952 SUPREME OOURT REPORTS [1962] &UPP.

:\IAHARAJ JAGAT BAHADUR SINGH

Mmch ~O. v.

BADRI PHASAD SETH

(S. K. DAS, :\I. HwaYATlJI.LAII and , J, C. SHAH, , JJ.)

llr.nt Control-Requiren11.nt of 1JO.SStss[o11 hy lan'l-lord for currying out repairs-Jl'hethet repairs can lu~ ejjectecl uithu11f evicting tenant-Pou:l'rs of the Hiyh Court i11rccision-f.:at l'u11jab Urban Rent l!estriclion Act, 1.94.9 (Hast l'unj. J of l!iJ9),

SS. JJ(J)(a), J; j(fi).

Appellant landlord applied to the Rent Controller for eviction of the Respondent tenant on l.12.56 under s. 13(3) of the Punjab Crban Rent Ilestriction 1\ct for rcn1edying certain defects in the based building. The Municipal Committee on 11.4.57 issued an an1cndcd notice requiring only that the cracked pillar be reinforced so as to rnake it a solid blo'ck.

Respondent carried out the repairs.

On June 8, 195i, the Executive Engineer inspected again in compliance 'vith the order of the Rent Controller and \\as satisf1ed that the pillar had been repaired satisfactorily. The Rent Co11trolltr held that the case fell withi11 s. 13(3j(a) of the Act at:d ordered eviction of the Respondent.

On appeal the District Jud); e taking note of the state of repairs allo\\ccl the appeal. 111 revision under s. 15(5) of the Act the High Court .Judge held that the po,, crs of the lligh Court in revision \Vere sin1ilar to those under s. 115 of the Civil Proccd111e Code and that there \\as no question of jurisdiction invo]vcd in 1hc case.

J le, ho, vevcr, affirmed the decision after considering the evidence.

Held, that the powers of the High Court under s. 15(5) of the Act 'vcre manifestly , vider than thOse under s. 115 of the Civil Procedure Co<lc an<l 'verc uot confined to questions of jurisdiction. That under s. 13(3)(a) the requirement of vacant possession by the landlord could only he for the purpose of carrying out such fundamental and extensive repairs as could not he carried out v.:ithout evicting the tcna11t and not for ininor repairs and that it was open to the.District Judge to consider the subsequent events upto the time \\'hen

eviction v:as ordered by the Controller in vi cw ef the .schcn1e and purpose of the legislation.

CIVIL APPELLATE J URISDIC'rrox : Ci vii A pp ea I No. 340 of 1959.

Appeal by special leave from the judgment

and order dated May 21, 1958, of the Punjab High Court iu Rgvision Application No. 27 of 1958.

M. 0. Setalvad, Attorney-General of India, S. N.

Andley, Rameshwar Nath and P. L. Vohra, for the appellant.

H. N. Sanyal, Additional Solicitor-General of lndia, and J. N. Shroff, for the respondent.

1962. March 20. The Judgment of the Court was delivered by

DAS, J.-This is an appeal by speci1tl leave from the judgment and order of a learned single Judge of the . .l:'unjab High Court dated }fay :H, 1958, in Civil ttevision application No. 27 of 1958 of that Court. By that order the learned single Judge dismissed an application in revision ma.de by the appellant herein in the following circumstances.

The appellant, ,1Jaharaj Jagat Bahadur Singh is the owner of the premises known as Ranzor Hall in Simla. The respondent, Badri Pras'.l<l Seth, is in occupation of the premises as a tenant and is running a cinema therein which is known as Hevoli theatre or Revoli cinema. 'l'he correspondence between the parties shows that on or about April 12, 1956 the Executive Engineer, SimhL Provincial Division, inspected the cinema building on behalf of the Licensing Authority, namely, Deputy Commissioner, Simla, and noted six defects, one of which was, to use the words of the Executive Engineer, "the right hand pillar of the screen has cracked and has gone out of plumb." The existence of these defects was communicated to the respondent and also to the Muncipal Committee, Simla. The respondent in his turn communicated. the existence of these defects to the appellant by a letter dated April 17, 1956. In that letter the respondent suggested to the appellant that. the defect in the pillar should be removed before the beginning of June, 1956, when the rains were likely to

M(Jharaj Jagat Bahadur Singh v.

Badri Prasad Seth

DasJ.

J:Jfj2

.\tahar<Jj Ja&at Bahadur Si, igh

Bad1i Prasad Seth

nas J.

commence. The respondent removed the other

tfofects whil'h wero of a minor nature; but £lcttin~ no reply from the appellant, he again wrote to him on September l i, 1956, and asked him to take early steps to repair the pillar to a void any mishap. The

nspo11dent also intimated to the appellant tha.t tho cost of repairs to the pillar was likely to be in the 11cighbourhood of Rs. 5000/-. The appellant took no actiun in tho matter for some time. On Septum ber 2'!, Hl56 the East Punjab Crban Rent Restri<:tiou Act, 19-!9 (East Punjab Act Xo. Ill of l!J4!J) (hereinafter referred to as the Act) was amended aud a elauso was inserted ins. 13(3)(a) thereof which entitled the landlord to apply to the Rent Controller for an order directiug the tenant to put the landlord in possession in the case of any building if he required it to carry out any building work at tho instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if the building had become unsafe or unfit for human habitation. On April

!I, 1956, the appellant wrote to the !:'resident, Simla :IIunicipa.l Committee, a.sking him to get the pillar in the Rauzor Hall inspected by the Executive Engineer in order to have his oprniou whether tho pillar was really iu a dangerous condition and required any action on the part of the )luniuipal Committee under s. llf, of the Punj1ib ~Iunieipal Act, l!Jll (Punjab Act III of 1911).

On Oetobtl!' :JO, 1956, the Secretary, i\[unicipal Committee, Simla, wrote to the respondent about tho defect in respect of the right hand pill1ir of the screen and required the respondent by means of a notice to do the repairs within fifteen days of the receipt of tho notice. The Secretary issued tho notice perponing to act under ss. 113 and .114 of the Punjab Municipal Act, 191 I. It appears that. the :IIunicipal Committee had the pillar inspected again in November, 1956, by the -Executive Engineer,

Simla Central Division. This time the Ex:ecntive Engineer suggested that the two end walls

(pillars) snpporting the beams for the screen were cracked aml therefore must be replaced by thicker walls. The Municipal Committee considered this "report and" came to the conclusion that as a precautionary measure what was necessary was to fill the doorway in the pillar with masonry so that the whole might become a solid block. On April 11, 1957, the Municipal Committee wrote to the appellant asking the latter to fill the doorway with masonry so that tbe whole pillar might become a solid block. This was in modification of the earlier notice wlrich had suggested more extensive repairs to the pillar. But before April 11, 1957, when the new notice from the Municipal Committee was received, the appellant had already made an application on December 1,1956, under s. 13 of the Act praying for an order from the Controller directing the re~ pondent to put the appellant in possession of the property on the ground that the appellant required the l:iuilding for replacing the end walls supporting the beams of the screen by thicker walls. This application was contested by the respondent mainly on the ground that the appellant's claim was not bona fide and that the appellant did not really require the building to be vacated for the purpose of making the repairs to the pillar in question.

The Rent Controller came to the conclusion that the case was fully covered by cl. (iii) of s.13 (3)(a) of the Act inasmuch as on the evidence on the record it was established that the appellant required the building: to carry out the necessary building work which the Municipal Committee, Simla, had directed to be done. There was an appeal from the order of the Rent Controller to the Distriet Judge who was the relevant appellate authority under s.15 of the Act. The learned District Judge came to the conclusion that the noticeA under ss. 113 and 114 of the Punjab Municipal

t! aharoj J agat Bahadur Singh

Badri Prasad Seth

Das J.

19G2

MaJ.arai .lotat /Jahad11r Sm.t:h . v.

B. d1i P1a;(ld Scih

Act., I!ll I, had been manipulated by the landlord after the amendment made in s. t:l of the Act on Scptrmbcr 24, 19:i6, and that the appellai1t did not bon11 fide require the building for carrying out

th~ repairs iil queRtion. The lcarnrd District. , Judge pomterl out that. on April 1 I, l B:ii the i\lunicipal Committee had asked the landlord to fill the dou1 - way with masonry so that the whole mi!!ht become

a solid block and though the )funicipal Comn:ittee

had modified its earlier requirement of thicker walls

by means of a notice after the filing of the appli0ation by the appellant, it was open to the Court to take into consideration facts which had come into cxistancc after the filing of the application. He also pointed out that the evidence oft.he Executive EnginAPI', Central P.W.D., showed that he inspecti>d the building on .Tune 8, I 957, in tho compliance with the directions of the Court and was satisfied that the pillar had been satisfactorily repaired.

In this view of the matter the learned District .Judge allowed the appeal and dismissed the application.

Thn, there was an application in revision under s. lii(•'i) of the Act to the High Court.

This application was dealt with by K. L. Gosain, .J. who wrongly prn?Ceded on the footing tat the appli.c~ tion in rev1s10n was one under s. ii:>, Code of C1v1l Procedure. Though the learned Judge said that he had "one through the evidence and agreed with the

findias arrived at by thn District Judge, he came

to tho 0 conclusion that as no question of jurisdiction was involved within the meaning of s.115, Cod!l of Civil Procedure, he saw no reasons to interfere and dismissed thn application in revision.

The present appeal is direct.id against this order of the learned smgle Judge.

Tho learned Attorney .General who appeared on behalf of the appellant has rightly pointed out that the learned J udgo of tho High Court was in

error in disposing of the case as though the application in revision made to the High Court was an application under s. 115, Code of Civil Procedure.

The application was really an application under s. 15(5) of the Act which is in these terms : ' "15. (5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit."

It is manifest that the scope of subs. ( 5) of s. 15 of the Act is not the same as the scope of s. 115, Code of Ci•il Procedure. The learned Attornev General has submitted. rightly in our opinion, that.the scope of sub-s. (5) of s. 15 of the Act is wider and is not confined to questions of jurisdiction only.

But even if the learned Jud!!; e of the High Coart was in error in treating the application as one under s. 115, Code of Civil Procedure, the fact still remains that he affirmed the findings of the learned District Judge and one of these findings was that the landlord did not require the building to carry out the repair work which was su?gested by the Municipal Committee. The Municipal Committee liad suggested a very simple work of repair, namely, filling up of the doorway in the pillar so that the pillar might be one solid wall to support the screen. It has not been seriously disputed before us that such repairs could be easily carried out without the necessity of asking the respondent to vacate the building. As a matter of fact the learned Dis trict Judge has pointed out that the Executive

Enginear, Central P.W.D. had, subsequent to the application, exfJ, mined the pillar and found thn, t

J96!t

,1-fah~, rof Jagat 8'Jlladur Singh ..

Bodri Prasad Seth

DasJ.

,\faharaj J •got B!lhJdur Singh ..

Bad1i Prasad Sttli

Das J.

the repair work had already been done by the respondent.

The leiirned Attorney General has contenrled that the lciirned District Judg<• was in error in holding that the appelliint had manipulat.ed the notices

..nclcr as. 11 :i am! 114 of the Punjab :lfonicipal Ant.

We think it unnece88ary to go into that qn<'stion

because the relevant provision in s. J::l(3)(a) of tho Act makes it quite clear that the landlord is m1tit.-

led to an order from the Controller directing the terant to put thP landlord in pos8ession rJf th<·

building only when the landlord requires it.to carry out any building work etc.

Tho relevant provision rpads as follows :

"13. (1) A tenant in posFession of a building or rented fan<l shat! not be t'Victed t he1 efrom x x x l'Xccpt in acco, dun' e with the prov is ions of' this section, x x x. (2) x x x.

(:l) (a) A landlord may apply to tlw Controller for an order directing the t<nant to put the landlord in posseo; ion-

(i) x x x (ii) x x x

(iii) in the ca8e of any building or renied land if he requires it to carry out. any buildi11g work at t.he in•t1mcc of the Government or local authority or any Jmpro\'(mcnt 'I'ru8t under Rome im)Jro\ement or clcvelopm., nt echem" or if it bas hecome unsafe or 1111fit for human babitat:on.

x x x. " W<.' emphasis£> the word "1cquires" in the provision. Having regard to the sehme and purpose of tbp. legislation it is abundantly clear that cl. (iii) of

' '

s.l3(3)(a) of the Act is attr.icted only when the building work is such that the lJ.ndlord requires that the building be vacated by the tenant in order to carry out the work ; in other words, the repairs needed are so extensive and fundamental in character that they cannot be carried out if the tenant remains in possesRion. Then only it can be said that the landlord requires the building to carry out the building work. We think that it is absurd to suggest that any such small work as white-washig, or filling up the gap in the doorway as in the present case, comes within cl. (iii) of s. 13(3)(a) of the

Act .

The learned Attorney General has argued that the learned District Judge wrongly took into consiqeration facts which had come into existance after the filing of the application under s.13 of the Act.

Here again we think that having regard to the scheme and purpose of the legislation it was open to the learned District Judge to take into consideration such facts as existed at the time when the order for vacation was to come into offer; t. Section 13 \ 3l(b) says that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an C•rder directing the tenant to put the landlord in possession of the building on such date. as may be specified by the Controller. In the present case the Controller made the order in July, 1957, and directed the building to be vacated by Septem her 25, 1957. But long before that date, namely, on June 8, 1957, the Executive Engineer, Central P.W.D., had inspected the building and found that the pillar had been repaired satisfactorily. The Controller did not accept the testimony of the Executive Engineer and the learned District Judge pointed out that the testimony of the Executive Engineer had been rejected by the Controller on very insufficient grounds. Tt was open to the learned District Judge to take into consideration the testimony of the Executive Engineer and having regard

196!

Mahoraj Jagat

Baharlur Singh

Badri Prasad Seth

DasJ.

Mah1raj Joeat

Bahadur Smgti

Badri Pratad Stth

Dos J.

A1arch :?0,

960 SUPREME COURT REPORTS [1962] SllPl'.

to that testimony, the lcarne<l District Judge rightly came to the conclusion that cl. (iii) of s.1.1(:!)

(a) of the Act was not attracted to the Catie.

For these rea.sons we have com!i to the conclusion that there is no merit in the appeal whih

i~ accordingly dismissed with costs.

AppP, al dismissed.

K. M. S. REDDY, CO:\fi\HSST01\ER OF INCOME.

TAX, KERALA (CODIBATORE), EHNAKl1LA.Jl

THE WEST COAST CHEMICALS AND JN"DUS-

TIUES LTD. (I!\ LIQCIDATION"), ALLEPPX

(S. JC DAS, :VT. HrnAYATULLAH and .J.C. SHAH, .TJ.)

lncomr Tax-lri11dirig up of bu.sine . .; s-Rra[isation of

r1ssf:fs-~)'afe rlurin(f loinding up, if an l'lt;, t of lradi'tl'}-l'rofits an'si1; q out of sale--Lial1ili1y to lox.

The respondent cornpany \\as incorportrd in 1937 primarily with the object of acqnirini:r and \\orkinga match factorv.

Under the 1nr.morandun1 of as-; oc:iation the company \\as atso empo\\'Cred, inter a/ia, to rnanufacture and deal in chemicals. The business of rnanufa.cturing 1natches \\':lS carri<rl on hy the company till 1941.

Thercaf1cr thr. prr.•fits hccame less and less due to y,:ar conditions.

On ~1a.y 9, 19-lJ, the company rntere:d into an agreement with a third party for th~ sale of the land-.. buildings. plant ancl machinery of it~ match factory for Rs . .i,75,000.

It , vas agreed that this price \\'oulci not include manufacturrd roods, cttn1irab ancl CJtb<r 1a,,· 1naterials or any other asset not shown in the agrcment of

le. J.ater, a fresh a~TTce1nnt ,.., as entered into on .J\11g11.-.t 9,

19-13, under which the sale includeci chernical~ and paper for rnanufacture \vhich had not hecn sold in the first instance an<l the price \\'as Rs. 7,'.~5.000.

In a report to thr. sharcholdc:rs dated ..-\ugust l, 1944, the Direc.tof!C stated t!1at the price obtained had shown a capita) appreciation of about six tinH:>s the cost price and that the sale of chemicals harl resulle<l in substantial profit.

In proceedings for assessing income which had escaped a'isessment the incometax authorities, relying upon the memorandum of association \\"hic:h allowed the