to impeach the value and merit of Ext.A25 termination order. Expatiating the activities of the Club, in particular, the heavy expenditure incurred by it for maintaining the golf course, which is stated to be collected mainly from voluntary contribution from its members, and the need for preservation of the well maintained golf course in the capital city of the State, it is contended by the learned Counsel that Ext.A25 order, which is impugned as actuated by mala fides out of political consideration, if allowed to be implemented, will result in destruction of the golf course within a matter of no time. Plaintiff Club has made out a prima facie case for maintaining the status quo allowing its continuous user of the plaint property as of now till disposal of the suit, after a fullfledged trial, giving opportunity to substantiate its case as to the illegality and unenforcibility of Ext.A25 termination order, and so much so, the order impugned in the appeal has to be reversed allowing the interim order of injunction applied for by the Club, is the submission of the counsel.
7. Per contra, the learned Additional Advocate General Sri. Ranjith Thampan emphasising that the Club has only permissive occupation, and as a licensee, it has no competency to seek any of the reliefs canvassed in the suit, narrated the sequence of events, which culminated in the passing of Ext.A25 termination order. The Club, it is contended, had flagrantly violated the terms and conditions under Ext.A3 licence deed. The learned Additional Advocate General submitted that the very object for which the golf course and the premises (the plaint property) were handed over to the Club was ''to promote tourism''. Negating that object, and in violation of the terms of Ext.A3 deed, the Club had engaged in activities for profit making. FL-4 licence for operating a bar was obtained in the premises suppressing material facts and even without obtaining any permission from the Government. Plaint property, which belong to the Government was shown as the asset of the Club even in its balance sheet and also website, and in doing so, the licensee Club was setting up a title as against the licensor - the Government. When the licence contemplated carrying out of sports activities and that alone, the premises were let out for film shooting, receptions and meetings and even the rooms of the heritage building were let out for collecting rent and also for conducting a bar obtaining FL-4 licence suppressing material facts. Such acts by the Club amounted to flagrant violation of Ext.A3 licence deed, which mandated the use of the premises only for the sports activities. Inviting our attention to the judgments rendered by this Court in previous cases between the parties and also the sequence of events right from the report of the Public Accounts Committee of the State Legislature, way back in 1969, questioning the propriety of spending funds from the public revenue for the buildings and premises in the plaint property, which are being used by a private Club, it is submitted by the learned Additional Advocate General that the directions/orders issued by the Government to amend the Articles of Association of the Club to give effect to the purport and object of the Government in directing inclusion of six Government nominees in the Executive Committee of the Club has not been complied by the Club so far. Even now under the bylaws of the Club (Ext.A1) as under Clause 22, the quorum fixed for a Committee meeting is 3 is pointed out by the learned Additional Advocate General to contend that inclusion of six Government nominees in the Committee out of the 11, the total strength, has been rendered practically meaningless and ineffective. The Club, which is in the hands of a few people, defeating the very purpose for which the management of the golf course was entrusted, is now catering to the interest of some affluent members of the Association and the main activity is profit making and not anything connected with sports, is the submission of the learned Additional Advocate General.
8. Challenge against Ext.A25 termination order passed by the Government imputing bias on the public official, 2nd defendant, who heard the matter, is resisted by the learned Additional Advocate General contending that it was an institutional hearing and order of termination was passed by the Government as approved by the Minister. Since there is no case that the Government or Minister is biased, the attack against the order imputing bias on the public official, who heard the matter, has no merit at all, according to the learned Additional Advocate General. Reliance is placed on Sudheer T. v. M.V. Susheela and Ors. ILR 2009 Ker 121 and
9. The most significant question to be looked into on the materials placed and rival submissions made is the legal entitlement of the plaintiff Club, admittedly, a licensee, to get a discretionary relief of interim injunction against the Government the licensor, the paramount title holder of the land, preventing it from causing any obstruction to the enjoyment of the plaint property by the licensee till disposal of the suit. No doubt, the legal entitlement of the plaintiff Club to seek the equitable relief of injunction has to be examined with reference to the facts involved in the case and also the law applicable. The very foundation of the claim for interim injunction, and in fact, all the reliefs in the suit is based on a contract, a licence agreement between the Cub and the Government over the use of the plaint property. The termination of the licence under Ext.A25 order is challenged in the suit as void and unenforceable, and over and above a declaration as such a decree of perpetual injunction as against the licensor is also applied for. In such circumstances, it is imperative to examine under which rule of Order 39 of the Code of Civil Procedure, the relief of interim injunction fall for consideration. The cases in which temporary injunction may be granted are covered by Rules 1 and 2 of Order 39 of the CPC. In the present case, since the plaintiff Club has sought for an injunction to restrain the defendants from interfering with its user over the plaint property after the termination order (Ext.A25), impeaching the validity of that order, Rule 1 of Order 39 of the CPC alone has application. The learned Counsel for the plaintiff Club has submitted before us that though the relationship of the Club and the Government is of a licensee and licensor, there are contracts to the contrary which render the licence arrangement irrevocable. What are the terms of contract to the contrary taking the licence arrangement between the parties outside the ambit and scope of termination insulating it with irrevocability was not canvassed or pointed out on the premise that such questions are germane only in considering the maintainability of the suit and not at a stage while determining the prima facie case to be shown for sustaining an application for interim injunction to claim a discretionary relief. We, however, have no doubt that in determining the legal entitlement of the plaintiff club for the equitable relief of injunction whether the licence arrangement it has over the plaint property is revocable or not at the instance of the licensor Government is vital, decisive and of crucial value.
10. In the plaint, a copy of which is produced, and also in the reply (Ext.A16) given to the show cause notice, the Club has taken a stand that the licence arrangement is irrevocable. We are not impressed by the case so projected by the plaintiff Club since it is found even prima facie that it was not open to the plaintiff Club to advance such a claim as to the irrevocability of the licence in view of the concluded decision between the parties rendered in the judgments of this Court over the challenge made against the previous order of termination of licence passed by the Government. The Government has previously passed a termination order revoking the licence with the Club by Order GO (MS) No. 172/08/RD dated 31.5.2008 (Ext.A12) and it was the subject matter of challenge in three writ petitions, one filed by the plaintiff Club and the other two by some of its members. Ext.A13 is the common judgment dated 23.9.2008 rendered by this Court in the above writ petitions. A perusal of Ext.A13 judgment spell out that the parties joined in issue as to whether there was a licence, and if so, whether it is revocable or irrevocable at the instance of the licensor. This Court, after considering the materials placed and also more particularly analysing the terms of Ext.A3 licence deed, has held that the Club is having use of the golf course and the premises as a licensee under Ext.A3 licence deed and such licence arrangement is revocable by the licensor, the Government, as provided under Clause xi of that deed. We also take note that the stand of the Government then, repudiating the licence arrangement for the reason that the contract between the Government and the Club was not executed in accordance with the Rules of Business under Article 166 of the Constitution of India and that the original of the licence deed was not produced, had been repelled by this Court analysing the conduct of the parties as borne by the materials produced establishing that the plaintiff Club, as a licensee, was permitted to use the golf course and its premises in accordance with the terms of Ext.A3 licence deed. This Court has held in the above judgment that the Club is a licensee and the Government, the licensor, and the licence arrangement is governed by the terms of Ext.A3 licence deed. The competency and authority of the licensor to revoke the licence arrangement with the Club was also gone into by this Court with reference to the terms of Ext.A3 deed. Taking note of the relevant Clauses under Ext.A3 deed, particularly, Clause Nos. vii, ix, xi and xii, the irrevocability of the licence canvassed by the Club impeaching the termination order passed by the Government was considered by this Court, and, after careful scrutiny with reference to the terms of Ext.A3 licence deed, and more particularly, on the revocation Clause provided under Clause xi of that deed, it has been held that the licence is revocable. Clause xi of Ext.A3 deed, which is the revocation clause, reads thus:
xi. In case the land and buildings are required for any purpose of the licensor, the licensor shall have the right to cancel the licence and to resume the property at the expiry of 30 years from 11th October, 1966 by giving the licensee two years'' notice. The licensor shall also have the right to cancel the licence and resume the property at any time, without notice in case the buildings and premises are used for any purpose other than that for which it is given.
The two limbs of the above revocation clause, the former empowering the licensor to revoke the licence subject to extending a grace period of two years from the date of notice to the licensee for resuming the property, and the latter, in the event of violation of any of the terms of Ext.A3 licence deed by the licensee, without notice, were examined and interpreted by this Court in the above writ petitions and, it was held that the government has a pre-eminent right to revoke the licence under the first limb of Clause xi of the deed, and to exercise that power the requirement is only of giving a notice of two years, and nothing more. Since the challenge in the above writ petitions was with respect to the termination order passed for violation of the terms and conditions of Ext.A3 deed falling under the second limb of Clause xi, this Court proceeded to examine the challenge raised against the order that the principles of natural justice had not been complied with by the Government in passing such order. Noticing that in the show cause notice issued to the Club, the essential foundation for revocation, the ground imputed with respect to the violation of the terms of Ext.A3 deed had not been spelt out, this Court set aside the termination order of the licence challenged in the writ petitions. The findings and conclusions arrived by this Court on the disputed questions canvassed in the case with respect to the relationship of the plaintiff Club and the Government as licensee and licensor, and the licence arrangement under Ext.A3 licence deed is revocable in accordance with Clause xi of Ext.A3 licence deed repelling the case of the club as to its irrevocability are decisive and binding, and, no party in the proceedings can be permitted to advance a case contrary to what had been decided with respect to the relationship and also the revocability of the licence as concluded in Ext.A13 judgment. It is necessary to recapitulate the findings of this Court on the disputed questions with respect to the licence arrangement and also its revocability, which had been summarized and given expression to by this Court in paragraph 43 of its Ext.A13 judgment:
43. Since the discussion undertaken by me was fairly elaborate, I consider it appropriate to summarize my conclusions:
(a) Undisputedly, the Government is the owner of the property and therefore, the Government is entitled to exercise its power to protect its title and right over the property. The right available to the petitioner club is limited to the rights specified in the licence deed. The petitioner has no residuary right and cannot claim any right over and above what is specified in black and white in the licence deed.
(b) The relationship between the Government on one hand and the petitioner club on the other is that of a licensor and a licensee and the conditions of licence are those which are contained in the licence deed dated 24.6.1967.
(c) The Government has comprehensive powers to put an end to the licence and resume the property and/or the management of the Golf Course in exercise of its power as contained in Clause 11 of the licence deed.
(d) The Government is entitled to revoke the licence and seek resumption of the property, either by exercise of the power under the 1st limb of Clause 11 in which case, it is open to the Government to dispense with a show cause notice and dispense with the requirement to give reasons. All that is required in such case is to give the club two years'' notice before resuming possession.
(e) The Government also has the power under the second limb of Clause 11 to revoke the licence and resume possession of the property, if it is found that the club premises have been used for purposes other than the ones for which the licence was granted.
(f) Principles of natural justice dictate that specific allegations be made in the show cause notice issued by the Government, prior to exercising the powers under Clause 11 of the licence deed, if the Government tentatively comes to the conclusion that the club premises are used for purposes other than the one for which the licence was granted.
(g) (Not relevant and hence omitted)
Ext.A13 judgment was challenged by the petitioners in the writ petitions, all of them, preferring writ appeals. The learned Additional Advocate General has contended before us that the appellants in such writ appeals have specifically challenged the findings made by the learned Single Judge over Ext.A3 licence deed that it is revocable by the licensor Government under both limbs of Clause xi of that deed. A copy of the appeal memorandum is produced, but as already stated, we have declined to receive it as additional evidence. However, that in such writ appeals challenge was made against the findings of the learned Single Judge with respect to the revocability of the licence in accordance with Clause xi of Ext.A3 deed is not disputed.
11. In Ext.A17 judgment rendered by the Division Bench, the findings made in Ext.A13 judgment had been approved except with respect to the direction issued to the Government for issuing the show cause notice afresh, within the time limit fixed, over the violation of the licence arrangement imputed against the licensee Club, and also the view expressed by the learned Single Judge that a termination order under the first limb of Clause xi of Ext.A3 deed cannot be the subject matter for further enquiry and that it cannot be questioned. The Division Bench clarified that the direction to the Government to issue fresh notice is not a positive direction. It was also made clear that the observations of the learned Single Judge would not preclude the aggrieved party in impeaching the final order passed if it is challengeable on any valid grounds. However, it is seen, the Division Bench has qualified its observations made in respect of a challenge against the final order if any passed stating in unambiguous terms that the affected party can challenge such order before appropriate forum ''if allowed by law''. The licence arrangement between the parties is governed by Ext.A3 license deed and that arrangement is revocable under Clause xi of that deed, as found by the learned Single Judge in Ext.A13 judgment, it is to be noticed has been upheld by the Division Bench in Ext.A17 judgment. The Division Bench has held thus:
As the Government is the owner of the property and the Club is only a licensee, the licence can be terminated as per the conditions in the licence deed.
The licence arrangement is revocable by the Government as provided in Clause xi of the Ext.A3 licence deed either under the first limb providing a grace period of two years to the licensee in case the Government finds that the resumption of the land is essential for any of its purpose, on expiry of 30 years period from the commencement of the licence, and in the event of violation of any of the licence conditions after issuing a notice, as held under Ext.A13 judgment negativing the irrevocability of the licence arrangement set up by the Club in effect was approved and sealed with finality under Ext.A17 judgment by the Division Bench. The licence is revocable whether it be under the first limb or the second limb by the licensor Government, the paramount title holder, as concluded by this Court is insulated with finality as there is no further challenge against Ext.A17 judgment. The Government which had sought to sustain termination of licence challenged in the writ petitions covered by Ext.A13 judgment by disputing the licence arrangement, and also the Club, the licensee, which had projected a case of irrevocability of the licence, to challenge the termination order, can no longer project any case contrary to and conflicting with the finding and conclusion arrived by this Court by the learned Single Judge in Ext.A13 judgment as confirmed by Ext.A17 judgment by the Division Bench.
12. In the present suit, as seen from the copy of the plaint, the plaintiff Club has canvassed a case as to the irrevocability of the license arrangement as if this Court had held in Ext.A17 judgment that it has the right to challenge the termination order, if any, passed by the Government before a civil court on such a ground as well. Observations made by the Division Bench in Ext.A17 judgment that the Government in passing a final order even under the first limb of Clause xi of Ext.A3 deed has to comply with the principles of natural justice and as against the final order, if any, passed the right of the aggrieved party to challenge such order in appropriate forum, subject to the qualification made, if allowed by law, by no stretch of imagination could be canvassed by the plaintiff Club to found a case that the license arrangement is irrevocable. Once the license is found to be revocable, any challenge against such order of revocation can be founded only in the manner provided by law. Whatever way the plaintiff Club may project a case over the licence arrangement with the Government shaping out and presenting such allegations to make out irrevocability of the licence, in view of the concluded decision rendered by this Court in Ext.A13 judgment as confirmed by Ext.A17 judgment, it cannot be countenanced under law as the conclusive finding that the license is revocable under Ext.A3 license is sealed with finality. The Division Bench in Ext.A17 judgment has made it clear that against the termination of the licence, if so passed by the Government, the aggrieved party is at liberty to challenge it before the appropriate forum ''if allowed by law''. The clarification made that such a challenge ''if allowed by law'' is very crucial and of much significance. Irrespective of the above observation in Ext.A17 judgment, it is needless to point out that any challenge against the termination order of a licence which is revocable can be set up only as provided under the law of the land. This Court cannot confer to any party by any order or judgment to set up any right or challenge which is not otherwise available to a party under the law and the Constitution of the land. Such being the position, the plaintiff Club cannot set up a challenge against the termination order of the licence that it is irrevocable.
13. We notice that the Club has raised some allegations in the plaint as to the irrevocability of the licence arrangement contending that the licence cannot be terminated by virtue of Section 60(b) of the Indian Easements Act and also for the reason that the Club is under the joint administration of a homogeneous executive committee where the majority consists of Government nominees. Such allegations in whatever way they are modulated would not assist the Club to get over the concluded finding entered under Ext.A13 judgment that the licence arrangement is revocable by the licensor Government as per the terms of Ext.A3 deed. We refrain from making any further observation or comment on the allegations raised by the Club to canvass for the irrevocability of the licence arrangement despite the conclusive finding entered under Ext.A13 judgment as confirmed under Ext.A17 judgment that the licence arrangement is revocable by the Government, the licensor.
14. The doctrine of res judicata is an universal doctrine which lays down the finality of the litigation between the parties when a particular decision has become conclusive and final, whether it be in a suit or writ, and it is binding on the parties, and none of them can be permitted to reopen the issue decided. When this Court in the writ petitions covered by Ext.A13 judgment has interpreted the provisions of Ext.A3 license deed and decided the disputes between the parties as to whether the licence arrangement is revocable or not, and entered a finding that it is revocable under Clause xi of that deed and that decision having been approved in Ext.A17 judgment the parties are bound by that decision that the license arrangement is revocable at the instance of the licensor. No party can be permitted to re-open such a decision which is entered on merits. The principles of res judicata are applicable to the decision rendered on merit in the writ petitions as well. The apex court has held thus in
The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must, bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32.... An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence.
The principle of constructive res judicata underlying Explanation IV of Section 11 of the CPC, it was held, is applicable to the decisions rendered in writ cases as well. So much so, whatever way the plaintiff may shape out a case setting forth allegations as to the revocability of the licence arrangement it cannot be countenanced as it is barred by constructive res judicata in view of the conclusive decision rendered in Ext.A13 judgment as confirmed by Ext.A17 judgment that the licence arrangement is revocable.
15. Now when it is seen that the licence is revocable, the pertinent question emerges for consideration whether a licensee, the Club can seek an interim injunction as against the licensor to continue the user of the land covered by the licence agreement. The rights and obligations of a licensor and licensee are governed by the provisions in Chapter VI of the Indian Easements Act. The law governing their rights as under the above Act is exhaustive and there cannot be any exception to the rules enshrined thereunder. Licence is just a permission by the licensor to do an act, or to occupy the particular premises for a particular time, which, in the absence of such right, will be unlawful. The licensee has no interest in the property and his possession and enjoyment of his right is not juristical possession but only occupation under a permissive arrangement. The moment the permission is withdrawn, the possession of the licensee is that of a trespasser. Where the licence is found revocable at the instance of the licensor, can such a licensee maintain a suit for perpetual prohibitory injunction to continue user of such land till expiry of the licence period, is the question to the considered. The answer, no doubt, has to be expressed in the negative. The rule to enable a party to get a decree of perpetual prohibitory injunction as covered u/s 38 of the Specific Relief Act is its entitlement under the law to prevent the breach of an existing legal right of such person by means of an injunction. So, what is the existing legal right vested in the plaintiff, of which there has been a breach or threatened violation by the defendants, has to be established to claim a decree of perpetual prohibitory injunction. A licensee, who is in permissive use, with no vested right of enjoyment over the land, is incompetent to claim a decree of perpetual prohibitory injunction against the licensor where the licence arrangement is revocable and so revoked by the licensor. A licensee is entitled to a reasonable time to leave the property on revocation of the licence and also to remove his goods in such property. Even in a case where the licence has been revoked without providing such reasonable time, he cannot claim an injunction to continue for user of the land after revocation of the licence. His remedy is only to sue for damages provided he is entitled to the right conferred u/s 64 of the Indian Easements Act. In
16. In Dominion of India v. R.B. Sohan Lal AIR 1950 P&H 40, considering the question whether a licensee is entitled to an interim injunction against the licensor after revocation of the licence, it has been held that where the agreement had created a revocable license, interim injunction cannot be granted. Das, C.J. (as his lordship then was) pointing out that the irrevocability of a licence has to be judged upon within the narrow campus covered by Section 60 of the Indian Easements Act, which, in fact, is not required in our case as it had been concluded that Ext.A3 license deed is revocable, has held even where a bare licence is revoked without reasonable notice, the remedy of the licensee is by way of damages and not by way of injunction. Dilating on that question, it has been further held the licensee in such a case cannot seek a perpetual prohibitory decree of injunction against the licensor, and so much so, no interim injunction also can be granted in his favour. In view of the conclusive decision rendered under Ext.A13 judgment as confirmed in Ext.A17 judgment that Ext.A3 licence deed is revocable under both limbs of Clause xi of that deed by the licensor, the licensee Club cannot set forth a case as to the irrevocability of the licence, and on that basis, claim any decree of perpetual prohibitory injunction against the licensor to continue for user of the land for the period fixed under the licence when it is found that the licensee Club, in the given facts of the case, cannot claim an interim injunction against the licensor, whatever be the merit of its case to get a declaration that Ext.A25 passed by the Government revoking the licence is invalid and unenforceable.
17. In view of the conclusion formed by us as above that the appellant Club cannot maintain an application for interim injunction against the Government - the licensor, it is unnecessary for us to examine the grounds on which Ext.A25 order had been passed by the Government revoking the licence arrangement. Still, after having heard the Counsel at length and scanning through the materials tendered by both sides, we are satisfied that the conclusion formed by the court below that the Club has not made out even a prima facie case to show that Ext.A25 order suffer from any infirmity. The learned Counsel for the Club with reference to the materials produced had vehemently emphasized that none of the grounds specified in the show cause notice has been established for revocation of the licence. Ext.A15 is the notice issued to the Club to show cause why the licence should not be terminated. No doubt, that notice was issued under the second limb of Clause xi of Ext.A3 deed. A notice under the first limb of Clause xi for terminating the licence providing a period of two years to leave the premises had also been issued by the Government. Ext.A14 is that notice. We are concerned only with Ext.A15 notice in the present appeal. The main allegations imputed in Ext.A15 show cause notice is that without permission from the Government suppressing materials facts, the Club had obtained an FL-4 licence to operate a bar in the plaint property. Even the heritage building in the plaint property had been modified for conducting the bar, and the plaint property had been shown as the asset of the Club. The property is being used for commercial activities for marriage functions, film shootings and other celebrations in violation of the terms of the agreement though the user is restricted only for sports activities. It was urged before us that the Excise authorities had obtained a no-objection from the Government over the application moved by the Club seeking an FL-4 licence, and that the operation of a bar where golf course is conducted caters to the interest of golfers including the tourists coming from outside the country. Ext.A27 communication sent by the Secretary (Taxes) to Excise Commissioner is banked upon by the club to contend that there was no objection from the Government to issue FL-4 licence to Club to conduct the bar in the buildings in the plaint property. Inviting out attention to the Rules of business framed under Article 166 of the Constitution of India, the learned Additional Advocate General has submitted that the Public Works Department is the authority which alone has competency to consider the grant of permission to operate a bar in the Government building. Ext.A27 communication from the Secretary (Taxes), reply to the letter from the Excise Commissioner with respect to the granting of FL-4 licence, is stated to be a routine affair followed in the ordinary course. Secretary (Taxes) has no competency to grant permission to operate a bar in a Government building, and at any rate, Ext.A27 communication is not an order of the Government granting permission to the Club to operate a bar in the plaint property, according to the learned Additional Advocate General. We find some force in the submissions made by the learned Additional Advocate General. We notice that the Club has no case it has moved the Government for permission to conduct a bar in the plaint property. We find from the materials placed that even the rooms in the heritage building had been shown, and most probably used as well, to satisfy the requirements for getting an FL-4 licence to operate a bar. The Excise authorities, on receiving such an application, had elicited from the Government whether it has objection or not, as rightly contended by the learned Additional Advocate General, would not come to the assistance of the licensee to contend that it has applied for and later operated the bar with the permission of the Government. Having regard to the restrictive conditions imposed under Ext.A3 licence deed that the property should not be used for any other purpose other than for golf or other sports activities, it is futile on the part of the licensee Club to contend that the operating of a bar after obtaining an FL-4 licence without the permission of the Government is something incidental or connected with sports. The Club has been letting out the rooms in the building and premises, and collecting rent, is also borne out by the materials tendered. The explanation offered that such letting out is only to the members of the Club and members of other clubs appears to be a specious plea unworthy of any merit. We do not find any merit in the grounds canvassed to assail Ext.A25 order that no notice was given with respect to the publication made in the website in the name of the Club in the show cause notice. Essential foundation that the Club is letting out the rooms and premises for collecting rent as a commercial activity is made out in the show cause notice, and no specific notice that it had placed advertisement in the website operated in its name for that purpose, was warranted or given notice of. In the website in the name of the Club, the rate of rent for the premises, lawn area, etc. from members and non-members are advertised, and it is indicative that the Club had been letting out the rooms and also the premises for profit making unconnected with the sports activities. We do not find it necessary in the given facts of the case to examine the violations imputed against the Club by the Government in Ext.A25 order for cancelling the licence arrangement as we are prima facie satisfied that the order of termination passed by the Government is based on justifiable grounds. More over, so far as this Court is concerned, at the stage of examining the challenge against the declining of the equitable relief of injunction applied for by the plaintiff, it is not proper for this Court to sit in judgment on the merit of Ext.A25 order which had been passed by the Government as empowered under the licence deed enabling it to revoke the licence arrangement on being prima facie satisfied of the grounds of violation of the terms and conditions by the licensee.
18. We have asked the learned Additional Advocate General why the Government has proceeded for termination of the licence arrangement under the second limb of Clause xi of the deed when it is fully empowered to revoke the licence as under the first limb of the above Clause providing a period of two years without assigning any cause. The preeminent right of the Government to cancel the licence arrangement after providing two years grace period after expiry of thirty years from the date of Ext.A3 licence deed has been recognised and approved in the previous decisions rendered by this Court prompted us to raise that query. The learned Additional Advocate General Sri.Ranjith Thampan submitted that a notice under the first limb of Clause xi (Ext.A14) had already been issued and the period of two years'' from such notice is also over. However, in view of the suits and writ petitions filed by the Club and its members, one after the other, and the disputes brought under the seizin of the court, the Government has refrained from taking any action pursuant to Ext.A14 notice and now awaits for decision of this Court in the present appeal, submits Sri.Ranjith Thampan. We do not wish to express any opinion on the stand of the Government, but do note that the writ petitions and civil suits by the Club and its members have stalled the Government from resuming the land even after revocation of the licence, inspite of this Court declaring in unequivocal terms its authority and empowerment to do so under Ext.A3 deed.
19. The bias imputed against the 2nd defendant, the Principal Secretary to Government of Revenue Department, who has been impleaded as 3rd defendant in her personal capacity also, setting forth various allegations, does not impress us the least. The decision is taken by the Government and not by the 2nd defendant, the Principal Secretary to Government. The learned Additional Advocate General has brought to our notice the ''Rules of Business'' framed by the Government in exercise of the powers under Clause 2 and 3 of Article 166 of the Constitution of India. The decision making in respect to the ownership of the land and incidental matters relating to them under the Rules of Business framed are to be dealt with by the Revenue department. Ext.A25 order has been passed by the Government after a personal hearing extended to the person - Club proceeded against. The hearing was conducted by the 2nd defendant does not postulate that Ext.A25 order is based solely on her decision but not that of the Government. On the contrary, it was a case of institutional hearing and the decision is that of the Government. Even if the 2nd defendant had entertained any preconceived view over the matter in issue, it is to be noted the decision is not made by her but by the Government indicating that the hearing conducted by her was only in her official capacity as a revenue official. The decisions rendered by the apex court in
20. We also note that the Club has advanced a case that the relationship between the Government and the Club is more than that of a licensor and licensee, since the Government has nominated six of its Governments officials out of the 11 in the Executive Committee of the Club. There was participation by the Government in all decision making of the Club and so much so, the violation imputing infringement of the terms of Ext.A3 deed cannot be impeached by the Government, is the case of the Club. The Club, an unregistered association at the time of entering into the licence arrangement under Ext.A3 deed, later in 1984 got registered under the Travancore, Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (Act 12 of 1995). We do not understand what is the scientific, literary and charitable activity that would enable Club to register under the above Act. The very purpose of entrusting user of the golf course to the Club was for sports activities to promote tourism, and not for any object covered under the above Act. Whatever that be, the inclusion of the government nominees in the Executive Committee of the Club was at a stage when the Club was an unregistered body. The Club, by getting itself registered under any Act cannot get any larger right as against the licensor Government. The licensee Club getting registration under Act 12 of 1955 in no way affects the right of the licensor over the property covered by the licence arrangement. The learned Additional Advocate General has also canvassed before us that the Chairman of the Sports Council, which is coordinating the sports activities in the State, who is among the nominees of the Government in the Executive Committee of the Club has raised a grievance that no notice of any meeting is given to him and he is not even informed of any of the activity of the Club. Ext.A25 order of termination of licence, it is noticed, was passed after hearing all parties including the Director of Sports and Youth Affairs. We find that the submission made by the learned Additional Advocate General in the light of what is stated in Ext.A25 order with respect to the communication sent by the Chairman of Sports council, cannot be brushed aside. The very object of the Government in directing for inclusion of six of its nominees in the Executive Committee was to streamline the functioning of the Club and to have more effective role for the Government when complaints were raised against the functioning of the Club. We notice that despite directions from the Government, the Articles of Association of the Club (Clause 22) even now has fixed a quorum of three members inclusive of President or the Secretary for the quorum in a meeting. Though the nominees of the Government are included in the Executive Committee, decisions of the Club, evidently, are being taken by a few persons at the helm of its affairs. We do not want to express any opinion with respect to the functioning of the nominees and also as to whether there was any participation by any of them in executive committee in safeguarding the interest of the Government, for which, their inclusion as nominees in the Executive Committee was made. At this juncture, we may point out that in the counter filed to the injunction application by an Under Secretary to the Government before the court below, it has been stated in paragraph 37 thus:
Annex building was constructed by the plaintiff (Club) without permission from the licensor. It is a clear violation of the licence condition.
We may state that the Club has no such case that it has constructed the annex building, and, admittedly, that building was present even before Ext.A3 licence deed came into existence. We have pointed out the above circumstance in the light of the submissions made by the learned Additional Advocate General that the Club wherein top bureaucrats, business magnates, film stars etc. are members, is much influential and the steps taken by the Government to resume the land despite proved violation of the licence conditions is getting support from some bureaucrats in the Government as well. In the given facts of the case and as disclosed by the materials as well, wherein it is seen that the Club could obtain licence for operating a bar in the premises without any permission from the Government, that too, after making modification in the heritage building in the premises, we find that the submission made by the learned Additional Advocate General cannot be discarded as totally irrelevant.
21. The learned Additional Advocate General submitted that on giving effect to Ext.A25 order and after resuming the land from the Club, the Government intends to retain the golf course making it available to all sections of the society, and not to restrict it to a reserved class, the affluent sections of the Society as at present, by the Club. The management of the golf course will be vested with the Sports Council and its function will be carried with the assistance of experts, and even the Club can also render such services, is the submission of the learned Additional Advocate General. The learned Additional Advocate General also submitted that the submissions made as above can be recorded so that any infringement thereof can be checked. We find no reason to doubt the submissions made by the learned Additional Advocate General that the golf course, which is in existence for more than a century, will be preserved and retained. However to allay the apprehension canvassed as to the destruction of golf course once the plaint property is resumed by the Government, we record the submissions made by the learned Additional Advocate General Sri. Ranjith Thampan that the golf course will be preserved and kept well maintained by the Government on resumption of land from the licensee Club.
22. Normally, in an appeal from an interlocutory application, a detailed discussion on the various facets of the case, both on facts and law, is not called for nor expected to as all questions connected thereto have to be resolved in adjudication of the suit after a full fledged trial. However, on the peculiar facts and circumstances presented in the case, we have found it essential to dilate on the question of law on the legal entitlement of the plaintiff Club, the licensee to seek an interim injunction as against the licensor after revocation of the licence. Despite the conclusive finding rendered by this Court in Ext.A13 judgment rendered in the writ petitions filed against the previous order of termination by the Government and its confirmation under Ext.A17 judgment, we find that the Club, and also indirectly through its members, have been resisting the resumption of the land by the Government waging multifarious litigations before various forums. The case canvassed by the Club in the present suit as disclosed from the copy of the plaint, that the licence arrangement is irrevocable despite a finding that it is not so by this Court in Ext.A13 judgment and confirmed in Ext.A17 judgment in writ appeals holding that the right of the Government to terminate the licence is unfettered under no circumstances can be viewed as skillful drafting of pleading, but, definitely, of material distortion of facts to claim the reliefs canvassed in the suit. We also find that the Club, which is only a bare licensee, with the user permitted under the licence arrangement revocable under the two limbs of Clause xi of Ext.A3 licence deed, has even prevaricated from filing a reply to the show cause notice taking shelter that the matter is sub judice in view of the suit filed against the Government by some of its members. A suit was filed by some of the members of the Club to resist the resumption of the land. That suit now stands withdrawn after they failed to get interim orders from the courts. We find that the Club, a licensee, has been supporting the case of its members who had no privity to contract with the Government, the licensor, to resist the revocation of the licence and the resumption of the land covered by the licence arrangement. The Club, a licensee, has evidently, by its conduct and acts, repudiated the interest of the Government, the licensor - paramount title holder of the land. The conduct of the plaintiff Club, a licensee after the passing of Ext.A13 judgment is also a material circumstance demonstrating that it has not approached the court with clean hands. We have not examined the question whether a licensee can seek a declaration that the revocation of the licence arrangement by the licensor is illegal and unenforceable. A person may file a suit u/s 34 of the Specific Relief Act of 1963, as to any legal character, or as to any right to any property. It is a discretionary relief. What is the legal character of a bare licensee after the licence is revoked does not require any elucidation. Once the permission is withdrawn by the licensor, he has not even the status as a licensee but only as a trespasser. No doubt, the declaratory decree can be asked for otherwise than u/s 34 of the Specific Relief Act, if a person is so entitled to such declaration. In
23. Order impugned in the appeal in the light of the discussion made above deserve only to be confirmed but on other grounds also as stated. The legal battles waged by the Club either on its own or through its members using the forums of the court despite a conclusive finding entered by this Court that its user as a licensee is terminable with the licensor Government having unfettered right to terminate it subject to the terms of Clause xi of Ext.A3 licence deed cannot go unnoticed by this Court, and, we find that the Club cannot be permitted to put any more spokes to resist the resumption of the land by the Government, the paramount title holder. As the Club, the licensee has no right to continue in the land after revocation of the licence arrangement and its continuous use after termination is only as a trespasser, no indulgence is called for. However, considering the fact that the golf course in the property is managed at present by the Club, a period ''four weeks'' time from the date of this judgment is provided for removing its goods from the property. After the expiry of the period provided, the Government is at liberty to evict the Club if it has not vacated from the premises, in accordance with law.
The appeal is accordingly dismissed.
