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SPRY, V-P.
[1] This is an appeal from a judgment and decree of the High Court, holding
that a contract between the parties con¬stituted "a lease of a business or
running concern as a whole", not a lease of commercial premises, and that it
was therefore outside the ambit of the Rent Tribunal established under the
Rent Restriction Act, 1962 (Cap.479). The Tribunal, acting under the power
conferred by section 7(1)(b) of the Act, had required the respondent company
to apply for the determination of the standard rent of a "building operated
as an hotel under the name "New Palace Hotel".
[2] At the hearing of the application, it was submitted that the Tribunal
had no jurisdiction: the Tribunal ruled that it had jurisdiction and there
was no appeal from that ruling. The Tribunal proceeded to assess the
standard rent and the appellants then appealed against the decision. At the
beginning of the hearing of the appeal, the learned judge raised of his own
motion the question whether the Tribunal had had jurisdiction to entertain
the application, and eventually decided, as we have said, that the matter
had been one outside the ambit of the Act.
[3] At the hearing of this appeal, Mr. Dastur, for the appellants submitted
that since the repeal of paragraph (a) of section 7 (1), the Tribunal has
had no power to decide whether premises are within its purview, that power
being reserved to the court, under section 11A. With respect, we do not
think that question is of any rele¬vance to this appeal, as the High Court
undoubtedly had jurisdiction to consider and adjudicate on the matter. The
contract between the parties was signed on 14th November, 1966, at a time
when the Act did not apply to business premises.
[4] In form, it is an ordinary lease: it is expressed to be for a fixed
term, with an option for renewal; it defines the premises, thereafter
referring to them as "the demised premises"; it contains an agreement to
let, on the part of the respondent company, and to take, on the part of the
appellants; it contains an agreement to pay rent, a covenant for quiet
enjoyment and other provisions usual in leases. The learned judge found on
the evidence that the parties "regarded the arrangement between them as the
lease of a business as a running concern operated from the suit premises and
which premises constitute but part of the agreement as a whole."
[5] That may well be so, but, with respect, we do not think that answers the
real question in issue. That question is, we think, whether as a result of
the contract, the relationship between the parties was that of landlord and
tenant of the suit premises. If the answer to that question is in the
affirmative, then, we think, the Act applies and it is immaterial that there
may be other parts of the contract that may be outside, and ancillary to,
the relationship of landlord and tenant. Mr. Lakha, for the respondent
company, has sought to uphold the learned judge's decision. The essence of
his argument is that the giving of possession to the appellants was merely
in¬cidental to the larger transaction relating to the business as a whole.
[6] Mr. Lakha went so far as to describe it as no more than a licence. He
referred us to cases showing that it is possible for a licensee to have
exclusive possession and therefore that exclusive possession does not point
irresistibly to the existence of a tenancy. With respect, we are not
persuaded by this argument. Prima facie, the contract between the parties is
an agreement for a lease. We can find nothing in the evidence to show that
it was not what it appears to be. We accept that the contract between the
parties may have included elements going beyond the landlord and tenant
relationship, but that cannot take the tenancy outside the pro¬visions of
the Act.
[7] Such matters may be for consideration by the Tribunal under section 4(2)
of the Act or they may only be enforceable, if at all, by the courts: those
are not matters that concern us on this appeal. We think, with great
respect, that the learned judge erred in thinking that if the relationship
between the parties went beyond that of landlord and tenant, the Act did not
apply. If the relationship of landlord and tenant existed, we think the
Tribunal had juris¬diction, and we have no doubt that that relationship
existed, whether it was part of a wider one, as alleged, or whether the
transaction was basically a lease with certain additional elements.
[8] Accordingly, the appeal is allowed, the judgment and decree are set
aside and the proceedings are remitted to the High Court to hear and
determine the appeal from the Tribunal. The appellants are awarded the costs
of this appeal but the costs in the High Court are to be determined by the
High Court on the determination of the appeal to that court.
DUFFUS, P.
[9] The appeal was filed 7 days out of time. No application has been made
for an extension of time, although the defect was pointed out to appellants
on 10th June, 1971. There is accordingly no competent appeal before this
Court, and we have no option but to strike out the appeal as incompetent,
with costs, and we order accordingly.
[10] The objections that the notice of appeal and the record of appeal were
not served in accordance with the rules of this Court are conceded by the
advocate for the respondent but we need not further deal with these
objections nor with the further objection that leave to appeal was not
obtained. |
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