# CHANDAVARKAR SITA RATNA RAO v. ASHALATA S. GURAM

- **Citation:** [1986] 3 S.C.R. 866
- **Court:** Supreme Court of India
- **Decided:** 1986-09-25
- **Bench:** Sabyasachi Mukharji, K.N. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandavarkar-sita-ratna-rao-v-ashalata-s-guram-9303
- **Pages:** 39

## Headnote

Bombay Rents, Hotel and Lodging Rates Control Act, 1947; ss.
14(2) & 15A-Whether and how far statutory tenant governed by the
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Act could have created a valid licence before 1st February, 1973.
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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--{Jrammatical construction ordinarily to be resorted to.
Transfer of Property Act, 1882, s. 108(j)-Lease-Transfer of
interest-Nature of.
Indian Easement Act, 1882, ss. 52 & 53: 'Licence'-Nature of.
Words and Phrases
'Notwithstanding'-' subject to'-Meaning of.
Section ISA(l) of the Bombay Rents, .. Hotel and Lodging House
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Rates Control Act, 1947 inserted by s. 14 of the Amending Act of 1973
provides that notwithstanding anything contained elsewhere in that Act
or anything contrary in any other law for time being in fore~, or in any
contract, where any person was on the lst day of February 1973 in
occupation of any premises, or any part thereof which is not less than a
room, as a licensee he shall on that date be deemed to have become, for
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the pnrposes of that Act, the tenant of the landlord in respect of the
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SITA RATNA RAOv. ASHALATAS. GURAM
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. ·ISA is
deemed to be a tenant, shall, subject to the·provisions of the Act be
deemed to become the tenant of the landlord, on the terms and 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. Th.e 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 'renioval of the obstruction in the executing court. In
the reply filed by the appellant in July 1980 it was stated that she was in
occupation of the whole premises as a licensee, but did not specify any
date of the agreement nor did she produce any copy thereof. She pro-
·, duced the agreement of leave and licence when her deposition 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

## Text

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CHANDAVARKAR SITA RATNA RAO
v.
ASHALATA S. GURAM
SEPTEMBER 25, 1986
[SABYASACHI MUKHARJI AND K.N. SINGH, JJ.)
Bombay Rents, Hotel and Lodging Rates Control Act, 1947; ss.
14(2) & 15A-Whether and how far statutory tenant governed by the
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Act could have created a valid licence before 1st February, 1973.
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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--{Jrammatical construction ordinarily to be resorted to.
Transfer of Property Act, 1882, s. 108(j)-Lease-Transfer of
interest-Nature of.
Indian Easement Act, 1882, ss. 52 & 53: 'Licence'-Nature of.
Words and Phrases
'Notwithstanding'-' subject to'-Meaning of.
Section ISA(l) of the Bombay Rents, .. Hotel and Lodging House
:J
Rates Control Act, 1947 inserted by s. 14 of the Amending Act of 1973
provides that notwithstanding anything contained elsewhere in that Act
or anything contrary in any other law for time being in fore~, or in any
contract, where any person was on the lst day of February 1973 in
occupation of any premises, or any part thereof which is not less than a
room, as a licensee he shall on that date be deemed to have become, for
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the pnrposes of that Act, the tenant of the landlord in respect of the
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SITA RATNA RAOv. ASHALATAS. GURAM
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. ·ISA is
deemed to be a tenant, shall, subject to the·provisions of the Act be
deemed to become the tenant of the landlord, on the terms and 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. Th.e 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 'renioval of the obstruction in the executing court. In
the reply filed by the appellant in July 1980 it was stated that she was in
occupation of the whole premises as a licensee, but did not specify any
date of the agreement nor did she produce any copy thereof. She pro-
·, duced the agreement of leave and licence when her deposition 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. ISA of the Act. Being of the view that in law
after the termination of the tenancy of the tenaut there was no capacity
left in the tenant. to grant the leave and licence, it held that there was no
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[1986] 3 S.C.R.
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subsisting licence in law in favour of the appellant and as such she was
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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
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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
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I964-6S continuously as a licensee. It did not accept the contention that
the tenant was in exclusive possession. It held that the appellant was in
possession on 1st February, I973, and therefore entitled to protection
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under s. ISA of the Act.
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A proceeding under Art. 227 of the Constitution was thereafter
moved by the respondent-landlady before the High Court. The High
Court took the view that the obstruction was raised by the appellant at
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the instance of the judgment-debtor tenant, that the executing court
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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 I968 or thereabout the judgment-debtor-tenant as
also the appellant-obstructionist had been making use of the premises
for diverse purposes and it could not be said that the appellant w:is in
exclusive possession in her own right, that mere occupation was
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different from possession and was not enough to spell out a licence, and
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that to get the benefit of s. ISA of the Act it had to be established that
there was a valid licence subsisting on the material date, i.e., the date on
which s. ISA was incorporated. It noted that the judgment-debtor was a
statutory tenant inasmuch as the decree for ejectment had been passed
against him and that there was no case that the judgment debtor under
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the original terms of the lease between him and the respondent was
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entitled to create a sub-tenancy or a licence in respect of the premises or
any part thereof. Therefore, it could not be said that the appellant was a "
. licensee and had acquired protection under s. ISA of the Act. It was the
judgment-debtor who was in possession and who allowed the appellant
to continue for all these years. Relying on a Full Bench decision of the
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High Court in Ratanlal Chandiprasad v. Maniram Darkhan (W.P. No.
76 of I980 decided on 18th October, 1985) it held that since in the
instant case in the terms of agreement.of sub-lease, there was no right to
create licence in the tenant, the tenant could not have created a valid
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ticence in favour of the appellant.
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In this appeal by special leave it was contended for the appellant
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SITA RA TNA RAO v. ASH ALA TA S. GURAM
869
that the High Court was in error in interfering with the findings recorded hy the appellants bench of the Court of Small Causes in an
application under Art. 227 of the Constitution.
For the respondent it was contended that under s. 15(1) read with
s. 15(2) of the Act a tenant was not entitled to create any sub-tenancy or
to transfer his interest in the premises after 21st May, 1959 unless the
con.ract of tenancy positively allowed to do so, that a statutory tenant
continned to be possessed of the same rights and was subject to the same
disabilities as a contractual tenant, that under s. 53 of the Indian 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-ohstante
clause in s. 15-A of the Act which protected the operative part of the
section did not validate a licence which was invalid.
Allowing the appeal, the Court,
HELD:l.1 The High Court exceeded its jurisdiction in interfering with the finding of facts made by the Appellate Court. l903E]
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 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 ih law could have come to such a finding or there is any mis-dir.ection in law or a view of fact has been taken
in the teeth of preponderance of evidence or the finding is not based on
any material evidence or it has resulted in manifest injustice. Except to
that limited extent the High Court has no jurisdiction. l883G-H; 884AI
1. 3 The Courts must not use the power under Article 227 as a
cloak of an appeal in disguise. The writ of Certiorari does not lie in
order to bring up an order or decision for rehearing of the issues raised
in the proceedings. l883D-E]
In the instant case, both. the trial court and the appellate court '
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870
SUPREME COURT REPORTS
11986] 3 S.C.R.
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 he said that it was a
concocted story and concluded that there was a licence. Though there
were discr~pancies in the evidence of the obstructionists and there was
inconsistency in the conduct of the judgment-debtor in resisting the
suit, yet all these were for the Court's finding facts. The very fact that
the trial court came to one conclusion and the appellate court came to
another conclusion in respect of certain aspects was an indication of the
position that two views were possible. In preferring one view to another
of factnal appreciation' of evidence, the High Court transgressed its
limits of jurisdiction under Article 227 of the Constitution. 18848-C]
D.N. Banerji v. P.R. Mukharjee & Ors., 11953] SCR 302 at 305;
Babhutmal Raichand Oswal v. Laxmibai R. Tarte and another, AIR
1975 SC 1297; R. v. Nothrumberland Compensation Appeal Tribunal,
Ex. Parle Shaw, [1952] (1) AU England Law Reports 122 at 128;
Harbans Lal v. Jagmohan Saran,
[1985] 4 SCC 333; Trimbak
Gangadhar Telang and Another v. Ram Chandra Ganesh Bhide and
Others, [1977] 2 SCC 437; and Smt. M.M. Amonkar and Others v. Dr.
S.A. Johari, I 1984] 2 SCC 354 referred to.
2 .1 The High Court was in error on the construction of the provisions of s. ISA of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947. [903E-F]
2.2 All licensees created by landlords or by the tenants before 1st
January, 1973 and who were in actual occupation of premises, which
was not less than a room, would he the licensees of the landlord or
tenant and whether there be any term in the original agreement of
tenancy permitting creation of such tenapcy or licences or not, they would
become tenants under the Act. l903F-G]
2.3 Licence is a personal privilege to do something on a premises
which otherwise would be unlawful. It is not an interest in property but
purely a personal right. Grant of licence does not en tail transfer of
interest, nor create any interest in property. A tenant protected by
statute is entitled to create a licence. He is in the same position as a
contractual tenant until the decree for eviction is passed against him.
The rights of a contractual tenant include the right to create licence,
even if he is the transferor of interest. Therefore, until a decree of
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SITARATNARAOv.ASHALATAS.GURAM.
871
eviction was passed against the tenant he could have created a licence
before !st February, 1973. [899F-G]
Waman Shrinivas Kini v. Ratilal Bhagwandas & Co., [1959] 2
Suppl. SCR 217; V. Dhanapal Chettiar v. Yesodai Ammal, [1980] I
SCR 334 at 340; Gian Devi Anand v. Jeevan Kumar and Others, [ 1985]
2 SCC 683 at 686-687 and 707; Anand Nivas (Private) Ltd. v. Anandji
Kalyanji Podhi & Ors., [1964] 4 SCR 892; Jagdish Chander Chatterjee &
Ors. v. Sri Kishan & Anr., [1973] I SCR 850; Damadilal and Others
v. Parashram and Others, [1976] Supp. SCR 645; Ganpat Ladha v.
~- Sashikant Vishnu Shinde, [1978] 3 SCR 198; Ludhichem Agencies
.,, Etc. v. Ahmed R.V. Peer Mohamed and Anr., [1982] I SCR 712;
B.M. Lall v. Dunlop Rubber & Co. Ltd. & Ors., [1968] I SCR 23;
Vasant v. Dikkava. AIR 1980 Bombay 341; and C.K. Thakur v. N.L.
Shelly (First Appeal No. 754 of 1978) Bombay High Court, referred
to.
2.4 It cannot be said that s. !SA was enacted to protect the 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
fto have become for the purposes of the Act the tenant of the landlord.
Further, s. ISA read with s. 14(2) of the Act make it apparent that
where the interest of a licensor, who i's a tenant of any premises," is
determined for any reason, the licensee, who bys. ISA is deemed to be a
tenant, shall, subject to the provisions of the said Act be deemed to be a
tenant of the landlord, on the terms and conditions of the agreement
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consistent with the provisions of the Act. [900F-H]
· 2.S. l It is not possible to accept the view that the non-obstante
clause in s. !SA, which was connected with the operative part of the
.section, that is, the licensee shall on the date specified be deemed to
have become a tenant, does not detract from the power of the tenant not
to create licence. Such a construction would curtail the language of the
section and render the amendment meaningless. Unless one is 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,
[ 19S3] SCR I; and Dominion of India & Another v. Shribai A. Irani &
Another, [ 19SS] I SCR 206 at 231 referred to.
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SUPREME COURT REPORTS
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2.5.2 If the view that a statutory tenant, whose contractual te-
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nancy did not specifically authorise him to sublet or grant lease, could
not create a valid licence before coming into operation of the amendment on 1st February, 1973 were to prevail then it will defeat the
purpose of the non-obstaute clause ins. ISA of the Act. [90 JAJ
2.5.3 The expression 'uotwithstaudiug' is iu contradistinction to
the phrase 'subject to', the latter conveying the idea of a provision
yielding place to .another provision or other provisions to which it is
made subject. A clause beginning with the expression 'notwithstanding
anything contained in this Act or in some particular provision in the Act
or in some particular Act or in any law for the time being in force, or in
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. [903A-D]
In the instant case, the non-obstante clause ins. ISA 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, Trivand,rwn & Anr., AIR 1964 SC 207 at 215 [1964] 4 SCR
280.
2.6 In fmding out the meaning of the expressions used the courts
must find out what is legal, not what is right. The rule of construction of
a statute is to give effect to the intention of the legislature, to be collected from the statute itself, and not to amend what is actually expressed. The words of the statute where the language is plain must prima
facie. be given their ordinary meaning. Where the grammatical construction is clear aud manifest and without doubt that construction
ought to prevail unless there are some strong and obvious reasons to the
contrary or it led to any manifest absurdity or repugnance in which case
the language may be varied or modified so as to avoid inconvenience,
but no further. [901A-C; E-G]
SITARATNA RAO v. ASHALATA S. GIJRAM [MIJKHARJI, J.]
873
In the instant case, nothing has been shown to warrant that such
literal construction should not be given effect to. Under s. ISA all
licensees who were there on 1st February, 1973 were to be protected
and subsequent licences were made illegal, as was done in the case of
sub-tenancy from 19S9. It was intended to protect very large number of
legitimate persons in occupation and also to eliminate future mischief.
Such a literal construction and reading of the statute 111' a whole is in
consonance with the mischief to be avoided. [901D I
Since in the instant case, the licence was created before !st
February, 1973 the licensee must, therefore, by the express terms of s.
ISA of the Act, continue to be a tenant of the landlord in respect of the
premises in question. [903F -GI
Nokes v.·Doncaster Amalgamated"Col/ieries, 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 19S and TVA v. Hill, U.S. Supreme Court Reports, 57 Lawyers' Ed.
119 at 146; and Halsbury's Laws of England, 4th Ed., Vol. 44, para
856, referred to.
Full Bench decision of Bombay High Court in R. C. Jalan v. R.
Darkhan, W.P. No. 76of1980 dated 18th October, 1985 overruled.
3. When one person grants to another, or to a definite number of
. 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 pnlawful, and such right does not amount to an easement
or an interest in the property, such right is called a licence.
, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 840
of 1986
·
From the Judgment and Order dated 20.12.1985 of the Bombay
High Court in W.P. No. 1130of1984.
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Dr. Y.S. Chitale, Uday Lalit and P.H. Parekh for the Appellant.
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V.M. Tarkunde and Mrs. M. Ka.ranjawala for the Respondent.
The Judgment of the Court was delivered by
SABY ASA CHI MUKHARJI, J. The following ~wo questions arise
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SUPREME CO_URT REPORTS
[1986] 3 S.C.R.
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in this appeal by special leave from the judgment and order of the
learned single judge, Bombay High Court dated 20th December, 1985:
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(i) how far can the High Court in exercise of the power ·
under the writ jurisdiction under Article 227 of the Constitution inierfere 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, Shrj S .P. Rao and
the appellant herein i6 respect of the premises being the entire flat.
According to the respondent land-lady this is an ante document
created for the purpose of the present obstructionist proceedings out
of which the present appeal arises. In 1970, the tenancy of Shri S. P.
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 carejaker of
the premises and was herself staying elsewhere.
It was highlighted before us that she did not at that time rely on
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SITARATNA RAOv_ ASHALATA S. GURAM [MUKHARJJ,J_[
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
tena~t, Shri S.P. Rao gave evidence that he was in occupation of a part
of the premises and that he required the premises for his residence as
well as business.
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 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 ah 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 pres'ent 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. 'Ibe appellant produced the agreement of leave and licence
- when her deposition commenced before the trial judge on 8th July,
1981. The trial judge on 25th February, 1983 allowed the respondent -
landlady's application and ordered
remo~ai of the appellant's
obstruction.
However, on 12th January, 1984, the appellate bench of the
Bombay Small Causes Court allowed the appeal filed by the present
appellant and discharged the obstructionisi notice. In a Writ Petition
filed by the respondent landlady, the High Court on 20th December,
1985 set aside the judgment a';id order of the Appellate Bench of the
Small Causes Court and restored the order of the Executing Court.
The High Court set aside the factual findings that the<e was a valid
licence at the time of the coming into operation of Section 15A of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(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 bad been given a specific right to
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[1986] 3 S.C. R.
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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
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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
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Small Causes in his decision on 25th March, 1983 has discussed the
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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.
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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
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landlady herein drew our attention to the relevant evidence and the
observations of the learned trial judge as well as the appellate bench of
the Court of Small Causes and the entire course of conduct of the
present respondent to emphasise that the appellant's case was con-
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cocted story and that the appellant was not in possession of the pre-
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mises in question by virtue of any valid licence that the agreement
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between the obstructionist appellant and the tenant was not subsisting
on 1st February, 1973. It was a document brought about subsequent-
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ly and that is why, Mr. Tarkunde asserts, it was not produced in the
first instance as has been noted before.
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It was noted by the learned trial judge in the first Court trying
the obstructionist ·notice that in reply to the obstructionist's applicalion 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
rpresent Paper Book. The document is on a non-Judicial Stamp paper
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and the stamps had been purchased by Malhotra & Kapoor. It was
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SITA RATN('\ RAO v. ASHALATA S. GURAM [MUKHARJI, J.l
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 !st 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. JOO per
month. This, Mr. Tarkunde submitted, was an incongruity which
falsified the truth of the assertion now sought to be made in support of
the appellant. The Trial Court examined all these and the oral 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. 111e Trial Court noted the incongruity of the
situation of th~ difference between the rent which was Rs. 122 payable
by the tenant and the licence fee receivable by the tenant which was
Rs. JOO. The Trial Court therefore observed that there was no genuine
agreement between obstructionist, the appellant herein and the tenant
as contained in Ex. 'A'. The Trial Court, however, came to the 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. l in the suit
and that the appellant was residing in a flat at Sleater Road or Grant
Road from 1952 to 1956 with her aunt but from 1964-65 she started
occupying the said disputed premises. The evidence of the tenant was
also examined. The court dter discussing all the evidence came to the
conclusion that the appellant was in exclusive possession of the said
pranises of not less than a room on !st February, 1973. Therefore, as
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such, according to the Trial Court, there was some consitleration, and
prima facie the appellant came within the provisions of section 15A of
the Act. The Trial Court, however, on authorities came to the 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
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such the appellant was not entitled to protection. In that view of the
matter, the Trial Court observed that there was no subsisting licence in
law in favour of the appellant and as such it was not entitled to protec-
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tion 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 1 -
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Court, Bombay, there was an appeal before the Appellate Bench of
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the said Court.
After reiterating the facts and the deposition and discussing the
revidence and noting that the appellant was in visiting terms with the
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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 pr,emises was congested, she thought it advis-
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able to shift to the suit premises where she could reside with some
comfort. The Court concluded that this can reasonably be said that
there ·was a licence and not a lease. The Court noted that it was never
the intention of the tenant to give the premises permanently to the
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appellant. Electricity bills from 1969 to 1982 were produced in favour
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of the appellant as Ex. Cl and CZ. Certain postal correspondence
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which she had received in the said premises were also produced. The
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Appellate Bench noted that an attempt had been made to show that
Ex. A was prepared subsequently but according to the appellate bench
fthat attempt had not succeeded.
The appellate bench after discussing all the facts including instalG
lation 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 t964-65 continuously as a licensee. The Appellate Court did not accept that the tenant
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was in exclusive possession. The Bench examined the applicability of
section 15A of the said Act. The Appellate Court came to the concluH
sion that it was clearly established that the appellant was in possession
SITA RATNA RAO v. ASHALATA S. GURAM [MUKHARJI, J.[
879
,i on ]st February, 1973 and in view of some of the decisions then preA
vailing in the Bombay High Court came to the conclusion that the
appellant was entitled to protection under section 15A of the Act. The'
order of the trial judge was therefore set aside and the obstructionist
notice was discharged.
In respect of the said decision a proceeding under article 227 of
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the' Constitution was moved before the Bombay High Court. Out of
the judgment of the High Court in that application the present appeal
arises.
~ In the judgment under appealthe High Court referred to the
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facts as noted in the judgment, and Dr. Chitale on behalf of the appelc
!ant urged that the High Court was grossly in error in interfering with
the findings recorded by the appellate bench of the Court of Small
---( Causes in an application under article 227 of the Constitution. On the
other hand Mr. Tarkunde emphasised that the findings properly read
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would indicate that the tenant was in possession of the premises in
question and that the appellant was setting up an inconsistent and a
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false story ill order to attract the benefit of section 15A of the said Act.
The learned single judge of the Bombay High Court was of the view
that executing court was right in rejec.ting the stand taken by the
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obstructionist. The High Court came to ·the conclusion that the obstruction was raised by the appellant at· the instance of the judgmentE
debtor of the tenant and as such _the respondent herein was entitled to
possession and obstruction removed. The single learned judge of the
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High Court noted the ground that the other grounds were given up
i.e., subletting and bona fide and reasonable requirement. According
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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
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learned judge discussed the evidence about the application for tele-
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phone etc. and also noted Ex. A and the evidence as to his occasional
stay with his friends or in a hotal. About Ex. 'A' the Court did not
accept the version that it was extended from time to tiine and that the
appellant was continuing in possession by virtue of the agreement as it .
was for a short duration. On the other hand, the learned judge came to
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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
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mentioned therein. The learned judge came to the finding that since at
least 1968 or thereabou(s the judgment-debtor-tenant as also the ap-
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pellant obstructionist had been making use of the premises for diverse
purpose and it could not be said that the appellant was in exclusive
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possession in her own right. Furthermore, the Court was of the view
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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,
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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 ISA of the said Act could not be sustained on the basis '~
of the above evidence, according to the learned judge. All that could
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be said was that the appellant was allowed to reside in the suit pemises
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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 r
Court. The High Court further observed that mere occupation was
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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 e.xamined the question whether in law the appellant cpuld
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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 ;t
have created a valid licence before coming into operation of amendF
ment by 15A of the said Act on 1st February, 1973. The learned single
judge of the High Court noted that the judgment-debtor was a statu-
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tory tenant inasmuch as tile decree for e jcctment had been passed
against him. There was no case that the judgment debtor, under the
original terms of the lease between him and the respondent was enG
titled 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
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section 15A was incorporated. After noting the judgment of the full
Bench •vhich we shall separately refer to, the High Court noted the
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order of the fuil Bench that there were two categories, namely (A) a
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SITARATNA RAO v. ASHALATA S. GURAM [MUKHARJI, J.]
881
tenant who, under the tenancy agreemeQt was specifically entitled to
sublease his interest (for short, "category 'A' tenant") and another
category 'B' noted as follows:
(B) a tenant who under the tenancy agreement is not so
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ment is silent about it (for short, "category 'B' tenant").
and therefore in view of that decision the learned single judge denied
relief to the appellant under section 15A of the said Act. In the pre-
~ mises the order of the appellate Court of Small Causes was set aside
1 and warrant of possession was issued with a direction to remove the
i. appellant from the premises in question.
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This appeal challenges the said judgment and order. As
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. mentioned'hereinbefore two questions require consideration-how far
and to what extent in exercise of its jurisdiction under article 226 or
t 227 of the ..