Back
IN THE HIGH COURT OF BOMBAY
G.H. Guttal, J.
Dinoo F. Byramji.... Petitioner.
Versus
Dolly Jahangir Ranji (Mrs.).... Respondent.
Writ Petition No. 805 of 1987, decided on 9-2-1988.
Advocates appeared :
M U. Shah, for petitioner.
G.P. Bharucha, for respondent.
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 (6-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 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 envolved and applied.
"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 "any premises" Of "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 neutralized 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 relationship 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.
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. (Strouds 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 that 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 All ER 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) All ER 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 All ER 588.
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 latters occupation is exclusive. Therefore, the access by the licensor is never excluded by the exclusive occupation of the paying guest.
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
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
