JUDGMENT 1. THIS is an application in the Title Suit no. 40 of 1976 filed before the Court of 9th Subordinate Judge at Alipore. This suit has been transferred to this court. This application is by the lessee, defendant. The suit is by the lessor, plaintiff for ejectment on the ground that there has been forfeiture of lease for breach of the terms of the lease and the suit is for possession. The defendant has made this application contending that the suit is not maintainable under the west Bengal Premises Tenancy Act, 1956. The short point, therefore, is whether the suit, is framed, is under the west Bengal Premises Tenancy Act, 1956. It cannot be disputed, if the suit is under the West Bengal Premises tenancy Act, 1956 then the suit, as framed, is not maintainable in view of the provisions of the said Act. In order to adjudge this question whether the suit is maintainable or not, it is necessary to refer to certain relevant provisions and certain notifications. Under sub-section (3) of Section 1, the West Bengal premises Tenancy Act, 1956 extends to the whole of Calcutta. The said sub-section reads as follows : "3) It extends to the whole of Calcutta and to all areas which have been or may hereafter be constituted municipalities under the provisions of the Bengal Municipal Act, 1932 : provided that the State Government may, by notification, extend this Act or any part thereof to any other area specified in the notification, or may, by notification, exclude any area from the operation of this act or any specified part thereof : provided further that this Act shall not apply- (a) to any premises belonging to any local authority, (b) to any premises belonging to or requisitioned by Government, or (c) to any tenancy created by government in respect of any premises taken on lease by government. Explanation-For the purpose of this section, expression 'local authority' shall include the Board called the Trustees for the improvement of Calcutta, referred to in section 3 of the Calcutta Improvement Act, 1911, as well as any body corporate or authority that may hereafter be constituted under any law for the time being in force for the improvement of any municipality, town or cantonment. " 2. " 2. IT is also necessary in this connection, in view of the contentions raised to refer to the definition of 'premises' in clause (f) of Sec. 2 of the Act, which reads as follows : "(f) premises means any building or part of a building or any hut or part of a hut let separately and includes- (i) the gardens, grounds and outhouses, if any, appertaining thereto, (ii) any furniture supplied or any fittings of fixtures affixed for the use of the tenant in such building or part of a building or hut or part of a hut, but does not include a room in a hotel or a lodging house;" section 3 of the Act is as follows : "3, Certain provisions of the Act not to apply to certain leases (1) The provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian Registration Act. 1908, where (a) such lease has been entered into on or after the 1st December, 1948, and (b) such lease is for a period of not more than 20 years, and save as aforesaid nothing in this act shall apply to any premises held under a lease for a period of not less than 15 years. (2) Notwithstanding anything to the contrary contained in sub-section (1) but subject to sub-section (3) of section 1, this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West bengal Premises Tenancy (Amendment) Ordinance, 1965 : provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of section 31 and 36 shall apply to any premises held under such lease." Pursuant to the power given under sub-section (3) of Section 1, on 11th February, 1970 a notification was issued excluding the area with which I am concerned in this application. The said notification reads as follows : "government of West Bengal land and Land Revenue Department (Land Revenue)Notification 24-Parganas No. 1944- L. R.-11th February, 1970-In exercise of the power conferred by the first proviso to sub-section (3) of Section 1 of the West Bengal Premises Tenancy act, 1956 (West Bengal Act XII of 1956), the Government is hereby pleased to exclude the area specified in the Schedule below from the operation of the said Act; the Schedule the area where the South Mill of Messrs. Alliance Jute Mills Co. Ltd. is situate comprising of C. S. Plots Nos. 201, 202, 203, 204, 2/2/248, 205, 207, 208, 209, 206, 206/883, 210; 211, 211/249, 212, 215 and 282 in mouza Jagatdal, Jurisdiction list no. 13 police station Jagatdal, district 24-Parganas. By Order of the Governor s. Mullick. Secretary to the Government of west Bengal." 3. THE lease with which this suit is concerned was given for five years by the plaintiff in favour of the defendant on the 7th September, 1970. The said lease recited; interalia, that the lessee had approached the lessor with a request to grant to the lessee a lease of the said south Mills and the lessor at the aforesaid request of the lessee had agreed to grant lease of the said South Mills in the state and condition as it was then to the lessee and the lessee had agreed to take such lease at the rent and on the terms and conditions stated therein. 4. THE lease further stated, as follows, showing that the lease is granted of : 'all that the portion of Jute Mills commonly known as South Mills of the Lessor and situated at Jagatdal, 24-Parganas together with the lands and Jute Godowns measuring about 28. 400sq. ft. thereunto belonging and other structures appertaining to the said South Mills and shown and delineated within the red Borders in the map or plans annexed hereto and marked with the letter "a". 400sq. ft. thereunto belonging and other structures appertaining to the said South Mills and shown and delineated within the red Borders in the map or plans annexed hereto and marked with the letter "a". The lessee covenanted, interalia, as follows : " (ii) To bear and pay all expenses, charges, dues and other moneys whatsoever payable in connection with business to be carried on by the Lessee in the demised premises including all factory licence fee, boiler licence fee, fire licence fee and all such other taxes and fees electric and all other charges in respect and/or in connection with the demised premises and or the business to be carried on therein by the Lessee accruing and/or to be accrued on and from the date of the execution of these presents by the the Lessor except those which are payable by the Lessor as herein provided. (iii) As its costs to keep the Plant and Machineries in the demised premises in running condition according to the nature thereof excepting surplus and absolute machinery as per annexure 'd' and to bear and pay all such costs and expenses for repair to the plants and machineries in the demised premises as may be necessary for the purpose. (xiv) To insure and keep insured during the period of this Lease the demised premises including land buildings, mill and machineries comprised in the demised premises in the name of the Lessor and/or its nominee with an Insurance Company to be approved by National Industrial Development Corporation Ltd. and the State Bank of India against fire, strike, riot, civil commotion (Fire and S. R. C. C.) for at least a sum of Rs. One crore and 20 Lakhs (Rupees one crore and twenty lakhs only) and to regularly and punctually pay all premium in respect of such policy on or before the due elate of payment of such premium and to send to the Lessor within fifteen days from the date of the execution of these presents the original of such insurance policy and also to continue to send to the lessor the original prepaid premium receipt of such insurance within seven days alter the due date of payment of premium under such policy. Not do and/or allow to be done or suffered any act or thing by which the said policy or policies of insurance of the demised premises become or may become void or voidable and/or unenforceable. Notwithstanding anything to the contrary herein contained, in case the lessee falls or neglects to lake out an Insurance Policy and/or to pay the premium thereof as herein stated, then in that event, the Lessor will be entitled to have the demised premises including land buildings, mills and machineries comprised therein insured against the risk aforesaid and to pay all premium in respect thereof and without prejudice to any of the other rights of the Lesser to immediately realise all premium which might have been paid by the lessor in connection with such policy. " The lessor similarly covenanted, inter alia, as follows : "(i) The Lessee paying the rent hereby reserved and observing and performing the covenants and conditions herein contained and on the part of the Lessee to be observed and performed shall peacefully held and enjoy the demised premises during the term hereby created without any interruption by the lessor or any person rightfully claiming under or in trust for it. (xxvi) The Lessee will be entitled to all the benefits and/or grants which may be granted by the State or Central Governments in respect of the running of the Mills in the demised premises during and for the period of the lease. (xxxii) On the expiration of the period of the Lease the Lessee will before the delivery of possession of the demised premises to the lessor in terms of the presents be at liberty to remove the moveable assets exclusively belonging to the lessee as owner thereof and which may be brought by the Lessee within the demised premises during the period of this Lease provided the lessee has in the meantime observed and performed all the terms covenants and conditions of these presents to be observed and performed on the part of the Lessee. (xxxiii) It will be obligatory on the part of Lessee to retire any workman exceeding the age of superannuation by giving him proper notice for the same failing which the Lessee will be liable to pay the excess amount of benefit and other liabilities if any payable to the the workman concerned and in case no notice is given and such workman continues to work even up to the expiry of the lease in such case the lessee will be liable to pay the lessor the amount of such benefit, as would be payable to the worker. Provided that the Lessor will furnish the Lessee with the names of the worker by superannuated by the lessee, as aforesaid at least seven days prior to the date when such notice of superannuation is to be given. " 5. THE schedule also gave the description of the property describing the property in question as a mill. The aforesaid are some of the terms and conditions of the lease apart from the usual terms contained in a lease of this type. All the conditions show that the lessee was to run the mill in a businessman like manner. Thereafter, it appears on 28th August, 1975 another notification was issued by the Government of West bengal withdrawing or cancelling the first notification dated 11th February, 1970. The said notification reacts as follows :- "24-Parganas-No-21208-L. R/2a-2/70 -28th August, 1975-The governor is hereby pleased to cancel this department notification No. 1944-L. R. dated the 11th February, 1970, excluding the area specified in the schedule thereto from, the operation of the West Bengal Premises tenancy Act, 1956 (West Bengal act XII of 1956 ). By Order of the Governor, Sd : J. N. Mukherjee special Secretary to the Government of West Bengal, L. R. Department. " 6. THE lease, as mentioned hereinbefore, was executed on 7th September, 1970 and was for a period of five years with an option for renewal. The lease, therefore, expired on 6th September, 1975. The instant suit out of which this application was filed was instituted on 19th March, 1976. In support of the contention that the suit is not maintainable : it was urged that in view of the second notification dated 28th August, 1975, the first notification was withdrawn and, as such, there was no exclusion. The instant suit out of which this application was filed was instituted on 19th March, 1976. In support of the contention that the suit is not maintainable : it was urged that in view of the second notification dated 28th August, 1975, the first notification was withdrawn and, as such, there was no exclusion. The premises in question, therefore, came within the purview of the West Bengal premises Tenancy Act 1956 and as the suit had not been framed in accordance with that Act, the suit was not maintainable. One of the main questions, therefore, is whether the notification dated 28th August, 1975 which withdrew the his, notification would affect the present lease out of which the suit has been instituted. It was, however, contended on behalf of the plaintiff-respondent that the second notification could not affect the lease in question. It was urged the second notification was beyond the power of the State Government and in any event it was submitted that the Mill in question which was leased out could not be considered to be "premises". And it that was not so, the provisions of the West Bengal Premises Tenancy Act, 1956 would not be applicable. It will be better to deal with the last contention first. The West Bengal Premises Tenancy Act, 1956 was enacted as an Act to provide for regulation of certain incidence of tenancy of premises in calcutta and some other areas in West bengal, according to its preamble. It has to be borne in mind, as was indicated by the Supreme Court, that this is a social welfare legislation in order to alleviate the conditions of the urban population. Keeping in background the aforesaid purpose of the Act, we have to examine the definition of 'premises' as indicated in the Act. In the case of mritunjoy Chakrabarty vs. Provat Kumar Pal, AIR 1953 Cal. 153 dealing with the previous enactment, the Division bench of this Court held that a lease of the Cinema House would be covered by the definition of 'premises' which was more or less in identical terms with the definition under the instant Act. Following the said decision of the Division bench, another Division Bench of this court in the case of D. S. Jain vs. Meghamala Roy and Ors. Following the said decision of the Division bench, another Division Bench of this court in the case of D. S. Jain vs. Meghamala Roy and Ors. 68 CWN 1136 held mat in respect of the present Act the lease of a Cinema house would be covered by the definition of 'premises' provided in the Act. It appears, however, that the Supreme Court had an occasion to consider the principle upon which a lease of this type should be examined. The Supreme Court in the case of uttamchand vs. S. M. Lalwani, AIR 1965 s. C. 716 was considering whether lease of a Dal Mill was a lease of 'accommodation' as contemplated by M. P. Accommodation Control Act, 1953. The definition of 'accommodation' under Sec. 3 (a) of the said Act was as follows : "sec. 3 (a) describes 'accommodation' as meaning : (x) any land which is not being used for cultivation ; (y)any building or part of a building, and includes (1) garden, open land and outhouses, 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. " 7. IN that case, the Supreme court was concerned with a building which included certain fittings, and so, the point for decision was whether the lease in question was in respect of 'an accommodation' as defined by Sec. 3 (a) (y) (3) of that Act. 8. IT is apparent that the said definition of 'accommodation' is more or less identical except some minor difference as the definition of 'premises' in the instant Act with which I am concerned. The Supreme Court observed that whether a premises or a building same within the purview of that Act, the Court in order to determine must apply the test of the dominant intention of the parties. The Supreme Court observed further that the Court must determine the character of the lease by asking itself as to what was the dominant intention of the parties for executing the document. The Supreme Court at page 719 of the report in paragraph 12 observed a follows : "(12) What then was the dominant intention of the parties when they entered into the present transaction ? The Supreme Court at page 719 of the report in paragraph 12 observed a follows : "(12) 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 fixtures 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 denned by Sec. 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 fixture's are located comes in incidentally. 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 fixture's 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. " Bearing the aforesaid principles in mind, we have to examine the instant lease in question. It appears from the terms, as set out hereinbefore, that the lease was for running of the mill. The different covenants which I have set out hereinbefore, indicate that the true intention of the lessee was to run the mill and to undertake such obligations as would be conductive for the ruining of the mill. The clauses for the insurance and the payment of other dues of the government which the lessee undertook to make are indicative of the predominant intention to lease out the mill, as such and the building given on lease is incidental to and a part of the leasing of the Mill. If that is the predominant intention then in view of the decision of the Supreme Court, which has laid flown the principles of examining documents of lease, in my opinion, the mill of this type would not come within the purview of the West Bengal Premises Tenancy act, 1956 and would be more so, if one bears in mind the object of the Act, as indicated in the preamble of the Act, which I have set out hereinbefore. If that is the position then the West Bengal premises Tenancy Act, 1956 would not be applicable. 9. THE other question, is, whether in view of the second notification issued by the Government on the 11th February. 1970, the lease, out of which this suit has been instituted, can be said to be one which is governed by the West bengal Premises Tenancy Act, 1956 As I have set cut the terms of the said notification, the second notification merely cancels the previous notification. 1970, the lease, out of which this suit has been instituted, can be said to be one which is governed by the West bengal Premises Tenancy Act, 1956 As I have set cut the terms of the said notification, the second notification merely cancels the previous notification. Normally such a cancellation would be prospective unless it is explicitly made retrospective, if the competent authority has the power to make retrospective notifications. In this case of course I am not concerned with the question whether the competent authority has the power to make any retrospective notification because by the clear language of the notification it is prospective in character. The principles upon which notifications of this type are to be judged are well-settled. Reference in this connection may be made to the decision in the cases of henshall v. Porter, (1923) 2 K. B. 193 at. pages 197 and 198; 54 Indian Appeals 421 at page 425 Delhi Cloth and General mills Co. Ltd v. Income-tax Commissioner, Delhi and another; in the case of Sarat chandra Mitra and Ors. v. Santosh Kumar haldar and. ors., AIR 1944 Cal. 145 at page 151; But more or less identical situation arose in the case of Jotiram Khan v. Janaki Nath Ghose, 20 CWN 258 and also in the case of Shiba Kali Kumar v. Chuni Lal Chatterjee, AIR 1927 Calcutta 748. On the basis of the principles enunciated by the aforesaid decisions. I am of the opinion that in terms of the notification issued, the lease which was executed when the first notification was in force cannot be affected by the second notification. Notification once issued exhausts itself and unless it was expressly provided that the fresh notification issued would bring in the mill or the area in question within the purview of the West Bengal Premises tenancy Act, 1956 the same could not be considered to have come within the mischief of the West Bengal Premises tenancy Act, 1956. I am of the opinion that on the terms of the notification, the second notification was prospective and could not affect the existing rights and would, therefore, not affect the instant lease. 10. IN that view of the matter, the suit as framed is not hit by the West bengal Premises Tenancy Act, 1956 and, therefore, the suit cannot be said to be not maintainable on this ground. 10. IN that view of the matter, the suit as framed is not hit by the West bengal Premises Tenancy Act, 1956 and, therefore, the suit cannot be said to be not maintainable on this ground. The application for dismissal of the suit on this ground, therefore, fails. Costs of this application will be the costs in the suit. Application dismissed.