Holding

The Supreme Court held that the High Court had no jurisdiction to disturb the factual findings of the Small Causes Court and that, under the plain meaning of section 15A, any person in possession as a licensee on 1 February 1973 is deemed a tenant, irrespective of the tenant’s contractual right to grant licences.

Summary

The dispute arose when the landlady, Ashalata S. Guram, sought possession of a flat occupied by her former tenant S.P. Rao, who had allowed Sita Ratna Rao to stay as a licensee under a purported leave‑and‑licence agreement. After a series of decrees and appeals, the Small Causes Court held that Rao was in possession on 1 February 1973 and thus fell within section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which deems such licensees tenants. The Bombay High Court, exercising jurisdiction under Article 227, set aside that finding, holding that no valid licence existed. The Supreme Court held that the High Court exceeded its jurisdiction by interfering with factual findings of the lower court and erred in construing section 15A; the plain language of the statute makes any person in possession as a licensee on the specified date a deemed tenant, regardless of the tenant’s contractual authority to grant licences. Consequently, the appeal was allowed and the High Court order set aside.

Issues considered

Whether a High Court exercising jurisdiction under Article 227 can interfere with factual findings of a lower court in a rent‑control proceeding.
Whether a statutory tenant governed by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 could create a valid licence before 1 February 1973.
Interpretation of the non‑obstante clause in section 15A of the Act.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13(1)(e), s. 14(2), s. 15, s. 15A, s. 5(11)
Indian Easements Act, 1882s. 52, s. 53
Maharashtra Amendment Act 17 of 1973
Transfer of Property Act, 1882s. 108(j)

Subjects

Article 227Statutory tenantLicenceNon‑obstante clauseBombay Rents ActInterpretation of statutesJurisdiction of High CourtTenancy law

Judgment

A

CHANDAVARKAR SITA RATNA RAO
v.
ASHALATA S. GURAM
B
SEPTEMBER 25, 1986

[SABYASACHI MUKHARJI AND K.N. SINGH, JJ.)
l
Bombay Rents, Hotel and Lodging Rates Control Act, 1947; ss.
14(2) & 15A-Whether and how far statutory tenant governed by the
C Act could have created a valid licence before 1st February, 1973.
Constitution of India, Article 227-Finding of facts-Scope and
ambit of jurisdiction of High Court to interfere.
Statutory interpretation.
D
Non-obstante clause 'notwithstanding anything contained . . .'-
Expression contained in statute-Meaning of-Court to find out what is
legal not what is right.

Mischief rule-Applicability of-Literal construction and reading
of the statute as a whole to be in consonance with mischief intended to be
E
remedied--{Jrammatical construction ordinarily to be resorted to.

Transfer of Property Act, 1882, s. 108(j)-Lease-Transfer of
interest-Nature of.
Indian Easement Act, 1882, ss. 52 & 53: 'Licence'-Nature of.
F
Words and Phrases
1
'Notwithstanding'-'subject to'-Meaning of.

Section ISA(l) of the Bombay Rents,..Hotel and Lodging House
:J Rates Control Act, 1947 inserted by s. 14 of the Amending Act of 1973
provides that notwithstanding anything contained elsewhere in that Act
or anything contrary in any other law for time being in fore~, or in any
contract, where any person was on the lst 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
H the pnrposes of that Act, the tenant of the landlord in respect of the

866
SITA RATNA RAOv. ASHALATAS. GURAM 867

premises or part thereof, in his occupation. Sub-section (2) of s. ·14 A
stipulates that where the interest .of a licensor, who is a tenant of any
premises, is determined for any reason, the licensee, who by s. ·ISA is
deemed to be a tenant, shall, subject to the·provisions of the Act be
deemed to become the tenant of the landlord, on the terms and condi-
tions of the agreement consistent with the provisions of the Act. Section
B
13(1) (e) entitles the landlord to ask for the eviction of the tenant if the
-( tenant has, after the date of commencement of the Amendment Act,
1973 unlawfully given on licence the whole or part of the premises let to
him.

The respondent-landlady had an oral lease of her flat situated in
Bombay, since 1952. She terminated that tenancy by notice in 1970 and c
instituted a suit for possession on the ground of personal requirement.
The Court of Small Causes passed an ex-parte decree for eviction
against the tenant in 1972. Th.e appellant obstructed execution of the
decree on the plea that she was a caretaker of the premises. Subse-
quently the ex-parte decree was set aside and the suit restored. The
tenant gave evidence that he was in occupation of a part of the premises. D
The trial court passed a decree against the tenant in 1976. The appeal
filed by him was dimissed by 'the Appellate Bench of the Small Causes
Court.

A writ petition filed against the appellate decision was dismissed
by the High Court in March 1980. The appellant having obstructed the E
execution of the decree confirmed by the High Court, the landlady filed
an application for 'renioval of the obstruction in the executing court. In
the reply filed by the appellant in July 1980 it was stated that she was in
occupation of the whole premises as a licensee, but did not specify any
) date of the agreement nor did she produce any copy thereof. She pro-
·, duced the agreement of leave and licence when her deposition com- F
menced before the trial Judge in July 1981 and claimed exclusive pos-
session. The trial Judge on 25th February, 1983 allowed the res-
pondent-landlady's application and ordered removal of the appellant's
obstruction. The trial court observed that there was no genuine agree-
ment between obstructionist'appellant and the. tenant. However, it
found that there .was some consideration and that there was very cordial G
relationship between the appellant and the tenant. It concluded that the
appellant was in exclusive possession of the said premises of not less
·-<· than a room on 1st February, 1973, and prima facie the appellant came
within the provisions of s. ISA of the Act. Being of the view that in law
after the termination of the tenancy of the tenaut there was no capacity
left in the tenant. to grant the leave and licence, it held that there was no H
868 .SUPREME COURT REPORTS [1986] 3 S.C.R.

A subsisting licence in law in favour of the appellant and as such she was l,
not entitled to protection as a licensee.

The Appellate Bench of the Small Causes Court on an appraisal of
the evidence concluded that it could be reasonably said that there was a
B licence and not a lease, that the entire evidence went to show that the
appellant must have been in possession of the premises in question since
I964-6S continuously as a licensee. It did not accept the contention that )-
the tenant was in exclusive possession. It held that the appellant was in
possession on 1st February, I973, and therefore entitled to protection

~
under s. ISA of the Act.
c
A proceeding under Art. 227 of the Constitution was thereafter
moved by the respondent-landlady before the High Court. The High
Court took the view that the obstruction was raised by the appellant at y
the instance of the judgment-debtor tenant, that the executing court
was right in rejecting the stand taken by the obstructionist, that the case
D that the licensee was in possession on the relevant date had not been
made out, that since I968 or thereabout the judgment-debtor-tenant as
also the appellant-obstructionist had been making use of the premises
for diverse purposes and it could not be said that the appellant w:is in
exclusive possession in her own right, that mere occupation was
different from possession and was not enough to spell out a licence, and
-.\'
E that to get the benefit of s. ISA of the Act it had to be established that
there was a valid licence subsisting on the material date, i.e., the date on
which s. ISA was incorporated. It noted that the judgment-debtor was a
statutory tenant inasmuch as the decree for ejectment had been passed
against him and that there was no case that the judgment debtor under /

the original terms of the lease between him and the respondent was ·~.
F entitled to create a sub-tenancy or a licence in respect of the premises or
any part thereof. Therefore, it could not be said that the appellant was a
.licensee and had acquired protection under s. ISA of the Act. It was the
judgment-debtor who was in possession and who allowed the appellant
"
to continue for all these years. Relying on a Full Bench decision of the
High Court in Ratanlal Chandiprasad v. Maniram Darkhan (W.P. No.
G 76 of I980 decided on 18th October, 1985) it held that since in the
instant case in the terms of agreement.of sub-lease, there was no right to
create licence in the tenant, the tenant could not have created a valid
ticence in favour of the appellant. '!

H In this appeal by special leave it was contended for the appellant
SITA RA TNA RAO v. ASH ALATA S. GURAM 869

,J that the High Court was in error in interfering with the findings re- A
corded hy the appellants bench of the Court of Small Causes in an
application under Art. 227 of the Constitution.

For the respondent it was contended that under s. 15(1) read with
s. 15(2) of the Act a tenant was not entitled to create any sub-tenancy or
to transfer his interest in the premises after 21st May, 1959 unless the B
con.ract of tenancy positively allowed to do so, that a statutory tenant
continned to be possessed of the same rights and was subject to the same
disabilities as a contractual tenant, that under s. 53 of the Indian Ease-
ment Act, 1882 .the right of any person to create any licence was co-
terminus with his right to transfer his interest in the property effected by
the licence, that it was wrong to assume that a statutory tenant was no c
longer bound by the terms of his contract of tenancy after his contract
was terminated by notice of the landlord, and that the non-ohstante
clause in s. 15-A of the Act which protected the operative part of the
section did not validate a licence which was invalid.

Allowing the appeal, the Court, D

HELD:l.1 The High Court exceeded its jurisdiction in interfer-
ing with the finding of facts made by the Appellate Court. l903E]

1.2 In exercise of jurisdiction under Article 227 of the Constitu-
tion, the High Court can go into the question of facts or look into the E
evidence if justice so requires it. But it should decline to exercise that
jurisdiction in the absence of clear cut down reasons where the question·
depends upon the appreciation of evidence. It also should not interfere
with a finding within the jurisdiction of the inferior tribunal or court
except where the finding is perverse in law in the sense that no reason-
able person properly instructed ih law could have come to such a find- F
ing or there is any mis-dir.ection in law or a view of fact has been taken
in the teeth of preponderance of evidence or the finding is not based on
any material evidence or it has resulted in manifest injustice. Except to
that limited extent the High Court has no jurisdiction. l883G-H; 884AI

1. 3 The Courts must not use the power under Article 227 as a G
cloak of an appeal in disguise. The writ of Certiorari does not lie in
order to bring up an order or decision for rehearing of the issues raised
in the proceedings. l883D-E]

In the instant case, both. the trial court and the appellate court '
H
870 SUPREME COURT REPORTS 11986] 3 S.C.R.

A after discussing the evidence had come to the conclusion that the appel-
lant was in possession on or before 1st February, 1973. The trial court
had expressed doubt about Ex. A but ultimately accepted the position.
The appellate court had observed that it could not he said that it was a
concocted story and concluded that there was a licence. Though there
B were discr~pancies in the evidence of the obstructionists and there was
inconsistency in the conduct of the judgment-debtor in resisting the
suit, yet all these were for the Court's finding facts. The very fact that
the trial court came to one conclusion and the appellate court came to
another conclusion in respect of certain aspects was an indication of the
position that two views were possible. In preferring one view to another
of factnal appreciation' of evidence, the High Court transgressed its
c limits of jurisdiction under Article 227 of the Constitution. 18848-C]

D.N. Banerji v. P.R. Mukharjee & Ors., 11953] SCR 302 at 305;
Babhutmal Raichand Oswal v. Laxmibai R. Tarte and another, AIR
1975 SC 1297; R. v. Nothrumberland Compensation Appeal Tribunal,
D Ex. Parle Shaw, [1952] (1) AU England Law Reports 122 at 128;
Harbans Lal v. Jagmohan Saran, [1985] 4 SCC 333; Trimbak
Gangadhar Telang and Another v. Ram Chandra Ganesh Bhide and
Others, [1977] 2 SCC 437; and Smt. M.M. Amonkar and Others v. Dr.
S.A. Johari, I 1984] 2 SCC 354 referred to.

2.1 The High Court was in error on the construction of the provi-
E
sions of s. ISA of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947. [903E-F]

2.2 All licensees created by landlords or by the tenants before 1st
January, 1973 and who were in actual occupation of premises, which
was not less than a room, would he the licensees of the landlord or
F
tenant and whether there be any term in the original agreement of
tenancy permitting creation of such tenapcy or licences or not, they would
become tenants under the Act. l903F-G]

2.3 Licence is a personal privilege to do something on a premises
which otherwise would be unlawful. It is not an interest in property but
G purely a personal right. Grant of licence does not en tail transfer of
interest, nor create any interest in property. A tenant protected by
statute is entitled to create a licence. He is in the same position as a )
contractual tenant until the decree for eviction is passed against him.
The rights of a contractual tenant include the right to create licence,
even if he is the transferor of interest. Therefore, until a decree of
H
..

SITARATNARAOv.ASHALATAS.GURAM. 871

>- eviction was passed against the tenant he could have created a licence
before !st February, 1973. [899F-G]
A

Waman Shrinivas Kini v. Ratilal Bhagwandas & Co., [1959] 2
Suppl. SCR 217; V. Dhanapal Chettiar v. Yesodai Ammal, [1980] I
SCR 334 at 340; Gian Devi Anand v. Jeevan Kumar and Others, [1985] B
2 SCC 683 at 686-687 and 707; Anand Nivas (Private) Ltd. v. Anandji
Kalyanji Podhi & Ors., [1964] 4 SCR 892; Jagdish Chander Chatterjee &
Ors. v. Sri Kishan & Anr., [1973] I SCR 850; Damadilal and Others
v. Parashram and Others, [1976] Supp. SCR 645; Ganpat Ladha v.
~- Sashikant Vishnu Shinde, [1978] 3 SCR 198; Ludhichem Agencies
. , , Etc. v. Ahmed R.V. Peer Mohamed and Anr., [1982] I SCR 712;
B.M. Lall v. Dunlop Rubber & Co. Ltd. & Ors., [1968] I SCR 23; c
Vasant v. Dikkava. AIR 1980 Bombay 341; and C.K. Thakur v. N.L.
Shelly (First Appeal No. 754 of 1978) Bombay High Court, referred
to.

2.4 It cannot be said that s. !SA was enacted to protect the in-
D
terest of licensees of the landlords and not the licensees of the tenants.
The aims and objects, and the scheme of the Amending Act do not
warrant a restricted meaning to the expression 'licence'. The amended
section says that whoever is in possession as a licensee shall be deemed
f- to have become for the purposes of the Act the tenant of the landlord.
Further, s. ISA read with s. 14(2) of the Act make it apparent that
where the interest of a licensor, who i's a tenant of any premises," is E
determined for any reason, the licensee, who bys. ISA is deemed to be a
tenant, shall, subject to the provisions of the said Act be deemed to be a
tenant of the landlord, on the terms and conditions of the agreement
).- consistent with the provisions of the Act. [900F-H]

· 2.S. l It is not possible to accept the view that the non-obstante F
clause in s. !SA, which was connected with the operative part of the
.section, that is, the licensee shall on the date specified be deemed to
have become a tenant, does not detract from the power of the tenant not
to create licence. Such a construction would curtail the language of the
section and render the amendment meaningless. Unless one is con-
strained by compulsion to give a restricted meaning, one should not do G
it. There is no such compulsion in this case. [902F-G]

Aswini Kumar Ghosh & Another v. Arabinda Bose & Another,
[ 19S3] SCR I; and Dominion of India & Another v. Shribai A. Irani &
Another, [19SS] I SCR 206 at 231 referred to.
H
872 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 2.5.2 If the view that a statutory tenant, whose contractual te- '
-'-.,
nancy did not specifically authorise him to sublet or grant lease, could
not create a valid licence before coming into operation of the amend-
ment on 1st February, 1973 were to prevail then it will defeat the
purpose of the non-obstaute clause ins. ISA of the Act. [90 JAJ
B-
2.5.3 The expression 'uotwithstaudiug' is iu 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. A clause beginning with the expression 'notwithstanding
anything contained in this Act or in some particular provision in the Act
or in some particular Act or in any law for the time being in force, or in
c contract' is more often than not appended to a section in the beginning
with a view to give the enacting part of the section in case of conflict an
overriding effect over the provision of the Act or the contract mentioned
in the non-obstante clause. It is equivalent to saying that in spite of the
provision of the Act or any other Act mentioned in the non-obstante
D clause or any contract or document mentioned the enactment following
it will have its full operation or that the provisions embraced in the
non-obstante clause would not be an impediment for an operation of the
enactment. [903A-D]

In the instant case, the non-obstante clause ins. ISA clearly pro-
E
vides that a licensee, who was not a tenant, shall nevertheless in the
circumstances mentioned in the section, be deemed to have become a
tenant of the landlord.

The South India Corporation (P) Ltd. v. The Secretary, Board of
Revenue, Trivand,rwn & Anr., AIR 1964 SC 207 at 215 [1964] 4 SCR
F 280.

2.6 In fmding out the meaning of the expressions used the courts
must find out what is legal, not what is right. The rule of construction of
a statute is to give effect to the intention of the legislature, to be col-
lected from the statute itself, and not to amend what is actually expres-
sed. The words of the statute where the language is plain must prima
G
facie. be given their ordinary meaning. Where the grammatical con-
struction is clear aud manifest and without doubt that construction
ought to prevail unless there are some strong and obvious reasons to the
contrary or it led to any manifest absurdity or repugnance in which case
the language may be varied or modified so as to avoid inconvenience,
H but no further. [901A-C; E-G]
SITARATNA RAO v. ASHALATA S. GIJRAM [MIJKHARJI, J.] 873

In the instant case, nothing has been shown to warrant that such A
literal construction should not be given effect to. Under s. ISA all
licensees who were there on 1st February, 1973 were to be protected
and subsequent licences were made illegal, as was done in the case of
sub-tenancy from 19S9. It was intended to protect very large number of
legitimate persons in occupation and also to eliminate future mischief.
Such a literal construction and reading of the statute 111' a whole is in B
consonance with the mischief to be avoided. [901D I

Since in the instant case, the licence was created before !st
February, 1973 the licensee must, therefore, by the express terms of s.
a
ISA of the Act, continue to be tenant of the landlord in respect of the
premises in question. [903F -GI c
Nokes v.·Doncaster Amalgamated"Col/ieries, Ltd., [1940] A.C.
1014 at 1022; Heydon's case, 76 E.R. 637; Maxwell 'On the Interpreta-
tion of Statutes', 12th Ed., p. 40; Becks v. Smith, [1836] 2 M. & W. 191
at 19S and TVA v. Hill, U.S. Supreme Court Reports, 57 Lawyers' Ed.
119 at 146; and Halsbury's Laws of England, 4th Ed., Vol. 44, para D
856, referred to.

Full Bench decision of Bombay High Court in R. C. Jalan v. R.
Darkhan, W.P. No. 76of1980 dated 18th October, 1985 overruled.

3. When one person grants to another, or to a definite number of E
. other persons, a right to do; or continue to do, in or upon the immov-
able property of the grantor, something which would, in the absence of
such right, be pnlawful, and such right does not amount to an easement
or an interest in the property, such right is called a licence.

, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 840 F
of 1986 ·

From the Judgment and Order dated 20.12.1985 of the Bombay
High Court in W.P. No. 1130of1984.

Dr. Y.S. Chitale, Uday Lalit and P.H. Parekh for the Appellant. G

V.M. Tarkunde and Mrs. M. Ka.ranjawala for the Respondent.

The Judgment of the Court was delivered by

SABYASA CHI MUKHARJI, J. The following ~wo questions arise H
874 SUPREME CO_URT REPORTS [1986] 3 S.C.R.

A in this appeal by special leave from the judgment and order of the
learned single judge, Bombay High Court dated 20th December, 1985:

(i) how far can the High Court in exercise of the power ·
under the writ jurisdiction under Article 227 of the Con-
stitution inierfere with the findings of facts by the appro-
B priate authorities; and

(ii) whether and how far a statutory tenant governed by
Bombay Rent Act, 1947 could have created a valid licence
before 1973?

c In order to appreciate the questions, it is necessary to refer to l
certain facts. One Shri S.P. Rao was an oral lessee in respect of Flat
No. 10-A in Konkan Cooperative Housing Society Ltd. Mahim,
Bombay (hereinafter called the said premises) of one Smt. Ashalata S.
Guram, the respondent herein since 1952. On. or about 10th
November, 1966, it is alleged that there was a written agreement of
D leave and licence entered into between the tenant, Shrj S .P. Rao and
the appellant herein i6 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.

E
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, sub-letting and non-
payment of rent. In the suit, the brother of the present appellant was
made a party-defendant as a sub-lessee. It is stated before us and in the
proceedings that according to procedure prevalent in Bombay Small l.
F 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 re-
quirement. Accordingly, it is stated, that the landlady, the respondent
herein, gave up the other grounds of eviction except that of personal
requirement and the name of the appellants's brother was deleted as a
G defendant in the suit. In 1972, an ex-parte decree for eviction was
passed by the Court of Small Causes against the tenant, Shri S.P. Rao.
During the course of the execution of the said decree, the appellant
obstructed. She asserted before the bailiff that she was a carejaker of
the premises and was herself staying elsewhere.
H It was highlighted before us that she did not at that time rely on
SITARATNA RAOv_ ASHALATA S. GURAM [MUKHARJJ,J_[ 875

the alleged agreement of leave and licence while offering obstruction A
to·the execution of the decree. Subsequently, the ex-parte decree was
set aside and the suit was restored. The Trial Court on 7th November,
1976 passed a decree of eviction against the tenant Shri S.P. Rao'. The
tena~t, Shri S.P. Rao gave evidence that he was in occupation of a part
of the premises and that he required the premises for his residence as
well as business. B

-~ On 23rd January, 1978, the appeal filed from the decree of evic-
tion filed by the tenant Shri S.P. Rao was dismissed by the Appellate
Bench of the Bombay Small Causes Court. On 20th March, 1980, a
Writ Petition filed by the tenant Shri S.P. Rao against the appellate
decision of the Division Bench of the Small Causes Court, Bombay c
was dismissed by the High Court. On or about 19th June, 1980, the
present appellant and four others having obstructed the execution· of
the decree confirmed by the High Court, the landlady filed ah applica-
tion for removal of the obstruction in the executing court against all
the five obstructionists. On or about 31st July, 1980 out of the five
obstructionists, only the pres'ent appellant who was obstructionist No. D
3 filed a reply saying that she was in occupation of the whole premises
as a licensee, but she did not specify any date of the agreement nor did
she produce any copy thereof at that time, the respondent urged be-
fore us. 'Ibe appellant produced the agreement of leave and licence
- when her deposition commenced before the trial judge on 8th July,
1981. The trial judge on 25th February, 1983 allowed the respondent - E
landlady's application and ordered remo~ai of the appellant's
obstruction.

However, on 12th January, 1984, the appellate bench of the
Bombay Small Causes Court allowed the appeal filed by the present
appellant and discharged the obstructionisi notice. In a Writ Petition F
filed by the respondent landlady, the High Court on 20th December,
1985 set aside the judgment a';id 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 the<e 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 G
(hereinafter called the 'Act'). The Full Bench of the High Court had in
the meantime considered the question whether a statutory tenant gov-
erned 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 bad been given a specific right to H
876 SUPREME COURT REPORTS [1986] 3 S.C. R.

A 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
B sub-lease, there was no right to create licence in the tenant, the tenant
could not have created a valid licence in favour of the appellant. The
licensee being the obstructionist lost. The present appeal arises out of
the said decision of the Bombay High Court.

It may be mentioned that the learned trial judge of the Court of
Small Causes in his decision on 25th March, 1983 has discussed the ~t
c factual aspects. After referring to the facts that it was asserted before '
the Court of Small Causes that the appellant had observed that she was
not aware of the litigation between the landlady and her tenant and
that she had paid rent of the said premises to the knowledge of the
landlady and she was in possession of the said premises.
D
It was further stated by the appellant that the agreement bet-
ween her and the defendant tenant was subsisting on 1st February,
1973 being the date when provisions of section 15A of the said Act
came into operation.

E
Mr. Tarkunde, learned counsel appearing for the respondent
landlady herein drew our attention to the relevant evidence and the
+ "
observations of the learned trial judge as well as the appellate bench of
the Court of Small Causes and the entire course of conduct of the
present respondent to emphasise that the appellant's case was con- .
cocted story and that the appellant was not in possession of the pre- /

F
mises in question by virtue of any valid licence that the agreement J
between the obstructionist appellant and the tenant was not subsisting
on 1st February, 1973. It was a document brought about subsequent- ..,.,
ly and that is why, Mr. Tarkunde asserts, it was not produced in the
first instance as has been noted before.

It was noted by the learned trial judge in the first Court trying
G the obstructionist ·notice that in reply to the obstructionist's applica-
lion filed by the present respondent, there was no mention to this
alleged agreement dated 10th November, 1966 which is Ex. 'A' in the
proceedings. The said agreement is at page 143 of Volume II of the
present Paper Book. The document is on a non-Judicial Stamp paper
r-
and the stamps had been purchased by Malhotra & Kapoor. It was
H
SITA RATN('\ RAO v. ASHALATA S. GURAM [MUKHARJI, J.l 877

submitted by Shri Tarkunde that there was no evidence to suggest that A
Malhotra and Kapoor had any connection with the obstructionist. It is
further noted in the recital part of the said purported agreement that it
is agreed between the parties that the tenant had agreed to accept the
leave and licence of the premises i.e. the entire premises for 11 (eleven)
months with effect from !st November, 1966. It was stated that the
monthly leave and licence fee of the premises would be paid at the rate B
of Rs.100. In addition to this the licensee would have to pay the electri-
city 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 Rs.122, he had parted with c
the entire premises on leave and licence on receipt of Rs. JOO 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 evi-
dence of the appellant. The Trial Court noted that she had stated that
she originally resided in the said premises without the written agree- D
ment 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 her brother had obtained the stamp paper. The,
premises in question was a flat of three rooms. The trial court had
discussed the entire evidence and the probabilities and also the impro- E
babilities of the situation. 111e Trial Court noted the incongruity of the
situation of th~ difference between the rent which was Rs. 122 payable
by the tenant and the licence fee receivable by the tenant which was
Rs. JOO. The Trial Court therefore observed that there was no genuine
agreement between obstructionist, the appellant herein and the tenant
as contained in Ex. 'A'. The Trial Court, however, came to the conclu- F
sion that there was some consideration. What was the consideration,
the Trial Court did not find it necessary to determine. The appellant
claimed exclusive possession. There was some inconsistency in support
of this contention and the other evidence available. The Trial Court,
however, came to the conclusion that there was very cordial relation-
ship between the appellant and the tenant-defendant No. l in the suit G
and that the appellant was residing in a flat at Sleater Road or Grant
Road from 1952 to 1956 with her aunt but from 1964-65 she started
occupying the said disputed premises. The evidence of the tenant was
also examined. The court dter discussing all the evidence came to the
conclusion that the appellant was in exclusive possession of the said
pranises of not less than a room on !st February, 1973. Therefore, as H
878 SUPREME COURT REPORTS [1986] 3 S.C.R.

A such, according to the Trial Court, there was some consitleration, and
prima facie the appellant came within the provisions of section 15A of
the Act. The Trial Court, however, on authorities came to the conclu-
sion that in law after the termination of the tenancy of the tenant there
was no capacity left in the tenant to grant the leave and licence and as
B such the appellant was not entitled to protection. In that view of the
matter, the Trial Court observed that there was no subsisting licence in
law in favour of the appellant and as such it was not entitled to protec- ~
tion as a licensee who could be a deemed tenant of the said premises
and possession was ordered by the Trial Court.

c
From the aforesaid order of the trial judge of the Small Causes
Court, Bombay, there was an appeal before the Appellate Bench of
1' -
the said Court.

After reiterating the facts and the deposition and discussing the r-
evidence and noting that the appellant was in visiting terms with the
D 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 cross-
examination 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 pr,emises was congested, she thought it advis-
E
able 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. Cl and CZ. Certain postal correspondence
,_/
which she had received in the said premises were also produced. The J,
F
Appellate Bench noted that an attempt had been made to show that
Ex. A was prepared subsequently but according to the appellate bench f-
that attempt had not succeeded.

The appellate bench after discussing all the facts including instal-
lation of telephone, bills, correspondence, etc. came to the conclusion
G that the entire evidence went to show that the appellant must have
been in possession of the premises in question since t964-65 continu-
ously as a licensee. The Appellate Court did not accept that the tenant )r-~
was in exclusive possession. The Bench examined the applicability of
section 15A of the said Act. The Appellate Court came to the conclu-
sion that it was clearly established that the appellant was in possession
H
SITA RATNA RAO v. ASHALATA S. GURAM [MUKHARJI, J.[ 879

,i on ]st February, 1973 and in view of some of the decisions then pre- A
vailing in the Bombay High Court came to the conclusion that the
appellant was entitled to protection under section 15A of the Act. The'
order of the trial judge was therefore set aside and the obstructionist
notice was discharged.
B
In respect of the said decision a proceeding under article 227 of
-"( the' Constitution was moved before the Bombay High Court. Out of
the judgment of the High Court in that application the present appeal
arises.

~ In the judgment under appealthe High Court referred to the
/'-.
facts as noted in the judgment, and Dr. Chitale on behalf of the appel- c
!ant urged that the High Court was grossly in error in interfering with
the findings recorded by the appellate bench of the Court of Small
---( Causes in an application under article 227 of the Constitution. On the
other hand Mr. Tarkunde emphasised that the findings properly read
• would indicate that the tenant was in possession of the premises in D
question and that the appellant was setting up an inconsistent and a
false story ill order to attract the benefit of section 15A of the said Act.
The learned single judge of the Bombay High Court was of the view
that executing court was right in rejec.ting the stand taken by the
obstructionist. The High Court came to ·the conclusion that the ob-
-+ struction was raised by the appellant at· the instance of the judgment-
debtor of the tenant and as such _the respondent herein was entitled to
E
possession and obstruction removed. The single learned judge of the
High Court noted the ground that the other grounds were given up
' i.e., subletting and bona fide and reasonable requirement. According
to the learned judge, reference to the evidence would reveal that the
~' stand taken by the judgment debtor in the suit was reversed and the
learned judge discussed the evidence about the application for tele- F
~- phone etc. and also noted Ex. A and the evidence as to his occasional
stay with his friends or in a hotal. About Ex. 'A' the Court did not
accept the version that it was extended from time to tiine 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 G
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 thereabou(s the judgment-debtor-tenant as also the ap-
pellant obstructionist had been making use of the premises for diverse
' purpose and it could not be said that the appellant was in exclusive H

..•
880 SUPREME COURT REPORTS I1986] 3 S.C. R.
A possession in her own right. Furthermore, the Court was of the view _...._
I
that it was the judgment-debtor who was in possession and who al-
lowed 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,
lJ 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 could not furnish even a reason-
ably true indication of what the terms could have been. The plea that
>
the appellant was a licensee and had, therefore acquired protection
under section ISA of the said Act could not be sustained on the basis
'~
of the above evidence, according to the learned judge. All that could
c be said was that the appellant was allowed to reside in the suit pemises \
and this might have been for reason like the judgment-debtor being
under a threat of eviction and therefore introducing hurdles to the
inevitable execution, according to the learned single judge of the High
Court. The High Court further observed that mere occupation was
r
different from possession and did not confer any right upon the occu-
D
pant and was not enough to spell out a licence.

The learned single judge of the High Court factually in substance
held that the case that the licensee was in possession on the relevant
date i.e. on 1st February, 1973 had not been made out. The High
E
Court then e.xamined the question whether in law the appellant cpuld
be considered to be a tenant in view of the provisions of section 15A of
+
the said Act. The High Court referred to the full bench decision of the
Bombay High Court in Writ Petition No. 76 of 1980 mentioned
hereinbefore where one of the questions considered by the bench was

F
whether a statutory tenant governed by the Bombay Rent Act could
have created a valid licence before coming into operation of amend- ;t
ment by 15A of the said Act on 1st February, 1973. The learned single
judge of the High Court noted that the judgment-debtor was a statu- -+
tory tenant inasmuch as tile decree for e jcctment had been passed
against him. There was no case that the judgment debtor, under the
original terms of the lease between him and the respondent was en-
titled to create a sub-tenancy or a licence in respect of the premises or
G any part thereof. The High Court noted that to get the benefit of
Section 15A of the said Act, it had to be established that there was a
valid licence subsisting on the material date i.e. the date on which
section 15A was incorporated. After noting the judgment of the full 'r·
Bench •vhich we shall separately refer to, the High Court noted the
order of the fuil Bench that there were two categories, namely (A) a
1-1
SITARATNA RAO v. ASHALATA S. GURAM [MUKHARJI , J .] 881

>- tenant who, under the tenancy agreemeQt was specifically entitled to
sublease his interest (for short, "category 'A' tenant") and another
A

category 'B' noted as follows:

(B) a tenant who under the tenancy agreement is not so
specifi.cally entitled to sublea~e or whose tenancy agree- B
ment 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 pre-
~ mises the order of the appellate Court of Small Causes was set aside

1
and warrant of possession was issued with a direction to remove the
i. appellant from the premises in question. c
'
This appeal challenges the said judgment and order. As

~
. mentioned'hereinbefore two questions require consideration-how far
and to what extent in exercise of its jurisdiction under article 226 or
t 227 of the..Constitution and in this respect regarding power to deal with
D
~· 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 persou
could possibly have come to the conclusion which the courts below
E
have come or in other words a finding which was perverse in law. This
principle is well-settled. In D.N. Banerji v. P.R. Mukharjee & Ors.,
[1953) SCR 302 at 305 it was laid down by this Court that unless there
was any grave miscarriage of justice or flagrant violation of law calling
for intervention it was not for the High Court under articles 226 and
.J--... 227 of the Constitution to interfere . If there is evidence on record on
F
which a finding can be arrived at and if the court has not mis-directed
-\- itself either on law or on fact , then in exercise of the power under
article 226 or article 227 of the Constitution, the High Court should
refrain from interfering with such findings made by the appropriate
authorities. We have noted that both the trial court and the appellate
.court after discussing evidence have come to the conclusion that the
appellant was a licensee in possession on or before 1st February, 1973. G
The learned trial court had expressed doubt about Ex. A but ulti-
mately accepted the position. There was leave and licence agreement.
~- -~ The learned appellate bench of the Court of Small Causes doubted Ex.
A and said that it was a concocted story. It is true that there were
discrepancies in the evidence of the obstructionists and there was
H
,·

882 SUPREME COURT REPORTS [1986] 3 S.C.R.

A inconsistency in the conduct of the judgment-debtor in resisting the suit.
Yet all these are for the Court's finding facts and if such fact-finding
bodies have acted properly in law and if the findings could not be
described as perverse in law in the sense that no reasonable person
properly instructed in law could have come to such a finding, suc.h
findings should not be interfered with within the exercise of the juris-
B
diction by the High Court under article 226 and article 227 of the
Constitution.
)

In case of finding of facts, the Court should not interfere in
exercise· of its jurisdiction under article 22 of the Constitution. Refer-
ence ~ay be made to the observations of this Court in Babhutmal 1
c Raichand Oswal v. Laxmibai R. Tarte and another, AIR 1975SC12971
where this Court observed that the High Court could not in the guise .
of exercising its jurisdiction under article 227 convert itself into a court
of appeal when the legislature has not conferred a right of appeal. The
High Court was not competent to correct errors of facts by examining .
the _evidence and reappreciating. Speaking for the Court, Bhagwati, J. ·
D
as 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
E 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 Dis-
trict Court? It is well settled by the decision of this Court
in Warryam Singh Vs. Amamath 1954 SCR 565- (AIR
1954 SC 215) that the :
F
" ... 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 appro-
priate cases in order to keep the Subordinate Courts within
G the bounds of their authority and not foi: 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
H
SITARATNA RAOv. ASHALATAS.GURAM [MUKHARJI,J.] 883

SC 398) and it was pointed out by Sinha, J., as he then was, A
speaking on behalf of the Court in that case:

"It is thus, clear that the powe.rs of judicial interfer-
ence under Art. 227 of the Constitution with orders of
judicial or quasi-judicial nature, are not greater than the B
power under Art. 226 of the Constitution. Ynder Art. 226
the power of interference may extend to quashing an im-
pugned order on the ground of a mistake apparent on the
face of the record. But under Art. 227 of the Constitution
the power of interference is limited to seeing that the tri-
bunal functions within the limits of its authority."
c
The history and the development of the writ of Certiorari, and •
scope and ambit of its application have been emphasised by Lord
Denning in R. v. Nothrumberland Compensation Appeal Tribunal, Ex.
Parle Shaw, [1952] (1) All England Law Reports 122 at 128. It is not
necessary to reiterate these. But the courts must guard themselves
D
against the error mentioned by Morris, L.J. in the said decision at page
133 to use the power under Art, 227 as the cloak of an appeal in
disguise.· The writ of Certiorari does not lie in order to bring up an
order or decision for rehearing of the issues raised in the proceedings.
These inhibitions are more often than not transgressed by the Courts
+ in exercise of jurisdiction under Art. 227.
E
In this connection reference may also be made to the observa-
tions of this Court inHarbans Lalv. Jagmohan Saran, [1985] 4 SCC 333.

See in this connection the observations of this Court in Trimbak.
Gangadhar Telang and Another v. Ram Chandra Ganesh Bhide and
F
Others, [1977] 2 SCC 437 Smt. M.M. Amonkar, and Others v. Dr..
S.A. Johari, [1984] 2 SCC 354 and also the observations of this Court
in Harbans Lal v. Jagmohan Saran, (supra). ·

It is true that in exercise of jurisdiction under article 227 of the
Constitution the High Court could go into the question of facts or look
into the evidence if justice so requires it, if there is any mis-direction in G
law or a view of fact taken in the teeth of preponderance of evidence.
But the High Court should decline to exercise its jurisdiction under
articles 226. and 227 of the Constitution to look into the fact in the
absence of clear cut down reasons where the question depends upon the
appreciation of evidence. The High Court also should not interfere
H
884 SUPREME COURT REPORTS [1986] 3 S.C.R.

A with a finding within the jurisdiction of the inferior tribunal except'
where the findings were perverse and not based on any material evi-
dence or it resulted in manifest 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
B ' has sought to interfere, it is manifest that the High Court has
Court
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 indi-
cation of the position that two views were possible in this case. In
preferring one view to another of factual appreciation of evidence, the
c 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
D 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 Chandiprasad Jalan etc. v.

E
Raniram Darkhan etc. (supra) judgment delivered on 18th October,
1985. In several cases before Bombay High Court there were several
+
conflicting decisions on this question. Therefore, the reference was
made to the full bench for its determination on the following:
:
"(i) Whether a statutory tenant governed by the Bombay

F
Rent Act retains heritable interest in the premises? )_'
(ii) Whether a statutory tenant governed by the Bombay
Rent Act retains transferable interest in the premises? 'f-

(iii) Whether a statutory tenant governed by the Bombay
Rent Act could have created a valid licence before 1973?
G
(iv) Whether Vasant Tatoba Hargude & Others v. Dik-
kaya Muttaya Pujari (AIR 1980 Born. 341) and Chandra-
kant Kashinath Thakur & Others v. Narayan Lakhanna
Shetty & Others (First Appeal No. 754 of 1978) were cor-
rectly decided?"
H
SITA RATNA RAO v. ASHALATA S. GURAM [MUKHARJJ, J.] 885

J In this appeal the controversy before us is concerned only on A
· · question No. 3 referred to hereinbefore. The answer given by the Full
Bench on the other questions need not detain us, though .we may
briefly note these. The full bench after exhaustive discussion answered
question No. 1 referred to hereinbefore in the affirmative and added
only to the extent provided by section 5(11) (c) of the said Act. Ques·
B
lion No. 2 was answered in the affirmative but only if he had such
transferable interest as a contractual tenant. Question No. 3 which is
·{ the most material question, the full bench answered in the affirmative
, but only if under the terms of his original cont,ractual tenancy he had a
right to transfer his leasehold rights.
~--r---
1> Question No. 4 was answered by saying that the decisions in c
Vasant v. Dikkava and Chandrakant Kashinath Thakur & Others v.
Narayan Lakhanna Shetty & Others AIR 1980 Bombay 341 (First Ap-
peal No. 754 of 1978)were not entirely correct in laying down that no
statutory tenant was entitled to transfer his interest. The category 'A'
tenant mentioned in the full bench judgment would be entitled to
D
transfer his interest irrespective of whether he was a contractual or
statutory tenant. But in the aforesaid category 'B' tenant after termi·
nation of his oontractual tenancy would not be entitled to transfer his
interest.

+ After noting several authoriiies and the provisions of the Act,
the Full Bench came to the conclusion that the contractual tenants
could be divided into two categories:
E

A a tenant who, under the tenancy agreement was specifi·
cally entitled to sublease his interest (for short, "category
'A' tenant")
F
B a tenant who under the tenancy agreement was not so
specifically entitled to sublease or whose tenancy agree·
ment 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 G
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 weirds, the
H
886 SUPREME COURT REPORTS [1986) 3 S.C.R.

A 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
B
· 15A of the said Act, i.e., on 1st February, 1973. It is the validity of this
proposition that is at issue in this appeal.

In order to appreciate the historical perspective, it may not be
inappropriate to refer to the decision in Woman Shrinivas Kini v. Rati-
lal Bhagwandas & Co., [1959) 2 Suppl. SCR 217. The appellant there
c was a tenant originally in the old building but after it was purchased by
the respondent in the new premises. In the old premises the appellant
had sub-tenant who shifted to the new premises along with the appel-
lant when the latter occupied the said premises. One of the terms of
the lease which was contained in a l~tter dated 7th June, 1948, written
D
by the respondent to the appellant provided: "In the shops in the old
chaw! which are with you, you have kept sub-tenants. We are permit-
ting you to keep sub-tenants in the same manner, in this place also".
On 20th April, 1949, the respondent brought a suit for ejectment
against the appellant on the ground, inter alia, that section 15 of the
said Act, as it stood at the relevant time, prohibited sub-letting and
E
under section 13( 1) ( c) of the Act the landlord had a right to evict the
tenant on account of sub-letting. The appellant's defence was (1) foat
+
section 15 of the Act was confined to "any other law", that it did 1•ot

F
apply to contracts between the landlord and tenant and therefore it aid
not preclude an agreement between the parties as to sub-letting, (2)
that the parties were in pari delicto and therefore the respondent could
not succeed, and (3) that the right of the respondent to sue for eject-
ment ori the ground of sub-letting being a personal right for his be-
nefit, he must be taken to have waived it as he had allowed the appel-
-
,_

lant to sub-let and, consequently, he could not evict him under section
13(1) (e) of the Act. It was held that the non-obstante clause in the
said Act applied to contracts also as these would fall under the provi-
sions of the law relating to contracts. It was further held that the
G respondent was entitled to sue for ejectment, though the agreement
recognised sub-letting, as the suit was brought not for the enforcement
of the agreement but to enforce the right of eviction which flowed
directly from an infraction of the provisions of section 15 of the Act
and for which the Act itself provided a remedy. The section was based
upon public policy and where public policy demanded, even an equal
H
SITA RA TN A RAO v. ASHALATA S. GURAM [MUKHARJJ 1J.] 887

participant in an illegality was allowed relief by way of restitution or A
...l 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
B
an illegality was void on grounds of public policy and would be unen-
forceable. 1bis 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.
c
Section 5 of the Act provides the definitions ..Sub-section (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 pre-
D
mises or such part, as the case may be, under a subsisting
agreement for licence given for a licence fee or charge; and
indudes any person in such occupation of any premises or
part thereof in a building vesting in .or leased to a co-
operative housing society registered or deemed to be re-
gistered under the Maharashtra Co-operative Societies
Act, 1960; but does not include a paying guest, a member E
. of a family residing together, a person in the service or
employment of the licensor, or a person conducting a run-
ning business belonging to the licensor, or a person having
any accommodation for rendering or carrying on medical
or para-medical services or activities in or near a nursing
home, hospital or sanitorium, or a person having any ac- F
commodation in a hotel, lodging house, hostel, guest
house, club, nursing home, hospital, sanitarium,
dharmashala, home for widows, orphans or like premises,
marriage pr public hall or like premises, or in a place of
amusement or entertainment or like institution, or in any
premises belonging to or held by an employee or his spouse G
' who on account of the exigencies of service or privision of a
residence attached to his or her post or office is temporarily
not occupying the premises, provided that he or she
charges licence fee or charge for such premises of the emp-
loyee or spouse not exceeding the standard rent and
H
888 SUPREME COURT REPORTS I1986] 3 S.C. R.
A pennitted increases for such premises, and any additional
sum for services supplied with such premises, or a person
having accommodation in any premises or part thereof for
conducting a canteen, creche, dispensary or other services
as amenities by any undertaking or institution; and the ex-
pressions "licence", "licensor" and "premises given on li-
B
cence" shall be construed accordingly;"

The expression "tenant" at the elevant time under section 5( 11)
was and still is as follows:

"(ll) "tenant" means any person by whom or on whose
c account rent is payable for any premises and includes-

(a) such sub-tenants and other persons as have de-
rived title under a tenant before the commencement
of the Bombay Rents, Hotel and Lodging House
Rates Control (Amendment) Ordinance, 1959.
D
(aa) any person to whom interest in premises has
been assigned or transferred as permitted, or
deemed to be permitted, under section 15;

(b) any person remaining, after the determination
E
of the lease, in possession, with or without the assent
of the landlord, of the premises leased to such
person or his predecessor who has derived title be-
fore the commencement of the Bombay Rents,
Hotel and Lodging House Rates Control (Amend-
ment) Ordinance, 1959,
F
(bb) such licenses as are deemed to be tenants for 'j.
the purposes of this Act by section 15A;"

Clause (c) of the said sub-section is not relevant for the present
purpose.
G
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 amenchnent of 1973, the provisions of Part II of the said Act
which deals with residential and other premises was made applicable
H
SITA RATNA RAO v. ASHA LATA S. GU RAM [MUKHARJI, J.] 889
I

to the premises given on licence for that purpose for such area to A.
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 Amend- B
ment 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 when the interest of a tenant of any premises is de- c
termined for any reason, any sub-tenant to whom the premises or any
part thereof has been lawfully sublet before the comme:1cement of the
Bombay Rents, Hotel and Lodging House Rates Control (Amend-
ment) Ordinance, 1959 shall, subject to the provisions of the Act, be
deemed to have become the tenant of the landlord on the same terms
and conditions as he would have held from the tenant if the tenancy D
had continued. Sub-section (2) of section 14 stipulates that where the
interest of a licensor, who is a tenant of any premises, is determined
for any reason, the licensee, who by section 15A is deemed to be a
tenant, shall, subject to the provisions of the Act, be deemed to be- ·
i come the tenant of the landlord, on the terms and conditions of the
agreement consistent with the provisions of the Act. The creation of E
sub-tenancy was prohibited by 1959 Amendment. The result of the two
sub .. sections of section 14 is that though the sub-tenancy had become
prohibited from 1959, sub-tenant became direct tenant of the landlord
and licensee who is recognised will become tenant instead of tenant
under the landlord. The creation of further licence is prohibited. Sec-
tion 15(1) provides as follows: F

"(1) Notwithstanding anything contained in any law, but
subject to any contract to the contrary, it shall not be lawful
after the coming into operation of this Act for any tenant to
sub-let the whole or any part of the premises let to him or
to assign or transfer in any other manner his interest the- G
rein and after the date of commencement of the Bombay
Rents, Hotel and Lodging House Rates Control (Amend-
'·--<' ment) Act, 1973, for any tenant to give on licence the
whole or part of such premises."

The proviso is not relevant for the present, Sub-section (2) of section H
890 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 15 which also came by operation of the Act in 1973 stipulates that ........
prohibition against the sub-letting of the whole or any part of the
premises which have been let to any tenant, and against the assignment
or transfer in any other manner of the interest of the tenant therein,
contained in sub-section (1) shall, subject to the provisions of this
sub-section, be deemed to have had no effet before the commence-
B ment of the Bombay Rents, Hotel and Lodging House Rates Control
(Amendment) Ordinance, 1959 and some other consequences.

Section 15A which was inserted by section 14 of the amending
Act of 1973 provides as follows:

c "15A(l) 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
D 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 sub-section (1) of section 15
after the date aforesaid." t
E
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 sub.section (!);can a licensee of a statu-
tory tenant whose contractual tenancy has come to an end be contemp-
lated under the provisions of this Act? The full bench of the Bombay
F 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 section 15A of the
Act. Is that view right is the question that we have to answer.

In this connection it may not be inappropriate to refer to the
G Statement of Objects and Reasons of the Maharashtra Act 17 of 1973
which states, inter alia, as follows:

'
"It is now notorious that the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947, is being avoided
by the expedient of giving premises on leave and licence for
H
i
•
SJTARATNA RAOv. ASHALATAS. GURAM [MUKHARJI, H 891

some months at a time; often renewing from time to time at A
a higher licence fee. Licensees are thus charged excessive
licence fees; in fact, several times more than the standard
rent, and have no security of tenure, since the licensee has no
interest in the property like a lessee. It is necessary to make
provision to bring licensees within the purview of the B
aforesaid Act. It is therefore provided by clause 14 in the
Bill that persons in occupation on the 1st day of February
1973 (being a suitable anterior date) under subsisting li-
cences, shall for the purposes of the Act, be- treated as

·r ,statutory tenants, and will have all the protection that a
statutory tenant has, under the Act. It is further provided
in clause 8 that in the case of other licences, the charge
shall not be more than a sum equivalent to standard rent
and permitted increases. and a reasonable amount for
c

amenities and services. It is also provided that no person
shall claim or receive anything more as licence fee or
charge, then the standard rent and permitted increases, ·
D
and if he does receive any such excessive amounts, they
should be recoverable from the licensor" (Emphasis
supplied).

Section 108 of The Transfer of Property Act, 1882 deals with the
rights and liabilities of both the lessor and the lessee. Clause (j) of
E
section 108 gives the lessee the right to transfer absolutely or by way of
mortgage or sub-lease the whole or any part of his interest i.n the
property, and any transferee of such interest or part may again transfer
it. The lessee shall not, by reason only of such transfer, cease to be
subject to any of the liabilities attaching to the lease. Further it stipu-
lates that nothing in this clause shall be deemed to authorise a tenant
F
having an untransferable right of occupancy, the farmer of an estate ill
respect of which default has been made in paying revenue, or the
lessee of an estate under the management of a Court of Wards, to
assign his interest as such tenant, farmer or lessee. So therefore the.
prohibition is there on a tenant having an untransferable right of occu-
pancy to transfer his interest. We are here, not concerned with the
transfer of the mterest but rather with the granting of licence which is G
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 wlJ.en one person grants
to another, or to a definite number of other persons, a right to do, or
H
892 SUPREME COURT REPORTS [1986] 3 S.C.R.

A continue to do, in or upon the immovable property of the grantor, ...i.__
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 prop-
erty, 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
B
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 appel-
lant was protected under section 15A of the said Act read with section 'f'
14(2) of the said Act, according to.learned counsel, the Full Bench of \ •
c the Bombay High Court did not hold as was according to Mr.
Tarkunde, wrongly contended on behalf of the appellant that a statu-
tory tenant could not create a valid licene although a contractual tenant
in the same circumstances could do so. It was submitted that actually ~
the Bombay High Court has held specifically that statutory tenant
continued to be possessed of the same rights and was subject to the
D same disabilities as a contractual tenant. The decision of the Bombay
Full Bench was that both the contractual tenant as well as the statutory
tenant were entitled by the terms of the tenancy to sublease its pre-
mises. Whereby the terms of tenancy the tenant was authorised or
entitled to create tenancy or licence, he has been categorised in cate- +
gory 'A' by the Full Bench. On the other hand a tenant whether con-
E tractual or statutory who was not entitled, according to the full bench,
to create any valid licence after 21st May, 1959 if his tenancy agree-
ment did not specifically give him a right to create a sub-tenancy has
been dealt with as category 'B'.

It was submitted that it was clear from the full bench judgment J
F that the distinction was made by the High Court in view of section 53
of the Indian Easements Act, 1882 read with section 15( 1) of the said
Act. It was urged that section 53 of the Indian Easement Act, one
could grant a licence in the circumstances in which and to the extent to
which he is entitled to transfer his interest in the property effected by
the licence. Under section 15(1) read with section 15(2) of the said
G Act, a tenant is not entitled to create any sub-tenancy or to transfer his
interest in the premises after 21st May, 1959 unless the contract of
tenancy positively allowed him to do so.·

According to full bench, submitted learned counsel for the
respondent, the combined effect of these provisions was that a tenant
H
SITA RA TNA RAO v. ASHALATA S. GURAM (MUKHARJI, J. J 893

whether contractual or statutory could not create any valid licence A
unless the tenns of. his tenancy allowed him to create a sublease or
otherwise transfer his interest in the premises. It was submitted that
the High Court was right in coming to this conclusion. It was further
urged that it was wrong to assume that a statutory tenant was no longer
bound by the terms of his contract of tenancy after his contract was
B
terminated by the notice of the landlord. It was emphasised with refer-
ence to the decisions in the case of Dhanapal Chettiar's case [19801 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
y
I
the said teilns agreed to govern the relationship b.etween 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 c
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 em-
phasise was that though a licence was not a transfer of interest, the D
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 ten-
ant, whether contractual or statutory; could not create any sub-
tenancy or transfer interest in the premises after 21st May, 1959 (un-
less he was positively authorised by his landlord to do so), he also
could not create any vaild licence in respect of the premises. It was not E
because, counsel urged, a licence was a transer of an interest of prop-
erty but because the capacity of a person to create a valid licence was
limited to his capacity to create a vaild transfer. This, it was urged, was
a clear result of section 53 of the Indian Easements Act, 1882. Accord-
ing to Shri Tarkunde, the non-obstante clause in section 15A of the
said Act protected the operative part of the section should prevail in- F
spite of anything contrary in any law or contract. In section 15A, the
operative part was the provision that "he (licensee) shall on that date
be deemed to have become, for the purposes of the Act, the tenant of
the landlord, in respect of the premises- or part thereof, in his occupa-
tion". The non-obstante clause clearly provided that a licensee in the
circumstances mentioned in the section who was not a tenant, shall G
nevertheless be deemed to be a tenant. It is wrong to interpret, accord-
ing to Shri Tarkunde, the non-obstante clause as if it validated a li-
cence which was in.valid. The non-obstante clause, according to
counsel, did not say that notwithstanding any law or contract to the
contrary, a person who claimed to be a licensee should be deemed to
H
894 SUPREME COURT REPORTS [1986] 3 S.C.R.

A be a licensee; what it says was that a person who was in fact a licensee ~
would be deemed to be a tenant. The question is whether the appellant
in the present case had a valid licence on !st February, 1973 and that
question which has to be determined independently of the non-
obstante clause. If it was contended, it was found that the appellant
was a licensee of the premises and was in occupation thereof on !st
B February, 1973, then it would follow, notwithstanding any law or
contract to the contrary, that she should be deemed to be a tenant of .>·
the premises. Reliance was placed on the observations of this Court in
Aswini Kumar Ghosh & Another v. Arabinda Bose & Another, [1953J
SCR I, and Dominion of India & Another v. ShribQi ·A. Irani & --...~
Another, I1955) I SCR 206 at 231 ill support of the proposition that l
c non-obstante clause was relevant to the operative part of the section.

According to Shri Tarkunde, the c'?ntentions of the appellant
would lead to absurd result, if it was held that _by virtue of non-
obstante clause, any person whoever claimed to be licensee .would be
deemed to be a valid licensee, the result would be that if an invalid
D licence was created by a person having no interest what\wer 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 !SA otiose because

E
it was submitted that in accordance with the Bombay full bench, the +
amendil!S 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 occupa-
F tion 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
G
(c) similar licensees of tenants who did not have the au-
thority to sublet or otherwise transfer their interest in the
premises provided the licensees were granted before 21st
May, 1959.

H It was submitted that a number of licensees would become
SITARATNA RAOv. ASHALATA S. GURAM [MUKHARJI,J.[ 895

"deemed tenants" under the amended Act who were the licensees of A
landlord-owners. On the other hand if section 15A was interpreted,"
according to Shri Tarkunde, in the manner suggested on behalf of the
appellant, it would lead to a strange result. The result would be that
although tenants generally had no right to create any valid sublease
after 21.5.1959, they could nevertheless create a valid licence under B.
the same circumstances. It was not likely that the legislature intended
to make such 31! irrational provision, according to counsel.

In the judgment under appeal the entire emphasis on the full
bench decision upon which the learned single judge in the judgment
under appeal relied was that there must be a term in contractual te-
nancy enabling the tenant to sublet the premises and then only such a c
tenant would be entitled to create a valid licence under sections 52 and
53 of the lndian Easements Act, 1882. The full bench further em-
phasised that the tenant was entitled to the kind of protection that is
sought to be afforded to a tenant under the Rent Act and his status
after termination of the contractual tenancy and their whole emphasis
D
was that there was no difference between the statutory tenant gover-
ned by the. provisions of the statute and the contractual tenant; the
statutory tenant could not get higher rights than those given to a con-
tractual tenant.

In several decisions of this Court the position of contractual ten-
ants and statutory tenants has been discussed. E

Anand Nivas (Private) Ltd. v. Anandii Kalyanji Podhi & Ors.,
l1964] 4 SCR 892 is a decision where it was held by the majority of
the learned judges that the tenant therein was a statutory tenant and as
such had no right to sublet the premises and the appellant in that case
had no right of a tenant on the determination of the right of the tenant F
by virtue of section 14 of the said Act as amended in 1959.

The sub-tenant was bound by the decree obtained by the respon-
dents against tenant and it could not take advantage of the Transfer of
Property Act and the Indian Registration (Bombay Amendment) Act,
1939. By sub-section (1) of section 15 of the Act, all transfers and G
assignments of interests in the premises and sub-letting of premises by
tenants were, subject to any contract to the contrary, made unlawful.
This provision applied only to contractual tenants and not to statutory
tenants who had no interest in the property. It was held that a statu-
tory tenant could not sublet the premises because sub letting involved a
H
896 SUPREME COURT REPORTS [1986] 3 S.C.R.

A transfer of the right to enjoy property for a certain period in considera-
tion 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 sub-letting imposed
B
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 determina-
tion of or the expiration of the period of the tenancy. He had no estate
c 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 determination of the contractual tenancy was personal. It was
held not being capable of being transferred or assigned and devolved
D on his death only in the manner provided in the Act. On the other
hand, the right of a contractual tenant was an estate or interest in the
premises and in the absence of a contract to the contrary, was transfer-
able and the premises might be sub-let by him.

In a dissenting judgment, Sarkar J. expressed the view that the
t
E word 'tenant' in section 13(1J (e) of the Act included not only con-
tractual tenant also statutory tenants and a statutory tenant had the
power to sublet. There was no justification for the vie:-v thats ub-letting
by a statutory tenant of a part of the demised premises resulted in
/
parting with possession of the premises, or that such parting deprived
him of the protection of the Act. Section 13 (1) (e) of the Act implied
l
F that a statutory tenant could sublet a part of the premises lawfully.
Section 15 of the Act dealt not only with contractual tenants but also
with statutory tenants. The result was that the sub-letting by the tenant
of the premises in that case, according to learned judge, must be held
to have been lawful: It was further observed that the tenant was not
bound by the decree obtained by the landlord against Maneklal. It was
G true that a sub-tenant under the general law of landlord and tenant was
bound by the decree obtained by the landlord against the tenant for
possession, though he was not made a party to the suit, but where a
statute like the Bombay Act gave sub-tenant a right to continue in
possession even after determination of the tenancy of the statutory
tenant, the sub-tenant was not bound by the decree and his tenancy did
H
SITA RATNA RAO v. ASHALATA S. GURAM !MUKHARJI,J.] 897

not come to an end with the tenancy of the superior tenant. A decree A
obtained by a landlord against his tenant did not give him a right to ..
evict a sub-tenant like the appellant who was entiilea to the benefits of
section 14 of the Act. Section 52 of the Transfer of Property Act could
not be resorted to by the respondents in the present case, according to
Sarkar, J., to evict the appellant in that case. ..
B
Relying upon the said decision in Jagdish Chander Chatterjee &
. ~. Ors. v. Sri Kishan & Anr., [1973] 1 SCR 850 this Court held that
after the determination of the contractual tenancy, the statutory ten-
ant had only a right to continue in possession and that such personal
protection came to an e!ld as soon as"the statutory tenant died.
c
In Damadilal and Others v. Parashram and Others, [1976] Supp.
SCR 645 the decision in the case of Anand Nivas (supra) was <listing-
•uished 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
D
the question before this Court was whether the interest of the statutory
tenant in the premises was heritable o; ~ot, 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 "S residential premises were concerned and that E
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 sub-clause to the
original section 5(11) (c) and granted the same protection to the legal
representatives with regard to the commercial or shop premises.
F
The question was again considered in V. •Dhanapal Chettiar v.
Yesodai Arrufial (supra)~ In that case, the main question was as to
whether a notice terminating the tenancy was condition precedent to
filing of suit for eviction. While· considering this question,. this Court
considered the provisions of various rent statutes and held that the
jural relationship of lessor and lessee would come to an end on the G
passing of an order or decree for evict.ion. Until then, under the ex- .
tended defmition of the word 'tenant', the tenant continued to be a
tenant even though the contractual tenancy had been determined by·
giving of a valid notice under section 106 of the Transfer of Property
Act. .
H
898 SUPREME COURT REPORTS 11986] 3 S.C.R.

A In Ludichem Agencies Etc. v. Ahmed R. V. Peer Mohamed and
Anr., [1982] 1 SCR 712 it was held that the licensee's interest would
come to an end alongwith the termination of tenancy of his licensor-
ordinarily-no power to create licences endured beyond the tenancy.
This decision was a direct authority under section lSA of the said Act.
B In that case the notice of termination was given as well as the decree
for eviction was passed prior to the appointed date, viz. before
1.2.1973. The licence was created after the passing of the decree. This
Court observed at pages 715-716 of the report as follows:

"Now, there can be no doubt that if the petitioner can be
said to be a licensee in occupation on February 1, 1973 he is
c entitled to assert that he has become a tenant of the land-
lord. But a licensee is one who is in occupation under a
subsisting agreement for licence. The agreement for licence
must be subsisting on the date on which he claims to be a
licensee. In the instant case, in order to establish his claim
the petitioner must be in occupation on February 1, 1973
D
under an agreement for licence subsisting on that date.

'in our opinion the petitioner is not entitled ,to the
benefit claimed by him. An agreement for licence can sub-
sist and continue to take effect only so long as the licensor
continues. to enjoy a right, title or interest in the premises.
E On the termination of his right, title or interest in the pre-

-
mises, the agreement for licence comes to an end. If the
licensor is a tenant, the agreement for licence terminates
with the tenancy. No tenant is ordinarily competent to
grant a licence· enduring beyond his tenancy. On the termi-
F
nation of the licensor's tenancy the licensee ceases to be a J
licensee. This loss <;>f status is the point from which 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
G of any description long before February 1, 1973. The con-
tractual 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 l, 1973 she had ceased to be a
tenant. With that, the agreement for licence stood auto-
H
SITARATNA RAOv. ASHALATAS. GURAM [MUKHARJI,J.[ 899

matically terminated. In consequence, the petitioner can- A
not legitimately claim to be a licensee on February I,
1973."

It is apparent from the aforesaid observations that in the facts
and circumstances in that case, it was held that licensee was not en- B
titled to protection under section ISA 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 ISA of the Act.

In Gian Devi Anand v. Jeevan Kumar and Others (supra), it was
held that if the Rent Act in question defined a tenant in substance to c
mean a tenant who continued to remain in possession even after the
termination of the contractual tenancy till a decree for eviction was
passed against him, the tenant even· after the determination of the
tenancy continued to. have an estate or interest in the tenanted
premises. D
Discussing the interests of a statutory tenant and the contractual_
tenant, Bhagwati, J. (as the learned Chief Justice then was) at page
687 of the report observed " .... In one case, the estate or .interest is
the result of a contract while in the other, it is the result of a statute.
But the quality of the estate or interest is the. same in both cases."
E
A.N. Sen, J. speaking for the Court observed at page 696 of the report
"We find it difficult to appreciate how in this country we can proceed
on the basis that a tenant whose contractual tenancy has been de-
termined but who is protected against eviction by the statute, has no
right of property but only a personal right to remain in occupation,
without ascertaining what his rights are under the statute ......... ".
F
Therefore, as a result of the discussions above, it appears that
until a decree of eviction was passed against the tenant, the tenant
could have created a licence and as in this case indisputably the licence
'was created before !st February, 1973, the licensee must, by the
express terms of section ISA of the Act, continue to be a tenant of the
landlord in respect of the premises in question. G

In our opinion a tenant protected by a statute is entitled to create
a licence. The licence is not an interest in property. It is purely a
personal right. We must take notice of the fact of the various amend-
ments in the Act introduced simultaneously with section ISA of the
H
900 SUPREME COURT REPORTS 11986] 3 S.C.R.

A Act that the entire scheme of those amendments was to protect
licensees.

Shri Tarkunke submitted that it was to protect the licensees of
the landlords and not to protect the licensees of the tenant. The
B amplitude of the language compels us to reject this submission. There
is no reason and there is nothing in the Act or the Statement of Objects
and Reasons to indicate that we should give a restricted meaning to the
expression "licence". The amended section says that whoever is in
possession as a licensee shall be deemed to have become for the
purpose of this Act the tenant of the landlord. There is no warrant to
restrict the ordinary meaning of that expression. If the construction is
c restricted in the manner submitted on behalf of the respondent, then
the apparent scheme or the purpose for introduction of the amend-
ment 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.
D
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. Li-
cence is a personal privilege. See B.M. Lall v. Dunlop Rubber & Co.
E Ltd. & Ors., 11968] 1SCR23.

Shri Tarkunde tried to urge that right to create licence was co-
terminus 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 contentiqn /
F that it was to protect the interest of the licensees of the landlord that
j
the provisions of section 15A were introduced. But the aims and ob-
jects as set out hereinbefore, do not warrant such ;,t restricted meaning.
Section 15A read with section 14(2) which was also introduced by
Maharashtra Act 17 of 1973 simultaneously makes the position clear
that where the interest of a licensor, who is a tenant of any premises is
G determined for any reason, the licensee, who by section 15A is deemed
to be a tenant, shall, subject to the provisions of the said Act be
deemed to be a tenant of the landlord, on the terms and conditions of
the agreement consistent with the provisions of the Act.
'
If the view of the full bench of the Bombay High Court is to be
H
SITA RATN A RAOv. ASHALATA S. GURAM [MUKHARJl,J.] 901

given effect to, then it will defeat the purpose of the non-obstante A
f clause in section 15A of the Act The rule of construction is to give
effect to the intention of the legislature and not to amend what is
actually expressed where the language is plain and admits of one
meaning, the task of interpretation can hardly be said to arise. Here,
in this case it is possible to give effect to the literal construction;
R
nothi.ng has been shown tp warrant that such literal construction
should not be given effect to. The words of a statute must prima facie
' ' '

·~ be given their ordinary meaning. See Nokes v. Doncaster Amalga-
mated Collieries, Ltd., 11940] A.C. 1014 at 1022 where the grammatical
construction is clear and manifest and without doubt that construction
ought to prevail unless .there are some strong and obvious reasons to
• f the contrary. In this case there is none. c
It appears to be clear that all licensees who were there on 1st
February, 1973 were to be protected and subsequent licences were
·~ made illegal as was done in the case of sub-tenancy from 1959. It was
an attempt to protect very large number of legitimate persons in occu-
D
pation and also to eliminate future mischief. This construction canvas-
sed for the appellant is in consonance with the mischief rule enunciated
in Heydon's case 76 E.R. 637 as mentioned' in Maxwell 'On the
Interpretation of Statutes' Twelfth Ed. page 40. It is useful as was em-
phasised by Baron Parke in Becks v. Smith, [1836] 2 M. & W. 191at195
in the construction of a statute to adhere to the ordinary meaning of
·-i the words used, and to the grammatical construction, unless that was E

..
at variance with the intention of the legislature, to be collected from
the statute itself, or led to any manifest absurdity or repugnance, in
which case the language 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.
f F
In finding out the meaning of the expressions usecl, the courts
must find out what is legal, not what is right: It may not be inap-
'"' - proprlate 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 G
particular course consciously selected by the Congress is to
. be put aside in the process of interpreting a statute. Once
the meaning of aµ enactment is discerned and its constitu-
~-
tionality determined, the judicial process comes to an end.
We do not sit as a committee of review, nor are we vested
H
•
902 SUPREME COUR r REPORTS [1986] 3 S.C.R.

A with the power of veto. The lines ascribed to Sir Thomas
More by Robert Bolt are not without re1evance 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
B
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 through the law to get after'
the Devil? ....... And when the last law was down, and
the Devil turned round on you-where would you hide,
Roper, the laws all being flat? ... :This country's planted
c thick with laws from coast to coast-Man's laws, not
God's-and if you cut them down ....... d'you really think
you could stand upright in the winds that would blow
them? ..... Yes, I'd give the Devil benefit of law, for my
own safety's sake." R. Bolt, A man for All Seasons, Act I,
p. 147 (Three Plays, Heinemanned. 1967)."
D
On the other hand it is apparent that this literal construction alld
reading of the statute as a whole is in consonance with the mischief
intended to be avoided.

It must be emphasised that as a result of the various decisions
E referred to hereinbefore, it must be accepted that statutory tenant was
in the same position as a contractual tenant until the decree for evic-
tion was passed against him and the rights of a contractual tenant
included the right to create licence even if he was the transferor of an
interest which was not in fact the transfer of interest. /

j
F It was canvassed before us that the non-obstante clause was con-
nected with the verb i.e. that a licensee in section 15A of the Act on
the date be deemed to become tenant but it does not detract fr~ the
power of the tenant not to create licence. The construction placeo by
the full bench, in our opinion, would curtail the language of the section
and on the basis of the High Court's judgment, the amendment ceases
G to be meaningful for a large section intended to be protected and
unless one is constrained by compulsion to give a restricted meaning,
one should not do it in this case. We find no such compulsion.

A clause beginning with the expression "notwithstanding any-
thing contained in this Act or in some particular provision in the Act or
H
SITARATNA RAO v. ASHALATA S. GURAM IMUKHARJI, J.] 903

in some particular Act or in any law for the time being in force, or in A·
any contract" is more often than not appended to a section in the
beginning with a view to give the enacting part of the section in case of
conflict an overriding effect over the provision of the Act or the con-
tract mentioned in the non-obstante clause. It is equivalent to saying
that in spite of the provision of the Act or any other Act mentioned in B
the non-obstante clause or any contract or document mentioned the
enactment following it will have its full operation or that the provisions
embraced 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,
.,. y
,
Board of Revenue, T~ivandrum & Anr.,-· AIR 1964 SC 207 at
215-[1964]4SCR280. · c
It is well settled that the expression 'notwithstanding' is in con-
tradistinction 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
D
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
E
interfering with the finding of facts made by the appellate bench of the
Court of Small Causes for the reasons mentioned hereinbefore. Sec-

- ondly, the High Court was in error on the construction of the provi-
sions of section 15A of the said Act. In the aforesaid view of the
matter, we are unable to sustain the judgment under appeal. In the
· premises it must be held that all licensees created by landlords or by
the tenant before 1st February, 1973 and who were in actual occupa- F
tion of a premises which was not less than a room as licensee on 1st
February, 19.?:hwould be. the licensees of the landlord or tenant and
whether there be any term. in the original agreement for tenancy
permitting creation .of ·Such tenancy or licences or not they would .
become tenant and enjoy the rights granted under the Act specially
those mentioned in section 14(2) of the Act. G

In the premises, in the facts and circumstances of the case as
mentioned hereinbefore, the appeal is allowed. The judgment and
order of the learned single judge of the High Court of Bombay are set
aside.
H

'
904 SUPREME COURT REPORTS [1986] 3 S.C.R.

A In the facts of this case, however, we direct that the parties shall
bear and pay their own costs. ......

P.S.S. Appeal allowed.

-