Full Judgment Text
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CASE NO.:
Appeal (civil) 4659 of 1997
PETITIONER:
FEROZE N. DOTIVALA
RESPONDENT:
P.M. WADHWANI AND ORS.
DATE OF JUDGMENT: 03/12/2002
BENCH:
R.C. LAHOTI & BRIJESH KUMAR
JUDGMENT:
JUDGMENT
2002 Supp(4) SCR 416
The Judgment of the Court was delivered by
BRIJESH KUMAR, J. An advertisement was published in the times of India
dated 5.10.1959; it read as follows:
"Accommodation available for two rooms self-contained apartment with sea-
view, telephone optional, ideal for executive, couples, reasonable terms."
The appellant before us, namely, Feroze N. Dotivala approached the
respondents namely, Wadhwanis in response to the above noted advertisement
and he was given the accommodation on payment of certain amount as
compensation for the same. The moot question that falls for consideration
in this appeal is about the nature of occupation of the premises as to
whether the appellant is a ’license’ or a ’paying guest’ in the light of
the relevant provisions under the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 (for short ’the Act’).
According to the appellant, in the year 1975 after the death of the mother
of the respondent no. 1, he wanted the appellant to give in writing that he
was occupying the premises as a paying guest. The appellant did not accede
to the request made. This gave rise for the appellant to file a suit for
declaration, namely, Suit No. 2365 of 1975 in the Small Causes Court,
Bombay for a decree in his favour that he be declared as a deemed tenant of
the accommodation and an injunction was also prayed against the defendant
respondents to the effect that they would not disturb his possession over
the premises in question. The suit was decreed. The appeal filed before the
Division Bench of the Small Causes Court was dismissed. A writ petition,
however, preferred by the respondent has been allowed by the High Court
holding that the appellant before us is a ’paying guest’. Hence this appeal
against the judgment and order of the High Court.
The trial court while decreeing the suit recorded a finding that the
plaintiff, namely, the appellant before us, with his family, is separately
residing in the apartment which is self-contained whereas the defendants
are residing in the other portion of the terrace flat. While dealing with
the facts of the case it was also held by the trial court that there was
nothing to indicate that the defendants retained control or dominance over
the premises given to the plaintiff nor it would be conceivable that
defendants would agree to suffer unity of residence with the plaintiff. The
language used in the advertisement has also been taken into consideration
to rule out the plea of the respondent that the appellant was a paying
guest. The trial court, however, denied the relief sought for use of the
terrace, which also he claimed to be in his tenancy, adjacent to his
premises in corner of which one Shri Ajhwani lived in a room. The case of
the defendant regarding common use of certain parts of the accommodation
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was not accepted. The appellate court while dismissing the appeal made
reference to the English Law on the subject and on the basis of the same
observed that the licensor must retain general control over the premises
given to a person as a paying guest. He should also be a dominant occupier
with the paying guest in subordinate occupation of the premises. The
appellate court has also observed that the drafstman of the definition in
the Bombay Rent Act appeared to have followed the English legal position
and then it observes; "Apart from all that the term "part of the premises
in which the licensor resides" used in the definition would mean either
that the licensor is in joint occupation of the premises along with the
paying guest or that his residence in the premises is so close to the
residence of the paying guest that a stranger may feel their residence as
joint". The requirement of unity of residence for a paying guest as held by
the trial court has also been approved by the appellate court. It was found
that the appellant -was in exclusive possession and use of the premises,
hence he was not a paying guest. The High Court, however, has taken a
different view on the basis of a division bench decision of the Bombay High
Court reported in the Bombay Law Reporter Vol. LXXVIII 1976 page 704,
Sarfarzali Nawabail Mirza v. Miss Maneck G. Burjorji Reporter, wherein it
has been held that a paying guest means one who is not a member of the
family and is in possession of a part of the entire premises in possession
of the licensor.
So far the description of the premises is concerned there is no dispute
that it is on the fourth floor and after getting down from the lift there
is only one main door which opens into passage and major part of the
accommodation consisting of three bedrooms etc. is in occupation of the
licensor and on the left hand side one bedroom, kitchen and bathroom is in
occupation of the appellant. Each of the two have doors leading to their
premises. While leading to the accommodation in possession of the appellant
there falls a servant quarter and an urinal in possession of the licensor.
In the corner of the terrace on the side of the appellant there is a room
which has been in occupation of one Shri Ajhwani. In respect of the terrace
the appellant had prayed for a relief that it was also in his use and a
part of his tenancy but this reliefs has been refused. It also transpired
that the terrace also leads to one of the bedrooms in occupation of the
licensor according to the map filed by him. Before we proceed further we
may peruse the definition or different terms as defined under the Bombay
Rent Act.
"5. In this Act unless there is anything repugnant to the subject or
context,-
XXX XXX
XXX
(4A) "licensee", in respect of any premises or any part thereof, means the
person who is in occupation of the premises or such part, as the case may
be, under a subsisting agreement for licence given for a licence fee or
charge; and includes any person in such occupation of any premises or part
thereof in a building vesting in or leased to a co-operative housing
society registered or deemed to be registered under the Maharashtra Co-
operative Societies Act, 1960; but does not include a paying guest, a
member of a family residing together........
XXX XXX
XXX
(6A) "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 licence;
XXX XXX
XXX
(8) "premises" means-
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(a) any land not being used for agricultural purposes;
(b) any building or part of a [building let or given on licence
separately] (other than a farm building) including-
(i) the garden, grounds, garages and out houses, if any, appurtenant to
such building or part of a building,
(ii) any furniture supplied by the landlord for use in such building or
part of a building,
(iii) any fittings affixed to such building or part of a building for the
more beneficial enjoyment thereof, but does not include a room or other
accommodation in a hotel or lodging house;
XXX XXX
XXX
I5A. (1) Notwithstanding anything contained elsewhere in this Act or
anything contrary in any other law for the time being in force, or any in
contract, where any person is on the 1st 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 the purposes
of this Act, the tenant of the landlord, in respect of the premises or
part, in his occupation.
(2) The provisions of sub-section (1) shall not affect in any manner the
operation of sub-section (a) of section 15 after the date of aforesaid.]"
A perusal of the definitions of the terms indicated above shows that
licensee is one who is in occupation of the premises or a part thereof
under any subsisting agreement or licence but this definition specifically
excludes "paying guest" who but for this exclusion otherwise would also
have been covered by the said definition. The "paying guest" in turn is
defined as a person : (1) who is not a member of the family; (2) is a given
a part of the premises; (3) in which the licensor resides. A "premises"
also means a part of a building given separately. As provided under Section
15-A a person who may be in occupation of any premises on February 1, 1973
which is not less than a room, as a licensee, shall be deemed to have
become a tenant of that premises. The appellant has acquired the status of
a deemed tenant under Section 15-A or not will be dependent upon the fact
as to whether he is to be treated as a ’licensee’ or a ’paying guest’.
The three ingredients of the expression ’paying guest’, as defined, have
been indicated above. If the three conditions are fulfilled i.e. the person
concerned is not a member of the family; but has been given a part of the
premises in which the licensor resides, under the law, it would mean that
such a person is a paying guest. Nothing more is required or envisaged in
the meaning of the word ’paying guest’. The trial court and the appellant
court have imported the ingredients of a unity of a residence in the
premises with the licensor and dominion and superior kind of possession of
the licensor over the subordinate nature of occupation of a paying guest.
The appellate court has specifically considered the meaning of the
expression ’paying guest’ as under the English Law and cited decisions on
the point considering the meaning of the word "lodger". In connection
thereof it has been found that joint occupation and unity of residence
would be one of the ingredients of a "lodger" which has been applied to a
"paying guest" under the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947. In our view it may not be wise to import the meaning and
attributes of the term "lodger" as prevalent under the English law to
ascertain the meaning of "paying guest" which is specifically defined under
the Act. It is not possible to add to what has been already defined by the
Legislature for the purposes of a particular enactment dealing with a
particular kind of situation, it envisages to meet. In our view the trial
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court and the appellate court mis-directed themselves by being guided by
the meaning of the word "lodgar" as a prevalent under the English law. A
defined term under a particular statute has its own scope and limits. We
need not emphasise that even two similar terms may not mean the same thing
if defined in two different enactments in their own context. The meaning of
the word "paying guest" in general may be anything; but for the purposes of
the particular enactment its meaning and ingredients cannot be expanded or
subtracted. Therefore finding out the meaning of the word "paying guest"
depending upon the ingredients of unity of residence and control or
dominion over the premises given, as relevant for the purposes of ’lodger’
under the English law was not a correct approach. More so, when there is no
ambiguity in the definition of ’paying guest’ as defined under the Act. All
that was to be examined was as to whether in the given facts of the present
case the three ingredients of the term ’paying guest’ are fulfilled or not.
Undisputedly, the appellant is not a relation of the respondents. He has
been given a part of the premises in which the licensor resides. The
requirement of the term ’paying guest’ as defined under the Act is
fulfilled. The paying guest enjoys the possession exclusively and
separately is not material so long the premises in his occupation is a part
of the larger premises in which licensor resides. The finding of all the
courts is to the effect that the premises in occupation of the appellant is
only a part of the one whole premises. It will be beneficial to look to
such findings recorded by the courts. The trial court in the discussion
under the heading ’reasons’ observed thus:
"........the premises in suit are admittedly a part and parcel of the
entire terrace flat of which the defendants are tenants. There is no
dispute on the point that in the other apartment viz. that in use of
defendants, they are living with their family."
At another place in paragraph 21 of the judgment the trial court found as
follows:
"........ the premises given to the plaintiff under the agreement of
October 1969, are separate from the premises used and occupied by the
defendants though the two form part and parcel of one common terrace flat.:
The appellate court while considering the case of the defendant licensor
that there _are certain parts of premises which case has not been accepted,
but it has been observed as follows at one place:
"......similarly, the fact that there is only main entrance to the entire
flat also is not very significant. Because it is in evidence that
appellants as well as the respondent can open & lock this door
independently."
From the above findings and observations it is clear that basically it is
one terrace flat and one premises with only one entrance, a part of which
has been given to the appellant by the licensor who occupies the remaining
part of the whole terrace flat. The finding to the effect that the part
given to the appellant is in his exclusive use and separate would be of no
consequence so long it is a part of the whole premises. It is not necessary
to go into those details which have been pointed out by the learned counsel
for the respondent to show that certain parts of premises have been in
joint use since in our view that will not be a very relevant consideration.
The joint use may or may not be there. It is sufficient if the premises
given, is a part of the whole premises remaining of which is in occupation
of the landlord.
We feel that in view of the definition of the word ’paying guest’ as
defined under the Act it would be more appropriate to examine as to whether
the whole premises can be used as one, including, which is given to the
person for occupation along with the remaining part in occupation of the
landlord or not. The fact that a part of the premises is used exclusively
by another would not be relevant. On the other hand what would be relevant
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would be if the premises could be used as one after part of it given to
another person is included by the landlord as one unit for his own use. In
the present case the whole premises has one door to enter into it. The
finding of the trial court and the appellate court is also to the effect
that the two apartments or premises are part and parcel of the one and the
same terrace flat.
It appears that the Legislature only intended that in cases where landlord
residing in a premises, parts with possession of a part of it, it would
always be open to him to regain the possession of the whole as and when the
licensor may so deem necessary. The question of acquiring common lease
right by a person not a member of the family may not arise. This is a plain
and simple meaning flowing from the definition of the word ’paying guest’
under the Act. Introducing any other element or ingredient to give meaning
to the word ’paying guest’ as may be prevalent under any other law or under
English law will be doing violence to the definition of the word ’paying
guest’ as defined under the Act.
Certain decisions have been referred to by the learned counsel for the
appellant, namely. One reported in 1990 (1) Rent Control Reporter page 470,
Miss Dinoo V. Byramji v. Mrs. Dolly J Jahangir Ranji. The Bombay High Court
in this case has held the occupier to be a ’paying guest’ but the agreement
itself provided that the occupant shall not have any exclusive right to the
use and occupy the room. The meaning of the word ’lodger’ under the English
law has also been referred to and it was observed that retention of control
by the licensor is the determinative factor. But on facts of the case its
own it was held to be a case of a ’paying guest’. One of the decisions
referred to in the above noted decision namely, Kent v. Fittal reported in
1911 Law Reports Kings Bench Division, Vol.2 page 1102 would also not be
very relevant as we are concerned with the word ’paying guest’ as defined
under the Act. Same is the position in regard to the decision reported in
1948 Vol. 2 All England Law Reports 1948 pages 588, Helman v. Horsam. In
that case the court was considering the meaning of the word ’lodger’ as
assigned in context with the provisions of the statutes under consideration
and the English law on the point. It had also referred to the decision in
Kent v. Fittall Anr., case of this court referred to is reported in [1997]
8 SCC 759, Surendra Kumar Jain v. Royce Pereira. Apart from other facts
there was an admission that the person was occupying the premises as a
paying guest. It was also found as fact that one of the bedrooms could be
reached only passing through the accommodation with the occupier but
besides these facts the observations relevant for the purpose of this case
are:
"In our opinion all that is required to make a licensee answer the
description of a "paying guest" is that the licensor also "resides" in the
premises of which a part is in the possession of the paying guest and it is
not required that the licensor should physically reside in the same room as
the paying guest. The words "in which the licensor resides" qualify the
words "premises", which immediately precede the said words and are not
intended to qualify part of the premises" as wrongly assumed by the trial
court."
It appears that the occupier and the licensor were residing on two
different floors. Then too it was observed in para 15 as under:
"It was argued for the appellant that even if the words "premises, in which
the licensor resides" "would not mean the very room, still the licensor
must be using the remaining part of the premises for actual residence and
that in this case the remaining portion of the ground floor was not so
occupied for residence because the owner was living in the first floor. In
our view this contention cannot be accepted. If the ground floor and the
first floor of this building are to be treated as "premises" then the
occupation of the owner of the first floor for "residence" would satisfy
the requirement of Section 5 (6-A)."
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Otherwise also on facts the occupier was held to be a paying guest.
The Legislature, while defending a word or a term, is fully competent even
to assign an artificial meaning to the word (see Kishan Lal v. State of
Rajasthan, AIR (1990) SC 2269). It can also restrict the meaning of a word
by defining it in that manner. Generally, when definition of a word begins
with "means" it is indicative of the fact that the meaning of the word has
been restricted; that is to say, it would not mean anything else but what
has been indicated in the definition itself. There can also be extensive
definitions when the definition starts with "includes". This Court, in the
case reported in P. Kasilingam and Ors. v. P.S.G. College of Technology and
Ors., AIR (1995) SC 1395 observed at page 1400:
"A particular expression is often defined by the Legislature by using the
word ’means’ or the word ’includes’. Sometimes the words ’mean and
includes’ are used. The use of the word ’means’ indicates that definition
is a hard-and-fast definition, and no other meaning can be assigned to the
expression than is put down in definition." (See Gough v. Gough, (1891) 2
QB 665 and Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding
Officer, Labour Court, [1990] 3 SCC 682."
A reference may also be made to Inland Revenue Commissioner v. Joiner,
(1975) 3 All England Law Reports 1050 at page 1061 (HL).
Generally, ordinary meaning is to be assigned to any word or phrase used or
defined in a statute. Therefore, unless there is any vagueness or
ambiguity, no occasion will arise to interpret the term in a manner which
may add something to the meaning of the word which ordinarily does not so
mean by the definition itself, more particularly, where it is a restrictive
definition. Unless there are compelling reasons to do so, meaning of a
restrictive and exhaustive definition would not be expanded or made
extensive to embrance things which are strictly not within the meaning of
the word as defined. No such compelling reason has been indicated to us by
reason of which some more ingredients may be read in the term "paying
guest", other than which simply flow from the definition as provided. In
the case in hand the definition of the word ’paying guest’ begins with "it
means". It is to be read and understood in the manner defined. There would
be no justification to expand or to further restrict it by including or
super-imposing some ingredients or elements which otherwise do not admit of
such inclusion and to give a different colour and meaning to the defined
word. A person answering the description of ’paying guest’ in accordance
with Section 5(6A) of the Act is to be treated as such without requiring
fulfilment of any other condition.
Learned counsel for the appellant submitted that he learned single Judge
erred in following the decision in the case of Sarfarzali (supra) since the
point in question was not directly involved and the division bench had made
observations in a passing way. Even if that be so, in our view, the
division bench was right in making those observations as followed by the
learned single Judge.
We, therefore, find no infirmity in the orders passed by the High Court.
The appeal is, therefore, dismissed devoid of any force. However,
considering the fact that the appellant is in occupation of premises since
a long time we allow him six month time to handover vacant possession of
the premises to the respondents on furnishing usual undertaking to that
effect in this Court within a period of four weeks from today.
Costs easy.