Which agreement ???
Guest
(Querist) 17 August 2012
This query is : Resolved
Hello Seniors,
If a person wants to give a certain house on a commercial rent, can he go for a leave and license agreement for 11 months ?
if so, then by which act it will be binded ?
The place is Kolkata, West Bengal.
And can he increase the tenure of the agreement ...say 5 years instead of 11 months.... in that case will it be a problem ???
And can he make a leave and license agreement for a commercial rent to be on the safer side instead of a tenancy agreement ?
Please help. Thanks a lot in advance.
Devajyoti Barman
(Expert) 17 August 2012
The Leave and License has no concept in WB. What ever you write , the same would be a tenancy and the parties would be governed either by the provisions of WB Premises Tenancy Act or Transfer of Property Act , depending on the amount of rent.
Guest
(Querist) 17 August 2012
Thank you but if the rent is 11,000 then by which act and will the agreement be valid in west bengal?
if not then which agreement will be the most suitable one for a renting out a house in a commercial basis and what shall be the tenure to be on the safer side ?
Pls tell from the landlord aspect .
Guest
(Querist) 17 August 2012
Thank you Devajyoti Barman
but if the rent is 11,000 then by which act will it be governed and will the agreement be valid in west bengal?
if not then which agreement will be the most suitable one for a renting out a house in a commercial basis and what shall be the tenure to be on the safer side ?
Pls tell from the landlord aspect .
Devajyoti Barman
(Expert) 18 August 2012
This would be treated as lease and would be governed by Transfer of Property Act.
Tenure could be of any time.
Guest
(Expert) 18 August 2012
License is defined in Section-52 of the Indian Easement Act and the said Act is applicable to whole of India. Therefore every license is governed by those provisions under the said Act. When any premises are given on license is popularly known as given on leave and license. Such agreement is known as leave and license Agreement. In every state the jurisdiction of the Court is different. But the agreement of leave and license is valid in every state.
In a leave and licence agreement the juridicial possession of the premises is deemed to remain with the licensor and the licensee is said to be in constructive possession of the said premises. Thus a leave and licence does not create any interest in the premises in favour of the licensee but gives the licensee the mere right to use and occupy the premises for a temporary period.
The cardinal distinction between a lease and a licence is that in a lease there is a transfer of interest in the premises, whereas in the case of a licence there is no transfer of interest, although the licensee acquires a right to occupy the premises. When premises are given out on lease or tenancy basis the legal possession of the premises in these cases is also deemed to be transferred to the lessee and tenant respectively.
In deciding whether to give out premises on leave & licence basis some of the factors to be considered are as follows:
Possession: In a leave and licence agreement, the owner is deemed to be in legal or judicial possession of the premises and the licensee is in constructive possession of the premises.
Refer the Judgment delivered by Apex Court in the Case of
Achintya Kumar Saha vs M/S Nanee Printers And Others on 30 January, 2004
Author: Kapadia
Bench: P Reddi, S Kapadia.
CASE NO.:
Appeal (civil) 6203 of 1999
PETITIONER:
Achintya Kumar saha
RESPONDENT:
M/s Nanee Printers and Others
DATE OF JUDGMENT: 30/01/2004
Chattopadhyay Arghya
(Expert) 19 August 2012
The statutes -be it state act or central act - tenancy laws or leave & lic.- easement laws - each one has its own scope and limitations. But do you have to be subject to any specific act or law while creating an instrument of a transaction like you wished? it need not be so expressly. Rather it is possible to introduce specific expression and words which peculiarly by its constructive intention would refer the law it suggests to be subject to, and accordingly interpretation would be drawn. There is one complete statute Indian Contract Act, and if you produce a good contract by which you make a conditional transaction with introduction of intended definitions imported from relevant acts and laws nothing is going to frustrate your contract. But one thing should be remembered that the purpose of transaction must not be frustrated, and some illegal contract terms should be avoided. A good lawyer expert in drafting tricky contracts and understand the real spirit of contract can help you . When some terms and condition are introduced to expressly import some provision or expressly avoid some situation can be enforced by avoiding conflicts with any statute only. You have Specific Relief Act in order to enforce any contract term or condition. What you want you can introduce in contract. In a word a hybrid contract . A good lawyer can fulfill your wishes which on one side may seem not reasonable or lawful but by erudite construction can remove the demerits. So get a good contract lawyer who dares twisting laws.
M V Gupta
(Expert) 19 August 2012
Even if the West Bengal Tenancy Act does not contain any provision relating to leave and license, as stated by Shri Nayyar u can enter into a leave license agreement for ur premises for any specified period. Generally license agreements are not made for more than 5 years at a time and the current practice in Mumbai is to provide for annual increment of rent by 5% of the current rent. If the licensee insists, you may provide for renewal of the license subject to certain conditions such as revised license fee etc.
Guest
(Querist) 21 August 2012
Thank you very much Yougesh V. Nayyar, Chattopadhyay Arghya & M V Gupta.
But in one thing i am stuck regarding the short title which says """"" Local extent, commencement: It extends to the territories respectively administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and Coorg; """""
So, does it mean that it also covers the territory of West Bengal, kolkata ???
Devajyoti Barman
(Expert) 22 August 2012
As stated earlier it has no application in WB if the consideration for its user is amount equivalent to rent.
However free user can be termed as leave and license in WB as well.
Dear Mr Gputa , such agreement advised by you would be treated as Lease and nothing else in WB.
M V Gupta
(Expert) 22 August 2012
Dear Mr. Burman,
I do agree that in many cases the question has arisen whether a contract entered into is a lease or license and it has been held that if the Land lord has kept the control of entry and exit with him and kept one key of the premises with him and the contract clearly provides for revocation of the contract at the pleasure of the land lord, it was held that such a contract is a license. In Maharashtra the Maharashtra Rent control Act,1999 contains specific provision that a leave license agreement which is stamped and registered shall be a conclusive proof that it is an agreement of license. As suggested by Mr. Chattopadhyaya in the absence of such provisions in WB Rent Act, the document should be properly worded to avoid misinterpretation of the document.
