R. P. Singh, J. - (1.) SINCE the facts of both the writ petitions are common and the parties are also the same and hence they are disposed of by one common judgment.
(2.) WRIT Petition No. 10346 of 1987 has been filed by the landlords and owners of cinema building known as ' Prem Talkies ' while writ petition no. 12263 of 1987 has been filed by the lessees of the cinema building in whose favour Brij Behari Lal Tandon and others executed a registered lease on 30-12-1986 letting out the cinema building equipped with projector, machines and fixtures for exhibiting films. By means of these writ petitions the petitioners have prayed for quashing of the order dated 6-3-1987 declaring vacancy as well as notice dated 9-3-1987 inviting applications for allotment of the accommodation in dispute i.e., Prem Talkies, situate in Mohalla Sahadapura, Maunath Bhanjan, district Azamgarh and further prayed for quashing of the proceedings under Act 13 of 1972 in respect of the accommodation in dispute. The short question involved in these writ petitions is whether the cinema building in dispute i.e., Prem Talkies stood excluded and exempt from the operation of U. P. Act 13 of 1972 under clause (d) of sub-section (1) of section 2 of the Act. The facts of the case are that the petitioners in writ petition no. 10346 of 1987 who were landlords and owners of the cinema building, had originally let out this building without installing it with furniture, apparatus etc. to certain tenants against whom they filed suit no. 1 of 1983. The suit was decreed and in pursuance of the execution of the decree the petitioners obtained possession of the building on 30-9-84. After the petitioners got possession of the building, they intended to use the building as cinema house and let out the plant and apparatus installed therein for running the cinema along with the building. With that intention in view the petitioners entered into an agreement with the respondents 3 to 5, Madan Lal Mehrotra, Shyara Lal Mehrotra and Ratan Mehrotra on February 5, 1986 for leasing out the aforesaid cinema building in their favour. In pursuance of their intention the petitioners have averred that they fitted the apparatus and plant in the cinema building in accordance with the requirements of Cinematograph Act and executed a registered lease deed dated 30th December, 1986 in favour of the lessees, Madan Lal Mehrotra and others letting out the cinema building fully equipped with projector, machines, fixtures and furnitures and under the terms of the aforesaid lease deed the cinema building along with the cinema equipments specified in the lease deed was leased out in favour of the lessees for a period of five years with an option of renewal for a further period of two years on a monthly rent of Rs. 6,000/-. In pursuance of the lease deed the lessees deposited Rs. 1,30,000/- as advance in favour of the petitioners and Rs. 50,000/- was paid as security. The petitioners thus delivered possession of the entire cinema building along with plant and machinery installed therein to the lessees who continued in possession thereof. In the meantime, respondent no. 2, Satya Narain Pandey, filed an application for allotment of the cinema building alleging that there was vacancy in the building upon which a report was called for and it is averred that a report was obtained behind the back of the petitioners without issuing any notice to the petitioners and vacancy was declared on 6-3-87 and 19-3-87 was fixed for allotment. The petitioner coming to know of the proceedings for allotment, immediately made an inspection of the record and filed objection accompanied by an affidavit that the report about vacancy was made behind the back of the petitioners and that the cinema building along with the apparatus and machinery fitted in it had already been leased out in favour of respondents 3 to 5 who had already applied for obtaining licence for exhibiting films on 8-1-87 which is pending orders and hence no proceedings for allotment of the building should be taken under the Act. The petitioners also moved an application that an inspection of the building in dispute may be made by the Rent Control and Eviction Officer himself or through some senior gazetted officer upon which the Rent Control and Eviction Officer ordered an inspection to be made by the SDM, Maunath Bhanjan. The SDM, Maunath Bhanjan made an inspection on 28-4-87 and submitted a report that the cinema building was fitted with projector, exhaust fan, electric fans, 589 sheets, diesel generating-set etc. and the lessees were found to be in possession of the cinema building let out to them fully equipped with apparatus and machinery etc. It is further averred in the petition that on the application of the lessees to obtain licence for exhibiting films Entertainment Inspector had already submitted a report upon which the Additional District Magistrate (E) Azamgarh had passed an order that formalities may be got completed for the issue of the licence under the Cinematograph Act. The learned counsel for the petitioner has challenged the order declaring vacancy and inviting applications for allotment of the building on the ground that the cinema building in question is excluded from the operation of U. P. Act 13 of 1972 as the building is used and intended to be used as a cinema building by the lessees to whom the building had been leased out along with the plant and apparatus duly installed for such purpose in the building as contemplated by clause (d) of sub-section (1) of section 2 of U. P. Act 13 of 1972 and hence the Rent Control and Eviction Officer has no jurisdiction to pass orders of declaring vacancy and inviting applications for allotment under the Act.
(3.) THE learned counsel for the respondent no. 2 strenuously contended that the agreement dated 5-2-86 and the registered lease deed dated 13th December, 1986 are collusive documents to defeat the provisions of Act 13 of 1972 and further contended that the building being got vacated by the petitioners in execution of the decree against tenants, the landlords cannot be allowed to exclude the building from the operation of the U. P. Act 13 of 1972 by installing machinery, projector, furniture and fixtures and leasing out the same to the respondents 3 to 5. THE contention of the learned counsel for the respondent is that the vacancy having occurred on 30-10-84 after the previous tenants were ejected in execution of the decree against them, the respondent no. 2 could apply for allotment of the same which could be duly allotted to him by the respondent no. 1 under the Act. In order to examine whether the building is exempt from the operation of U. P. Act 13 of 1972, it would be necessary to examine the material placed before the Court by the learned counsel for the parties. The learned counsel for the petitioner placed before me the agreement to lease dated 5th February, 1986 executed by the petitioner in favour of the respondents 3 to 5 and paragraph 3 of the same provides that the first party i.e., the petitioners agree to lease the lessees, the second party, the said cinema building fully equipped with projector, machines, screen, fixture and furnitures in full running condition for a period of five years with an option of two years on the same terms and conditions. In pursuance of this agreement a registered lease was executed by the petitioners on 30th December. 1986 and condition no. 3 of the same provides that the first party is letting out on lease to the second party the said cinema building equipped with projector, screen, fixtures and furnitures in full running condition as per details given in the foot of the deed: for a period of 'five years. The relevant portion of section 2 of U. P. Act 13 of 1972 reads as follows : " 2. Exemption from operation of the Act.- Nothing in this Act shall apply to- (a)......... (b)......... (c)......... (d) any building used or intended to be used for any other industrial purpose (that is to say for the purpose of manufacture, preservation or processing any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out along with the building. " A reading of clause (d) of sub-section (1) of Section 2 thus shows that in order to be excluded from the purview of the provisions of U. P. Act 13 of 1972, the building may be used or intended to be used as a cinema building and the second ingredient to be fulfilled is that plant and apparatus installed for such purpose in the building must be leased out along with the building. In the present case, the registered lease deed executed by the petitioners on 30th December, 1986 shows that the cinema building along with the projector, machines, screen, fixtures and furnitures in full running condition was leased out for five years and the petitioners handed over possession of the cinema building fully equipped in running condition in conformity with the Cinematograph Act and hence on 30th December, 1986 the building stood excluded and exempt from the operation of the U. P. Act 13 of 1972. The impugned order declaring vacancy has been passed on 6-3-87 while the order inviting applications for allotment is dated 9-3-87 and prior to this date the cinema building fully equipped with plant and apparatus installed for the purpose of running the cinema in the building had already been leased out along with building and hence the Rent Control and Eviction Officer had no jurisdiction to proceed to declare vacancy and invite applications for allotment of the building under the Act as it is clearly exempt from operation of the Act by virtue of its falling under clause (d) of sub-section (1) of Section 2 of the Act.;