A license is defined under
Section 52 (Chapter VI) of the Indian Easement Act, 1882. The definition of
license reads as follows: “Where one person grants to another, or to a definite
number of other persons, a right to do, or continue to do, in or upon the
immovable property of the grantor, something which would, in the absence of
such right be unlawful, and such right does not amount to an easement or an
interest in the property, the right is called a license”.
Under Section 28 of the
Registration Act, 1908, every document should be registered under Section 17 of
the said Act, has to be presented for registration in the office of
Sub-Registrar within whose sub-district the whole or some portion of the
property to which such document relates is situate.
Under
Section 55 (1) of the Maharashtra Rent Control Act, 1999, any agreement for
Lease and License or letting of any premises entered into between the landlord
and the tenant or the licensee as the case may be should be in writing and
should be registered under the Registration Act, 1908.
The
possession of a licensee is not a juridical possession but only an occupation
with the permission of the licensor. While the actual occupation remains with
the licensee, the control or possession of the property is with the licensor
through his licensee.
Difference
between Lease and Licence: The Deed of Lease, under lease or sub-lease creates
an interest or transfer of an interest in the property in favor of the Lessee
during the period of lease; while license is only a permission to use or occupy
or enjoy the premises and to do certain things or acts which otherwise will
amount to trespass. Therefore an agreement of lease and license under no
circumstances can be charged with stamp duty under Article 36 of Schedule I of
the Bombay Stamp Act”.
The
Licensor (Owner of the flat) can file an application for eviction under Section
24 of the Maharashtra Rent Control Act, 1999 if the Licensee is not ready to
vacate flat / premises after expiry of the Licence period.
In one
of the High Court judgement Amit B. Dalal V/s Rajesh K. Doctor, the Writ
Petition was filed by Petitioner under Sec. 24 of Maharashtra Rent Control Act
1999, the dispute was regarding flats given on lease and licence agreement but
the said agreement not registered under registration Act. The competent
authority directed petitioner to vacate the flat then Petitioner preferred
revision which also rejected by Ld. Additional Commissioner, hence the Writ
Petition filed in High Court the issue was regarding effect of non registration
of agreement of Lease and Licence. Lease and Licence agreements do not require
registration under Registration Act. Sec. 49 of registration Act, applicable
only to documents u /s 17 of Registration Act or under Transfer of Property
Act. Unregistered document which require registration u /s 55 of Registration
Act can be read in evidence provided same is proved and same is otherwise
admissible in evidence. WP dismissed.
What
does Sec.24 of Maharashtra Rent Control Act, 1999 says? : Section 24: “Landlord
entitled to recover possession of premises given on licence on expiry.... (1)
Notwithstanding anything contained in this Act, a licensee in possession or
occupation of premises given to him on licence for residence shall deliver
possession of such premises to the landlord on expiry of the period of licence;
and on the failure of the licensee to so deliver the possession of the licensed
premises, a landlord shall be entitled to recover possession of such premises
from a licensee, on the expiry of the period of licence, by making an
application to the Competent Authority, and, the Competent Authority, on being
satisfied that the period of licence has expired, shall pass an order for
eviction of a licensee.
(2)
Any licensee who does not deliver possession of the premises to the landlord on
expiry of the period of licence and continues to be in possession of the
licensed premises till he is dispossessed by the Competent Authority shall be
liable to pay damages at double the rate of the licence fee or charge of the
premises fixed under the agreement of licence.
(3)
The Competent Authority shall not entertain any claim of whatever nature from
any other person who is not a licensee according to the agreement of licence. Explanation:
For the purposes of this section, (a) the expression “landlord” includes a
successor-in-interest who becomes the landlord of the premises as a result of
death of such land; but does not include a tenant or a sub-tenant who has
given premises on licence; (b) an agreement of licence in writing shall be
conclusive evidence of the fact stated therein”. The Rights of the Landlord /
owner is protected by the said judgment.
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