SURENDRA KUMAR JAIN versus ROYCE PEREIRA

Citation: [1997] SUPP. 5 S.C.R. 221 · Decided: 19-11-1997 · Supreme Court of India · Bench: S.B. MAJMUDAR · Disposal: Dismissed

Judgment (excerpt)

... 
SURENDRA KUMAR JAIN 
A 
v. 
ROYCE PEREIRA 
NOVEMBER 19, 1997 
[S.B. MAJMUDAR AND M. JAGANNADHA RAO, JL] 
B 
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947-
Section 5(3), 5(4A), 5(6A), 5(8), 5(11) and I 5A- 'Paying Guest' and 
'licensee '-Distinction between~Whether the owner must reside in the room C 
in which the paying guests stays-Held, he need not physically reside in the 
same room-Whether de Jure control of the premises sufficient-Held yes. 
The Respondent inducted the appellant in his house as a 'paying guest' 
on a charge of Rs. 120 per month in February/March, 1971. Initially, the 
appellant occupied only one bedroom out of the three bed rooms on the D 
ground floor. After his marriage, the appellant was permitted to use the 
dining hall and the pantry also. Before bringing his wife on 31.1.1974 the 
appellant had executed a letter in which he had admitted that he was staying 
as a paying guest in the property. 
On 2. I I. I 978, Respondent gave a notice to the appellant revoking the E 
permission granted_ to him to occupy the premise as 'paying guest'. In reply 
to the said notice, the appellant claimed that he was staying as a' Licensee' 
in the premise, and not as a 'paying guest'. 
Section 5(6A) of the Bombay Rents, Hotel and Lodging House Rates 
(Control) Act defines 'Paying Guest' as a person not being a member of the F 
family, who is given a part of the premises in which the licensor resides, on 
license. 'Licensee' has been defined in section 5(4A) as the person who is 
in occupation of the premises or a part thereof for license given for a license 
fee or charge but it does not include a paying guest. Any building or part 
of a building let or given on license is 'premises' under Section 5(8) of the G 
said Act. Under section IS(A) of the Bombay Rents, Hotel and Lodging House 
Rates (Control) Act persons in occupation of a premise on J.2.1973 as 
'licensees' become 'tenants' in respect of the premise. 
The Respondent filed a suit for eviction. The appellant filed a suit for 
declaration that he was a tenant in the said premise. In the said suit the H 
221 
222 
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R. 
A appeilant claimed that in a tax assessment proceeding in 1978-79, the 
Respond~nt had informed the Bombay Municipal Corporation that the appellant 
was his 'tenant' and a part of the ground noor of the premises had been 'let' 
out to him at Rs. 200 per month. This, contended the appellant, was an 
admission on part of the appellant. 
B 
The Trial Court decreed the suit of the appellant and dismissed that 
of the Respondent. The Trial Court held that under Section 5(6A) of the 
Bombay Rents, Hotel and Lodging House Rates (Control) Act, to show that 
a person was occupying the premises as a 'paying guest' the owner must 
show that he was residing in the same room in which the paying guest was 
C staying. 
On appeal by the Respondent, the Appellate Court reversed the judgment 
of the Trial Court and held that the appellant was inducted in the premise 
as a 'paying guest' and usage of pantry was allowed on compassionate 
ground. The Appellate Court further found that the dining hall, kitchen and 
D other bedrooms were in control of the Respondent. 
E 
F 
The appellant filed a Writ Petition under Article 226 of the constitution 
of India against the Judgement and order of the Appellate Court which was 
dismissed. Hence these appeals. 
Dismissing the appeals, this Court 
HELD: I.I. The position of a 'paying guest' is similar to the position 
of a 'lodger' in England. If a part is in the use of the 'lodger' and the owner 
retains the control of the whole house, that is sufficient.. The fact that its 
control, in fact, was not exercised by the owner, does not prove that he had 
no control, for many tights exist which nevertheless are not asserted until 
occasion arises to put them into force. If the de ju re control exists, there 
need not be de facto control.1227-F-GI 
Helman v. Harsham & Wsoreniya Assessment Committee, 119481 All 
E.R 588; Kent v. Fitfa//, ll9lll 2 KB ll02, refered to. 
G 
Clive Everard R. William v. Rajni Kriplani, [19931 Born. R.C. 35 and 
Mrs. Dinoo F. Byramji v. Mrs. Dolly J Ramji. I 198811 Born. R.C. 70, relied 
on. 
1.2. 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 
H a part is in the possession of the paying guest and it is not required that the 
' 
S.K. JAIN 

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