K. Kuppusamy Gounder vs The Board of Revenue and Others

Venkataraman, J.—The Petitioner in these petitions filed an application, dated 8th December 1966 before the Collector of Tiruchirappalli

for renewal of the C form licence for the year 1967 for running a cinema, Ambika Talkies, Karur. The Collector by order dated 10th November

1967 refused the renewal of the licence. The appeal of the Petitioner was dismissed by the Commissioner of Land Revenue and Food Production,

by order, dated 8th April 1968. The writ petitions have been filed against the said order,-dated 8th April 1968 confirming the order of 10th

November 1967. One is for the issue of a writ of certiorari to cancel the orders. The other is for a writ of mandamus directing the authorities to

renew the C form licence in favour of the Petitioner. The main question involved in the petitions is whether as claimed by the Petitioner he is entitled

to the benefit of the Madras Buildings (Lease and Bent Control) Act, XVIII of 1960, (referred to hereinafter as the Buildings Control Act of 1960)

and claim that he is entitled to continue as a tenant under the statute, notwithstanding the termination of the lease in his favour by the owners of the

building represented before us by the third Respondent, Venkata-subbayya Chettiar. He is the sole contesting Respondent before us, the

Commissioner and the Collector being the first and the second Respondents.

It is common ground that when the lease was current, it was evidenced by two lease deeds, dated 9th May 1961 and 9th June 1961. The lease

of 9th May 1961 was for a period of one year from 10th April 1961 and was in respect of the building as such and stipulated for a rent of Rs. 700

per month. It recites that the cinema projector and the connected machinery installed therein and belonging to the Petitioner (lessee) should be

security for the due payment of the rent. The second lease deed, dated 9th June 1961 was also for the same period of one year from 10th April

1961 and was in respect of the furniture, fixtures and other equipment mentioned in the deed, worth in all Rs. 15,000 and the stipulated rent was

Rs. 300 per month. The articles which are mentioned are benches, back-benches, chairs, sofas, cushioned chairs, electric fans, exhaust, electric

fans, electric wiring, iron switches, electric light switches, main line connection, wiring to the projector in the cabin room, sound room and ceiling

sheets, and other movables. At the end there is a recital that the fire extinguisher, the municipal water connection and sanitary fittings were also

included in the description of movables. The parties are also agreed that, though there were two separate deeds, they together formed one

transaction. In fact, the counter affidavit of the third Respondent states that the transaction was put in the form of two different agreements only for

the purpose of municipal assessments and other tax purposes and exhibiting a lower rate of rent for the building as such.

It is also common ground that C form licences were issued from year to year upto the end of 1966. The third Respondent issued a notice, dated

24th July 1967 terminating the lease, but the Petitioner contended before the authorities that nevertheless he was entitled to continue as tenant

under the Buildings Control Act, 1960. The order of the Collector shows that this contention was opposed by the lessors on the ground that the

lease was a composite lease in that it included not merely the buildings as defined under the Act, but something more and that, therefore, the Act

could not be invoked at all by the Petitioner. This contention was supported by the citation of the decision of a Bench of this Court (Rajamannar C.

J., and Basheer Ahmed Sayeed J.) in Writ Appeal Nos. 151 and 160 to 162 of 1959, reported as Om Prakash v. Commissioner of Police ILR

(1960) Mad. 490. The Collector accepted this contention and hence refused the renewal of the licence. The Commissioner of Land Revenue

based his order on the ground that after 9th April 1962 the Petitioner had not taken any action to get the lease renewed, that his possession could

not, therefore, be considered as lawful, that the case was on all fours with those disposed of by the High Court in the writ appeals mentioned

above and that, therefore, the Collector was justified in declining to grant the renewal.

Before examining the decision relied upon, it will be convenient to quote Rule 13 of the Madras Cinematograph Manual, framed under the

Madras Cinemas Regulation Act IX of 1955, for the noncompliance of which rule the licence was refused. It states:

If the Applicant for the licence is the owner of the site, building and equipment, he shall produce to the licensing authority the necessary records

relating to his ownership and possession thereof. If he is not the owner, he shall, to the satisfaction of the licensing authority, produce documentary

evidence to show that he is in lawful possession of the site, building and equipment.

In Om Prakash v. Commissioner of Police ILR (1960) Mad. 490 the main judgment was in Writ Appeal No. 151 of 1959, directed against the

order of Rajagopala Ayyangar J., in Writ Petition No. 1002 of 1959. It will be convenient to refer first to the decision of Rajagopala Ayyangar J.

Om Prakash Guptha, the Petitioner in the writ petition and the Appellant in the writ appeal, had taken on lease a theatre with the furniture and

equipment from T.R. Rajakumari from 1955. The lease was duly extended up to 21st September 1959 and Om Prakash Guptha was able to

obtain the C form licence under the Act of 1955 up to 31st October 1959. The lessor refused to renew the lease after 21st September 1959. The

lessee pleaded before the licensing authorities that nevertheless he was entitled to continue as a statutory tenant under the provisions of the Madras

Buildings (Lease and Rent Control) Act, 1949 (Act XXV of 1949), the Act then in force, which contained a definition of building similar to the

definition in the present Act of 1960. The licensing authorities, however, did not accept his contention and hence the writ petition was filed. The

same contention was repeated before Rajagopala Ayyangar J., but the learned Judge rejected the contention, following the decision of Rajamannar

C.J., and Krishnaswami Naydu J., in Raja Chetty v. Jagannathadas Govindas ILR (1960) Mad. 490. The short ground of the decision of

Rajagopala Ayyangar J., was that Act XXV of 1949 was not applicable as the lease was not one of a building and furniture only. This decision of

Rajagopala Ayyangar J., was confirmed in Writ Appeal No. 151 of 1959, where also the decision in Raja Chetty v. Jagannathadas Govindas ILR

(1960) Mad. 490, was followed with approval. It is, therefore, necessary to go back to the decision in Raja Chetty v. Jagannathadas Govindas

ILR (1960) Mad. 490.

What was leased there was

all the piece of ground with the new cinema theatre including the buildings and stall erected there on known as ''Maharani Theatre or Maharani

Talkies''... together with all easements and appurtenances whatsoever thereunto belonging and also all the fixtures, fittings, cinematographic talkies

equipments, machinery furniture, scenery and things in, upon and about the said theatre specified in the inventory thereunder.

There was only one lease deed, but the monthly rent of Rs. 3,200 was expressed to be made up as follows: (i) Rs. 1,600 being the rent for the

ground and superstructure; (ii) Rs. 800 being the hire of furniture; and (iii) Rs. 800 being the hire of talkie equipment, machinery, fittings and

lessors'' fixtures. The petition for the eviction of the lessee was filed under the provisions of the Madras Buildings (Lease and Rent Control) Act

(XV of 1946), on the ground of wilful default in the payment of rent. The application was resisted by the lessee (tenant) on the ground that the

subject-matter of the lease was not a mere building as defined in the Act, that the Act was, therefore, not applicable and that the Rent Controller

before whom the application was filed under the Act had no jurisdiction. The Rent Controller was evidently not inclined to uphold the contention,

but he held that there was no default. On appeal, however, it was held that there was default and eviction was ordered. Against that the writ

petition was filed. The learned Judges upheld the contention of the lessee that the lease in question was not governed by the provisions of Madras

Act XV of 1946, because the subject-matter of the lease was not a mere building as defined in the Act, but something more. It. may be mentioned

straightaway that the definition of building contained in all the three Acts (XV of 1948, XXV of 1949 and XVIII of 1960) is the same and is as

follows:

Building "" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes--

(a) the garden, grounds and out-houses, if any appurtenant to such building, hut or part of such building or hut let or to be let along with such

building or hut,

(b) any furniture supplied by the land-lord for use in such building or hut or part of a building or hut,

but does not include a room in a hotel or boarding house.

The reasoning in S. Raja Chetty and Another Vs. Jagannathadas Govindas and Others, was this:

In our opinion the lease in question is not governed by the provisions of Madras Act XV of 1946. That Act regulates only the letting of residential

and nonresidential buildings. In Section 2 building has been defined as to include the garden, grounds and outhouses, appurtenant to the building

and furniture supplied by the landlord for use in such building. In the case before us, there is no lease of a mere building or a building with

compound and furniture of the sort covered by the definition. The lease is of land and building together with fixtures, fittings, cinematographic talkie

equipments, machinery and other articles.

Lower down they hold that the splitting up of the rent was artificial and was immaterial and the rent should be considered as one and indivisible. In

following this decision with approval, Rajagopala Ayyangar J., stated in Writ Petition No. 1002 of 1959:

Though Mr. Seshadri attempted to distinguish this decision on certain terms contained in the lease in the present case the matters mentioned were

really of no substance. There can therefore be no dispute that the lease was a composite one comprising both the building as well as the machinery

and the equipment so as to attract the principle laid down by this decision.

It is this reasoning which was followed in Writ Appeal No. 151 of 1959 and in the other writ appeals-Writ Appeal Nos. 160 to 162 of 1969. It

may be noted that the subject-matter of the lease was the theatre with the furniture and talkie equipment which also belonged to the lessor. In the

present case, however, it is common ground that the projector and the connected machinery belonged to the Petitioner (lessee) and were not the

subject-matter of the lease. To that extent, therefore, there is a difference between this case and the decisions cited above. But it may be

mentioned that in Writ Petition No. 1020 of 1959. (D. Shanmugha Raja, Trustee of Sivaganga Devasthanam v. The Deputy Commissioner., H.R.

& C.E. (Adm.) Dept. Thanjavur and Anr.). decided by Rajagopalan J., and relied upon on behalf of the third Respondent before us, the projector,

etc., belonged to the lessee, but still the learned Judge followed the decision in Om Prakash Guptha''s case ILR (1960) Mad. 490 on the ground

that besides the buildings and the furniture, the lease included fire-fighting appliances, like fire extinguishers, fire buckets and stirrup-pumps, which

could not be termed furniture within the meaning of the definition in Section 2 of the Act, 1949, and on that reasoning refused to interfere with the

decision of the Board of Revenue refusing to renew the licence in favour of the writ Petitioner.

It seems to us, however, that the decision of this matter must rest on a different criterion laid down by their Lordships of the Supreme Court in a

more recent decision in Uttamchand Vs. S.M. Lalwani, The criterion laid down there is that the Court must ascertain what was the dominant

intention of the parties in executing a document or documents- If the dominant intention was to let only the building, then the lessee could invoke

the protection of the Buildings Control Act, but if the dominant intention was something else, he would not be entitled to the benefits of the Act.

The Act concerned in the case before the Supreme Court was the Madhya Pradesh Accommodation Control Act (XXIII of 1955). The term

used was accommodation, and Section 3 (a) defined it as meaning:

(x) any land which is not being used for cultivation;

(y) any building or part of a building, and it includes-

(1) garden, open land and out-houses, if any, appurtenant to such building or part of a building;

(2) any furniture supplied by the landlord for use in such building or part of a building;

(3) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.

The matter arose out of an application filed by the lessee to the Rent Controller to fix the fair rent payable for the property demised u/s 9(1) of the

Act. The lessor resisted it on the ground that the property demised was not accommodation within the meaning of the Act. The objection was

overruled and the Bent Controller fixed the fair rent at Rs. 2,400 per annum, (though the rent stipulated in the deed was Rs. 6,000). The lessor

went in appeal to the District Judge who remanded the matter for taking into account some other matters for fixation of the rent. The lessor then

moved the High Court. The High Court upheld the contention that the Act was not applicable at all. Against that the lessee filed the appeal in the

Supreme Court. The question before their Lordships was, therefore, whether the lease in question was in respect of accommodation as defined by

Section 3 (a) (y) (3). After pointing out that, if the question was to be answered against the Appellant, he would have to fail, their Lordships

observed at page 718:

We must now look at the material clauses of the lease itself. The lease describes the lessor as the, owner of the Dal Mill building situated in Mandi,

Abdiabad, Bhopal, and it adds that the said Dal Mill building has fixed machinery and other accessories described in the schedule to the lease. In

other words, the lease is in respect of the Dal Mill building with fixed machinery and other accessories. Lower down:

The lessee undertook to return the machinery and other accessories of the said Dal Mill in working order and Bound condition, subject to usual

wear and tear.... The schedule attached to the lease describes 15 items of the machinery fixed in'' the building which was covered by the lease.

The Appellant''s case as put forth before them was that the lease in question was a lease mainly of the building itself and only incidentally it took in

the machinery which had been fixed in the building'' His learned Counsel contended that in construing the lease they must apply the test of the

dominant intention of the parties. He quoted two cases and urged that the question in each case would be what was the dominant part of the

demise and what was the purpose for which the building was constructed and let out. Their Lordships accepted this argument and observed at

page 719:

In our opinion, this contention is well founded, and so, we must determine the character of the lease by asking ourselves as to what was the

dominant intention of the parties in executing the document.

What follows must be quoted in full:

As we have already noticed, Section 3 (a) (y) (3) takes within the definition of accommodation any building or part of a building, including any

fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. There can be no doubt that the fittings of the

machinery in the present case cannot be said to be fittings which had been fixed for the more beneficial enjoyment of the building. The fittings to

which Section 3 (a) (y) (3) refers are obviously fittings made in the building to afford incidental amenities for the person occupying the building.

That being so, it is clear that the fittings in question do not fall u/s 3 (a) (y) (3). If the fittings in question had attracted the provisions of Section 3 (a)

(y) (3) there would have been no difficulty in holding that the lease is in respect of accommodation as defined by the said provision.

What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of

the lease and it seems to us plain that the dominant intention of the Appellant in accepting the lease from the Respondent was to use the building as

a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the

matter, because even if the intention of the parties-was to let out the Mill to the Appellant, the building would still have to be described as the Dal

Mill building. It is not a case where the subject-matter of the lease is the building and along with the leased building incidentally passes the fixture of

the machinery in regard to the Mill; in truth, it is the Mill which is the subject-matter of the lease and it was because the-Mill was intended to be let

put that the building had inevitably to be let out along with the Mill. The fact that the Appellant 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 alter the character of the

transaction. This is not a lease under which the Appellant entered into possession for the purpose of residing in 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 lease in respect of an accommodation as defined by Section 3 (a) (y) (3). The fixtures described in the schedule to the lease are 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 be said to be rent payable for any

accommodation to which the Act applies.

It will be noticed that in the Madras Act of 1960 (as well as the preceding Acts, XV of 1946 and XXV of 1949). the definition of building

which corresponds to the definition of accommodation in the Madhya Pradesh Accommodation Control Act, while mentioning garden, etc., and

the furniture supplied by the landlord for use in such building or part of such building, does not expressly include the words,

any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof

which are included in the definition of accommodation in the Madhya Pradesh Act. But we do not think that this makes any difference. In our

opinion, the criterion of dominant intention should be applied even to decide the question arising under Madras Act of 1960, with which we are

concerned.

There are two main reasons for our saying this. The first is that even though the definition of building in Section 2 of the Madras Act of 1960 does

not contain the words in question

any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof there are indication in the other sections of the

Act and the rules to show that these words must necessarily form part of the definition of building, (It may be noted that the definition is only an

inclusive definition and not exhaustive.) This has been explained in detail in a recent decision of one of us (Ramamurti J.) Isherdas Sahni and

Brothers by Partner V.N. Sahni Vs. Rajah V. Rajeswara Rao and Others, at pages 241-245. Take for instance Section 3(5) of the Act. The

section requires the landlord to give notice to the authorised officer within seven days of a building becoming vacant. The Government can decide

within the period whether to take the building for occupation by the Government or any of their servants. Sub-section (5) says that if the building is

so required by the Government the landlord shall deliver possession of the building and the fixtures and fittings in or on the buildings in good

tenantable repairs and condition to the authorised officer or to the allottee named by the authorised officer, as the case may be, and the

Government shall be deemed to be the tenant of the landlord. It will be noticed that this provision speaks of the fixtures and fittings in or on the

buildings, though these words are not included in the maim definition in Section 2. Again Section 4 of the Act of 1960 enacts how fair rent should

be fixed by the Controller on application by the tenant or the landlord. In the case of a residential building the fair rent shall be fixed at six per cent

on the total cost of the building, and the total cost of the building shall consist of the market value of the site and the cost of the construction of the

building and shall include inter alia, such other amenities as may be prescribed. Similarly, Sub-section (3) says that the fair rent for a non-residential

building shall be at 9 per cent per annum on the total cost of such building and the total cost shall include the market value of the site and the cost of

the construction of the building and shall include such allowances as may be made for considerations of locality in which the non-residential building

is situated features of architectural interest, accessibility to market, nearness to the railway station and such other amenities as may be prescribed

and the purpose for which the non-residential building is used. Explanation I to Rule 9 states that in the case of class I and class II buildings the

cost of construction shall include the cost of installation of cup-boards (built-in), lofts racks, sanitary fittings in bath-rooms, distempering or

emulsion painting in drawing room, first-class electrical installations excluding tube-lights and fans. Rule 10 lists out the amenities to be taken into

account in calculating the cost of construction of residential buildings. Rule 13 is the relevant rule in the case of non-residential buildings and says

that when calculating the cost of construction of non-residential buildings allowances shall be made for the following amenities in addition to those

specified in Section 4(3):

(1) air-conditioning;

(2) lifts

(3) electric fans;

(4) tube-lights;

(5) number of electric points;

(6) fans;

(7) ventilators;

(8) electric pump for water;

(9) flush-out;

(10) fixed wash-basins;

(11) stair-cases;

(12) out-houses;

(13) cattle-sheds;

(14) garden or vacant ground appurtenant to the building enjoyed by the tenant; and

(15) usufructs of trees, if any, enjoyed by the tenant.

It will be seen that Rules 9, 10 and 13 include what has been described in the Madhya Pradesh Accommodation Control Act as

any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.

It is also relevant to note here itself that the Madras Act of 1960 contains provisions indicating that a non-residential building may be let for a

particular purpose and will still come within the ambit of the Act, and if so, it should not be a matter for surprise that the building is provided with

fittings adapted for the particular purpose for which the building is let. It would follow therefrom that the presence of fittings adapted for the

particular purpose for which the building is let, even though they are somewhat unusual and are peculiar only for the particular purpose, would not

by itself be sufficient to take the building out of the control of the Act. Thus, the definition itself speaks of a building let for residential and

nonresidential purposes. Section 4(3), as we have seen, requires the Controller in fixing the fair rent of a non-residential building to take into

account the purpose for which the non-residential building is used. Similarly Section 10 (2) (ii) (6) enacts that a tenant shall be liable to be evicted if

he has without the written consent of the landlord used the building'' for a purpose other than that for which it was leased.

We have thus arrived at the position that, though the definition of building in the Madras Act of 1960 does not itself contain the words,

any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof,

which occur in the Madhya Pradesh Accommodation Control Act, considered by the Supreme Court, there are other provisions in the Madras

Act and the rules framed thereunder showing that the words in question must by implication form part of the definition of building. Hence the

criterion of dominant intention applied by their Lordships of the Supreme Court in the case under the Madhya Pradesh Accommodation Control

Act, cannot be avoided in the case of the Madras Act of 1960 on the mere ground that the definition of building does not contain the words in

question.

The second reason for our stating that the criterion of dominant intention would be applicable to the Madras Act also is this. Though the

Madhya Pradesh Accommodation Control Act included in the definition of building

any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof,

their Lordships pointed out that the fittings which existed in that case would not really be said to be fittings for the more beneficial enjoyment of the

building as such and would not, therefore, fall within the definition of fittings in Section 3 (a) (y) (3); but even in such a case they held that the

relevant criterion was one of dominant intention of the parties. In other words, they did not rest their decision on the ground that just because the

fittings in that case would not fall within the definition of fittings for the more beneficial enjoyment of the building as defined in Section 3 (a) (y) (3),

the case was taken out of the protection of the Act. The decision, therefore, shows that even in a case where the subject-matter of the lease

includes some items which do not fall within the definition of building or accommodation as the case may be, we should not straight away say that

the inclusion of those items will suffice to take the subject-matter of the lease outside the purview of the concerned Act, but we should go further

and find out what is the dominant intention of the parties. In that particular case, no doubt, their Lordships, after examining the lease, came to the

conclusion that the dominant intention of the parties was to lease, the machinery and that the lease of the building was only incidental. But the

reasoning proceeds on the basis that in another case the application of the criterion of dominant intuition may result in just the opposite conclusion,

namely, that the dominant intention of the parties was only to let the building or accommodation as defined in the concerned Act.

We must add that both Sri Vedantachari the learned Counsel for the Petitioner and Sri Mohan Kumaramangalam for the third Respondent

conceded before us that, in view of the enunciation of the principle of dominant intention by their Lordships of the Supreme Court in the case under

the Madhya Pradesh Accommodation Control Act it must govern the decision of the question arising under the Madras Act of 1960, but each

Counsel was interested in arguing his own case. Thus, the learned Counsel for the Petitioner submitted that the dominant intention in this case was

the lease of the building as such, but the learned Counsel for the third Respondent contended that the dominant intention was the lease of the

fixtures and fittings which were primarily intended for running a cinema theatre, though the building could also be used at times for conducting

drama or music performances and that the lease of the building was incidental .We have, however, no doubt whatsoever that the application of the

criterion of dominant intention to the case before us must necessarily result in a finding in favour of the Petitioner. It is needless to say that the

question must be considered by taking into account the recitals in the two deeds as a whole, but it would facilitate analysis if we considered the

provisions separately to start with. The building was really the most valuable item of the subject-matter of the lease; the apportionment of the rent

as Rs, 700 itself shows it. The items of furniture like back-benches, chairs, sofas, cushioned chairs were all furniture supplied by the landlord for

use in the building and would fall within the definition of Section 2(2) (6) of the Act itself. The electric fans would also, in our opinion, form part of

the furniture for use in the building, and are also specifically mentioned as an amenity in item 3 of Rule 13. The exhaust electric fans also would, in

our opinion, be an amenity, particularly considering the purpose of the letting for the cinema house, though exhaust fans are not specifically

mentioned in Rule 13. The electric wiring, iron switches, electric light switches and the main line connection would also be fittings for use in the

building or be amenities. The next items are wiring to the projector in the cabin room, wiring to the sound room and wiring to the ceiling sheets and

the fire extinguisher. We shall revert to these items presently. The last items are the municipal water connection and the sanitary fittings. These

would either be fittings or amenities falling within Rule 13. All these items considered so far will, therefore, form part of the building and will not be

sufficient to take the subject-matter of the lease out of the definition.

We have now to consider more closely the wiring to the projector in the cabin room, wiring to the sound room and wiring to the ceiling sheets,

and the fire extinguisher. So far as the fire extinguisher is concerned, it seems to us that it will also be an article of furniture or amenity, considering

the purpose of the letting, namely, as a cinema house, and will not, therefore, be sufficient to take the case out of the Act-Sri Parasaran who

argued at first on behalf of the third Respondent, relied on the fact that fire extinguishers. are mentioned specifically in form D, the certificate to be

issued by the Chief Electrical Inspector, under Rule 40 of the rules under the Madras Cinemas (Regulation) Act, 1955. (Vide page 60 of the

Manual, 1967 edition). That merely shows that the Chief Electrical Inspector has to be satisfied that fire extinguishers in good working order are

provided before the licence could be issued under the Madras Cinemas (Regulation) Act. That would not suffice to shows that just because fire

extinguishers were supplied by the lessor to the lessee, the dominant intention of the lease was not to let the building, but only the fire extinguishers

and other like appliances. We may add that Sri Mohan Kumaramangalam, who came a bit later, did not seriously contend that the presence of fire

extinguishers would have a bearing on the question of dominant intention. In fact, he conceded that even in the case of an ordinary big dwelling

house fire extinguishers may be provided by the lessor. He, however, contended that the wiring to the projector in the cabin room, wiring to the

sound room and wiring to the ceiling sheets would make all the difference on the question of dominant intention and, taken with the purpose as

letting for use as a cinema house, would show that the dominant .intention of the parties was not to lease out the building, but to lease out the said

wiring to the projector in the cabin room, sound room and the ceiling sheets, and also the items of furniture, etc. We are, however; entirely unable

to accept this argument. We have already drawn attention to the provisions in the Act like Sections 2, 4 and 10, showing that just because a

building is let for a particular purpose, it does not cease to be letting of the building and that, consequently, the presence of the fittings designed for

that particular purpose of the letting would not take the letting out of the control of the Act. In this particular case, the fittings in question, in

particular, the wiring to the projector in the cabin room, sound room and the ceiling sheets, were adapted for the purpose of letting as a cinema

house and would not take the letting out of the Act. It may be noted that the projector and the connected machinery were provided by the lessee.

Even if the projector and the connected machinery had belonged to the lessor and was part of the lease, the question may still remain whether it

would make any difference to the dominant intention and I, for my part, reserve consideration of the question till a concrete case arises. But, where

the projector and the connected machinery belong to the lessee and is not the subject-matter of the lease, I think there is very little room for

argument that the dominant intention was not the letting of the building but something else. We have taken into account all the circumstances as a

whole and have no hesitation in coming to the conclusion on the facts of this case that the dominant intention was the letting of the building as such

together with the furniture and the fixtures the furniture, fixtures and the amenities being incidental thereto, in other words, on the criterion laid down

by their Lordships of the Supreme Court, the Petitioner would be entitled to the benefit of the Madras Buildings Control Act, 1960, and should

therefore, be considered to be in lawful possession, after the termination of the tenancy by the third Respondent.

The learned Counsel for the Respondent, however, urged that even so, the matter would have to be sent back to the Commissioner to find out

whether the Petitioner would still satisfy the other conditions before the licence could be renewed. We find from the order of the Collector and the

order of the Commissioner that the defects pointed out had all been rectified and. therefore, there is no need to send back the matter to the

Commissioner for any farther enquiry.

Sultan Brothers (P) Ltd. Vs. Commissioner of Income Tax, contains useful observations on the question of dominant intention in the letting of a

building. The case arose under the Indian income tax Act, 1922. There was a lease of a building fitted with furniture and fixtures for being run as a

hotel. The lessor was the Assessee and he claimed that the income should be assessed u/s 12 with the allowances prescribed therein, in Sub-

sections (3) and (4), which ran as follows:

(3) Where an Assessee lets on hire machinery, plant or furniture belonging to him, he shall be entitled to allowances in accordance with the

provisions of Clauses (iv), (v), (vi) and (vii) of Sub-section (2). of Section 10.

(4) Where an Assessee lets on hire machinery, plant, or furniture belonging to him and also buildings, and the letting of the buildings is inseparable

from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the provisions of the Clauses (iv), (v),

(vi) and (vii) of Sub-section (2) of Section 10 in respect of such buildings.

It was common ground that the income from the hire of the furniture and fixtures was rightly assessed u/s 12, after providing for the allowances

mentioned in Sub-section (3). The dispute was only about the assessment of the income from the building. The Revenue claimed that the building

had to be assessed u/s 9 dealing with the income from the building simpliciter, which could not permit of the allowances prescribed in Section

12(4). The Revenue contended that Section 12 would not apply because the dominant intention of the lease was only letting of the building as such

and that for the purpose of Section 12 (4) the letting of the building should be incidental to the letting of the furniture and the fittings. That

contention was repelled by their Lordships of the Supreme Court and it was pointed out that Section 12 (4) did not postulate any dominant

intention and simply postulated for its applicability that the letting of the building was inseparable from the letting of the machinery, plant or furniture.

In that connection their Lordships made further observations as to why the criterion should not be applied to that case. They observed at page

1394:

It is pertinent to ask that if the intention was that the letting of the plant, machinery or furniture should be primary, why did not the section say so.

Furthermore, we find it practically impossible to imagine how the letting of a building could be incidental to the letting of furniture, though we can

see that the letting of a factory building may be incidental to the letting of the machinery or plant in it for the object there may be really to work the

machinery. If we are right in our view, as we think we are, that the letting of a building can never be Incidental to the letting of furniture contained in

it, then it must be held that no consideration of primary or secondary lettings arises in construing the section for what must apply when furniture is

let and also buildings must equally apply when plant and machinery are let and also buildings. We think all that Sub-section (4) of Section 12

contemplates is that the letting of machinery, plant or furniture should be inseparable from the letting of the buildings.

Thus when testing the argument of the Revenue, their Lordships pointed out that that argument, if valid, should apply even in a case where''

only furniture and a building were let out, the words in the section being machinery, plant or furniture. But their Lord-Ships found it practically-

impossible to imagine how the letting of a building could be incidental to the letting of furniture. Hence, on the criterion of dominant intention,

Section 12 (4) would be practically a dead-letter in the assumed case. It followed that the criterion of dominant intention'' was not relevant u/s 12

(4) of the income tax Act, 1922. The observation.

We find it practically impossible to imagine how the letting of a building could be incidental to the letting of furniture,

would apply with even greater force in the case of wiring to the projector, sound room and the ceiling sheets, they cannot be anything so costly as

the furniture.

Karnani Properties Ltd. Vs. Augustin, was a case which arose under the provisions of the West Bengal Premises Rent Control (Temporary

Provisions) Act, 1950, The definition of premises (materially) was-

''Premises'' means any building or part of a building or any hut or part of a hut let separately and includes--

(a) the gardens, grounds and out-houses if any appertaining to such building or part of a building or hut or part of a hut;

(b) any furniture supplied or any fittings affixed by the landlord for use of the tenant in such building or part of a building or hut or part of a hut; ....

There were about 210 flats of different types and shop rooms in Karnani Mansions let out separately to tenants. In each case the tenancy consisted

of a single room, bath and covered verandah. The tenant had also the use of a number of fans, plug points, towel racks, besides basin, commode

and glass shelf. The landlord also supplied, without any additional charge, electrical energy for consumption by the tenant for the use of lamps, fans,

radio, ovens for cooking, for ironing, laundering and refrigerators. The landlord was also responsible for repairs to the electric installations and

sanitary fittings, as also for supplying service of night guards, sweepers, liftmen, etc. The tenant in each case applied to the Bent Controller of

Calcutta u/s 9 read with schedule A of the Act for fixation of standard rent in respect of the flat occupied by the Applicant. The landlord contended

that the Act was not applicable to the tenancy in question. The contention was repelled and rent was fixed by the authorities on some basis. The

contention was repeated by the landlord before the Supreme Court. The contention proceeded on the basis that, besides the furniture and the

fittings, the landlord also supplied electric power without any fresh charge and provided service of night guards sweepers, liftmen, etc., and that the

provision of the electric power and the services would take the case out of the category of the Act. Their Lordship., repelled the contention,

observing at page 311:

The definition of "" premises"" set out above is in very wide terms and includes not only gardens, grounds and out-houses, if any, appertaining to a

building or part of a building, but also furniture supplied by the landlord for the tenents'' use and any fittings affixed to the building, thus indicating

that the legislature was providing for all kinds of letting, The definition of "" premises "" and "" hotel or lodging house"" between them almost exhaust

the whole field covered by the relationship of landlord and tenant, subject to the exceptions noted in the definition of ""premises "".

....

...the question reduces itself to this: whether, if by a stipulation between the landlord and the. tenant the landlord agrees to provide for additional

amenities like electric power for consumption and such other facilities, the ease is taken out of the operation of the Act. The Act is intended ""to

make better provision for the control of rents of premises "". It has defined "" premises "" in very wide terms, as pointed out above. Hence it is

difficult, if not impossible, to accept the contention that the legislature intended the provisions of the Act to have a limited application depending

upon the terms which an astute landlord may be able to impose upon his tenants. In order fully to give effect to the provisions of the statute, the

Court has to give them the widest application possible within the terms of the statute. Having those considerations in view, we do not think that the

supply of the amenities aforesaid would make any difference to the application of the Act to the premises in question.

Lower down, after referring to some English decisions, they observed:

Those English decisions are authorities for the proposition that '' rent'' included not only what is ordinarily described as rent in an agreement

between a landlord'' and a tenant but also payment in respect of special amenities provided by the landlord under the agreement between him and

his tenant. The term '' rent'' has not been defined in the Act. Hence it must be taken to have been used in its ordinary dictionary meaning. If, as

already indicated, the term ''rent'' is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and

occupation not only of the building and its appurtenances but also of furnishings, electric installations and other amenities agreed between the

parties to be provided by and at the cost of the landlord, the conclusion is irresistible that all that is included in the term '' rent'' is within the purview

of the Act and the Rent Controller and other authorities had the power to control the same. In view of these considerations we overrule the first

contention raised on behalf of the Appellant.

As I read the decision, the Counsel for the landlord Appellant does not seem to have urged before their Lordships that the case could be taken

out of the Act because of the presence of the fittings and amenities like fans, plug points, towel racks, commode and glass shelf. That was

presumably because the definition of premises included fittings affixed by the landlord for use of the tenant in the building or part of the building.

Still the decision is clear authority for the position that the presence of the fixtures there did not take the case out of the operation of the Act. The

decision would apply equally to the case before us. We have already pointed out that, though the definition in the Madras Act does not expressly

mention the word fittings, it must be held to have included it by necessary implication.

The above decision was followed by Natesan J. in Nanda v. Lahshmanaswami ILR (1968) 2 Mad. 765. The building with furniture and

electric fittings, electric wire, switches, etc., was let out for a cinema. The projector, however, belonged to the lessee. It was contended on behalf

of the landlord that because of the electric fittings, wire, switches, etc. it would mean that there was a lease of a building plus something more and,

therefore, the tenant could not invoke Act XVIII of 1960.; The landlord relied on S. Raja Chetty and Another Vs. Jagannathadas Govindas and

Others, . The learned Judge repelled the contention. He pointed out that, though the definition in Act XVIII of 1960 did not contain the word

fittings, there were other provisions in the Act which showed that the definition should include fittings by necessary implication. He relied on the

decision of the Supreme Court in Karnani Properties Ltd. Vs. Augustin, in support of his reasoning. So far I am in respectful agreement with the

learned Judge. He, however, made some observations distinguishing S. Raja Chetty and Another Vs. Jagannathadas Govindas and Others, by

stating that there, machinery and cinema equipment were also let out, that the hire charges therefor were a substantial part of the total rent fixed and

what was let was a running cinema concern. He summed up the position thus (at page 788):

In the case of a composite lease, where a substantial part of the rent goes in hire of machinery and plant, the Act cannot apply. What is thereby

leased is not a theatre simpliciter, but a running cinema business with all its accessories. The Act controls and regulates only the letting of buildings

and not transfer of business concerns and running businesses, for periods together with the buildings. The question for consideration in each case

would be whether what is leased is a theatre building with its normal adjuncts as a building constructed to serve as a theatre, or something more

than a building--am equipped cinema house.

It must be remembered that the learned Judge did not have the benefit of the decision of the Supreme Court in Uttamchand Vs. S.M. Lalwani,

The decision of the Supreme Court had not yet been reported. In my view, the observations of the learned Judge require to be recast making the

dominant intention as the criterion.

I do not think that we are called upon to decide whether the decisions in the two cases, viz., S. Raja Chetty and Another Vs. Jagannathadas

Govindas and Others, and Om Prakash v. Commissioner of Police ILR (1960) Mad. 490 would be correct on the criterion of dominant intention.

The earlier decision was rendered under the Madras Act XV of 1946 and the next decision was under Madras Act XXV of 1949. Some of the

provisions in the Madras Act XVIH of 1960 on which we have relied were not present in those earlier Acts.'' Thus, in Section 3 dealing with the

requisition by the Government of a building, there was no provision that the landlord should hand over the fixtures and fittings to the authorised

officer, just as is to be found in Section 3 (5) of Madras Act XVIII of 1960. Similarly the criterion in Section 4 in fixing the fair rent under the

earlier Acts of 1946 and 1949 was different and did not contemplate the Controller taking into account the fixtures and amenities as he is required

to do under the Madras Act XVIII of 1960. The rules under the Madras Act of 1946 may be found at pages 232 and 233 of the Rules

Supplement to Part II of the Fort St. George Gazette, dated 15th October 1946, and the rules under the Madras Act of 1949 may be found at

pages 121 to 127 of the Rules Supplement to Part II of the Fort St. George Gazette, dated 3rd July 1951, and they are reproduced in the M.L.J.

edition of the commentaries; for instance, 1959 edition from page 236 onwards. In spite of these differences, we do not see any reason why the

criterion of dominant intention, which if we may say so with respect, is a sound criterion, should not be held applicable even to a consideration of

the question arising under the Madras Acts of 1946 and 1949. It is, however, unnecessary to decide whether the actual decisions in S. Raja

Chetty and Another Vs. Jagannathadas Govindas and Others, and Om Prakash v. Commissioner of Police ILR (1960) Mad. 490 can be

sustained on the application of the criterion, of dominant intention. We, however feel free to observe that the decision of Rajagopalan J., in Writ

Petition No. 1020 of 1959 (and we say this with the greatest respect to the learned Judge) must be held to have been wrongly rendered on this

criterion of dominant intention, because in that case, the projector, etc., belonged to the lessee, and the learned Judge held that the case was taken

out of the Act merely because the lease included fire fighting appliances like fire extinguishers, fire buckets and stirrup-pumps, which could not be

termed furniture within the meaning of the definition in Section 2 of the Act of 1949.

The criterion of dominant intention was applied by Ramamurti J., in Isherdas Sahni and Brothers by Partner V.N. Sahni Vs. Rajah V.

Rajeswara Rao and Others, . After an exhaustive examination of the facts of that case, the learned Judge held that the dominant intention was only

to lease out the building for use as a cinema. Since the decision seems to be under appeal, I do not wish to say anything further.

In Kali Prasad v. Jagadish Pada AIR 1958 Cal. 149 a Bench of the Calcutta High Court had to consider the definition of the word premises in

Section 2(8) of the West Bengal Premises Rent Control (Temporary Provisions) Act, XVII of 1950, with reference to the lease of the premises for

a cinema. (That Act is contained at pages 1 to 104 of B.B. Das Gupta''s Rent Control Acts and Orders in India and Pakistan). The definition

included the use of any furniture or fittings affixed in the building. The Bench held that the machines which were used for carrying on the cinema

business and which were also the subject-matter of the lease, would also form part of the furniture and fittings as defined in the Act, that the lease

came under the control of the Act and that the tenant was entitled to the benefit of the Act. This decision was followed by another Bench of the

same High Court in Jain v. Meghdmala Roy (1964) 68 Cal. W.N. 1136 in a case where the building belonged to one person, the machinery

belonged to another person and the furniture to another but all the three were leased or hired under the same lease deed, as one transaction. The

cases were not, however, decided with reference to the criterion of dominant intention.

Karsandas v. Karsanji AIR 1953 Sau 113 was a decision under the Bombay Rents, Hotel and Lodging House Rates (Control) Act LVII of

1947. (This Act also is to be found in Gupta''s book). Premises there were defined as meaning,

Any building or part of a building let separately including, among other things, any furniture supplied by the landlord for use in such building or part

of a building and also including any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.

In that case the lease included furniture and Electric fittings and also a generator for generating electricity, which was a fitting affixed to the building.

It was held that there was a lease of the premises within the meaning of the Act. The criterion of dominant intention was, however, not applied.

In Venkayya v. Subbarao AIR 1957 A.P. 619 the criterion of dominant intention was applied by Viswanatha Sastri J. and Krishna Rao J.

It was Observed at page 627:

Here we have a lease of a running factory comprising costly machinery intended to be used for the manufacture of oil. In our opinion, the

provisions of the Madras Buildings (Lease and Rent Control) Act, do not govern the rights of the parties under the lease, Exhibit B-12.

The decision is obviously distinguishable from the present case. So also the decision in Uttamchand Vs. S.M. Lalwani, .

The writ petitions will have to be allowed for the reasons already mentioned.

The learned Counsel for the Petitioner, however wanted us to mention that he was taking another point that the third Respondent could not be

said to have any legal grievance entitling him to be heard in this petition. At this stage the learned Counsel for the third Respondent raised the point

that the petitions, were liable to be dismissed in limine because the Petitioner did not implead the third Respondent when filing the writ petitions and

the third Respondent had to file a petition to get himself impleaded. The learned Counsel relied on the decision of the Supreme Court in Udit

Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, But, since the third Respondent has actually been impleaded, it seems

to us that this last objection cannot prevail.

In the result, a writ of certiorari will issue quashing the orders of the Commissioner and the Collector, and a writ of mandamus will issue

directing the Collector to renew the C form licence for the year 1967 as prayed for. The parties will bear their own costs in the writ petitions.

Ramamurti J.--(3) I have perused the judgment of my learned brother and I entirely agree with his reasonings, conclusion and final order.

Having regard to the importance of the points raised, I desire to deliver a separate judgment on certain aspects.

The lease of the cinema theatre in question, Ambika Talkies,Kana, was renewed year after year from April 1961 till the lessors made an

attempt to terminate the lease by issuing a notice to the lessee on 24th July 1967. It is unnecessary to refer to the lease deeds for the period 1952

to 1961. The two main questions which arise for decision are

(i) whether the lease in question is a lease of a building as defined in the Madras Buildings (Lease and Rent Control) Act, 1960, hereafter referred

to as the Act, and (ii) even if the lease in question is lease of a building within the meaning of the Act plus some other items of movables and fittings,

is the lessee still entitled to the protection of the Act entitling him to a renewal of the licence under Rule 13 of the rules framed under the Madras

Cinemas Regulation Act. In my decision in the Odeon Theatre case reported in Isherdas Sahni and Brothers by Partner V.N. Sahni Vs. Rajah V.

Rajeswara Rao and Others, in which case the basic facts were similar, (putting aside minor differences). I have upheld the contentions of the

tenant. We are told that my judgment is under appeal and my endeavour shall be to make minimum reference to that decision of mine. Even so I

may mention that arguments of Mr. Mohan Kumara-mangalam, learned Counsel for the landlord in the instant case, have not persuaded me to

change my view.

There are two lease deeds in the instant case, one is in respect of the building as such for a monthly rent of Rs. 700/. That lease deed expressly

recites that the cinema projector and the connected machinery and the equipment had already been installed in the theatre by the lessee and they

belong to him.'' The other lease deed comprises the furniture, fittings and other items of moveables stated to be of the value of Rs. 15,000 on a

monthly rent of Rs. 300/. The articles which are enumerated in the latter lease deed are benches, back benches, chairs and sofas with or without

cushions, electric fans exhaust fans, iron switches electric wiring, electric light switches, wiring connection to the projector, cabin room sound

room, ceiling sheets and other moveables including fire extinguishers kept in the theatre sanitary fittings and municipal water connection, etc. The

arguments on both sides before us proceeded on the footing that even though there are two lease deeds; both of them together form one

inseparable integral transaction. Indeed, in the counter affidavit filed on behalf of the lessors, the specific stand is taken that even though the

transaction is put in the form of two separate agreements it was so done, only for the purposes of municipal assessments and other tax purposes

and that both the lease deeds should be read together as one indivisible transaction, i.e., a single lease comprising the building, the furniture, fittings

and other items of moveables mentioned above. I may also add that it is established law that it is not competent to the parties the landlord and the

tenant, to enter into an arrangements under which the tenant gives up his right under the statute and whatever may be the form in which the

agreement is entered into, Courts will have undoubted jurisdiction to scrutinise the terms of the tenancy and find out the real substance of the

bargain between the parties ignoring, if necessary, the particular stipulation or the particular language employed by the parties. The Court will look

at the substance of the transaction and not the form alone.. Vid S. Raja Chetty and Another Vs. Jagannathadas Govindas and Others, Karnani

Properties Ltd. Vs. Augustin, Welch v. Nagy (1950) 1 K.B. 455, 464, Regor Estates Ltd. v. Wright (1951) 1 All E.R. 219, 223, 224, and

Samuel v. Salmon and Gluckstein Ltd. (1945) 2 All E.R. 522. (See also Sultan Brothers (P) Ltd. Vs. Commissioner of Income Tax, paragraph

19). I have made these preliminary observations to emphasise, that if, instead of two deeds, the parties had embodied the bargain in one deed and

if the tenant on the terms thereof would be entitled to the protection of the Act, such protection cannot be denied to him merely because the parties

have chosen to put the transaction in the form of two deeds.

Learned Counsel, Mr Mohan Kumaramangalam, relied upon the two Bench derisions of this Court reported in S. Raja Chetty and Another

Vs. Jagannathadas Govindas and Others, known as the Raja Chetty case governed by the provisions of then Madras Act XV of 1946 and the

other in Om Prakash v. Commissioner of Police ILR (1960) Mad. 490 in support of his contention that as the lease in the instant case includes-

various items of movables and fittings the lease cannot be said to be a lease of the building within the meaning of the Act. The starting point of

discussion on this aspect is the judgment of S. Raja Chetty and Another Vs. Jagannathadas Govindas and Others, . Even at the threshold it must

be mentioned that in that case the lease, in addition to fittings, included fixtures, i.e. cinematograph talkie equipment, projector and other machinery

connected therewith. The learned Chief Justice took the view that several items included in the lease deed in that case were outside the scope of

the definition of building in the Act of 1946. In the later Bench decision, Om Prakash v. Commissioner of Police ILR (1960) Mad. 490 the

judgment on behalf of the Bench was delivered by the learned Chief Justice, and there too, the lease in question included the cinematograph talkie

equipment like projector and machinery. The definition of building in the three successive Acts, Madras Act XV of 1946, Madras Act XXV of

1949 and Madras Act XVIII of 1960 which is the Act that applies to the case, is the same. Building is defined as follows:

building"" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes--

(a) the garden, grounds and outhouses, if any appurtenant to such building, hut or part of such building or hut and let or to be let along with such

building or hut or part of such building or hut,

(b) any furniture supplied or any fittings affixed by the landlord for use in such building or hut or part of a building or hut,

but does not include a room in a hotel or boarding house. It is true that this definition only takes in furniture and does not expressly take in fittings

or fixtures I may extract the out-quoted passage at page 698 of the learned Chief Justice in Raja Chetty''s Case (1949) 2 M.L.J. 694:

In our opinion, the lease in question is not governed by the provisions of Madras Act XV of 1946. That Act regulates only the letting of residential

and nonresidential buildings. In Section 2, building has been defined as to include the garden, grounds and hut-houses appurtenant to the buildings

and furniture supplied by the landlord for use in such building. In the case before us there is no lease of a mere building or a building with

compound and furniture of the sort covered by the definition. The lease is of land and building together with fixtures, fittings, cinematographic talkie

equipments, machinery and other articles.

On a careful consideration of the reasoning of the learned Chief Justice, I am inclined to take the view that the decision was mainly influenced by

the import-ant fact that the lease included cinematographic talkies equipment. I am aware that in that passage, there is reference to fixtures and

fittings. Even so, I am of the view that the presence of talkie equipment was the crucial factor on which the ultimate decision of the Court rested. I

shall, therefore, directly Address myself to the consideration of the question whether the inclusion of the electrical fittings and other items of

movables enumerated in the lease would take the building out of the purview of the Act even when the cinema talkie equipment belonged to the

lessee. It is necessary to observe that even if it should be assumed that the Bench decision in Raja Chetty''s case (1949) 8 M.L.J. 604 is also

authority for the position that the mere inclusion of fittings and other items of movables in lease deed, (the lessee, however, being the owner of

cinema talkie equipment), would take the lease out of the purview of the Act, this narrow interpretation of the definition clause can no longer apply

in view of the provisions of Act XVIII of 1960 and the rules framed thereunder. There is also the further important fact that the decision of the

Supreme Court in Karnani Properties Ltd. v. Miss Augustine AIR 1967 S.C. 809 warrants the adoption of a wide interpretation of the definition

clause, in view of various factors which go into the computation and the fixation of the fair rent whenever any dispute arises. The observations in

the decision of the Supreme Court aforesaid, clearly indicate that Courts should take note of the factors which enter into fixation of the fair rent as

having a direct bearing upon the interpretation of the definition clause. In the Act of 1946 and the rules framed thereunder, there is no indication

concerning the fittings. Section 4 which deals with fixation of fair rent makes no mention of these fittings and amenities. Rule 3 of the 1946 rules,

with regard to Section 15, does not throw much of a light. The situation under the Act of 1949 and the rules framed thereunder in 1951 was the

same as in 1946. But the Madras Act XVIII of 1960 and the rules, amongst other things, contain new provisions both in the body of the Act and

in the rules which clearly indicate that the interpretation of the definition of the building must be very wide and comprehensive and that it would

undoubtedly takes in fittings and even fixture the only condition being that they should be for the more beneficial enjoyment of the building, bearing

in mind, the particular purpose for which it was let, residential or non-residential. It is futile hereinafter to rely upon any limited or narrow

interpretation of the definition clause. In my judgment in the Isherdas Sahni and Brothers by Partner V.N. Sahni Vs. Rajah V. Rajeswara Rao and

Others, have analysed in detail the relevant provisions of the Act and the rules; in particular Section 3, Sub-section (5) of the Act and Rules 10 and

13 which warrant the wide interpretation of the definition as including the fittings and other items of movables. My learned brother too has dealt

with the scope of the Act of 1960 and the rules framed thereunder in elaborate detail. Therefore it is unnecessary to burden this judgment with an

extract of the provisions of the Act and the rules. (Vide Isherdas Sahni and Brothers by Partner V.N. Sahni Vs. Rajah V. Rajeswara Rao and

Others, The section providing for notice of vacancy, Section 3 Sub-section (5) in the Act of 1949, contains reference only to the building but in the

Act of 1949, contains reference only to the building but in the Act of 1960, the corresponding provision, re. notice of vacancy, in view of Section

3, Sub-section (5), which specifically includes the fixtures and fittings, in or on the building. After this new provision in the Act, bearing in mind, that

the definition clause is an inclusive definition it is impossible to hold that fittings and fixtures if included in the lease would take the building out of the

purview of the Act. All the three Acts apply to letting of building for non-residential purposes and in the nature of things, the landlord will be

interested in providing the building with fittings and other amenities necessary and suited to the particular nonresidential purpose. It is only then he

can hope to secure a good return. Whether residential or non-residential, in a great majority of the cases, every building would have been fitted

with various kinds of fittings, electrical and sanitary. In many of the corresponding rent control legislations in the other States; some of the Acts

define building as including fittings and some as including fittings and fixtures. I am not prepared to take the view that in our State, the Legislature

deliberately wanted to restrict and adopt a very narrow definition of a building. If our Legislature did not specifically include fittings and fixtures in

the definition, it is only because of the fact that the definition itself is an inclusive definition. As pointed out by the Supreme Court in The State of

Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, the words used in an inclusive definition, denote extention and cannot be

treated as restricted in any sense and it would not be appropriate to put a restrictive interpretation in the case of an inclusive definition unless there

is anything in the context to the contrary. The only indication to the contrary in the inclusive definition of building is that it would not include a room

in a hotel or a boarding house. In a Bench decision of this Court in Mammad v. Assistant Controller (Estate Duty) ILR (1962) Mad. 31 the scope

of an inclusive definition, was considered and it was held that the word including cannot be read as a term of limitation or precise definition and that

it is a word of enlargement rather than restriction Srinivasan J., delivering the judgment of the Bench observed as follows at page 42:

There are several enactments where the definition clause contains the expression to mean and include in which even it maybe regarded that an

exhaustive explanation of the things intended to be caught in the net of the section is specified But, where the expression is merely '' including'' it

does not seem to us that the expression is used to have a restrictive operation and to confine the scope of the section only to those things specified

in the words following.

It is unnecessary to refer to other cases in which the same view was taken that an inclusive definition whenever the word including is used must be

construed as comprehensive and that the word including is a term of extension importing addition and adding to the subject-matter already

comprised in the definition. This Act is a remedial measure meant for the protection of the tenants and to guard against unreasonable eviction and

collection of excessive rents. It is not right to adopt an interpretation which would frustrate the purpose of the legislation and would exclude a

majority of buildings from the operation of the Act. I am not prepared to assume that the object of the Legislature was to restrict this beneficial

measure, to buildings simplicitor and to exclude buildings having fittings and other amenities.

I examined the definition clause in the various rent control legislations in other States contained in Gupta''s book Bent Control Acts and Orders

in India and Pakistan (1951, second edition) and I find the earliest is the Bengal House Rent Control Order of the year 1942 in which in the

definition clause, the house is defined in the identical manner as the definition of building in the Madras Act of 1946. In the legislations which came

in subsequently both in Calcutta and other places, I find that the definition of the building or the premises or the accommodation takes in fittings in

some Acts and fittings and fixtures in other Acts. But in all of them, there is the condition that they must be for the beneficial enjoyment of the

building. If one can speculate, the Madras Act of 1946 has simply adopted the definition in the Bengal House Rent Control Order of 1942 and

repeated the same definition in the subsequent Acts. In fact in Madras, Rent Control Orders were issued by the Madras Government by virtue of

the powers delegated under the Defence of India Rules, from time to time, between 1942 and 1945 to afford relief to the tenants and to prevent

unreasonable eviction and adjust profiteering in rent. The problem daring that period was the protection that had to be given to the tenants in

respect of non-residential buildings in particular, and when the Defence of India Rules ceased to be in force from October 1946, the Madras

Legislature enacted the Rent Control Act of 1946. I am not prepared to take the view that the Madras Legislature deliberately excluded fittings

with a view to restrict the scope of the definition clause. On the contrary, I may reiterate that if furniture and other amenities were not expressly

included in the definition clause it was because of the fact that the definition is an inclusive definition and in the normal course of dealings, the lease

of the building would take in building with the fittings and other amenities. If the narrower view were to be accepted, it would be very easy for the

landlords to circumvent and evade the provisions of the Act making them not to serve any purpose. The landlord has only, to put a few fittings,

sanitary fittings, bath tub, wash basin, etc. and electrical fittings like tube lights, ornamental lights, etc., and thus take the building out of the scope of

the Act. The landlord may also put in other items of movables like exhaust fans, etc. One can easily visualise how the landlord can render the Act

wholly unworkable and a dead letter by his putting such small items in the building either by way of fittings or otherwise. I am not prepared to place

such an interpretation which would place the tenants and the operation of the Act at the tender mercies and the arbitrary whims and caprice of the

landlord. I find nothing repugnant in the subject or context so as to warrant the interpretation that the building with furniture would come under the

Act but a building with some fittings would take it out of the purview of the Act.

In the lease deed in the instant case, there are no fixtures at all. I see no substance whatsoever in the contention of learned Counsel for the

lessor that the special electric wiring (assuming it to be so) meant for the projector, the main connection, sound room or the inclusion of particular

types of switches, iron or otherwise, necessary for a cinema theatre would take the building out of the purview of the Act. These are all only

amenities for the beneficial enjoyment of the building. In the case of residential buildings, it will be idle and meaningless to contend that providing for

special electric wiring to take in power supply in the kitchen department for particular use of electrical appliances would take the building out of the

purview of the Act. If such a contention has to be ruled out in the case of residential buildings, I do not see why a different principle should be

applied in the case of a non-residential building where the building is fitted with the particular wiring necessary for the particular non-residential

purpose to which the building is intended to be used.

In Chakravarthy v. Union of India ILR (1965) 1 Mad. 372, Ramachandba Ayyar C.J., had to consider the question of fixation of fair rent

under the Madras Act of 1960 with reference to the electric installations in the building. The learned Chief Justice had observed that electric

installations, air condition apparatus, tube lights, electric points, etc., would certainly be all amenities provided for the convenient enjoyment of the

building. The learned Chief Justice had also referred to Rule 10 framed under the Act and pointed out that a building can exist with or without these

amenities and that these amenities cannot be considered as part of the building but only as amenities provided for the convenient enjoyment of the

building. If a building without electrical fittings would be a building within the meaning of the Act, it is absurd to hold that if electrical fittings and

electrical installations are also provided in the building, the Act would cease to apply, to such a building. The point to be noticed in this decision is,

that though these amenities do not form part of the building, the Act would nevertheless apply. A building can be furnished or unfurnished. Furniture

too is not and cannot form part of the building in the strict sense of the term, but the Legislature by reason of the inclusive definition includes the

furniture. Once, the rule of wide interpretation of an inclusive definition is accepted, a provision in the building, for other amenities cannot make any

differenced

It only remains to refer to the decision of the Supreme Court in Karnani Properties Ltd. Vs. Augustin, on which considerable reliance was

placed by Mr. Vedantachari. In that case, the landlord was the owner of a big block of flats. The tenant was entitled to the use of number of fans,

plug points electric lift, etc., at the same time, the tenant was entitled to supply of electrical energy at the expense of the landlord, for the use of

lamps, fans radio ovens for cooking, refrigerator, etc., etc. A dispute arose about the fixation of the fair rent under the West Bengal Premises Rent

Control Act, 1950. That Act would apply only if the premises would amount to a building within the definition clause. In that Act the definition

clause included not only furniture but also fittings affixed by the landlord for the use of the tenant in the building. The contention urged there was

that the premises thus defined would not include tenement with such fittings and special facilities agreed by the landlord to be supplied to the tenant.

The Supreme Court pointed out that the definition of the premises was in very wide term and will include every amenity provided by the landlord.

It is relevant to mention that the Supreme Court in holding that the definition clause should be given the widest application possible relied upon the

fact that the term rent has not been defined in the Act and that rent in the ordinary dictionary meaning would be comprehensive enough to include

all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building but also for the furniture, electrical

installations and other amenities provided by the landlord. The Supreme Court has further observed at page 812:

In order fully to give effect to the provisions of the statute, the Court has to give them the widest application possible within the terms of the statute.

Haying those considerations in view, we do not think that the supply of the amenities aforesaid would make any difference to the application of the

Act to the premises in question.

The enumeration of various items of amenities in rales 10 and 13 framed under the Madras Act of 1960 manifests the clear intention of the

Legislature that the definition clause must be given a wide and comprehensive meaning so as to include fittings and other movables kept in ''the

building for its more beneficial enjoyment. Any restricted interpretation of the definition clause would not only not fit in with the scheme of the Act

but would defeat its purpose altogether.

Mr. Mohan Kumaramangalam conceded that the inclusion of the fire extinguishers would not take the building out of the purview of the Act. In

Writ Petition No. 1020 of 1959, the cinema equipments belonged to the lessee. Yet Rajagopalan J. held that because of the presence of the fire

extinguishers, fire buckets and syrup pumps, the Act would not apply. According to the learned Judge, these items are not and could not be

termed as furniture, but would be some miscellaneous items not coming within the definition clause. The learned Judge took the view that once the

lease was terminated, the tenant could not be said to be in lawful possession of these items which are made necessary under the Cinematograph

Rules for a person to run a cinema theatre. With great respect to the learned Judge, we are unable to agree with this view. Rule 13 only mention of

evidence of the lawful possession of the site, building and equipment.

When the Chief Electrical Inspector issues the certificate under form D, he is only concerned with the actual physical existence of these items in the

theatre in a good and working condition and the Act does not contemplate the Chief Electrical Inspector embarking upon any investigation of the

question of lawful possession as in the case of Rule 13. A. perusal of the language employed in paragraph 2 in form D containing reference to the

various rule shows that the Chief Electrical Inspector is only concerned with the simple fact, i.e. the existence of these items in the theatre. I am not

prepared to hold that at every stage a person who applies for a licence to run a cinema theatre should go ready prepared for investigation and a

judicial determination as to how he became entitled to the various items which the rules require him to have in the theatre.

On his own showing, if the existence of the fire extinguishers is not of any consequence, learned Counsel Mr. Mohan Kumaramangalam could

stress only the point, that the iron switches and the electric wires kept in the building are not for the more beneficial use of the building, but are of a

special make (and) standard meant for, the use of the projector and the sound equipment. These are the only items which learned Counsel could

pick out from the enumerated items which according to him are not meant for the more beneficial enjoyment of the building. I for my part see no

substance whatever in this contention. '' In many cases, landlord may not be willing to furnish or supply the building with refrigerators, or electrical

appliances in the kitchen or electric heater in the bath room but he may merely provide electric connections by sufficient wiring in the concerned

portions or a partments of the house taking particular care to put the requisite wire for taking supply of high Power electrical energy in case any

particular tenant wishes to have, at his own expense, such items. For that purpose the landlord would also have provided special mains with three

phase connected with the special electric wiring which can take heavy load. Still the lease will be a lease of a residential building. I am not prepared

to hold that a different principle would apply in the case of a non-residential building, These are all mere amenities provided in the nonresidential

building having regard to the particular purpose or use to which the building was intended to be put to.

I shall now examine the second question formulated by me. Assuming that the lease must be understood to include not only the building under

the narrow definition in the Act but also some other items Whether fittings or and, some other miscellaneous items of movables would that take the

case out of the purview of the Act. It is here learned Counsel for the lessor urged that Raja Chatty''s case (1949) 2 M.L.J. 694 is authority for the

position that the inclusion of extra items like fittings or other items of movables would not exclude the operation of the Act, even if the cinema

equipment belongs to the lessee.

At this stage, one general observation has to be made concerning the law of fixtures, bearing in mind that many of the incidents the English law

of fixtures does not apply in India. By fixtures is meant chattels and other items affixed to the property so as to make them part of the land or/and

building and what is relevant to consider is whether these articles are so attached or a fixed as to form part of the premises and if so, whether the

tenant may remove them on the termination of the lease. The landlord or the lessee might have attached and fixed these chattels to the property

leased and that is why these fixtures are called fixtures of the landlord or the lessee as the case may be. These chattels which are affixed to the land

or building generally fall into two categories. If the object of the affixture was for the more beneficial enjoyment of the building, the article may be

deemed to be a fixture, but if it was attached to the premises for the more complete, effective and beneficial enjoyment and use of it is a chattel,

then it will not lose its chattel character. An electric motor fastened to the earth by bolts and nuts for the use of the water pump is fixture; it is for

the more beneficial enjoyment of the building in which it is installed. In a shed taken on lease, the tenant may instal and affix a petrol bunk with

tanks embedded underneath the ground with connection to the pump. Though this is a fixture because of the mode of annexation, this is affixed not

for the beneficial enjoyment of the building but for a complete and effective enjoyment of the petrol tank and the pump, i.e. the chattel. To take

another illustration, a lessor of a big godown in which cotton bales or other commodities are stocked by third parties for rent in terms of weight,

may affix and instal a big weighing bridge taking foundation into the ground and using bolts and nuts, instead of having the weighing machine just on

the ground. Here the machine is affixed for its more beneficial and effective enjoyment of the chattel. To take yet another illustration, a person may

take a non. residential building for lease and instal printing machines to be worked with electric motors. Though these are fixtures having regard to

the manner of annexation, the chattel, i.e. the printing press is fixed to the earth for its more beneficial and effective enjoyment as press. It is

unnecessary to multiply instances and it is sufficient to refer to the statement of the law in XXIII, Halsbury''s laws of England (Third edition), pages

498 to 494, paragraphs 1123 to 1127 where several illustrations are given on the point. I am referring to the following extract in Wood/all on

Landlord and Tenant (1960) twenty-sixth edition, at page 764, where the learned author has adverted to this aspect that if the item or items are

attached and affixed to the premises only for the more complete, effective and beneficial enjoyment of these items, they ore all chattels and will not

lose their chattel character.

The two principal circumstances are: first, the mode of annexation to the soil or fabric of the house, and the extent to which it is entitled to them,

whether it can easily be removed integer Salve at commode, or not, without injury to itself or the fabric of the building; secondly, on the object and

purpose of the annexation, whether it was for the permanent and substantial imporvement of the dwelling, in the language of the civil law, perpetui

usus causa, or that of the Year Book, per un profit del inheritance, or merely for a temporary purpose, or the more complete enjoyment and use of

it as a chattel. If machines be attached slightly, by screws or otherwise, so as to be capable of removal without the least injury to the fabric of the

building or to themselves, and the object and purpose of the annexation was, not to improve the inheritance, but merely to render the machines

steadier and more capable of convenient use of chattels, they do not become ""fixtures"" or part of the freehold, any more than a carpet would be

which is attached to the floor by nails for the purpose of keeping it stretched out, or curtains, looking-glasses, pictures and other matters of an

ornamental nature, which have been slightly attached to the walls of the dwelling house as furniture, and which is probably the reason why they and

similar articles have been held in different cases to be removable.

It will thus be seen that the chattel may be affixed by the landlord either for the more beneficial enjoyment of the building or the complete and

effective enjoyment of the chattel itself. In the ease of fixtures of the former category, the building would still be governed by the rent control

legislations in several States, where the, inclusive definition expressly takes in not only furniture and fittings but fixtures also. For the reasons already

mentioned, thus even though fixtures have not been expressly included in the definition in the Madras Act, I would hold that the building would still

be governed by the Act provided the fixtures are for the more beneficial enjoyment of the building. If the fixtures of the kind that they are not for

the beneficial enjoyment of the building as such but for the most advantageous and effective enjoyment of the fixtures as such, the Act would not

apply to such fixtures. But still the question remains whether the inclusion of such fixtures not meant for the more beneficial enjoyment of the

building would take the buildings out of the purview of the Act. In considering this question, it does not matter under what category these extra

items would fall, whether they are fittings or fixtures or some anomalous items of moveables; the principle will be the same so long as they are items

not for the beneficial enjoyment of the building. In such cases, the doctrine of dominant intention propounded by the Supreme Court in Uttamchand

Vs. S.M. Lalwani, should be the crucial test to determine whether the lease would be a lease of the building within the meaning of the Act. As to

the principles and the ratio laid down in this decision regarding the theory of dominant intention it is important to bear in mind that this decision dealt

with a case under rent control legislation In that ease, a Dal mill building in Mandhi (Bhopal) was leased and the lease comprised the Dal mill

building, the fixed machinery and accessories enumerated in detail in the schedule to the lease deed. The lease deed also included several items of

fittings and fixtures. The Madhya Pradesh Accommodation Control Act which governed the lease in question contains a definition of the terms

accommodation as a building including furniture and fittings affixed, to such building for the more beneficial enjoyment thereof. The Supreme Court

first cleared the ground by observing that if the fittings and the fixtures were fittings and fixtures for the more beneficial enjoyment of the building,

the Dal mill would clearly come under the definition of building and that there would have been no difficulty in holding that the lessee was entitled to

the protection of the statute. The Supreme Court, on the facts, found that the fittings and the fixtures described in the schedule to the lease were for

the more beneficial enjoyment of the machinery and it is in this particular context that the theory of dominant intention was propounded and

discussed. I may here extract the relevant observations of the Supreme Court at page 719:

In our opinion, this contention is well-founded, and so, we must determine the character of the lease by asking ourselves as to what was the

dominant intention of the parties in executing the document.

* * * *

What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of

the lease and it seems to us plain that the dominant intention of the Appellant in accepting the lease from the Respondent was to use the building as

a Dal Mill. It is true that the document purports to be a lease in respect of the Dall Mill buildings; but the said description is not decisive of the

matter because even if the intention of the parties was to let out the Mill to the Appellant, the building would still have to be described as the Dal

Mill building. It is not a case where the subject-matter of the lease is the building and along with the leased building incidentally passes the fixture of

the machinery in regard to the Mill; in truth it is the Mill which is the subject matter of the lease, and it was because the Mill was intended to be let

out that the building had inevitably to be let out along with the Mill. The fact that the Appellant 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 alter the character of the

transaction. This is not a lease under which the Appellant entered into possession for the purpose of residing in 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 lease in respect of an accommodation as defined by Section 3(a) (y)(3). The fixtures described in the schedule to the lease are 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 conies hi 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 be said to be rent payable for any

accommodation to which the Act applies.

From this decision it necessarily follows that merely because the lease includes some extra items not coming under the definition clause, the lessee

could not be denied the protection under the Act, but the Court will have to see what was the dominant intention of the parties, was the lease of the

building the main or the dominant intention and the inclusion of other items, secondary or incidental or whether the lease of the other miscellaneous

items was the main or the dominant intention, the building being secondary or incidental. This theory of dominant intention will have to be applied

whenever there is plurality of objects of lease. The enjoyment or the use of the building as such and the enjoyment or the use of the machinery or

fixtures as such are two separate objects. In my decision in Isherdas Sahni and Brothers by Partner V.N. Sahni Vs. Rajah V. Rajeswara Rao and

Others, I have dealt with this aspect at page 249 and at page 250. I have referred by way of illustration to some instances in which this theory of

dominant intention may call for application. Applying this dominant intention theory, in the instant case there can be only one answer i.e., that all the

miscellaneous items in the lease deed are secondary and by no stretch of imagination can it be said that the dominant intention is to take the lease of

these miscellaneous items like electric wiring, iron switches, etc., and the secondary intention is to take the lease of the building. If I may say so, it

will be simply making nonsense of the lease to hold that these miscellaneous items should determine the dominate intention leading to the inference

that it is not a lease of the building, but a lease of the miscellaneous items. It is here that reference should be made to a decision of the Supreme

Court arising under the income tax Act, reported in Sultan Brothers (P) Ltd. Vs. Commissioner of Income Tax, on which also Mr. Vedantachari

relied. In that case the owner of a hotel containing all amenities and fitted with furniture and fixtures leased the building for being run as a hotel and

the question arose, in the matter of income tax assessment of the lessor, as to the manner in which his income should be assessed and the

allowances to be granted u/s 13 of the income tax Act. The point of the decision turned upon the interpretation of Sub-Sections 3 and 4 of Section

Section 12 and Sub-Sections 3 and 4 run as follows:

The tax shall be payable by an Assessee under the head ""Income from other sources"" in respect of income, profits and gains of every kind which

may be included in his total income (if not included under any of the preceding heads)

(3) Where an Assessee lets on hire machinery plant or furniture belonging to him, he shall be entitled to allowances in accordance with the

provisions of Clauses (iv), (v), (vi) and (vii) of Sub-section (2) of Section 10.

(4) Where an Assessee lets on hire machinery, plant or furniture belonging to him and also buildings, and the letting of the buildings is inseparable

from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the provisions of Clauses (iv), (v), (vi)

and (vii) of Sub-section (2) of Section 10 in respect of such buildings.

On behalf of the Revenue it was urged that Section 12(4) would not apply because the dominant intention of the lease was only the letting of the

building as such and that the allowance u/s 12 (4) would be permissible, only if the letting of the furniture, the fittings .and the fixtures was the main

thing and the letting of the building was secondary or incidental. In'' other words, the substance of the argument of the Revenue was that in the case

of a lease consisting of the building, furniture and fixtures, the Assessee, the lessor, will be entitled to the deduction u/s 12 (4) only if the Assessee

makes out that the primary or the dominant portion of the letting was the letting of the furniture and the fixtures, the letting of the building being

secondary and that in that case, the letting of the building as a hotel was the primary thing and the letting of the furniture and fixtures was secondary

and, therefore, Section 12(4) should not be invoked. This contention was rejected by the Supreme Court on a twofold reasoning, (i) there was

nothing in he language of Section 12 (4) to import into the section the theory of dominant intention and (ii) in Section 12 (4) furniture, plant and

machinery are all included without any difference between furniture on the one side and plant and machinery on the other. This frame-work of the

Sub-section is such that it completely rules out and does not admit the theory of the dominant or the primary letting of the furniture, plant and

machinery, the letting of the building being secondary. After observing that there was no warrant in the language of Section 12 (4) for the theory of

primary and secondary letting, with regard to the other reasoning, namely, the frame-work of Section 12(4), the Supreme Court observed as

follows at page 1394:

Furthermore, we find it practically impossible to imagine how the letting of a building could be incidental to the letting of furniture, though we can

see that the letting of a factory building may be incidental to the letting of the machinery or plant in it for the object there may be really to work the

machinery. If we are right in our view, as we think we are, that the letting of a building can never be incidental to the letting of furniture contained in

it, then it must be held that no consideration of primary or secondary lettings arises in construing the section for what must apply when furniture is

let and also buildings must equally apply when plant and machinery are let and also buildings. We think all that Sub-section (4) of Section 12

contemplates is that the letting of machinery, plant or furniture should be inseparable from the letting of the buildings.

The aforesaid observation consists of two limbs of reasoning. The first is that as a juridical conception and from the commonsense point of view,

based upon the realities of the situation in the realm of practical politics, it is impossible to have the conception of the furniture being the primary

and the dominant intention of the letting, the letting of the building being secondary. In other words, by reason of this commonsense view of the

matter, in the case of letting of a building and furniture, u/s 12 (4), there is no scope for the doctrine of the dominant intention. The second limb of

the reasoning is, if the lease of the building and furniture dealt with in Section 12 (4) rules out any theory of dominant intention, the same rule should

apply to the machinery and the plant because all these items are included in the Sub-section without any difference. It is the first limb in the latter

portion of the reasoning of the Supreme Court which is of crucial importance to our case. If in the case of a lease of a building and furniture there

cannot be a conception of the lease of the furniture being dominant, the letting of the building being secondary, I for my part, find it impossible to

countenance the theory that these miscellaneous items like iron switches and electric wiring, twin core or three core for the use of the projector in

the cabin and the sound room would take the lease out of the purview of the Act. In view of this test of dominant intention it is unnecessary to refer

to the decisions of the other Courts in which the question of the character of the lease of a cinema theatre with or without the cinema equipment

and projector was considered. My learned brother has referred to these decisions in his judgment.

In Nanda v. Lakshmanaswami ILR (1968) 2 Mad. 765 Natesan J. has taken the same view of the lease of the cinema theatre with fittings and

furniture where the cinema equipment, projector, machinery, etc., belonged to the lessee. The learned Judge has adverted to the changes

introduced in the Act of 1960, particularly to Section 3 Sub-Section 5 and Rules 10 and 13, as bearing upon the interpretation of the definition

clause. He has held that the tenant would be entitled to the protection of the Act. It is, however, necessary to refer to the following observations of

the learned Judge at page 789:

....what is thereby leased is not a theatre simpliciter, but a running cinema business with all its accessories. The Act controls and regulates only the

letting of buildings and not transfer of business concerns and running businesses, for periods together with buildings. The question for consideration

in each case would be whether what is leased is a theatre building with its normal adjuncts as a building constructed to serve as a theatre, or

something more than a building-an equipped cinema house.

These observations should not be read divorced from the context, to suggest that a lease of the well-equipped cinema house would exclude the

application of the Act even where the projector and the cinema equipment belonged to the lessee. Having regard to the reasonings and the findings

of the learned Judge in the precede .ing portions of his judgment, it is clear that by the words equipped cinema house, the learned Judge must have

meant

a well-equipped cinema house with all furniture and fittings including the cinema equipment, projector and machinery.

On the aspect of lawful possession (within the meaning of Rule 13 of the Cinematograph Act which formed the subject-matter of the discussion

in Om Prakash v. Commissioner of Police ILR (1960) Mad. 490 it is necessary to advert to the recent decision of the Supreme Court in

Yeshwant Singh v. Jagddish Singh AIR 1968 S.C. 620 in which the Supreme Court has indicated the view that a tenant in possession of the

property after the termination of the lease cannot be said to be in unlawful possession. At page 622, the Supreme Court has referred to with

approval the observations of Chagla C.J. in K.K. Verma v. Naraindas C. Malkani ILR (1954) Bom 960 which also formed the subject-matter of

discussion in Om Prakash v. Commissioner of Police ILR (1960) Mad. 490. As the contention of the tenant has been upheld on the other points, it

is unnecessary to consider the question as to how far the Bench decision of this Court referred above requires further consideration in the light of

the Supreme Court''s judgment.

Before parting with this case, I desire to make one observation. For a person to run a theatre, he has to comply with various conditions and

formalities and obtain a licence as provided under the Act and the rules. Under the provisions in the Cinematograph Act and the rules, various

authorities and officers of Public Works Department, Electricity Department, Revenue Department and the Police Department have to discharge

certain duties and functions. All these officers must work and administer the Act in a broad spirit with a human approach. It must be borne in mind

that these provisions are conceived in the interests of the public in their health and safety etc. This Act should not be administrative in a technical

manner the rival and the contending parties the provisions of the Act as a forum for agitating their right''s which can be done only in the civil Courts.

Within the frame-work of the Act and the rules, the authorities must work the Act in such a manner that the provisions of the Act are not used as

instrument of oppression. It must be realised that the closure of the theatre will result in serious consequences with attendant financial repercussions

.A stalemate would be created indefinitely and neither the lessee nor the owner of the theatre would be able to exhibit pictures-It may also

financially affect the film producers and distributors with whom contracts would have been entered into for exhibition of the picture. If a deadlock is

created while administering the Act, the financial loss will be impairable to either or both the parties and the redress which the parties may obtain in

the ordinary Courts of the land may not be adequate. It may even be difficult to mould the relief affording adequate compensation and/or restitution

to the party aggrieved. This of course does not mean that the authorities concerned should not carry out the provisions of the Act and the rules. As

observed earlier, they must administer the Act in a proper perspective and as far as possible avoid a stalemate while functioning under the

provisions of the Act.