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THE CONCEPT OF LICENSE UNDER EASEMENTS ACT,1882 AN OVERVIEW

In the following study, the author has made an attempt to explain the meaning of licence
and how a licence is granted in India. In India, Indian Easements Act of 1882 governs
such transactions. Section 52, 53 and 54 are the relevant provisions to understand this
concept. The researcher has also attempted to differentiate between leases and licence

CHAPTER 1: INTRODUCTION
1.1 DEFINITION OF LICENCE
A licence is a personal right granted to a person to do something upon immovable property of
the grantor and does not amount to the creation of interest in the property itself 1. It is purely a
permissive right and is personal to the grantee. It creates no duties and obligations upon the
persons making the grant and is, therefore, revocable except in certain circumstances
expressly provided for in the Indian Easements act, 1882 itself. A licence may be express or
implied in accordance with the way the permission was granted. An everyday-life example of
implied licence is in the case of a shopkeeper in the invitation to customers to enter his
premises to do business.
The licence governs only the specified period of the stay and any re-entry after that period
without further permission would constitute trespass.
It is important to note that a person cannot grant a licence to himself nor to himself jointly
with another. Therefore, it must be granted by an owner of the property who is different from
the licensee.
A licence may be oral in which case, terms, conditions and the nature of the licence, can be
gathered from the purpose for which the licence is granted coupled with the conduct of the
parties and the circumstances which may have led to the grant of the licence2. Every licence
is governed by the provisions under the Easements act
1 Mini Peter Philips v. Dina J. S. Fanibanda, 2008 (1) AIR Bom.

A licence does not confer an interest or property in the thing, and though it may be coupled
with a grant which conveys an interest in property, licence by itself does not confer any
interest3. Where the parties entered into a partition agreement and divided the property giving
themselves certain rights, it would not amount to a licence
1.4 RESEARCH OBJECTIVES:
The aim of this research is to understand what is a license under the Indian easements Act,
1882 and who can grant licence and whether this grant can be expressed or implied. The
researcher will also deal with issues like what are the grantors duties and rights under Section
52, 53 and 54 of the Indian easements Act, 1882 and what are the rights of the licence and
when can licence be revoked and when it is deemed to be revoked and how is license
different from lease. The main objective of the research is to study and analyze the concept of
Licence under the Indian easement Act, 1882. The researcher will also deal with issues
concepts like difference between licence and lease as well as easement and licence.
1.5 OUTLINE OF THE STUDY:
The researcher in this paper will be discussing in chapter 1 about the general idea of what is a
license under the Indian Easements Act,1882, in chapter 2 the researcher will give a broad
idea about the kinds of license and differences between them and also a comparative analysis
between the concept licence in India and other countries. In chapter 3 the researcher will be
dealing with the research questions where each question will be a separate chapter and also
how is licence different from that of a lease.
Section 53 of The Indian Easements act, 1882, states that a licencee may be granted by
anyone in the circumstances and to the extent in and to which he may transfer his interests in
the property affected by the licence. In other words, one cannot grant a licence and one
cannot receive a licence if the licensor does not possess a sufficient lawful interest in the
property therefore its necessary that the licensor has full authority, interest and title over the
property. While section 54 of The Indian Easements act, 1882, states that a licence may be

2 Ram Sarup Gupta v. Bishun Narain Inter College & Ors., 1987 AIR 1242
3 Mohd. Yusuf v. Suraj Bali Singh, AIR 1916 All. 219

granted either expressly or impliedly from the conduct of the grantor, and an agreement
which purports to create an easement, but is ineffective for that purpose, may operate to
create a licence. This definition is of higher significance as the owners of properties should
take due attention regarding their intention as their behaviour may create a licence, even
without a formal licence agreement.
An agreement for licence can be valid and continue to take effect as long as the licensor
continues to enjoy a right, interest and title in the said property. On the termination of the
right of the title, the agreement for licence also comes to an end. In case the licensor is an
tenant, the agreement for licence by him comes to an end with the tenancy4.
In order to grant a licence, it is not always necessary that the licensor is the owner of the
property because the tenancy rights are also immovable rights of the tenant and therefore, he
can grant the licence. But by virtue of Section 53, the tenant can grant the licence subject to
the limitation and the extent to which he may be able to transfer the interest, that is, the
tenancy rights. A tenant is empowered to transfer his interest but he cannot do so beyond the
term of his lease5.
As a grant forms the basis of an easement as well as a licence, an agreement which purports
to create an easement may operate to create a licence only if it is unreasonable for certain
reasons to create such easement. As both an easement and licence legalize acts which would
have been unlawful
CHAPTER 3 : KINDS OF LICENCE
A licence may be of the following two kinds:
1. Bare licence which is purely a matter of personal privilege, and
2. Licence coupled with a grant or interest in the land.
4 Ludhichem Industries v. Ahmed R. V. Peer Mohammad, AIR 1981 SC 1998
5Jaganath v. Jayantilal, AIR 1980 Guj. 41

Whether the particular act which is done is a bare licence or something more than a licence
depends on the terms of the transaction between the parties.
3.1 Bare Licence
A bare licence is a personal permission or consent which is granted without consideration, to
enter, or be present upon the land of another. A bare licence is a licence granted gratuitously
which is not coupled with the grant of an interest in the land, e.g. the licence which one
necessarily grants to ones guests. Such a licence may be revoked at any time.
A bare licence is a defence to what would otherwise amount to the tort of trespass 6. If a
person is allowed to do the act on the land without interfering with the nature of the land or
without taking any profits from the land, then it is a case of bare licence. Bare licences may
be created expressly or impliedly and no formalities are required.
Bare licenses generally are not assignable that is transferable and are revocable but this bare
licence becomes irrevocable when the licensee acting upon the licence executes a work of a
permanent character and incurs expense in doing so.
3.2 Licence coupled with a grant or interest in land
A licence coupled with a grant or interest in land arises where there is a permission to enter
anothers land for the purpose of removing something from that land (such as timber) 7. This
licence combines the grant of an interest (such as a profit a prendre) with an permission to
enter the land and take benefits out of such land.
A license coupled with an interest arises when a person acquires the right to take possession
of property located on someone elses land, If the person is allowed to take exclusive
6 Goldsack v. Shore, (1950) 1 KB 708
7 Muskett v. Hill (1839) 5 Bing (NC) 694

possession of the land, to plant trees over it or collect fisheries from pond , then it is not a
bare licence but it is a licence that is coupled with grant or interest in land. If the licence gives
the licensee a right to make a construction on land and carry out his business, it is not a bare
license but it is a licence coupled with an interest in land. In such a case, the licensee who has
entered possession after execution of the licence, is entitled to maintain a suit against the
trespasser who has dispossessed him. Licenses coupled with an interest usually are both
assignable and irrevocable,
CHAPTER 4
DIFFERENCE BETWEEN LICENCE AND LEASE
Section 105 of the Transfer of Property Act, 1882 defines lease as :
A lease of immovable property is a transfer of a right to enjoy such property, made for a
certain time, express or implied, or in perpetuity, in consideration of a price paid or promised,
or of money, a share of crops, service or any other thing of value, to be rendered periodically
or on specified occasions to the transferor by the transferee, who accepts the transfer on such
terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the
premium, and the money, share, service or other thing to be so rendered is called the rent.
The requirements for a lease are:
Exclusive possession of a defined area of land,
For a fixed period (or series of periods) of time,
With the intention to create an estate in land that is an interest in the land itself which can
be assigned or sold.
While a licence as under the Easements Act, 1882 is simply a permission to use land. It
allows someone access to the land of another for an agreed purpose.

Whether a particular transaction is a lease or license, is very important to be known. One of


the main question in order to find whether a transaction is a lease or licence is to at the
intention of the parties and whether there has been any exclusive possession given or not.
The test to determine that whether a transaction is a lease or a licence is:
1. The intention of the parties, which is to be gathered from the terms of the contract. If the
terms are not clear, then the surrounding circumstances shall determine the intention of the
parties.
2. In the absence of a written document and when somebody is in exclusive possession, then
the intention is to be gathered from other evidence such as exclusive possession would be the
most relevant circumstance to arrive at the intention of the parties at the time of making the
lease.
3. If dispute arises then intention to be gathered from the reading of the document as a whole.
4. Lease or licence is matter of contract between the parties. The contract is to be construed or
interpreted on the well-laid principles for construction of contractual terms.
In Booker v. Palmer8, Lord Green stated thatThere is one golden rule to be followed is that law does not impute an intention to enter into
contractual relationships where the circumstances and the conduct of the parties negative any
intention of the kind.
Associated Hotels of India Ltd. vs. R.N. Kapoor9,

8 (1942) 2 All ER 674


9 SC [1960] 1 SCR 368

A lease is a transfer of an interest in land. The interest transferred is called the


leasehold interest. The Lesser parts with his right to enjoy the property during the
term of the lease and the lessee gets that right to the exclusion of the Lesser.
In case of license, the legal possession continues to be with the owner of the property,
but the licensee is permitted to make use of the premises for a particular purpose. But
for the permission his occupation would be unlawful. It does not create in his favour
any estate or interest in the property.
Madhu Behal and Anr. vs. Rishi Kumar and Anr10
It is never a nomenclature in the document that governs the decision as to whether a
document as a lease or a licence.
The essential feature that distinguishes a lease from licence is always a transfer of
interest in the demised property in a transaction of lease while a licensee does not
involve any such transfer of interest.
The lease is heritable while license is personal to the grantee.
The legal possession of the property is inevitably transferred to a tenant under lease
while in a transaction of license the legal possession continues with the licensee and
the licensee has a mere right of user of the premises in a particular fashion mentioned
under the document.
DIFFERENCE BETWEEN LICENCE AND EASEMENT
As per Section 4 of the Indian Easements Act, 1882; easement is defined as right which the
owner or the occupier of certain land possesses, as such, for the beneficial enjoyment of that
land, to do and continue to do something, or to prevent and continue to prevent something
being done, in or upon, or in respect of certain other land not his own.

10 (2009) 3 PLR 628 (Punjab & Haryana High Court, 2009)

An easement is right or interest in immovable property for the land belonging to another 11.
When once an easement is validly created, it is annexed to land. The benefit of it passes with
the dominant tenement and the burden of it passes with the servient tenement to every person
into whose occupation the dominant and servient tenements respectively come12.
The major points of difference between an easement and a licence are the following:
An easement is a right appertaining to property while a license is only a personal right.
An easement is a right in rem and is enforceable by all and against all into whose hands the
servient and the dominant tenements respectively may come, while a license is only a right in
personam and therefore, not so enforceable.
An easement can be assigned with the property to which it is annexed, but a license cannot be
assigned at all except where it is a license to attend a place of public entertainment.
A right of easement is not revocable at the will of the grantor while a license is so revocable,
except where the grantor is stopped by his conduct from exercising the power of revocation
conferred by law.
A license is permissive right traceable to a grant from the licensor either expressly or
impliedly. But an easement is acquired either by assertive enjoyment by the dominant owner
or by a negative covenant between the parties or by grant or by statute.
An easement may be positive or negative in character, a license is invariably positive and
cannot be negative in character. It may be that there are cases in which a negative obligation
11 Bhaurao A. Kasar v. Vinod R. Kasar, 2006 (2) Bom. CR 201.
12 Swapan Sinha v. Usha Rani Sahana, 2001 (3) Cal. LT (HC) 166.

might be cast on the licensor with the object of protecting a licence coupled with a grant but
such obligation is due to the grant accompanying the licence and not to the licence per se.

CHAPTER 5
CONCLUSION
Hence a license is a personal right granted to a person to do something upon immovable
property of the grantor and does not amount to the creation of interest in the property itself. It
is purely a permissive right and is personal to the grantee. It creates no duties and obligations
upon the persons making the grant and is, therefore, revocable except in certain
circumstances expressly provided for in the Act itself. The license, when granted, has not
other effect to confer liberty upon the licensee to go upon the land which would otherwise be
lawful. Apart from this the easements Act,1882 provides

provisions relating to the

transferability of license under Sec.54 only in case of public entertainment and implications
of sale on license property by licensor under Sec.59 . The Act even provides remedies in
cases of improper revocation there is the concept of leave and license agreement. Therefore
the Easements Act has laid down clearly what is a license and its implications as well as the
differences between license and lease and license and easements have be interpreted by
precedents laid down and are decided on case to case basis.