1975 (8) TMI 121 - SC - Indian Laws

Whether the lease is of the building, the fittings and other fixtures merely making for the beneficial enjoyment of and ancillary to the building, as urged by the tenant or whether the building provides a bare, though appropriately designed, enclosure to house an enterprise, dominant purpose or real subject of the lease being the cinema, apparatus and fittings, including subsidiarily and incidentally, though necessarily? Whether the cinema, to fall within the exclusionary clause added by the Amending Act, must be actually a going concern with all the licenses for showing films and running the theatre being in the name of the lessor? Held that - Appeal allowed. The lease sued on does not fall within the scope of the definition of accommodation . The appellant is, therefor, entitled to a decree for eviction, in allowance of his appeal.

Issues Involved:
1. Definition of 'accommodation' under the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
2. Impact of the 1954 amendment to the Act.
3. Effect of the repeal of the Act and exclusion of cinema houses from the 1972 Act.

Issue-wise Detailed Analysis:

1. Definition of 'Accommodation':
The primary issue was whether a cinema theatre, equipped with projectors and other fittings, qualifies as an 'accommodation' under Section 2(1)(d) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The term 'accommodation' was defined to include both residential and non-residential buildings along with furniture and fittings for beneficial enjoyment. The court examined whether the cinema theatre, with its equipment, was primarily a building lease or a business lease. It was determined that the lease was essentially for the cinema business, with the building being secondary. The dominant purpose of the lease was the cinema equipment and not the building itself.

2. Impact of the 1954 Amendment:
The 1954 amendment added a proviso excluding accommodations used as factories or for industrial purposes where the business carried on in or upon the building is also leased out by the same transaction. The court deliberated whether this proviso expanded or limited the definition of 'accommodation.' It was concluded that the proviso clarified the exclusion of business leases from the definition, reinforcing that the Act was intended to protect building leases and not business leases. The cinema theatre, being a business lease, fell outside the scope of 'accommodation' as defined by the Act.

3. Effect of the Repeal of the Act and Exclusion from the 1972 Act:
The court considered whether the repeal of the 1947 Act and the exclusion of cinema houses from the 1972 Act affected the landlord's right to evict the tenant. The court noted that the new Act explicitly excluded cinema houses, but since the old Act itself did not cover the suit lease, this point was rendered moot. The landlord was entitled to a decree for eviction based on the old Act's definition and the dominant intent of the lease being for the cinema business.

Conclusion:
The court concluded that the lease in question was not covered under the definition of 'accommodation' as per the 1947 Act. The appellant landlord was entitled to a decree for eviction. The court also directed the trial court to fix the mense profits from the date of the suit and granted one year's time for the respondent to vacate the premises due to the financial and business implications of an immediate eviction. The appeal was allowed, with both parties bearing their respective costs.

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