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LICENCE[1]
(Ss. 52 to 64)
QUESTION BANK
Q.1 Define licence. State and explain the characteristics of licence. Distinguish between licence and easement?
Q.2 Define easement and distinguish it from licence.
SYNOPSIS
- Definition of “licence” S. 52-
- Characteristics or essentials of licence-
1) Two parties-
2) Grant-
3) Right to do or continue to do something-
4) In or upon the immovable property of grantor-
5) Act which would otherwise be unlawful-
6) Licence is not easement-
7) Licence is not an interest in land-
8) Licence is not transferable (S. 56)-
III. Difference between lease and easement-
1) Acquisition by consent or compulsion-
2) Positive and negative act-
3) Personal right / proprietary right-
4) Transferable-
5) right against transferee of property-
- Difference between licence and lease- (Discussed in the topic of lease in detail)
- Ditties of Grantor-
1) Duty to disclose defect (S. 57)-
2) Not to render property unsafe (S. 58)-
- Rights of Licensee-
1) Licensee’s rights on revocation (S. 63)-
2) Licensee’s rights on eviction (S. 64)-
VII. Revocation of licence-
Licencee when deemed revoked (S. 62)-
1) By end of grantor’s interest-
2) Release by licensee-
3) By expiry of the time period fixed or fulfillment of condition-
4) By destruction of subject matter of licence-
5) By permanent change by superior force-
6) By licensee himself becoming full owner-
7) By fulfillment of the object of licence-
8) By cession of office, employment or character-
9) By non-use for twenty years.
10) By cession of accessory right.
- 52 of EAsements
Licence is an authority justifying the doing of which otherwise would be wrongful[2]. In other words, a licence is permission to do what he cannot without such permission.
I. Definition of “licence” S. 52:-
Where a person grants-
(i) to another or to a definite number of other persons,
(ii) a right to do, or continue to do,
(iii) in or upon the immovable property of the grantor,
(iv) something which would, in the absence of such right, be unlawful, and
(v) such right does not amount to an easement or an interest in the property
-the right is called a ‘licence.’[3].
Thus, a licence is a right given to another person by a person in or on his immovable property for doing something which is wrong without such a licence.
II. Characteristics or essentials of licence:-
Following are the essential characteristics of a licence, viz:-
1) Two parties:-
There shall be two parties to the agreement of a licence. The party who gives the grant is called the ‘grantor’, and the party to whom the licence is given is called the ‘licensee’. Both parties to the licence must be competent to enter into a contract.
2) Grant[4]:-
Grant or grant licence to the licensee. Grant is necessary for creating a licence. The grant may be express or implied (S.54). Due to the grant, the licensee is permitted to do something which otherwise he would not do.
Anyone can grant the licence in the circumstances and to the extent to which he may transfer his interest in the property affected by the licence (S. 53).
3) Right to do or continue to do something[5]:-
Licence is a privilege or liberty given by the grantor to the licensee to do something which the licensee would not otherwise do. Licence is always positive and not negative. It is negative in the sense that it does not authorise restraint or prevention. Similarly, every licence issued to do some act also includes the right to do ancillary activities (S. 55).
Illustration
A sells the trees growing on his land to B. B is entitled to go on the land and take away the trees.
4) In or upon the immovable property of the grantor:-
License is the authority or liberty to do something licenced in or upon immovable property of the grantor. However, such a licence does not create any interest in the property. Licence is merely personal. It authorises the licensee to do something upon the property of the grantor; it does not create any right or interest on the property of the grantor.
5) Act which would otherwise be unlawful[6]:-
Licence is the authority or liberty to do something licenced in or upon immovable property of the grantor; without such a licence, the act would be wrong. Thus, if A permits B to take mango fruits from A’s trees for one season, it is a licence. B’s act of taking mango fruits without A’s permission is wrong or theft.
6) Licence is not easement:-
A licence is not an easement. Both licence and easement are different. (the distinction between these two is discussed later).
7) Licence is not an interest in land[7]:-
As we have already discussed, a licence does not create any right or interest in property. It is personal and not attached or affixed to the property. It creates no permanent right in property. In other words, the licence does not mature to become a right.
8) Licence is not transferable[8] (S. 56):-
Since the licence is a personal right, it cannot generally be transferred. However, a licence to attend a place of public entertainment may be transferred.
Illustrations
- a) A grants B the right to walk over A’s field whenever he pleases. The right is not annexed to any immovable property of B and cannot be transferred.
- b) The Government grants B a licence to erect and use temporary grain sheds on Government land. In the absence of an express provision to the contrary. B’s servants may enter the land for the purpose of erecting sheds, erecting the same, depositing grain therein, and removing grain therefrom.
Moreover, when a grantor transfers property affected by a licence, the transferee (purchaser, etc.) is not bound by the licence (S. 59). In other words, the licence comes to an end through the transfer of the property by the grantor.
III. Difference between ‘licence’ and ‘easement’:-
There are the following differences between ‘licence’ and ‘easement’, viz:-
1) Acquisition by consent or compulsion:-
Licence is granted by consent of both parties, whereas easement may be created with or without consent of the servient tenement owner. In easement, the servient heritage owner, for the benefit of dominant heritage, may on its own impose easement, or there may be easement of necessity or created by law.
2) Positive and negative acts:-
Licence is always granted to do a positive act, whereas an easement may be positive or negative, i.e. it may be to do something or restrain from doing something.
3) Personal right / proprietary right:-
Licence creates a right relating to a person; it imposes no right in any way upon property, whereas easement creates a right upon the property. Easement passes with property, whereas a licence does not pass with a person.
4) Transferable:-
As discussed earlier licence authorises a particular person to do something, which (doing), otherwise than such a licence would amount to wrong. However, an easement creates a right in the property; therefore, a licence is not transferable, but easement transfers with the property. Even the licence is extinguished by transfer of property.
5) Right against a transferee of property:-
An easement is attached to the property transfers and binds the transferee with the existing easement. However, since the licence is personal, it does not pass with the property; rather, it extinguishes with the transfer.
IV. Difference between ‘licence’ and ‘lease’- (for detail, refer to the topic of lease):-
In Shantabai v. State of Bombay[9]
Facts: In this case, the petitioner’s husband, Shantabai, executed an unregistered deed in her favour. That deed gave her the right to enter certain areas in the Zamindari property and to cut and remove bamboo, fuel wood, and teak for twelve years.
Issue: Is the agreement of lease or licence?
Supreme Court held:- the agreement is of licence and not lease.
In ICICI v. State of Maharashtra[10]
Fact:- In this matter, the contractor was put in possession of the property to construct a building on the property. There was no right granted in his favour in the property.
Issue:- Is the agreement a licence or lease?
Bombay High Court held:- that the agreement is licence.
V. Duties of Grantor:-
Grantor has the following duties, viz.
1) Duty to disclose defect[11] (S. 57):-
A grantor of a licence is bound to disclose to the licensee any defect in the property affected by the licence that is likely to be dangerous to the person or property of the licensee of which the grantor is and the licensee is not aware.
2) Not to render property unsafe[12] (S. 58):-
The grantor of a licence is bound not to do anything likely to render the property dangerous to the person or property of the licensee.
VI. Rights of Licensee:-
There are the following rights available to the licensee, viz.
1) Licensee’s rights on the revocation (S. 63):-
Where a licence is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and remove any goods allowed to be placed on such property.
2) Licensee’s rights on eviction (S. 64):-
Where a licence has been granted for consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the licence, the right for which he contracted, he is entitled to recover compensation from the grantor.
VII. Revocation of licence:-
A grantor may revoke the licence at any time; however, in the following circumstances, it does not revoke, viz (i) if a licence is made relating to a property by the grantor, (ii) if the licensee has done any work of permanent nature on the basis of the licence and has incurred expenses for such work (S. 60). Revocation of the licence may be express or implied (S. 61).
Licensee, when deemed revoked[13] (S. 62):-
The licence is deemed to be revoked in the following circumstances, viz.:-
1) by the end of the grantor’s interest:-
When the grantor’s interest ends, the licence is deemed revoked.
2) Release by licensee[14]:-
When the licensee releases the licence, expressly or impliedly, to the grantor or his representative, the licence is deemed to be revoked.
3) By the expiry of the time period fixed or on fulfilment of condition:-
Where the licence has been granted for a limited period or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition fulfilled, the licence is deemed to be revoked.
4) By the destruction of the subject matter of licence:-
Where the property affected by the licence is destroyed, the licensee can no longer exercise his right, and the licence is deemed revoked.
5) By permanent change by superior force:-
Where the property affected by the licence is by superior force so permanently altered by the superior force that the licensee can no longer exercise his right, the licence is deemed to be revoked.
6) By the licensee himself becoming full owner:-
The licence is deemed to be revoked when the licensee becomes entitled to the absolute ownership of the property affected by the licence.
7) By the fulfilment of the object of the licence:-
Where the licence is granted for a specified purpose, and the purpose is attained or abandoned or becomes impracticable, the licence is deemed to be revoked.
8) By cession of office, employment or character:-
Where the licence is granted to the licensee for holding a particular office, employment or character and such officer, employment, or character ceases to exist, the licence is deemed to be revoked.
9) By non-use for twenty years:-
Where the licence ceases to be used for an unbroken period of twenty years and such cessation is not in pursuance of a contract between the grantor and the licensee, the licence is deemed to be revoked.
10) By cession of accessory right:-
In the case of an accessory licence, when the interest or right to which it is accessory ceases to exist, the licence is deemed to have revoked, e.g. if A is licensed to take mangos of a particular season from B’s land, the right to enter on that land also ceases by completion of the mango season.
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[1] प्रस्तावना
[2] परवाना म्हणजे असे काम करण्याचा अधिकार की जो नसल्यास ते काम करने अयोग्य होईल [लाइसेंस एक ऐसा काम करने का अधिकार है जिसके बिना कोई काम करने के लिए अयोग्य होगा]
[3] ज्यावेळी एखादी व्यक्ती, दुस-या एखादया अथवा अनेक व्यक्तीस स्वतः च्या स्थावर मिळकतीत काहीतरी करन्यासाठी अथवा कृत्य चालु ठेवण्यासाठी परवानगी देते, अशा परवानगी षिवाय ते कृत्य हे बेकायदेषिर ठरले असते, त्यास परवाना असे म्हणतात. परंतु असा परवाना हा त्या मिळकतीत कोनताही अधिकार अथवा उपभोगाधिकार निर्मान करत नाही
[जहां कोई व्यक्ति देता है-
(i) दूसरे के लिए, या अन्य व्यक्तियों की एक निश्चित संख्या के लिए
(ii) कुछ करने का अधिकार, या कुछ करना जारी रखने का अधिकार,
(iii) अनुदानकर्ता की अचल संपत्ति पे या उसके उपर,
(iv) कुछ ऐसा जो इस तरह के अधिकार के अभाव में गैरकानूनी होगा, और
(v) ऐसा अधिकार किसी सुखभोग या संपत्ति में कोई हित नहीं है
-ऐसे अधिकार को ‘परवाना’ कहा जाता है|-]
[4] अधिकार देणे [अधिकार देणा] –
[5] कााहीतरी कृती करने अथवा कृती चालु ठेवण्याचा अधिकार [कुछ करने या जारी रखने का अधिकार]
[6] असे कृत्य परवानगीषिवाय बेकायदेषीर असते [बिना अनुमति के ऐसा कार्य अवैध है]
[7] परवाना व्यकतीत असतो तो जमिन मिळकतीवर अधिकार नसतो [लाइसेंस व्यक्ति के पास होता है और भू-राजस्व पर उसका कोई अधिकार नहीं होता है]
[8] परवाना हस्तांतरणीय नसतो [परवाना हस्तांतरणीय नही होता]
[9] AIR 1958 SC 532
[10] 1999 (5) S.C.C. 708
[11] दोष उघड करणे कर्तव्य [मिळकतीत असनारे दोष सांगण्याचे कर्तव्य]
[12] मिळकत असुरक्षीत न करणे [मालमत्ता असुरक्षित बनवू नका]
[13] परवाना कधी संपुश्टात अनला असे समजले जात. [लाइसेंस को कब निरस्त समझा जाता है| s
[14] परवानाधारकाने तो सोडुन दिलयास [लाइसेंसधारी द्वारा अधिकार छोडणे|]