This chapter focuses on the investigation and prosecution of several federal criminal offenses including: aircraft piracy, destruction of aircraft, and firearms offenses. The Counterterrorism Section of the National Security Division has supervisory authority over the offenses in this chapter, unless otherwise noted. See JM 9-130.200 (the Organized Crime and Gang Section has supervisory authority over some offenses in this chapter if they involve organized crime or labor/management disputes).
Sections 46502, 46504, 46505, 46506, and 46507 of Title 49, United States Code, (formerly section 1472(i) through (n) of Title 49 Appendix) set forth the offenses of aircraft piracy and attempted piracy while in flight within or outside the special aircraft jurisdiction of the United States, interference with flight crew members or flight attendants while in flight within the special aircraft jurisdiction of the United States, carrying weapons or explosives aboard an aircraft, conveyance of false information or threats regarding certain offenses prohibited by 49 U.S.C. §§ 46502, 46504, 46505, 46506, and 46507 and certain common law offenses.
Pursuant to 28 U.S.C. § 538 (formerly 49 U.S.C. App. § 1472(o)), criminal violations of the aircraft piracy and related offense provisions are investigated by the Federal Bureau of Investigation (FBI). See Pub. L. 103-272, § 4(e)(1), 108 Stat. 1361. The Federal Aviation Administration (FAA) also has administrative responsibility to prevent and, where warranted, to punish such offenses by civil penalties. When linked to terrorism, the aircraft piracy and related offenses are supervised by the Counterterrorism Section (CTS) of the National Security Division. Otherwise, the Criminal Division, Human Rights and Special Prosecutions Section should be contacted.
Section 46504 of Title 49, United States Code (formerly section 1472(j) of Title 49 Appendix) sets forth the offense of interference with a flight crew member or flight attendant within the special aircraft jurisdiction of the United States, which is defined in 49 U.S.C. § 46501(2). The statute applies to any "individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties." The statute provides for up to 20 years imprisonment, and further provides for imprisonment for any term of years or life if a dangerous weapon is used. Interference with a flight crew member or attendant is a general intent crime, and does not require a specific intent either to intimidate the flight crew member or attendant or to interfere with t he performance of his or her duties. United States v. Grossman, 131 F.3d 1449 (11th Cir. 1997).
Venue is governed by the standard venue provisions, 18 U.S.C. §§ 3237 and 3238 and Rule 18, Fed.R.Crim.Proc. See also United States v. Hall, 691 F.2d 48 (1st Cir. 1982). "[T]he offense continues for at least as long as the crew are responding directly, and in derogation of their ordinary duties, to the defendant's behavior." United States v. Hall, 691 F.2d at 50. Prosecution is always proper in the district over which the aircraft was flying when the interference took place, if that can be determined. In many cases, particularly those in which either (1) the aircraft is diverted due to the defendant's actions, (2) the defendant's interfering actions continue, or (3) the crew remains concerned about defendant's possible further actions, venue is also proper in the district in which the aircraft lands. Since determining the district over which the aircraft was flying when the action took place may be difficult, and that district may have little or no connection to the matter, the Department advocates prosecution in the district where the aircraft lands and the defendant is deboarded and arrested in all appropriate cases.
The interference and other Title 49 aircraft offenses are supervised by the Counterterrorism Section of the National Security Division.
See also the Criminal Resource Manual at 1411.
The Department advocates severe penalties for aircraft hijackers as a deterrent to future acts of piracy. Consequently, United States Attorneys must consult with the Counterterrorism Section of the National Security Division before dismissing, in whole or in part, an indictment, information, or complaint containing such charges or entering into any agreement to forego an air piracy prosecution under 49 U.S.C. § 46502(a) (formerly 49 U.S.C. App. § 1472(i))(aircraft piracy within the special aircraft jurisdiction of the United States) in favor of a guilty plea to a lesser offense or decides not to prosecute fully an act of air piracy. See also JM 9-16.020 (pleas, generally).
The Transportation Security Administration (TSA) pre-board screening procedures have resulted in the detection of increasingly large numbers of individuals who attempt to board aircraft with deadly or dangerous weapons concealed on their person or contained in accessible property.
In most cases, the offender has no prior criminal record, and there is no evidence that he or she intended to use the weapon to commit an offense aboard the aircraft. Nevertheless, the transportation of dangerous weapons into airport security areas is disruptive, diverts the time and attention of airport security personnel, and creates an unnecessary risk to the safety of the general public. Accordingly, federal felony prosecutions under 49 U.S.C. § 46314(b)(2) and 49 U.S.C. § 46505 are generally not warranted in these types of cases, but misdemeanor charges under 49 U.S.C. § 46314(b)(1) may be given consideration.
Specifically, the following guidelines should be considered when determining whether and how an airport weapons violation will be prosecuted.
The weapon is any type of explosive or incendiary device, which includes devices using gasoline or similar flammable liquids, binary liquids, and other hazardous materials.
The offender possesses items which are normally and acceptably used for a noncriminal purpose and which present only a marginal risk to the safety of the public.
An unaggravated weapons violation may not require further criminal investigation and may be referred initially to an appropriate law enforcement agency. An investigation or prosecution under this section involving the unaggravated transportation of a weapon into an airport security area is not subject to the prior approval, consultation, and notification requirements set forthat JM 9-90.020. Nothing in this policy precludes a referral of weapons violations to state or local authorities for investigation and prosecution.
A United States Attorney may also elect to seek a civil penalty pursuant to 49 U.S.C. § 46303. In such cases, the matter should be referred to the nearest TSA Regulatory Compliance Field Office responsible for the airport for appropriate civil action. See JM 9-76.110. The civil penalty provision is one of strict liability. See United States v. Gutierrez, 624 F. Supp. 759 (E.D.N.Y. 1985).
Title 49 U.S.C. § 46507(1) makes it a crime to willfully and maliciously, or with reckless disregard for safety, convey false information, knowing such information to be false, concerning an attempt to do an act which would be a felony prohibited by various sections of Title 49.
False information not readily disclosed as such resulting in delay of the flight or inconvenience to airport employees and passengers.
Consistent with the considerations discussed above, cases in which the airlines do not deem the conduct of the individual to be of such seriousness as to warrant his/her removal from a flight or delay his/her travel schedule.
The Federal Bureau of Investigation (FBI) investigates incidents involving possible violations of Chapter 2 of Title 18, United States Code. The Counterterrorism Section of the National Security Division supervises offenses involving 18 U.S.C. §§ 31-35.
Authorization shall be obtained from the Assistant Attorney General of the Criminal Division before an indictment is returned alleging a violation of 18 U.S.C. § 32(b), the Aircraft Sabotage Act. This is consistent with the policy for 49 U.S.C 46502(b) (formerly 49 U.S.C.App. § 1472(n)), which relates to acts of air piracy committed against foreign civil aircraft which are outside the special aircraft jurisdiction of the United States. See JM 9-2.136 and JM 9-63.181.
Subsection (c) of Title 18, section 32 prohibits the willful imparting or conveying of threats to do anything to destroy or damage aircraft or aircraft facilities which would violate paragraphs (1) through (5) of subsection (a) or paragraphs (1) through (3) of subsection (b). The threat must be made "with an apparent determination and will to carry the threat into execution."
As with the offense of communicating false information regarding aircraft piracy (See JM 9-63.171), if there is no reason to believe that the individual has the motivation or ability to carry out the threat, there is no reason to expend the resources of the Federal government in criminally prosecuting such an individual. If, however, the threat is issued under circumstances where a reasonable person would believe that it would be carried out and the threat involves an action that would likely endanger the safety of the aircraft, such conduct should be prosecuted vigorously.
Section 33 makes it a Federal crime willfully, with intent to endanger the safety of any person on board or anyone he/she believes may be on board, to disable, destroy, tamper with, or place or cause to be placed any explosive or other destructive substance in, upon, or in proximity to any motor vehicle which is used, operated, or employed in interstate or foreign commerce, or its cargo or material used or intended to be used in connection with its operation.
Section 35 of Title 18 provides civil and criminal felony provisions for the conveyance of false information regarding attempts or alleged attempts to destroy, damage, or disable aircraft, aircraft related facilities or motor vehicles and their related facilities.
The Department believes that civil penalties are an effective punishment for the disruption caused by pranksters and jesters who falsely report the presence of bombs or explosives aboard aircraft. Under 18 U.S.C. § 35(a), willfulness need not be shown and the penalty will be recoverable even if the false report was the result of a poor attempt at humor, irritation or fatigue. See United States v. Rutherford, 332 F.2d 444 (2d Cir., cert. denied, 377 U.S. 994 (1964); United States v. Sullivan, 329 F.2d 755 (2d Cir.), cert. denied, 377 U.S. 1005 (1964).
The essence of the "impart or convey information" element is the impression created in the minds of those who hear the remark and observe the person making it. These impressions should be tested under the objective standard of what reasonable persons would conclude from the words actually spoken, and from the conduct and demeanor of the speaker. In general, the civil penalty should not be sought where the words amounted to an inquiry, conjecture or speculation, as distinguished from an affirmative imparting of information. Also, if an action is to be initiated, the statement should not be inherently unbelievable and the speaker's conduct and deportment should be consistent with his/her words. However, even if the speaker follows his/her false report with an immediate disclaimer of malevolent intent, he/she has aroused suspicion or doubt which, in the interest of the travelling public's safety, cannot be ignored. A civil penalty should be sought under these circumstances. See H.R. Rep. No. 263, 89th Cong., 1 Sess., pp. 1-2 (1965). As a matter of practice, the maximum penalty under the statute should be sought.
In the interest of uniformity, Departmental policy requires that all civil penalty actions under 18 U.S.C. § 35(a) be brought in the district in which the defendant resides. This policy comports with the general practice followed by other Divisions when enforcing civil sanctions.
As of September 13, 1994, 18 U.S.C. § 34 carries a viable death penalty for violations of 18 U.S.C. § 32 or § 33 where death results to any person. It is necessary that the Attorney General approve all recommendations by Federal prosecutors to seek the death penalty. See JM 9-10.000 (capital crimes).
The Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF) has primary investigative jurisdiction over violations of the Federal firearms statutes. The Federal Bureau of Investigation, the Postal Service, and the Immigration and Naturalization Service may exercise investigative jurisdiction over violations of Federal firearms statutes when such violations are ancillary to investigations within their jurisdiction. The Gang Unit of the Criminal Division exercises supervisory jurisdiction over the Federal firearms statutes.
See also JM 9-60.1100 (discussion of firearms offenses in the context of domestic violence (18 U.S.C. §§ 922(g)(8) and (9)).
In most prosecutions under 18 U.S.C. § 922(g), the defendant is a previously convicted felon who is in possession of a firearm. However, some cases involve weapons possession by a defendant who simultaneously maintains more than one disqualifying status nder § 922(g). For example, a defendant may be both a convicted felon and a fugitive from justice, or a convicted felon and an illegal alien. By memorandum dated November 3, 1992 (see the Criminal Resource Manual at 1431), the Criminal Division provided policy guidance to the United States Attorney's Offices on the propriety of charging and convicting a defendant who falls under more than one class of persons disqualified from possessing firearms under § 922(g).
In substance, it is appropriate to charge a defendant who has multiple disqualifying factors with a separate count of unlawful weapons possession under § 922(g) for each disqualifying status. In addition, it is appropriate to present evidence to the factfinder regarding each disqualifying status and to seek a verdict on each separate count. However, because § 922(g) was designed to prohibit the possession of firearms by individuals Congress deemed dangerous, and not to punish such persons solely for having a certain status under the law, a defendant should not be punished separately under two or more separate subdivisions of § 922(g) for a single instance of unlawful weapons possession.
Federal prosecutors should not seek consecutive or concurrent sentences in this situation. Rather, the government should urge the court to "merge" or "combine" the multiple § 922(g) convictions based on different statuses into one conviction for sentencing purposes. See United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990) (merging separate convictions under § 922(g)(1) for possession of firearm and ammunition for sentencing purposes); United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir. 1984), cert. denied, 474 U.S. 830 (1985) ("combining" separate convictions under 21 U.S.C. §§ 848 and 846).
The merger or combining of the convictions under separate subdivisions of § 922(g) achieves several salutary effects. First, it protects the government's interest in safeguarding the validity of each conviction on appeal, should the defendant challenge his inclusion in one of the disqualifying statuses charged in the indictment. See United States v. Aiello, 771 F.2d 621, 634 (2d Cir. 1985) (procedure provides for reactivation of combined or merged conviction if appellate court reverses single conviction for which defendant was sentenced). Second, it assures that the defendant is not punished inappropriately solely for having a certain status under the law. See United States v. Winchester, 916 F.2d 601, 605-08 (11th Cir. 1990) (ruling that it is inappropriate to sentence a defendant with two disqualifying statuses to consecutive terms of imprisonment for a single instance of unlawful weapons possession).
In Staples v. United States, 114 S. Ct. 1793, 1804 (1994), the Supreme Court ruled that, to obtain a conviction for an unregistered automatic weapon, in violation of the National Firearms Act (NFA) (26 U.S.C. § 5861(d)), the government must prove that the defendant knew of the features or characteristics of the weapon that brought it within the scope of the criminal proscription. In the wake of the Staples decision, the Solicitor General's Office has concluded that the government should take the position that in all cases prosecuted under the NFA, the government must prove that the defendant knew the features of the firearm that brought it within the scope of the Act. The Criminal Division has issued a memorandum to all United States Attorneys explaining this policy, and has provided suggested jury instructions regarding the knowledge element of a violation of the NFA.
In addition to NFA violations, the Criminal Division believes that the same scienter standard should apply to 18 U.S.C. § 922(o), which makes it unlawful to transfer or possess a machinegun. In such cases, prosecutors should anticipate the requirement that they must prove the defendant's knowledge that the firearm at issue was a machinegun, and they should accede to defense requests for an instruction requiring a finding of such knowledge.
Section 922(o) of Title 18 makes it unlawful to transfer or possess a machinegun made after May 19, 1986. In addition, under the NFA, it is unlawful to manufacture or possess a machinegun without first registering it with the Secretary of the Treasury and paying applicable taxes. 26 U.S.C. §§ 5822, 5861. As a result of the enactment of 18 U.S.C. § 922(o), the Secretary of the Treasury no longer will register or accept any tax payments to make or transfer a machinegun made after May 19, 1986. Accordingly, because it is impossible to comply with the registration and taxation provisions in the NFA, prosecutors should charge the unlawful possession or transfer of a machinegun made after May 19, 1986 under § 922(o).
Under 18 U.S.C. § 924(c)(1), a person who "during and in relation to any crime of violence or drug trafficking crime . . . . uses or carries a firearm" is subject to a mandatory minimum sentence. In Bailey v. United States, 116 S. Ct. 501 (1995), the Supreme Court held that conviction of a defendant for "use" of a firearm under § 924(c) requires "evidence sufficient to show an active employment of the firearm by the defendant." Id. at 505. The Court rejected the government's contention that storing a weapon near drugs or placing a firearm where it is available for use during a drug transaction constitutes "use" of a firearm under § 924(c). The Court explained that "use" under § 924(c)(1) only "includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at 508.
The decision in Bailey substantially altered prior law concerning the evidence necessary to establish "use" under § 924(c). To assist Federal prosecutors in dealing with the many ramifications of the decision, the Criminal Division sent a memorandum to all U.S. Attorneys, dated December 13, 1995. Please refer to this memorandum for advice on Bailey-related issues, including challenges to prior convictions, and current and future cases prosecuted under § 924(c).
For a discussion of the investigative jurisdiction for federal explosive statutes contained in 18 U.S.C. §§ 841-848, see the Criminal Resource Manual at 1438. Supervisory authority for the explosives statutes rests with the Gang Unit.
The Criminal Division interprets 18 U.S.C. § 848 as a statement of congressional intent that the Federal government— absent a specific Federal interest—will not become involved in bombing matters that can be adequately investigated and prosecuted by local authorities. This interpretation of congressional intent is confirmed by the congressional hearings which led to passage of the Federal explosives statute, wherein Administration witnesses testified that Federal jurisdiction would be exercised only upon a determination by the Attorney General or his/her designee that a Federal prosecution is in the public interest. The members of the congressional committees were explicitly assured that the Department of Justice would not displace the efforts of State and local officials in bombing matters. Accordingly, Federal prosecutors should coordinate with state/local law enforcement authorities before commencing a Federal prosecution.
Section 844(e) is a specific intent offense that prohibits the use of the mails, telephone, or other instruments of interstate or foreign commerce to make threats or convey false information. As amended by the Antiterrorism Act of 1996, § 724, 110 Stat. at 1300, section 844(e) also prohibits whoever, "in or affecting interstate or foreign commerce," makes false bomb or arson reports. Id.
The provisions of 18 U.S.C. § 844(e) should not be used unless a substantial Federal interest is involved. For example, section 844(e) should not be used in a situation involving a bomb threat by a student against a school, or by an employee of an organization other than the Federal government. These types of cases should be deferred to State or local authorities whenever possible. The Federal Bureau of Investigation has been instructed to decline investigation of § 844(e) violations unless the identity of the offender is readily ascertainable or known, or a pattern or plan of these offenses appears to exist.
For a discussion of the investigative jurisdiction for consumer product tampering offenses, see the Criminal Resource Manual at 1447. The Counterterrorism Section of the National Security Division has supervisory authority over consumer product tampering offenses.
The Federal Anti-Tampering Act, Pub.L. No. 98-127, 97 Stat. 831, October 13, 1983, created section 1365 of Title 18, United States Code, which makes it an offense to tamper with consumer products or to engage in related conduct. It was enacted in response to the Tylenol poisoning deaths in the Chicago area in the fall of 1982.
As in the past, State and local authorities will continue to play a large and significant role in the investigation and prosecution of alleged tampering. The Federal Anti-Tampering Act does not preempt prosecution by State and local authorities for conduct which would be in violation of 18 U.S.C. § 1365. Hence, referral to such authorities is appropriate when no significant Federal interest requires vindication (e.g., in an isolated instance, when there is no serious impact upon commerce, when the wrongdoer has been identified and State or local authorities are prepared to handle the case, etc.).
RICO (18 U.S.C. § 1961): Prosecutors must obtain the prior approval of the Criminal Division, Organized Crime and Gang Section (OCGS). See JM 9-110.320.
Violent Crimes in Aid of Racketeering (18 U.S.C. § 1959): Prosecutors must obtain the prior approval of the Criminal Division, Organized Crime and Gang Section (OCGS). See JM 9-110.801.
"Three Strikes" (18 U.S.C. § 3559(c)): When filing a Three Strikes case, send an Urgent Report to the attention of the Director of the Executive Office for United States Attorneys (EOUSA). The Gang Unit is available to assist in handling the issues arising out of the Three Strikes provision. See JM 9-60.020 for additional information about "Three Strikes."
Criminal Division approval to proceed against juvenile as an adult is no longer required. In place of Department approval, notification to Criminal Division is required prior to filing any motion to transfer to adult proceeding (notify the Gang Unit attorneys. See JM 9-8.000 et seq. (Juveniles)).
Consultation is no longer required prior to charging defendant with the Continuing Criminal Enterprise (CCE) statute's (21 U.S.C. § 848) mandatory life sentence provision.
A number of statutes used in gang prosecutions require compliance with the Department's "Death Penalty Protocol," which was established on January 27, 1995. In all cases for which death is a possible penalty (regardless of whether a district intends to seek the death penalty), a prosecution memorandum and death penalty evaluation must be submitted. See JM 9-10.000.
Experience has shown that prosecutors cannot afford to ignore the juvenile gang members. If only the adult members of the gang are investigated and prosecuted, juveniles will fill the void and the gang will survive. If a gang is being prosecuted Federally, it may also be ill-advised to proceed with local prosecutions of the juveniles, unless the juveniles are pleading guilty and cooperating. A concurrent State or local prosecution requires repeated exposure of witnesses, which presents security concerns.
In a May 13, 1996 memorandum from the Attorney General (and others) to all United States Attorney Offices and Department of Justice law enforcement agencies a youth violence initiative was announced. The memorandum provides specific guidance to United States Attorneys' Offices. Prosecutors involved in the implementation of the strategies outlined in this memorandum are encouraged to call upon the expertise of the various components of the Department, and to share successful strategies with the Violent Crime Coordinator, Seth Adam Meinero, with the Office of Legal and Victim Programs, Executive Office of United States Attorneys.
See also JM 9-8.000 (Juveniles).


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Law Web: Whether licence is created even if document mentions payment of rent?
Whether licence is created even if document mentions payment of rent?
From the above materials on record it is evident that the plaintiff company itself is a tenant in the suit premises and that being so, it has been rightly argued by Mr. Choudhuri, on behalf of the plaintiff company, that a tenant has got no power to transfer such right or interest to any other person. Sub-tenancy, even if there be any, can only be created by the tenant with prior consent of the landlord. It is nobody's case that such subtenancy was at all created by the appellant in favour of the respondent with prior permission or consent of the landlord or the lessor, as the case may be. A grant of exclusive possession can only be a licence and not a lease where the grantor has no power to grant a lease. An intention to enter into the legal relation of landlord and tenant cannot be imputed by law where circumstances and conduct negative such intention. It appears that both the learned first Appellate Court and learned Trial Court laid emphasis on the word 'rent' as used in Exts. C and D. It has been specifically laid down by the Supreme Court in CM. Beena and Anr. v. P.N. Ramachandra Rao, (2004)3 Supreme Court Cases 595 at page 599 (para 9) that user of the terms like 'lease' or licence', lessor' or licensor', 'rent' or licence fee' is not by itself decisive of the nature of the right created by the document and an effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. It has been further held that the conduct of the parties before and after the creation of relationship is of relevance for finding out their intention. In its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. It has been so held by the Supreme Court in State of Punjab v. Brtish India Corporation Ltd,, reported in AIR 1963 Supreme Court 1459 at page 1463 para 15. If the parties intend to bring into existence merely a licence and not a lease, the word 'rent' used in such case is in fact loosely used for 'fee'. It is settled law that the intention of the parties is the decisive consideration to judge whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee and in absence of any formal document of the intention of the parties must be inferred from the circumstances and conduct of the parties.
1. This appeal at the instance of the appellant arises out of the Judgment and decree dated 11th May, 1991 passed by Shri A.K. Chatterjee, learned Additional District Judge, 12th Court, Alipore in Title Appeal No. 47 of 1989 affirming the Judgment and decree dated 20th December, 1988 passed by Shri T. Maity, learned Munsif, (now designated as Civil Judge, Junior Division), 3rd Additional Court, Alipore, in Title Suit No. 238 of 1986 which was previously numbered as Title Suit No. 14 of 1984.
2. The factual matrix leading to the instant appeal may briefly be narrated thus.
3. The plaintiff has instituted the suit claiming decree for eviction of the defendant from the suit premises and recovery of possession thereof and also decree for mesne profits. As per the plaint case the plaintiff company is a tenant in respect of the suit premises being Flat No. 5 on the second floor of the building known as "Paul Mansions" at premises No. 6, Bishop Lefroy Road, P.S. Bhowanipore. The plaintiff granted licence to the defendant to occupy the said flat for his residential purpose for which the defendant had to pay licence fee of Rs. 375/- per month payable according to English calendar month to the plaintiff. The said licence to occupy the flat was revoked by the plaintiff. The defendant was asked to vacate the said flat and deliver possession thereof on expiry of 30th June, 1981. In spite of repeated requests the defendant did not deliver possession of the said flat to the plaintiff. By the letter dated 28th July, 1983 issued by the plaintiff through its advocate to the defendant the licence to occupy the said flat was determined on expiry of 7 days from the date of receipt of the said letter by the defendant. In spite of receipt of the same the defendant did not care to make over possession of the said flat to the plaintiff.
4. In the written statement the defendant has denied the allegations contained in the plaint. The plea as raised in the written statement is that the defendant is a monthly tenant at monthly rent of Rs. 375/- per month payable according to English calendar month. It is the specific case of the defendant was never granted licence to occupy the said flat and as such the alleged revocation of licence by the plaintiff does not arise.
5. On consideration of the materials on record the learned trial Court has arrived at the finding that the suit flat was let to the defendant for use as residence by reason of his being in the service of complaint of the plaintiff company and as such Section 13(10(g) of the West Bengal Premises Tenancy Act is attracted in such case. The learned Trial Court is of the view that the defendant is a tenant under the plaintiff and not a licensee and so the suit is not maintainable in its present form. Consequently the learned Trial Court dismissed the suit.
6. Aggrieved, the plaintiff preferred appeal being Title Appeal No. 47 of 1989 and on appeal the learned Additional District Judge, 12th Court, Alipore has arrived at the finding that the defendant/respondent cannot but be treated a tenant in respect of the suit flat under the plaintiff/appellant and he cannot be treated as tenant in respect of the suit flat under the plaintiff appellant and he can not be treated as licensee. Such finding ultimately resulted in dismissal of the appeal.
7. Being aggrieved by and dissatisfied with the Judgment and decree passed by the learned first Appellate Court affirming the Judgment and decree passed by the learned trial Court the plaintiff/appellant has preferred the instant appeal alleging inter alia that both the learned Courts below erred in law in dismissing the suit, that while considering whether the defendant was a licensee or a tenant under the plaintiff company, both the learned Courts below failed to take into consideration the intention of the parties, that the learned Courts below failed to consider that the defendant was not inducted as tenant and that there was no intention to create tenancy in favour of the defendant, that the learned Courts below should have held that the defendant was not a tenant and had no tenancy right in the suit premises and that the learned Courts below should have held that the defendant was a licensee under the plaintiff company and his licence to use and occupy the suit premises had been revoked.
9. Whether, keeping in view the nature of transaction between the plaintiff and the defendant, defendant/respondent may be held to be a licensee under the plaintiff, as while considering such matter, all relevant factors should be taken into consideration, as the word 'rent' is not decisive.
10. It appears that the learned trial Court referred to the document marked Ext. C which is the letter dated 12th June, 1979 addressed by the Assistant Personnel Manager of the plaintiff company to the defendant wherefrom it appears that the defendant was requested to inform the plaintiff company as to whether he was willing to occupy the company's quarters on payment of 10% of his salary as rent to be realised through salary bill. Relying on this document the learned Trial Court has held that the defendant was allowed to occupy the residential accommodation at the disposal of the plaintiff company owing to his employment under the plaintiff company. The learned Trial Court has placed reliance on another document marked Ext.D which is a pay slip of the defendant for the month of March, 1981 showing that Rs. 275/- per month was paid to the defendant as house rent allowance and Rs. 100/- out of the total rent of Rs. 375/- had been deducted from the salary of the defendant. Primarily relying on the aforesaid two documents marked Exts. C and D the learned trial Court has held that the suit premises had been let to the defendant by the plaintiff company for use as residence by reason of his being in the service or employment of the plaintiff company and the case comes within the purview of section 13(l)(g) of the West Bengal Premises Tenancy Act.
11. The learned first Appellate Court has mainly relied on the document marked Ext. D which shows that Rs. 100/- was paid by the respondent to the appellant company for occupation of the premises in excess of what had been given by the appellant to the respondent as house rent allowance. As observed by the learned first Appellate Court, the very conduct of the appellant company towards the respondent would clearly show that the respondent had been given occupation of the disputed premises separately from the contract of service by and between the parties and in such circumstances the respondent can only by treated as tenant in respect of the suit premises under the appellant and not as a licensee. The learned first Appellate Court has ultimately held that the notice of ejectment Ext. 2 cannot be treated to be legally valid, just and proper nor on the strength of such notice the plaintiff/appellant can ask for eviction of the respondent from the suit premises.
12. Mr. Amitava Choudhuri, the learned advocate for the appellant, has contended that there were no terms and conditions in the letter of appointment of the respondent (Ext. 12) to show the respondent would be provided with the residential accommodation and there was no written agreement between the appellant and the respondent regarding the respondent's residential accommodation in the suit premises. It has been further urged by Mr. Choudhuri that no rent receipt was granted to the respondent and although the appellant allowed the respondent to use and occupy the suit premises, there was no transfer or assignment of the appellant's right or interest in the suit premises which was rented accommodation of the plaintiff company. It has been argued by Mr. Choudhuri that the appellant company being itself a tenant in the suit premises had no power to transfer such right or interest to any person. He has drawn my attention to the evidence on record to show that the respondent was not in exclusive control or possession of the suit premises and the evidence of the defendant/respondent reveals that he admitted in cross-examination that an employee of the plaintiff company stayed in the servant's room and another employee of the plaintiff company stayed in the garage of which a duplicate key was given by the employee to him. From the evidence on record he has further pointed out that there is clear admission of the defendant/respondent in his cross-examination that the electric bill of the suit premises stands in the name of the plaintiff company. As contended by Mr. Choudhuri, the defendant was not in exclusive control of the suit premises and the word 'rent' appears to have been loosely or carelessly used in the documents marked Exts. C and D. It has been urged by him that no relationship of landlord and tenant was created between the appellant and the respondent because there was no intention to create any such tenancy in favour of the respondent. It is the contention of Mr. Choudhuri that the nature of occupation of the suit premises by the defendant/respondent was permissive in nature which created relationship of licensor and licensee between the appellant and the respondent.
13. Mr. Saibal Acharyya, the learned advocate for the respondent, on the other hand, has contended that the materials on record and especially use of the word 'rent' in Exts. C and D clearly reveal existence of relationship of landlord and tenant between the appellant and the respondent and since the plaintiff/appellant has sought eviction of the defendant from the suit premises treating the latter as licensee and not as tenant, both the learned Courts below have arrived at justifiable finding that the suit as framed is not maintainable. It has been further urged by him that there is no material on record to indicate that the defendant/respondent was a licensee under the plaintiff company in respect of the suit premises.
14. I have carefully gone through the materials on record and considered the rival contentions raised by Mr. Choudhuri on behalf of the appellant and Mr. Acharyya on behalf of the respondent. The admitted fact emerging from the materials on record is that the plaintiff company is not the owner but the tenant in respect of the suit premises. It has been specifically admitted b the defendant/respondent (DW 1) in his evidence that the house where he lives does not belong to the plaintiff, but the plaintiff is a tenant of that flat and pays rent at the rate of Rs. 375/- per month. In cross-examination he has specifically stated that in course of his employment with the plaintiff company he came to know that the plaintiff is a tenant of the suit flat, garage and the servant's quarters. It further transpires from his evidence that an employee of the plaintiff company was in occupation of the servant's quarters and another employee of the plaintiff company stays in the garage. His cross-examination further reveals that Rs. 375/- per month was deducted from his salary for the occupation of the flat. He has categorically stted in cross-examination that the occupational charge was deduced from his salary.
15. From the above materials on record it is evident that the plaintiff company itself is a tenant in the suit premises and that being so, it has been rightly argued by Mr. Choudhuri, on behalf of the plaintiff company, that a tenant has got no power to transfer such right or interest to any other person. Sub-tenancy, even if there be any, can only be created by the tenant with prior consent of the landlord. It is nobody's case that such subtenancy was at all created by the appellant in favour of the respondent with prior permission or consent of the landlord or the lessor, as the case may be. A grant of exclusive possession can only be a licence and not a lease where the grantor has no power to grant a lease. An intention to enter into the legal relation of landlord and tenant cannot be imputed by law where circumstances and conduct negative such intention. It appears that both the learned first Appellate Court and learned Trial Court laid emphasis on the word 'rent' as used in Exts. C and D. It has been specifically laid down by the Supreme Court in CM. Beena and Anr. v. P.N. Ramachandra Rao, (2004)3 Supreme Court Cases 595 at page 599 (para 9) that user of the terms like 'lease' or licence', lessor' or licensor', 'rent' or licence fee' is not by itself decisive of the nature of the right created by the document and an effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. It has been further held that the conduct of the parties before and after the creation of relationship is of relevance for finding out their intention. In its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. It has been so held by the Supreme Court in State of Punjab v. Brtish India Corporation Ltd,, reported in AIR 1963 Supreme Court 1459 at page 1463 para 15. If the parties intend to bring into existence merely a licence and not a lease, the word 'rent' used in such case is in fact loosely used for 'fee'. It is settled law that the intention of the parties is the decisive consideration to judge whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee and in absence of any formal document of the intention of the parties must be inferred from the circumstances and conduct of the parties. Reference can be made in this context to Mrs. M.N. Clubwala and Anr. v. Fida Hussain Saheb and Ors., .
16. The ratio of the decision in the case of Mrs. M.N. Clubwala (supra) was followed in Konchada Ramamurty Subudhi (dead) by his Legal Representatives v. Gopinath Naik and Ors., .
"The question is whether the occupier under this agreement is a tenant or a licensee. The distinction between a lease and a license is well known. Section 105 of the Transfer of Property Act defines a lease. Section 52 of the Indian Easements Act defines a license. A lease is the transfer of a right to enjoy the premises; whereas a license is a privilege to do something on the premises which otherwise would be unlawful. If the agreement is in writing it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licensee. There transaction is a lease if it grants an interest in the land; it is a license if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant is not decisive. The test of exclusive possession is not conclusive, see Errington v. Errington and Works, (1952) 1 KB 290 (298) Associated Hotels of India Ltd. v. R.N. Kapoor, though it is a very important indication in favour of tenancy. See Addiscombe Garden Estates Ltd. v. Crabbe, 1958-1 QB 513 at p. 525. A servant in occupation of premises belonging to his master may be a tenant or a licensee, see Halsbury's Laws of England, Third Edition, Vol.23, Article 990, p. 411. A service occupation is a particular kind of license whereby a servant is required to live in the premises for the better performance of his duties. Formerly, the occupation of the servant was regarded as a tenancy unless it was a service occupation, see Nippon Menkwa Kalmshiki v. F. Portlock AIR 1922 Bom 70. Now it is settled law that a servant may be a licensee though he may not be in service occupation...."
18. Applying the ratio of the decisions of the Supreme Court as mentioned hereinbefore to the facts and circumstances of the present case I am clearly of the view that the appellant allowed the respondent to use and occupy the suit premises as licensee and not as tenant and there was no transfer or assignment of the appellant's right or interest in the suit premises which was a rented accommodation of the appellant company. The circumstances emerging from the above materials on record drive me to hold unhesitatingly that in the instant case intention of the parties was to bring into existence merely a licence and not a lease and the word 'rent' was loosely used in Exts. C and D for 'fee'. In my view, both the learned first Appellate Court and the learned Trial Court have judged the matter from wrong angle and have come to erroneous findings which are contrary to the evidence on record and circumstances emerging there from. The vital aspect of the matter as pointed out above have escaped the notice of the learned first Appellate Court and the learned Trial Court. The curious feature noticeable from the materials on record is that by the letter dated 22nd May, 1981 marked Ext. 6 the appellant company terminated the services of the respondent who was allowed to make use of the company's quarters for residential purpose till 30th June, 1981. In spite of repeated requests possession of the company's quarters was not handed over by the respondent to the appellant whereupon the licence was revoked by the appellant by serving the notice dated 28th July, 1983 copy of which is marked Ext. 2.
19. From all that has been stated above the inescapable conclusion is that the defendant/respondent was a licensee and not a tenant as claimed in respect of the suit premises and since the licence was duly determined by the notice, he is liable to be evicted from the suit premises. In the present case the findings of fact arrived at by the learned trial Court and affirmed by the learned first Appellate Court are contrary to the evidence on record and therefore perverse. That being so, there is justifiable ground for setting aside the said findings resulting in the appeal being allowed and the suit being decreed.
20. The appeal is accordingly allowed. The judgment and decree passed by the learned Additional District Judge, 12th Court, Alipore on 11th May, 1991 in Title Appeal No. 47 of 1989 affirming the judgment and decree dated 20th December, 1988 passed by the learned Munsif, 3rd Additional Court, Alipore Title Suit No. 238 of 1986 are set aside. The suit be decreed. The plaintiff/appellant will get decree for eviction of the defendant/respondent from the suit premises and recovery of possession thereof. The plaintiff company will get decree for mesne profits @ Rs. 20/- per diem from the institution of the suit till the delivery of possession against the defendant which will be assessed by the learned trial Court in a separate proceeding under Order 20 Rule 12 of the Code of Civil Procedure on payment of the required Court fees. Decree be drawn up expeditiously.
Let copy of this judgment along with LCR be sent down to the learned Courts below for necessary action.

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