TMI Blog1979 (9) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (referred to hereinafter as 'the Rent Act') was amended in the year 1959. The landlord again instituted two suits for possession against the tenant and the sub-tenant being Suit Nos. 218 and 219 both of 1961. Suit against the tenant-Pandya-was decreed and the landlord ultimately got possession of the first floor in execution of the decree on 7th July, 1964. The suit against the sub-tenant, Gopalkrishna, was, however, dismissed on 29th September, 1962. He thus himself became the tenant under Section 14 of the Rent Act. 2. Gopalkrishna died on 8th October, 1970. Before his death he assigned, his business of hotel along with the tenancy rights in the ground floor by an assignment deed dated 13-10-1969 in favour of the present plaintiff-respondent Pujari. The respondent thereupon instituted a declaratory Suit No. 351 of 1969 on 12-12-1969, before the death of the tenant of his having become the tenant of the 1st floor on the strength of the1 said assignment deed. This Suit, and Suit No. 273 of 1969 by the landlord against him and Gopalkrishna for enforcing his right of access from the ground floo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s right to assign his tenancy along with the assets of the business in terms of the proviso to Section 15(1) of the Rent Act, and the Government Notifications concerned thereunder. The learned Judge followed the ratio of Damadilal's case and found the ratio of Anand Nivas case to be irrelevant for two reasons. Firstly, that the reasoning therein was disapproved in Damadilal's case, and secondly, that the wording of Section 2 (i) and Section 14 of the M. P. Act and that of corresponding Section 5(11) and Section 15(1) of the Bombay Rent Act was similar. Kanade, J., however, found it difficult to ignore the ratio of Anand Nivas case directly dealing with Section 15 of the Bombay Rent Act, and to follow Damadilal's case dealing with the provisions of the M. P. Act. Hence this reference. 5. Mr. Rane's contention before us is threefold. Firstly, that the decision in Damadilal's case, dealing with the heritability of the statutory tenancy cannot have the effect of impairing the ratio in Anand Nivas case on the issue of transferability thereof. Secondly, that the decision in Anand Nivas case on Sections 12 and 15 of the Act on its wording and the scheme of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any transferable interest in the tenancy, his only right being to remain in possession on payment of rent and complying with other conditions of tenancy. 8. On the second point, Sarkar, J., found, the wording of Section 13(1)(e) of the Rent Act on par with the wording of Section 4 (1) (h) of the English Act, and an implied authority therein for the statutory tenant to sublet as held in English case relied on by him. Shah, J., on his interpretation of Section 12(1) found statutory tenant to have no transferable interest in the tenancy and distinguished the English cases cited before him and relied on by Sarkar, J., on the basis of the wording of Section 15(1) of English enactment enabling the statutory tenant to enforce the beneficial terms of tenancy agreement as against the wording of Section 12(1) requiring him merely to carry out the terms and conditions thereof. The learned Judge then took notice of the width of the inclusive definition of the word 'tenant' under Section 5(11) of the Act and indicated how it depended on the context whether reference in any section was intended to the statutory or contractual tenant. On this test, the word tenant in Section 12(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acts and not as being entitled to a tenancy (Underlin ing supplied). The learned Judge then made the following observations in para 11 of the judgment: The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute . The learned Judge also observed: Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. 11. The learned Judge then examined the relevant provisions of the Madhya Pradesh Accommodation Control Act, and relying on the wording of Sec 2 (i) and Section 14 thereof, held that ordinary incidence of heritability continued to attach to the statutory tenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any statutory tenant's interest in the tenancy, Sarkar, J., proceeded on the hypothesis that the power of transfer of even such interest required authority of law. The determination of true scope and import of Section 13(1)(e) and consequently of Sections 12, 14 and 15 appear to have been assumed to be the main point in controversy in that case and the decision on the first point indicating conflict on a narrow margin appears to have been treated as mere observations. This may have prompted the later Bench to dispense with any need to refer the point to a larger Bench. 14. Thirdly, the difference of opinion, though irreconcilable, centres round a very narrow margin namely whether initial presumption should, be (1) of the statutory tenant ceasing to have no such estate, or interest or property with the end of his contractual tenancy, as held by Shah, J., or (2) of his possessing such estate, etc., as an incidence of tenancy till the statute concerned provides to the contrary. Legislative competency to clothe even such statutory tenancy with the attribute of transfera bility is not doubted even in Anand Nivas case . Provisions of the English enactment to that effect a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on the expiry or termination of lease, as Section 12(1) in the view of the Supreme Court prevented him from enforcing any rights or benefits, contrary to the corresponding provision in the English Act. If express authority was found to have become so ineffective, mere incidence of tenancy, adverted to in Damadilal's case cannot be assumed to have any better effect. 17. This decision as to the scope of Section 12(1) of the Bombay Rent Act based on its wording and the context, obviously runs counter to the assumed ordinary incidence of transferability of the statutory tenancy. This, in other words, is a clear provision indicating legislative intent to the contrary to rob the tenancy of this attribute or incidence in terms of the requirements of the ratio of Damadilal's case . Looked at from this point of view there is no conflict in decisions of these two cases on this point. Ratio of Anand Nivas case still holds good and binding. 18. Theory of the suggested implied statutory authority to sublet was rejected also by holding that Section 13(1)(e) and Sections 14 and 15 were applicable to contractual tenants alone. The learned Judge observed as follows in this cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to do so when larger Bench had affirmed it. The ratio of this part of the majority Judgment in Anand Nivas case remained untouched by the judgment in Damadilal's case. Firstly, it is a direct judgment on the relevant sections of the Bombay Rent Act. Secondly, though the relevant definition part of Section 2 (1) of the M. P. enactment is word to word identical with Section 5(11)(b) of the Bombay Rent Act, the wording of Section 14 of the former is slightly different from the wording of Section 15 of the latter. Thirdly, there is no reference in Damadi-lal's case to any provision corresponding to Section 12(1) of the Bombay Bent Act. The view in Anand Nivas case as to statutory tenancy being not transferable, is based mainly on the wording of this section, independent of its view as to the ordinary incidence of any statutory tenancy. Hargovind Dharamsey case (supra) on which Mr. Ajit Shah very vehemently relied, does not take note of these vital factors. Observation therein about dissenting view of Sarkar, J., being approved in Damadi-lal's case is not borne out by the text of the said case. This interpretation of Section 15(1) is integrally connected with the interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to a certain extent, the amendment merely clarifying legislative intent as to the priority for the family members residing with the tenant. The character of the provision on this point remains unaltered. 23. Mr. Shah then contends that in application of Section 15 of the Act to the statutory tenant may at best prevent the plaintiff from availing of the proviso. It still cannot prevent him from relying on the ordinary incidence of tenancy adverted to in Damadilal's case once his transferee could be held as tenant, within the wide inclusive definition under Section 5(11)(b) of the Rent Act, and prohibitive provision of Section 15(1) is out of the way. Precisely this very contention was raised in Anand Nivas case and was accepted by Sarkar, J., but rejected by Shah, J., speaking for the majority, on the ground that Section 12, under which possession of the statutory tenant is protected itself prohibits such transfer. Transferee being a tenant under the definition is outweighed by the prohibition against transfers traced judicially in Section 12(1) of the Rent Act. This contention also is thus liable to be rejected. 24. We thus find ourselves in agreement with the conclusi ..... 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