JUDGMENT

R. M. SAHAI, J.:—Can a statutory tenant create a licence? If the answer is in affirmative then can such licensee claim immunity from eviction in execution proceedings in view of S. 15A of the Bombay Rent Hotel and Lodging House Rates Control Act 57 of 1947 (hereinafter referred to as the Act)? These are questions which arise for consideration in this appeal directed against the judgment and order of the Bombay High Court.

2. What happened was that the landlord determined the tenancy of the contractual tenant in October 1966 and filed a suit for his eviction in 1967 which was decreed ex parte on 5th October 1973. In execution of the decree the licensee obstructed and claimed to be protected licensee under S. 15A of the Act. The objection was rejected by the executing and the appellate court. The appellate court found that even though the first licence was created in 1966 before determination of the tenancy for a period of six years but the second licence having been created in 1972, it was not necessary to examine the validity of the first, as second was created when contractual tenant had become statutory tenant therefore he was incapable of transferring any right or interest in favour of the licensee. The High Court did not disturb the finding that the licence was created in 1972 but it held that creation of licence by a statutory tenant was valid. Consequently the licensee was in occupation of the premises as licensee on the date the Bombay Rent Act was amended and was entitled to the benefit of S. 15A of the Act. For this reliance was placed on certain observations made by a Division Bench of that Court in Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari, AIR 1980 Bombay 341 to the following effect (para 14):

"On this point of initial presumption as to the subsisting incidence of the tenancy, we shall have to follow the ratio of Damadilals case AIR 1976 SC 2229 in preference to the decision in Anand Nivas case and shall have to proceed on the assumption that statutory tenant does ordinarily possess transferable interest in his tenancy ."

3. Who is a statutory tenant, what right or interest he can assign or transfer have been dealt by this Court in more than one decisions. In Anand Nivas Private Ltd. v. Anandji Kalyanjis Pedhi, AIR 1965 SC 414 a decision rendered under Bombay Rent Act the majority held, (para 27)

"A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone. Section 12(1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined."

In Jai Singh Morarji v. M/s. Sovani (P) Ltd., AIR 1973 SC 772 yet ano