judgement:
tition Nos.
15863 15906 of 1984.
(Under Article 32 of the Constitution of India) D.N. Goburdhan, D. Goburdhan, Ms. Gita Luthra and Ms. Pinky Anand for the Petitioners.
G. Ramaswamy, Additional Solicitor General, Kuldeep Singh, Additional Solicitor General, C. Ramesh and Mrs. Sushma Suri for the Respondents.
G The Judgment of the Court was delivered by RANGANATH MISRA, J.
The petitioner in each of these applications under Article 32 of the Constitution is a workman engaged on terms of casual labour for periods varying between 10 140 and 16 years in the Construction Department of the Signal Unit in the Northern Railway.
All the writ petitions having disposed of by a common judgment as questions of law and fact involved therein are similar.
The petitioners alleged that notwithstanding the fact that each of them has put in continuous service for quite a long period, the Railway Administration, respondent herein, has not treated them as temporary servants and has applied discriminatory rates of wages.
They have asked for a direction to treat the petitioners at par with maintenance workers and to declare that they are entitled to equal pay for equal work and have asked for their absorption in the regular cadre in the permanent category as per the circulars issued by the respondents.
A number of documents and circulars issued by the Administration have been produced in support of their claim.
The Senior Signal & Telecom Engineer (Power Signalling) has filed a counter affidavit on behalf of the respondents challenging the claim of the petitioners.
According to the respondents five out of the forty four petitioners in this group of writ petitions had undergone medical examination and were granted temporary status as Khallasis.
One of them has been directed to be absorbed against a permanent vacancy in the open line; five others have refused to go to the open line for permanent absorption.
He further averred that though prior to the issue of the Railway Board 's directions on January 1, 1984, project casual labourers were not entitled to all the privileges like House Rent Allowance, City Compensatory Allowance, Casual Leave, increment etc., they are now entitled to all the privileges as applicable to open line temporary railway servants after attaining temporary status.
In Paragraph 23 of the counter affidavit, it has been specifically pleaded that as per the extant rules, temporary status will first be given in the cadre of Khallasi and then promotion to skilled category after conducting the trade test is admissible.
A further detailed counter affidavit has again been filed by another Senior Signal & Telecom Engineer, wherein along with the affidavit particulars of service of each of the petitioners has been provided.
Petitioners have filed a Rejoinder.
At the hearing of the applications, counsel for the petitioners as also the learned Additionaly Solicitor General were given full opportunity of placing their arguments and documents.
In addition, they have also furnished written submissions.
141 It is stated on behalf of the Administration that out of fortyfour petitioners sixteen have now been empanelled and of them five have been given temporary appointments; eleven are said to have refused to join and seventeen are still continuing with temporary status.
Learned Additional Solicitor General states that petitioners are project employees and do not belong to the open line.
According to him employees in the open line acquire temporary status on completion of 120 days of service as against 180 days which was the previous requirement.
That status is acquired on completion of 360 days by casual labour in Project Works as provided in the scheme formulated under orders of this Court, though such status were acquirable by project casual labourers on completion of 180 days of continuous employment previously.
Learned counsel for the respondents has placed reliance on the definition of 'Project ' which means: "a project should be taken as construction of new lines, major projects, restoration of dismantled lines and major important open line works, line doubling, widening of tunnels etc.
which are completed within a definite time limit".
Admittedly the petitioners have put in more than 360 days of service.
Though counsel for the petitioners had pointed out that the Administration was requiring continuous service for purpose of eligibility, learned Additional Solicitor General on instructions obtained from the Railway officers present in Court during arguments has clarified that continuity is not insisted upon and though there is break in such continuity the previous service is also taken into account.
Learned Additional Solicitor General has made a categorical statement before us that once temporary status is acquired, casual employees of both categories stand at par.
Keeping the prevailing practice in the Railways in view, it is difficult for us to obliterate the distinction between the two categories of employees till temporary status is acquired.
With the acquisition of temporary status the casual labourers are entitled to: (1) Termination of service and period of notice (subject to the provisions of the ).
(2) Scales of pay.
(3) Compensatory and local allowances.
142 (4) Medical attendance (5) Leave rules.
(6) Provident Fund and terminal gratuity.
(7) Allotment of railway accommodation and recovery of rent.
(8) Railway passes.
(9) Advances.
(10) Any other benefit specifically authorised by the Ministry of Railways.
It is not disputed that the benefit of Discipline and Appeal Rules is also applicable to casual labour with temporary status.
It is also conceded that on eventual absorption in regular employment half the service rendered with temporary status is counted as qualifying service for pensionary benefits.
In the Signal and Telecom Construction organisation under which the petitioners are working, according to the Railway Administration further privileges of being regularised in permanent service is affirded by giving them access to their regularisation against permanent vacancies which mostly occur in open line.
For such purpose, casual labour in open line as well as willing project casual labour are combined for the purpose of screening and forming of panel on the basis of seniority depending upon the days of work put in.
In view of the submission, learned counsel for the respondents has pleaded that the allegation of discrimination does not exist.
Disputes arising out of termination of employment and inter se seniority came before this Court in the Writ Petition No. 147 of 1983 (Inderpal Yadav & Ors vs Union of India.
This Court changed the existing prevalent practice for reckoning seniority and directed that seniority of project casual labourers should be combined and prepared departmentwise and categorywise and in terms of the directions of this Court, steps have been taken.
It has been further contended that by the time these writ petitions were filed, the Railway, Board 's order of 1st of June, 1984, had not been given but with those directions now holding the field, the ambit of grievances has been very much reduced.
Learned Additional Solicitor General has gone 143 to the extent of even saying that nothing survives in the writ petitions.
What exactly are the benefits admissible to temporary railway servants have, however, been seriously debated.
Paragraph 2511 of the Indian Railway Establishment Manual provides: (a) "Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual.
The rights and privileges admissible to such labour also include the benefits of the Discipline and Appeal Rules.
Their service, prior to the date of completion of six months ' continuous service will not, however, court for any purposes like reckoning of retirement benefits, seniority etc.
Such casual labourers will, also, be allowed to carry forward the leave at their credit to the new post on absorption in regulation service.
(b) Such casual labour who acquire temporary status, will not, however, be brought on to the permanent establishment unless they are selected through regular Selection Boards for Class IV staff.
They will have a prior claim over others to permanent recruitment and they will be considered for regular employment without having to go through employment exchanges.
Such of them who join as casual labourers before attaining the age of 25 years may be allowed relaxation of the maximum age limit prescribed for Class IV posts to the extent of their total service which may be either continuous or in broken periods.
(c) It is not necessary to create temporary posts to accommodate casual labourers who acquire temporary status for the conferment of attendant benefits like regular scales of pay, increments etc.
Service prior to the absorption against a regular temporary/permanent post after requisite selection will, however not constitute as qualifying service for pensionary benefits.
" 144 It is the stand of the learned Additional Solicitor General that no pensionary benefits are admissible even to temporary railway servants and, therefore, that retiral advantage is not available to casual labour acquiring temporary status.
We have been shown the different provisions in the Railway Establishment Manual as also the different orders and directions issued by the Administration.
We agree with the learned Additional Solicitor General that retiral benefit of pension is not admissible to either category of employees.
As already stated, sixteen out of the forty four petitioners have already been empanelled and eleven seem to have joined, while seventeen are continuing on temporary status.
We expect the Railway Administration to take prompt steps to screen such of the petitioners who have not yet been tested for the purpose of regularising their service.
Learned Additional Solicitor General specifically accepted the position that the petitioners should be entitled to the same pay as is 1) admissible to others either in the project or in the open line.
That would take away inequality which is main grievance of the petitioners.
The respondents shall have a direction to consider the claims of each of the petitioners promptly and make appropriate orders for their regularisation.
For over ten years, litigations of this type have been coming to the Court.
About three years back, this Court directed a scheme for absorption in Yadav 's case which has been framed and is operative.
Casual labour seems to be the requirement of the Railway Administration and cannot be avoided.
The Railway Establishment Manual has made provisions for their protection but implementation is not P effective.
Several instructions issued by the Railway Board and the Northern Railway Headquarters were placed before us to show that the Administration is anxious to take appropriate steps to remove the difficulties faced by the casual labour but there is perhaps slackness in enforcing them.
We hope and trust that such an unfortunate situation will not arise again and in the event any such allegation coming to the Court, obviously the Administration will have to be blamed.
The writ petitions are disposed of with the directions indicated above without any order for costs.
N.P.V. Petitions disposed of.

summary/full:
% The petitioners, who were engaged on terms of casual labour for periods varying between 10 and 16 years in the Construction Department of the Signal Unit in the Northern Railway, filed writ petitions in this Court alleging that though they had put in continuous service for quite a long period, the Railway Administration the respondent, had not treated them as temporary servants and had applied discriminatory rates of wages, and prayed for a direction to treat them at par with maintenance workers, and to declare that they were entitled to equal pay for equal work and absorption in the regular cadre in The permanent category as per the circulars issued by the respondents.
The respondents in their counter affidavits contested the claim of the petitioners contending that out of the forty four petitioners, sixteen bad been empanelled, five of whom had been given temporary appointments, eleven had refused to join and seventeen had been given temporary status, and that by the Railway Board 's directions on January 1, 1984, project casual labourers were now entitled to all privileges that were applicable to open line temporary railway servants, that temporary status will first be given in the cadre of Khallasis and then promotion to skilled category, after conducting trade test, and that the employees in the open line acquired temporary status on completion of 120 days of service whereas such status was acquired by the casual labour in project work on completion of 360 days as formulated under orders of this Court.
Disposing of the writ petitions, ^ HELD: Casual labour seems to be the requirement of the Railway 139 administration and cannot be avoided.
The Railway Establishment A Manual has made provisions for their protection, but implementation is not effected.
Several instructions were issued by the Railway Board and the Northern Railway Headquarters to remove the difficulties faced by the casual labour but there is slackness in enforcing them.
This Court hopes and trusts that such an unfortunate situation will not arise again and in the event of any such allegation coming to the Court, the Administration will have to be blamed.
[144F G] No doubt, the petitioners have put in more than 360 days of service.
But keeping the prevailing practice, distinction between the casual labour employed in the open line, and in the project line cannot be obliterated.
[141D F] The Railway Administration should take prompt steps to screen such of the petitioners who have not yet been tested for the purpose of regularising their services.
[144C] The respondents are directed to consider the claims of the petitioners promptly and make appropriate orders for their regularisation.
[144D E] The petitioners are entitled to the same pay as is admissible to others, either in the project or in the open line.
Retiral benefit of pension is not admissible.[144D,B]


judgement:
Civil Appeal Nos.
960 to 962 (NT) of 1975.
From the Judgment and order dated 2.3.1973 of the Allahabad High Court in Income Tax Reference No. 721 of 1970.
S.L. Aneja, Pawan Aneja and K.L. Tarieja for the Appellants.
C.M. Lodha, Ms. A. Subhashini and K.C. Dua for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These assessee 's appeals, by certificate, arise out of the Judgment and order dated 2.3.1973 of the Allahabad High Court in I.T.R. No. 721 of 1970 answering certain questions of law referred for the opinion of the High Court against the assessee.
The assessee is a Hindu Undivided Family.
The assessment years are 1954 55, 1960 61 and 1961 62.
The principal controversy in these appeals pertains to the allowance of and deduction for 'repairs ' in respect of a house property at Delhi leased out to the Chinese Embassy under a deed of lease dated 30.5.1952.
Originally assessments were completed including therein the annual letting value of this property at Rs.36,000 and allowing a deduction of Rs.6,000 for repairs under Section 24(1)(i)(a) of the Income tax Act, 1961 (Act) or the corresponding provisions of the Act of 1922.
Subsequently, the assessments were reopened on the ground that the assessee had got excess of relief.
In the re assessments the Income tax officer held that as the lessee had undertaken 'to keep 90 the premises in good and habitable condition, execute all repairs ', the deduction of Rs.6,000 was impermissible.
The Income tax officer accordingly determined the annual letting value of the property at Rs.40,000 and allowed a deduction at Rs.4,000 towards 'repairs ' under Section 24(1)(i)(b) of the Act.
In respect of the assessment year 1954 55, the assessee claimed unsuccessfully that he had undertaken ' considerable repairs and that a sum of Rs.5,645 should be allowed.
This claim was negatived by the Income tax officer who confined the allowance for repairs to the limit permissible under Section 24(1)(i)(b) of the Act on the premise that this was a case where the tenant had undertaken to bear the cost of repairs.
This view was affirmed by the Appellate Asst.
Commissioner of Income Tax and the Income tax Appellate Tribunal ( 'Tribunal ').
It is, perhaps, relevant to mention that some of the assessment years are governed by the provisions of the 1922 Act.
But, having regard to the similarity of the provisions, this does not assume any significance or affect the substance of the matter.
At the instance of the assessee, the Tribunal stated a case and referred the following three questions of law for the opinion of the High Court: (1) "Whether on the facts and in the circumstances of the case, the assessments for the years 1954 55, 1960 61 and 1961 62 were validly reopened under Section 147(a) of the Income Tax Act, 1961?" (2) "Whether on the facts and in the circumstances of the case, the provisions of Section 24(1)(i)(b) of the Income tax Act, 1961, were applicable?" (3) "Whether on the facts and in the circumstances of the case, the expenditure which was not allowed while completing the original assessments could be considered for allowance in course of assessments re opened under Section 147(a)?" As stated earlier, the High Court answered the questions against the assessee, but granted a certificate under Section 261 of the Act as in its opinion two important questions arose out of the judgment.
The questions the High Court had in mind are questions No. 2 and 3, supra.
It must, at the outset, be observed that the question as to the validity of the re opening of the assessments which was raised before the High Court was not, in our opinion rightly, re agitated here Learned counsel for the appellants urged that the High Court was in error in its opinion on questions 2 and 3.
The third question referred was whether where once an assessment is re opened by a valid notice, the whole proceedings of assessment were at large and all the claims and allowances which had been disallowed in the original assessment could be re agitated by the assessee.
The High Court has answered this proposition against the assessee.
We may take up and dispose of this contention first.
It is seen from the order of the Tribunal that though certain reliefs were claimed by the assessee before the authorities, the matter before the Tribunal was, however, confined to the question of allowance for repairs.
The relief on the claim for repairs, if otherwise tenable, can be granted even without going into this larger question.
It is, therefore, unnecessary to consider this contention in this case.
We may now turn to question No. 2 as formulated in the reference.
Learned counsel urged that the covenant for repairs embodied in the lease deed did not cast the burden to carry out the repairs exclusively on the lessee and that since the lessor had also undertaken to carry out some of the repairs, Section 24(1)(i)(b) was not attracted and that in the circumstances the benefit of Section 24(1)(i)(a) was available to the assessee.
Counsel relied upon Commissioner of Income tax vs Parbutty Churn Law, 6.
Section 24(1)(i)(b) of the Act provides that where a property is in the occupation of a tenant "who has undertaken to bear the cost of repairs", the deduction towards repairs which the assessee owner is entitled to is either the excess of the annual value over the amount of rent payable for a year by the tenant; or a sum equal to one sixth of the annual value whichever is lesser.
There is no dispute that if Section 24(1)(i)(b) is applicable the computation would be correct.
The only question, therefore, is whether, having regard to the terms of the covenant, it could be said that the tenant had undertaken to bear the cost of repairs within the meaning and for purposes of Section 24(1)(i)(b) of the Act.
The covenant in this behalf in the lease deed dated 9.9.1952 is in terms following: "To maintain and keep the demised premises in good and 92 habitable condition, tenantable, repair execute all repairs including annual white washing, repairs of electric and sanitary fittings etc., at the lessee 's expenses.
Major repairs such as repairs against collapse of the house etc., shall be undertaken by the lessors at their own cost.
" The view of the High Court, in substance, is that this covenant satisfies the requirements of and attracts Section 24(1)(i)(b) .
The correctness of this view turns upon what in the law of landlord and tenant is, the content of a covenant for 'repairs ' and whether by the terms of the present agreement, the tenant is said to have undertaken the burden of such 'repairs '.
Referring to what is implicit in and carried with the covenant for "repairs", Halsbury states: "Under a covenant to repair, a tenant is liable to repair but not to renew. 'Repair ' in this sense means the restoration by renewal or replacement of subsidiary parts of the whole, whereas 'renewal ' as distinguished from repair, means the re construction of the whole or of substantially the whole.
Where the demised building is erected on in herently defective foundations, the tenant is not liable to substitute new foundations . " (See Halsbury 's Laws of England 14th Edn.
paragraph 285) In regard to the Standard of Repairs, Halsbury, at paragraph 286, states: "If he has expressly covenanted to put a house into tenantable repair and to keep it in such repair, and it is not in tenantable repair at the commencement of the tenancy, the tenant must do the necessary repairs, not with standing that the building is thereby put in a better condition than when the landlord let it.
The effect is the same if, without expressly covenanting to put it into repair, the tenant only covenants to keep the house in tenantable repair.
Such a covenant presupposes putting the house in such repair, and keeping it in repair during the term.
The construction of the covenant is the same whether the covenant specifies 'tenantable ' or 'habitable ' or 'good ' repair.
A general covenant to repair without any such words is satisfied if the premises are kept in a substantial state of repair.
(emphasis supplied) 93 7.
The oft quoted observations in Lurcott vs Wakely and Wheeler, as to what is meant by 'repairs ' are generally considered apposite.
This has been referred to and relied upon by the High Court.
The observations in Lurcott 's case was referred to with approval by the Privy Council in Rodesia Railway Ltd. vs Income tax Collector, [1933] Appeal cases 368.
The idea of 'repair ' may include replacement or even a renewal.
But the converse may not be true.
All replacements or renewals need not necessarily be 'repairs '.
In the case of a building, restoration of stability or safety of a subordinate or subsidiary part of it or any portion of it can be considered as repair while the re construction of the entirety of the subject matter may not be so regarded.
The somewhat comprehensive import of the word 'repair ' in this context is evident from the reliance by Forbes J. in Ravenseft Properties Ltd. vs Davstone (Holdings) Ltd., [1980] Q.B. 12 on the following observations of Sir Herbert Cozens Herdy MR in Lurcott 's case (supra): "It seems to me that we should be narrowing in a most dangerous way the limit and extent of these covenants if we did not hold that the defendants were liable under covenants framed as these are to make good the cost of repairing this wall in the only sense in which it can be repaired, namely, by re building it according to the requirements of the county council." Having regard to somewhat comprehensive nature of the obligations that go with and are attached to and recognised under the tenant 's covenants for 'repairs ', it must be held that the covenant in the present case is one under which the tenant has undertaken 'substantial repairs ' and it must, accordingly, be held to fall within Section 24(1)(i)(b) of the Act and that the allowance for repairs must be one under, and limited to, that provision.
The case of the assessee that it should fall under Section 24(1)(i)(a), we are afraid, is very nearly unarguable.
There is no substance in the contention.
This is clearly not a case where the burden of carrying out repairs as understood in the context of Section 24(1)(i)(b) is shared between the lessor and the lessee.
The obligation is on the lessee alone.
The obligation under the latter part of the covenant does not relate to such repairs.
The appellant 's reliance on Commissioner of Income tax vs Parbutty Churn Law, supra is in the facts of the present case misplaced.
In the result, for the foregoing reasons these appeals fail and are dismissed, but in the circumstances, without an order as to costs.
N.P.V. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
% The appellants, a Hindu undivided family, leased out a house owned by them.
The covenant in the lease deed stated that the tenant will maintain and keep the demised premises in good and habitable condition, tenantable, repair, execute all repairs including annual white washing, repairs of electric and sanitary fittings etc.
at the lessee 's expenses, and that the lessors shall undertake at their own cost major repairs such as repairs against collapse of the house.
Originally in the assessments for the years 1954 55, 1960 61 and 1961 62, the annual letting value of the property was arrived at RS.36,000 and a deduction of Rs.6,000 was allowed for repairs under section 24(1)(i)(a) of the Income Tax, Act, 1961.
Subsequently, the assessments were re opened on the ground that the assessee had got excess relief.
In the re assessments, the Income Tax officer held that as the lessee had undertaken to keep the premises in good and habitable condition, execute all repairs, the deduction of Rs.6,000 was impermissible.
He accordingly determined the annual letting value of the property at Rs.40,000 and allowed a deduction of Rs.4,000 towards repairs under s.24(1)(i)(a) of the Act.
In the reopened assessment for the year 1954 55, the assessee 's claim for deduction of Rs.5,645 being the cost of the repairs undertaken by them was disallowed on the ground that this was a case where the tenant had undertaken to bear the cost of the repairs and, therefore, the allowance for repairs was limited to the limit permissible under section 24(1)(i)(b).
The Appellate Assistant Commissioner and the Income Tax Appellate Tribunal affirmed the above view.
88 At the instance of the assessee, the Tribunal stated a case and referred it to the High Court which though answered against the assessee, granted a certificate under section 261 of the Act, regarding the applicability of section 24(1)(i)(b) and reconsideration of deduction of the expenditure which was not allowed in the original assessment in the course of reopened assessments.
In the appeal by special leave, it was urged that the covenant for repairs embodied in lease deed did not cast the burden to carry out the repairs exclusively on the lessee and that since the lessor had also undertaken to carry out some of the repairs, section 24(1)(i)(b) was not attracted and the benefit of section 24(1)(i)(a) was therefore available.
On the question whether, having regard to the terms of the covenant, it could be said that the tenant had undertaken to bear the cost of repairs within the meaning, and for purposes, of section 24(1)(i)(b) of the Act.
Dismissing the appeals, ^ HELD: 1.1 This is clearly not a case where the burden of carrying out repairs as understood in the context of section 24(1)(i)(b) of the Income Tax Act, 1961 is shared between the lessor and the lessee.
The obligation is on the lessee alone.
The obligation under the latter part of the covenant does not relate to such repairs.
[93G H] 1.2 The idea of 'repair ' may include replacement or even a renewal.
But the converse may not be true.
All replacements or renewals need not necessarily be 'repairs '.
In the case of a building, restoration of stability of safety of a subordinate or subsidiary part of it or any portion of it can be considered as repair while the reconstruction of the entirety of the subject matter may not be so regarded.
[93B C] A general covenant to repair without any such words as tenantable or habitable or good repair is satisfied if the premises are kept in a substantial state of repair.
[92H] Having regard to somewhat comprehensive nature of the obligations that go with and are attachment to and recognised under the tenant 's covenants for 'repairs ', it must be held that the covenant in the present case is one under which the tenant has undertaken 'substantial repairs ' and it must, accordingly, be held to fall within clause 89 (b) of section 24(1)(i) of the Act and not under clause (a) of the section and that the allowance for repairs must be one under, and limited to that provision.
[93F] Commissioner of Income tax vs Parbutty Churn Law, ; Lurcoff vs Wakely and Wheeler, [1911] I K.B. 905; Rodesia Railway Ltd. vs Income tax Collector, [1933] Appeal Cases 368; Ravenseft Properties Ltd. vs Davstone (Holdings) Ltd., [1980] Q.B. 12 and Halsbury 's Laws of England, 4th Edn., paragraph 286, referred to


judgement:
Civil Appeal No. 2 of 1982.
From the Judgment and order dated 16.
10.1981 of the Kerala High Court in C. R. P. No. 1927 of 1987.
N. Sudhakaran for the Appellants.
E.M.S. Anam for the Respondents.
83 The Judgment of the Court was delivered by A SABYASACHI MUKHARJI, J.
This appeal by special leave is directed against the order of the High Court of Kerala at Ernakulam dated the 16th October 1981 in Civil Revision Petition No. 1927 of 1981.
The appellants are the heirs of the original tenant.
The original appellant died and his heirs have been substituted in his place.
The landlord being the respondent herein wanted the premises in question for his own use and occupation.
He accordingly applied to the Rent Controller for permission.
The Rent Controller after hearing the parties granted such permission The Appellate Authority upholding the order of the Rent Controller, maintained the order of eviction.
There was a revision before the learned District Judge.
The learned District Judge dismissed the revision petition holding that it was difficult to interfere with the concurrent findings of facts of the Courts below on the bona fide need of the landlord for his own use and occupation.
The tenant came up before the High Court in second revision and the High Court after hearing the parties and considering the contentions urged before it, dismissed the revision upholding the order of Rent Controller, the Appellate Authority and the District Court under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 that the landlord required the premises for his bona fide need and for self occupation.
The only contention that was urged in the matter was that the landlord was not entitled to eviction under sub section (3) of Section 11.
Sub section (3) of Section l l provides as under: "A landlord may apply to the Rent Control Court for an order directing the tenant to put in possession of the building if he bona fide needs the building for his own occupation or for the occupation be any member of his family dependent on him.
" The contention urged before the Courts below including the High Court was that the second proviso to Sub section (3) of Section 11 had not been fulfilled and the second proviso provides as under: "That the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the 84 income derived from any trade or business carried on in A such building and there is no other suitable building available in the locality for such person to carry on such trade or business.
" All the Courts have found against the tenant 's contention on this aspect of the matter.
As this is a question of fact, the High Court in our opinion has rightly declined to interfere with that findings of fact.
Before we proceed further it was pointed out by the counsel for the respondents that in view of the provisions of the said Act and in view of the decision of this Court in the case of Aundal Ammal vs Sadasivan Pillai, ; the second revision before the High Court in the facts and circumstances of this case did not lie.
For the purpose of this appeal, we are not proceeding with on that basis but have examined the facts found by the courts below to find out if there is any infirmity in their findings as mentioned hereinbefore.
It is found as a fact that the landlord bona fide needed the premises in question for his own use and occupation.
Therefore, Section 11(3) has been complied with.
The only contention raised was whether on the second proviso to Section 11(3) of the Act the landlord was not entitled to eviction.
That was rejected by the High Court on the ground that this was a question of fact and all the Courts have found in favour of the landlord.
We agree with this.
Even if a second revision lay the scope of interference by the High Court in the second revision is very limited.
This has been so held by this Court in M/s Sri Raja Lakshmi Dyeing Works and others, vs Rangaswamy Chettiar, A.I.R. 1980 S.C. 1253.
We adhere to this principle.
It was urged before us that the building in question was used for non residential purpose by the tenant and the bona fide need of the landlord was said to be for the use and occupation of the landlord and his family which is a residential purpose.
It was submitted that such a need cannot justify in this case the eviction of the tenant.
It was also submitted that Section 17 of the Act prohibited such conversion.
Sub section (1) of Section 17 which is relevant for the present purpose provides as follows: "Section 17.
Conversion of buildings and failure by land 85 lord to make necessary repairs: (1) No residential buildings shall be converted into a nonresidential building or vice versa and no such building shall be divided into separate portions for letting on rent or for other purposes except with the permission in writing of the Accommodation Controller: Provided that where such conversion involves structural alteration of the building, the consent of the landlord shall also be necessary.
" It appears clear that this conversion as contemplated for which permission was required is conversion by the tenant and cannot be a conversion by the landlord.
Quite apart from the fact that in this case there was no conversion of the building sought.
The building was used for non residential purpose and the purpose for which the building was sought was for residential purpose.
It appears to us that putting to a different purpose the user of the building is not a conversion of the building as such.
It has been found that the building as it is without any structural change can be put to residential purpose.
There was no conversion of the building as such is involved in this case but a change of user of the building.
Furthermore, in any event the proviso to Section ( I) makes it clear, in our opinion, that such conversion as contemplated by Section 17 of the Act for which permission in writing by the Accommodation Controller required is in case of change of the user of the premises by the tenant and not by the landlord.
The use of the expression "such conversion" in the proviso indicates that in case of conversion by the tenant permission is required on the consent of the landlord.
Therefore the absence of permission in writing of the Accommodation Controller in this case does in our opinion affect the position.
This appears to be the view of the Kerala High Court on this aspect of the matter.
See in this connection Muhammed vs Abdul Rahiman, and Das Naik vs Narayanan, This appears to be the correct view of law.
Our attention was also not drawn to any decision of the Kerala High Court which has taken any contrary view.
The view held by the Kerala High Court in this aspect has been relied by the High Court in the judgment under appeal.
It seems to be logical view.
We would therefore follow that view.
In view of the proviso explaining the ambit of that requirement that permission sought for or mentioned in Section 17(1) is in respect of the different user by the tenant and not by the landlord.
The High Court has also observed in term 86 "convert" does not denote a mere change in the mode of occupation, but covers only alterations of the physical features, the prescriptions of Section 17 are not attracted to the present case at all.
Admittedly the building in question has rooms which can be used as bed rooms, sitting room etc.
and it has a kitchen and dining hall.
No alteration or conversion is required if the building is to be used for residential purposes.
In the aforesaid view of the matter there was hardly any scope for interference by the District Judge and he declined to do so on this basis.
In our opinion he was right.
Similar was the position of the High Court on these facts and it declined to interfere with the findings of fact.
In the aforesaid view there is no merit in this appeal.
The appeal fails and is dismissed accordingly.
Parties will pay and bear their own costs.
Since the tenants have been in possession of the premises for some time we direct that the decree for eviction shall not be executed till 30.9.1988 provided all the heirs of deceased appellant file an usual undertaking in this Court within four weeks from today stating inter alia.
as follows; 1.
That the appellant will hand over vacant and peaceful possession of the suit premises to the respondent on or before 30.9.1988 from today.
That the appellants will pay to the respondent arrears of rent, if any, within one month from today.
That the appellants will pay to the respondent future compensation for use and occupation of the suit premises month by month before 10th of every month.
That the appellants will not induct any other person in the suit premises.
It is further directed that in default of compliance with any one or more of these conditions or if the undertaking is not filed as required within the stipulated time, the decree shall become executable forthwith.
P.S.S. Appeal dismissed .

summary/full:
% Sub section (3) of section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 permits eviction of a tenant where the landlord bona fide needs the building for his own occupation.
The second proviso thereto excepts the tenant depending for his livelihood mainly on business carried on in such building.
Sub section
(1) of section 17 interdicts conversion of a residential building into a non residential one or vice versa and division of such building into separate portions except with the permission of the Accommodation Controller.
The proviso thereto makes the consent of the landlord necessary where such conversion involves structural alteration of the building.
The premises in question was being used by the tenant for nonresidential purpose.
The respondent landlord required it bona fide for his self occupation.
The Rent Controller granted permission under section 11(3) for eviction of the tenant.
The Appellate Authority and the District Judge in revision did not interfere with the concurrent findings of facts on the bonafide need of the landlord.
In second revision the contention that since the requirements of the second proviso to section 11(3) had not been fulfilled, the landlord was not entitled to eviction was rejected by the High Court on the ground that this was a question of fact and ail the courts had found in favour of the landlord.
In the appeal by special leave, it was contended for the appellant that since the building in question was used for non residential purpose by the tenant and the landlord required the same for a residential purpose, such a need could not justify tenant 's eviction by virtue of section 17 of the Act which prohibited such conversion.
82 Dismissing the appeal, ^ HELD: l.
The landlord is entitled to eviction.
It is found as a fact that he bona fide needed the premises in question for his own use and occupation.
Therefore, section 11(3) has been complied with.
[84D E] The prescriptions of section 17 are not attracted to the instant case.
The conversion as contemplated by section 17(1) for which permission was required is conversion by the tenant and cannot be a conversion by the landlord.
The use of expression "such conversion" in the proviso to section 17(t) indicates that in case of conversion by the tenant permission is required on the consent of the landlord.
Further more, the term "convert" therein does not denote a mere change in the mode of occupation but covers only alterations of the physical features.
Putting to a different purpose the user of the building is not a conversion of the building as such.
The building was used for non residential purposes and the purpose for which it was sought was for residential purpose.
It has been found that the building has rooms which can be used as bed rooms, sitting rooms etc.
and it has a kitchen and dining hall.
No alteration or conversion is required if the building is to be used for residential purpose.
There was, therefore, no conversion of the building as such involved in the instant case, but a change of user of the building.
[86A; 85C F, 86B] Muhammed vs Abdul Rahiman, and Das Naik vs Narayanan, , approved.
[Since the appellants tenants have been in possession of the premises for sometime, it was directed that the decree for eviction shall not be executed till 30.9.1988 provided they pay arrears of rent, if any, within one month, and undertake to hand over vacant and peaceful possession, to pay future compensation month by month before 10th of every month and not to induct any other person.[86D G]