Injunction by a Licensee against PMC in a Civil Court

By Dhruva Vig

What is an Injunction?

Lord Halsbury has defined injunction as, “Injunction is a judicial process whereby a party seeks to refrain someone from doing something or seeks a direction from a court to direct a person to perform a certain act.”^[1]

‘Injunction’ under Black’s Law Dictionary has been defined as, “A court order commanding or preventing an action.” It further states that in order “to get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted.”^[2]

The law of injunction is based on principle of the legal maxim “Ubi Jus Ibi Remedium”, i.e., where there is right, there is remedy.

In refence to its origin, the law of injunction finds its origin in English Jurisprudence as well. The word ‘injunction’ has derived from the French word ‘injungere’ which means ‘to join’. 

In a nutshell, an ‘Injunction’ is a judicial process or an order of the Court which lawfully compels any party to do, or omitting from doing, an act. It is a remedy in the form of an order issued by a Court of competent authority.

Under normal circumstances, an injunction is generally granted for restoring the rights of a party, where any party or an individual has violated such right. An injunction is usually granted with an aim to restore the violated rights of any individual or party, where monetary or compensatory damages are not insufficient as a redress.

The concept of Injunction is fairly a simple one, and the relief which is consequently granted by a court is a preventive one. The concept of Injunction is in consonance with the principles of Natural Justice and Equity.

The provisions/law concerning injunction have been provided within the Specific Relief Act, 1963.

An injunction is further grouped into two categories, that is, Interlocutory injunction and Perpetual Injunction. Section 37 of the Specific Relief Act, 1963 provides for the definition of both temporary and perpetual injunctions.

Temporary injunctions are such which continue to have effect until a specified time, or until the further order of the Court is received. They can also be granted at any stage of the suit and are governed under the CPC^[3] (also known as the Code of Civil Procedure, 1908).

A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit before a court of competent authority, where the defendant of the suit is thereby perpetually enjoined from the assertion of a right, or from the commission or omission of an act, which might be in contradiction to the rights enjoyed by the plaintiff.

Who is a Licensee?

Under Black’s Law dictionary, a ‘License’ can be defined as “a permission, usually revocable, to commit some act that would otherwise be unlawful; especially, an agreement, that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game.”^[4]

“A license is an authority to do a particular act, or series of acts, upon another’s land, without possessing any estate therein. It is founded in personal confidence, and is not assignable, nor within the statute of frauds.“^[5]

A ‘licensee’, on the other hand, can be defined as “one to whom a license is granted or one who has permission to enter or use another’s premises, but only for one’s own purposes and not for the occupier’s benefit.” ^[6] The occupier, in such instances, has a duty to warn the licensee of any dangerous conditions known to the occupier but unknown to the licensee.

There are a few types of Licenses which can be granted, these are:

• Bare Licensee – A licensee whose presence on the premises the occupier tolerates but does not necessarily approve, such as one who takes a shortcut across another’s land. Also termed as naked licensee.
• Licensee by Invitation – One who is expressly or impliedly permitted to enter another’s premises to transact business with the owner or occupant or to perform an act benefiting the owner or occupant.
• Licensee by Permission – One who has the owner’s permission or passive consent to enter the owner’s premises for one’s own convenience, curiosity, or entertainment.
• Licensee with an Interest – A person who has an express or implied invitation to enter or use another’s premises, such as a business visitor or a member of the public to whom the premises are held open. In such instances, the occupier has a duty to inspect the premises and to warn the invitee of any dangerous conditions existing on such premises.

In simpler terms, a licensee is any individual who enters and remains on any piece of land, with the consent and/or due permission of the owner/person of control of such land/premises, for purposes other than one of business or commercial nature.

In the case of an invitee, the permission to enter the land premises may be either express or implied.

Under general provisions of law, the person who is in possession of premises, is liable for any physical injury suffered by a licensee on such premises, provided that the injured person is able to establish the following elements:

• The person in possession of the land knew or reasonably should have known of a hazardous condition, and should have realized that the condition posed an unreasonable risk of harm being done to the licensee, and should have the knowledge that the licensee would not recognise or discover such hazard;
• The person in possession failed to exercise reasonable care to make premises safe, or to warn the licensee of the dangerous condition and the risk involved; and
• The licensee did not know or have reasonable cause to know of the condition and the risk involved before suffering an injury as a result of the dangerous condition.

Illustration

If a homeowner is aware of the fact that the railing along a stairway is broken, but such railing would not appear to be broken when viewed by a reasonably observant individual, the homeowner may be held liable to an invitee who does not have notice of the dangerous condition and gets injured when the railing gives way in the process.

Pune Municipal Corporation (PMC)

The Pune Municipal Corporation (PMC), established on 15 February 1950, is a civic body that governs the inner limits of the city of Pune in India. This civic body is in charge of the civic requirements and the basic infrastructure of Pune.

The executive powers of the PMC are vested in the Municipal Commissioner, who is an Indian Administrative Service (IAS) officer appointed by the Government of Maharashtra. The general body of the PMC mainly consists of 162 directly elected councillors, popularly known as “corporators“, which is headed by a mayor.

Legal provisions

The legal provisions dealing with injunctions and licenses can be summarised as follows:

• Under the Code of Civil Procedure, 1908 – Order XXXIX talks about Temporary Injunctions And Interlocutory Orders.
• Under Section 2(41) of the Maharashtra Municipal Corporations Act, 1949 the term “occupier” has been defined, which states that under Clause (41) the term ‘occupier’ shall include, “(d) a licensee in occupation of any land or building.”
• Under the Specific Relief Act, 1963:

Section 20A talks about ‘Special provisions for contract relating to infrastructure project’, where clause (1) says that:
“(1) No injunction shall be granted by a court in a suit under this Act involving a contract relating to an infrastructure project specified in the Schedule, where granting injunction would cause impediment or delay in the progress or completion of such infrastructure project.”

Part III of the Specific Relief Act, 1963 talks about ‘Preventive Relief’, where such can be further divided into:

(a) ‘Injunctions Generally’ under Chapter VII, and

(b) ‘Perpetual Injunctions’ under Chapter VIII

• The Indian Easements Act, 1882

Section 35 talks about ‘Injunction to restrain disturbance’ which states that “Subject to the provisions of the Specific Relief Act, 1963, sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement—
(a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this Chapter; (b) if the disturbance is only threatened or intended,—when the act threatened or intended must necessarily, if performed, disturb the easement.”

Section 52 defines the term “License” where it says that “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.”

• Section 63 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 talks about ‘Jurisdiction of civil courts barred. “No civil court (other than High Court under article 226 or article 227 of the Constitution or the Supreme Court) shall have jurisdiction to entertain any dispute relating to land acquisition in respect of which the Collector or the Authority is empowered by or under this Act, and no injunction shall be granted by any court in respect of any such matter.”

Case laws

• Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale^[7]

Held:

In this case, wherein while construing the provision of section 41(1) of the Presidency Small Causes Courts Act, 1882, which conferred jurisdiction upon the Court of Small Causes to entertain and try all suits and proceedings between a licensor or licensee or a landlord and tenant relating to the recovery of possession of any immovable property or recovery of the license fee or charges or rent thereof, the Supreme Court held that there is a good deal of difference between the words, “relating to the recovery of possession” on the one hand and the terminology “for recovery of possession of any immovable property”.

The words “relating to” are of wide import and can take in their sweep any suit in which the grievance is made that the defendant is threatening to illegally recover possession from the plaintiff-licensee.

It was further observed that for applicability of Section 41(1) of the Small Cause Courts Act, the following conditions must be satisfied before taking the view that jurisdiction of regular competent civil court like City Civil Court is ousted:

• It must be a suit or proceeding between the licensee and licensor; or
  • between a landlord and a tenant;
  • such suit or proceeding must relate to the recovery of possession of any property situated in Greater Bombay; or
  • relating to the recovery of the licence fee or charges or rent thereof.

Nandkumar Ganpat Patankar & Ors. v. Municipal Corporation of Gr. Mumbai & Anr.^[8]
Held:

In This case, injunction against imminent demolition was prayed before the Court, where the appellants/plaintiffs owned commercial structures on the Corporation’s land. The corporation required its land for beautification of the area and offered alternate accommodations 3 kms away from the existing structures on certain conditions.

Thus, due procedure of law was followed by the Corporation and in spite of offer given, the appellants failed to take steps and/or deposit money. Consequently, the Court issued directions to demolish the structure, which cannot be stated to be without due notice and/or not following the procedure of law.

The Court further held that the option to accept and/or not to accept is the appellants’ choice, but no case shall be made out for protection by way of interim relief.

Conclusion

From the above discussion, we can conclude that with due regard to the case laws and legal provisions under various statutes, a party may be empowered to approach the court for a grant of injunction to prevent further damages to any property in question, and/or to restore the violated rights of such party seeking such injunction.

Ergo, for the purposes of answering the main contention of ‘whether a licensee can seek an injunction against the PMC in a civil Court’, the author is of the view that such relief can be granted owing to the jurisdiction and circumstances of each and every case, and the legal proceedings are in consonance with the laws of natural justice.

1. Halsbury’s Laws of England, at 1098 Meaning of ‘injunction’ ↑

2. Black’s Law Dictionary 9^th Ed, Pg. 855 ↑

3. CPC Order XXXIX – ‘Temporary Injunctions and Interlocutory Orders’ ↑

4. Black’s Law Dictionary 9^th Ed, Pg. 1002 ↑

5. James Kent, Commentaries on American Law at 452-53 (George Comstock ed., 11th ed. 1866). ↑

6. Black’s Law Dictionary 9^th Ed, Pg. 1004 ↑

7. Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale, (1995) 2 SCC 665 ↑

8. Nandkumar Ganpat Patankar & Ors. v. Municipal Corporation of Gr. Mumbai & Anr. 2013 SCC OnLine Bom 1677 : (2014) 2 Mah LJ 450 : (2014) 3 Bom CR 65 ↑