M/S.SATLINKS MAIN ROAD, SHORANUR v UNION OF INDIA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934 RSA.No. 1494 of 2012 () ----------------------AGAINST THE JUDGMENT IN AS.1/2006 of SUB COURT, OTTAPPALAM AGAINST THE JUDGMENT IN OS.42/2003 of MUNSIFF COURT, OTTAPPALAM APPELLANT(S)/APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------ M/S.SATLINKS MAIN ROAD, SHORANUR, OTTAPALAM TALUK PALAKKAD DISTRICT, REPRESENTED BY MANAGING PARTNER P.ASHARANI, BY POWER OF ATTORNEY R.B.ANILKUMAR S/O.BALAN.K.NAIR, AGED 43, RAMANKANDATH HOUSE VADANAMKURUSSI AMSOM, OTTAPALAM TALUK PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S)/RESPONDENTS/DEFENDANTS: -------------------------------------- ## 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY MADRAS, PIN 600001. 2. THE DIVISIONAL RAILWAY MANAGER (COMMERCIAL) DIVISIONAL OFFICE, COMMERCIAL BRANCH, PALGHAT PIN 678002. 3. THE CHIEF COMMERCIAL INSPECTOR - SOUTHERN RAILWAY, PALGHAT-678002. ## 4. THE STATION MASTER SOUTHERN RAILWAY, SHORANUR-679121. BY STANDING COUNSEL SRI.C.S.DIAS, RAILWAYS THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **N.K.BALAKRISHNAN, J. ................................................................. R.S.A. No. 1494 of 2012 ....................................................................** ## **Dated : 31-03-2013** ## **JUDGMENT** This second appeal is filed by a plaintiff in a suit for mandatory and prohibitory injunction who suffered a successive defeat. The plaintiff is a partnership firm engaged in the business of cable television network. The contention was that the plaintiff and defendants/Southern Railway, represented by the Divisional Manager etc. entered into an agreement on 20-6-1995, for the purpose of installation of Closed Circuit Television System at Shornur Railway Station. The term fixed for three years. Ext. B1 is the license agreement. After the expiry of three years mentioned above, the period was subsequently extended for a further period of two years. 2. According to the defendants the period was extended considering the request made by the plaintiff and R.S.A. No. 1494 of 2012 -:2:- also to conduct the auction and then to entrust the said work to another licensee. The plaintiff again requested for extension, that was not granted. Thereupon the plaintiff approached the Hon'ble High Court of Madras. Though originally order to maintain status quo was passed permitting the appellant to continue the operation of the C.C. T.V. in Shornur Railway Station. Finally the Writ Petition was dismissed on 26-4-2002. 3. Again notice was issued by the respondent to the appellant on 18-6-2002 to vacate the premises. The plaintiff again requested for two month's further time as per his letter dated 25-6-2002. Though two months' further time was granted, still the plaintiff did not vacate the premises. 4. Railway Authorities called for fresh tenders. As per the request made by the plaintiff, again the Divisional Manager permitted the plaintiff/appellant to continue C.C.T.V. up to 19-10-2002. Plaintiff contends that it was in the meanwhile the respondents removed the TV sets and other accessories installed by the plaintiff at the Railway R.S.A. No. 1494 of 2012 -:3:- Station. 5. It was found by the appellate Court that the evidence given by DW2 that Ext. B6 notice was sent to the appellant is not satisfactory. But, the learned counsel for the respondents would submit that simply because Ext. B6 does not contain the acknowledgment for delivery of the notice, it cannot be said that the notice was not given to the appellants. The learned Standing Counsel for the Railway would submit that in any event, prior communications given to the appellant would satisfy the requirement of giving a reasonable time to the licensee to remove the articles. But instead of removing the articles even long after the expiry of the license period he continued to cling on to the premises and wanted the respondents to allow the appellant to be the licensee for a further period which was against the terms of the agreement and also against the well settled norms and principles. 6. It is further submitted by the learned counsel that Railway Authorities cannot simply extend the period of R.S.A. No. 1494 of 2012 -:4:- license since the period fixed as per the agreement was only for three years. There would be so many other persons who may also come forward with similar offers to get the right of installation of the C.C. TV at the Railway Station. The attempt made by the plaintiff was to cling on to the premises even long after the expiry of the license and for that purpose he moved the Hon'ble High Court of Madras and though ultimately that Writ Petition was dismissed still the plaintiff did not remove the articles from the Railway Station. 7. The main contention urged by the learned counsel for the appellant is that reasonable opportunity should have been given to the appellant to remove the articles. But the facts and circumstances detailed by the courts below would clearly go to show that the plaintiff was under one pretext or other trying to cling on to premises even long after the expiry of the license period. Reasonable time which the plaintiff was entitled to get was given. In fact, it would say that unduly long time was given to the licensee to remove the articles after the expiry of the R.S.A. No. 1494 of 2012 -:5:- period of license. Since the articles were not removed, the respondents had to remove the articles and keep the same in the clock room of the Railway. Since the plaintiff did not take back the articles from the clock room, the respondents contend that the plaintiff is liable to pay the occupation charges for the premises which had to be made use of for keeping the articles of the plaintiff . 8. There is no case for the plaintiff that he had ever sent any notice or request to the Railway Authorities to get back the articles. But on the other hand, it is seen that every attempt was made by the plaintiff was to see that he is again given the right of license which he is being given the right of license to occupy the premises. 9. The courts below found that even after the expiry of the license period, the plaintiff/appellant failed to vacate the room and, therefore, the Railway Administration is constrained to take delivery of the articles after preparing an inventory and to remove the articles to the clock room. Though it may be difficult to hold that Ext.B6 notice was actually issued to the appellant, the fact R.S.A. No. 1494 of 2012 -:6:- remains that notices were issued earlier, it was only a gratuitous extension of time that was given to the plaintiff. Therefore, the contention that there was no reasonable time was given, cannot be accepted at all. In any event, since the articles were removed after preparing an inventory and were kept in the clock room, there was no difficulty for the plaintiff to get those articles. There is no case for the plaintiff that he had approached the Railway Administration or made any written request for return of the articles. Even after the filing of the suit he could have sought for return of the articles in respect of which an interim order could have been issued by the Court. That was also not sought for. 10. The respondents contend that the plaintiff is liable to pay clock room charges at the rate of 10/- per day for the first day for keeping the articles of the plaintiff in the clock room and thereafter Rs. 12/- per day and later at the rate of Rs. 15/- per day in addition to the electricity charges and rent. No basis was furnished by the respondent to see that the amount so claimed by them is R.S.A. No. 1494 of 2012 -:7:- reasonable. The plaintiff was of the view that because of the removal of the articles being a reasonable time any loss or damage was caused to him then certainly he could have sued the respondents for damages, if any caused. But he cannot say that the railway authorities should not remove the articles at all. Even if it is assumed that reasonable time of one month or two months should have been given, if at all, the claim for clock room charges for that period may have to be excluded, the Standing Counsel for the Railway submits. The learned Standing Counsel for the Railway would submit that since the claim for clock room charges made by the respondents was found to be slightly exorbitant, the lower appellate court has actually slashed it down by 50% and so it cannot be said that there was an unreasonable demand for the amount. It is important to note that the suit was actually filed for a mandatory injunction directing the Railway Authorities to return the article without claiming any charge including the clock room charges. 11. Clause XX of Ext. B1 agreement has been relied R.S.A. No. 1494 of 2012 -:8:- upon by the plaintiff to contend that he was entitled to a reasonable time: That clause reads: "On termination of the contract, the installations and advertising materials etc., shall be removed from the railway premises by the advertising agency within a month at his cost from the date of receipt of intimation of termination from DRM of the railway administration and advising them of the removal of the installation and advertising material from the railway premises. If the advertising agency fails to remove the things within the period specified above the railway administration shall be at liberty to dispose of the said material in any manner deemed fit". But it is argued on behalf of the respondent even if it is assumed that Ext. B6 is not acceptable, there is sufficient evidence to show that notice were issued to the plaintiff on several occasions earlier to remove the article and, therefore, the contention that no reasonable time was given as per Clause XX of Ext. B1, cannot be accepted. It is also pointed out that Ext. B5 inventory was prepared by the respondents when the articles were removed. The plaintiff did not even care to verify the same but again sent a letter to the Railway authorities. It is pointed out that the respondents had admittedly sent Ext.A5 (a) letter dated 5- R.S.A. No. 1494 of 2012 -:9:- 1-2002 as per which the plaintiff was asked to take back the article paying the amount due and it was further informed that if the amount is not paid, the articles will be sold in public auction. However, the respondents did not sell the articles in public auction. Though the plaintiff did not turn up to take back the articles. He could have sought a direction from the Court for getting return of the articles in protest or on subsequently as the Court could have imposed. He did not move the Court for that purpose. The notice sent by the plaintiff on 18-11-2002 was to direct the respondent/Railways to restore the entire articles to its original position. Since that request was found untenable, it cannot be said that, that was a request actually made by the plaintiff for return of articles. Trial Court found that if at all the plaintiff would have sued for damages, if any sustained by him that is not entitled to without paying the rent due. It was also found that the plaintiff did not pay the rent up to 3-11-2002, the date on which the articles were removed. That also was taken as a ground by the respondent so that the plaintiff has come to the Court with R.S.A. No. 1494 of 2012 -:10:- uncleaned hands. Though the plaintiff has also sought for a decree for mandatory injunction directing the respondents to put back the plaintiff into the same position as a licensee, that prayer was not pressed into service. 12. The learned counsel for the appellant has relied upon the decision of this Court in **E.P.George v. Thomas** **George – AIR 1981 Kerala 221** in support of his submission that the licensee does not become a trespasser of the property after the termination of license and that the licensees continuance on the property can by no means be as a trespasser. This ruling was relied upon by the learned counsel to fortify the decision that licensee is entitled to get a reasonable time as provided under Sec. 63 of the Indian Easement Act. The licensee has no interest in the property and that his right is only to do or continue to do something which would in the absence of that right be unlawful. Admittedly, the license period expired several years prior to the date of removal of the articles. The only contention raised by the appellant is that he was not given reasonable time for removal of the articles R.S.A. No. 1494 of 2012 -:11:- by himself. The articles were removed by the respondent/Railway as per an inventory and the articles were kept in the clock room. Even if Ext.B6 notice is accepted as not true, still there is evidence to show that the plaintiff has given sufficient time earlier. That apart, even if it is accepted that the licensee was not given one month time to remove the articles, that will not in any way clothe the licensor to occupy the premises or to continue the act as per the license agreement after the expiry of the license period. In the aforesaid decision, the point in dispute was whether the licensee can prescribe title by adverse possession and limitation contending that after the moment the license was revoked he becomes a trespasser and so he can prescribe title by adverse possession. It was not held that even if reasonable period was not given he can continue to occupy the premises for months or years together. 13. The decision in **Krishna Ram Mahale v. Mrs. Shobha Venkat Rao – (1989) 4 SCC 131** has also been relied upon by the learned counsel for the appellant . There R.S.A. No. 1494 of 2012 -:12:- it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain in the property, he cannot be dispossessed by the owner by the property except by recourse to law. Here, as per the license agreement the plaintiff was liable to remove the article within one month from the date of expiry of the agreement. The license period expired more than two years prior to the removal of the articles. The license period was extended only as requested by the plaintiff. Again two months time was given. It is not as if the plaintiff was not given reasonable time at all. It is not a case where the plaintiff was in settled possession of the property. His possession was only as licensee. It is not a case where respondents surreptitiously removed the articles. Ext.B5 inventory was prepared and mahazar was also prepared for the removal of the articles. All these articles were kept in the clock room. The plaintiff had at no point of time raised any contention that the entire articles were not kept in that room or that any damage was caused to any of these articles. Therefore, the aforesaid decision R.S.A. No. 1494 of 2012 -:13:- also cannot come to the rescue of the plaintiff. The learned Standing Counsel for the respondent would submit that it is only the conduct of the plaintiff that has created difficulty for himself. There was no difficulty for the plaintiff to approach the Railway authorities to take back the articles after paying some amounts as the clock room charges and he could have made a request for waiving the payment of the balance amount. No such positive act was there on the part of the plaintiff. He moved the Court for getting restoration of the right given to him as per the original agreement which stood expired years back and the plaintiff even wanted to see that the right of operating the C.C. T.V. should not be auctioned at all by the Railway Administration. 14. Under Sec. 64 of the Easements Act even if a licensee is a evicted, though grounds for revocation of license do not exist or that the licensee was forcibly evicted, his only remedy is to recover compensation from the licensor and not to resume occupation. It is true that it does not mean that the licensee can be forcibly evicted by R.S.A. No. 1494 of 2012 -:14:- the licensor without recourse to law. But in this case as per the agreement the articles were to be removed within one month and for that purpose sufficient time was given earlier. He did not do so. Therefore, the articles were removed after preparing an inventory and all those articles were kept in the clock room. The licensor was always ready and willing to return those articles provided the licensee pays the clock room charges. Therefore, the decision in **Corporation of Calicut v. K. Sreenivasan – AIR 2002 SC 2051** also cannot help the appellant. 15. Lower appellate court has reduced the amount payable to 50% of the amount claimed by the respondents. The learned counsel for the appellant would submit that the articles, T.V. and other accessories would not be of much value because several years have elapsed and thus the articles were not removed by the plaintiff. The plaintiff cannot find fault with the respondent because it was the conduct of the plaintiff himself that made the respondent to remove this articles. However, I find that a little more sympathetic consideration can be shown to the plaintiff by R.S.A. No. 1494 of 2012 -:15:- reducing the amount payable to 25% of the amount claimed by the respondents instead of 50% directed to be paid by the lower appellate Court. Except to extent of reducing the amount payable by the appellant to the respondent as stated above in all other respects, the appeal stands dismissed. The parties are directed to suffer their respective costs. _Dated this the 31st day of January, 2013._ Sd/- **N.K.BALAKRISHNAN, JUDGE.** ani/ /true copy/ P.S. to Judge