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Judgment
In all the writ petitions, the common question is whether the respondents can insist the petitioners to produce licence u/s 35 of the Tamil Nadu
City Police Act (hereinafter referred to as ''the Act'').
Admittedly, the petitioners in W.P.Nos. 2503 and 3340 of 1999 and the members of the petitioner/association in W.P.No. 2728 of 1999 are
doing business of conducting mansion/guest houses. According to them, the mansion, guest houses are buildings consisting of several rooms, where
bachelors and married persons who do not have family within the city of Chennai are permitted to stay on a monthly rent basis sharing
accommodation in rooms. The tourists are also accommodated in the guest houses/mansions run by the petitioners. According to the petitioners,
the monthly rent is collected in advance, and thereby create a tenancy for limited period. With respect to the tourists, it is stated charges are being
collected on a package system and no separate amount is collected for stay in the guest houses/mansions.
It is the further case of the petitioners that petitioners'' building have Wen assessed to property tax by the Corporation of Chennai. But the
respondents 2 to 4, on the instructions of the first respondent/Commissioner of Police, came to the petitioner''s mansion/guest houses and directed
the petitioners to close down the guest houses immediately and warned to seal the premises on failure to close. According to the petitioners, such
step was taken only on the ground that the licence is not obtained from Corporation of Chennai. When the petitioners approached the Corporation
of Chennai to get licence, they were directed to get ''no objection certificate'' from the respondents. But, Police authorities in turn, directed them to
obtain clearance from the Corporation and Chennai Metropolitan Development Authority. In W.P.No. 2728 of 1999, it is stated that the business
of conducting mansion does not fall within the definition of Section 34 or 35 of the Act:
Respondents have filed counter. In the counter, it is specifically stated that the petitioners have to obtain proper licence as contemplated u/s 35
of the Act from the first respondent/Commissioner of Police. It is also specifically stated in the counter that, ""it is false to state that the petitioner
and others were threatened to seal the premises. I submit that this respondent never threatened the petitioner as alleged by him"".
On the basis of the abovesaid averments and counter averments of the parties, it has to be now decided that whether the respondents have
authority to have a control over the petitioners'' business of conducting mansions/guest houses by exercising powers u/s 35 or 37 of the Act.
Section 35 of the Act reads as follows:
Eating houses, hotels, wine shops, fencing schools etc. to be licensed-
No enclosed place or building shall be used as an eating house, coffee house, boarding-house, lodging-house, hotel, tavern, wine, beer or spirit
shop, attack or toddy shop, gymnasium or fencing school, or for the sale or consumption of any intoxicating drug or liquor, without a licence from
the Commissioner: Provided that nothing in this section shall apply to the sale in reasonable quantities of any drug or substance for medical purpose
only, or to any gymnasium or fencing-school of any educational institution controlled or recognized by the State Government.
Section 37 of the Act reads as follows:
Penalty for omission to procure licence as required by Section 34 or 35:
Whoever keeps or uses or permits to be kept or used any enclosed place or building requiring a licence, u/s 34 or 35 without having obtained a
licence as therein required, shall be liable on conviction to fine not exceeding fifty rupees for every day on which such place or building is so used.
Under the said provisions, if it is a boarding house or lodging house, the person conducting the same, should take licence from the
Commissioner of Police, Chennai. If the licence is not procured as required u/s 34 or 35 of the Act. whoever keeps or uses or permits to be kept
or used any enclosed place or building, shall be liable on conviction to fine not exceeding Rs.50 for every day on which such place or building is so
used.
On the basis of the provisions, the learned counsel appearing for the petitioners have submitted that the mansions/guest houses cannot be
construed as a ""lodging house"" as contemplated u/s 35 of the Act. So, the question of taken licence from the Commissioner will not arise. It is their
further case that even if the petitioners have not obtained licence, the petitioners shall be made liable for conviction only in terms of Section 37 of
the Act and the respondents cannot threaten the petitioners with the closure of buildings and sealing the same. In view of the specific averment in
the counter that there was no such threat as alleged by the petitioners, I need not go into the averments made by the petitioners regarding the same.
The only question that has to be decided in the case is that whether the petitioners are liable to take licence u/s 35 of the Act. As stated already,
according to the petitioners, rooms in the buildings are leased out on monthly rent basis. They are not provided any food on payment. In some
cases, the tourists have been accommodated on package system without collecting separate amount for their stay. Oh the basis of the above, it is
the submission of the learned counsel appearing for the petitioners that the mansions/guest houses cannot be treated as lodging houses so as to
bring the same within the mischief of Section 35 of the Act. They have also relied on Section 3(21) of the Tamil Nadu Public Health Act, 1939, in
which, lodging house has been defined as follows:
3(21) ''Lodging house'' means a hotel, a boarding house, a choultry, dharmasala or rest-house not maintained by the Government or a local
authority, an unlicenced emigration depot, or any place where casual visitors are received and provided with sleeping accommodation, with or
without food, on payment but does not include-
(a) a student''s hostel under public or recognized control, or
(b) a house licenced u/s 125 for accommodating visitors to a fair or festival, or
(c) retiring rooms and rest-houses provided by a railway administration and normally used by passengers or railway servants or both.
On the basis of the abovesaid definition, the learned counsel appearing for the petitioners have submitted that only if casual visitors are received
and provided with sleeping accommodation with or without food, in payment, it should be construed as a lodging house. But, in the case of the
petitioners, they have been leasing out the rooms in the premises on monthly rent basis and so, it cannot be construed as lodging houses. I am not
able to accept the said submission.
The ""guest house"" can be referred to a place where the guest of the owner is received and entertained gratuitously or at a concessional rate.
But, in the present case, admittedly, the occupants are allowed to occupy only on payment and it is not the case of the petitioners that they have
been allowed to stay gratuitously or at a concessional rate. I seek support for such conclusion from the judgment reported in Sri Durga Enterprises
(Brindhavan Hotel) Vs. Income Tax Officer, Benaglore-1 and Another, , in which, it is held as follows:
Hence, the expression ""guest-house"" should not be treated as meaning a hotel where customers have to pay for the services rendered. It is
reasonable to hold that it refers to a place where the guests of the assessee are received and entertained gratuitously or at a concessional rate.
The submission of the learned counsel for the petitioners relying on the definition made in Section 3(21) of the Tamil Nadu Public Health Act
that the persons who are staying are not casual visitors and so, the mansions guest houses cannot be construed as lodging houses so as to enable
the respondents to bring the petitioners under the scope of Section 35 of the Act, cannot be accepted. A ''casual visit'' means a visit which cannot
be defined as regular visit, which occurs with any fixed regularity or at uncertain intervals. So, from the above and also from the affidavit regarding
the nature of business that the petitioners are doing, it is clear that the occupants in the mansions/guest houses can be construed only as casual
visitors, as their stay is not permanent only as casual visitors, as their stay is not permanent and not for any fixed person on in the case of tenants
and so, the said definition of casual visit will also apply to the petitioners. Merely because the petitioners are allowing the occupants for longer time
in the premises, it cannot be construed that the premises are not lodging houses.
''Lodging houses'' is the term applied to houses containing furnished apartments which are let out by the week or by the month, without meals.
Where a house is under the direct control and supervision of the owners, rooms are furnished and attended to by them, and they or their servants
retain the keys thereto, a person renting a room therein becomes a lodger, and not a tenant, since a ''lodging house'' is none the less such because it
contains furnished apartments that are let by the week or month. In this case, admittedly, the control with respect to the premises, was not given up
by the Proprietor. If only such a control is given, the person who occupies can be construed as a tenant. In all other cases, it can be construed that
the persons who are occupying the rooms can be construed only a lodgers.
From the above, it is clear that the building in question on the basis of the nature of business being conducted by the petitioners, cannot be
construed other than lodging houses. So, the petitioners are liable to take licence u/s 35 of the Act. So, it is for the petitioners to apply for licence
to the Commissioner after complying with all the requirements.
When the respondents have come forward with the specific plea that the petitioners are not threatened to seal the premises or close the
premises, the petitioners apprehension regarding such threat cannot be accepted.
In view of the above findings, writ petitions are dismissed. No costs. Consequently, W.M.P.Nos.3575. 3880 and 4756 of 1999 are closed.