Civil Appeal No 1682 of 1984
From the Judgment and order dated 23121983 of the Punjab and Haryana High Court in Civil Revision No 959 of 1979 VM Tarkunde AD Sikri for the Appellant
Hardev Singh and RS Sodhi for the Respondents
The judgment of the Court was delivered by NATARAJAN J
What falls for consideration in this appeal by special leave by a tenant against the judgment of the High Court of Punjab and Haryana in a Civil Revision is whether the High Court had transgressed its revisional powers in interfering with the concurrent findings rendered by the Rent Controller and the Appellate Authority and ordering the eviction of the appellant herein from the leased premises and secondly whether the High Court had erred in holding that the leased premises had become unsafe and unfit for human habitation as envisaged in Section 133aiii of the East Punjab Urban Rent Eviction Act 1949 hereinafter the Act
205 The respondent s petition for eviction was originally based on other grounds such as bona fide requirement of the premises for own use and change of user of the premises by the tenant
As he failed before the Rent Controller the respondent preferred an appeal and during the pendency of the appeal he obtained orders and amended the petition and raised an additional ground under Section 133aiii for seeking the eviction of the appellant viz the leased premises had become unsafe and unfit for human habitation
The Appellate Authority called for a finding on the additional ground from the Rent Controller and the finding went against the respondent
The Appellate Authority concurred with the Rent Controller on the said finding and dismissed the appeal
Before the appellate Authority the respondent did not seriously press the original grounds on which eviction was sought for and laid stress only upon the ground under Section 133aiii of the Act
The respondent then preferred a Civil Revision wherein the High Court sustained his case and ordered the eviction of the appellant under Section 133aiii and hence the present appeal by the appellant tenant
Section 133aiii was resorted to for seeking eviction of the tenant on the footing that one room in the rear side of the leased premises had fallen down
We may state even at this juncture that the High Court had wrongly assumed that besides the falling down of the roof one of the walls had also crumbled
This assumption was a mistaken one because the expert witnesses examined during the trial by the parties have spoken about the good condition of three walls alone of the room and not the fourth because they are the outer walls of the room while the fourth wall was a common wall for the room in question and the adjoining room and hence there was no need to certify its good condition
It was therefore wrong for the High Court to have assumed that only three walls of the room were in good condition and not the fourth wall
The High Court deemed it necessary to allow the Revision and set aside the order of the Rent Controller and the Appellate Authority because of its view that the falling down of the roof of one of the rooms afforded by itself a cause of action to the landlord to seek eviction of the tenant under Section 133aiii and the said cause of action would subsist even if the tenant had repaired the roof under orders of the Rent Controller under Section 12 of the Act
It is necessary to mention here that during the pendency of the proceedings before the Rent Controller the appellant obtained the permission of the Rent Controller under Section 12 to replace the roof fallen down and re 206 cover the cost from the respondent since the respondent had failed to do the work himself
The High Court relied upon two decision Balbir Singh vs Hari Ram AIR 1983 Punjab and Haryana 132 and Chander Mohini vs Jiva Singh for holding that once a cause of action ensued under Section 133aiii it would subsist inspite of any repairs effected by the tenant
It also relied on another decision Sardarni Sampurna Kaur vs Sant Singh  Anr for holding that even if the rest of the building was in good condition the falling down of the roof of one room would constitute sufficient material to sustain a landlord s claim under Section 133aiii of the Act for seeking the tenant s eviction
A few facts may now be set out
The leased portion comprises of four rooms in the ground floor where the appellant is running his office
There is a room in the first floor in the possession of the respondent himself but we are not concerned with it
It is common ground that the roof of one room in the rear side of the leased portion had fallen down and it had been replaced by the appellant after obtaining orders of the Rent Controller under Section 12
The appellant s contention is that the falling down of the roof in one of the four rooms would not by itself render the entire building unsafe and unfit for human habitation as envisaged under Section 133aiii of the Act and as such the High Court had erred in ordering eviction under the said provision
It was further urged that the Rent Controller and the Appellate Authority had concurrently found that the building was neither unsafe nor unfit for human habitation and as such the High Court was not justified in interfering with those findings especially when they were findings of fact
In reply to the above said contentions the learned counsel for the respondent argued that the falling down of the roof in a room was indicative of the damaged condition of the building and therefore the High Court was fully justified in ordering the eviction of the appellant under Section 133aiii of the Act
It was further urged that the replacement of the roof by the appellant would not extinguish the right which had accrued to the respondent under Section 133aiii to seek recovery of possession of the leased premises and the High Court had rightly adverted to this aspect of the matter also while allowing the revision filed by the respondent
On a careful consideration of the matter with reference to the contentions put forth by the learned counsel for the parties we are clearly of opinion that the High Court was not justified in allowing the revision and directing the eviction of the appellant under Section 133aiii
It is true that a roof of one of the rooms on the rear side 207 had fallen down and required replacement but there was no evidence whatever that the entire building or a substantial portion of it was in a damaged condition and consequently the building as a whole had become unfit and unsafe for human habitation
Unless the evidence warranted an inference that the falling down of the roof in one room was fully indicative of the damaged and weak condition of the entire building and that the collapse of the roof was not a localised event we fail to see how the High Court could have concluded that the entire building had become unsafe and unfit for human habitation
In fact the appellant had replaced the roof only at a cost of about Rs200 and this would independently show that the damage that had occurred could not have been of a serious or disquieting nature
The High Court has failed to notice two factors of relevance viz 1 that the respondent had given his consent to the Rent Controller granting permission under Section 12 of the Act to the appellant to replace the roof and 2 that inspite of the alleged cause of action having arisen due to the falling down of theroof the respondent did not immediately seek amendment of the petition so as to seek eviction of the appellant on the additional ground under Section 133aiii but instead he chose to prosecute his petition only on the original grounds for eviction set forth therein and only after failing before the Rent Controller and preferring an appeal to the Appellate Authority he deemed it necessary to amend the petition and ask for eviction of the appellant or the additional ground under Section 133aiii
The above said conduct of the respondent would clearly reveal that he himself had not attached any significance to the falling down of the roof in one of the rooms and had not seriously considered that a sustainable cause of action had accrued to him under Section 133aiii for seeking the eviction of the appellant
The High Court has not only failed to appreciate these factors but has also proceeded on the erroneous assumption that the falling down of the roof in one room was by itself sufficient to warrant a finding that the entire building had become unfit and unsafe for human habitation and called for a declaration to that effect
It is this basic error which has affected the reasoning of the High Court lead the High Court to apply the ratio laid down in certain cases where the facts and circumstances were entirely different
What arose for consideration in Balbir Singh s case supra was whether a tenant would stand deprived of his right under Section 12 to carry out repairs of the tenanted premises by reason of an application filed by a landlord under Section 133c of the Haryana Urban Control on Rent and Eviction Act Corresponding to Section 133aiii of the East Punjab Urban Rent Restriction Act 1949 and con 208 versely whether a landlord would stand deprived of his right to seek eviction of his tenant under Section 133c by reason of an order passed under Section 12 empowering the tenant to carry out repairs to the tenanted premises
It was in that context the High Court held that the two sections operated in their respective spheres and they were not mutually destructive of each other and consequently when a right accrued to a landlord under Section 133c of the Haryana Act to seek eviction of a tenant the right would not get extinguished on account of an order passed under Section 12 of the Act
In other words it was held that once a cause of action had arisen for a landlord to seek eviction under Section 133c of the Haryana Act that the said cause of action would ensure to the benefit of the landlord in spite of the tenant effecting repairs to the building for his benefit in pursuance of permission obtained under Section 12 of the Act
The decision does not lay down that each and every damage to a building without reference to the seriousness of its nature or to the condition of the building as a whole would by itself entitle a landlord to invoke Section 133aiii to seek eviction of the tenant
In Chander Mohini s case supra wherein Balbir Singh s case supra was followed it was held that if the tenants had pulled down the roof of one of the rooms under their tenancy and replaced the same obviously for their own convenience and for pre empting the landlord from filing a petition for eviction under Section 133aiii the landlord would undoubtedly acquire a cause of action under Section 133aiii as soon as the tenants had pulled down the roof of the room and his rights could not be defeated by the tenants by the replacement of the roof of their own volition
The other decision in Sardarni Sampurna Kaur vs Sant Singh has also no relevance because it was found in that case that even though the portion under the ocupation of the tenant was in a sound condition a substantial portion of the composite building had become unfit and unsafe for human habitation
In that situation the High Court held that what was relevant for consideration for passing an order of eviction under Section 133aiii was the condition of the building viewed as a whole and not in parts or blocks
In the instant case the admitted position is that except for the roof in one of the rooms falling down no other damage to the building was noticed and in such circumstances there is no scope for holding that a substantial or major part of the building had become unfit and unsafe for human habitation and hence an order of eviction was called for
It is therefore obvious that the ratio laid down in the earlier decisions were not at all attracted to the facts of the case and the High Court had wrongly applied them because of its erroneous assumptions
209 Learned counsel for the respondent tried to contend that apart from the building having become unsafe and unfit for human habitation the respondent had also sought eviction on the ground he was genuinely in need of additional accommodation but the Appellant Court had unjustly rejected the plea by saying that since the respondent was jointly living with his son he can secure additional accommodation from out of the portion in his son s occupation
We do not find any merit in this contention because the requirement of the building on this ground was not canvassed before the High Court
Even the Appellant Authority has observed that the only ground pressed for seeking eviction of the tenant was under Section 133aiii and the other grounds were not pressed seriously and only incidentally a halfhearted argument was advanced regarding the requirement of the leased premises by way of additional accommodation
In the result the appeal is allowed and the judgment of the High Court is set aside
The respondent s application for eviction of the appellant will stand dismissed as ordered by the Rent Controller and the Appellate Authority
The parties are however directed to pay and bear their respective costs
NVK Appeal allowed


Summary:
These Writ Petitions filed in this Court by Public Limited Companies growing manufacturing and selling tea in the States of West Bengal and Kerala raised common questions of law
The Writ Petitions relating to the State of West Bengal challenged the constitutional validity of sections 3 and 5 of the Bengal Agricultural Income tax Amendment Act 1980 whereby sub section 2 and 2A of section 8 of the Bengal Agricultural Income tax Act 1944 were omitted and always deemed to be omitted
The petitioners alleged that as a result of the omission of the said Sub sections 2 and 2A of section 8 the State Legislature had sought to assume the power competence and jurisdiction to impose agricultural income tax on the entire income from the sale of tea grown and manufactured by a seller and had thereby transgressed the constitutional limitations contained in Article 2463 of the Constitution of India
The petitioners contended that the income derived from the sale of tea grown and manufactured by them was derived partly from agriculture and partly from manufacture by elaborate processes through valuable machinery
Prior to the said amendment Act the position was that the income of an assessee who grew manufactured and sold tea in West Bengal was computed under the Indian Income tax Act 1922 the Act of 1922 read with the Income tax Rules 1922 and agricultural income tax was levied only in respect of 60 per cent of that income
After the coming into force of the Income tax Act 1961 and the Income tax Rules 1962 also a State Legislature 962 could only legislate in respect of 60 per cent of the income treated as agricultural income
The object of the impugned amendment Act was to subject to the levy of agricultural income tax the entire income derived by an assessee from the sale of tea grown and manufactured by him
The writ petition relating to Kerala State challenged the amendment made by the Agricultural Income tax Amendment Act 1980 Kerala Act No 17 of 1980 deleting the Explanation after clause 2 of section 2a of the Agricultural Income tax Act 1950 with a view to making the entire income from sale of tea earned by an assessee who grew and manufactured tea in that State subject to the levy of agricultural income tax
The petitioners urged that these amendments in so far as they purported to confer power on the respective legislatures of the States of West Bengal and Kerala to legislate regarding taxes on the income from the sale of tea grown and manufactured by the assessees in excess of 60 per cent of such income computed in the manner prescribed under the law relating to income tax were void and beyond the legislative competence of the legislatures of the States of West Bengal and Kerala in view of the provisions of Article 246 of the Constitution of India read with the entry 82 in List I and Entry 46 in the List II of the Seventh Schedule to the Constitution and the relevant provisions of the law relating to income tax
The respondents contended that Article 3661 of the Constitution merely stated that the term agricultural income had the same meaning as given to it in the enactments relating to income tax and the definition of the said term in Act of 1922 and the Act of 1961 did not prescribe that only a particular part of the income derived by an assessee from the sale of tea grown and manufactured by him could be regarded as agricultural income and it was open to the State Legislatures concerned to levy agricultural income tax on such entire income
Disposing of the petitions the Court  HELD The main question to be considered was whether the impugned provisions in the Bengal Amendment Act of 1980 were in excess of the legislative competence of West Bengal State Legislature and whether by deletion of the Explanation effected by the Kerala Amendment Act of 1980 the definition of the term agricultural income in sub section a of Section 2 of the Kerala Agricultural Income tax Act 963 became void as in excess of the legislative competence of the State Legislature
978D E A perusal of Entry 82 of the List I in the Seventh Schedule and Entry 46 in the List II makes it clear that the Legislatures of the States of West Bengal and Kerala can pass laws imposing taxes only in respect of agricultural income and in respect of income other than the agricultural income it is only the Parliament which has the power to legislate in respect of taxes on such income
Sub article 1 of Article 366 of the Constitution states that agricultural income means such income as is defined as agricultural income for the purposes of the enactments relating to Indian income tax
It is significant that the words used are not as defined by the enactments relating Indian Income tax but are as defined for the purposes of the enactments relating to Indian Income taxemphasis supplied978F G Although the Explanation has been deleted from clause 2 of Sub section a of Section 2 of the Kerala Agricultural Income tax Act and in spite of the amendments carried out by the Amendment Act of 1979 and the Amendment Act 1980 in the case of the West Bengal Agricultural Income tax Act an Agricultural Income Tax Officer acting under the Kerala Agricultural Income tax Act or the Bengal Agricultural Income tax Act has no power to levy agricultural income tax except in respect of 60 per cent of the income derived by an assessee from the sale of tea grown and manufactured by him and computed in the manner leid down under the relevant Income tax Act and the rules framed thereunder
984B C The decision of this Court in Commissioner of Sales Tax Lucknow vs DS Bist 1979 44 STC 392 relied upon by the State of Kerala and the State of West Bengal was of no assistance to them as the ratio of that decision had no application to present cases
986A Article 3661 of the Constitution provides that the term agricultural income has the same meaning as attributed to it for the purposes of enactments relating to Indian income tax and Rule 8 of the Income tax Rules 1962 as well as Rule 24 of the Income tax Rules 1922 pertain to and are bound up with the definition of the term agricultural income for the purposes of laws or enactments pertaining to Indian Income tax and the provisions of those rules have to be taken into account in considering the meaning of the term agricultural income under sub article 1 of Article 366 of the Constitution
987B D 964 Clause b of sub section 2 of Section 295 of the Income tax Act 1961 specifically confers power on the rule making authority to make rules relating to the manner in which and the procedure by which income for the purposes of the Act of 1961 would be arrived at in the case of income derived in part from agriculture and in part from business and Rule 8 clearly provides for the manner in which computation of income for the purposes of the Act of 1961 is to be made in the case of income derived from the sale of tea grown and manufactured by a seller and it cannot be said that the said rule goes beyond the scope of the rule making power conferred under section 295 as contended by counsel for the two States
987E F Although the Explanation to Section 2a 2 of the Kerala Agricultural Income tax Act has been deleted by the Amendment Act of 1980 the result would still be the same that the Kerala State Legislature can impose tax only in respect of 60 per cent of the income derived by an assessee who sells tea grown and manufactured by him in India and such income has to be computed in the manner laid down in the Act of 1922 and thereafter in the Act of 1961 for computation of the business income
The same is the position in respect of the powers of the legislature of the State of West Bengal in spite of the amendments made by the legislature by the Amendment Act of 1980 and earlier under the amending Act of 1979 which was in force for one year
It is not necessary to strike down the said amendments because they do not directly conflict with the definition of the term agricultural income under the Constitution but they do not confer any wider power on the State Legislature to impose taxes on the agricultural income then what is stated earlier
987G H988A B The validity of the amendments to the Bengal Agricultural Income tax Act made in 1980 and the deletion of the Explanation in Section 2a2 of the Kerala Agricultural Income tax Act were challenged as being ultra vires and invalid in law on several other grounds but the Court did not go into those grounds in view of what it held as set out above
988C D Although none of the prayers in the petitions was granted in terms the petitioners substantially succeeded in the petitions988E Karimtharuvi Tea Estates Ltd  Anr
vs State of Kerala Trading Co Ltd etc
vs Commissioner of Agricultural Income tax Kerala  State of Tamil Nadu vs Kannan Devan Hills Produce Co Ltd 965  Tea Estate India P Ltd vs Commissioner of Income tax West Bengal II  Commissioner of Income tax Madras vs RM Chidambaram Pillai etc
  Commissioner of Sales Tax Lucknow vs DS Bist  Ors 1979 44 STC 392 and High Land Produces Co Ltd  Anr etc
vs Inspecting Asstt
Commr
of Agricultural Income tax  Sales Tax Special Kottayam and Ors
 1984 148 ITR 746 referred to