TMI Blog1985 (10) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against this decision was dismissed on 19-3-1979. The decree-holders have filed Writ Petition No. 76 of 1980 against it. 2. In Writ Petition No. 3575 of 1982 an expert decree for possession was passed on 17-12-1978 under the Bombay Rent Act. The execution of that decree was obstructed. The decree-holders took out obstructionist notice. The contention of the obstructionists (the petitioners in the writ petition) was that they had been in possession of the rented premises since October 1968 as licensees and that they were protected under S. 15A of the Bombay Rent Act as the said license was subsisting on 1-2-1973. The Small Cause Court found that the defendant in the eviction suit was a statutory tenant and that he could not have created any valid license in favour of the obstructionists. The obstruction was, therefore, ordered to be removed. the petitioners' appeal to the Appellate Bench was dismissed. The petitioners filed Suit No. 6220 of 1975 for declaration that they were the tenants on the basis of their erstwhile rights under the license deed. that suit was dismissed. Appeal No. 334 of 1982 was also dismissed. Hence, the petitioners filed Writ Petition No. 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of cases. In some cases the point was as to whether such a tenancy was heritable while in other matters the question about the transferability of such tenancy was heritable while in other matters the question about the transferability of such tenancy rights was involved. Initially we propose to note these various decision and the principles laid down therein. The first case is of Anand Nivas Pvt. Ltd. v. Anandji Kalyaniji's Pedhi, reported in [1964]4SCR892 . It was a case under the Bombay Rent Act. A lease dt. Mar. 5, 1950 for a period of five years was created in favour of Maniklal. After the expiry of the lease a suit was filed by the landlord for possession. That suit was decreed on June 22, 1960. The decree was put in execution. Andad Nivas Pvt. Ltd. (hereinafter referred to as 'the Company') claimed sub- tenancy from Maniklal after 1955, i.e. after Maniklal's tenancy was terminated by efflux of time. The Company filed a suit for declaration of its rights as a sub-tenant. An application was made in that suit for an injunction restraining the landlord-decree-holder from executing the decree. the trial court dismissed the application. The matter went up to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and a right to transfer the same to another . The term 'tenant' had been defined under S. 5(11) of the Bombay Rent Act. It is an inclusive definition. In addition, to the contractual tenant, the definition also provided in sub-cl. (b) that a person remaining, after the determination of the lease, in possession with or without the assent of the landlord would be a tenant. Thus, the definition coveys a plurality of meaning, so as to include a contractual tenant as well as a statutory tenant. Unlawful subletting by the tenant gives a ground to the landlord for eviction. This is provided by S. 13(1)(c). Section 15 had made a provision that tenant (subject to any contract to the contrary) would not be able to sublet, transfer or assign his interest in the rented premises. The Supreme Court considered these and other provisions and held that they deal with contractual tenants and not with statutory tenants. It is with this reasoning that the Supreme Court held that a statutory tenant has no interest in the land and that he has mere right to possess which is incapable of being transferred. 6. Similar view has been taken by the Supreme Court in the case of J. C. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dential premises are concerned and that such legal representatives (staying with the tenant) could not get any tenancy rights in respect of the shop premises cannot claim any tenancy right. A decree for possession was, therefore, confirmed. thus, the above decisions have taken a view that the statutory tenant has no estate or interest in the leasehold property and that the personal right to possession is neither heritable nor transferable. 8. However, another set of the Supreme Court cases has taken a somewhat different view. The first case of this category is that of damadilal v. Parashram, reported in AIR 1976 Dv 2229. It was a case under Madhya Pradesh Accommodation Control Act. Under S. 12 no suit can be filed against the tenant except on the grounds mentioned therein, such as default in payment of rent, bona fide requirement etc. The landlord filed a suit. It was dismissed. The appeal was allowed and thus there was a decree for possession. the tenant filed second appeal in the High Court. He died during the pendency of the appeal. His legal representatives were brought on record. the High Court allowed this second appeal. In this way the plaintiff's suit stood dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s definition has been considered to equate statutory tenant with contractual tenant. In para 12 the Supreme Court has observed as follows : The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must, therefore, be the same unless any provisions of the Act conveyed a contrary intention. Thereafter, S. 14 of the Madhya Pradesh Accommodation Control Act was considered. It provides that the tenant shall not sublet, assign without the previous assent of the landlord. It was then held as follows : There is nothing to suggest that this section does not apply to all tenants as defined in S. 2(I). A contractual tenant has an estate or interest in premises from which he caves on what he gives to the sub-tenant. Section 14 read with S. 2(I) makes it clear that the so-called statutory tenant has the right to sublet in common with a contractual tenant and this is because he also has an interest in the premises occupied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law. It is material to note that in the above decision of the Supreme court it was held that in view of the extended definition of the word 'tenant' it would not be permissible for the landlord to snap the relationship with the tenant merely by terminating the tenancy. This would be more so when none of the provisions of the rent legislation has prescribed any contrary position. 9. In our opinion, the matter has now been set at rest by the recent decision of the larger Bench of the Supreme Court in the case of Gian Devi v. Jeevan Kumar, reported in AIR1985SC796 . It was a case under the Delhi Ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed in all the States and Union territories with a view to avoid hardships to the tenants as the landlords were in a position to exploit the situation arising due to scarcity of accommodation. The very purpose of all the Rent Acts has been discussed in para 24 in the following words : Though provisions of all the Rent Control Acts are not uniform, the common feature of all Rent Control Legislations is that a contractual tenant on the termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not liable to be evicted as a matter of course........... Para 25 of the judgment clearly shows that the larger Bench accepted the principles laid down in Damadilal's case AIR1976SC2229 (supra). Section 2(i) of the Madhya Pradesh Accommodation Control Act and S. 2(1) of the Delhi Rent Control Act have both defined the term 'tenant' to mean, amongst other persons, a tenant continuing in possession after the termination of the tenancy. After taking into account such and similar provisions of the Rent legislation this larger Bench has observed in para 25 as follows : .................it cannot be assumed that with the determinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. Accordingly, it would be clear that the tenancy rights of a contractual tenant are not evaporated by mere termination of such tenancy. 10. Consequently, a statutory tenant would continue to possess the same, rights and would be under the same obligations which were available during the subsistence of the contractual tenancy. Of course, the extent of such rights and obligations would depend upon the various provisions of the Rent legislation. the Bombay Rent Act contain some provisions similar to those that are available in the Madhya Pradesh Accommodation Control Act and Delhi Rent Control Act. We are not shown any provision from the Bombay Rent Act which would suggest that a statutory tenant has no heritable interest. As a matter of fact, S. 5(11)(c) has specifically provided the extent of such heritable interest and consequently the interest of the statutory tenant would be so heritable. 11. The question whether a statutory tenant has a transferable interest or not would depend upon the terms of the contractu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition of sub-sec. (2) to S. 15 of the Bombay Rent Act does not affect the above position. Under S. 15, a transfer including a subletting has been prohibited from the beginning. However, by adding sub-sec. (2). the Legislature has provided that sub-sec. (1) would not have any effect on sub-leases, assignments or transfers by a tenant before the commencement of the amending Ordinance of 1959. the amendment, therefore, validates only such sub-leases, assignments or transfers as are effected prior to that Ordinance. Thus, this provision would not be relevant for finding out as to whether a contractual tenant or a statutory tenant can transfer his leasehold interest if the tenancy agreement specifically permits such transfer. 14. In view of the legal position enunciated in Gian Devi's case AIR1985SC796 , it would not be necessary to discuss in detail the various decisions of this Court taking different view, Similarly ,the referring judgment of the division Bench also does not require detailed discussion. However ,we would briefly mention them. A learned single Judge of this Court in the case of Hargovind Dharamsey Co. v. Ruby Co., AIR1979Bom89 , held that a statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual tenancy has been determined enjoys the same position and is entitled to protection against eviction. We have already reproduced the relevant portions from the other paragraphs as also the contentions mentioned in para 36. It is thus clear that the distinction between contractual tenant and statutory tenant made by the Division Bench in Vasant Tatoba would not be entirely correct and to that extent the law laid down in that decision would not be correct. A statutory tenant can transfer his interest but only if he is category 'A' tenant as mentioned in para 12 above. 15. Up til now we have discussed the question as to whether a statutory tenant can transfer his interest. The point that remains to be decided is as to whether such a tenant can grant a license of the rented premises in favour of another person. this aspect has now become important after the amending Act of 1973, By this amendment is S. 5 sub-sec. (4A) is added whereby the terms licensee and licensor have been defined. Licensee means a person who is in occupation of the premises under a subsisting agreement of licence given for a license fee (emphasis is ours). The definition further states as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther a person claiming protection under S. 15A was a licensee under the Act. Of course, in addition it was also necessary to find out as to whether the licensee complies with the rest of the conditions mentioned in S. 5(4A) and S. 15A of the Bombay rent Act. Section 62 of the Easements Act deals with revocation of license. stood revoked long before Feb. 1. 1973. Consequently, the Supreme Court rejected the claim of the person seeking protection under S. 15A of the Bombay Rent Act. 17. It would thus be clear that there must be a valid license and the same must be subsisting on the material date. Section 52 of the Easements Act has defined the term license . It envisages a grant of a license of do something upon the immovable property of the grantor. Section 53. however, would have an important bearing. It reads as follows : 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. This provision thus provides that one who has a transferable interest in an immovable property can to the extent thereof grant a license in respect of it. In other words, a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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