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TMI Blog1975 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ly put, the legal issues are only three: (A) Is a cinema theatre, equipped with projectors and other fittings and ready to be launched as an entertainment house, an 'accommodation' as defined in. s. 2(1) (d) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (U.P. Act III of 1947) (for short, the Act)? (B) If it is an 'accommodation as so defined, what is the impact of the proviso brought in by amendment in 1954 (Act XVII of 1954) (for short, the Amending Act)? (C) If the Act barricades eviction by the landlord because the permises let constitutes an 'accommodation', does the repeal of the Act and exclusion of cinema houses altogether from the operation o the 1972 Act (U.P.. Act 13 of 1972) (for short, the later Act) rescue the right of the appellant-landlord to eject the tenant respondent? The building covered by the suit is admittedly one built and adapted for screening films. The plaintiff had been carrying on cinema business in this theatre for a long number of years but, when he discontinued, the defendant approached him in January 1952 for the grant of a lease of the building with all the equipment and fittings and furniture necessary for his operating the cinema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question was an 'accommodation' within the meaning of the Act The suit, on this view, had to be dismissed. The aggrieved landlord has come up to challenge this judgment. Let us now take a close-up of the definition of 'accommodation' in the Act and apply it to the admitted facts here. Section 2(a), as it stood at the time of the first lease ran thus: "Accommodation" means residential and non-residential accommodation in any building or part of a building and includes, (i) gardens, grounds 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 fitting affixed to such building or part of a building for the more beneficial enjoyment thereof.' The Amending Act added a clause reading thus: "but does not include any accommodation used as a factory or for an industrial purpose where the business carried on in or upon the building is also leased out to the lessee by the same transaction." at the end of clause (a). We have to go by the amended definition in the present case. Since the basic fabric of the demise remained the same notwithstanding several renewals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and reads would have gathered the intendment of the statute. Here is a further complication introduced by the addition of a proviso of sorts by the amending Act and a whole host of authorities on the canons of constriction and functional role of a proviso and its indirect impact on the main provision has been brought to our notice. Does a proviso carve out something from the whole? Does it serve an independent enacting purpose? We do not think that legislative simplicity is all abstruse art, provided we reform our drafting methodology. The Renton Committee in England high-lighted the importance of easy comprehensibility of law and wrote: "There is hardly any part of our national life or of our personal lives that is not affected by one statute or another. The affairs of local authorities, nationalised industries. public corporations, and private commerce are regulated by Legislation. The life of the ordinary citizen. is affected by various provisions of the statute book from cradle to grave." The instant case which deals with a legislation affecting the shelter. of common people brings up the same problem. The main definition of 'accommodation' in the Act brings within its swe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished buildings and that is why 'any furniture supplied by the landlord for use in such building' is treated as part of the building. In the same strain, we may notice, as a matter of common occurrence, many fittings 'such as electrical fittings, sanitary fittings, curtains and venetian blinds and air-conditioning equipment being fixed to the building by the landlord so that the tenant's enjoyment of the tenement may be more attractive. The crucial point is that these additions are appurtenant, subservient and beneficial to the building itself. They make occupation of the building more convenient and pleasant but the principal thing demised is the building and the additives are auxiliary. 'Where the lease is composite and has a plurality of purposes, the decisive test is the dominant purpose of the demise. Forgetting for a moment the clause introduced by the amending Act, it is plain that the furniture and fittings visualized in the concept of 'accommodation' are calculate to improve the beneficial enjoyment of the premises leased. Counsel for the tenant has countered this interpretation by an ingenious and plausible submission. He emphasis that the present building was conceived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing in the present definition which helps this shift in accent. We may reinforce our view from the expressions used, because all the three categories included as additions play a subservant role, while if a business were the subject matter of the lease, the prominent thing will be not what houses the business but the business itself. The building becomes secondary since every business or industry has to be accommodated in some enclosure or building. In all such cases. the lessor makes over possession of the building as part and parcel of the transfer of possession of the business. It would be a travesty of language to speak of a lease of a building when what is substantially made over is a business or industrial plant. How then do we distinguish between a lease of a business or industry housed in a building from a building which has fixtures for more beneficial enjoyment? The former is a protected 'accommodation' while the latter is left for free market operation. In the present case we have to visualize what was the dominant or decisive component of the transaction between the parties, the tenancy of the building qua building or the taking over of a cinema house as a busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o carves out of a larger concept and the argument is that the need for the exclusionary clause itself shows that otherwise factories and businesses are within the operational area of the main definition. There is same validity in this submission but if, on a fair constriction. the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case. In a country where factories and industries may still be in the developmental stage, It is not unusual to come across several such units which may not have costly machinery `or plant or fittings and superficially consist of bare buildings plus minor fixtures. For example, a beedi factory or handicraft or carpentry unit a few tools, some small contrivances or connection of materials housed in a building, will superficially look like a mere 'accommodation' but actually be a humming factory or business with a goodwill as business, with a prosperous reputation and a name among the business community and customers. Its value is qua business, although it has a habitation or building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. "The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail."(Maxwell on Interpretation of Statutes 10th Edn. P. 162) We now move on to `dominant intent' as the governing rule. In our view, the dominant intent is found in leading decision of this Court. Indeed, some State Legislatures, accepting the position that where the dominant intention of the lease is the enjoyment of a cinema, as distinguished from the building, have deliberately amended the definition by suitable changes (e.g. Kerala and Andhra Pradesh) while other Legislatures, on the opposite policy decision, have expressly excluded he rent c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect which the lease was intended to cover. and the building in which the fixtures are located comes in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot he said to be rent payable for any Accommodation to which the Act applies." The ratio of that case is that the Court must apply the test of dominant intention of the parties to determine the character of the lease i.e., what was the primary purpose of the parties in executing the 'document ? the mere fact that the demise deals with a building does not bring it within the ambit of accommodation. In the case before us the fixtures are not for the more beneficial enjoyment of the building. On he contrary, the possession of the building is made over as an integral part of, and incidental to? The making over of the cinema apparatus and costly appliances. In the language of the learned Chief Justice in Uttam Chand case (supra), the 'fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incidentally'. The following dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is due as hire, the lessors have no right to ask for eviction under the Rent Control Act. We think that the attempted division of the lease and separation of rights in regard to two classes of property is in the highest degree artificial, never contemplated by the parties. Here is a lease of a talkie house with everything that is necessary to run cinema shows. To split up such a compo site lease as this into separate contracts of lease and hire is to destroy it altogether. Mr. Ramachandra Iyer argued that the furniture which was covered by the lease fell within the definition of s. 2 of the Act. We do not agree. The observations of the learned Judges in App. No. 590 of 1945 (Patanjali Sastri and Bell JJ.) in dealing with the plant, machinery and other moveables which were demised along with a factory are very apposite in this connection: No doubt in one sense the buildings comprised in the lease deed contain articles supplied by the landlord; but we cannot agree that what was so supplied can be considered in any modern sense as being furniture.' Though in that case the learned Judges were dealing with the lease of factory called the West Coast Match Co., which consisted of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise language used. We do not see any need to discuss these and the other decisions cited before us because we have explained why the conclusion we have reached is in consonance with the sense, purpose and language of the Act. For the same reason we content ourselves with merely mentioning that in Harisingh v. Ratanlal(7) a Division Bench of the Madhya Pradesh High Court held that a fully equipped cinema theatre let out for showing films on a commercial basis. being of a running cinema theatre fell out of the scope of accommodation on the score that costly fittings, fixtures and equipment could, in no sense, be regarded and meant for the b eneficial enjoyment of the building in which the cinema theatre was housed. The primary object and the definitional language used dctermine the issue. Respondent's counsel did try to approximate the definition in the Act to that found in the enactments with reference to which decisions in his favour had been rendered. We do not agree. To hair-split is an unhappy interpretative exercise. Here the plain intendment is to encompass leases of building only (inclusive of what renders them more congenial) but not of businesses accommodated in buildings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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