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THE DEFINITION OF LICENSE UNDER INDIAN LAW

"License" in immovable property can be summarized as a personal ( In-Personam ), permissive, nontransferable and unassignable contractual right to use a property in a certain agreed way for a certain agreed purpose.  According to some scholars, scholars, the legal instrument of "License" "License" in immovable properties was developed to deal with the legal complications of lease and rental rights under Indian law. In particular, this legal instrument was developed to enable property owners to restrict lessees and evict them more easily. he main difference between a license and a lease is that a license does not create a right in property itself, therefore eviction is practically immediate and hassle free. !till, many property owners that intended to protect themselves by entering a leave a license agreement (i.e. a license agreement to use a n immoveable property for a certain purpose), find themselves facing court decisions ruling that their agreement was in fact a lease agreement. !ome of the mistaes made by such property owners may be avoided. he first thing to do is to understand what a license really is. THE LEGAL DEFINITION OF LICENSE

he Indian legislator defined the legal definition of "license" in section #$ of he Indian %asement  Act, &''$, as follows "here one person grants to another, or to a definite number o f other persons, a right to do or continue to do, in or upon immovable property of the grantor, something which would, in the absence of such rights, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license." he Indian !upreme *ourt filled this definition with essence in the famous decision of Associated +otels of India Ltd. vs. .-. apoor /AI &0#0 !* &$1$2 as follows "3nder the aforesaid section /4section #$ of he Indian %asement Act2, Act2, if a document gives only a right to use the property in particular way or under certain terms while it remains in the possession and control of the owner thereof, it will be a license. he legal l egal possession, thereof, continues to be with the owner of the property, but the licensee is permitted to mae use of the premises for a particular purpose. 5ut for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property".  According to the above, the the main characteristics of license are License does not generate a proprietary right ( In-Rem ) in the property, but only a personal6contractual right7 license may not be transferred or assigned7 License can be created b y permission only, whether e8press or implied7 License does not create any estate or interest in the property. GRANTING A LICENSE

wo preliminary 9uestions that rise when entering into a Leave and License agreement are who can grant a license and how a license is granted. he first 9uestion is answered in section #: of he Indian %asement Act, &''$, that states that a licensee may be granted by anyone in the circumstances and to the e8tent in and to which he may transfer his interests in the property affected by the license. In other words, one cannot grant a license and one cannot receive a license if the licensor does not possess a sufficient lawful interest in the property. he second 9uestion is answered in section #; of he Indian %asement Act, &''$, that states that a the grant of a license may be e8press or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license. his definition is very important.