Bombay High Court
Dinoo F. Byramji vs Dolly Jahangir Ranji (Mrs.) on 9 February, 1988
Equivalent citations: 1988(1)BOMCR587
JUDGMENT G.H. Guttal, J.
1. In this petition, the defendant "paying guest", challenges the validity of the decree for possession made by the Appellate Bench of the Court of Small Causes in Appeal No. 201 of 1983, reversing the decree of Single Judge of that Court in Suit No. L.E. & C 163/213 of 1978. The Appellate Bench held that the petitioner is a "paying guest" and not a "licensee", protected by section 15-A of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (hereinafter called the "Bombay Rent Act").
2. The question in this petition is whether the petitioner, who occupies a room and a kitchen in the flat held by the respondent as a tenant, is a "paying guest", as defined in section 5(6-A) of the Bombay Rent Act, or is a licensee as defined in section 5(4-A) of the Act. The petitioner hereafter shall be referred to as the defendant and the respondent as the plaintiff.
3. There is on the third floor of Ali Building, Wadia Street, Bombay 400 034, a flat held by the plaintiff as a tenant. As one comes on the landing of the stair-case, there is the entrance to the flat. The door at entrance leads into the 24' long and 41 wide passage. On the right hand side, there is a kitchen, the entrance to which is through a door opening .In the passage. Adjoining this kitchen is a room. The entrance to this room is also through another door from the passage. The kitchen and the rooms are connected by a door in the wall between them. The kitchen and the room open into the passage through different doors. On, the left hand side, there is a large hall of the dimensions of 26.26' x 13'. Next to this hall, along the passage, there is a room admeasuring 13.3' x 12.6'. This room opens into the passage. As one enters the room , admeasuring 13.3' x 12.6', one finds that this room is connected to another room admeasuring 12.9' x 14' running parallel to the hall. These two rooms have separate doors which open into the hall. At the end of the passage, there is a gallery admeasuring 28.6' x 3.6'. The plaintiff is in possession of the large hall, two rooms and the gallery described above. These rooms in occupation of the plaintiff are separated by the passage beyond which on the right hand side there is the kitchen and the room occupied by the defendant.
On 6th October, 1962, the plaintiff and the defendant entered into an agreement in writing, which is in the form of a letter written by the defendant to the plaintiff. It embodies the terms of the contract entered into by the parties. The plaintiff has confirmed these terms on the same day in writing by an endorsement below this letter. This agreement was for a period of eleven months, but was extended from time to time until 1974 by separate agreements. The terms of the agreement, briefly stated, are as under :-
(a) the defendant was permitted to occupy and use one room in the plaintiff's flat together with the kitchen attached thereto;
(b) the defendant was permitted the joint user of the water closets, and toilets.
(c) the permission to use the room and the kitchen as also the joint user of the water closets was as a "paying guest";
(d) the defendant was to use the room, for...... residence only";
(e) the defendant was entitled to bring her articles, The fixtures supplied by the plaintiff were to be kept in the same condition ;
(f) the defendant shall pay charges described as "license fees" at the rate of Rs. 80/- p.m. This excludes the use of radio, refrigerator, stove, etc.
(g) the plaintiff will give to the defendant one duplicate key of the lock of the door of the said room and also one duplicate key of the lock of the outer door for her use;
(h) the defendant shall not have any exclusive right to the use and occupation of the room; the possession remained with the plaintiff;
4. On 11th September, 1977, the plaintiff filed the suit for possession on the ground that the defendant a paying guest, whose agreement had been terminated, had no right to reside in the premises. The suit had to be filed, because the defendant falsely claimed protection under section 91-A of the Rent Act.
5. The plaintiff examined herself and a former servant Iqbal Qureshi to prove services to the defendant of evening meals on a monthly/charges of Rs. 20/-. The defendant examined herself, Sheroo Rusi Kharas and Banoo Bilimoria, to prove that she was in exclusive possession of the kitchen and the room. On the evidence, the Appellate Bench of the Court of Small Causes held that the following facts were proved:---
(i) the defendant is in occupation of the kitchen and the adjoining room;
(ii) one key each of the main entrance was with the defendant and the plaintiff;
(iii) one key of the lock on the room adjoining the kitchen is with the plaintiff and the other with the defendant;
(iv) pursuant to the oral agreement between the parties, the plaintiff supplied to the defendant meals at night till 1974-75 at a monthly charge of Rs. 20/-. This arrangement was stopped after the marriage of the plaintiff's daughter;
(v) the defendant has brought in the premises gas cylinder and refrigerator;
(vi) the plaintiff lives in the same flat with five members at all times. The plaintiff never left the entire flat to the defendant;
(vii) the defendant has to use the passage for the purpose of going out of flat and entering into it;
(viii) the defendant is a working woman. She leaves at 9-00 a.m. and returns at 8 p.m.
(ix) the water closet and toilets are in common use and not in the exclusive use of the defendant;
(x) since the plaintiff has a key of the room in occupation of the defendant, she is not excluded from the room given to the defendant though the defendant is in exclusive occupation of the room and the kitchen. The plaintiff's servant lqbal Qureshi used to use the duplicate key with the plaintiff, open the room in occupation of the defendant in her absence and clean it;
(xi) the plaintiff used to supply water for the kitchen used by the defendant by use, of key in her possession.
6. The Maharashtra Act No. XVII of 1973 introduced section 5(4-A) in the Act, whereby the expression "licensee" was defined. The Act also introduced, section 5(6-A) defining the expression "paying guest" Section 5(4-A) defines "licensee" to mean "a person who is in occupation of the premises...under a subsisting agreement of license". But, section 5(4-A) also carves out exceptions to this definition. These exceptions exclude persons occupying the premises in certain special capacities. One of such persons is the "paying guest", which expression is defined in section 5(4-A) to mean "a person not being a member of the family, who is given a part of the premises in which the licensor resides, on license". The Maharashtra Act No. XVII of 1973 was introduced with the purpose of protecting certain licensees, and denying the protection to certain excepted categories of licensees. Since the paying guest is also a licensee and occupies part of the "premises" and there can be a licensee of a :part of the premises", it has become necessary to define and delimit the line which distinguishes the two relationships. This exercise by no means easy, yet certain tests can be evolved and applied.
7. Licensee" by definition is a person who is in occupation of the "Premises". "Paying Guest" is "given" "part of the premises". Thus, while the licensee is in occupation of "any premises" or "any part thereof", the paying guest is "given" a "part of the premises". Therefore, "premises" and "part of the premises" furnishes one test for distinguishing the two relationships. Secondly, "licensee" is "in occupation" of the "premises ", but, the "paying guest" is "given" a "part of the premises". The third test is that the paying guest is given a part of the premises in which the licensor also resides. Thus, the residence of the licensor in the same premises, furnishes the third clue. But, the usefulness of these tests is neutralised by the fact that while the "licensee" may be in occupation of "premises" or "any part thereof", a paying guest too may be in occupation of "part of the premises" as a licensee. Since both these relationships partake the character of license where "a part of the premises" are concerned it is exceedingly difficult to draw a line distinguishing these relationships. But, the fact that the definition of paying guest necessarily requires that the-licensor resides in the same premises is an element of great significance which should not be lost, sight of.
8. The status of a paying guest is akin to a lodger in England, who also occupies a part of the house. The occupation of the lodger is subordinate to that of owner or licensor. It is important, in determining the relationship, to see whether the licensor retains his character as a master of the house, whether he resides in a part of the same house and at the same time retains control and dominion over the whole house.
(Stroud's Judiciary Dictionary Fifth Edition Vol. III "LODGER").
The subordinate character of the relationship marks the status as paying guest. Where the relationship of paying guest is created, the part of the house occupied by the paying guest is 'generally under the control and dominion of the licensor who holds the premises in a superior, capacity. The importance of this fact should be borne in mind.
9. The control and dominion over the part occupied by the paying guest takes various forms. Firstly, the premises may have an outer door opening in the street or landing and the licensor controls the outer door by himself or through his servants or representatives. The room given to the paying guest in such a case has no outside opening in the street. Secondly, the room in the occupation of the paying guest may be structurally severed from the room occupied by the licensor by separate walls, partition or passage, and so on. In such a case, the licensor may still control the premises occupied by his paying guest. But, there may be circumstances which show that the licensor intended to relinquish his control or dominion. For example, he may carry out structural alterations which will show absence of such a control, such as, provision of independent entrance. But, where no structural change is made and the licensor gives a part of the house in the condition in which it exists, it may be presumed that the occupant is a paying guest, because, the licensor always controls the whole house. (Stroud's Judicial Dictionary "Fifth Edition Vol. III LODGER"). Thirdly, the use of the amenities like bath-room, toilets, in common, is another index. Use of these amenities in common by the licensor and the paying guest reinforces the inference that the occupant is a paying guest, because, such amenities cannot be treated as subject matter of a separate legal relationship. Helman v. Horsham and Worthing Assessment Committee, 1948(2) AII.E.R 588. Fourthly, the fact that the licensor stays in a part of the same premises is of great significance, because, it implies the right of general supervision and dominion. It raises a presumption that the licensor intends to retain the control of the whole premises. Helman v. Horsham and Worthing Assessment Committee, 1948(2) AII.E.R. 588. The importance of the presence of the licensor in the same house lies in the fact that it demands production of further evidence by the paying guest or occupant that the licensor has renounced the right of control over the house. Helman v. Horsham and Worthing Assessment Committee, 1948(2) AII.E.R. 588.
10. Now a word about the importance of the presence of the licensor in the same premises. It is not the actual exercise of dominion by everyday interference that is so important. What is of significance is the existence of the right to control the whole house. The "paying guest" may be in exclusive occupation of a part of the house. Exclusive occupation is not a conclusive test, for inmost cases, "paying guest" occupies the room for residence exclusively. The retention of control by the licensor is the determinative fact. Consider the results if the licensor were not in control of the whole house. The paying guest, though in exclusive possession, is not bound to carry out repairs to the rooms in her occupation. For instance, the repairs to the roof, the plumbing work, etc. can be done only by the licensor and not the paying guest. The licensor always has access to the premises in the occupation of the paying guest, even if the latter's occupation is exclusive. Therefore, the access by the licensor is never excluded by the exclusive occupation of the paying guest.
11. Where a legal relationship is created by a document, the whole document creating the legal relationship must be looked at. The parties have used the words "paying guest" and "leave and license". The use of such words is not conclusive, for, parties use them in the belief that this might have some effect on the relationship between them. What has to be seen is the real intention of the parties which should be gathered by examining the whole document and the surrounding circumstances. Sohanlal v. Laxmidas, .
12. These general tests for determining whether the occupant is paying guest or a licensee, may now be applied to the facts of this case. No doubt, section 5(6-A) defines the paying guest. The definition reads thus :-
Section 5(6-A):-
"paying guest" means a person not being a member of the family, who is given a part of the premises, in which the licensor resides, on license;"
This definition has the following elements:-
(a) he is not a member of the family;
(b) he is given a part of the premises;
(c) licensor resides in the remaining part of the same premises;
(d) he is "given" "a part of the premises" on licence;
Now, therefore, the licensee occupies the premises, a part of which is in the occupation of the paying guest. There can be relationship of "licensee" in respect of the "part of the premises". There can also be relationship of "paying guest" in respect of the "part of the premises". The distinguishing features brought out by the definition is that the paying guest should not be a member of the family and the licensor resides in the same house. Implicit in the residence of the licensor in the same house is the general control and/or dominion over the premises "given", to the paying guest. In the instant case the defendant is, no doubt, in exclusive occupation of the kitchen and the room. Exclusive occupation , though an important element, is not conclusive if the licensor retains the control or dominion. Therefore, even if the defendant is in ,exclusive occupation, as indeed she is, it does not mean that the plaintiff has renounced the control or dominion over the premises. Significantly, Clause (10) of the agreement reads:-
"....I shall not have any exclusive right to the use and occupation of the said room..."
The possession of the duplicate key even in respect of the room given to the defendant is a significant fact, which demonstrates the plaintiff's right to control the premises occupied by the defendant. Secondly, the control of the entire flat is with the plaintiff, because, she possesses the key of the main door and lives in the same flat with five members of her family. Thirdly, the defendant's character as a paying guest is clear from the fact that the plaintiff served her food at night until 1974-75 on the monthly payment of Rs. 20/-. This finding of the fact shows that it is the plaintiff who was the master of the house and the defendant was a guest who received meals from her. Fourthly, the plaintiff always lived in the rest of the flat, which is larger than the part given to the defendant. This, together with other factors necessarily means that she is in control of the house. Fifthly, the common amenities, like the toilets and W.C s, are outside the flat. Their use in common is consistent with the plaintiff's control over the entire flat and the defendant's status as subordinate occupant. Helman v. Horsham and Worthing Assessment Committee, 1948(2) AII.E.R. 588. Sixty, even if the defendant is in exclusive occupation, the fact remains that the plaintiff's control is not excluded, because she possesses a key and indeed, it is she who had the room cleaned through her servant and provided water to the kitchen.
13. The plaintiff resides in the premises of which a part consisting of a room and kitchen are "given" to the defendant. This fact fulfills the most important element of the definition of "paying guest" in section 5(6-A) of the Act. The importance of this fact lies in her control and dominion over the entire house. The defendant admittedly is not 'a member of the family". The second ingredient of the definition is also fulfilled. The defendant occupies the room and the kitchen by virtue of the permission granted by the plaintiff. But for such permission, the defendant's occupation would be illegal. Therefore, the room and the kitchen are "given...on license" as required by definition in section 5(6-A) of the Act. Thus, the, defendant falls within the statutory definition of "paying guest".
14. Having regard to these facts, which are relevant for the purpose of determining the real nature of the relationship, I have no doubt that the defendant is a paying guest of the plaintiff, notwithstanding the fact, that she is in occupation for so many years. The duration of the defendant's stay in the premises does not conclude the matter. The essential elements are the plaintiff's control over the flat by residing there, the defendant's admission that she has no exclusive right and the subordinate character of defendant's occupation. The tests laid down by section 5(6-A) are fulfilled. The defendant is a paying guest and not a licensee. Therefore, she cannot claim the protection of section 15-A of the Bombay Rent Act.
15. The Appellate Bench of the Court of Small Causes has rightly held that defendant was paying guest.
The petition is, therefore, rejected. Rule discharged with costs. This order shall not come into operation for two months from today.