9911796707
TMI Blog1986 (9) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a written agreement of leave and licence entered into between the tenant, Shri S.P. Rao and the appellant herein in respect of the premises being the entire flat. According to the respondent land-lady this is an ante document created for the purpose of the present obstructionist proceedings out of which the present appeal arises. In 1970, the tenancy of Shri S.P. Rao was terminated by notice of the respondent, landlady as her husband was being posted in Bombay prior to his retirement in 1971. The respondent landlady instituted a suit for possession of the said premises on the ground of personal requirement, subletting and nonpayment of rent. In the suit, the brother of the present appellant was made a party-defendant as a sublessee. It is stated before us and in the proceedings that according to procedure prevalent in Bombay Small Causes Court which incidentally has exclusive jurisdiction under the Bombay Rent Act over these matters, a landlord s suit for possession is expedited if the suit is confined to the ground of his personal requirement. Accordingly, it is stated, that the landlady, the respondent herein, gave up the other grounds of eviction except that of persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20th December, 1985 set aside the judgment and order of the Appellate Bench of the Small Causes Court and restored the order of the Executing Court. The High Court set aside the factual findings that there was a valid licence at the time of the coming into operation of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Act ). The Full Bench of the High Court had in the meantime considered the question whether a statutory tenant governed by the Act could have created a valid licence before 1973. The Full Bench of the High Court in Writ Petition No. 76 of 1980- Ratanlal Chandiprasad v. Raniram Darkhan etc. 18th October, 1985, had held that unless the contractual tenant had been given a specific right to create a licence, the licence created without a specific clause in their agreement of sub-lease would not be a licence entitling protection under section 15A of the Act. Relying on the said Full Bench decision, the learned single judge of the High Court in the Judgment under appeal held that since in this case as in the terms of agreement of sublease, there was no right to create licence in the tenant, the tenant could not have cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leven) months with effect from 1st November, 1966. It was stated that the monthly leave and licence fee of the premises would be paid at the rate of ₹ 100. In addition to this the licensee would have to pay the electricity charges to the Bombay Electric Supply Corporation; that he would not assign the premises and the other consequential clauses were there. Incidentally in challenging the existence of this agreement, Mr. Tarkunde emphasised before us the fact that while the tenant had the obligation to pay the monthly rent of ₹ 122, he had parted with the entire premises on leave and licence on receipt of ₹ 100 per month. This, Mr. Tarkunde submitted, was an incongruity which falsified the truth of the assertion now sought to be made in support of the appellant. The Trial Court examined all these and the oral evidence of the appellant. The Trial Court noted that she had stated that she originally resided in the said premises without the written agreement but she entered into the written agreement Ex. A on 10th November, 1966 and thereafter she was in exclusive possession of the same. She was cross-examined about the purchase of the stamp paper and she stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isiting terms with the tenant and was visiting Bombay from time to time and was staying in the premises, and the Court noted the execution of Ex. A . The crossexamination was noted. It was further observed by the appellate bench that she was badly in need of shelter anywhere and so she had taken the said premises from tenant, as the members of the family of her aunt were more and the premises was congested, she thought it advisable to shift to the suit premises where she could reside with some comfort. The Court concluded that this can reasonably be said that there was a licence and not a lease. The Court noted that it was never the intention of the tenant to give the premises permanently to the appellant. Electricity bills from 1969 to 1982 were produced in favour of the appellant as Ex. C1 and C2. Certain postal correspondence which she had received in the said premises were also produced. The Appellate Bench noted that an attempt had been made to show that Ex. A was prepared subsequently but according to the appellate bench that attempt had not succeeded. The appellate bench after discussing all the facts including installation of telephone, bills, correspondence, etc. came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds or in a hotal. About Ex. A the Court did not accept the version that it was extended from time to time and that the appellant was continuing in possession by virtue of the agreement as it was for a short duration. On the other hand, the learned judge came to the conclusion that the judgment under appeal was for a short duration and in terms there was no extension after the expiry of the period mentioned therein. The learned judge came to the finding that since at least 1968 or thereabouts the judgment-debtor-tenant as also the appellant obstructionist had been making use of the premises for diverse purpose and it could not be said that the appellant was in exclusive possession in her own right. Furthermore, the Court was of the view that it was the judgment-debtor who was in possession and who allowed the appellant to continue for all these years. But the story that this or that part of the premises was in exclusive possession of the appellant was, according to the learned single judge of the High Court, patently false. The learned judge further came to the conclusion that Ex. A was a concoction manufactured for these proceedings and the interested testimony of the witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory B noted as follows: (B) a tenant who under the tenancy agreement is not so specifically entitled to sublease or whose tenancy agreement is silent about it (for short, category B tenant ). and therefore in view of that decision the learned single judge denied relief to the appellant under section 15A of the said Act. In the premises the order of the appellate Court of Small Causes was set aside and warrant of possession was issued with a direction to remove the appellant from the premises in question. This appeal challenges the said judgment and order. As mentioned hereinbefore two questions require considerationhow far and to what extent in exercise of its jurisdiction under article 226 or 227 of the Constitution and in this respect regarding power to deal with factual findings, the jurisdiction of the High Court is akin both under articles 226 and 227 of the Constitution, can the High Court interfere with the findings of fact? It is well-settled that the High Court can set aside or ignore the findings of fact of an appropriate court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the learned Chief Justice then was, observed at page 1301 on the report as follows: The Special Civil Application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Art. 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Warryam Singh Vs. Amarnath 1954 SCR 565-(AIR 1954 SC215) that the: ...power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (S.B.) to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. The Commr. of Hills Division 1958 SCR 1240-(AIR 1958 SC 398) and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: It is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of injustice (See Trimbak Gangadhar Telang and Another (supra)). Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial judge came to one conclusion and the appellate bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under article 227 of the Constitution. On the first point, therefore, the High Court was in error. But the findings of the High Court on the factual aspect would not help the appellant to become a licensee under section 15A of the said Act. It is to that question, therefore, attention must be given. On the construction of section 15A of the said Act, the learned judge followed the decision of the Full Bench of that High Court in Writ Petition No. 76 of 1980 in Ratanlal Chandipr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enancy agreement was specifically entitled to sublease his interest (for short, category A tenant ) B a tenant who under the tenancy agreement was not so specifically entitled to sublease or whose tenancy agreement was silent about it (for short, category B tenant ). and the Court went on to observe that category A tenant, even after the termination of his tenancy, would continue to have a right to sublease. That right under the original contractual lease had not been taken away by the said Act. In fact that right had been kept intact. However, the tenant of category B would not either before or after the termination of the agreement be able to sublet his interest in view of the specific bar under section 15 of the said Act. In other words, the effect of the decision of the Full Bench of the said High Court was that in cases where there was no specific agreement granting the tenant a right to transfer the terms of his contract, termination of his tenancy did not entitle him to be able to give a valid licence. Such licence would be invalid and as such could not be considered to be subsisting at the time of the coming into operation of the provisions of section 15A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven an equal participant in an illegality was allowed relief by way of restitution or recission, though not on the contract and, thirdly, it was further held that the plea of waiver which the appellant relied on could not be sustained because as a result of giving effect to that plea that court would be enforcing in illegal agreement and thus contravene the statutory provisions of section 15 of the Act, as the agreement to waive an illegality was void on grounds of public policy and would be unenforceable. This led to a rather peculiar result where the landlord had permitted himself subletting and yet could sue. This resulted in amendment of section 15 sub-section (1) of the Act by adding but subject to any contract to the contrary by section 7 of the Bombay Amending Act 49 of 1959. Section 5 of the Act provides the definitions. Subsection (4A) of section 5 of the Act defines licensee as follows:- (4A) licensee , in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Control (Amendment) Ordinance, 1959, (bb) such licenses as are deemed to be tenants for the purposes of this Act by section 15A; Clause (c) of the said sub-section is not relevant for the present purpose. Clause (bb) of section 5(11) above introduced by Mah. 17 of 1973. By amendment of sub-section (3) of section 6 of the said Act after amendment of 1973, the provisions of Part II of the said Act which deals with residential and other premises was made applicable to the premises given on licence for that purpose for such area to premises let for that purpose in such area, immediately before such commencement. Section 13(1) (e) entitles the landlord to ask for the eviction of the tenant if the tenant has, since the coming into operation of the Act, unlawfully sublet or after the date of commencement of the Amendment Act, 1973, unlawfully given on licence the whole or part of the premises or assigned or transferred in any other manner his interest therein. It is important to bear in mind, therefore, that the creation of sub-tenancy or grant of licence by the tenant has been prohibited and made a ground for ejectment of the tenant. Section 14 of the Act stipulates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending r Act of 1973 provides as follows: 15A(1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises. Or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation. (2) The provisions of sub-section (1) shall not affect in any manner the operation of subsection (1) of section 15 after the date aforesaid. The question that falls for consideration in this appeal is as to who is the licensee mentioned in section 15A of the Act. What kind of licensee is contemplated by subsection (1); can a licensee of a statutory tenant whose contractual tenancy has come to an end be contemplated under the provisions of this Act? The full bench of the Bombay High Court has held that a statutory tenant whose contractual tenancy did not specifically authorise him to sublet or grant lease cannot create a licence which can be sought to be recognised by sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenant, farmer or lessee. So therefore the prohibition is there on a tenant having an untransferable right of occupancy to transfer his interest. We are here, not concerned with the transfer of the interest but rather with the granting of licence which is personal in nature. It is indisputable that the grant of licence does not entail transfer of interest. See B.M. Lall v. Dunlop Rubber (infra). The Indian Easements Act 1882 deals with licenses. Section 52 of Chapter VI of the said Act defines license as when one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, such right is called a license. Section 53 states that a license may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license. On the aspect whether in law a valid licence could have been created by the tenant in favour of the appellant and as such the appellant was protected under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by the notice of the landlord. It was emphasised with reference to the decisions in the case of Dhanapal Chettiar s case [1980] 1 SCR 334 at 340. and Gian Devi s case. [1985] 2 SCC 683 at 686-687 and 707. It was indicated that the termination of tenancy made under the said terms agreed to govern the relationship between the landlord and the tenant even after the tenancy was determined and a tenant became a statutory tenant. It was not denied, it is true, that a licence was a personal privilege and that it did not create any interest in property. However, according to section 53 of the Indian Easements Act, 1882, according to counsel, the rights of any person to create any licence was co-terminus with his right to transfer his interest in the property in question. In other words, what counsel sought to emphasise was that though a licence was not a transfer of interest, the right to grant a licence was co-terminus with the right to transfer his interest in the property. It was, therefore, submitted that since a tenant, whether contractual or statutory, could not create any subtenancy or transfer interest in the premises after 21st May, 1959 (unless he was positively authorised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, the result would be that if an invalid licence was created by a person having no interest whatever in the property affected by the licence, the so-called licensee would become a tenant of the property despite any law or contract to the contracy. According to Shri Tarkunde, it was improper to contend that other construction would make the provisions of section 15A otiose because it was submitted that in accordance with the Bombay full bench, the amending Act would be fully operative and it confers tenancy rights on- (a) those licensees who were granted licences by the landlord-owners before 1.2.1973, provided that on that date their licences were subsisting and they were in occupation of the premises; (b) similar licensees of tenants, whether the tenants were contractual or statutory, provided the tenants had the right under the terms of their tenancy to create sub-lease or otherwise transfer their interest in the premises; and (c) similar licensees of tenants who did not have the authority to sublet or otherwise transfer their interest in the premises provided the licensees were granted before 21st May, 1959. It was submitted that a number of licensees would become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o had no interest in the property. It was held that a statutory tenant could not sublet the premises because subletting involved a transfer of the right to enjoy property for a certain period in consideration of price paid or promised and a statutory tenant had merely a personal right to resist eviction. Section 15(2) of the said Act as it stood at the relevant time was in the nature of an exception to section 15(1). It applied to contractual tenancies. It protected sub-tenants of contractual tenants and removed the bar against subletting imposed by section 15(1) as well as by contract, provided the transferee was in possession of the premises at the commencement of the Ordinance. It was further observed that a statutory tenant was a person who remained in occupation of the premises let to him after the determination of or the expiration of the period of the tenancy. He had no estate or interest in the premises occupied by him. He merely enjoyed the protection of the law in that he could not be turned out so long as he paid the standard rent and permitted increases, if any, and performed the other conditions of the tenancy. His right to remain in possession after the determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an end as soon as the statutory tenant died. In Damadilal and Others v. Parashram and Others, [1976] Supp. SCR 645 the decision in the case of Anand Nivas (supra) was distinguished and considering the provisions of the Madhya Pradesh Rent Act, it was held that interest of a statutory tenant was heritable. In Ganpat Ladha v. Sashikant Vishnu Shinde, [1978] 3 SCR 198 the question before this Court was whether the interest of the statutory tenant in the premises was heritable or not, and further, whether such protection could be available in respect of commercial premises also. Considering the provisions of section 5(11) (c) of the Bombay Act, this Court held that this section was meant to protect the rights of the legal representatives so far as residential premises were concerned and that such legal representatives could not get any tenancy right in respect of shop or commercial premises. Subsequent to this, the State of Maharashtra by way of amendment in 1978 added subclause to the original section 5(11) (c) and granted the same protection to the legal representatives with regard to the commercial or shop premises. The question was again considered in V. Dhanapal Chettiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub.s. (2) of s. 14 begins to operate and in consequence of its operation, the erstwhile licensee becomes a tenant of the landlord on the terms and conditions of the agreement. What have we here? Saraswatibai ceased to be tenant of any description long before February 1, 1973. The contractual tenancy came to an end when the notice to quit dated July 28, 1962 took effect and the statutory tenancy terminated when the decree for ejectment was passed thereafter. Before February 1, 1973 she had ceased to be a tenant. With that, the agreement for licence stood auto- matically terminated. In consequence, the petitioner cannot legitimately claim to be a licensee on February 1, 1973. It is apparent from the aforesaid observations that in the facts and circumstances in that case, it was held that licensee was not entitled to protection under section 15A of the said Act but this Court had made it clear that but for the fact that the licence had been created after the interest of the tenant came to an end, the licensee would have been entitled to protection under section 15A of the Act. In Gian Devi Anand v. Jeevan Kumar and Others (supra), it was held that if the Rent Act in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary meaning of that expression. If the construction is restricted in the manner submitted on behalf of the respondent, then the apparent scheme or the purpose for introduction of the amendment would be defeated at least to a large section of licensees, who were contemplated to be protected, as the objects as noted before sought to do. The Indian Easements Act, 1882 defines Licence . Section 53 of the said Act stipulates that a licence may be granted by any one in the circumstances and to the extent to which he may transfer his interests in the property affected by the licence . Licence is a privilege to do something on the premises which otherwise would be unlawful. Licence is a personal privilege. See B.M. Lall v. Dunlop Rubber Co. Ltd. Ors., [1968] 1 SCR 23. Shri Tarkunde tried to urge that right to create licence was coterminus with a right to transfer interest though licence itself was not a transfer. We are unable to accept this argument. The aims and objects of the amending Act was placed before us in support of the contention that it was to protect the interest of the licensees of the landlord that the provisions of section 15A were introduced. But the aims and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might be varied or modified, so as to avoid such inconvenience, but no further. See Halsbury s Laws of England, 4th Ed. Volume 44 para 856. In finding out the meaning of the expressions used, the courts must find out what is legal, not what is right. It may not be inappropriate to refer to the observations of Burger, C.J. in TVA v. Hill, U.S. Supreme Court Reports, 57 Lawyers Ed. 119 at 146 as follows: Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here: The law, Roper, the law. I know what s legal, not what s right. And I will stick to what s legal.. I m not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can t navigate, I m no voyager. But in the thickets of the law, oh there I m a forester.. What would you do? Cut a great road th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum Anr., AIR 1964 SC 207 at 215-[1964] 4 SCR 280. It is well settled that the expression notwithstanding is in contradistinction to the phrase subject to , the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. This will be clarified in the instant case by comparison of sub-section (1) of section 15 with sub-section (1) of section 15A. We are therefore unable to accept, with respect, the view expressed by the Full Bench of the Bombay High Court as relied on by the learned single judge in the judgment under appeal. In the premises first the High Court exceeded its jurisdiction in interfering with the finding of facts made by the appellate bench of the Court of Small Causes for the reasons mentioned hereinbefore. Secondly, the High Court was in error on the construction of the provisions of section 15A of the said Act. In the aforesaid view of the matter, we are unable to sus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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