ivil Appeal No 1945 of 1992
From the Judgment and Order dated 411991 of th Kerala High Court in CRP No 1830 of 1990 Mathai M Paikeday and CN Sreekumar for the Appellant
PS Poti and Ms Malini Poduval for the Respondent
The Judgment of the Court was delivered by SC AGRAWAL J
Special leave granted
This appeal filed by the landlord arises out of a petition filed under Sections 113 and 114ii of the Kerala Buildings Lease  Rent Control Act 1965 hereinafter referred to as the Act  for the eviction of the respondent from the building situate in the city of Cochin
The building in question was let out to the respondent by the father of the appellant on May 1 1972 and he has been carrying on hotel business on the same
The said building stands on a portion of 13 cent of land owned by the appellant
The appellant was employed with Bharat Gold Mines Ltd and was due to retire on September 30 1981
Prior to his retirement the appellant filed the eviction petition before the Rent Controller Ernakulam on January 15 1981 wherein the appellant pleaded that after his retirement from service he wanted to settle down in Cochin and except the building in question he has no other house to reside and that the said building was required by him bona fide for his occupation
It was also pleaded by the appellant that the respondent was using the property in such a manner as to materially and permanently reduce its value utility and purpose
The said petition was contested by the respondent on the ground that the building is not suitable for residential purposes inasmuch as it consists of two adjoining sheds and there is no toilet facility in the same and that it is not possible to reside therein
It was further pleaded that the appellant has a house and plot in the name of his wife within the municipal limits of Cochin Corporation and the same is suitable for the residence of the appellant and his family members and further there is a lot of vacant land on the back of the building and the same is suitable for constructing a house
The respondent denied that the property was being used in such a way as to reduce its utility
By his order dated February 20 74 1989 the Rent Controller dismissed the said petition of the appellant and found that the appellant had failed in proving his bona fide need of the building and he was not entitled to an order of eviction under S113 of the Act and that he has also failed to adduce adequate evidence to prove that the respondent was indulging in an activity which has destroyed the value and utility of the property materially and permanently and he could not seek eviction under Section 114ii of the Act
The said order of the Rent Controller was reversed in appeal by the Appellate Authority by its judgment dated July 18 1990
The Appellate Authority agreed with the finding recorded by the Rent Controller that the appellant could not seek the eviction of the respondent under s114ii of the Act but it disagreed with the finding of the Rent Controller that the respondent was not liable to be evicted under S113 of the Act
The Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him
On revision under S20 of the Act the High Court by its judgment dated January 4 1991 set aside the finding recorded by the Appellate Authority regarding the bona fide need of the building for his occupation and agreed with the view of the Rent Controller that the appellant had failed to establish that he was entitled to evict the respondent on the ground of bona fide need under s113 of the Act
Feeling aggrieved by the said decision of the High Court the appellant has filed this appeal
As indicated earlier although the appellant had sought eviction of the respondent under s113 as well as s114ii but the Rent Controller and the Appellate Authority have both found against him on s114ii
The scope of the present appeal is confined to the question whether the respondent is liable to be eviction on the ground of bone fide need of the appellant for his personal occupation under s113 of the Act
Sub section 3 of s11 of the Act and the second proviso thereto provide as follows 3 A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him XXX XXX XXX Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession if such 75 tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business XXX XXX XXX At this stage it may also be mentioned that in exercise of its revisional jurisdiction under s20 of the Act the High Court can call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality regularity or propriety of such order of proceeding and may pass such order in reference thereto as it thinks fit
It is no doubt true that the scope of the revisional jurisdiction conferred under s20 is wider than that conferred under s115 CPC
But at the same time a revision under s20 cannot be equated with an appeal
Moreover the revision power conferred under s20 also embraces an order passed by the Appellate Authority
While considering the provisions conferring revisional power couched in a language similar to that contained in section 20 of the Act this Court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite the wide language employed the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings
See  Dattonpant Gopalvarao Devakate vs Vithabrao Maruthirao Janagaval 1975 Supp
SCR 67 Ms Sri Raja Lakshmi Dyeing Works  Ors vs Rangaswamy Chettiar AIR 1980 SC 1253
The revisional Court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own so long as the evidence on record admitted of and supported the one reached by the court below
See  Rajbir vs section Chokesiri  Co   at p37 In the instant case the Appellate Authority after considering the evidence on record has found that the appellant had retired from service and he has no building of his own in the city
The Appellate Authority has further found that before the building was let out to the respondent the same was being used for residential purposes and the mere fact that it lacks in certain facilities for being used for residential purposes by itself will not indicate that the claim of the appellant is false and from the evidence on record it would appear that after some modifications and repairs it can be 76 used as a residential building
In view of the decision of the High Court in Devaky vs Krishnakutty 1987 1 Ker
LT 671 the Appellate authority held that the appellant could claim eviction of the building under s113 even if the building in question requires some modifications or alterations provided that he is able to establish the bona fide need set up by him
The Appellate Authority also held that merely because the appellant was residing comfortably in a building owned by his son would not disentitle him from seeking eviction on the ground that he wants to set up his residence under a roof of his own and that such a desire was quite natural
The Appellate Authority also observed that the testimony of appellant as PW 1 with regard to his bona fide requirement of the building for his residence could be believed and the mere bald assertion of the respondent as RW1 that there was no bona fide need on the part of the appellant by itself was not a sufficient ground to disbelieve the testimony of the appellant
In the light of the aforesaid finding the Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him
The High Court in exercise of its revisional power has set aside the aforesaid findings recorded by the Appellate Authority for the following reasons 1 The appellate Authority had erroneously proceeded on the basis that there is no pleading by the respondent that the bona fide requirement set up by the appellant is false 2 Instead of examining severally the circumstances relied upon by the Rent Controller and to see whether they were sufficient to support the finding of the Rent Controller the Appellate Authority should have considered the cumulative effect of all the facts and circumstances established in the case on the question of bona fides of the claim made in the petition and 3 The Appellate Authority had totally omitted to consider whether the respondent tenant was entitled to the benefit of the second proviso to sub section 3 of s11 of the Act
On a consideration of the pleadings and evidence the High Court found that the appellant is the owner of 13 cents of land and only a small portion of the said land in occupied by the buildings and the remaining 77 land is lying vacant behind the building and structures sought to be recovered and the appellant can construct a house over it
The High Court has also found that the appellant is living in reasonable spacious residential accommodation with modern amenities with his son and it is difficult to believe that the claim as put forward by the appellant in the petition is honest in the circumstances of the case
The High Court further held that the building sought to be recovered is admittedly used for commercial purposes from 1971 onwards and it is a L  shaped structure consisting of two halls and a temporary shed which is being used as the kitchen of the hotel and there is no latrine or bathroom in the building and that in view of the nature location and structural peculiarities of the buildings absence of essential amenities like latrine bathroom and privacy the very limited space available for occupation and the status of the respondent as a person who retired after a period of 30 years of service as well placed employee of a wellknown company the assertion of the appellant that he is ready to live in any condition could not be accepted as true and genuine
The High Court was of the view that the principle laid down in the decision in Devaky vs Krishnakutty supra would not help appellant in this case
The question whether the building is required bona fide by the appellant for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on record could not be interfered with by the High Court in exercise of the revisional jurisdiction under Section 20 of the Act because it could not be said that the said finding recorded by the Appellate Authority was not supported by the evidence on record
The said finding was reversed by the High Court on the basis of a reassessment of the said evidence
We find it difficult to agree with the reasons given the High Court for embarking on this reassessment of evidence
Although the Appellate Authority has observed that there in no specific pleading by the respondent in the counter that the bona fide requirement set up by the appellant is false but in spite of the said observation the Appellate Authority has examined whether the said claim of the appellant is false and after considering the evidence adduced by both the parties the Appellate Authority has found that the claim of the appellant is not false
Similarly the High Court is not right in holding that in its approach to the question of bona fides of the claim made in the petition the Appellate Authority has not considered the cumulative effect of all the facts and circumstances established in the case
On a consideration of the various circumstances the Appellate Authority chose 78 of accept the testimony of the appellant as PW1 as against that of the respondent as RW1 and on that basis found that the appellant had succeeded in establishing the bona fide need set up by him
The consideration which weighed with the High Court in taking a view contrary to that taken by the Appellate Authority do not in our opinion justify interference in exercise of revisional jurisdiction
That the appellant has been living with his son in the house belonging to him son cannot lead to the inference that the claim of the appellant that he wants to live in a house of his own is false and not bonafide
The same is true about the building in question not having the requisite facilities and being not in a fit condition for residence because the appellant can make suitable repairs and alterations in the same to make it fit for residential purposes
The claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground that the building require repair and alterations before the landlord can occupy the same
In Devaky vs Krishnankutty supra it has been observed  once the landlord establishes that he bona fide required the building for his occupation or the occupation of any member of his family he can recover possession of the building from the tenant irrespective of the fact whether he would occupy the same with or without making any alterations p673 We are in agreement with this view which is in consonance with the decision of this Court in Ramniklal Pitambrardas Mehta vs Indradaman Amratlal Sheth  In that case it has been laid down 
The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house does not affect the question of his requiring the house bona fide and reasonably for his occupation when he has proved his need for occupying the house
There is no such prohibition either in the language of clg or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it
There could not be any logical reason for such a prohibition
p5 Similarly in sub section 3 of section 11 there is no prohibition that 79 a landlord must occupy the house for residence without making any alterations in it
The finding recorded by the Appellate Authority after considering the pleadings and evidence on record that the appellant has succeeded in establishing that he needs the building bona fide for his own occupation must therefore be restored
The High Court was however right in taking the view that before passing a decree for eviction on the ground of bona fide need of the landlord under section 113 of the Act it was necessary for the Appellate Authority to consider whether the tenant was entitled to the benefit of the second proviso to sub section 3 of section 11 of the Act and that the Appellate Authority has omitted to consider the matter from this angle
The said proviso precludes the passing of an order for eviction of a tenant who is depending for his livelihood mainly from the trade or business carried on in such building and there is no other suitable building available in the locality for him to carry on such trade or business
After adverting to the second proviso to sub section 3 of section 11 the Rent Controller has observed 
The respondent has proved that he is depending upon the income from the business conducted in the petition schedule building for his livelihood
The petitioner attempted to prove that the respondent is having other hotels elsewhere in the city but without any success
Though the respondent has not taken any steps to prove the non availability of other suitable buildings in the locality by summoning the Accommodation Controller I do not thing that was a fatal lapse on the part of the respondent because he has adduced evidence in that regard through his witnesses
 The learned Rent Controller has however not recorded any definite finding on this question because he had come to the conclusion that the appellant had failed to prove the bona fide need of the buildings
Since the Appellate Authority had reversed the finding recorded by the Rent Controller on bona fide need of the appellant for the building it was necessary for the Appellate Authority to have considered the matter in the light of the second proviso to sub section 3 of section 11 and it should have recorded a finding on the question whether the respondent could invoke the protection of the said proviso
In the circumstances we are of the view 80 that the matter should be remanded to the Appellate Authority for considering the question whether the respondent can invoke the protection of the second proviso to section 113 of the Act
In the result the appeal is allowed
The judgment and order of the Kerala High Court dated January 4 1991 is set aside
The order of the Appellate Authority dated July 18 1990 to the extent it directs the eviction of the respondent under Section 113 of the Act is also set aside and the matter is remanded to the Appellate Authority for considering the matter in the light of the second proviso to section 113 of the Act
It is however made clear that we are not upsetting the finding recorded by the Appellate Authority that the building is required bona fide by the appellant for his own occupation
The parties are left to bear their own costs
VPR Appeal allowed


Summary:
The appellant company was carrying on business of manu facture and sale of motor vehicles spare parts of motor vehicles and excavators
Their manufacturing units were located outside the municipal limits of the respondent corporation
Pursuant to the permission granted by the Respondent Corporation under Rule 102 of 446 the Maharashtra Municipalities Octroi Rules 1968 the appellant company was maintaining a bonded warehouse within the municipal limits of the Respondent Corporation
The motor vehicles parts and excavators parts brought from the Company s own factories as well parts imported from abroad were stored in this warehouse
These products were brought in bulk and thereafter taken or sent out from the Municipal limits in smaller packings depending on the requirements of the customers in various parts of the country
The appellants were also granted current account facilities without the requirement of immediate payment of octroi at the Octroi Naka
Accordingly the appellants were carrying out their activities of imports and exports under the current account procedure with facility of unpacking the bulk repacking and exporting
Under the Octroi Rules the octroi becomes refundable when the goods in respect of which octroi was paid are exported out of octroi limits within 6 months of their im port
During the period 1st January 1983 to 31st March 1984 the appellant Company made 1182 claims for refund of octroi which were rejected by the Corporation on the grounds 1 the Company had sold the spare parts within the octroi limits of the Corporation in contravention of Rule 253 d of the Maharashtra Municipalities Octroi Rules 1968 2 the procedure prescribed for export and the claim of refund had not been strictly followed
The appellants filed a writ petition under Article 226 in the High Court of Bombay contending that the action of the Municipal Corporation in refusing refund was unconstitu tional and illegal
The Division Bench of the High Court dismissed the writ petition
The Company filed an appeal in this Court against the decision of the High Court
In appeal to this Court it was contended on behalf of the appellant i since the sales were not for consumption or use within the octroi limits and that the parts were sold to parties outside the octroi limits and also for consump tion or use outside such limits the rejection of the claims by the Respondent Corporation on the ground that the sales were within the municipal limits in contravention of rule 253 d of the Rules is illegal ii Under Rule 62 of Chapter VIII of the Schedule to Bombay Provincial Municipal Corporation Act 1949 prior intimation of the intention to break the bulk  is enough and there is no necessity for the company to get the sanction 447 of Superintendent of Octroi or break the bulk in the presence of an officer deputed for the purpose as required under sub rule 2 of Rule 24 of the Maharashtra Municipali ties Octroi Rules 1968 Rule 242 of the Octroi Rules is inconsistent with Rule 62 and to the extent of inconsistency it shall be deemed to be not applicable
On behalf of the respondent Corporation it was contended i that the meaning of words sales therein in the defini tion of octroi in the Acts and in Entry 52 of List II of VII Schedule to the Constitution could not be limited to sales of the goods for purposes of consumption or use within the municipal limits ii there was a change in the ownership of the goods since a sale in law had taken inside the octroi limits though the purchaser was residing and carrying on business outside the octroi limits and under the sale the goods were intended to be and in fact exported for the purpose of consumption and use outside the octroi limits iii that while Rule 62 c deals with prior intimation Rule 242 deals with the sanction and breaking of the bulk in the presence of an officer deputed for that purpose and both the rules can stay together and operate and there is no inconsistency iv since the appellants have recovered the amounts paid by them by way of octroi duty from their deal ers or customers they are not entitled to refund ordering of refund would amount to allowing the appellants to unjust ly enrich themselves at the cost of the public to whom the burden had already been passed
Allowing the appeal this Court HELD 1
In the case of impost of octroi the taxable event is the entry of goods which are meant to reach an ultimate user or consumer in the area
Mere physical entry into the octroi limits would not attract levy of octroi
When the goods are brought in not for consumption within the area but for temporary detention and eventual export octroi is not leviable
The octroiable event in such a case shall be deemed not to have happened
This is particularly so because in the case of goods not consumed or used within the octroi area but exported there is a constitutional bar for the levy of octroi
In view of the constitutional bar octroi is not leviable if the goods are not brought into the octroi area for purposes of consumption or use in the area but for export and in fact exported by the importer himself or the sale by him occasions the export
458 B C 472 H 473 A 475 E 11 Having regard to the nature and incidence of octroi unless the octroiable goods are consumed or used or are meant to reach an 448 ultimate user or consumer in the octroi area no octroi is leviable
The words sale therein  in the words consump tion use or sale therein  in the definition octroi means sale of octroiable goods to a person for the purpose of consumption or use by such person in the octroi area
If sale was intended for consumption or use in the octroi area whether the purchaser actually consumed inside or outside octroi area is irrelevant
Therefore octroi rules cannot be read as enabling the municipality to levy and collect octroi even in cases where the goods have not been imported for consumption or use
475 C 474 B Burmah Shell Co vs Belgaum Municipal ll963I Suppl
2 SCR 216 Hira Lal Thakur Lal Dalai vs Brash Broach Munic ipality  Municipal Council of Jodhpur vs Parekh Automobiles Ltd  Ors  and HMM Ltd vs Administrator   relied on
Khandelwal Traders Akola vs The Akola Municipal Council AIR 1985 Born
218 approved
12 Since the goods were sold by the Company to outside purchasers and the goods under the transactions of sale were intended to be exported and were in fact exported for consumption or use outside the municipal limits no octroi duty was leviable and the octroi duty paid on entry into the municipal limits was therefore liable to be refunded
Accordingly the rejection of the refund claims on the ground that Rule 253 d had not been strictly complied with is illegal and could not be sustained
457 G H 2
Once octroi is not leviable the deposit made by the importer pending export is in the nature of a trust and refundable in the event of the export of the goods
473 G H 21 Under the octroi scheme when the goods in respect of which octroi is paid are exported the octroi becomes refundable
Right to refund arises because the goods are not consumed inside the area but exported and the tax becomes not leviable
458 C 22 If there is no consumption or use octroi is not attracted and if any levy has been made and the amount collected the same becomes legally refundable even when the goods are exported in parts and in smaller packages
472 H 3
The rules merely regulate the system on which refund shall 449 be allowed
In a given set of facts whether the rules have been complied with will have to be tested having regard to the nature of the particular transaction and whether the object of the procedure provided is otherwise fully satis fied
458 D 473 H 474 A 31 The object of requiring intimation or sanction and presence of an officer when breaking the bulk in the scheme of octroi levy and refund is to ensure that dutiable goods do not escape the assessment and refunds are made only in respect of goods exported
In other words the whole require ment relates to the identification of the goods
In that sense if the same is otherwise complied with the right to refund cannot be denied
474 A B 32 Rules 24 to 30 of the Maharashtra Municipalities Octroi Rules 1968 and the forms in the system of levy of Octroi are intended to regulate the procedure for collection identification of dutiable goods and correlation of goods exported with the goods imported for the purpose of refunds of octroi collected
475 D The rules do not contain any specific provision that an applicant for refund who has failed to follow the procedure would be disentitled to claim the refund
473 G 33 Compliance with the procedure prescribed in the Rules for filing claims of refunds are not conditions prece dent for the right or eligibility for refund or the liabili ty to refund but are provisions regarding proof of export of the goods imported and are not meant to be exhaustive ei ther
They are to be interpreted and understood in that sense
475 E F Municipal Committee Khurari vs Dhannalal Nethi  Ors   Kirpal Singh Duggal vs Municipal Board Ghaziabad   applied
34 Since the rejection of the claims for refund was merely on the ground that either form 4 and original in voices were not produced or columns 5 and 6 of Form 11 or the corresponding columns in Form 12 had not been filled with reference to an original invoice or Form 4 or deposit receipt and the refusal to issue export pass certificates on those very grounds are untenable the orders of rejection are invalid
1475 G H 4
The object of the Rules fixing a period of limitation for 450 export however is different
The export cannot be put in perpetual doubt and the goods may be considered to have come to a repose if they were not exported within a particular period provided in the rules
475 F 41 However an equitable principle could be followed in this regard and it may be presumed that the goods which came in first have gone out first
If the goods are mixed up and unidentifiable due to breaking bulk and repacking in smaller and assorted packages before export the principle that the first export was of the goods first imported subject to any evidence available to the contrary may be applied and the six months period prescribed under Rule 282 b for export may be determined accordingly
475 A B H 476 A Clayton s case   applied
There is no inconsistency between Rule 62 and Rule 242
The intimation contemplated in Rule 62 imply that the breaking the bulk shall be done with the knowledge of the octroi authorities
But it cannot be said that the rules further provide that after intimation the breaking of the bulk shall be done in the presence of the officers and after sanction that would in any case be inconsistent
Therefore both the rules can stand together
471 F G 6
There in no evidence that any of the articles sold by the Company is subject to any price control by the Gov ernment or that the Company had charged any octroi separate ly in the bills
Documentary evidence do not also show that any octroi was separately charged and collected by the Company
Therefore the question of unjust enrichment does not arise
476 F H