TMI Blog1975 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... walla, V. J. Francis and Madho Prasad, For the Respondent: V. M. Tarkunde, Hardayal Hardy and P. P. Juneja JUDGMENT KRISHNA IYER, J.- The rent control law has been a rich source of lengthy litigation in the country and the present appeal, by certificate under Art. 133(1)(a) of the constitution, at the instance of the appellant landlord is inustrative of one reason for such proliferation of cases, namely, the lack of clarity in legislative drafting and dovetailing of amendments which have the potential for creating interpretative confusion. The facts are few and may be stated briefly, although, at a later stage, further details may have to be mentioned at relevant places to inumine the arguments advanced on both sides by counsel, Shri R. K. Garg (for the appellant) and Shri V. M. Tarkunde (for the respondent). Shortly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court was that for the purpose of this case, in spite of there being separate documents of lease in respect of the demised properties as referred to above, these sets of contracts may be treated as a single transaction each time'. On these facts and circumstances, we have to decide whether the subject matter of the demise is an 'accommodation' within the meaning of the Act. After settling this issue, the other two points adverted to above may have to be considered. While the trial Judge held that the suit property was not 'an accommodation' within the sweep of the Act. the High Court, on appeal before a Division Bench, could not are and, on account of the difference of opinion between the two Judges who heard the appeal, the case was posted before a third Judge who took the view that the subject matter of the case 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1956 was a confirmation of the same subject matter of the lease.It appears that by now the landlord was fittingnew furniture in the hall and for that reason the rent was increased to Rs. 1200/per month. Similarly, in the lease deed dated 26th May, 1959 the defendants stated that they have taken a cinema hall known as Dwarka Theatre Hall on a monthly rent of Rs. 400/and the furniture of about 500; seats, ceiling, electric fittings, with fans, complete machine, ceiling fans, operating machine and other articles present ill the theatre hall, a list whereof was attached, on a monthly rent of Rs. 1000/-." Let us revert to the law. 'Accommodation', in plainEnglish may cover cinema houses with or without fittings. But legislative. drafting does not always leave things that easy. Had there been a definition of 'controlled accommodation', he who runs 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are directly concerned was executed, there was a running cinema business and further that the rent apportioned for the building qua building was only a fraction of the rent 'for the costly fixtures intended for the cinema business'. Looking at the three problems posed, unaided by the many decisions cited by counsel, we are inclined to the view that a lease Of an 'accommodation' must essentially be of a building not a business or industry together with the building in which it is situated. of course, a building which is ordinarily let, be it for residential or non-residential purposes, will not be the bare walls, floor and roof, but will have necessary amenities to make habitation happy. That is why the legislature has fairly included gradens, grounds and out houses, if any, appurtenant to such building. Likewise, leases some times are of furnished 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have been at pains to explain that the subject matter of the leases covered by the definition of 'accommodation' is 'any building or part of a building'. We have carefully analyses the inclusive expressions in the original definition such as appurtenant gardens grounds and out-houses, furniture for use in the building and fittings affixed to the building. In this statutory context, gardens, out houses, furniture and fittings mean annexures for the better enjoyment of the building. In this sense, the dominant intention must be to lease the building qua building. If that be the intention the rent control law protects. On the other hand, if a going undertaking such as a running or ready-to-launch and fully equipped cinema house is covered by the provision, the emphasis is not so much on the building but of the business, actual or imminent. There 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself being a composite one. Social justice, legislative policy, legal phraseology and presidential wisdom converge to the same point that the scheme of control . includes, as its beneficiary, premises simpliciter and excludes from its ambit businesses accommodated in buildings. To hold otherwise is to pervert the purpose and distort the language of s.2(a). The amending clause, argues Shri Tarkunde" strikes a contrary note. For, if the main definition in itself fences off leases of business and industry, why this superfluous proviso expressly excluding accommodation 'used as a factory or for an industrial purpose where the business is carried on in or upon the building is also leased out to a lessee by the same transaction'? The whole section must be read harmoniously, each part throwing light on the other and redundancy being frowned upon. A proviso 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Dibdin (8); Rex v. Dibdin (4) and Tahsildar Singh v. State of U.P.(5). The law is trite. A proviso must be limited to the subject matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. 'Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context' (1912 A.C. 544). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject matter of the enacting clause, the stand we have taken is sound. To expand the` enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal 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 constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery, would not after the character of the transferred. This is not a lease under which the appellant entered into possession for the purpose of residing the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious that a Mill of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in respect of the building will not make it a base in respect of all accommodation as defined by s. 3(a)(y)(3). he fixtures described in the schedule to the lease arc in no sense intended for the more beneficial enjoyment of the building. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g rent for the ground and superstructure Rs. 800/being hire of furniture Rs.. 800/being hire of talkie equipments and machinery. fittings and lessors' fixtures. We have no hesitation in holding that this splitting is purely notional and nominal and intended probably for purposes relating to the municipal assessment and other extraneous considerations. When we asked Mr. Ramachandra lyer what would happen, in this case when there is an eviction of the lessees from the land building, to the machinery and equipments etc., and whether there was any provision in the deed relating to them, he confessed that there was no specific pro vision in the deed. Obviously they cannot be governed by Madras Act XV of 1946 and so he said they must be governed by the general law of contract. He also conceded that if the lessees paid Rs. 1,600/but defaulted in the payment of the balance 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 eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a running factory, comprising costly machinery intended to be used for manufacture, did not fall within the definition. The question, in each case, the learned Judges pointed out, would be what is the dominant part of the demise and what the main purpose for which the building was let out is. In Amritlal N. Shah v. Annapurnamma(2) the same court held that the lease of cinema did not come within the purview of Madras Act 25 of 1949. Definitional ramifications need not detain us nor decisions turning on them. Shri Tarkunde pressed upon us the decision in Karsandas v. Karanji(3) and Karnani Properties Ltd. v. Miss Augustine(4). One of them did refer to a cinema theatre with fittings and generators. Certain Calcutta decisions,.Kali Prosad v. Jagadish Pada(6) and D. S. Jain v. Meghamale Roy(6) were. also cited before us. all these cases, the decisions turned on the precise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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