K.L. Srivastava, J.
1. This appeal is directed against the order dated 22-8-83 passed by the 7th Addl. Judge to the District Judge, Indore in C.S. No. 38-B/83 registered on the respondent's application under Section 8 of the Arbitration Act, 1940 (for short 'the Act'), whereby the latter's application under ORDER39, Rule 1-2, C.P.C., 1908 (for short the Code) read with Section 41 of the Act has been partly allowed.
2. Circumstances giving rise to this appeal are these. In pursuance of the advertisement by the Union of India now represented by the National Airport Authority (the appellant No. 1), and its officers the Director General, Civil Aviation, New Delhi (appellant No. 2), the Regional Director and Estate Officer, Civil Aviation, Bombay (appellant No. 3) and the Aerodrome Officer, Civil Aerodrome Indore (the appellant No. 4) tender was invited for running the Indore AirportRestaurant for a period of three years from the date on which possession of the restaurant premises is handed over to the successful tenderer. The respondent Vijaydatta who runs his business under the name and style of M/s. Dana and Co., Manorama Gary, Indore had submitted his tender quoting annual licence fee of Rs. 1160/- and his tender was accepted on 1-6-79.
3. As the restaurant premises were in possession of ex-caterer and litigation was pending in connection therewith, the respondent could not be put in possession of the restaurant premises. He was, therefore, initially required to carry on his business in a room.
4. It was subsequently on 3-11-89 that he was given possession of a part of the restaurant premises minus the three rooms. Later on 3-9-80 he was put in possession of three rooms also but not before a part of restaurant premises measuring 130 sq-ft. was taken away from his possession due to alterations in the building.
5. In the circumstances set forth above, the Aerodrome Officer issued the letter dated 17-9-82 to the respondent. The letter is in these terms :--
'Notwithstanding this office letter No. ID ES-7 4567-68 dated the 27th March 1982 calling upon you to pay the arrears of L.F. kindly refer to your application through your lawyer dated 20-11-81 addressed to the Director General of Civil Aviation, New Delhi and the discussion on this subject with the Director of Finance and Accounts and Regional Director, Bombay Region, Bombay on 3-7-82 in the office of the Aerodrome Officer. Civil Aerodrome, Indore.'
'Following discussion, the decision arrived at by the Director General of Civil Aviation, New-Delhi is being conveyed as follows:--
1) Since from 9-6-79 to 2-11-79 only Room No. 12 measuring 217.29 sq-ft. was handed over. Licence fee for this period will be charged at Rs. 50,71 P.M.
2) As the restaurant premises were handedover w.e.f. 3-11-79 the licence fee w.e.f. this date will be charged at Rs. 1160/- P. M. the tendered amount.
3) But since 3 rooms measuring 208.50 sq. ft. in the restaurant premises were handed over only on 2-9-80 and an area roughly measuring 120 sq. ft. was removed from Dining Hall due to modification in the terminal building the Director General of Civil Aviation, New Delhi is pleased to decide that as a compensation the Snack Bar measuring 192 sq. ft. shall be made available in addition to Restaurant premises as and when ready. In addition the licence period of 3 years will count from 3-9-80 (the day entire Restaurant premises were handed over) i.e. the licence period will be extended up to 2-9-83.'
'In accordance with the decisions of the Director General of Civil Aviation, New-Delhi the arrears of Licence fee to be paid have been calculated and shown in the enclosed statement amounting to Rs. 28,520,27. 'Accordingly this notice is served, requesting you to pay the arrears of Licence Fees amounting to Rs. 28,520.27 and sign the agreement, already forwarded to you vide this office letter No. ID, ES-7; 4782-84 dated the 11th March, 1982 within 15 days of issue of this notice, failing which action under P.P.E. Act will be initiated for eviction.' As the respondent failed to settle the outstanding dues, he was served with a notice dated 3-3-83 intimating him that licence stands terminated and calling upon him to hand over possession of the restaurant premises within 15 days of the notice. The respondent by his letter dated 8-3-83 submitted his reply that there is dispute as to the licence fee and the period of licence and the same should be resolved through two arbitrators one to be appointed by each of the contesting parties. In reply to this, the respondent sent the letter dated 18-3-83 wherein it has been stated as under :-- 'As regards arbitration it is regretted that your proposal is not acceptable. As per terms of agreement which you have failed to execute till date in case of arbitration the sole arbitrator is the Director General of Civil Aviation, New Delhi, or his nominee and thus appointment of any other arbitrator cannot be acceptable as proposed by you. Moreover by failing to execute the agreement in spite of several reminders, you may possibly have forfeited the right for arbitration.'
6. In the circumstances set forth above the respondent filed the aforesaid application under Section 8 of the Act on 30-4-83 praying for appointment of independent arbitrator in order to decide the dispute between the parties. The contention of the respondent is that possession of the snack bar has not yet been handed over to him. It was stated in the application Under Section 8 of the Act that according to the applicant, period of three years commenced from August 1982. In the application, relief for temporary injunction restraining the appellants from handing over the matter to the appellant No. 3 the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short 'the Eviction Act'), for taking action thereunder was also prayed for.
7. During the pendency of the proceedings, the respondent filed a separate application for grant of temporary injunction. By the impugned order the application has been partly allowed and the appellants have been restrained from dispossessing the respondent from the restaurant premises during the period of the licence and also from giving licence to any other person.
The point for consideration is whether the appeal deserves to be allowed.
9. From what has been stated above, it is clear that the respondent's possession of the premises in question is in pursuance of his tender quoting annual licence fee of Rs. 1160/- which has been accepted and the dispute between the parties pertains to the time from which the period of three years under the licence is to be counted and to the actual amount of arrears of licence fee payable by the respondent, he not having been put in possession of the whole of the restaurant premises as contemplated.
10. The appellants contention is that in the absence of the written agreement it cannot be held that there is any clause for arbitration and that the suit is, therefore, not maintainable.
11 On behalf of the respondent it has been urged that in the circumstances, agreement for arbitration can clearly be spelt from the correspondence between the parties.
12. It is further urged on behalf of the respondent that the appellant No. 2, the Director General, Civil Aviation, New Delhi, having taken a decision on the disputes without there being any arbitration, he stands disqualified from being so appointed and, therefore, other arbitrators have to be appointed. In support of this submission, reliance was placed on the decision in Union of India's case AIR 1965 Madras 488.
13. According to the appellants, the respondent was a licencee and the licence stands revoked.
14. The position of a licensee is certainly insecure as compared to that of a tenant on the expiry of the lease. Such a tenant cannot be said to continue in 'lawful possession' of the property if such a possession is not otherwise statutorily protected. However, his possession in such a situation is 'juridical possession' which is protected by law against wrongful dispossession though it cannot be equated with 'lawful possession'. It is part of the concept of 'rule of law' that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognized or countenanced by courts. The protection that courts afford is not of the possession which in the circumstances is litigious possession and cannot be equated with lawful possession, but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title there can be no forcible dispossession. Reference in this connection may usefully be made to the decision in M/s. Patil Exhibitor's case, AIR 1986 Kant 194.
15. As is clear from the definition of'licence' as embodied in Section 52 of the Easements Act, 1882 (for short 'the Easement Act') a licensee has no interest in the property and his right is only a right to do or continue to do something which, in absence of that right, be unlawful. As he has no interest or estate in the property such possession as he might have for enjoyment of the right is not a 'juridical possession' but is only 'occupation'.
16. Section 63 of the Easements Act provides that where licence is revoked, the licensee is entitled to reasonable time to leave the property and to remove any goods which he has been allowed to place on the property. The licensee does not become a trespasser the moment the licence expires or is revoked. In this connection the decision in E. P. George's case, AIR 1984 Kerala 224 is pertinent.
17. As pointed out earlier, courts do notcountenance dispossession even by the true owner by use of force without recourse to the procedure in accordance with law. In the instant case, however, it cannot be said that the appellants' intend to dispossess the respondent forcibly. According to them, the respondent being an 'unauthorised occupant' within the meaning of Section 2(g) of the Eviction Act, is liable to be evicted in accordance with the procedure prescribed therein. It is urged that it is open to the respondent to contend before the Estate Officer that he is not an 'unauthorised occupant' and to raise all other grievances for his consideration.
In the decision in Lakhmichand's case, AIR 1988 Punj & Har 146, Sections 6 and 41 of the Specific Relief Act, 1963 have been referred to and with reference to Order 39 Rule 1(c) of the Code, it has been pointed out that the clause envisages a wrongful act on the part of the defendant. The use of the word 'threatens' in this part of the clause implies a wrongful act on the part of the 'defendant' taking law into his own hands. When a defendant seeks to recover possession through judicial process by way of execution of a decree lawfully passed in his favour, by no stretch of reasoning can it be said that he threatens to dispossess the plaintiff by doing any wrongful act. Powers Under Section 151 of the Code cannot beinvoked because the aforesaid specific provision is available. The decisions in Lakha Singh's case AIR 1982 Delhi 348 and Surendra Singh's case AIR 1987 Madh Pra 85 are also pertinent and so is the decision in Associated CCL case AIR 1981 Raj 133.
19. Apart from what has been stated above, relief of temporary injunction is an equitable one and is in the domain of the courts judicial discretion. Therefore, even where the three well known concurrent conditions (prima facie case, balance of convenience and irreparable injury) requisite for grant of the relief exist, the court, on the facts and in the circumstances of the case, in exercising its discretion judicially, may still refuse the relief as where there has been delay and the party applying for the relief has not come with clean hands.
20. It may be remembered that it is not that despite the tender having been accepted the respondent has not been afforded any opportunity for running his catering business at the Indore Aerodrome. As the entire restaurant premises were not made available to him, he has initially been given concession in the rate of licence fee. Later on 3-11-79 sufficient accommodation was made available to him and the period of three years under the licence was held to commence from that date and not from 9-6-79 which is the date on which the respondent had commenced his catering business in a room. According to the respondent, the period of 3 years commenced from August 1962. According to the appellants, the premises in question can fetch higher amount as licence fee and the respondent who has been in occupation of the premises for more than six long years even after 3-9-83, on which date the period of three years under the licence expired, he can have no legitimate grievance against the proceedings under the Eviction Act. It has rightly been urged that in the circumstances, assuming that the respondent has never been in possession of an area as initially envisaged at the time of tender and is evicted before the disputes are decided he is at best entitled to monetary compensation (vide Section 64 of the Easements Act).
21. All considered, I have no hesitation inholding that in passing the impugned order the learned lower Court acted illegally and the same deserves to be set aside.
22. In the result, the appeal is allowed with costs. The impugned order is set aside. The application for temporary injunction filed by the respondent shall stand dismissed. Counsel's fee Rs. 200/- if certified.