judgement:
minal Appeal No. 171 of 1959.
Appeal by special leave from the judgment and order dated August 3, 1959, of the Allahabad High Court in Criminal Revision No. 1080 of 1959.
0. P. Rana and A. 0.
Ratanaparkhi, for the appellant.
G. C. Mathur and C. P. Lal, for The dent.
March 26.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
One Ram Narain was ' ordered by the High Court of Allahabad, on June 9, 1958, to furnish a personal bond for a lakh of rupees and three sureties, two in the sum of Rs. 40,000/ each and one in the sum of Rs. 20,0001in respect of the case against him for having committed.
criminal breach of trust with respect, to the funds of the Pikaura Co operative Society He 57 was to furnish the personal bond and the sureties within three weeks from the date of the order.
It was further ordered: "The applicant should furnish the personal bond and sureties as 'directed above within three weeks from today and during that period he will not be arrested.
If he does not furnish the bonds and sureties within this period he will be liable to be re arrested and detained till the necessary bonds and sureties are furnished.
" It may be mentioned that Ram Narain had previously furnished a personal bond and sureties in connection with the embezzlement alleged to have been committed by him and that the necessity for a fresh order for furnishing personal bond and sureties arose on account of the police submitting more than one charge sheet with respect to the amount embezzled and it was felt that the original security furnished might not be, effective.
On June 26, 1958, Ram Narain executed a personal bond for Rs. 1,00,000/ and offered,the required sureties.
Kashi stood surety for Rs. 40,000/ , Safir Hussain for Rs. 40,000/ and Smt.
Sona for Rs. 20,000/ respectively.
The surety bond by Safir Hussain was not duly verified as he was in hospital at that time, but when it was put up to Safir Hussain for verification on July 12, 1958 be refused to verify it.
Prior to this, on July 7, 1958, Safir Hussain filed an application before the Magistrate praying that his surety bonds in connection with the embezzlement of Rs. 40,000/ and Rs. 80,000/ be cancelled.
Ram Narain was present in Court that day.
No particular order was passed on this application of Safir Hussain.
On July 93 1958, an application on behalf of Ram Narain was filed stating that Bekaru 's surety 58 be accepted in place of Safir Hussain 's surety.
Bekaru filed the surety.
bond offering himself to stand surety for Re. 40,000/ for Ram Narain 's appearance in Court.
He was identified by Sri Ahmad Husain, Vakil, who certified that Bekaru Singh possessed sufficient property to stand surety for Rs. 40,000/ .
The Magistrate ordered for the verification from the Tehail and on receipt of the report from the Tehsil, accepted the bond on August 20, 1958.
The Tehsil report, however, indicated that the house mentioned in the surety bond and alleged to be worth Rim.
60,000/ was estimated to be worth Rs. 16,075/ .
The police charge.
,sheet in the case appears to have reached the Court on August 20, 1958, when summons for the appearance of Ram Narain was ordered to be issued for September 1, 1958.
The summons was not served.
When Ram Narain did not appear on September 1, 1958, September 9, and September 23, the Court, on September 24, ordered action under sections 87 and 88 Cr.
P.C. against him and the issue of notices to the sureties to produce him in Court.
When he did not appear in Court on October 29, the Court forfeited the personal bond executed by Ram Narain and the bail bonds executed by the sureties and ordered issue of notice to the sureties to pay the penalty or show cause a.,) to why the amount be not recovered from them.
Bekaru objected to the forfeiture of his surety bond.
On April 20, 1959, the objection was disallowed and the learned judicial officer ordered that the amount of Rs. 40,000/ be recovered from his movable.
property through attachment and sale.
Bekaru appealed but his appeal was dismissed by the learned Sessions Judge.
His revision application to the High Court was also dismissed.
He has preferred this appeal by special leave.
The main contention for the appellant is that the learned Magistrate should pot have accepted 59 Bekaru Singh 's surety bond without first taking action contemplated by sub sections (2) and (3) of section 502, Cr.
P.C. Section 502 reads: "(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate e to discharge the bond, either wholly of so far as relates to the applicants.
(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.
(3 ) On the appearance of such person pursuant to the Warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicant, and shall call upon such person to find other sufficient, sureties, and, if he fails to do so, may commit him to custody.
" It is urged that the Magistrate had to issue a warrant for the arrest of Ram Narain when Safir Hussain had presented his application for the discharge of his surety bond and that when Ram Narain would have appeared before the Court in execution of that warrant, the Magistrate had to first discharge Safir Hussain 's surety bond and only then could have called upon Ram Narain to furnish other surety.
The Magistrate took no such stop and therefore could not have legally accepted the surety bond offered by Bekaru on July 9,1958.
We do not agree with this contention.
These provisions Of section 502 are meant for the continuity of the surety bond on the basis of which an accused has been released on bail till such time that the accused is before the Court and for taking further action in case the accused desires to offer another security in place of the one who is to be discharged.
They are not conditions precedent for the acceptance of 60 a fresh surety in place of the earlier one.
In the circumstances of the present case, there was no occasion to issue a warrant for the arrest of Ram Narain on Safir Hussain 's applying for the discharge of his surety bond We do not Know in what circumstances no particular order was passed on July 7, 1958 on the application of Safir Hussain.
Ram Narain who was present in Court that day, may have intimated to the Court that he would offer a fresh surety on July 9.
Anyway a fresh surety was offered on that day viz; July 9.
Bekaru stood surety.
An application on behalf of Ram Narain was presented praying for the acceptance.
of Bekaru 's surety bond in place of Safir Hussain 'section In accepting Bekaru 's surety bond the Court committed no wrong.
It was interested in getting a fresh surety for letting Ram Narain continue on bail.
Bakaru offered the surety bond.
His competence to stand surety for Rs. 40,000/. was certified by a Vakil, Safir Hussain 's bond therefore stood cancelled and Bekaru 's took its place.
We do not therefore consider that there was any incompetency in the Magistrate 's accepting Bekaru 's surety bond in place of Safir Hussain 'section It is true that Bekaru 's surety bond was formally accepted on August 20, 1958, but that does not matter.
Sub section (1) of section 499, Cr. P. C. provides that before any person is released on bail bond must be executed by such person and bonds be also executed by sureties for the attendance of that person in Court.
Sub section (3) of s.499 is "(3) For the purpose of determining whether the sureties are sufficient, the Court way, if it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further enquiry as it deems necessary.
" When Bekaru furnished the surety bond he also filed 61 an affidavit stating therein that the house mentioned in the surety bond was worth over Rs. 40,000/ Sri Ahmed Husain Vakil, certified that Bekaru possessed sufficient property to stand surety for its.
40,000/ In the circumstances, the Magistrate could accept Bekaru 's surety bond.
Of course the Magistrate could make further enquiry as well and it was for the purpose of further enquiry that he ordered verification from the Tehsil.
Bekaru 's bond, in our opinion, was accepted on July 9, subject to further orders on the receipt of the Tehsil report.
Further, Ram Narain 's continuing on bail is justified by the provisions of 8.
500 Cr. P. C., once Bekaru 's surety bond had been filed.
Its sub section
(1) provides that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released.
This contemplates that the accused is to be released on the execution of the bonds which should be accepted on their face value in the first instance.
Section 501, Cr. P. C. provides for the issue of a warrant of arrest of the person so released on bail if it is subsequently found that through mistake, fraud or otherwise, insufficient sureties bad been accepted, or if they afterwards became insufficient.
We are therefore of opinion that formal acceptance of Bekaru 's surety bond on August 20, 1958 by the Magistrate does not in any way affect Bekaru 's liability on that bond from July 9, 1958.
Any way, he was liable on that bond for the non appearance of Ram Narain on a date subsequent to August 20, 1958.
It may be mentioned that it was urged up to the appeal stage that the surety bond was accepted on the 20th of August 1958 after the Magistrate had known of the absconding of Ram Narain.
The Courts found against this allegation as there was no evidence in support of it.
Another point urged is that the surety bond executed by Bekaru Singh did not have on the other 62 side the personal bond executed by Ram Narain and that in the absence of a personal bond by Ram Narain, the surety bond executed by Bekaru could not be legally accepted.
Reliance is placed on the case reported as Brahma Nand vs Emperor (1) and a few other cases expressing the same view.
These cases are distinguishable on facts.
In Brahma Nand 's case.
(1) the accused himself had not executed any bond and therefore it was held that the surety bonds could not be forfeited.
In the present case Ram Narain executed bond on June 26, 1958.
Kasbi, one of the sureties, executed the surety bond printed at the back of the bond executed by Ram Narain.
Ram Narain had already bond himself to pay Rs. 1,00,000/ in case he failed to appear in Court when required.
Other sureties bond themselves to pay the various amounts in case Ram Narain did not appear.
Their surety bond are good by themselves.
Bekaru 's surety bond is there fore as effective and legal as Kashi 's bond which is just on the back of Ram Narain 's bond.
It is not required by any provision of the Code of Criminal Procedure that all the sureties should execute the bond printed at the back of the form on which the accused execute the personal bond or that the accused must execute as many bonds in identical terms as there are surety bonds by individual sureties.
The mere fact that Form No. XLII, Schedule V. Criminal Procedure Code, prints the contents of the two bonds, one to be executed by the accused and the other by the surety, together, does not mean that both these bonds should be on the same sheet of paper.
We are, therefore, of opinion that Bekaru 's bond can be forfeited if Ram Narain does not comply with the terms of his bond executed on June 26, 1958 and that Ram Narain had not to execute a (1) A. 1.
R. 1939 All.
63 bond afresh when Bekaru furnished fresh surety in place of Safir Hussain 's surety bond.
We therefore hold that the appellant 's bond has been rightly forfeited on the non appearance of Ram Narain in 'Court.
We therefore dismiss the appeal.

summary:
One R was granted bail on his furnishing a personal bond and three sureties which he did.
On July 7, one of the sureties S applied for the discharge of his bond.
On July 9, R made an application that the appellants surety bond be accepted in place of S, and the same day the appellant filed his surety bond.
The appellant also filed an affidavit that he had property enough to satisfy the bond and a vakil also certified to that effect.
The bond was sent for verification to the Tehsil and after verification was formally accepted on August 20.
Subsequently R absconded and the appellant 's bond was forfeited.
The appellant contended that the forfeiture was illegal and that his bond was not properly accepted as no warrant was issued for the arrest of R when S applied for the discharge of his bond, as the bond of S was not formally discharged and as R had not executed a personal bond on the reverse of the form on which the appellant bad executed his bond.
56 Held, that the surety bond of the appellant had been.
properly accepted and the forfeiture was legally made.
The provisions of section 502 of the Code of Criminal procedure were meant for the continuity of the surety bond and for enabling the accused to offer another surety bonds; they were not conditions precedent for the acceptance of a fresh surety in place of an earlier one.
There was no occasion to issue a warrant for the arrest of R as he was present, in Court on July 7, when S applied for the discharge of his bond and may have intimated to the Court that lie would offer fresh surety on July 9.
The Court was interested in getting a fresh surety for letting R continue on bail and it did no wrong in accepting the appellant 's surety bond which was offered.
The bond of S stood cancelled and appellant 's bond took its place.
The bond of the appellant was really accepted on July 9 when the appellant filed the affidavit as required by section 499 (3) of the Code and the Vakil also certified as to his solvancy.
It was immaterial that the bond was formally accepted on August 20.
Further, it was not necessary that each surety should execute the surety bond on the reverse of the personal bond of the accused.


judgement:
minal Appeal No. 240 of 1959.
Appeal by special leave from the judgment and order dated July 15, 1959, of the Calcutta High Court in Criminal Revision No. 135 of 1959.
section C. Mazumdar, for the appellant.
Sukumar Ghose, for the respondent No. 1. 1962.
March 26.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal against the judgment and order of the High Court of Calcutta passed in revision against the order of the Additional Session,% Judge, Howrah, who had modified the order of conviction of the respondents under section 488 read with a. 386(1)(b) of the Calcutta Municipal Act (Act III of 1923) as extended to the Municipality of Howrah, hereinafter called the 'Act '.
The appellant before us is the Chairman of the Municipal Committee of Howrah who is the complainant and the respondent is a company with its premises at No. 1 Swarnamoyee Road, where it was carrying on the manufacture of bobbins, card pine, shuttles etc.
They were also storing their wood and timer in those premises.
49 The charge against the respondent was that it was using the premises within the municipality of Howrah without a license as required under section 386 of the Act and was therefore guilty under section 488 of the Act.
The defence of the respondent was that the premises had been licensed as a warehouse under the West Bengal Fire Services Act, 1950 (Act 18 of 1950) and consequently because of section 38 of that Act, section 386 of the Act stood repealed and the respondent was not required to take out another license under, section 386 of the Act.
The Magistrate, before whom the case was tried, was of the opinion that the effect of a. 38 of the West Bengal Fire Services Act was that the power of the Municipality to require a license under a. 386 of the Act for user as a warehouse had been taken away and therefore in respect of the rest of the premises used as a factory or for other purposes the applicability of section 386 remains unimpaired.
He found that the respondent was running a factory with workshops fitted with electric power in the premises for the manufacture of bobbins, card pins, shuttles etc.
He convicted the respondent under section 488 and sentenced him to a fine of Rs. 250.
In appeal the learned Additional Sessions Judge held that section 38 of the West Bengal Fire Services Act does not repeal all the three clauses of section 386 of the Act but partially repeals a. 386(3) which deals with the levy of fees and therefore a license under section 386(1) will still have to be taken but as the premises had al.
ready been licensed as a warehouse the respondent company could not be required to pay any fees under a. 386(3) of the Act.
The object, according to the learned Sessions Judge, was that the levy of fees twice over in respect of the same premises was prohibited and not that the license was not required.
The sentence of fine was therefore reduced from Rs. 250 to Rs. 10 only.
Against this order the appellant took a revision to the High Court.
50 The High Court held that where the premises are licensed as a warehouse under the Fire Services Act but a portion of it is used as a workshop the Municipal Committee has No. longer the power to levy any fees for granting the license in respect of the premises even though there may be a liability to take out a license i.e. while it may be necessary to take out a license under section 386(1) of the Act no fees could be charged and as the whole of the premises in case had been licensed as a warehouse under the West Bengal Fire Services Act no part of the premises would be liable for any charge of fees for granting a license.
A further argument was also raised for the appellant in the High Court and that was that a. 38 of the West Bengal Fire Services Act did not apply to the Howrah Municipality at all because the Howrah Municipality is governed neither by the Calcutta Municipal Act nor by the Bengal Municipal Act but by the Calcutta Municipal Act as extended to Howrah i. e. as modified in accordance with the powers conferred on the Government by section 541(2) of the Calcutta Municipal Act.
But the High Court was of the opinion that a. 38 of the West Bengal Fire Services Act is applicable to the Howrah Municipality and there.
fore repelled this last argument.
The revision was therefore dismissed, and the rule was discharged.
Against that order the appellant has come in appeal by special leave.
The main argument raised by the appellant was that section 38 of the West Bengal Fire Services Act could not affect the operation of section 386 of the Calcutta Municipal Act as it was extended to the Howrah Municipality.
Section 38 of the former Act reads as under: "On the application of this Act to Calcutta or any other Municipality, section 51 38 6 of the Calcutta Municipal Act, 1923, or section 370 of the Bengal Municipal Act, 1932, as the case may be, shall be deemed to be repealed in so far as they entitle the Corpo ration of Calcutta or the Commissioners of the Municipality to levy fees in respect of any premises or part thereof licensed as a warehouse under this Act".
It was contended that section 38 of that Act does not repeal section 386 of the Act because the interpretation of that section is that it repeals section 386 of the Calcutta Municipal Act 1923 which entitles the Corporation of Calcutta to levy fees and section 370 of the Bengal Municipal Act, 1932 which entitles the Commissioners of other Municipalities to levy fees in respect of any premises licensed as a warehouse; in other words the argument was that in the case of Corporation of Calcutta section 386 of the Act shall be deemed to be repealed to the extent mentioned in section 38 and in the case of other Municipalities and the Commissioners of those Municipalities s.370 of the Bengal Municipal Act.
1932 shall be deemed to be repealed to the extent that, s.38 is applicable and as Howrah Municipality is neither the Corporation of Calcutta nor is it governed by section 370 of the Bengal Municipal Act, section 38 is inoperative.
To test the correctness of this argument it is necessary to refer to the provisions by which the Act was extended to the Municipality of Howrah.
Under so.
540 and 541 of the Calcutta Municipal Act the Provincial Government was empowered to extend all or any of the provision of that Act to the Municipality of Howrah.
Under section 542 the effect of the extension was that the Bengal Municipal Act 1932 stood repealed qua the Municipality of Howrah from the date of such extension and sub cl.
(b) of that section provides: "Except as the Provincial Government may otherwise by notification in the Official 52 Gazette direct, all rules, by laws, orders, directions and powers made, issued or conferred under the portions of this Act which have been so extended and in force at the date of such extension, shall apply to the said municipality or part, in Supersession of all corresponding rules, by laws, orders, directions and powers made, issued or conferred under the said Bengal Municipal Act, 1932" and by an explanation to that section the extension of the Act did not put the Municipality of Howrah tinder the authority of the Corporation of Calcutta.
By a Gazette Notification NO.
260M of January 18, 1932 practically the whole of the Act, excepting the provisions which are not necessary, was extended to the Municipality of Howrah.
The language extending the Act was as follows: "Howrah.
260M. 18th January 1932 In exercise of the power conferred by sub section (2) of section 541 of the Calcutta Municipal Act, 1923 (Bengal Act III of 19 3).
the Government of Bengal (Ministry of Local Self Government) are pleased to extend to the Municipality of Howrah the following pro visions of the Calcutta Municipal Act 1923, subject to the modifications and restrictions specified therein which are 'shown in antique type.
As a result of this extension section 386 was extended to the Municipality of Howrah with this modification that in place of the word "Corporation of Calcutta ' the word "Commissioners" was substituted.
In 1951 the Calcutta Municipal Act 1951 being West Bengal Act 33 of 1951 was enacted thus replacing Act 3 of 1923 which was therefore repealed.
In the new Act corresponding provision to sections 540, 541 and 542 are sections 589, 590 and 591.
Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the Municipality of Howrah shall continue to be in force until the provisions of the new 53 Act are extended to that Municipality under the new Act.
Thus the effect of the extension by the Notification under sections 540 and 541 of the Calcutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended section 386 is applicable and not section 386 of the Act III of 1923.
Keeping this in view we have then to see how far section 38 of the West Bengal Fire Services Act 1950 (Act 18 of 1950) has affected the operation of section 386 as it applies to the Municipality of Howrah.
Section 38 provides that section repeals section 386 of the Act III of 1925 to the extent therein mentioned.
It also repeals section 370 of the Bengal Municipal Act as it applies to the Commissioners of Municipalities in Bengal.
It does not apply to section 386 as modified and is inapplicable to the Municipality of Howrah because in section 386 as applicable to the Corporation of Calcutta the word used is ",Corporation" and not "Commissioners" and wherever the word "Corporation" is used in section 386 it is replaced by the word "Commissioners" in section 386 as it applies to the Howrah.
Municipality.
It cannot be said therefore that section 38 repeals section 386 of the Act III of 1923 as it applies to the Howrah Municipality.
In a somewhat similar case a similar view was taken by the Privy Council.
See Secretary of State for India vs Hindusthan Co operative lnsurance Society (1).
In that case certain provisions of the Land Acquisition Act were incorporated by reference Into the Calcutta Improvement Act 1911.
By an amendment of 1921 the right of appeal to the Privy Council from the decision of the High Court was provided in matters failing under the Land Acquisition Act.
It was held that the right of appeal so given was not applicable to the award of a tribunal under the Calcutta Improvement Act assessing compensation in respect of land acquired under the provisions of the.
Land Acquisition Act.
Dealing with this matter Sir George Lowndes quoted with (1) (1931) L.R. 58 1.A. 259.
54 approval the observations of Lord Westbury in Ex parts St. Sepulchre 's (1) and observed: "It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition".
Although a. 38 of the West Bengal Fire Services Act extends to the whole of Bengal and to the extent there set out it repeals section 386 of the Calcutta Municipal Act which applies to the Corporation of Calcutta and section 370 which applies to the other Municipalities of Bengal yet it does not affect the operation of section 386 of the former Act as modified and extended to the Municipality of Howrah by the notification which has been set out above.
The reason for that is that the language of section 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word `corporation ' the word " 'Commissioners" has been substituted.
Thus modified it is not a. 386 of the Calcutta Municipal Act but a different section.
Therefore what s.38 of the West Bengal Fire Services Act repeals is section 386 of the Calcutta Municipal Act and not section 386 of that as modified and applied to the Municipality of Howrah.
It may look rather anomalous but that is what the effect of the modification of the language is.
In our opinion therefore the contention of the appellant is well founded 'and section 38 of the West Bengal Fire Services Act does not repeal section 386 as modified and as applicable to the Municipality of Howrah.
From the point of view of the respondent the result may be unfortunate (1) , 376.
55 but that is the interpretation of the language of the various sections which are relevant in the present case.
We therefore allow the appeal, set aside the order of the High Court and convict the respondent of the offenses charged, but in view of the fact that the appellant succeeds on a question of interpretation we do not think it necessary to increase the sentence of fine imposed by the learned Sessions Judge, The, appeal is allowed to that extent.
Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent company was prosecuted for using the premises within the Municipality of Howrah without a license as required under section 386 of the Calcutta Municipal Act 1923, as extended to the Municipality of Howrah by Notification No. 260 M dated January 'A 8, 1932, under sections 540 and 541 of the Act.
The Bengal Municipal Act, 1932, also stood repealed qua the municipality of Howrah under section 542 of the Act from the date of such extension.
The defence of the respondent was that the premises had been licensed as a warehouse under the West Bengal Fire Service Act, 1950, and consequently, because of section 38 of the Fire Services Act, section 386 of the Act stood repealed and the respondent was not required to take out another license under the said section 386.
The respondent was however convicted under section 488 of the Act.
In appeal the Sessions Judge reduced the sentence and fine.
The appellant took a revision to the High Court.
The High Court held inter alia that section 38 of the Fire Service Act was applicable to the Howrah Municipality.
Therefore, while it may be necessary to take out a license under section 386 (1) of the Act, no part of the premises would be liable for any charge of fees for granting a license.
The appellant came up in appeal by special leave to the Supreme Court.
Held, that the effect of extension of section 386 of the Calcutta Municipal Act, 1923, by notification No. 260 M dated .January 18, 1932, under section 540 and section 541 of the Act, to the Municipality of Howrah is that an amended Act with section 386 is applicable to the Municipality of Howrah and not section 386 of the Calcutta Municipal Act, 1923.
Although section 38 of the West Bengal Fire Services ' Act extends to the whole of Bengal and to the extent there set it, repeal section 386 of the calcutta Municipal Act which 48 applies to the Corporation of Calcutta and section 370 of the Bengal Municipal Act which applies to the other Municipalities of Bengal yet it does not affect the operation of section 386 of the former Act as modified and extended to the Municipality of Howrah by the notification.
The language of section 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word 'corporation ' the word 'commissioners ' has been substituted.
Thus modified it is not section 386 of the Calcutta Municipal Act but a different section.
Therefore what section 38 of the West Bengal Fire Services Act repeals in section 386 of the Calcutta Muncipal Act and not section 386 of that as modified and applied to the Municipality of Howrah.
Secretary of State for India vs Hindusthan Co operative Insurance Society, (1931) L. R. 59 1.
A. 259, referred to.


judgement:
Appeals Nos. 10 and 10 A of 1952.
Appeal from the Judgment and Order dated 11th January, 1950, of the High Court of Judicature at Madras in Cases Referred Nos. 80 of 1946 and 38 of 1948.
M. C. Setalvad, Attorney General for India, (G. N. Joshi and P. A. Mehta, with him) for the appellant.
section Krishnamachariar for the respondent.
465 1952.
December22.
The Judgment of the Court was delivered by DAS J.
These two consolidated appeals are directed against the Judgment and order made on January 11, 1950) by the High Court of Judicature at Madras in References No. 80 of 1946 and No. 38 of 1948 under section 66 of the Indian Income tax Act whereby the High Court relying on its earlier decision in Commissioner of Income tax, Madras vs B. Rm.
M. Sm.
Sevugan alias Manickavasagam Chettiar(1) held that the references were incompetent and accordingly refused to answer the questions raised therein.
The facts are shortly as follows.
The respondent who is a Nattukotai Chettiar had, his headquarters at Karaikudi in India and also carried on his money lending business at branches at Maubin, Kualalumpur and Singapore.
He also had income from properties at Maubin and Singapore.
For the assessment year 1941 42 the Income tax Officer calculated the assessee 's accrued foreign income as Rs. 29,403 at Maubin, Rs. 27,731 at Kualalumpur and Rs. 34,584 at Singapore, in all Rs. 91,718.
After deducting out of this amount Rs. 4,500 allowed under the 3rd proviso to section 4 (1) of the Act, the Income tax Officer computed the total assessable foreign income at Rs. 87,218.
Out of the total remittances of Rs. 84,352 the Income tax Officer allocated Rs. 7,900 to the accrued income of Maubin and Rs. 62,315 to those of Kualalumpur and Singapore and the balance of Rs. 14,137 to the taxed income of earlier years.
The Income tax Officer disallowed the claim of the assessee to deductions under several heads.
On the basis of the total foreign income of Rs. 67,218 and income from ' other sources the Incometax Officer calculated Rs. 23,266 8 0 to be due by the assessee on account of income tax, super tax and surcharges thereon and by his assessment order dated January 31, 1942, made this amount payable on or before February 25, 1942.
The assessee preferred an (1) [1948] 16 I.T.R. 59; ; A.I.R. 1948 Mad, 418 466 appeal to the Appellate Assistant Commsioner against the disallowance of the several items of his claim including the claim for replantation expenses amounting to$498incurred at Kualalumpur and a bad debt of $ 15,472 at Singapore.
The Appellate Assistant Commissioner by his order dated May 25, 1942, allowed some of the several objections but disallowed the items of replantation expenses and ba` debt and reduced the assessment to Rs. 22,548.
The assessee took further appeal before the appellate Tribunal against the disallowance of the several claims by the Appellate Assistant Commissioner including the two items mentioned above.
The Appellate Tribunal by its order dated August 20, 1943, held that the replantation expenses "will be allowed to the appellant as expenses.
" As regards the bad debt the Tribunal held that it was permissible and that "the deduction claimed will, therefore, be allowed.
" The result was that the appeal was partly allowed.
The matter came back before the Income tax Officer on September 26, 1945.
Deducting Rs. 778 on account of replantation expenses the Kualalumpur income was reduced to Rs. 26,953 and after deducting Rs. 24,175 on account of the bad debt the Singapore income came down to Rs. 10,409.
These two reduced amounts together with Rs. 29,403 being the income 'from Maubin made up the total accrued income of Rs. 66,765.
Out of this amount Rs. 4,500 was deducted on account of unremitted profits of Maubin under the 3rd proviso to section 4(1) of the Act, leaving a balance of Rs. 62,265.
Out of the remittances the Income tax Officer allocated Rs. 7,000 towards the accrued income of Rs. 29,403 from Maubin and Rs. 37,362 against the totarl accrued income of Kualalumpur and Singapore.
He also allocated Rs. 24,549 as remittances out of assessed profits of previous years, leaving a balance of Rs. 13,541.
This amount the Income tax Officer considered as remittances out of earlier years ' unassessed income and held it to be asses. able to tax.
After adding Rs. 13,541 to Rs. 62,265 being the net accrued income of the year 467 from Maubin, Kualalumpur and Singapore, the Income tax Officer arrived at the total foreign income of Rs. 75,806.
On the basis of this foreign income together with other income the Income tax Officer.
recalculated the amount of income tax, super tax and surcharges thereon at Rs. 22,802 6 0 and after giving credit for certain amounts, found Rs. 21,211 14 0 as the balance due which by his order dated September 26, 1945, was made payable in equal moiety on or before September 30, 1947, and March 31, 1948.
He, however, did not issue any notice of demand under section 29 of the Act.
Being aggrieved by the inclusion of Rs. 13,541 as the alleged unassessed foreign income of earlier years remitted to India during the year of account the assessee preferred an appeal before the Appellate Assistant Commissioner.
The Appellate Assistant Commissioner was not satisfied that the assessee had any right of appeal under section 30 of the Act for there had been no assessment under section 23 and no notice of demand had been served on the assessee under section 29 of the Act.
Accordingly the Appellate Assistant Commissioner by his order dated November 19, 1945, declined to admit the appeal.
He, however, expressed the view that the assessee 's remedy might lie in a miscellaneous application to the Tribunal complaining that the Income tax Officer had either misconstrued or had not given effect to the order of the Appellate Tribunal.
The assessee then brought a miscellaneous application to the Appellate Tribunal.
The Appellate Tribunal held that the.
finding of the Income tax Officer that the sum of Rs. 13,541 was to be assessed as untaxed profits of earlier years remitted to India in the accounting year did not arise in the course of giving effect to the Appellate Tribunal 's order and by its order dated February 20, 1946, cancelled that finding and directed the Income tax Officer to revise the computation accordingly.
The last mentioned order having been served on the Commissioner of Income tax, Madras, on March 8, 468 1946, the latter on May 1, 1946, made an application before the Appellate Tribunal under section 66(1) of the Act and prayed that three questions formulated by him in his petition should be referred to the High court.
The contention was that the Appellate Tribunal had no jurisdiction in law to entertain, consider and pass the order which it did on the miscellaneous application seeing that it was neither an appeal under section 33 of the Income tax Act nor could it be regarded as a rectification under section 35 of any mistake committed by the Bench.
The Appellate Tribunal took the view that although no specific provision was made in the Act by which it could give effect to its order or explain any ambiguity in such an order by a later order in any miscellaneous application filed by any party, such power, nevertheless ', was inherent in" the Tribunal.
The Tribunal accordingly thought that a point of law did arise and on August 23, 1946, referred the following question to the High Court, namely: "Whether in the facts and circumstances of this case the order of the Bench dated 20th February, 1946, in the miscellaneous application is an appropriate order and is legally valid and passed within the jurisdiction and binding on the Income tax Officer.
" The Tribunal declined to refer the other questions formulated by the Commissioner.
This reference came to be numbered as Case Referred No. 80 of 1946.
It appears that pursuant to an order made by the High Court on March 30,1948, on the application of the Commissioner of Income tax under section 66 (2) of the Act the Tribunal referred the following question to the High Court: " If the answer to the question already referred to the High Court by the order of the Appellate Tribunal dated 23rd August, 1946, is in the affirmative,, whether, in the circumstances and on the facts of the case, the recomputation made by the Income tax Officer pursuant to the decision of the Appellate 469 Tribunal in R.A.A. No. 53 (Madras) of 1942 43 was valid and correct." The Appellate Tribunal made this further reference on July 19, 1948, which came to be numbered as Case Referred No. 38 of 1948.
The two referred cases came up for consideration before a Bench of the Madras High Court and it was held that the reference under section 66(1) was incompetent in view of the earlier decision of that Court mentioned above which they felt to be binding on them and accordingly the Bench declined to answer the questions.
The Commissioner of Incometax thereafter applied for and obtained leave to appeal to this Court from the decisions in both the references and obtained such leave on his undertaking to pay the costs of the assessee in any event.
The two appeals were thereafter consolidated and have come up before us for final disposal.
Section 66 A (2) gives to the aggrieved party a right of appeal to this Court from any judgment of the High Court delivered on a reference made under section 66 in any case which the High Court certifies to be a fit one for appeal to this Court.
Section 66, (5) provides that the High Court upon the hearing of any such case referred to it under section 66(1) and (2) shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded.
During the opening of the case by the learned Attorney General a question arose as to whether the simple refusal of the High Court to bear the case on the ground that the reference was incompetent was a decision and judgment such as is contemplated by section 66(5) of the Act from which alone a right of appeal to this Court is given.
While maintaining that the decision and judgment of the Madras High Court fell within the meaning of section 66(5) the learned Attorney General for greater safety asked that the appeal may be treated as one on special leave granted by this Court under article 136 of the Constitution.
The learned Advocate appearing for the 470 assessee respondent did not object to this prayer and accordingly we gave leave to the appellant under article 136 and treated this appeal as one filed pursuant to such leave.
In the circumstances it is not necessary for us to express any opinion on the appealability of the order of the High Court under section 66 A of the Act.
The learned Attorney General contends that the decision relied on by the High Court has no application to the facts of the present case.
In that case the Tribunal by its order dated July 11, 1944, allowed an appeal from the Appellate Assistant Commissioner and cancelled the assessment which it held to be illegal.
This order was served on the Commissioner shortly thereafter.
On October 5, 1944, an application was made to the Tribunal by the Income tax Officer under section 35 to correct a statement contained in the statement of facts in the order.
More than 60 days after the date of the service on him of the order of July 11, 1944, to wit on October 7, 1944, the Commissioner made an application under section 66 (1) of the Act requiring the Tribunal to refer to the High Court the question as to the correctness of its decision embodied in the order of July 11, 1944.
Both the applications were disposed of on the same day, namely, January 17, 1945, when the application for rectification was granted and a case was stated for the opinion of the Court as prayed.
Section 66 (1) requires the application to be made within 60 days of the date on which the applicant is served with notice of an order under sub section (4) of section 33.
It was held that the granting of an application for rectification under section 35 and correcting the error in the order was not an order under section 33 (4) and, therefore, was not one in respect of which section 66 (1) permitted a case to be stated.
It was further held that if the Appellate Tribunal improperly or incorrectly made a reference in violation of the provisions of the statute, the High Court was capable of entertaining an objection to the statement of the case and that, if it camp to the 471 conclusion that the case should not have been stated, the High Court was not compelled to express an opinion upon the question referred.
in the case before us there is no question that the present application was not made within time, but the contention is that section 66 (1) only contemplates an application for a reference of a question of law arising out of " such order" which clearly means an order made under section 33 (4), _and, therefore, if there is no valid order under that section no question of law can be said to arise out of "such order" and consequently the Appellate Tribunal can have on jurisdiction to make any reference to the High Court under section 66(1).
Section 66 (2) provides that if on any application being made under sub section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner may, within the time specified therein, apply to the High Court and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it.
The jurisdiction given to the High Court under this sub section is conditional on an application under sub section (1) being refused by the Appellate Tribunal.
This clearly presupposes that the application under sub section (1) was otherwise a valid application.
If, therefore, an application under sub section (1) was not well founded in that there was no order which could properly be said to be an order under sub section (4) of section 33 then the refusal of the Appellate Tribunal to state a case on such misconceived application on the ground that no question of law arises will not authorise the High Court, on an application under sub section (2) of section 66, to direct the Tribunal to state a case.
The jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under section 33 (4) and a question of law arising out of such an order.
The only question for our consideration, therefore, is whether in this case any question 472 of law arose out of an order which can properly be said to have been made by the Appellate Tribunal under sub section (4) of section 33, for if it did not, then the Appellate Tribunal would have no jurisdiction under sub section (1) of section 66 to refer a case, nor would the High Court have jurisdiction under sub section (2) of that section to direct the Tribunal to do so.
It was at one stage suggested by the learned AttorneyGeneral that we should in the first instance remit the matter to the High Court for their decision on this question but as the question is one of law depending on the construction of the relevant sections of the Act it will save time if it is decided by us here and now.
It is not disputed that we have the power, on the hearing of this appeal, to decide this question.
It will be recalled that when on 19th November, 1945, the Appellate Assistant Commissioner declined to admit the appeal, the assessee did not prefer any appeal but only made a miscellaneous application before the Appellate Tribunal.
There is no provision in the Act permitting such an application.
Indeed, in the statement of the case the Appellate Tribunal states that in entertaining that application and correcting theerror of the Income tax Officer it acted in exercise ofwhat it regarded as its inherent powers.
There being no appeal under section 33 (1) and the order having been made in exercise of its supposed inherent jurisdiction.
, the order cannot possibly be regarded as one under section 33 (4) and there being no order under section 33 (4) there could be no reference under section 66 (1) or (2) and the appellate Court properly refused to entertain it.
The learned Attorney General submits that this Court should not take such a narrow and technical view but should treat that miscellaneous application as really an appeal under section 33.
Turning now to section 33 we find that any assessee objecting to an order passed by an Appellate Assistant Commissioner under section 28 or section 31 may appeal to the Appellate Tribunal within the time specified in 478 sub section (1) which time, however, may be extended by the Tribunal under sub section (2A).
Under sub section (4) the Appellate Tribunal is given power, after giving both parties to.
the appeal an opportunity to be heard, to pass such order thereon as it thinks fit.
It is thus clear that the Appellate Tribunal can make an order under section 33 (4) only on an appeal from an order passed by the Appellate Assistant Commissioner under section 28 or section 31.
If, therefore, there is no order which may properly be said to have been made by the Appellate Assistant Commissioner under section 28 or section 31 then there can be no appeal under section 33 (1) and consequently there can be no order under section 33 (4).
Section 28 is not relevant for our present purpose.
Section 30 provides for filing of appeals against assessments made under the Act.
Sub section (1) of that section prescribes the different decisions against which an appeal will lie.
Sub section (2) prescribes the time within which the appeal is to be filed.
Subsection (3) prescribes the form in which the appeal is to be made.
Then comes section 31 which gives power to the Appellate Assistant Commissioner to hear and dispose of such appeal.
Sub section (3) of section 31 empowers the Appellate Assistant Commissioner in disposing of an appeal under section 30 to make one or other order under one or other of the several clauses of that ' sub section.
It is, therefore, clear that in order that the Appellate Assistant Commissioner may exercise his jurisdiction and make an order under section 3 1, there must be an appeal as contemplated by section 30.
The learned AttorneyGeneral only relies on the opening part of sub section (1) of section 30 and contends that the appeal before the Appellate Assistant Commissioner was with respect to the amount of income assessed under section 23 or section 27.
It will be recalled that the Appellate Tribunal held that the two sums claimed by the assessee would be allowed to him and concluded by saying that the appeal was partly allowed.
The power of the Appellate Tribunal under section 33(4) 474 is indeed wide, for on an appeal properly before it, it can make such order as it thinks fit.
Therefore, it be order made by the Appellate Tribunal in this case on August 20, 1943, must be read and construed as a direction to the Income tax Officer to carry out the directions by allowing the two deductions in question.
When the matter again came before the Income tax Officer his function was only to carry out the order of the Appellate Tribunal.
He could not otherwise reopen the assessment already made by him under section 23.
Therefore, in carrying out the directions of the Tribunal and in doing what be aid on September 26, 1945, the Income tax Officer cannot be regarded as having acted under section 23 or section 27 of the Act and that being the position no appeal lay from that order of the Income tax Officer under section 30 (1) of the Act, I The result of it was that there was no proper appeal before the Appellate Assistant Commissioner such as is contemplated by section 30 (1) and, therefore, the order made by the Appellate Assistant Commissioner cannot be regarded as an order made by him under section 31 (3), for an order under section 31 (3) can only be made in disposing of an appeal properly ' filed under section 30, and consequently no further appeal lay to the Appellate Tribunal under section, 33 (1) so as to enable the Appellate Tribunal to make an order under sub section (4) of that section.
In the premises, there being no order which may properly be said to have been made under section 33 (4), no question of law can be said to arise out of an order made under section 33 (4) and consequently there can be no valid reference under section 66, subsection (1) or sub section (2).
If, therefore, the reference was incompetent for want of jurisdiction both under section 66 (1) or section 66 (2) surely the High Court could decline to entertain it as it did.
Even if the order dated September 26, 1945, made by the Income tax Officer after the matter came back to him to give effect to the decisions of the Appellate Tribunal be regarded as an order made by him under 475 section 23 or section 27 and as such appealable under section 30 (1) then the order made by the Appellate Assistant Commissioner on November 19, 1946, declining to admit the appeal clearly amounted to a refusal on his part to exercise the jurisdiction vested in him by law.
An order thus founded on an error as to his jurisdiction way conceivably be corrected by appropriate proceedings but it cannot certainly be regarded as such an order as is contem plated by any of the sub sections of section 31.
Such an order not coming within the purview of section 28 or section 31, no, appeal lay therefrom to the Appellate Tribunal under section 33 (1) and if no such appeal properly came before the Appellate Tribunal it could not properly make an order under section 33 (4) and if there was no order under section 33 (4) there could be no reference under section 66, sub section (1) or sub section (2).
It follows, therefore, that the order of the Appellate Tribunal correcting the order of the Income tax Officer directing that the sum of Rs. 13,541 should not be included in the assessment cannot be regarded as an order passed by the Appellate Tribunal under section 33 (4) so as to attract the operation of section 66.
The learned Attorney General urged that having under section 66 (2) of the Act directed the Appellate Tribunal to state a case the High Court could not afterwards refuse to answer the question thus referred to it.
Whether the High Court was so precluded or not requires no decision on this occa sion, for even conceding but ;not deciding that the High Court was so precluded, this Court, at any rate, can surely entertain the question of the competency of the reference.
The result, therefore, is that we dismiss these appeals with costs.
Appeals dismissed.

summary:
By an order dated August 20, 1943, the Appellate Tribunal directed that certain deductions claimed by the assessee should be allowed.
The matter came back to the Income tax Officer and he made an order on September 26, 1945, but did not issue any fresh notice of demand.
The assessee appealed to the Appellate Assistant Commissioner complaining that in his order of September 26, the Income tax Officer had wrongly included a sum of Rs. 13,000 60 464 as unassessed foreign income of earlier years.
The Appellate Assistant Commissioner held that the order of September 26 was not appealable.
The assessee, therefore, made a miscellaneous application to the Appellate Tribunal, which held that the Incometax Officer acted wrongly in including the sum of Rs. 13,000 at that stage and directed the Income tax Officer to revise his computation accordingly.
The Commissioner of Income tax, being of opinion that the Appellate Tribunal had no jurisdiction to entertain or make such order on a miscellaneous application applied for a reference to the High Court under section 66 (1) of the Income tax Act.
The Tribunal referred certain questions and the High Court directed the Tribunal to refer certain other questions also but when the references came on for bearing the High Court held that the references were incompetent.
The Commissioner of Incometax appealed to the Supreme Court with the leave of the High Court : Held, (i) that in carrying out the directions of the Tribunal and in passing the order of September 26, 1945, the Income tax Officer cannot be regarded as having acted under section 23 or section 27 of the Act and no appeal lay from his order under section 30 (1).
The order made by the Appellate Assistant Commissioner was not therefore an order under a. 31 (3) and no further appeal lay to the Appellate Tribunal under section 33 (1) so as to enable the Tribunal to make an order under section 33 (4) and us there was no order under a. 33 (4), no question of law can be said to arise out of an order under section 33 (4) and there can be no valid reference under section 66 (1) or section 66 (2); (ii) even assuming that the order of the Income tax Officer dated September 26, 1945, was an order under a. 23 or section 27 and as such appealable, the order made by the Appellate Assistant Commissioner declining to entertain the appeal was not an order under any of the sub sections of a. 31 and no appeal lay therefrom to the Appellate Tribunal under section 33 (1) and there could be no order of the Appellate Tribunal under section 34 (1).
The order of the Appellate Tribunal correcting the order of the Income tax Officer and directing that the sum of Rs. 13,541 should not be included cannot be regarded in any event as an order under section 33 (4) so as to attract the operation of section 66 (1) or (2).


judgement:
Appeal No. 565 of 1960.
Appeal from the judgment and decree dated September 26, 1956, of the former Travancore Cochin High Court in A. section No. 57 of 1954.
A. V. Viswanatha Sastri, P. K. Subramania Iyer, R. Ganapathy Iyer, C. section Ananthakrishna Iyer and G. Gopalakrishnan, for the Appellants.
M. E. Nambiyar, Rameshwar Nath, section N. Andley and P. L. Vohra, for the respondent.
March 27.
The Judgment of the Court was delivered by 88 KAPUR, J.
This is an appeal against the Judgment and decree of the High Court of Travancore Cochin modifying the decree of the District Judge, Trichur.
The appellant was defendant No.1 in his personal capacity and defendant No. 2 in the capacity of a trustee of a trust.
Defendant No. 5 was a tenant of the building which is the subject matter of dispute between the parties, defendant No.10 was its successor in interest and the present respondent was the plaintiff in the suit.
The suit out of which this appeal has arisen was filed in the Court of the District Judge, Trichur, on ' October 31, 1945.
The suit was for possession of properties described in schedules A & B and for damages and mesne profits with interest.
The defence was that the appellant was not liable to restore possession on the basis of a document Exhibit X which was a deed of trust executed by the appellant, creating a trust and constituting himself the trustee of the trust.
The 5th defendant claimed Rs.20,000 and Rs.1019 as value of improvements and extensions made on the building.
A large number of issues were framed by the trial court and it passed a decree of which the most important part was as follows: (a) The plaintiff is allowed to recover possession of A & B schedule items from the defendants in possession and to utilise the income from the B schedule item according to the terms mentioned in Exhibit II.
(b) The 5th & 10th defendants are permitted to remove within a period of 2 months from today the constructions and additions made in the (A and B schedule items by them without causing any damage to the plaint properties.
Again this decree three appeals were filed one by the appellant, the other by the 10th defendant 89 and the third by the plaintiff respondent.
The High Court in appeal modified the decree of the trial court and held that the only claim which the appellant could put forward was for compensation for the structure he had erected.
The amount of Compensation was R.46,686 2 0.
The High Court also held that the respondent was entitled to recover mesne profit,% as against the appellant at the rate of Rs.88/ per annum till the recovery of property mentioned in schedule A and B at the rate of Rs.1500/ per annum in regard to schedule B buildings.
It is against this decree that the appellant has come in appeal to this court by special leave.
In order to understand the points in contro versy it will be helpful to give certain facts which led up to this litigation ' The respondent is a nonprofit sharing company, the main object of which seems to be to provide pecuniary assistance to the poor for educational and other charitable purpose.
The respondent company owned survey No. 465 in the revenue estate of the village Trichur abutting on the public road in 1944 45.
It was 55 cents in area.
The respondent company erected buildings on the South and which had been rented to the then Imperial Bank of India ' now the State Bank of India, and in the middle portion there was a building which has been leased out to the Post Office.
In the North there was a vacant plot measuring 20 cents which has been described as schedule A. A building was sought to be put up and was ultimately put up on about 7 or 8 cents out of this area which has been described in schedule B. Schedule A is the whole of the land measur ing 20 cents with the building on it on an area of 7 or 8 cents which is schedule B.
In 1942 the appellant became the Chairman of the Board of Directors of the respondent company and was entrusted with the construction of the building which the respondent company wanted to put up 90 on 7 or 8 cents out of schedule A property which the appellant agreed to construct.
The cost of the building at that time was estimated to be In Rs.12,000.
It was also resolved to entrust to the appellant the construction of a latrine, a kitchen, gate, compound and partition wall of schedule A property which was constructed at a cost of Rs.2,000 expended by the respondent company.
At the meeting ' of the Board of Directors of January 9, 1944 the directors of the respondent company were told by the appellant that Rs. 12,000 was insufficient for the completion of the building.
On April 1944,.
the appellant made an offer to the Directors of the respondent company that he would meet the entire cost of the construction of the building and hand over the building to the respondent company which would be a 'trust.
This offer is contained in Exhibit AB.
In this offer he stated that the estimated expenditure of the Dew building will be about Rs.30,000 and that he would meet the expenses and then he stated: "I shall entrust this building with the company as my trust property in accordance with the conditions mentioned below, and the company shall take over the above trust property and manage the affairs in accordance with three conditions mentioned below".
One of the conditions was that the minimum income of the property shall be calculated at Rs.1500/ per annum which would be spent for the education of poor students according to the rules framed by the company and then he set out certain rules.
He also stated what the name of the trust would be.
The document ended as follows.
"I shall execute at my own expense a trust deed and sign and give the same to the company, entering therein, all the above mentioned particulars and conditions.
The 91 company shall accept the same and shall mention the fact of acceptance in the deed in writing and shall get the same registered".
On the same day the directors seem to have resolved as follows: "It is decided to accept this trust property in accordance with the conditions, mentioned in it.
Copies of this resolution and the application, may be sent to the applicant".
The company agreed to accept the trust and a sum of Rs.7672 7 3 which had been given to the appellant by the respondent company was returned on April 30, 1944.
On July 2, 1944, the appellant placed before the Board of Directors a draft of the trust deed which is Exhibit IT.
The draft of the trust deed was approved by the company as follows: "The company has accepted the properties as 'Trust ' with all the above conditions.
To this effect, the Directors (Trustees) who have been authorised as per the decision of the Director Board, on behalf of the Dharmodeyam Company.
The draft of the 'Trust deed ' has been perused and accepted.
Four Trustees have been empowered to prepare the original deed and present it in the Registrar 's Office " .
It appears that at a meeting of the General Body of the Members of the Company this trust deed was approved.
Later on February 25, '1945 another meeting was held and certain changes were suggested in the trust deed.
On October 7, 1944, certain members of the respondent company filed a suit in" the court of District Munsif of Trichur and obtained an injunction both against, 92 the appellant and the company not to execute the trust deed as had been proposed by the appellant as contained in the draft (Exhibit II).
Thereafter the appellant resigned his Chairmanship of the respondent company on May 25, 1945 and also ceased to be a Director on May 28, 1945.
Two days before i.e. on May 23, 1945 the appellant registered a trust deed in regard, to the property which is Exhibit X.
It is there stated that he had constructed the building at his own expense at a cost of Rs 75,000/ and it was to be named Dharmodayam Company Silver Jubilee 11 lyyappan Trust Building.
The first trustee was the appellant with power to appoint other trustee or trustees.
The estimated income of the property was Rs. 3600/ out of which a rent of Rs 88/ per annum was to be paid to the appellant company for the compound where the building had been erected and then provision was made in regard to the income and how it wag to be spent.
This was registered and thus a trust was created of the properties in schedule A & B in which the trust became a tenant of the respondent company without any transfer from the respondent Company to the trust.
The suit for injunction which had been filed by some of the members was dismissed for default on March 25, 1946.
The respondent company on August 13, 1945, called upon the appellant to band over the building to the respondent company and it is stated that on August 22, 1945, during some holidays the appellant inducted the 5th defendant as a tenant.
The respondent thereupon filed the suit out of which this appeal has arisen.
The plaintiff in his plaint, after reciting the facts which have been above set out, stated that the appellant as an agent of the respondent company had misconducted himself by the breach of his duties and had thereby lost any right he had regarding the building described in schedule B; 93 that he had wilfully contravened the terms of his offer ; that the right of the appellant therefore was only to recover the money from the company to the extent to which he may be entitled in equity and the trust deed (Exhibit X) was inoperative.
The respondent further stated that it was ready and willing to pay such sum of money as the court may find the appellant to be entitled to.
The defence of the appellant was that the offer of the appellant to construct the building and to constitute the company as trustee to carry out the trust according to the terms and conditions detailed in his offer dated 2, 1944 having been accepted by the Board of Directors, it put an end to any previous relationship which might have existed between the appellant and the respondent company and could not therefore be enquired into.
It was also submitted that the respondent company was estopped from claiming the building after having accepted the aforesaid offer pursuant to which the appellant had invested a large sum of money in constructing the building; that as the offer of the trusteeship of the property in dispute made by the appellant and accepted by the Board of Directors of the respondent company had afterwards been cancelled as a result of the resolution passed by the General Body ' of Members the appellant could not constitute the respondent company as trustee and therefore he was entitled to implement his original intention by executing the deed of trust (Exhibit X.).
He therefore pleaded that the deed of trust was perfectly valid: that the rental value of the site in schedule A was not even Rs. 10/ a year and that he had not be.
come a tenant and the word "verumpattom" had been used for the want of a better word and that the trust had undertaken the liability to pay to the respondent company Rs. 88/ a year.
On these grounds it was submitted that the respondent company was not entitled to any relief.
These then are the facts of the case.
94 The appellant in this Court has mainly relied on the plea that he had been granted a licence and acting upon the license he 'had executed a work of a permanent character and incurred expenses in the execution thereof and therefore under section 60(b) of the (5 of 1882), hereinafter referred to as the 'Act ', which was applicable to the area where the property is situate and therefore the license was irrevocable.
Now in the trial court no plea of license or its irrevocability was raised but what was pleaded was the validity of the trust in Exhibit X.
In the judgment of the trial court no such question was discussed.
In the grounds of appeal in his appeal to the High Court which the appellant took against the decree of the trial court the relevant grounds are 9 to 13.
In the 9th ground it was pleaded that the first de fendant 's case of lease should have been upheld; in any event s.60 of the Act should have been applied.
In Ground No. 10 it was stated that Rs. 88/ was a reasonable compensation.
Grounds 11 to 13 dealt with the question of trust.
Thus it is for the first time in his grounds of appeal that section 60 of the Act was sought to be raised as an alternative plea.
At the time of the argument before the High Court the appellant abandoned his case in regard to the lease and relied on the irrevocability of the license and insisted that the trust deed (Exhibit X) was a valid document.
Now it is not open to a party to change his case at the appellate stage because at the most the case of the appellant in the trial court was what was contained in paragraph II of the Written Statement where the question of estoppel was raised and the plea taken was that the respondent company was estopped from claiming any right to the building after accepting the offer of the appellant pur suant to which the appellant had expended a large amount of money, That was not a plea of license at that stage.
it is not for us to say what the ease of the parties would have been if the case of 95 license had been specifically raised but the fact remains that the plea of license was not raised in the trial court nor was it adjudicated upon there.
The appellant was a Director of the company and it is now impossible to dispute the proposition that the Directors are in some sense, trustees a proposition which has been established by a long series of cases.
See Palmer 's Company Law p. 158, Ed. 19th.
This two fold character of directors is, perhaps, best expressed in Lord Belborne 's words in G. E. Ry.
vs Rurner(1) where he said: The directors are the more trustees or agents of the company trusees of the company 's money and property ; agents in the transactions which they enter into on behalf of the company.
And this is the way in which it is put by Sir George Jessel in the case of Re Forest Of Dean etc.
, Co. (1878) 10 Ch. D. 450.
Directors are called trustees.
They are no doubt trustees of assets which have come into their hands, or which are under their control".
Thus when the appellant was making the offer for creating a trust he was not merely an agent of the company; he was also a trustee of the assets of the company and was in a fiduciary relationship with the respondent.
Therefore the appellant could not, do anything in regard to the assets of the company which would prejudicially affect its rights.
The appellant made an offer that he would errect the buil ding on the land belonging to the respondent which .is in schedule A, the building being schedule B. He also offered that it would be a trust property i.e. the super structure would be the trust property.
He could not create a trust in regard to land which belonged to the company nor could he by a unilateral act create a lease in his own favour in regard to (1) , 152. 96 the land which is in schedule A.
Thus when a complaint is made that the appellant has unilaterally acted to deprive the company of some of its right the complaint.
is not wholly without foundation, although the company also may not be entirely without blame.
But the fact comes to this the appellant was asked to construct the building at a cost of Rs. 12,000; it was subsequently found that the cost would be more than the estimated amount which probably the company was not prepared to spend.
It is not that the building had not yet commenced, it had commenced and probably not completed.
At that stage the appellant made an offer which was accepted but the offer was that he would finish the construction of the building and hand it over to the respondent company as trust property of which the trustees would be the Directors of the company.
The transaction therefore was confined to the offer as contained in Exhibit AB and in Exhibit 11.
It is true that for some reason or another certain members of the company were not prepared to stick to the original arrangement and wanted certain modifications but in spite of that it was not open to the appellant to ignore his offer altogether and create a wholly new trust which he has done.
His right, if any, if they could be enforced would only be in Exhibit 11 which the appellant himself has abandoned.
He cannot now be heard to say that because the company after accepting his offer had refused to abide by the agreement, he was entitled, to appropriate by means of the trust created by him the land in schedule A by constituting the trust a tenant and deprive the company of which he was at that time a Director and therefore a trustee.
In these circumstances it is impossible to say that there were any equities in his favour which he is entitled to.
enforce by way of defence to the suit of the respondent.
97 In our opinion no case of license really arises but if it does what is the license which the appellant obtained and what is the license, which he is seeking to plead as a bar.
The license, if it was a license, was to construct the building and hand it over to the respondent company as trust property.
There was no license to create another kind of trust which the appellant has sought to create, It cannot be said therefore that there was an irrevocable license which falls under section 60 (b) of the Act.
Even such a license is deemed to be revoked under section 62 (f) of that Act where the license is granted for a specific purpose and the purpose is attained or abandoned or becomes impracticable.
In the present case the purpose for which the license was granted has either been abandoned or has become impracticable because of the action of the appellant.
In these circumstances the cases which were cited on behalf of the appellant are of little assistance.
The appellant relied on Manzoor Ahmad vs Muhammad Abdul Jamil(1) which was a case under a. 60 (b) of the Easements Act where a license had become irrevocable under section 60 (b) and it was held that it could not be revoked on payment of com pensation.
The East Punjab case.
Dominion of India vs B. B. Sohan Lal (2) again is not of much assistance of the appellant.
It was there stated that in every case the terms of the license have to be examined and the law applied to such terms.
It was also observed by Das, C. J. (as he then was) that in order to be irrevocable under section 60 the license has to be coupled with a transfer of property whereas under the English law it was enough if it was coupled with a grant or interest in the nature of profit and in every ease the irrevocability whether under the English law or under the Indian ' statute will give way to the special (1) ALL.
(2) A.I.R. 1950 E.P. 40, 47.
98 agreement if any of the parties but it is unnecessary to go into these cases because the offer which was originally made by the appellant and accepted by in the respondent company has not been adhered to and the appellant is not proceeding on an entirely new basis.
In our opinion the offer and the acceptance of the terms of the trust deed being wholly different from what has now been executed by the appellant and from the manner in which the new trust has been constituted into a lessee of the company without the company 's agreement it is not possible for a court in equity to accept the new trust as a bar to the respondent 's claim for possession.
In this case the appellant has suffered no loss.
The amount which he has expended has been returned to him.
In our opinion the judgment of the High Court was right and we therefore dismiss this appeal with costs.
Appeal dismissed.

summary:
The respondent, a Company with charitable objects owned certain lands and the appellant who was the Chairman of the Board of Directors, was asked to construct a building on the said land.
It was subsequently found that the cost. would be more than the estimated amount, which probably the Company was not prepared to spend.
At that stage the 86 appellant made an offer that he would finish the construction of the building at his own cost and hand it over to the Company as trust property of which the Directors of the company would be the trustees and the Company will manage the affairs in accordance with the conditions laid down in his offer.
The offer was accepted, but for some reason or other certain members of the Company were not prepared to stick to the original arrangement and some of the members filed a suit and obtained an injunction against the appellant and the company not to execute the trust deed as proposed by the appellant.
Thereafter the appellant resigned from Chairman ship and also ceased to be a Director, two days before his resignation he appellant registered a trust deed and made himself the first trustee with powers to appoint other trustees.
The trust deed inter alia, recited that a rent of Rs. 88/ per annum was to be paid to the Company for the compound where the building had been erected.
Thus the appellant created a trust by which the trust became a tenant of the respondent Company without any transfer from the Company to the trust.
The respondent Company called upon the appellant to hand over the building to the Company and file a suit for possession of properties, damages and mesne profit.
The respondent Company 's case was that the appellant had wilfully contravened the terms of his offer, and the right of the appellant therefore 'was only to recover the money from the Company to the extent to which he may be entitled in equity and the trust deed was inoperative.
The defence of the appellant inter alia was that the respondent company was estopped from claiming the building after having accepted the aforesaid offer pursuant to which the appellant had invested a large sum of money in constructing the building; and that as the offer of the trusteeship of the property in dispute made by the appellant and accepted by the Board of Directors had afterwards been cancelled as a result of the resolution passed by the general body of members, the appellant could not constitute the respondent company as trustee and therefore he was entitled to implement his original intention by executing the deed of trust.
In the Supreme Court, the appellant relied on the plea that he had been granted a license and acting upon the license he had executed a work of permanent character and incurred expenses in the execution thereof and therefore under section 60(b) of the , the license was irrevocable.
Held, That a Director is also a Trustee of the assets of the company and is in a fiduciary relationship with the company; therefore he could not do anything in regard 87 to the assets of the Company which would prejudicially affect its rights.
A person cannot create a trust in regard to land which belonged to another person nor could he by an unilateral act create a lease in his own favour in regard to the land over which he has raised a super structure.
The offer and the acceptance of the terms of the trust deed being wholly different from what had been executed by the appellant and from the manner in which the new trust had been constituted into a lessee of the company without the company 's agreement it was not possible for a Court in equity to accept the new trust as a bar to the respondent 's claim for possession and there are no equities in the appellant 's favour which he is entitled to enforce by way of defence to the suit.
Held, further, that no case of license really arises but if it does, the license was to construct the building and hand it over to the respondent company as trust property.
There was no license to create another kind of trust which has been sought to be created.
It cannot be said, therefore, that there was an irrevocable license which fall under section 60(b) of the .
Even such a license is deemed to be revoked under section 62(f) of the Act where the license is granted for a specific purpose and the purpose is attained or abandoned or becomes impracticable.
G. E. By.
vs Rurner , Manzoor Ahmad vs Muhammad.
Abdul Jamil, (1933) 1.
L. R. 56 All.
207 and Dominion of India vs B. B. Sohan Lal, A. 1.
R. 1950 E.P. 40, referred to.


judgement:
Appeal No. 340 of 1959.
Appeal by special leave from the judgment 953 and order dated May 21, 1958, of the Punjab High Court in Revision Application No. 27 of 1958.
M.C. Setalvad, Attorney General of India, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant.
H.N. Sanyal, Additional Solicitor General of India, and I. N. Shroff, for the respondent.
March 20.
The Judgment of the Court was delivered by DAS, J.
This is an appeal by special leave from the judgment and order of a learned single Judge of the Punjab High Court dated May 21, 1958, hi Civil Revision application No. 27 of 1958 of that Court.
By that order the learned single Judge dismissed an application in revision made by the appellant herein in the following circumstances.
The appellant, Maharaj Jagat Bahadur Singh is the owner of the premises known as Ranzor Hall in Simla.
The respondent, Badri Prasad Seth, is in occupation of the premises as a tenant and is running a cinema ' therein which is known as Revoli theatre or Revoli cinema.
The correspondence between the parties shows that on or about April 12, 1956 the Executive Engineer, Simla 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 Municipal 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 954 commence.
The respondent removed the other defects which were of a minor nature; but getting no reply from the appellant, he again wrote to him on September I 'd, 1956, and asked him to take early steps to repair the pillar to avoid any mishap.
The respondent also intimated to the appellant that the cost of repairs to the pillar was likely to be in the neighbourhood of Rs. 5000/ .
The appellant took no action in the matter for some time.
On September 24, 1956 the East Punjab Urban Rent Restriction Act, 1949 'East Punjab Act No.
III of 1949) (hereinafter referred to as the Act) was amended and a clause was inserted in section 13(3)(a) thereof which entitled the landlord to apply to the Rent Controller for an order directing 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 the 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 it for human habitation.
Oil April 9, 1956, the appellant wrote to the President, Simla Municipal Committee, asking him to get the pillar in the Ranzor Hall inspected by the Executive Engineer in order to have his opinion whether the pillar was really in a dangerous condition and required any action on the part of the Municipal Committee under section 116 of the Punjab Municipal Act, 1911 (Punjab Act III of 1911).
On October 30, 1956, the Secretary, Municipal Committee, Simla, wrote to the respondent about the defect in respect of the right hand pillar of the screen and required the respondent by means of a notice to do the repairs within fifteen days of the receipt of the notice.
The Secretary issued the notice purporting to act under so. 113 and 114 of the Punjab Municipal Act, 1911.
It appears that the Municipal Committee had the pillar inspected again in November, 1956, by the Executive Engineer, 955 Simla Central Division.
This time the Executive Engineer suggested that the two end.
walls (pillars) supporting the beams for the screen were cracked and 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 the whole pillar might become a ,solid block.
This was in modification of the earlier notice which 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 section 13 of the Act praying for an order from the Controller directing the respondent to put the appellant in possession of the property on the ground that the appellant required the building 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 8.13 (3)(a) of the Act inasmuch as on the evidence on the record it was established that the appellant required the building to carry gut 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 District Judge who was the relevant appellate authority under s.15 of the Act.
The learned District Judge came to the conclusion that the notices under a. 113 and 114 of the Punjab Municipal 1, had been manipulated by the landlord after the amendment made in a. 13 of the Act on September 24, 1956, and that the appellant did not bona fide require the building for carrying out the repairs in question.
The learned District Judge pointed out that on April 11, 1957 the Municipal Committee had asked the landlord to fill the doorway with masonry so that the whole might become a solid block and though the Municipal Committee bad modified its earlier requirement of thicker walls by means of a notice after the filing of the application by the appellant, it was open to the Court to take into consideration facts which had come into existence after the filing of the application.
He also pointed out that the evidence of the Executive Engineer, Central P.W.D., showed that he inspected the building on June 8, 1957, in the 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.
Then, there was an application in revision under a. 15(5) of the Act to the High Court.
This application was dealt with by K. L. Gosain, J. who wrongly proceeded on the footing ,that the application in revision was one under section 115, Code of Civil Procedure.
Though the learned Judge said that he had gone through the evidence and agreed with the findings arrived at by the District Judge,.
he came to the conclusion that as no question of jurisdiction was involved within the meaning of s.115, Code of Civil Procedure, he saw no reasons to interfere and dismissed the application in revision.
The present appeal is directed against this order of the learned single Judge.
The learned Attorney General who appeared on behalf of the appellant has rightly pointed out that the, learned Judge of the High Court was in 957 error in disposing of the case as though the application in revision made to the High Court was an application under a. 115, Code of Civil Procedure.
The application was really an application under a. 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 sub a.
(5) of a. 15 of the Act is not the same as the scope of a. 115, Code of Civil Procedure.
The learned Attorney General has submitted, rightly in our opinion, that the scope of sub a.
(5) of a. 15 of the Act is wider and is not confined to questions of jurisdiction only.
But even if the learned Judge of the High Court was in error in treating the application as one under a. 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 suggested by the Municipal Committee.
The Municipal Committee had 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 with.
out 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 Engineer, Central P.W.D. had, subsequent to the application, examined the pillar and found that 958 the repair work had already been done 'by the respondent.
The learned Attorney General has contended that the learned District judge was in error in holding that the appellant had manipulated the notices under section 113 and 114 of the Punjab Municipal Act.
We think it unnecessary to go into that question because the relevant provision in section 13(3)(a) of the Act makes it quite clear that the landlord is entit led to an order from the Controller directing the tenant to put the landlord in possession of the building only when the landlord requires it to carry out any building work etc.
The relevant provision reads as follows .lm15 "13.
(1) A tenant in possession of a building or rented land shall not be evicted therefrom x. x x except in accordance with the provisions of this section, x x x. (2) x x x. (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession (1) x x x (ii) x x x (iii)in the case of any building or rented land if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if ' it has become unsafe or unfit for human habitation.
x x X. We emphasise the word "requires" in the provision.
Having regard to the scheme and purpose of the legislation it is abundantly clear that cl.
(iii) of 959 a.13(3)(a) of the Act is attracted only when the building work is such that the landlord 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 possession.
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 whitewashing, or filling up the gap in the doorway as in the present cage, comes within el.
(iii) of section 13(3)(a) of the Act.
The learned Attorney General has argued that the learned District Judge wrongly took into consideration facts which had come into existence after the filing of the application under section 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 considera tion such facts as existed at the time when the order for vacation was to come into effect.
Section (13) says that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order 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 September 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.
It was, open to the learned District Judge to take into consideration the testimony of the Executive Engineer and having regard 960 to that testimony, the learned District Judge rightly came to the conclusion that cl.
(iii) of a. 13(3) (a) of the Act was not attracted to the case.
For these reasons we have come to the conclusion that there is no merit in the appeal which is accordingly dismissed with costs.
Appeal dismissed.

summary:
Appellant landlord applied to the Rent Controller for eviction of the Respondent tenant on 1.12.56 under section 13(3) of the Punjab Urban Rent Restriction Act for remedying certain defects in the based building.
The Municipal Commi ttee on 11.4.57 issued an amended notice requiring only that the cracked pillar be reinforced so as to make it a solid block.
Respondent carried out the repairs.
On June 8, 1957, the Executive Engineer inspected again in compliance with tile order of the Rent Controller And was satisfied that the pillar had been repaired satisfactorily.
The Rent Controller held that the case fell within section 13 (3) (a) of the Act and ordered eviction of the Respondent.
On appeal the District judge taking note of the state of repairs allowed the appeal.
In revision under section 15(5) of the Act the High Court judge held that the powers of the High Court in revision were similar to those under section 115 of the Civil Procedure Code and that there was no question of jurisdiction involved in the case.
He, however, affirmed the decision after considering the evidence.
Held, that the powers of the High Court under section 15 (5) of the Act were manifestly wider than those under section 115 of the Civil Procedure Code and were not confined to questions of jurisdiction.
That under section 13(3z(a) the requirement of vacant possession.
by the landlord could only be for the purpose of carrying out such fundamental and extensive repairs as could not be carried out without evicting the tenant and not for minor repairs and that it Was open to the District Judge to consider the subsequent events upto the time when eviction was ordered by the controller in view of the scheme and purpose of the legislation.