judgement:
ivil Appeal No. 1112 of 1980.
From the Judgment and Order dated 13.5.
1980 of the Punjab and Haryana High Court in L.P.A. No. 521 of 1976.
Ms. Kamini Jaiswal for the Appellants.
V.M. Tarkunde, Harbans Singh and S.K. Bagga for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Major General Gurbux Singh and his wife Gulwant Kaur were estranged and were living apart.
Their son and daughter in law were living with Gulwant Kaur at Chandigarh.
Gulwant Kaur was apparently complaining that Major General Gurbux Singh was not providing her with ade quate maintenance.
Therefore, on July 28, 1958, he wrote her a letter, the relevant parts of which are as follows:.
579 "To, Shrimati Gulwant Kaur, You have been complaining that I have not paid even a penny for maintenance for the last seven/eight months.
Here is an account from November 1957 to July, 1958, the details of which run as under: XXXXXXXXXXXXX XXXXXX XXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXX Now, so far as the question of future expenses is concerned, the maintenance shall be like this: FOR YOURSELF: 1.
The land and house situated at Mangwal, which was constructed with the earning of my whole life, is entrusted to you, the half portion of which already stands in your name and in lieu of the produce thereof Madanjit shall provide to you, if not more, free lodging and boarding (expenses for maintenance).
You stay in your own home.
The land at Khurana is also entrusted to you.
Its produce, lease money, etc. will fetch you a minimum of Rs. 1200 annually i.e. Rs. 100 per month for maintenance.
I shall pay Rs. 100 every month for maintenance.
xxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx XXXXXX The letter of Gurbux Singh suggested that he was making adequate provision for meeting the expenses of Gulwant Kaur even at the cost of great inconvenience and discomfort to himself and so.
Gulwant Kaur was not entitled to complain.
Gulwant Kaur apparently felt disgusted and frustrated at the tone of the letter and by her letter dated August 5, 2958, she queried if she was not to take maintenance from 580 Gurbux Singh from who else was she to get any maintenance.
She said that she was not demanding anything and made no claim on him and that everything including the land and kothi belonged to him.
The Khurana land also belonged to him.
He might give her maintenance or not give her mainte nance as he chose.
She said that she was nothing more than a heap of dust and her life was not worth living.
In another portion of the letter, she mentioned that the Khurana land had not yet been leased and that there had been some delay.
Other correspondence passed between the parties which is not important for the present case.
Later, after a few years, Gurbux Singh conceived the idea of selling the Khurana land.
The wife protested.
Her letter dated January 15, 1966 was as follows: "Most respected husband, Sat Siri Akal; Previously in the summer, Col. Gurcharan Singh told us that you want to sell the land of Khurana.
Now, on the day you visited Sangrur, it was learnt from you that you were interested in selling the land.
I also told you that we depend upon only that.
This land was given to me by you voluntarily.
You had written letters to me and Madanjit on July 28, 1958 copy whereof is being sent to you by me.
Therein, it was decided that I would continue enjoying the produce thereof till my life.
Now, on hearing that you want to sell it, I was very much shocked . . .
Now this letter is being written to you in order to impress upon you not to sell the land of Khurana because Madanjit and I depend upon it.
You are very well aware that we do not possess anything else . . . .
I fully hope that you will continue giving me this land and the maintenance grants to me as per your decision and will not think of selling this land.
You are aware how we are hardly mai ntaining ourselves.
I have made this prayer to you.
I have full right over it.
I hope that you will reply soon." Gulwant Kaur 's letter did not have any effect on Major General Gurbux Singh.
Instead of replying her, he sold the Khurana land to the plaintiff respondents on June 18, 1968.
The purchaser instituted the present suit out of which the appeal arises for an injunction restraining Gulwant Kaur and Madanjit Singh from interfering with their possession.
The defendants contested the suit initially on the ground that the 581 land had been gifted to Gulwant Kaur orally by Major General Gurbux Singh.
It was also claimed that Gulwant Kaur had acquired title by adverse possession.
Later the written statement was amended and a further plea was taken that the land in dispute had been given to Gulwant Kaur in lieu of maintenance and that she had become the absolute owner of the land under sec.
14 of the Hindu Succession Act.
All the courts found that there was no oral gift.
A learned single Judge of the High Court who heard the second appeal held that the Khurana Land was given to Gulwant Kaur by her husband Major General Gurbux Singh in lieu of maintenance and that by virtue of sec.
14 of the Hindu Succession Act, she had become full owner of the property.
On an appeal under the Letters Patent, a Division Bench of the High Court of Punjab & Haryana held that Gulwant Kaur was merely al lowed to receive the proceeds of the land in dispute in order to meet her day to day expenses and that she did not at all acquire any such right or interest in the property as could be termed 'limited ownership ' so as to permit her to take the benefit of the provisions of sec.
14(1) of the Hindu Succession Act.
According to the learned Judges, "If the General had given over the land in dispute completely to the lady then the question of sending more money could not have arisen . .
The reading of the letter leaves no manner of doubt that there was never any intention on the part of the General to give away the land of village Khurana to the lady and that instead of sending the total amount in cash, the General allowed her to utilise the amount of ckakota for meeting her day to day expenses.
" The Division Bench reversed the judgment of the learned Single Judge.
We are unable to agree with the conclusions of the Division Bench of the High Court.
The question was not whether Major General Gurbux Singh intended to give away the Khurana land absolutely to Gulwant Kaur but whether the land was given to her in lieu of maintenance.
A perusal of the letter dated July 28, 1958 from Major General Gurbux Singh to Gulwant Kaur and the letter dated January 15, 1966 clear ly establish that the Khurana land was given to Gulwant Kaur by Gurbux Singh in lieu of her maintenance.
We are unable to understand the distinction made by the High Court between day today expenses and maintenance.
It was argued by Shri Tarkunde, learned counsel for the respondents that even if the land was given to Gulwant Kaur in lieu of maintenance, it must be established that what was given to her was a limited estate in the sense of ownership without the right of alienation and that under sec.
14 of the Hindu Succession Act only such a limited estate would blossom into an abso lute estate.
We are unable to agree with the submission of Shri Tarkunde.
Shri 582 Tarkunde invited our attention to some decisions of this court as supporting the preposition stated by him.
We will presently refer to all of them.
14 of the Hindu Succession Act is as follows: "(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub section (1) shall apply to any property acquired by any of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
" It is obvious that sec.
14 is aimed at removing restric tions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title.
It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoev er.
The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further title the widow is required to establish before she can claim full ownership under sec.
14(1) in respect of property given to her and possessed by her in lieu of maintenance.
The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance.
Sub sec.
2 of sec.
14 is in the nature of an exception to sec.
583 14(1) and provides for a situation where property is ac quired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedents right.
In Bramma vs Verrupanna, on the death of the last male holder, his two step mothers who had no vestige of title to the properties got possession of the properties and in answer to a suit by the rightful heirs, one of them claimed that she had become full owner of the property under sec.
14 of the Hindu Succession Act.
The Supreme Court pointed out that the object of sec.
14 was to extinguish the estate called limited estate and to make a Hindu woman who would otherwise be a limited owner, a full owner of the property but it was not to confer a title on a female Hindu, who did not in fact possess any vestige of title.
The case did not deal with the case of Hindu a woman who was given property in lieu of maintenance and in whom therefore a right or interest was created in the property.
In Badri Pershad v, Smt, Kanso Devi; , The Court pointed out that a Hindu widow who after the death of her husband obtained properties under a partition award between herself and her sons, would be entitled to an abso lute estate under sec.
14(1) of the Act and that merely because the partition was by means of an arbitration award, sec.
14(2) would not be attracted.
It was made clear that sec.
14(2) was in the nature of a proviso or an exception to sec.
14(1) and that it came into operation only if the Hindu woman required the property in any of the methods indicated therein for the first time without their being any pre existing right in her to the property.
The principle of the case far from supporting Shri Tarkunde 's submission supports the submission of the appellants, In Naraini Devi vs Smt.
Rano Devi and Ors.
, ; the case of Badri Pershad vs Smt.
Kanso Devi (supra) was distinguished on the ground that the widow had no pre exist ing right in the property which she obtained under an award and therefore, the case fell squarely within sec.
14(2) of the Hindu Succession Act.
In Tulasamma vs Sesha Reddi, ; , it was clearly laid down that sec.
14(1) would be applicable to property given to a female Hindu in lieu of maintenance.
It was also made clear that sec.
14(2) would apply only to cases where the acquisition of property was made by a Hindu female without any pre existing right.
It was said.
"It will, therefore, be seen that sub sec.
(1) of sec.
584 14 is large in its amplitude and covers every kind of acqui sition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or subsequently acquired and possessed, she would become the full owner of the property.
Now, sub section (2) of sec.
14 provides that nothing contained in sub sec.
(1) shall apply to another property acquired by way of gift or under a will or any instrument or under a decree by order of a civil court or under an award when the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property.
This provision is more in the nature of a proviso or an exception to sub sec.
(1) and it was regarded as such by this court in Badri Pershad vs Kanso Devi (supra) . . . . . . . . . . . . . . . .
It is, therefore, clear that under the Shastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim.
The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in the joint family property but it is certain ly jus ad rem, i.e., a right against the joint family property.
Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allot ment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.
It would not be a grant for the first time without any preex isting right, in the widow.
The widow would be getting the property in virtue of her pre existing right, the instrument giving the property being merely a document effectuating such pre existing right and not making a grant of the property to her for the first time without any antecedent right 'or title.
There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given 585 to the widow in the property and did not, in so many terms, prescribe that she would have a limited interest, she would have no more than a limited interest in the property under the Hindu Law 'as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this Court in Nirmal Chand 's case (supra), "merely recording the true legal position" and that would not attract the applicability of sub section (2) but would be governed by sub section (1) of section 14.
The conclusion is, therefore, inescapable that where property is allotted to a widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and sub section (2) of section 14 would have no application in such a case." In Bai Vajia vs Thakorbhai Chelabhai, ; , the court referred to the earlier judgment in Tulsamma 's case and said, "All the three Judges were thus unanimous in accepting the appeal on the ground that Tulsamma 's right to maintenance was a pre existing right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise therefore did not fall within the ambit of sub section (2) of section 14 of the Act but would attract the provisions of sub section (1) thereof coupled with the Explanation thereto.
With respect we find ourselves in complete agreement with the conclusions arrived at by Bhagwati and Fazal Ali, JJ., as also the reasons which weighed with them in coming to those conclusions.
" Shri Tarkunde particulary relied on the following passage in Bai Vajia vs Thakorbhai 's case: "A plain reading of sub section(1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section.
If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well recognised 586 principle of interpretation of statutes that the Legislature does not employ meaningless language.
" We do not understand the court as laying down that what was enlarged by sub sec. 1 of sec.
14 into a full estate was the Hindu woman 's estate known to Hindu law.
When the court uses the word 'limited estate ', the words are used to connote a right in the property to which the possession of the female Hindu may be legitimately traced, but which is not a full right of ownership.
If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted, it follows that the right gets en larged to full ownership under sec.
14(1) of the Act.
That seems to us to follow clearly from the language of sec.
14(1) of the Act.
In Sellammal vs Nellammal, AIR 1977 SC 1265, the court held that property allotted to a Hindu widow in lieu of her maintenance in recognition of her pre existing right became her the asbolute property.
In Santnanam vs Subramanya, AIR 1977 SC 2024, it was again held that property in the possession of a widow of the deceased coparcener which had been allotted to her for life in lieu of maintenance without power of alienation became her absolute property under section 14(1) of the Act with powers of alienation.
In Krishna Das vs Venkayya, AIR 1978 SC 36 1, it was reiterated that where a widow was put in possession of joint family property in lieu of her right to maintenance, her right to the property became enlarged into an absolute estate under section 14(1).
We, therefore, think that it is rather late in the day for Shri Tarkunde to contend that the Khurana land which was given to Gulwant Kaur in lieu of maintenance did not vest in her absolutely.
We may finally refer to a recent decision of this Court in Jagannathan Pillai vs Kunjithapadam Pillai, ; where Thakkar and Ray, JJ. pointed out.
" On an analysis of Section 14(1) of the Hindu Succession Act of 1955, it is evident that the legislature has abolished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner.
Section 14(1) would come into operation if the property 587 (Sic) at the point of time when she has an occasion to claim or assert a title thereto.
Or, in other words, at the point of time when her right to the said property is called into question.
The legal effect of section 14(1) would be that after the coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner.
(We are for the moment not concerned with the fact that sub section(2) of section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a civil court or award provided the very document creating title unto her confers a restricted estate on her).
There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possession of any property on the date of the coming into operation of the Act.
The expression 'proposed ' has been used in the sense of having a right to the property or control over the property.
The expression 'any property possessed by a Hindu female whether acquired before or after the commencement of the Act ' on an analysis yields to the following interpretation: (1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.
(2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner.
" In view of the foregoing discussion, we allow the ap peal, set aside the judgment of the Division Bench of the High Court and restore that of the learned single Judge.
N.P.V. Appeal allowed.

summary/full:
The appellant wife and her husband were estranged and living apart.
The husband, by a letter dated July 28, 1956, entrusted.to the appellant the land in dispute alongwith another piece of land and a house and agreed to pay a sum of Rs.100 per mouth for her maintenance.
After a few years, the husband conceived the idea of selling the land in dispute.
The appellant protested by her letter dated June 15, 1966 and implored him not to sell the land.
Despite this, the husband sold the said land to the plaintiff respondents.
The purchaser instituted a suit for an injunction re straining the appellants from interfering with possession, which was contested initially on the ground that the land had been gifted to the appellant orally by the husband, and that title had been acquired by adverse possession.
Later, the written statement was amended and a further plea was taken that the said land had been given in lieu of mainte nance and that she had become the absolute owner of the land under Section 14 of the Hindu Succession Act.
All courts found that there was no oral gift.
A Single Judge of the High Court held that the land was given to the appellant by her husband in lieu of maintenance and that by Section 14 of the Hindu Succession Act, she had become full owner of the property.
On appeal under the Letters Patent, a Division Bench of the High Court held that "The reading of the letter left no meaning of doubt that there was never any intention on the part of the husband to give away the land to the lady and that instead of sending the total amount in cash he allowed her to utilise the amount of ckakota for meeting her day to day expenses", that she did not at all acquire any such right or interest in the property as could be termed 'limit ed ownership ' so as to permit 577 her to take the benefit of the provisions of Section 14(1) of the Hindu Succession Act, that "if the husband had given over the land in dispute completely to the lady, then the question of sending more money could not have arisen" and reversed the Judgment of the Single Judge.
The appellant appealed to this Court.
On behalf of the respondents, it was contended that even if the land was given to the appellant in lieu of maintenance, it must be established that what was given to her was a limited estate in the sense of ownership without the right of alienation and that under Section 14 of the Hindu Succession Act only such a limited estate would blossom into an absolute estate.
Allowing the appeal, this Court, HELD: 1.1 Section 14 is aimed at removing restrictions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her posses sion is traceable to a lawful origin, that is to say, if she has a vestige of a title.
It makes no difference whether the property is acquired by inheritance or devise or at a parti tion or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever.
The Explana tion to the Section expressly refers to property acquired in lieu of maintenance and the widow is not required to estab lish her further title before she could claim full owner ship, under Section 14(1) in respect of property given to her and possessed by her in lieu of maintenance.
[582F H] 1.2 The very right to receive maintenance is sufficient title to enable the ripening of possession into full owner ship if she is in possession of the property in lieu of maintenance.
Sub section (2) of Section 14 is in the nature of an exception to Section 14(1) and provides for a situa tion where property is acquired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedent right.
[582H; 583A] 2.
If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted, it follows that the right gets enlarged to full ownership under Section 14(1) of the Act.
That is clear from the language of Section 14(1) of the Act.
[586B C] 3.1 In the instant case, the question was not whether the husband 578 intended to give away the land in dispute absolutely but whether the land was given to her in lieu of maintenance.
A perusal of the letters exchanged between the husband and the appellant wife clearly establishes that the land in dispute was given by the husband in lieu of maintenance.
The Divi sion Bench of the High Court was wrong in making distinction between day to day expenses and maintenance.
[581F G] 3.2 It is rather late in the day to contend that the land which was given to the appellant in lieu of maintenance did not vest in her absolutely.
[586F] [The Judgment of the Division Bench of the High Court set aside and that of the Single Judge restored. ] Eramma vs Verrupanna & Ors., , distin guished.
Badri Pershad vs Smt.
Kanso Devi, ; ; Naraini Devi vs Smt.
Rano Devi and Ors., ; ; V. Tulasamma & Ors.
vs V. Sesha Reddi (Dead) by L.Rs.; , ; Bai Vajia (Dead) by L.Rs.
vs Thakorbhai Chelabhai and Ors., ; ; Santhanam vs Subramanya AIR 1977 SC 2024 and Jagannathan Pillai vs Kunjithapadam Pillai, ; , referred to.


judgement:
Appeal No. 1 of 1975.
From the Judgment and Order dated 11/12.9.1973 of the Gujarat High Court in I.T. Reference No. 19 of 1971.
K.P. Bhatnagar and Ms. A. Subhashini for the Appellant.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by certificate has been carried by the Revenue challenging the decision rendered by the Gujarat High Court reported in 10 on a refer ence under the Income Tax Act, 1961.
Assessee is a Public Limited Company and the relevant assessment year is 1964 65.
This was the second year of the assessee 's new project at Vidyanagar going into production.
On 19.3.1965, the Income Tax Officer computed the assessment under section 143(3) of the Act after determining the rebate admissible under sections 84 and 590 101 of the Act at Rs.2,72.372.
He reopened the assessment under section 147(b) of the Act and by his reassessment order dated 29.11.1966 recomputed the rebate at Rs.2,51,222.
The appeal by the assessee to the Appellate Assistant Com missioner was dismissed.
The Appellate Tribunal on further appeal by the assessee came to hold: "There is considerable force in the arguments urged by Sri Talati.
In view of the phraseology used in the rules we are inclined to accept Sri Talati 's plea that to the figure of capital as worked out under Rule 19(1) is to be added the average profit as worked out under sub rule (5) of Rule 19.
Accordingly, the average capital has to be taken at Rs.45,39,537 and not at Rs.41.87.034.
The assessee 's contention must, therefore, be upheld.
" At the instance of the Revenue, the Tribunal referred the following question for the opinion of the High Court: "Whether on the facts and in the circumstances of the case, the figure arrived at by computation under rule 19(5) was to be added to the figure arrived at by computation under rule 19(1) for determining the average capital employed in the assessee 's undertaking?" The High Court noticed the feature that there was dearth of judicial decisions on the point at issue, dealt with the relevant provisions at length and came to agree with the conclusion reached by the Appellate Tribunal.
Admissibility of exemption under section 84 of the Act which has been repealed with effect from 1.4.1968, has never been in dispute.
What has been debated is the manner of its computation.
Rule 19 of the Income Tax Rules, 1962 pre scribes the method of computation and on a proper interpre tation of the relevant provisions of this Rule would depend the ultimate conclusion to be reached.
Sub rule (1), (3) and (5) are relevant.
They provide: "19.
(1) For the purposes of section 84, the capital employed in an undertaking or a hotel to which the said section applies shall be taken to be: (a) in the case of assets acquired by purchase and entitled to depreciation 591 (i) if they have been acquired before the computation period, their written down value on the commencing date of the said period; (ii) if they have been acquired on or after the commencing date of the computation period, their average cost during the said period; (b) in the case of assets acquired by purchase and not entitled to depreciation (i) if they have been acquired before the computation period, their actual cost to the assessee; (ii) if they have been acquired on or after the commencing date of the computation period, their average cost during the said period; . . . . . . . . . . . (3) Any borrowed money and debt due by the person carrying on the business shall be deducted and in particular there shall be deducted any debts incurred in respect of the business for tax (including advance tax) due under any provision of the Act: Provided that any such debt for tax (including advance tax) shall, for the purpose of this sub rule, be deemed to have become due (a) in the case of any advance tax due under any provision of the Act or of any tax payable under section 140 A or under section 141, on the date on which, under the provisions of section 211 or section 2 12 or section 2 13 or section 140 A or section 220, as the case may be, the payment first became due; (b) in any other case, on the last day of the period of time within which the tax is payable under section 220.
(5) For the purpose of ascertaining the average amount of capital employed in a business during any computation 592 period, the profits or losses made in that period shall, except so far as the contrary is shown, be deemed (a) to have accrued at an even rates throughout the said period; and (b) to have resulted, as they accrued, in a corresponding increase or decrease, as the case may be, in the capital employed in the business." 'Average Cost ', 'Computation Period ', 'depreciation ' and 'Written Down Value ' have been defined in sub rule (6).
The High Court is right in saying that the dispute has to be resolved by referring to sub rules (1), (3), (5) and (6) of Rule 19.
The High Court found that the value of assets entitled to depreciation under Rule 19(1)(a) worked out to Rs.40, 10,947.
To this figure was added a sum of Rs. 1,39,764 on account of depreciation as on 1.1.
1963 as also on account of the average value of additions.
The other assets were valued under Rule 19(1)(b) at Rs.44,38,126 as on 1.1.1963.
All put together, the aggregate valuation came to Rs.85.88,837.
From this aggregate, deduction of a sum of Rs.44,01,803 representing loans, other liabilities including provision for tax as authorised by Rule 19 was made leaving the valuation of the capital at Rs.41,67,034.
To this fig ure, the sum of Rs.3,52,503 being half of the profit from the New Project was added to compute the value at Rs.45,39,537.
Following the provision of Section 84 of the Act, entitlement to exemption was determined at Rs.2,72,372 representing 6% of the capital employed in the new industri al undertaking.
The assessment was made by deleting the addition of Rs.3,52,503 which represented half the profit of the year.
According to the Revenue, profits earned during the year had already been taken into account in the process of computa tion and there was no warrant for its addition over again to the extent of a moiety.
In fact, that is the only dispute that fell to be resolved.
The High Court took note of the fact that profits had necessarily been reflected in the average valuation of the assets but in its view the deeming provision in Rule 19(5) was the special procedure laid down for computation for the purpose of calculation and could not be overlooked for the reasons advanced by the Revenue.
We find sufficient force in the reasoning of the High Court and accept the conclusion reached by it.
The appeal is devoid of merit and is dismissed.
Parties shall bear their own costs throughout.
A.P.J. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The assessee, a public limited company, in the assess ment year 1964 65 was in the second year of its new project going into production.
The Income tax Officer computed the assessment under section 143(3) of the Income tax Act, 1961 after determining the rebate admissible under sections 84 and 101 at Rs.2,72,372.
He re opened the assessment under section 147(b) and re computed the rebate at Rs.2,51,222.
The appeal by the assessee to the Appellate Assistant Commissioner was dis missed.
The Appellate Tribunal accepted the plea of the assessee that to the figure of capital as worked out under Rule 19(1) is to be added the average profit as worked out under sub rule (5) of Rule 19 and held that the average capital has to be taken at Rs.45,39,557 and not at Rs.41,87,034.
In the Reference, the High Court agreed with the conclusion reached by the Appellate Tribunal.
Dismissing the Appeal of the Revenue, HELD: 1.
Admissibility of exemption under section 84 of the Incometax Act, 1961 which has been repealed with effect from 1.4.1968 has never been in dispute.
What has been deputed is the manner of its computation.
Rule 19 of the Income tax Rules, 1962 prescribes the method of computation and on a proper interpretation of sub rule (1), (3) and (5) of this Rule would depend the ultimate conclusion to be reached.
[590F G] 2.
The High Court is right in saying that the dispute has to be resolved by referring to sub rules (1), (3), (5) and (6) of Rule 19.
The High Court found that the value of assets entitled to depreciation under Rule 19(1)(a) worked out to Rs.40,10,947.
To this figure was added a sum of Rs.1,39,764 on account of depreciation as on 1.1.63 as also on account of the average value of additions.
The other assets were valued under Rule 19(1)(b) at Rs.44,38,126 as on 1.1.63.
All put together the 589 aggregate valuation came to Rs.85,38,837.
From this aggre gate, deduction of sum of Rs.44,01,803 representing loans, other liabilities including provision for tax as authorised by Rule 19 was made leaving the valuation of the capital at Rs.41,87,034.
To this figure the sum of Rs.3,52,503 being half of the profit from the New Project was added to compute the value at Rs.45,39,537.
Following the provision of section 84, entitlement to exemption was determined at Rs.2,72,372 representing 6% of the capital employed in the new industri al undertaking.
[592C E] 3.
Re assessment was made by deleting the addition of Rs.3,52,503 ' which represented half the profit of the year.
According to the Revenue, profits earned during the year had already been taken into account in the process of computa tion and there was no warrent for its addition over again to the extent of a moiety.
In fact, that is the only dispute that fell to be resolved.
The High Court took note of the fact that profits had necessarily been reflected in the average valuation of the assets but in its view the deeming provision of Rule 19(5) was the special procedure laid down for computation for the purpose of calculation and could not be over looked for the reasons advanced by the Revenue.
There is sufficient force in the reasoning of the High Court and the conclusion reached by it is accepted.
[592E G]


judgement:
vil Appeal No. 195556 of 1980.
From the Judgment and Order dated 3/4th July, 1979 of the Bombay High Court in Spl.
C.A. Nos.
2052 of 1973 and 132 of 1974.
F.S. Nariman, Anil B. Diwan, P.H. Parekh, Ms. Lata Krishnamurthy and section Dutt with for the Appellants.
V.M. Tarkunde and H.G. Advani, Hira Advani Kailash Vasudev, Joel Peres and D.N. Misra for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals, by special leave, by the landlords are directed against the judgment and order of the High Court of Bombay dated 3/4th July, 1979.
Two questions arise for consideration in these appeals (i) whether the structure constructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant; (ii) what is the scope and extent of the jurisdiction of the High Court under Article 227 of the Constitution on questions of facts found by the appellate bench of Small Causes Court.
In order to appreciate these questions, it is necessary to reiterate the relevant facts.
The second appellant being plaintiff No. 2 in the Original Suit leased out the premises involved herein being a godown measuring 11,500 sq.
at 156 A, Tardeo, Bombay 7.
The said pre 596 mises was given by the landlord to the tenant, the respond ent herein M/s Bright Brothers (Pvt.) Ltd. on lease vide the registered lease dated 14th April, 1947 for a period of ten years commencing from 1st September, 1946.
By 1953, the respondent company began to fall into arrears in payment of rent.
The respondent tenant filed an application before the appropriate Rent Court for fixing the standard rent.
On 14th June, 1958, the advocate of the second appellant sent a notice to the respondent tenant calling upon them to pay up the arrears for the period from September, 1956 to May, 1958 (both months inclusive), as well as for earlier arrears of rent of Rs.20,850.
On 1st December, 1958 a second notice was issued on behalf of the original plaintiff No. 1 calling upon the respondent to quit and vacate the premises in question on the grounds, inter alia, (a) unauthorised construction of permanent nature; (b) obstructing roadways; and (c) the damage to walls and floor, and further called upon them to remove the unauthorised construction and re store the suit premises to its original condition.
Inasmuch as the main factual controversy in those appeals relate to the nature of the construction alleged to have been made by the tenant, it is relevant to set out what was stated in that letter.
It was, inter alia, stated that the tenant had unauthorisedly committed several breaches of the terms and conditions of the lease inasmuch as the tenant had erected unauthorised construction of a permanent nature and carried out additions to the demised premises without the consent of the lessor or the receiver.
It was further alleged that in breach of the terms and conditions of the agreement of tenancy and without the consent of the lessor or the receiv er, the tenant had occupied portion of the land not let out to him by obstructing the lessor and the person entitled to use the same and had made construction on the roadway by obstructing and restricting the passage.
It was further alleged that the tenant had unauthorisedly and without permission dug up and mutilated the floors of the premises let out to the tenant and had constructed contrary to the provisions of section 108(0) of the .
The tenant was called upon to remove the said unauthorised structures and restore the property, and it was further notified that failing which the landlord would be compelled to take proceedings.
A reply to the said notice issued by the Court Receiver was sent on 8th December, 1958 from the respondent company 's advocate saying that the construction complained of had taken place with the consent and full knowledge of the appellant and the respondent company had spent thousands of rupees towards the improvement of the suit 597 premises.
Further in reply to the allegation of damage to the property, the respondent company had alleged that it had in fact improved the property of the appellant.
On or about 20th December, 1958, the advocate for the appellant replied to the above letter once again calling upon the respondent company to vacate the demised premises.
In 1959, the standard rent application being R.A. No. 2214 of 1954 mentioned hereinbefore was dismissed.
There upon, the respondent tenant filed a civil revision applica tion.
The appellant filed a suit being suit No. 1450/83 18 of 1959 on or about 31st July, 1959.
On or about 8th Decem ber, 1965, the appellant made an application for amendment of the plaint to include change of user as an additional ground of eviction.
The respondent also made an application for amendment to the effect that permanent structure had been made with the knowledge and consent of the appellant.
The said amendments were allowed in December, 1965.
On or about 31st March, 1967, the trial court in suit No. 1450/ 8318 of 1959, ordered eviction of the tenant on the ground of permanent construction.
Mesne profit from the date of the decree was also ordered.
There was an appeal to the appellate bench before the CoUrt of Small Causes and cross appeal being appeal nos.
323 and 629 of 1967.
By the judgment delivered on 14th June, 1973, the division bench of the Court of Small Causes confirmed the decree for eviction on the ground of permanent construction and granted eviction on change of user as well in the cross objection filed by the appellant.
It also ordered mesne profit from the date of the suit and the monetary claims to the extent of arrears.
The High Court on or about 3/4th July, 1979, by judgment and order of the High Court in SCA 2052 and 174 of 1974 under Articles 226 and 227 of the Constitution reversed the concurrent findings of the courts below and allowed the respondent company 's application.
Being aggrieved therefrom, the appellants, the landlords have come up in appeal to this Court.
It is, first necessary therefore to consider the nature of the structures made and whether these were permanent or not.
As stated hereinbefore that permanent structures were constructed was held by the two courts concurrently, namely the Judge of the Court of Small Causes as well as the Appel late Bench of the Small Causes Court; whether by such con struction there has been change of user is another question.
On the nature of the construction, it is necessary to refer to the decision of the trial court.
598 The main question, however, in these appeals is the jurisdiction of the High Court to interfere with the find ings of this nature under Article 227 of the Constitution.
The principles are well settled.
Their application, however, in particular cases sometimes present difficulties.
But the quest for certain amount of certitude must continue in this field of uncertain minds and imperfect language.
To the facts, therefore, we must now refer to appreciate the application of law involved in this case.
The premises in question was let out for use exclusively for business of manufacture of plastic articles, wood work and paints only and not for any other purpose.
it is alleged that it is no longer used for that purpose but used as an office and storage.
The trial court in this case was the Court of Small Causes, Bombay.
One of the grounds of ejectment was the erection of permanent structure and it was the case of the appellant No. 2 that such erection was against the provi sions of section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1974 (hereinafter called the 'Rent Act ').
Under clause (p) of section 108 of the , a lessee may not without the lessor 's consent erect on the property and permanent structure except for agricultural purposes.
If he does, then this becomes a ground for ejectment.
In this case the permanent structures alleged were constructions of lofts, construction of several rooms and construction of and laying of a new and permanent flooring as appears from the plaint filed in the proceedings.
It further appears that the tenant had sunk in pillars and stanchions into the flooring.
it was stated in the deposi tion that these pillars and stanchions mentioned in the plaint were only those which were the posts supporting the cabins and lofts complained of and none else.
These pillars and stanchions went along with the construction of lofts and construction of several rooms, that is cabins.
The learned trial court discussed the details and found those cabins marked A, B, C, D, E, F, G, H, I, J, K, L etc.
There were lofts marked cabins A, B, C, D, E, F, J, K, other lofts marked as F, G, H and I. The third loft over the cabin at L and the lofts over the portions M & N.
These were, according to the engineer, an architect, Shri Divecha, who was exam ined on behalf of the plaintiff, permanent structures.
The learned judge examined the plan prepared by the said archi tect and his deposition.
The learned judge was of the view that it was clear from the 599 architect 's evidence that lofts A, B, C, D, E, J, K. as well as the lofts over F, G, H and I were meant to carry weight of over 100 Ibs.
per sq.
and this statement according to the learned judge was not challenged in the cross examina tion.
The structures over A, B, C, D, E, J. and F.C.H.I cannot therefore be called only roofs or tops of cabins.
They were nothing but lofts.
The structures A, B, C, D, E, K, J. so also F, G, H, I, L & M were admitted to have been constructed by the tenant after it had taken the premises from the landlord.
The learned judge in his judgment has also noted these various facts as to their length and dimen sions.
He referred extensively to the evidence in the plan which was marked exhibit MI and the deposition of Shri Divecha.
The learned Judge taking these factors into consideration came to the conclusion that the cabin lofts and posts sup porting the same were attached to the flooring as well as the walls and columns of the main structures.
Under these circumstances, the learned judge of the Court of Small Causes was of the opinion that the structures were permanent in nature.
The learned judge, however, held that the land lord had failed to prove that the tenant had put up any permanent flooring at some part of the suit premises as alleged.
The next allegation was that the tenants had demol ished a portion of the wall in between the two rooms and prepared a door at that opening.
After discussing the facts and the evidence, the learned judge was of the view that there was no question of any waste of the plaintiff 's property on account of any demolition.
He, however, had held that so far as cabins, lofts and posts supporting the same by pillars, these were nothing but permanent structures.
So far as the digging of the flooring was concerned, after discussing the evidence the learned judge held that the plaintiffs had failed to prove digging which led to waste of the property of the landlord.
So far as the creation of the permanent structure is concerned, the same breached the terms of tenancy.
The learned judge noted that on 1st Janu ary, 1948 the defendant No. 1 wrote to the plaintiff that the height of the wooden partition they were erecting, was specified within the plan sent along with the aforesaid letter which had already been lying ready for erection.
It was contended by the defendants in their written statements that they had obtained consent in respect of the wooden cabins and partitions in the year 1948.
So far as section 13(1)(b) of the Bombay Rent Act is concerned, there cannot be any waiver operating against the plaintiffs.
It was the case that some of the permanent structures were there before 1947.
On examination of the evidence, the learned judge observed that Mr. D 'silva had stated that the tenant had requested Mahindra & Mahindra for a design of a slotted angle cabin with a loft, that the same was supplied and Mr. D 'silva was the designer who did the work.
Analysing all these evidence, the 600 learned trial judge came to the conclusion that permanent structures were carried out without the consent in writing of the landlords or either of them.
Such permanent structure was outside the tenancy and the landlord had not given any consent.
The matter on this issue went up before the appellate court and the appellate court dealt with this again and discussed these allegations.
It was pointed out by the appellate court that the allegations were that the appel lants had (a) made an opening by demolishing a part of the wall dividing the two portions of the demised premises; (b) constructed lofts in the suit premises, (c) dug upon the flooring of the premises at various places, (d) sunk in pillars and stanchions into the flooring, (e) constructed several rooms and laid new and permanent floorings in parts of the demised premises at different levels.
So far con structing lofts, it was held that these lofts had been constructed after 1st September, 1946.
And in this context the construction of cabins and putting up of pillars were considered and the evidence in this respect was taken into consideration.
It was contended that the demised premises in the lease was described as godown but it was taken in the nature of several office premises and the change in the improvement done to the same was merely for the better enjoyment of demised premises.
In the first place the cabins were made of wooden poles and planks fixed in the floor, and side walls of the building with nails, screws, nuts and bolts.
The appellate court came to the conclusion that applying the proper test, the cabins were substantial struc tures and substantial improvement to the premises.
These were durable for long and intended to be used permanently.
The appellate court also took the question of digging and other relevant allegations.
As a result of analysis of these evidence and materials, the appellate court confirmed the findings of the trial court that the tenant had erected permanent structure on the demised premises without the landlord 's consent and that was a breach of the terms of tenancy.
They also confirmed the finding of the trial court that the respondents did not waive their rights arising out of these acts.
They also upheld the finding that there was no renewal of the lease of the landlords and the tenants were not statutory tenants whose contractual tenancy had come to an end by efflux of time by the end of the period of ten years from 1st September, 1946.
They upheld the decree for possession passed by the trial court.
The High Court dealing with this matter under Article 227 of the Constitution had occasion to refer to this as pect.
The High Court 601 referred to the different authorities on this point.
We may briefly take note of some of these.
In this connection reference may be made to a decision of the Special Bench of the Calcutta High Court in the case of Surya Properties Private Ltd. and others vs Bimalendu Nath Sarkar and others.
A.I.R. 1964 Calcutta p. 1 which dealt with clause (p) of section 108 of the and held that this question was dependent on the facts of each case and no hard and fast rule can be laid down with regard to this matter.
In the absence of any relevant materials, therefore, the Full Bench found that no answer could be given.
in a slightly different context, before Calcutta High Court in the case of M/s Suraya Proper ties Private Ltd. vs Bimalendu Nath Sarkar.
A.I.R. 1965 Calcutta page 408, Chatterjee, J., one of the judges of the Division Bench observed that the phrase 'permanent struc ture ' for purposes of clause (p) of section 108 of the meant a structure which was capable of lasting till the term of the lease and which was con structed in the view of being built up as was a building.
In that context the learned judge observed that a reservoir was not, however, a permanent structure for purposes of clause (p) of section 108 of the .
Sen, J. of the same Bench was of the view that no hard and fast tests could be laid down for determining the question wheth er a particular structure by the tenant was a permanent structure for the purpose of clause (p) of section 108 of the .
The answer to the question depended on the facts of each case.
Chatterjee, J., however, took the view that where the tenant created a permanent structure in the premises leased to him, as the lease con tinued in spite of the disputed structure and the landlord continued to receive rent till the determining of the lease by notice to quit or thereafter till the passing of the decree for eviction and the fact that he accepted rent with full knowledge of the disputed structure did not disentitle him to a decree for eviction.
In Khureshi Ibrahim Ahmed vs Ahmed Haji Khanmahomad.
A.I.R. 1.965 Gujarat, 152, in connection with section 13(1)(b) of the Rent Act, Gujarat High Court held that the permanent structure must be one which was a lasting struc ture and that would depend upon the nature of structure.
The permanent or temporary character of the structure would have to be determined having regard to the nature of the struc ture and the nature of the materials used in the making of the structure and the manner in which the structure was erected and not on the basis of how long the tenant intended to make use of the structure.
As a matter of fact, the Court observed, the nature of the structure 602 itself would reflect whether the tenant intended that it should exist and be available for use for a temporary period or for an indefinite period of time.
The test provided by the Legislature was thus an objective test and not a subjec tive one and once it was shown that the structure erected by the tenant was of such a nature as to be lasting in dura tion lasting of course according to ordinary notions of mankind the tenant cannot come forward and say that it was erected for temporary purpose.
The question was again considered in the case of Ramji Virji and others vs Kadarbhai Esufali, A.I.R. 1973 Gujarat 110.
It was observed that whether the structure was a perma nent structure was a mixed question of law and fact.
It was held in that case that alterations made by a tenant like constructing loft, wooden bathroom, frame and putting up a new drain being minor alterations which were easily remova ble without causing any serious damage to the premises would not amount to permanent structure leading to the forfeiture.
There are numerous authorities dealing with the question how the structure is a permanent structure or not should be judged.
It is not necessary to deal with all these.
One must look to the nature of the structure, the purpose for which it was intended and take a whole perspective as to how it affects the enjoyment, the durability of the building etc.
and other relevant factors and come to a conclusion.
Judged in the aforesaid light on an analysis of the evidence the trial court as well as the appellate court had held that the structures were permanent.
The High Court observed that in judging whether the structures were perma nent or not, the following factors should be taken into consideration referring to an unreported decision of Malvan kar J. in special civil application No. 121 of 1968.
These were (1) intention of the party who put up the structure; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irrepairable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention.
Like wise, dimensions of the structure and (4) its removability had to be taken into consideration.
But these were not the sole tests.
(5) the purpose of erecting the structure is another relevant factor.
(6) the nature of the materials used for the structure and (7) lastly the durability of the structure.
These were the broad tests.
The High Court ap plied these tests.
So had the Trial Court as well as the appellate bench of Court of Small causes.
603 All the relevant factors had been borne in mind by the learned trial judge as well as appellate bench of the Court of Small Causes.
Therefore, simply because another view is possible and on that view a different view is taken, will be interfering under jurisdiction under Article 227 of the Constitution which is unwarranted.
The High Court was im pressed by the fact that having regard to the facts and circumstances of the case and further more for efficient and complete enjoyment of the demised premises and for carrying out the business of manufacturing plastic goods, these structures had been constructed by the tenant temporarily.
According to the High Court, the nature of the materials used and the intention of the tenant were relevant and according to the High Court, these structures could be removed without doing appreciable damage to the demised premises and these indicated that these were intended to be part and parcel of the normal part of the building.
The High Court proceeded on the basis that the trial court as well as the appellate bench of the Small Causes Court had relied wholly on the basis of evidence of the admission of one Mr. Pittie who had admitted that the landlord had knowledge of these factors.
The other evidence, according to the High Court,.
of the Divecha, D 'Silva, Kirtikar and Bhansali were not at all given proper and due weight.
According to the High Court, the High Court had in such circumstances juris diction to deal with this matter and in exercise of the jurisdiction, as the High Court felt that relevant and material facts had been ignored, the High Court set aside the order of the court of Small Causes, and set aside the landlord 's decree and restored the tenant in possession.
As mentioned hereinbefore it is not necessary for our present purpose to decide whether plaintiffs ' witnesses were properly appreciated.
We find all the relevant evidence had been examined by the trial judge as well as by the appellate bench of the court of Small causes.
We find relevant refer ence to the evidence of Divecha, and others.
We find refer ence to the relevant evidence in the deposition at pages 56, 69, 71, 83, 93, to 95 by the trial court as well as in pages 133 36, 152, 167, we find reference to the deposition at p. 56 of the trial court and pages 62 to 63, as well as 65 to 71 and the Appellate Court at pages 134 and 147.
Similarly the evidence of D 'silva who was an employee of Mahindra and Mahindra as also of Shri Kirtikar, were discussed.
It is not necessary to refer in detail to these evidence.
So far as to what extent the factors are structures have been exhaustively referred to in Surya Properties Private Ltd. and others vs Bimalendu Nath Barkar and others (supra) and M/s Surya Properties 604 Private Ltd. vs Bimalendu Nath Sarkar (supra) and in our opinion these lay down correct position in law.
As a matter of fact the tenant is no longer carrying on any business there but one Messrs Quality Plastics is carrying on the business.
Therefore the original purpose is gone.
In this connection reference may be made to Annexure IV appearing at page 428 of the Paper Book which is a letter dated both July, 1964 written by the Concord of India Insurance Company Limited to the Secretary.
The Insurance Association of India where it was stated clearly that Bright Brothers Pvt. had shifted to Bhandup as from 29th April, 1963 and at the relevant time, they had only their Administrative Officer there and they were stocking finished goods in the premises in question.
Further, they have recently installed their Associate Company 's factory in the said block working under the name of M/,s.
Quality Plastics in the premises in ques tion.
Therefore, in view of the fact that large sum had been spent and considering the standard and the nature of the construction and lack of easy removability and the degree of an annexation to the enjoyment for the original purpose, we are of the opinion that the learned judge as well as appel late bench of the court of Small Causes had applied the correct principles and came to a plausible conclusion.
About the removability of the structure, the High Court was bound by the finding of the appellate authority which appears at page 341 to 344 of the Paper Book.
In a case of this nature, the High Court found that they had to enter into this ques tion to find the real position whether the proper principles had been correctly borne in mind.
It is indisputable that the finding that has to be arrived at by the court in this case is a mixed question of law and fact.
Therefore, if the basic factors, for example, there was not proper apprecia tion of the evidence, if the assumption that lofts per se were not permanent structures then the courts below might be said to have committed error apparent on record and no court instructed in law could take such a view.
But if all the relevant factors have been borne in mind and correct legal principles applied then, right or wrong, if a view has been taken by the appellate court, in our opinion, interference under Article 227 of the Constitution was unwarranted.
Interference by the High Court under Article 227 of the Constitution must be within limits.
This question has been considered by this Court from time to time and principles laid down.
This Court in Ganpat Ladha vs Sashikant Vishnu Shinde, ; expressed the view that the High Court commits a gross error in interfering with what was a just and proper exercise of discretion by the Court of 605 Small Causes, in exercise of its power under Article 227 of the Constitution.
This was unwarranted.
The High Court under Article 227 has a limited jurisdiction.
It was held in that case that a finding as to whether circumstances justified the exercise of discretion or not, unless clearly perverse and patently unreasonale, was, after all a finding of fact and it could not be interfered with either under Article 226 or 227 of the Constitution.
If a proper court has come to the conclusion on the examination of the nature of the structure, the nature of the duration of structure, the annexation and other relevant factors that the structures were permanent in nature which were violative of section 13(1)(b) of the Rent Act as well as section 108 clause (p) of and such a finding, is possible, it cannot be considered to be perverse.
In such a situation, the High Court could not have and should not have inter fered.
In India Pipe Fitting Co. vs Fakruddin M.A. Bakar and Anr., ; , this Court reiterated that the limitation of the Court while exercising power under Article 227 of the Constitution is well settled.
Power under Article 227 is one of judicial superintendence and cannot be exer cised to upset the conclusions of facts, however., erroneous these may be.
It is possible that another Court may be able to take a different view of the matter by appreciating the evidence in a different manner, if it determinedly chooses to do so.
That will not be justice administered according to law to which Courts are committed notwithstanding disserta tion in season and out of season, about philosophies.
In that case, the Court found that the High Court had arrogated to itself the powers of the appellate court.
As early in 1959, in Satyanarayan Laxminarayan Hegde and Others vs Millikarjun Bhavanappa Tirumale, [1960] 1 SCR 890, this Court found that in that case on the materials avail able before it that the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal was one apparent on the face of the record so as to be capable of being corrected by a writ of certiorari and an error which had to be established by a long drawn process of reasoning on points where there may conveivably be two opinions cannot be said to be an error apparent on the face of the record.
There might have been error in the judgment of the appellate bench of the Court of Small Causes but it is not an error palpable and apparent, right or wrong they had come to that conclusion.
That was possible or plausible conclusion.
In Mrs. Labhkuwar Bhagwani Shah and Others vs Janardhan 606 Mahadeo Kalan and Another, 14, this Court reiterated that concurrent finding of facts whether relating to jurisdictional issue or otherwise were not open to inter ference by the High Court under Article 227 of the Constitu tion.
This Court in Chandavarkar Sita Ratna Rao vs Ashalata section Guram, [1986] 4 SCC p. 447 held that in exercise of juris diction under Article 227 of the Constitution, the High Court can go into the questions of facts or look into the evidence if justice so requires it.
But the High Court should decline to exercise its jurisdiction under Article 226 and 227 of the Constitution to look into the facts in the absence of clear cut down reasons where the question depends upon the appreciation of evidence.
The High Court should not interfere with a finding within the jurisdiction of the inferior tribunal or court except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is misdirection in law or view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice.
Except to the limited extent indicat ed above, the High Court has no jurisdiction.
In this instant case the tests laid down have not been transgressed by the court of Small Causes both trial court as well as the appellate bench.
The view it took was a possible view.
A different view might have been taken out that is no ground which would justify the High Court to interfere with the findings.
In that view of the matter, we allow the appeals, set aside the judgment and order of the High Court and restore the order of the appellate bench of Court of Small Causes dated 4th June, 1973.
There will be an order for possession and mesne profits as directed by the Court of Small Causes.
The respondents will pay the cost of these appeals.
H.L.C. Appeals allowed.

summary/full:
The appellants, who had let out the premises in question to the respondent Riled a suit for eviction inter alia on the ground that the tenant had erected unauthorised struc tures of a permanent nature in violation of the provisions of cl.
(p) of section 108 of the and section 13(1)(b) of the Bombay Rents.
Hotel and Lodging House Rates Control Act, 1974 and was using the premises for unauthorised purposes.
The alleged permanent structures consisted of lofts and rooms which had been constructed by sinking pillars and stanchions into the flooring and the tenant admitted that these had been constructed after it had taken the premises from the landlord.
After discussing the evidence tendered in detail, including the deposition of the architect who had prepared the plan of the constructions in question and who had deposed that the constructions consist ed of permanent structures, the Judge of the Court of Small Causes held that the structures were of a permanent nature and ordered eviction of the tenant on the ground of perma nent construction.
The respondent 's appeal was dismissed by the Appellate Bench of the Court of Small Causes which, on a detailed reappraisal of the evidence on record, not only confirmed the decree for eviction on the ground of permanent construction but granted eviction on the ground of change of user as well.
The respondent went in appeal against the order of the appellate court.
The High Court, dealing with the matter under article 227 of the Constitution, reversed the concurrent findings of the courts below and allowed the respondent 's petition.
Allowing the appeal and restoring the order of the lower appellate court, 594 HELD: 1.
(a) Interference by the High Courts under article 227 of the Constitution must be within limits.
This question has been considered by this Court from time to time and principles laid down.
The power under article 227 is one of judicial superintendence and it cannot be exercised to upset the conclusions of facts, however erroneous these may be.
It is possible that another Court may be able to take a differ ent view of the matter by appreciating the evidence in a different manner, if it determinedly chooses to do so.
That will not be justice administered according to law to which courts are committed.
[605D E] (b) In exercise of jurisdiction under article 227 ' of the Constitution, the High Court can go into questions of facts or look into the evidence if justice so requires it.
But the High Court should decline to exercise that jurisdiction to look into the facts in the absence of clear cut reasons where the question depends upon the appreciation of evi dence.
The High Court should not interfere with a finding within the jurisdiction of the inferior tribunal or court except where the finding is perverse in law, in the sense that no reasonable person properly instructed in law could have come to such a finding, or there is misdirection in law, or view of fact has been taken in the teeth of prepon derance of evidence, or the finding is not based on any material evidence or it resulted in manifest injustice.
Except to the extent indicated above the High Court has no jurisdiction.
[606B D] Satyanarayan Laxminarayan Hegde & Ors.
vs Mallikarjun Bhavanappa Tirumale, [1960] 1 S.C.R. 890; India Pipe Fitting Co. vs Fakruddin M.A. Baker & Anr., ; ; Ganpat Ladha vs Shashikant Vishnu Shinde, [1978] 3 S.C.R. 198; Mrs. Labhkuwar Bhagwani Shah & Ors.
vs Janardan Mahadeo Kalan & Anr., and Chandavarkar Sita Ratna Rao vs Ashalata section Guram, ; ; re ferred to. 2.
No hard and fast rule can be laid down for determin ing the question whether a particular structure put up by the tenant is a permanent structure for the purpose of cl.
(p) of section 108 of the as it is dependent on the facts of each case.
One must look to the nature of the structure, the purpose for which it was in tended and take a whole perspective as to how it affects the enjoyment, the durability of the building, etc.
and other relevant factors and come to a conclusion.
[601D E; 602D E] Surya Properties Private Ltd. & Ors.
vs Bimalendu Nath Sarkar & Ors., and M/s Surya Proper ties Private Ltd. 595 vs Bimalendu Nath Sarkar, A.I.R. 1965 Calcutta 408, ap proved.
Khureshi Ibrahim Ahmed vs Ahmed Haji Khanmahomad, A.I.R. 1965 Gujarat 152 and Ramji Virji & Ors.
vs Kadarbhai Esufa li, A.I.R.1973 Gujarat 110, referred to.
In this case, on an analysis of the evidence the trial court as well as the appellate court had held that the structures were permanent.
All the relevant factors had been borne in mind by the learned trial Judge as well as the Appellate Bench of the Court of Small Causes.
The view taken by them was a possible view.
A different view might have been taken but that is no ground which would justify the High Court to interfere with the findings.
[600F]


judgement:
vil Appeal No. 1088 (N) of 1969.
From the Judgment and Order dated 14.8.1968 of the punjab and Haryana High Court in L.P.A. No. 95 of 1964.
A. Minocha for the Appeallant.
Ms. A. Subhashini, Mrs. section Sun, C.V.S. Rao and P. Par meshwaran for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
This is an appeal by special leave against the Judgment and Order made in L.P.A. No. 95 of 1964 dis missing the appeal holding that the land in question having already vested in the Government of Punjab under package deal, the authority under the Displaced Persons (Compensa tion and Rehabilitation) Act, 1954 had no jurisdiction over lands in question.
Appellant, Pala Singh, a displaced person, was allotted 9 standard acres and 12 1/4 units of land in village Jhill, Tehsil and District Patiala in lieu of his land left in Chack No. 204 in 1950.
He got the same quantity of land in village Alipur Arain on mutual exchange with an allottee of the said village.
The appellant was not allotted any land for the land left by him in village Santpura and Jaffapur in Tehsil Phalia, District Gujarat.
The area of Chack No. 204 R.B. was described as a suburban area by the State Govern ment.
The appellant applied for allotment in village Tripari Sayidan, a suburban of Patiala City.
After due verification from the records of the Rehabilitation Department at Jullun dur, the petitioner being found entitled to the suburban allotment to the tune of 10 standard acres and two units as also to a rural allotment of 2 standard acres and 8 units was allotted 6 standard acres 12 3/4 units of land in Tri pari Sayidan.
Proprietary right in respect of both these allotments, that is, at Tripari Sayidan and village Alipur Arian were granted to him vide sanads dated 17th February, 1956.
627 In October 1961, it was detected that there was excess allotment of 6 standard acres and 12 3/4 units in village Alipur Arian and accordingly the Managing Officer, Rehabili tation Department by his order dated 21st February, 1962 allowed the petitioner to purchase the said excess area.
Petitioner deposited the required amount in the Treasury on March 6, 1962.
On March 27, 1962, i.e. 20 days thereafter the petitioner was served with a notice by the respondent No. 3, Assistant Registrar cum Managing Officer asking him to appear before the respondent No. 2, the Chief Settlement Commissioner, Civil Secretariat.
Jullundur to show cause why the order of the Managing Officer allowing him to purchase the excess land should not be set aside, as it was a case of double allotment.
The respondent No. 2, the Chief Settlement Commissioner, after hearing the petitioner passed an order holding that the excess land which was found in October 1961 could not be sold by the Managing Officer under the Dis placed Persons (Compensation and Rehabilitation) Act, 1954, as under the package deal this land had been transferred to the Punjab Government.
It was for the Punjab Government to decide if the said land would be sold to the petitioner at the reserve price or not.
The reference was accordingly allowed and the order of the Managing Officer allowing the allottee to purchase the said 6.12 3/4 standard acres in village Alipur Arian, Tehsil District Patiala was set aside.
The petitioner then made an application under Section 33 of the said Act to the respondent No. 1, the Central Government against the said order.
The said application was dismissed by the respondent No. 1.
Against these orders the petitioner moved a petition under Articles 226 and 227 of the Constitu tion of India before the High Court of Punjab and Haryana under Civil Writ Petition No. 1804 of 1962 on the grounds inter alia that the petitioner is entitled to get the same land as he had already deposited the price of the allotted land in accordance with the order of the Managing Officer.
The said purchase could not be cancelled on the plea that the land had already been transferred to Punjab Government by the Central Government under package deal.
A return was filed on behalf of the respondents stating inter alia that in lieu of land to the extent of 6.12 3/4 standard acres allotted to him in village Tripari Sayidan, an area to the same extent was to be withdrawn from his rural allotment in village Alipur Arian.
This however was not done through oversight and the allottee was in posses sion of the both lands in villages Alipur Arian and Tripari Sayidan.
This resulted in double allotment to the petition er.
It was also submitted therein that the Managing Officer wrongly allowed the petitioner to purchase the said land in village Alipur Arian in February 1962.
The 628 order of the Managing Officer was without jurisdiction as by that time property had gone out of the Compensation Pool and it vested in the State Government.
It was further averred that the transfer of the land in dispute to the petitioner was void ab initio as under the package deal it vested in the State Government.
Respondent No. 2 has rightly cancelled the allotment of excess land to the petitioner.
The writ petition was dismissed by the learned Single Judge holding inter alia that the Chief Settlement Commis sioner (Lands) had jurisdiction to cancel the allotment even after the conferment of the proprietary right referring to the decision in the case of Smt.
Balwant Kaur vs Chief Settlement Commissioner, It was further held that the package deal came about in April 1961 whereas the offer to purchase the excess land was made in February, 1962.
i.e. at a time when the land was no longer in the Central pool but it vested in the State of Punjab.
The Chief Settlement Commissioner was justified in cancel ling the permission to purchase given by the Managing Offi cer as the land had already been transferred to the State of Punjab and the same ceased to vest in the Central Compensa tion Pool.
Aggrieved by the judgment and order dated 16th January, 1964 passed in C.W.P. No. 1804 of 1962 an appeal under clause X of the Letters Patent was preferred by the peti tioner.
This was registered as L.P.A. No. 95 of 1964.
On 14th August, 1968, the Division Bench of Punjab High Court after hearing the parties held that there was no denial by the appellant that in view of the package deal the title to the land had already passed to the Punjab Government in 1961 and no authority under the could make any order in regard to the sale of land to the appellant at concessional rate.
The title had passed to the Punjab Government in 1961 and after that it was only the Punjab Government who could deal with that land.
It was further held that there was no denial that the land in question was covered by the package deal.
The only contention made by the appellant was that an appeal was filed in the Supreme Court from the judgment in the case of Ram Chander vs State of Punjab, [1968] Current Law Jour nal (Punjab & Haryana) 668 wherein the validity of the package deal was upheld.
It was held that if the appeal succeeds in this Court then it would be up to the Chief Settlement Commissioner to review his own orders in the wake of such decision of the Supreme Court in order to give relief to the appellant.
The appeal was accordingly dis missed.
629 It is against this judgment and order this appeal by special leave has been filed.
It appears from the letters dated 3.6.1961, 5.3.1962 as well as 23.3.
1963 issued from the office of Chief Settle ment Commissioner, Government of India that all surplus lands as well as excess area in occupation of the allottees stood transferred to the Punjab Government with effect from 1.4.1961 and the Punjab Government paid the price of the lands at the rate of Rs.445 per standard acre to the Central Government by half yearly instalments in 6 instalments within a period of three years commencing from 1st April, 1961.
So these lands are package deal properties vested in the State of Punjab.
It has been rightly held in the Letters Patent Appeal confirming the order of the learned Single Judge in the writ petition that since the excess land allot ted to the appellant was package deal property the same cannot be sold nor can it be allowed to be sold to the petitioner appellant by the Managing Officer under the provisions of Displaced Persons (Compensation and Rehabili tation) Act, 1954.
So the order of the Managing Officer made in February, 1962 is wholly without jurisdiction inasmuch as the said property was no ' longer in the compensation pool of the Central Government but it was a package deal property vested in the State of Punjab.
It has also been rightly held that the Chief Settlement Commissioner is competent under Section 24 of the Displaced Persons (Compensation and Reha bilitation) Act 44 of 1954 to cancel the allotment of land in excess of the area the petitioner is entitled to get under the provisions of the said Act.
This legal position has been settled by a decision of the Punjab and Haryana High Court in the case of Ram Chander vs State of Punjab (supra) wherein it has been held: "In our opinion, the package deal has the effect of transferring the property from the Central Government to the Punjab State and the logical result which flows from it is that the Settlement Authorities as delegates of the Central Government could not pass any orders under the Act.
" It appears that the Civil Appeal No. 470 of 1969 which was filed against the judgment and order passed in LPA No. 298 of 1966 was disposed of by this Court (to which both of us were parties) on 29th July, 1986 by recording the follow ing order: "In view of the judgment in Civil Appeal Nos.
2125(N) of 1968 and 1832 of 1969, there is no reason to consider the question of law raised by the State of Haryana in this 630 appeal.
The appeal is accordingly disposed of without expressing any opinion on the merits.
" It also appears that this Court passed an order on 29th July, 1986 dismissing Civil Appeal Nos.
2125(N) of 1968 and 1832 of 1969 by recording the following order: "There is no merit in these appeals.
By the judgment, the High Court has set aside the sales and directed re auction of the proper ties.
We entirely agree with the reasoning and conclusion reached by the High Court.
The appeals are accordingly dismissed with no order as to costs.
" It is therefore clear and evident that the judgment of the Punjab High Court rendered in the case of Ram Chander vs State of Punjab & Ors.
(supra) insofar as it relates to the validity of the package deal, has been upheld by this Court.
So there is no merit in this contention made on behalf of the appellant.
It has also been held by the Full Bench of the Punjab High Court in the case of Smt.
Balwant Kaur vs Chief Settle ment Commissioner (Lands), Punjab, [1963] Punjab Law Report er (Vol. 65) 1141 at 1187 that the Chief Settlement Commis sioner was competent to cancel or set aside the order of transfer even if the sanad was granted or the sale deed had been executed and on such order being made the sanad or the sale deed will automatically fall with it.
On a conspectus of these decisions the point is now well settled that the respondent No. 2, the Chief Settlement Commissioner has duly and properly made the impugned order of cancellation of the excess allotment made to the appel lant.
It appears that the petitioner has already made an application to the Government for allotment to them of the said excess land on taking from them the appropriate price.
It has been further stated that Pala Singh had died during the pendency of this appeal and he left his widow and four sons and daughters as his legal representatives.
It is for the Government of Punjab to consider and decide whether the legal representatives of deceased appellant are entitled to pourchase the said excess land under the provisions of the Punjab Package Deal Properties (Disposal) Act, 1976 and the rules framed thereunder.
It is relevant to mention in this connection that the Gov ernment 631 of Punjab amended the rules and the said amended rules have been titled as Punjab Package Deal Properties (Disposal) Rules, 1976.
These rules lay down elaborate procedure as to how the lands in excess of the entitlement which have been cancelled may be transferred to the allottees or their successors in interest.
It also appears from Rule 4 that the allottee or his legal representatives will not be entitled to have the excess land which was cancelled on the ground of fraud, concealment or mis representation of material facts.
It is also provided in clause 8 of the said rules that the price of the land that will be transferred shall be the current market price to be determined by the Tehsildar (Sales).
For the reasons aforesaid there is no merit in the appeal and as such it is dismissed with costs, assessed at Rs. 1,000.
P.S.S. Appeal dis missed.

summary/full:
All the surplus lands in the compensation pool of the Central Government as well as the excess area in the occupa tion of allottees were transferred under a package deal to the Punjab Government with effect from April 1, 1961.
In October 1961 the Managing Officer, Rehabilitation Department detected that there was excess allotment of land to the appellant in lieu of land left by him in Pakistan.
By an order dated February 21, 1962 he allowed the petitioner to purchase the said excess area.
The petitioner deposited the required amount in the Treasury on March 6, 1962.
On reference, the Chief Settlement Commissioner held that the excess land which was found in October 1961 could not be sold by the Managing Officer under the as under the package deal this land had been transferred to the Punjab Government.
The petitioner then made an application under section 33 of the said Act to the Central Government which was dismissed.
Thereupon he moved a petition under Articles 226 and 227 of the Constitution before the High Court, and contended that he is entitled to get the same land as he had already depos ited the price in accordance with the order of the Managing Officer, and that the said purchase could not be can 625 celled on the plea that the land had already been trans ferred to the Punjab Government by the Central Government under the package deal.
The petition was opposed by the respondent, who contended that the transfer of the land in dispute to the petitioner was void ab initio as under the package deal it vested in the State Government.
The High Court held that the Chief Settlement Commissioner (Lands), had jurisdiction to cancel the allotment even after confer ment of the proprietary right, that in view of the package deal the title to the land had already passed to the Punjab Government in 1961 and no authority under the Displaced Persons Act could make any order in regard to the sale of the land to the appellant at a concessional rate, and that only the Punjab Government could deal with the said land.
Dismissing the appeal by special leave, HELD: 1.
The Chief Settlement Commissioner had duly and properly made the order.
He was competent under section 24 of the to cancel the allotment of land in excess of the area the petitioner was entitled to get under the provisions of the Act.
[630F, 629E] Smt.
Balwant Kaur vs Chief Settlement Commissioner (Lands), Punjab, [1963] Punjab Law Reporter (Vol. 65) 1141 at 1187, approved.
The excess land allotted to the appellant was package deal property vested in the State of Punjab.
As such the same could not be sold nor could it be allowed to be sold to the petitioner appellant by the Managing Officer under the provisions of the Displaced Persons Act.
The order of the Managing Officer, was, therefore, wholly without jurisdic tion inasmuch as the said property was no longer in the compensation pool of the Central Government.
[629CD] Ram Chander vs State of Punjab, [1968] Current Law Journal (Punjab & Haryana) 668 approved.
It is for the Government of Punjab to consider and decide whether the legal representatives of the deceased appellant are entitled to purchase the said excess land under the provisions of the Punjab Package Deal Properties (Disposal) Act, 1976.
The Punjab Package Deal Properties (Disposal) Rules, 1976 prescribe procedure as to how the lands in excess of the entitlement, which have been can celled, may be transferred to the allottees or their succes sors in interest.
Rule 4 lays down that the allottee or his legal representatives will not be entitled to 626 have the excess land which was cancelled on the ground of fraud, concealment or mis representation of material facts.
It is also provided in clause 8 of the said rules that the price of the land that will be transferred shall be the current market price to be determined by the Tehsildar (Sales).
[630G, 63lAB]