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PETITIONER: CHANDAVARKAR SITA RATNA RAO

       Vs.

RESPONDENT: ASHALATA S. GURAM

DATE OF JUDGMENT25/09/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) SINGH, K.N. (J)

CITATION:  1987 AIR  117            1986 SCR  (3) 866  1986 SCC  (4) 447        JT 1986   619  1986 SCALE  (2)500  CITATOR INFO :  R          1987 SC1939  (31)  RF         1988 SC 782  (57)  R          1990 SC1563  (11)  F          1991 SC1494  (8,13,14,16)  RF         1991 SC1760  (21)  RF         1992 SC  81  (11)  RF&E       1992 SC1701  (36)

ACT:      Bombay Rents,  Hotel and  Lodging  Rates  Control  Act, 1947; ss.  14(2) &  15A-Whether and how far statutory tenant governed by  the 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.      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  remedied-Grammatical  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.      Words and Phrases      ’Notwithstanding’-’subject to’-Meaning of.

HEADNOTE:      Section 15A(1)  of the  Bombay Rents, Hotel and Lodging House 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 force, or in any contract, where any person was on the 1st day of February 1973 in occupation of any  premises, or any part thereof which is not less than a room,  as a  licensee he  shall on  that date be deemed to have become, for the purposes of that Act, the tenant of the landlord in respect of the

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867 premises or part thereof, in his occupation. Sub-section (2) of s.  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 s.  15A 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  conditions   of  the   agreement  consistent  with  the provisions of  the  Act.  Section  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 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. The  appellant obstructed  execution of the decree on the plea that she was a caretaker of the premises. Subsequently 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. 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 execution  of the decree confirmed by the High  Court,  the  landlady  filed  an  application  for removal 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 produced  the  agreement  of leave and  licence when  her deposition commenced before the trial Judge  in July  1981 and claimed exclusive possession. The  trial   Judge  on   25th  February,  1983  allowed  the respondent-landlady’s application and ordered removal of the appellant’s obstruction. The trial court observed that there was no  genuine agreement  between  obstructionist-appellant and the  tenant. However,  it  found  that  there  was  some consideration and  that there  was very cordial 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. 15A of the Act. Being of the view 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,  it held  that there was no 868 subsisting licence  in law in favour of the appellant and as such she was 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  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 1964-65  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, 1973,  and therefore  entitled to protection under s. 15A of the Act.      A proceeding  under Art.  227 of  the Constitution  was thereafter moved  by the respondent-landlady before the High

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Court. The High Court took the view that the obstruction was raised by  the appellant  at the  instance of  the judgment- debtor  tenant,  that  the  executing  court  was  right  in rejecting the  stand taken  by the  obstructionist, that the case that  the licensee  was in  possession on  the relevant date had  not been  made out,  that since 1968 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 was in  exclusive possession  in her  own right,  that  mere occupation was  different from possession and was not enough to spell  out a  licence, and  that to get the benefit of s. 15A 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.  15A 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 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. 15A  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.  76  of  1980  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 licence in favour of the appellant.      In this  appeal by  special leave  it was contended for the appellant 869 that the  High Court  was in  error in  interfering with the findings recorded  by 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 contract of tenancy positively  allowed  to  do  so,  that  a  statutory  tenant continued 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 Easement  Act, 1882  the right  of any person to  create any  licence was coterminus 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  longer bound by the terms of his contract of tenancy after his contract was terminated by notice of the landlord, and that the non-obstante 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, ^      HELD:1.1 The  High Court  exceeded its  jurisdiction in interfering with  the finding of facts made by the Appellate Court. [903E]      1.2 In  exercise of  jurisdiction under  Article 227 of the Constitution, the High Court can go into the question of facts or  look into  the 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

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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  reasonable  person properly instructed in law could have come to such a finding or there  is any  mis-direction 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. [883G-H; 884A]      1.3 The Courts must not use the power under Article 227 as a  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. [883D-E]      In the  instant case,  both the  trial  court  and  the appellate court 870 after discussing  the evidence  had come  to the  conclusion that the  appellant 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 be said that it was a concocted story  and concluded  that there  was  a  licence. Though there  were discrepancies  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 factual appreciation of evidence,  the   High  Court   transgressed  its  limits  of jurisdiction under Article 227 of the Constitution. [884B-C]      D.N. Banerji  v. P.R.  Mukharjee & Ors., [1953] SCR 302 at 305;  Babhutmal Raichand  Oswal v.  Laxmibai R. Tarte and another, AIR 1975 SC 1297; R. v. Nothrumberland Compensation Appeal Tribunal,  Ex. Parte Shaw, [1952] (1) All 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, [1984]  2 SCC  354 referred to.      2.1 The  High Court was in error on the construction of the provisions  of s.  15A 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 be the licensees of the landlord or tenant and whether there be  any term  in the  original  agreement  of  tenancy permitting creation of such tenancy or licences or not, they would become tenants under the Act. [903F-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  purely a personal right. Grant of licence does not entail 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 871 eviction was passed against the tenant he could have created a licence before 1st February, 1973. [899F-G]      Waman Shrinivas  Kini  v.  Ratilal  Bhagwandas  &  Co.,

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[1959] 2  Suppl. SCR  217; V.  Dhanapal Chettiar  v. Yesodai Ammal, [1980]  1 SCR  334 at  340; Gian Devi Anand v. Jeevan Kumar and Others, [1985] 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]  1 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] 1 SCR 712;  B.M. Lall  v. Dunlop  Rubber &  Co. Ltd.  &  Ors., [1968] 1 SCR 23; Vasant v. Dikkava. AIR 1980 Bombay 341; and C.K. Thakur  v. N.L.  Shetty (First  Appeal No. 754 of 1978) Bombay High Court, referred to.      2.4 It  cannot be  said that  s.  15A  was  enacted  to protect the  interest 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 to have become for the purposes of the Act the tenant of the  landlord. Further,  s. 15A read with s. 14(2) of the Act make  it apparent that where the interest of a licensor, who is  a tenant  of any  premises, is  determined  for  any reason, the  licensee, who  by s.  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. [900F-H]      2.5.1 It  is not  possible to  accept the view that the non-obstante clause  in s. 15A, 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 constrained  by compulsion  to give a restricted meaning, one should  not do  it. There  is no such compulsion in this case. [902F-G]      Aswini  Kumar  Ghosh  &  Another  v.  Arabinda  Bose  & Another, [1953]  SCR 1;  and Dominion  of India & Another v. Shribai A. Irani & Another, [1955] 1 SCR 206 at 231 referred to. 872      2.5.2 If  the  view  that  a  statutory  tenant,  whose contractual tenancy  did not  specifically authorise  him to sublet or  grant lease,  could not  create a  valid  licence before  coming  into  operation  of  the  amendment  on  Ist February, 1973  were to  prevail then  it  will  defeat  the purpose of  the non-obstante  clause in  s. 15A  of the Act. [901A]      2.5.3   The    expression   ’notwithstanding’   is   in contradistinction to  the phrase  ’subject to’,  the  latter conveying the  idea of a provision yielding place to another provision or other provisions to which it is made subject. 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 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 clause or any contract  or document  mentioned the enactment following

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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 in s. 15A clearly provides  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, Trivandrum & Anr., AIR 1964 SC 207 at 215 [1964] 4 SCR 280.      2.6 In  finding 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 collected from the statute itself, and not to amend what is actually expressed. The words  of the  statute where  the language is plain must primafacie  be  given  their  ordinary  meaning.  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 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, but no further. [901A-C; E-G] 873      In the  instant case, nothing has been shown to warrant that such  literal construction  should not  be given effect to. Under  s. 15A  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  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 as a whole is in consonance with the mischief to be avoided. [901D]      Since in  the instant  case, the  licence  was  created before 1st  February, 1973  the licensee must, therefore, by the express  terms of  s. 15A  of the  Act, continue to be a tenant of  the  landlord  in  respect  of  the  premises  in question. [903F-G]      Nokes v. Doncaster Amalgamated Collieries, Ltd., [1940] A.C. 1014  at 1022;  Heydon’s case, 76 E.R. 637; Maxwell ’On the Interpretation  of Statutes’,  12th Ed., p. 40; Becks v. Smith, [1836]  2 M.  & W.  191 at  195 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  856, referred to.      Full Bench decision of Bombay High Court in R. C. Jalan v. R.  Darkhan, W.P. No. 76 of 1980 dated 18th October, 1985 overruled.      3. When  one person grants to another, or to a definite number of  other persons,  a right to do, or continue to do, in or  upon the immovable property of the grantor, something which would,  in the absence of such right, be unlawful, and such right  does not amount to an easement or an interest in the property, such right is called a licence.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 840 of 1986      From the  Judgment and  Order dated  20.12.1985 of  the Bombay High Court in W.P. No. 1130 of 1984.      Dr. Y.S.  Chitale, Uday  Lalit and  P.H. Parekh for the Appellant.

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    V.M.  Tarkunde   and  Mrs.   M.  Karanjawala   for  the Respondent.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. The  following  two  questions arise 874 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  Constitution   interfere  with  the           findings of  facts by the appropriate authorities;           and           (ii)  whether  and  how  far  a  statutory  tenant           governed by  Bombay  Rent  Act,  1947  could  have           created a valid licence before 1973?      In order  to appreciate  the questions, it is necessary to refer  to 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  leave  and licence entered  into between  the tenant, Shri S.P. Rao and the appellant  herein in  respect of  the premises being the entire flat.  According to  the respondent land-lady this is an ante  document created  for the  purpose of  the  present obstructionist proceedings  out of  which the present appeal arises. In 1970, the tenancy of Shri S.P. Rao was terminated by notice  of the  respondent, landlady  as her  husband was being posted  in Bombay prior to his retirement in 1971. The respondent landlady  instituted a suit for possession of the said premises  on the  ground of  personal requirement, sub- letting and  nonpayment 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  Causes Court which  incidentally has  exclusive jurisdiction  under the Bombay  Rent Act  over these  matters, a landlord’s suit for possession  is expedited  if the suit is confined to the ground of  his  personal  requirement.  Accordingly,  it  is stated, that  the landlady,  the respondent  herein, gave up the other  grounds  of  eviction  except  that  of  personal requirement and  the name  of the  appellants’s brother  was deleted as  a 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 caretaker of the premises and was herself staying elsewhere.      It was  highlighted before  us that she did not at that time rely on 875 the alleged  agreement of  leave and  licence while offering obstruction 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 tenant, 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.      On 23rd January, 1978, the appeal filed from the decree of eviction  filed by the tenant Shri S.P. Rao was dismissed by the  Appellate Bench of the Bombay Small Causes Court. On

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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 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 an  application  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 present  appellant who  was obstructionist No. 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 before us. The 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 landlady’s  application   and   ordered   removal   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  obstructionist notice. In a Writ Petition filed by the respondent landlady, the High Court on 20th December, 1985 set aside the judgment and order  of the  Appellate Bench of the Small Causes Court and restored  the order  of the  Executing Court.  The  High Court set  aside the factual findings that there was a valid licence at  the time of the coming into operation of Section 15A of  the Bombay  Rents, Hotel  and  Lodging  House  Rates Control Act,  1947 (hereinafter  called the ’Act’). The Full Bench of  the High  Court had in the meantime considered the question whether  a statutory  tenant governed  by  the  Act could have  created a  valid licence  before 1973.  The Full Bench of  the High  Court in  Writ Petition  No. 76 of 1980- Ratanlal Chandiprasad  v. Raniram Darkhan etc. 18th October, 1985, had  held that  unless the contractual tenant had been given a specific right to 876 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 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 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.      It  was  further  stated  by  the  appellant  that  the agreement  between   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.      Mr.  Tarkunde,   learned  counsel   appearing  for  the respondent  landlady   herein  drew  our  attention  to  the relevant evidence  and the observations of the learned trial

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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 concocted story and that the appellant was not in possession of the  premises in  question by virtue of any valid licence that the  agreement between the obstructionist appellant and the tenant  was not subsisting on 1st February, 1973. It was a document  brought about  subsequently 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  the obstructionist notice that in reply to the obstructionist’s   application    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  and the stamps had been purchased by Malhotra & Kapoor. It was 877 submitted by  Shri Tarkunde  that there  was no  evidence to suggest that 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 1st November, 1966. It was stated that  the  monthly  leave  and  licence  fee  of  the premises would be paid at the rate of Rs.100. In addition to this the  licensee would have to pay the electricity charges to the Bombay Electric Supply Corporation; that he would not assign the premises and the other consequential clauses were there. Incidentally  in challenging  the existence  of  this agreement, Mr.  Tarkunde emphasised  before us the fact that while the  tenant had the obligation to pay the monthly rent of Rs.122,  he had  parted with the entire premises on leave and licence  on receipt  of  Rs.100  per  month.  This,  Mr. Tarkunde submitted,  was an  incongruity which falsified the truth of  the assertion  now sought to be made in support of the appellant.  The Trial  Court examined  all these and the oral evidence  of the  appellant. The Trial Court noted that she had  stated that  she originally  resided  in  the  said premises without  the written agreement but she entered into the written  agreement Ex.  A on  10th  November,  1966  and thereafter she  was in exclusive possession of the same. She was cross-examined about the purchase of the stamp paper and she stated  that 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 improbabilities of the situation. The Trial  Court noted  the incongruity  of the situation of the difference  between the rent which was Rs.122 payable by the tenant  and the  licence fee  receivable by  the  tenant which was  Rs.100. 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 conclusion 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  relationship  between  the appellant and  the tenant-defendant  No. 1  in the  suit and that the appellant was residing in a flat at Sleater Road or

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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 after discussing all  the evidence came to the conclusion that the appellant was  in exclusive  possession of the said promises of not less than a room on 1st February, 1973. Therefore, as 878 such,  according   to  the   Trial  Court,  there  was  some consideration, and prima facie the appellant came within the provisions of  section 15A  of the  Act.  The  Trial  Court, however, on  authorities came  to the conclusion 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 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 protection as a licensee who could be a deemed tenant of the said premises and possession was ordered by the Trial Court.      From the  aforesaid order  of the  trial judge  of  the Small Causes  Court, Bombay,  there was an appeal before the Appellate Bench of the said Court.      After reiterating  the facts  and  the  deposition  and discussing the evidence and noting that the appellant was in visiting terms  with the tenant and was visiting Bombay from time to  time and was staying in the premises, and the Court noted the  execution of  Ex. ’A’.  The crossexamination  was noted. It  was further  observed by the appellate bench that she was  badly in  need of  shelter anywhere  and so she had taken the  said premises  from tenant, as the members of the family of her aunt were more and the premises was congested, she thought it advisable to shift to the suit premises where she could reside with some comfort. The Court concluded that this can reasonably be said that there was a licence and not a lease.  The Court noted that it was never the intention of the  tenant   to  give   the  premises  permanently  to  the appellant. Electricity bills from 1969 to 1982 were produced in favour  of the appellant as Ex. C1 and C2. Certain postal correspondence which  she had  received in the said premises were also  produced.  The  Appellate  Bench  noted  that  an attempt had  been made  to show  that  Ex.  A  was  prepared subsequently but  according  to  the  appellate  bench  that attempt had not succeeded.      The appellate  bench after  discussing  all  the  facts including installation  of telephone, bills, correspondence, etc. came to the conclusion that the entire evidence went to show that  the appellant must have been in possession of the premises  in   question  since  1964-65  continuously  as  a licensee. The Appellate Court did not accept that the tenant was  in   exclusive  possession.   The  Bench  examined  the applicability of  section 15A of the said Act. The Appellate Court came to the conclusion that it was clearly established that the appellant was in possession 879 on 1st  February, 1973  and in view of some of the decisions then prevailing  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.      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 appeal the High Court referred to

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the facts  as noted  in the  judgment, and  Dr.  Chitale  on behalf of  the appellant  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  question  and  that  the appellant was  setting up  an inconsistent and a false story in 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 rejecting the stand taken  by the  obstructionist. The  High Court came to the conclusion  that  the  obstruction  was  raised  by  the appellant at  the instance  of  the  judgmentdebtor  of  the tenant and  as such  the respondent  herein was  entitled to 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 telephone 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  time  and  that  the  appellant  was continuing in  possession by  virtue of  the agreement as it was for  a short  duration. On  the other  hand, the learned judge came  to the conclusion that the judgment under appeal was for a short duration and in terms there was no extension after the  expiry  of  the  period  mentioned  therein.  The learned judge  came to  the finding that since at least 1968 or  thereabouts   the  judgment-debtor-tenant  as  also  the appellant obstructionist had been making use of the premises for diverse  purpose and  it could  not  be  said  that  the appellant was in exclusive 880 possession in  her own  right. Furthermore, the Court was of the  view  that  it  was  the  judgment-debtor  who  was  in possession and who allowed the appellant to continue for all these years.  But the  story that  this or  that part of the premises was  in exclusive  possession of the appellant was, according to  the learned  single judge  of the  High Court, patently false.  The  learned  judge  further  came  to  the conclusion that  Ex. A  was a  concoction  manufactured  for these  proceedings  and  the  interested  testimony  of  the witnesses  could   not  furnish   even  a   reasonably  true indication of  what the terms could have been. The plea that the appellant  was a  licensee and  had  therefore  acquired protection under  section 15A  of the  said Act could not be sustained on  the basis  of the above evidence, according to the learned  judge. All  that could  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  different from possession and did not confer any right upon the occupant 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 Court  then examined  the

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question whether in law the appellant could 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 whether a statutory tenant governed by the Bombay Rent  Act could  have created  a valid licence before coming into operation of amendment 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 statutory tenant inasmuch as the decree for ejectment 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 entitled to create a sub-tenancy or a licence in respect of the  premises or  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  Bench which we shall separately refer to, the High Court noted  the order of the full Bench that there were two categories, namely (A) a 881 tenant who,  under the  tenancy agreement  was  specifically entitled to  sublease his interest (for short, "category ’A’ tenant") and another category ’B’ noted as follows:           (B) a  tenant who  under the  tenancy agreement is           not so  specifically entitled to sublease or whose           tenancy agreement  is silent  about it (for short,           "category ’B’ tenant").      and therefore  in view  of that  decision  the  learned single judge  denied relief  to the  appellant under section 15A of  the said  Act. In  the premises  the  order  of  the appellate Court of Small Causes was set aside and warrant of possession  was  issued  with  a  direction  to  remove  the appellant from the premises in question.      This appeal  challenges the said judgment and order. As mentioned hereinbefore  two questions require consideration- how far  and to  what extent in exercise of its jurisdiction under article  226 or  227 of  the Constitution  and in this respect regarding  power to  deal with factual findings, the jurisdiction of  the High  Court is akin both under articles 226  and  227  of  the  Constitution,  can  the  High  Court interfere with the findings of fact? It is well-settled that the High  Court can set aside or ignore the findings of fact of an  appropriate court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the courts below 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 227 of the Constitution to interfere. If there is evidence on record on 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. The learned trial court had expressed doubt  about Ex.  A but  ultimately  accepted  the

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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 882 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, such  findings should not be interfered with within the exercise  of the  jurisdiction 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.  Reference   may  be   made  to  the observations of  this Court  in Babhutmal  Raichand Oswal v. Laxmibai R.  Tarte and  another, AIR 1975 SC 1297 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. 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 the jurisdiction           of the High Court under that article. Did the High           Court have  jurisdiction in  an application  under           Art. 227  to disturb  the findings of fact reached           by the  District Court?  It is well settled by the           decision  of  this  Court  in  Warryam  Singh  Vs.           Amarnath 1954 SCR 565-(AIR 1954 SC215) that the:                "...power  of  superintendence  conferred  by           Article 227  is, as  pointed out by Harries, C.J.,           in Dalmia  Jain Airways Ltd. v. Sukumar Mukherjee,           AIR 1951  Cal 193  (S.B.)  to  be  exercised  most           sparingly and  only in  appropriate cases in order           to keep  the Subordinate  Courts within the bounds           of their  authority and  not for  correcting  mere           errors."                This  statement   of  law   was  quoted  with           approval in  the subsequent decision of this Court           in Nagendra  Nath Bora  v.  The  Commr.  of  Hills           Division 1958 SCR 1240-(AIR 1958 883           SC 398) and it was pointed out by Sinha, J., as he           then was,  speaking on behalf of the Court in that           case:                "It  is   thus,  clear  that  the  powers  of           judicial  interference   under  Art.  227  of  the           Constitution with  orders of  judicial  or  quasi-           judicial nature,  are not  greater than  the power           under Art. 226 of the Constitution. Under Art. 226           the power  of interference  may extend to quashing           an impugned  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 tribunal functions           within the limits of its authority."

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    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. Parte Shaw, [1952] (1) All England Law  Reports 122  at 128.  It is  not  necessary  to reiterate  these.  But  the  courts  must  guard  themselves 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.      In this  connection reference  may also  be made to the observations of this Court in Harbans Lal v. 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 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 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 884 with a  finding within  the  jurisdiction  of  the  inferior tribunal except  where the  findings were  perverse and  not based on any material evidence 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 Court has sought to interfere, it is manifest that the  High Court  has gone into questions which depended upon appreciation  of evidence and indeed the very fact that the learned  trial judge  came to  one  conclusion  and  the appellate bench  came to another conclusion is indication of the position  that two  views were possible in this case. In preferring one  view to  another of  factual appreciation of evidence,  the   High  Court   transgressed  its  limits  of jurisdiction under  article 227  of the Constitution. On the first point, therefore, the High Court was in error.      But the  findings of  the High  Court  on  the  factual aspect would  not help  the appellant  to become  a licensee under section  15A of  the said Act. It is to that question, therefore, attention must be given.      On the construction of section 15A of the said Act, the learned judge  followed the  decision of  the Full  Bench of that High  Court in Writ Petition No. 76 of 1980 in Ratanlal Chandiprasad Jalan  etc. v.  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 Rent  Act retains heritable interest in the

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         premises?           (ii) Whether  a statutory  tenant governed  by the           Bombay Rent  Act retains  transferable interest in           the premises?           (iii) Whether  a statutory  tenant governed by the           Bombay Rent Act could have created a valid licence           before 1973?           (iv) Whether  Vasant Tatoba  Hargude &  Others  v.           Dikkaya Muttaya  Pujari (AIR  1980 Bom.  341)  and           Chandrakant Kashinath  Thakur &  Others v. Narayan           Lakhanna Shetty  & Others (First Appeal No. 754 of           1978) were correctly decided?" 885      In this  appeal the  controversy before us is concerned only on  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. Question 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 contractual tenancy he had a right to transfer his leasehold rights.      Question  No.   4  was  answered  by  saying  that  the decisions in  Vasant v.  Dikkava and  Chandrakant  Kashinath Thakur & Others v. Narayan Lakhanna Shetty & Others AIR 1980 Bombay 341  (First Appeal 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 transfer his interest irrespective  of whether  he was  a contractual  or statutory tenant.  But in  the aforesaid category ’B’ tenant after termination  of his  contractual tenancy  would not be entitled to transfer his interest.      After noting  several authorities and the provisions of the Act,  the Full  Bench came  to the  conclusion that  the contractual tenants could be divided into two categories:           A a  tenant who,  under the  tenancy agreement was           specifically entitled  to  sublease  his  interest           (for short, "category ’A’ tenant")           B a tenant who under the tenancy agreement was not           so specifically  entitled  to  sublease  or  whose           tenancy agreement  was silent about it (for short,           "category ’B’ tenant"). and the  Court went  on to observe that category ’A’ tenant, even after the termination of his tenancy, would continue to have a  right to  sublease. That  right under  the  original contractual lease  had not  been taken away by the said Act. In fact that right had been kept intact. However, the tenant of category  ’B’  would  not  either  before  or  after  the termination of  the agreement be able to sublet his interest in view  of the  specific bar  under section  15 of the said Act. In other words, the 886 effect of  the decision  of the  Full Bench of the said High Court  was  that  in  cases  where  there  was  no  specific agreement granting  the tenant a right to transfer the terms of his  contract, termination of his tenancy did not entitle him to  be able  to give a valid licence. Such licence would be invalid  and as  such  could  not  be  considered  to  be subsisting at  the time  of the coming into operation of the provisions of  section 15A  of the  said Act,  i.e., on  1st

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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 Waman Shrinivas Kini  v. Ratilal Bhagwandas & Co., [1959] 2 Suppl. SCR 217.  The appellant there 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 appellant when the latter occupied the said premises. One of the terms of the lease which was contained in a letter dated 7th June,  1948, written  by the respondent to the appellant provided: "In the shops in the old chawl which are with you, you have  kept sub-tenants.  We are  permitting 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 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) that section 15  of the Act was confined to "any other law", that it did  not apply  to contracts  between  the  landlord  and tenant and  therefore  it  did  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 ejectment on  the ground  of sub-letting  being  a  personal right for his benefit, he must be taken to have waived it as he had  allowed the  appellant 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 provisions of  the law relating to contracts. It was further held that  the 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 887 participant in  an illegality  was allowed  relief by way of restitution or  recission, though  not on  the contract and, thirdly, it  was further  held that the plea of waiver which the appellant  relied on could not be sustained because as a result of  giving effect  to that  plea that  court would be enforcing in  illegal  agreement  and  thus  contravene  the statutory provisions  of section  15  of  the  Act,  as  the agreement to  waive an  illegality was  void on  grounds  of public policy  and would  be unenforceable.  This led  to  a rather peculiar  result where  the  landlord  had  permitted himself subletting  and yet  could  sue.  This  resulted  in amendment of section 15 sub-section (1) of the Act by adding "but subject  to any  contract to the contrary" by section 7 of the Bombay Amending Act 49 of 1959.      Section 5  of the  Act provides  the definitions.  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 premises  or such  part, as the           case may  be, under  a  subsisting  agreement  for           licence given  for a  licence fee  or charge;  and

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         includes any  person in  such  occupation  of  any           premises or  part thereof in a building vesting in           or  leased   to  a   cooperative  housing  society           registered or  deemed to  be registered  under the           Maharashtra Co-operative  Societies Act, 1960; but           does not  include a  paying guest,  a member  of a           family residing  together, a person in the service           or  employment   of  the  licensor,  or  a  person           conducting a  running 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           accommodation in  a hotel,  lodging house, hostel,           guest  house,   club,  nursing   home,   hospital,           sanitorium, dharmashala,  home for widows, orphans           or like  premises, marriage or 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  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 employee  or spouse not exceeding the standard           rent and 888           permitted 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           expressions "licence",  "licensor"  and  "premises           given on licence" shall be construed accordingly;"      The expression  "tenant"  at  the  elevant  time  under section 5(11) was and still is as follows:           "(11) "tenant"  means any  person by  whom  or  on           whose account rent is payable for any premises and           includes-                (a) such  sub-tenants and  other  persons  as                have derived  title under a tenant before the                commencement of  the Bombay  Rents, Hotel and                Lodging  House   Rates  Control   (Amendment)                Ordinance, 1959.                (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 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 before the                commencement of  the Bombay  Rents, Hotel and                Lodging  House   Rates  Control   (Amendment)                Ordinance, 1959,                (bb)  such  licenses  as  are  deemed  to  be                tenants for  the  purposes  of  this  Act  by                section 15A;"      Clause (c)  of the said sub-section is not relevant for the present purpose.      Clause (bb)  of section  5(11) above introduced by Mah. 17 of 1973.

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    By amendment  of sub-section  (3) of  section 6  of the said Act  after amendment of 1973, the provisions of Part II of the  said Act  which deals  with  residential  and  other premises was made applicable 889 to the  premises given  on licence for that purpose for such area  to  premises  let  for  that  purpose  in  such  area, immediately before such commencement.      Section 13(1)  (e) entitles the landlord to ask for the eviction of  the tenant  if the tenant has, since the coming into operation  of the  Act, unlawfully  sublet or after the date of  commencement of the Amendment Act, 1973, unlawfully given on  licence the  whole or  part  of  the  premises  or assigned or  transferred in  any other  manner his  interest therein. It  is important  to bear  in mind, therefore, that the creation  of sub-tenancy  or grant  of  licence  by  the tenant has  been prohibited  and made a ground for ejectment of the  tenant. Section  14 of  the Act stipulates that when the interest  of a  tenant of any premises is determined for any reason,  any sub-tenant to whom the premises or any part thereof has  been lawfully sublet before the commencement of the Bombay  Rents, Hotel  and Lodging  House  Rates  Control (Amendment) 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 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 become the tenant of the landlord, on the terms and conditions of the agreement consistent with the provisions  of the  Act. The creation of 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.  Section 15(1)  provides  as follows:           "(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   therein   and   after   the   date   of           commencement  of   the  Bombay  Rents,  Hotel  and           Lodging House Rates Control (Amendment) 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 890      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  effect  before  the commencement  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

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amending r Act of 1973 provides as follows:           "15A(1)   Notwithstanding    anything    contained           elsewhere in  this Act or anything contrary in any           other law  for the  time being in force, or in any           contract, where  any person  is on  the 1st day of           February, 1973  in occupation  of any premises. Or           any part thereof which is not less than a room, as           a licensee he shall on that date be deemed to have           become, for  the purposes  of this Act, the tenant           of the  landlord, in  respect of  the premises  or           part thereof, in his occupation.                (2) The  provisions of  sub-section (1) shall           not affect  in any  manner the  operation of  sub-           section  (1)   of  section   15  after   the  date           aforesaid.      The question  that  falls  for  consideration  in  this appeal is as to who is the licensee mentioned in section 15A of the  Act. What  kind of  licensee is contemplated by sub- section (1);  can a  licensee of  a statutory  tenant  whose contractual tenancy has come to an end be contemplated under the provisions  of this  Act? The  full bench  of the Bombay High  Court   has  held   that  a   statutory  tenant  whose contractual tenancy did  not specifically  authorise  him  to sublet or  grant lease  cannot create a licence which can be sought to  be recognised  by 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  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 891           some months at a time; often renewing from time to           time at  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 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 licences, shall for the purposes of the           Act, be  treated as  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 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,           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 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 in the property, and any transferee  of such  interest or part may again transfer

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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 stipulates that nothing in this clause shall  be   deemed  to   authorise  a   tenant   having   an untransferable right  of occupancy,  the farmer of an estate in 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 occupancy to transfer his interest. We  are here,  not concerned  with the transfer of the interest  but rather  with the granting of licence which is personal  in nature. It is indisputable that the grant of licence does  not entail transfer of interest. See B.M. Lall v. Dunlop  Rubber (infra).  The Indian  Easements  Act  1882 deals with  licenses. Section  52 of  Chapter VI of the said Act defines license as when one person grants to another, or to a definite number of other persons, a right to do, or 892 continue to  do, in  or upon  the immovable  property of the grantor, something  which would,  in  the  absence  of  such right, be  unlawful, and  such right  does not  amount to an easement or  an interest  in the  property,  such  right  is called a  license. Section  53 states  that a license may be granted by any one in the circumstances and to the extent in and to  which he  may transfer his interests in the property affected by the license.      On the aspect whether in law a valid licence could have been created by the tenant in favour of the appellant and as such the  appellant was  protected under  section 15A of the said Act  read with section 14(2) of the said Act, according to learned  counsel, the Full Bench of the Bombay High Court did not  hold as  was according  to  Mr.  Tarkunde,  wrongly contended on behalf of the appellant that a statutory 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 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 premises.  Whereby the terms of tenancy the tenant was  authorised or  entitled  to  create  tenancy  or licence, he has been categorised in category ’A’ by the Full Bench. On  the other  hand a  tenant whether  contractual or statutory who was not entitled, according to the full bench, to create  any valid  licence after  21st May,  1959 if  his tenancy agreement  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 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 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

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893 whether contractual  or statutory could not create any valid licence unless  the terms  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 terminated  by  the  notice  of  the  landlord.  It  was emphasised with  reference to  the decisions  in the case of Dhanapal Chettiar’s  case [1980]  1 SCR 334 at 340. and Gian Devi’s case.  [1985] 2  SCC 683  at 686-687  and 707. It was indicated that  the termination  of tenancy  made under  the said terms  agreed to  govern the  relationship between  the landlord  and   the  tenant   even  after  the  tenancy  was determined and  a tenant  became a  statutory tenant. It was not denied,  it is  true, that  a  licence  was  a  personal privilege and  that  it  did  not  create  any  interest  in property. However,  according to  section 53  of the  Indian Easements Act, 1882, according to counsel, the rights of any person to  create any licence was co-terminus with his right to transfer  his interest  in the  property in  question. In other words,  what counsel  sought  to  emphasise  was  that though a  licence was  not a transfer of interest, the right to grant  a  licence  was  co-terminus  with  the  right  to transfer his  interest in  the property.  It was, therefore, submitted  that  since  a  tenant,  whether  contractual  or statutory, could  not  create  any  subtenancy  or  transfer interest in the premises after 21st May, 1959 (unless he was positively authorised  by his  landlord to  do so),  he also could not  create  any  vaild  licence  in  respect  of  the premises. It was not because, counsel urged, a licence was a transer of  an interest of property 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. According to Shri Tarkunde, the non-obstante clause in section 15A  of the said Act protected the operative part of the section  should prevail  inspite 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 occupation". The non-obstante clause clearly provided that  a licensee  in the circumstances mentioned in the section  who was  not a  tenant, shall  nevertheless  be deemed to  be a  tenant. It is wrong to interpret, according to Shri Tarkunde, the non-obstante clause as if it validated a  licence  which  was  invalid.  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 894 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 1st February, 1973 and that question which has to be determined independently of the nonobstante clause. If it was contended,  it  was  found  that  the  appellant  was  a licensee of  the premises  and was  in occupation thereof on 1st 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,  [1953]  SCR  1,  and

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Dominion of  India &  Another v. Shribai A. Irani & Another, [1955] 1  SCR 206  at 231 in support of the proposition that non-obstante clause  was relevant  to the  operative part of the section.      According to  Shri Tarkunde,  the  contentions  of  the appellant would  lead to  absurd result, if it was held that by virtue  of nonobstante clause, any person whoever claimed to be  licensee would  be deemed to be a valid licensee, the result would  be that if an invalid licence was created by a person having  no interest whatever in the property affected by the licence, the so-called licensee would become a tenant of the property despite any law or contract to the contracy. According to  Shri Tarkunde, it was improper to contend that other construction  would make the provisions of section 15A otiose because  it was submitted that in accordance with the Bombay full bench, the amending Act would be fully operative and it confers tenancy rights on-           (a) those  licensees who  were granted licences by           the landlord-owners before 1.2.1973, provided that           on that  date their  licences were  subsisting and           they were in occupation of the premises;           (b) similar  licensees  of  tenants,  whether  the           tenants were  contractual or  statutory,  provided           the tenants had the right under the terms of their           tenancy to  create sub-lease or otherwise transfer           their interest in the premises; and           (c) similar  licensees of tenants who did not have           the authority  to  sublet  or  otherwise  transfer           their  interest   in  the  premises  provided  the           licensees were granted before 21st May, 1959.      It was  submitted that  a  number  of  licensees  would become 895 "deemed  tenants"   under  the  amended  Act  who  were  the licensees of  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 the same circumstances. It was not likely that the  legislature   intended  to   make  such  an  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 tenancy  enabling the  tenant to sublet the premises  and then  only such a tenant would be entitled to create  a valid  licence under  sections 52 and 53 of the Indian  Easements   Act,  1882.   The  full   bench  further emphasised 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 was that there was no  difference between  the statutory tenant governed by the provisions  of the  statute and  the contractual tenant; the statutory  tenant could not get higher rights than those given to a contractual tenant.      In several  decisions of  this Court  the  position  of contractual  tenants   and  statutory   tenants   has   been discussed.      Anand Nivas  (Private) Ltd. v. Anandji Kalyanji Podhi & Ors. [1964] 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

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premises and  the appellant  in that  case had no right of a tenant on  the determination  of the  right of the tenant by virtue of section 14 of the said Act as amended in 1959.      The sub-tenant  was bound by the decree obtained by the respondents 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 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  statutory  tenant  could  not  sublet  the premises because subletting involved a 896 transfer of the right to enjoy property for a certain period in consideration  of price  paid or promised and a statutory tenant had  merely a  personal  right  to  resist  eviction. Section 15(2)  of the  said Act  as it stood at the relevant time was  in the nature of an exception to section 15(1). It applied to  contractual tenancies.  It protected sub-tenants of contractual  tenants and  removed the  bar  against  sub- letting imposed  by section  15(1) as  well as  by contract, provided the transferee was in possession of the premises at the commencement of the Ordinance.      It was  further observed  that a statutory tenant was a person who remained in occupation of the premises let to him after the  determination of  or the expiration of the period of the tenancy. He had no estate or interest in the premises occupied by him. He merely enjoyed the protection of the law in that  he could  not be  turned out so long as he paid the standard rent and permitted increases, if any, and performed the other  conditions of the tenancy. His right to remain in possession  after   the  determination  of  the  contractual tenancy was personal. It was held not being capable of being transferred or  assigned and  devolved 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 transferable and the premises might be sub-let by him.      In a  dissenting judgment, Sarkar J. expressed the view that the  word ’tenant’  in section  13(1) (e)  of  the  Act included not  only contractual tenant also statutory tenants and a statutory tenant had the power to sublet. There was no justification for  the view  that sub-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 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 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 897 not come  to an end with the tenancy of the superior tenant.

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A decree  obtained by  a landlord against his tenant did not give him  a right  to evict  a sub-tenant like the appellant who was  entitled 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.      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  tenant had only a right to continue  in possession and that such personal protection came to an end as soon as the statutory tenant died.      In Damadilal and Others v. Parashram and Others, [1976] Supp. SCR  645 the  decision in  the  case  of  Anand  Nivas (supra) was  distinguished and considering the provisions of the Madhya  Pradesh Rent Act, it was held that interest of a statutory tenant was heritable.      In Ganpat  Ladha v.  Sashikant Vishnu  Shinde, [1978] 3 SCR 198  the question  before this  Court  was  whether  the interest  of  the  statutory  tenant  in  the  premises  was heritable or not, and further, whether such protection could be  available   in  respect  of  commercial  premises  also. Considering the  provisions of  section  5(11)  (c)  of  the Bombay Act,  this Court  held that this section was meant to protect the  rights of  the legal  representatives so far as residential premises  were concerned  and  that  such  legal representatives could  not get  any tenancy right in respect of shop  or commercial  premises. Subsequent  to  this,  the State of  Maharashtra by way of amendment in 1978 added 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.      The  question  was  again  considered  in  V.  Dhanapal Chettiar v.  Yesodai Ammal  (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 passing  of an order or decree for eviction. Until then, under the  extended definition  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. 898      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 15A of the said Act. 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 entitled to assert that he           has become a tenant of the land. 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

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         establish his  claim the  petitioner  must  be  in           occupation on  February 1, 1973 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  subsist and  continue to  take effect           only so  long as the licensor continues to enjoy a           right, title  or interest  in the premises. On the           termination of his right, title or interest in the           premises, 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 termination of           the licensor’s tenancy the licensee ceases to be a           licensee. This  loss of  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 of  any description long before February 1,           1973. The  contractual tenancy came to an end when           the notice to quit dated July 28, 1962 took effect           and the  statutory  tenancy  terminated  when  the           decree for ejectment was passed thereafter. Before           February 1,  1973 she  had ceased  to be a tenant.           With that, the agreement for licence stood auto- 899           matically   terminated.    In   consequence,   the           petitioner  cannot  legitimately  claim  to  be  a           licensee on February 1, 1973."      It is  apparent from the aforesaid observations that in the facts  and circumstances  in that case, it was held that licensee was not entitled to protection under section 15A of the said  Act but  this Court had made it clear that but for the fact  that  the  licence  had  been  created  after  the interest of  the tenant  came to  an end, the licensee would have been  entitled to  protection under  section 15A of the Act.      In Gian  Devi Anand v. Jeevan Kumar and Others (supra), it was  held that  if the  Rent Act  in question  defined  a tenant in substance to 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.      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." 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 determined 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.........".      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

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in this case indisputably the licence was created before 1st February, 1973,  the licensee  must, by the express terms of section 15A  of the  Act, continue  to be  a tenant  of  the landlord in respect of the premises in question.      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 amendments  in the  Act introduced simultaneously with section 15A of the 900 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  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 restricted  in   the  manner  submitted  on  behalf  of  the respondent, then  the apparent  scheme or  the  purpose  for introduction of  the amendment would be defeated at least to a large  section of  licensees, who  were contemplated to be protected, as the objects as noted before sought to do.      The  Indian  Easements  Act,  1882  defines  ’Licence’. Section 53  of the said Act stipulates that a licence may be granted by any one in the circumstances and to the extent to which  he   may  transfer  his  interests  in  the  property ’affected by  the licence’.  Licence is  a privilege  to  do something on the premises which otherwise would be unlawful. Licence is  a personal  privilege. See  B.M. Lall  v. Dunlop Rubber & Co. Ltd. & Ors., [1968] 1 SCR 23.      Shri Tarkunde  tried  to  urge  that  right  to  create licence was  coterminus with  a right  to transfer  interest though licence  itself was  not a transfer. We are unable to accept this  argument. The  aims and objects of the amending Act was  placed before  us in support of the contention that it was  to protect  the interest  of the  licensees  of  the landlord that the provisions of section 15A were introduced. But the  aims and  objects as  set out  hereinbefore, do not warrant such  a 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  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 901 given effect to, then it will defeat the purpose of the non- obstante 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; nothing  has been  shown to  warrant that such literal construction  should not  be given  effect  to.  The

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words of  a statute must prima facie be given their ordinary meaning. See  Nokes  v.  Doncaster  Amalgamated  Collieries, Ltd.,  [1940]  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  the contrary. In this case there is none.      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 occupation 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 emphasised by Baron Parke in Becks v. Smith, [1836] 2 M. & W. 191 at 195 in the construction of a statute  to adhere  to the  ordinary meaning  of the words used, and  to the  grammatical construction, unless that was 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.      In finding out the meaning of the expressions used, the courts must  find out  what is  legal, not what is right. It may not  be inappropriate  to refer  to the  observations of Burger, C.J.  in TVA v. Hill, U.S. Supreme Court Reports, 57 Lawyers’ Ed. 119 at 146 as follows:           "Our  individual   appraisal  of   the  wisdom  or           unwisdom  of   a  particular   course  consciously           selected by the Congress is to be put aside in the           process  of   interpreting  a  statute.  Once  the           meaning of  an  enactment  is  discerned  and  its           constitutionality determined, the judicial process           comes to  an end.  We do not sit as a committee of           review, nor are we vested 902           with the  power of veto. The lines ascribed to Sir           Thomas  More   by  Robert  Bolt  are  not  without           relevance here:           "The law, Roper, the law. I know what’s legal, not           what’s right.  And I’will  stick to what’s legal..           I’m not  God. The currents and eddies of right and           wrong, which  you find such plain-sailing, I can’t           navigate, I’m  no voyager.  But in the thickets of           the law,  oh there I’m a forester.. What would you           do? Cut  a great road 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  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)."      On the  other hand  it is  apparent that  this  literal construction and  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 referred to hereinbefore, it must be accepted that

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statutory tenant  was in  the same position as a contractual tenant until  the decree for eviction 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.      It was canvassed before us that the non-obstsnte clause was connected  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 from the power of the tenant not to create licence. The  construction placed  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 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 903 in some  particular Act  or in any law for the time being in force, or  in 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 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 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,  Board of  Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215-[1964] 4 SCR 280.      It   is    well    settled    that    the    expression ‘notwithstanding’ is  in  contradistinction  to  the  phrase ’subject to’,  the latter  conveying the idea of a provision yielding place  to another  provision or other provisions to which it  is made  subject. This  will be  clarified in  the instant case  by comparison of sub-section (1) of section 15 with sub-section (1) of section 15A. We are therefore unable to accept,  with respect,  the view  expressed by  the  Full Bench of  the Bombay  High Court as relied on by the learned single judge in the judgment under appeal.      In the  premises first  the  High  Court  exceeded  its jurisdiction in  interfering with  the finding of facts made by the  appellate bench of the Court of Small Causes for the reasons mentioned hereinbefore. Secondly, the High Court was in error  on the  construction of  the provisions of section 15A of the said Act. In the aforesaid view of the matter, we are unable  to 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 occupation  of a premises which was not less than a  room as  licensee on 1st February, 1973 would 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  ar 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.      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.

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904      In the  facts of this case, however, we direct that the parties shall . bear and pay their own costs. P.S.S.                                       Appeal allowed. 905