Jaisingh Morarji and ors. Vs. Sovani Pvt. Ltd. and ors. - Court Judgment

Excerpt:
- government contracts/tenders: [l.s. panta & b. sudershan reddy, jj] tender process - power of state /its instrumentalities to not accept highest bid (or lowest bid, as the case may be) when available - held, a tender is an offer. it is something which invites and is communicated to notify acceptance. it must be unconditional, must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. however, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience f any particular person with a view to eliminate all others from participating in the bidding process. the bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. one cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. no bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. it is so well settled in law and needs no restatement, that disposal of the public property by the state or its instrumentalities partakes the character of a trust. the methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process. the authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the authoritys action in accepting or refusing the bid must be free from arbitrariness favouritism. in the present case, the tender notice makes it abundantly clear that the two plots of land admeasuring 37,000 and 20,000 sq m meant for establishing engineering colleges were advertised as a single item, though the specified reserved price was different. the respondent ams itself mentioned different and separate bids in its tender and made a bid for the 20,000 sq m plot which was less than the reserved price. the appellant authority (mda) was not under any legal or constitutional obligation to entertain the bid which was much below the reserved the price. mda though not under any obligation, provided a further opportunity to ams and expressed its willingness to part with the 20,000 sq m plot provided ams agreed to pay the reserved rate. ams did not avail this opportunity. even at this stage ams did not say that it was under some confusion as regrds the specified reserved price. no objections were raised whatsoever in this regard. instead it made a request that the two plots be segregated and the 37,000 sq m be allotted to it while the other plot 20,000 sq m may be deleted from ..offer as the cost of that land is not viable. ams expressed its desire to purchase the said land at its lower, bid price only. ams proceeded on the assumption as if it had some unassailable right in respect of the said plot of land merely because it had earlier got allotted an adjoining plot of land for the construction of its buildings. had the authority conceded to the request so made by ams it would have been an unfair and arbitrary decision and the courts may have interfered with the same in exercise of judicial review power. the tender process actually stood terminated with the letter of mda dated 27.11.2001 allotting the 37,000 sq m of land alone. the rights of ams, if any came to an end when it informed mda that it was not claiming any right over the land admeasuring 20,000 sq m and made a further request to delete its offer in respect of the said land. the subsequent letters sent by ams at its own choice are of no consequence. the correspondence on record makes it clear that there was no confusion whatsoever with regard to reserved price fixed. once it is clear that there was no vagueness, uncertainty or any confusion with regard to the reserved price there is no scope for any interference in the matter by the court. the terms and conditions of the tender were expressly clear by which the authority as well as the bidders were bound and such conditions are not open to judicial scrutiny unless the action of the tendering authority is found to be malicious and misuse of its statutory powers. the bids offered by ams received their due attention in a fair and transparent manner free from any bias at the hands of mda. no rights of ams have been infringed by mda in not giving opportunity to involve itself in lengthy negotiations. the authority was free to make it choice and t invite fresh bids after ams relinquished it claim in respect of the disputed plot vide letter dated 17.9.2001 which was accepted by mda. the decision of the authority was duly communicated to ams by mda fide its letter dated 27.11.2001. the decision so taken by mda resulted in no infringement of rights of ams. hence, mda shall be at liberty to call for fresh tenders in accordance with law but duly notifying the land use for both educational and residential and invite bids accordingly. it shall permit ams and other educational institutions intending to participate in the auction. in view of the undertaking given by mda it shall not raise any objection for the use of the land for educational purposes in case any educational institution is found to be the successful bidder. the bids shall obviously be invited from the intending bidders duly notifying the residential and educational use. government contracts/tenders: [l.s. panta & b. sudershan reddy, jj] tender process - nature of disposal of public property by state methods for disposal of rights of bidder - held, bidders participating in the tender process have no other right except the right to equality and fair treatment. terms of invitation to tender are not open to judicial scrutiny as they lie in realm of contract. disposal of public property by state or its instrumentalities partakes the character f a trust. methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process. meerut development authority v association of management studies & anr. government contracts/tenders :[l.s. panta & b. sudershan reddy, jj] tender conditions/nit binding effect of non-adherence by bidder held, authority is not obliged to entertain tender in such a case. allotment of land in residential scheme for educational use - reserved rate fixed at 50% of sector rate under g.o. dated 19.4.1996-respondents commercial offer for one of two plots being less than reserved rate -rejected by appellant authority legality - respondent informing appellant authority to delete the said plot from their offer - appellant confirming allotment of other plot of land to respondent subsequently, respondent requesting authority to allot the deleted plot at the reserved price - appellant re-auctioning land with change in land use conditions high court allowing writ petition of respondent there against holding there was a concluded contract between the parties - sustainability of held, tender process stood terminated on authority allotting the one plot alone rights of respondent, if any, ended when it informed the authority to delete it offer vis--vis the deleted plot. there was not vagueness, uncertainty or confusion with regard to reserved price -no scope for any interference-authority as well as the bidders were bound by such conditions reiterated, tender conditions are not open to judicial scrutiny unless action of tendering authority is found to be malicious and a misuse of statutory powers in present case, bids offered by respondent received due attention in a fair and transparent manner free from any bias by appellant authority-refusal to accept tender of from any bias by appellant authority refusal to accept tender of respondent on ground that the offer made was lower than the reserved price is legal and valid-no rights of respondent infringed by appellant authority costs imposed on respondent. government grants & largesse: [l.s. panta & b. sudershan reddy, jj] getting full value in sale of state-owned natural assets held, the struggle to get for the state the full value of its resources is particularly pronounced in the sale of state-owned natural assets to the private sector. whenever the government or the authorities get less than the full value of the asset, the country is being cheated; there is a simple transfer of wealth from the citizens as a whole to whoever gets the assets at a discount. most of the times the wealth of a state goes to the individuals within the country rather than to multi-national corporations; still, wealth slips away that ought to belong to the nation as a whole. - 15. the proviso and the explanation to section 15(1) of the act protect transfer of interest in notified leases or class of leases to assignees or transferees as well as subsequent assignees or transferees. in this context, the explanation to section 15(1) of the act as well as sub-clause (aa) in clause (ii) of section 5 of the act were introduced to confer protection on the successive transfer by original lessees in regard to leases or class of leases notified under the proviso to section 15(1) of the act. 24. the learned single judge of the high court was clearly in error in holding that the respondent private company was protected by section 15(2) of the act.a.n. ray, j.1. this is an appeal by special leave from the judgment dated 28 january 1970 of the high court at bombay.2. the high court in a writ petition under article 227 of the constitution quashed an order of the court of small causes, bombay.3. a trust known as padamsi bhanji trust of bombay owned a godown at 8 mugbhat lane, girgaum, bombay. the tenant of the property before 1952 was ochhavlal. the property thereafter came into possession of s. v. sovani. sovani carried on the business of preparation and sale of scientific apparatus. about 1952 sovani became director of sovani private limited company referred to as the private company. the private company went into possession of the godown as also the business which was carried on by sovani. rent was paid up to the year 1966 in the name of ochhavlal. rent receipts were also in the name of ochhavlal. in the year 1966 the trust employee who collected rent refused to accept rent. thereafter rent was sent by money order to the trustees. the trustees did not accept the money orders.4. the trustees in the year 1970 filed suit possession. ochhavlal was the defendant in the suit. the grounds for eviction of ochhavlal were first that he was a defaulter in the payment of rent from 1966, and, secondly, he was guilty of sub-letting. the suit was decreed ex-parte in the month of march, 1971. on 8 april, 1971 the trustees obtained possession.5. thereafter an application was made under order xxi rule 100 of the cpc by the private company for relief against dispossession in execution of the decree. the trial court accepted the contention of the private company that they became sub-tenants.6. against that order an application in revision was filed by the trustees. the small causes court set aside the order passed by the trial court.7. the private company thereupon made an application under article 227 of the constitution in the high court. the high court held that the small causes court in revision committed an error in applying section 15(2) of the bombay rent act 1947. the high court held that the private company was a tenant within the meaning of the bombay act.8. this appeal turns entirely on the provisions contained in section 15 of the bombay rent act referred to as the act.9. section 15(1) of the act is as follows :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.the present sub-section (1) was numbered as sub-section (i) by bombay ordinance no. iii of 1959 published on 21 may, 1959. this was subsequently enacted in bombay act no. 49 of 1959. prior to the renumbering with the exception of the words 'but subject to any contract to the contrary' the body of the section was the same. 10. there is a proviso to sub-section (1) which runs thus :provided that the state government may, by notification in the official gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification.11. there is also an explanation to sub-section (i). this explanation was added by maharashtra act no. 17 of 1968. the explanation is that leases or class of leases shall include and shall be deemed always to have included within their meaning assignments and other transfers of the leases or class of leases, and accordingly notwithstanding any judgment, decree or order of any court, provisions in any notification under the proviso which purports to permit assignments and transfers by lessees shall include and shall always be deemed to have included assignments and transfers of the leasehold, made on or after 12 may 1948, and whether made by the original lessees or their assignees or transferees or any subsequently assignees or transferees. the net effect of the explanation is that where leases or class of leases are specified in the government notifications assignments and transfers by original lessees on or after 12 may 1948 and subsequent assignments and transfers by assignees and transferees are all protected.12. one of the government notifications permitted transfer or assignment incidental to the sale of a business as a going concern together with the stock-in-trade and the goodwill thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such leasehold premises together with the business and the stock-in-trade and goodwill thereof. there were other notifications under the proviso to section 15(1) where by the government of bombay permitted in all areas to which part ii of the act extends several types of transfers and assignments by lessees of their interests in leasehold premises as, and to the extent, specified in the notifications. the present assignment is not covered by any of the specified types mentioned in the government notifications.13. the relevant provision for the purpose or the present appeal is sub-section (2) of section 15 of the act. broadly stated, the first limb of the sub-section is that the prohibition against subletting by the tenant of whole or any part of the premises and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub-section (i), shall, subject to the provisions of sub-section (2), be deemed to have had, no effect before the commencement of the bombay rents, hotel and lodging house rates control (amendment) ordinance 1959 on 21 may 1959 in any area in which this act or the provisions were in operation before the commencement. section 15(2) of the act was inserted on 21 may 1959 by bombay ordinance no. iii of 1959. it was later deemed to have been substituted on 21 may, 1959 for the original by maharashtra act no. 38 of 1962. prior to the bombay ordinance 1959 section 15 as it originally stood prohibited sub-letting by any tenant or assignment or transfer of his interest therein. this prohibition against sub-letting or assignment or transfer by the tenant of his interest contained in sub-section (i) shall be deemed to have had' no effect before the ordinance. therefore, the ban against sub-letting by a tenant or assignment or transfer of his interest therein prior to the ordinance of 1959 is removed.14. the matter does not rest there because of the second limb of sub-section (2) of section 15 of the act. it is provided there that any such sub-lease, assignment or transfer or any such purported sub-lease assignment or transfer in favour of any person who has entered into possession before 1959 and has continued to be in possession shall be deemed to be valid and effective. therefore, the subletting before 1959 by a tenant is valid under sub-section (2) provided such sub-lessee entered into possession and continued in possession at the commencement of the ordinance. such sub-letting is rendered valid notwithstanding anything contained in any contract or any decree or order of court. the act as a corollary also introduced the measure that any tenant who has sub-let shall not be liable to eviction under section 13(1)(a) of the act.15. the proviso and the explanation to section 15(1) of the act protect transfer of interest in notified leases or class of leases to assignees or transferees as well as subsequent assignees or transferees. section 15(2) of the act protects only sub-lease or assignment or transfer by the tenant but does not protect subsequent assignments or transfers by assignees or transferees:16. the entire question in the present appeal is whether the private company is a sub-lessee protected under section 15(2) of the act.17. the answer to the question is whether the respondent private company was a sub-tenant prior to 1959 and continued in possession at the commencement of the ordinance in 1959. ochhavlal in the present case gave the sub-lease to sovani before the ordinance. it is an indisputable feature in the present case that sovani did not continue in possession at the commencement of the ordinance of 1959. sovani became a director of the private company. it is the private company which claims to be a sub-leasee. the private company was in the first place not a sub lessee of the tenant but a subsequent assignee from the sub-lessee. secondly sovani who was the sub-lessee was not in possession on the date of the ordinance on 21 may 1959. it was the private company which was in possession. therefore, the private company is not within the protection of section 15(2) of the act.18. section 108 of the transfer of property act provides that a lessee may transfer absolutely 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 it. this provision contained in section 108(j) of the transfer of property act notices the distinction between the sub-lease by a lessee and transfer by such sub-lessee of his interest by a subsequent transfer. section 15 of the bombay act dealt with only sub-letting by the tenant. that sub-letting by the tenant is no longer unlawful provided the conditions in section 15(2) are fulfilld. it is only the sub-lease by the tenant which is mentioned in sub-section (1) and rendered valid in sub-section (2) of section 15 of the act. the bombay rent act does not in section 15(2) protect any further lease or transfer by the sub-lessee.19. the bombay high court in a bench decision in n. m. nayak v. chhotalal hariram 69 bom. l.r. 551 rightly held that section 15(2) of the act validated only sub-letting, transfer and assignments by tenants and no further sub-letting or further derivative transfer or assignment by such sub-lessees, transferees or assignees.20. the word 'tenant' in section 15 of the bombay act means the contractual tenant. in anand nivas (p.) ltd. v. anandji : [1964]4scr892 this court said that the expression 'tenant' in section 15(1) of the act means the contractual tenant and not the statutory tenant. the legislature by the ordinance of 1959 in-tended to confer protection on sub-tenants of contractual tenants. the ordinance did not confer any protection on further transfer or further sub-letting by sub-lessees of the contractual tenants.21. section 5(ii) of the act defines 'tenant' to include subtenants or other persons as have derived title under a tenant before the ordinance of 1959. after the decision of the bombay high court in nayak's case (supra) sub-clause (aa) was introduced to clause (ii) in section 5 of the act. the amendment was as follows :any person to whom interest in premises has been assigned or transferred as permitted, or deemed to be permitted, under section 15.22. the amendment was introduced into the act by the maharashtra act no. 17 of 1968 with retrospective effect as from 12 may 1948. the amendment was brought into existence as a result of the decision of the bombay high court in nayak's case (supra). the high court held in that case that a person seeking to claim protection by the provisions contained in the notification issued under the proviso to section 15(1) of the act must establish that his transferor was a lessee of the premises transferred or assigned. the decision was to the effect that the only persons who were entitled to transfer or assign the interest of the premises were to satisfy the character of a lessee as defined in section 105 of the transfer of property act. the assignee of a lessee was held not to be a lessee as defined by the transfer of property act. in this context, the explanation to section 15(1) of the act as well as sub-clause (aa) in clause (ii) of section 5 of the act were introduced to confer protection on the successive transfer by original lessees in regard to leases or class of leases notified under the proviso to section 15(1) of the act.23. a faint attempt was made by counsel for the respondents to suggest that the respondents would be protected by the explanation to section 15(i) of the act. there is no foundation for such a case in the high court. there are no materials to support such a plea.this contention cannot therefore be entertained.24. the learned single judge of the high court was clearly in error in holding that the respondent private company was protected by section 15(2) of the act.the appeal is, therefore, allowed, the judgment of the high court is set aside. the appellants will be entitled to costs.

Judgment:
A.N. Ray, J.

1. This is an appeal by special leave from the judgment dated 28 January 1970 of the High Court at Bombay.

2. The High Court in a writ petition under Article 227 of the Constitution quashed an order of the Court of Small Causes, Bombay.

3. A trust known as Padamsi Bhanji Trust of Bombay owned a godown at 8 Mugbhat Lane, Girgaum, Bombay. The tenant of the property before 1952 was Ochhavlal. The property thereafter came into possession of S. V. Sovani. Sovani carried on the business of preparation and sale of scientific apparatus. About 1952 Sovani became Director of Sovani Private Limited Company referred to as the Private Company. The Private Company went into possession of the godown as also the business which was carried on by Sovani. Rent was paid up to the year 1966 in the name of Ochhavlal. Rent receipts were also in the name of Ochhavlal. In the year 1966 the trust employee who collected rent refused to accept rent. Thereafter rent was sent by money order to the trustees. The trustees did not accept the money orders.

4. The trustees in the year 1970 filed suit possession. Ochhavlal was the defendant in the suit. The grounds for eviction of Ochhavlal were first that he was a defaulter in the payment of rent from 1966, and, secondly, he was guilty of sub-letting. The suit was decreed ex-parte in the month of March, 1971. On 8 April, 1971 the trustees obtained possession.

5. Thereafter an application was made under Order XXI Rule 100 of the CPC by the Private Company for relief against dispossession in execution of the decree. The trial Court accepted the contention of the private Company that they became sub-tenants.

6. Against that Order an application in revision was filed by the trustees. The Small Causes Court set aside the order passed by the trial Court.

7. The Private Company thereupon made an application under Article 227 of the Constitution in the High Court. The High Court held that the Small Causes Court in revision committed an error in applying Section 15(2) of the Bombay Rent Act 1947. The High Court held that the Private Company was a tenant within the meaning of the Bombay Act.

8. This appeal turns entirely on the provisions contained in Section 15 of the Bombay Rent Act referred to as the Act.

9. Section 15(1) of the Act is as follows :

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.

The present Sub-section (1) was numbered as Sub-section (i) by Bombay Ordinance No. III of 1959 published on 21 May, 1959. This was subsequently enacted in Bombay Act No. 49 of 1959. Prior to the renumbering with the exception of the words 'but subject to any contract to the contrary' the body of the section was the same.

10. There is a proviso to Sub-section (1) which runs thus :

Provided that the State Government may, by notification in the official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification.

11. There is also an explanation to Sub-section (i). This explanation was added by Maharashtra Act No. 17 of 1968. The explanation is that leases or class of leases shall include and shall be deemed always to have included within their meaning assignments and other transfers of the leases or class of leases, and accordingly notwithstanding any judgment, decree or order of any Court, provisions in any notification under the proviso which purports to permit assignments and transfers by lessees shall include and shall always be deemed to have included assignments and transfers of the leasehold, made on or after 12 May 1948, and whether made by the original lessees or their assignees or transferees or any subsequently assignees or transferees. The net effect of the explanation is that where leases or class of leases are specified in the Government notifications assignments and transfers by original lessees on or after 12 May 1948 and subsequent assignments and transfers by assignees and transferees are all protected.

12. One of the Government notifications permitted transfer or assignment incidental to the sale of a business as a going concern together with the stock-in-trade and the goodwill thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such leasehold premises together with the business and the stock-in-trade and goodwill thereof. There were other notifications under the proviso to Section 15(1) where by the Government of Bombay permitted in all areas to which Part II of the Act extends several types of transfers and assignments by lessees of their interests in leasehold premises as, and to the extent, specified in the notifications. The present assignment is not covered by any of the specified types mentioned in the Government notifications.

13. The relevant provision for the purpose or the present appeal is Sub-section (2) of Section 15 of the Act. Broadly stated, the first limb of the sub-section is that the prohibition against subletting by the tenant of whole or any part of the premises and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in Sub-section (i), shall, subject to the provisions of Sub-section (2), be deemed to have had, no effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 on 21 May 1959 in any area in which this Act or the provisions were in operation before the commencement. Section 15(2) of the Act was inserted on 21 May 1959 by Bombay Ordinance No. III of 1959. It was later deemed to have been substituted on 21 May, 1959 for the original by Maharashtra Act No. 38 of 1962. Prior to the Bombay Ordinance 1959 Section 15 as it originally stood prohibited sub-letting by any tenant or assignment or transfer of his interest therein. This prohibition against sub-letting or assignment or transfer by the tenant of his interest contained in Sub-section (i) shall be deemed to have had' no effect before the Ordinance. Therefore, the ban against sub-letting by a tenant or assignment or transfer of his interest therein prior to the Ordinance of 1959 is removed.

14. The matter does not rest there because of the second limb of Sub-section (2) of Section 15 of the Act. It is provided there that any such sub-lease, assignment or transfer or any such purported sub-lease assignment or transfer in favour of any person who has entered into possession before 1959 and has continued to be in possession shall be deemed to be valid and effective. Therefore, the subletting before 1959 by a tenant is valid under Sub-section (2) provided such sub-lessee entered into possession and continued in possession at the commencement of the Ordinance. Such sub-letting is rendered valid notwithstanding anything contained in any contract or any decree or order of Court. The Act as a corollary also introduced the measure that any tenant who has sub-let shall not be liable to eviction Under Section 13(1)(a) of the Act.

15. The proviso and the explanation to Section 15(1) of the Act protect transfer of interest in notified leases or class of leases to assignees or transferees as well as subsequent assignees or transferees. Section 15(2) of the Act protects only sub-lease or assignment or transfer by the tenant but does not protect subsequent assignments or transfers by assignees or transferees:

16. The entire question in the present appeal is whether the Private Company is a sub-lessee protected Under Section 15(2) of the Act.

17. The answer to the question is whether the respondent Private Company was a sub-tenant prior to 1959 and continued in possession at the commencement of the Ordinance in 1959. Ochhavlal in the present case gave the sub-lease to Sovani before the Ordinance. It is an indisputable feature in the present case that Sovani did not continue in possession at the commencement of the Ordinance of 1959. Sovani became a Director of the Private Company. It is the Private Company which claims to be a sub-leasee. The Private Company was in the first place not a sub lessee of the tenant but a subsequent assignee from the sub-lessee. Secondly Sovani who was the sub-lessee was not in possession on the date of the Ordinance on 21 May 1959. It was the Private Company which was in possession. Therefore, the Private Company is not within the protection of Section 15(2) of the Act.

18. Section 108 of the Transfer of Property Act provides that a lessee may transfer absolutely 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 it. This provision contained in Section 108(j) of the Transfer of Property Act notices the distinction between the sub-lease by a lessee and transfer by such sub-lessee of his interest by a subsequent transfer. Section 15 of the Bombay Act dealt with only sub-letting by the tenant. That sub-letting by the tenant is no longer unlawful provided the conditions in Section 15(2) are fulfilld. It is only the sub-lease by the tenant which is mentioned in Sub-section (1) and rendered valid in Sub-section (2) of Section 15 of the Act. The Bombay Rent Act does not in Section 15(2) protect any further lease or transfer by the sub-lessee.

19. The Bombay High Court in a Bench decision in N. M. Nayak v. Chhotalal Hariram 69 Bom. L.R. 551 rightly held that Section 15(2) of the Act validated only sub-letting, transfer and assignments by tenants and no further sub-letting or further derivative transfer or assignment by such sub-lessees, transferees or assignees.

20. The word 'tenant' in Section 15 of the Bombay Act means the contractual tenant. In Anand Nivas (P.) Ltd. v. Anandji : [1964]4SCR892 this Court said that the expression 'tenant' in Section 15(1) of the Act means the contractual tenant and not the statutory tenant. The legislature by the Ordinance of 1959 in-tended to confer protection on sub-tenants of contractual tenants. The Ordinance did not confer any protection on further transfer or further sub-letting by sub-lessees of the contractual tenants.

21. Section 5(ii) of the Act defines 'Tenant' to include subtenants or other persons as have derived title under a tenant before the Ordinance of 1959. After the decision of the Bombay High Court in Nayak's case (supra) Sub-clause (aa) was introduced to Clause (ii) in Section 5 of the Act. The Amendment was as follows :

Any person to whom interest in premises has been assigned or transferred as permitted, or deemed to be permitted, Under Section 15.

22. The amendment was introduced into the Act by the Maharashtra Act No. 17 of 1968 with retrospective effect as from 12 May 1948. The amendment was brought into existence as a result of the decision of the Bombay High Court in Nayak's case (supra). The High Court held in that case that a person seeking to claim protection by the provisions contained in the notification issued under the proviso to Section 15(1) of the Act must establish that his transferor was a lessee of the premises transferred or assigned. The decision was to the effect that the only persons who were entitled to transfer or assign the interest of the premises were to satisfy the character of a lessee as defined in Section 105 of the Transfer of Property Act. The assignee of a lessee was held not to be a lessee as defined by the Transfer of Property Act. In this context, the explanation to Section 15(1) of the Act as well as Sub-clause (aa) in Clause (ii) of Section 5 of the Act were introduced to confer protection on the successive transfer by original lessees in regard to leases or class of leases notified under the proviso to Section 15(1) of the Act.

23. A faint attempt was made by counsel for the respondents to suggest that the respondents would be protected by the explanation to Section 15(i) of the Act. There is no foundation for such a case in the High Court. There are no materials to support such a plea.This contention cannot therefore be entertained.

24. The learned Single Judge of the High Court was clearly in error in holding that the respondent Private Company was protected by Section 15(2) of the Act.The appeal is, therefore, allowed, The judgment of the High Court is set aside. The appellants will be entitled to costs.