A 634

COMMISSIONER OF WEALTH TAX, BIHAR, PATNA.

-..

MAHARAJA KUMAR KAMAL SINGH .

February 20, 1984

c [ V.D. TULZAPURKAR, R.S. PATHAK an dSAnYA~ACHI Muu1ARJI, JJ.] ..,,.. ' . -· .

 Wea/ih Tax Act, 1957, s.2'..m}-Net wclth~Ho~ to co1npute net wealth , for wedlth tax assessnient-First estimate value of a;!J':sets as per s.7(1) and then deduct the debts owed by i1ssessee except debts':excluded by s.2(in).-Any factdi' dtt:act1n1 fro1n Value of aSSet which a willing purchaser , would pay for. buying that assci i11 D ope, JJmarket 1n11st be. taken into acconnt. POssibility of deducti'or/ofduesofassessqe 'for agricu!iura/inco111etax froinan1ount of con1pensation rmcfer s.4(c)ofBihar Land.

RejOnns Act, 1950 1"s Q factor to be taken b1to consideration in esti"1ati11g the. value of te righi to .CQlnpensalion which it would/etch if Juld in opeh litarket. ·

, .

, Bi'har Land tforms Act, 1950--s. 4 (c) -interpretation of. ... ,

While computing the net wealth of the respondent-""assessce for purposes -of \11ealth tax assessfl}eht unde'r the Wealth Tax Act, 1957, the wealth tax officer ,. incllided certain atnOunt as the valuC of theasscssee's right to compensation which

had accrued to hi1n on vesting of his estate in the Stci.te f Bhar under the Bihai Land Reforms Act, 1950 on the bais of market vaJUe on the vaiuatio~1 date. ~is , was contested by .. tl)-e assessee on the grouncj.'that after adjµsting his outstandingag, ricultural jncon1e tax liability the compensation .Payable t6 him was nil.

Th~ . assessee also produCed Collector's letter to show that the amount of con1pensation

receivable by th~ assessee would be r{jJ. The Appeallate Assistant Con1missioner .agreed ·ith the yiew of the Wealth Tax Officer. In appeal-before the Tribunal the

asSe$see contended that the unpaid agricultural income-tax as a debt was deductible

while CotnPuting his net wealth. The Jribnal accepting the Revenue's contention held that the an1ouiits claimed by .the aSsessee were not deductible as a debt-under s.2(n1) as .the arrears of agricultural incoIDe-tax Were outstanding for inore than . - _. " . ' twelve -n1onths. On a reference being made, a Full Bench of the High. Court \vas of the, opinion that the market value of the right of ihc assessee to receive ad-interim. compen.sation. shotild be deterritlned in view of the provisions of s.4(c) of the Bihar . Land Reforms Act, 1950 and held that in the facts and circumstances of the cae as

nothing was receivable by the 'sSessee fro1n the State of .Bihar in vie'Y .of the arrear$ of agicultral, inco1!1e-tax, the value of e asset to the assessoe was nil,

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635. ' Hence this: 'appeal.

Disn1issing the appeal,

' frEL'ri: For con1pu.ti"ng net wealth Under' s.2(m) of the Wealth Tax Act, 1957 ·

tcre are two different steps. Th'e fi1st and essential step would be to estimate. the value of the assets iil accordance v;:ith the provisions of the Act arid the second step

.· B \vould be-to deilct thcrefro~ the debts O\Ved by the assesSee -eXcept the debts excluded by thatse, ction. Forestimating the value of the a"sscts the material prov:isio1{ would be s.7(1) oft.he Act \vhich 'enjoins the Wealth Tax Officer to estimate the price \vhich, in !tis. opinion, an ai;;.5c( ot11cr than ca.sh \Vouk\.fetch if sold in the open rharkct on the valuation 'ctate. The Wealth Tax Officer n1ust

1 take into aCcoullt any factor 'which detrcts fron1 the valuC o(an asset which a willing purchasef v:rould ·

pay for buY.ing that asset in, ppen market.

[~43 ~-C] ·

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Section 4 of the Bihar land Reforins Act, 1950 deals with the cons_equences of the vesting of.a)i" estate or tCiiurc in-.the State and stipulates' different coneQue1lces.

Clause .(c) of s.4 provideS_ tht the arrea.rS of rve~e arid cesses rcn1aining lawfully due in reSpect of the estate.or tenure shall continue-to be recoverable it). .spite of'the vesting Of the estate and sh.ill without prejudiCe to any o.the'r mode of .recovery, be rocoverabie,' when so ordered by the Collector, by th6 deduction thereof from the

amout paYable. [~;1-3 -Gli] ' - •

I11 the instant caSc; the possibility of deduction of the dues -of the nsscsSefor ai?; ricultural 'incon1e tax undr s.4(c) of the Bihai:· Lilnd Reforms Act from the con1peo.Sation n1oney .is a factor tha_._t affects price or v.ilue of the co1npensatioi1 money' . receivable by ihe asseSsee under t~16 Bihar Land Reforms Act and until it has Peen

finally determined that no.- arrears of agriculturl inco1}1c tax }s payable at all, will remain a hindrance and the value of which rriust"be' quantified and deducted before

a P. oper csti,~C1.tc of the.value of_ the asset mone'y reCeiv!:J.blc bY the asess.ee-is prepa~ "._

red. _Exce'PtJn cases whee the 9uestion of arrears_?[ ag1icu1tural incon:ie tax is sttie~," this is a factor which goes to the dimination of the value of the asset. To._what extent ttiRt wbuld affect the Value of the _aSsct js a 1nattet of quantification.. The c-Ourt is not cOncerned wfrh the questiorl of_ actual quantificati_o~ .. , The 4

Court, is concerned with the question whether thai .f3.ctor , is a. matter which _has tope tak, en iii.fir, consideration in e<>timating the value of the asset i_n question.·

The court is of the opin_ion that i.t is a facto/ certainly to 'be talcn into cOside.ration in estimating wht. it w6u1d fetch in the <'ipen n1rke.t" (644 H; "645 AMC],

,- i .,

' The-coiitention that a debt \Vhkh _ls not deductible ·:becaus~ of _, povisions. 0 (.

~.2(m) should not 6e t'aen into considration in estimating the value of au asset

is not acceptable in the facts and circnn1stances of this se. (645 F] 1. , ' \

CtVIL APPEL~AT~}URismcT; ON : Civil Appeal_ Nos. 1238 to 1240

 H', 'of 1973. ·

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. From th~_Judgment and Order dated the 17th s"eptember, 1971 of the Patna High Court in T; ix Cases Nos, 2of1965 and 19 and 20

of 1966.

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, B.JJ. Ahuja & Ms. A,. Subhashini, for the Appellant.

l>r.Y.S. Chita/e, and U.P. Singh, for Re•pondent .

. The Judgment of the Court was delivered by

•J .

SABYASAcHI MuKHARJJ, J. These appeals by certificates arise . . . against a decision of the Full Bench of tho Patna High Court. Several. questions were referred to the High.Court of Patna under Section 27 (1). of the Weahh Tax, Act, 1957, hereinafter re.ferred to as lhe Act. Two of these qu; ztions have been answered .against the assessee, one was held to be not entertainable and one misconceived. The question answered against the revenue in that reference before the High Court

wa• question No. (iii) meationec'. in the judgment of B.D. Singh. J . . and .th~ question ic. as follows:-

"Whether, 01, the facts and circumstances of the case, t)le Tri.bunal was right in . including in the assess's net wealth. a positive figure, on account of Zamindary compensation wito\Jt taking into consideration th.e arrears of agricultural . income tax instead of.taking the figure of compensation receivable from Government of Bihar at mil'.

Tn ordr to appreciate the question, it may. be ncessary to nofer to some facts. The question involved before the Full Bench was for the ssessment years I 959-60, 1960-61, and H6I-62, .rnrresponcl.'ng .. valuation .dates of which were the 3lst October, 1958, 3rd Octobr, '1959 and 31st October,.1960:lThe assessce is an individual. His estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950

on and from' 1st July, 195_2, and he is entitled-to recieve compensation

" under the Act from the government, Under Section 3 of the. Act, the question arose about the inclusion in the, assessee's "net wealth" the value. of the estimated amourit of compensation receivable by him

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_ .. ,.

c.w.T. v. M.K. KA, MAL SINGH,:(Mukhaii J.) .

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. 637

~~ fro, m the Bihar Government under the Bihar Land Reforms Act,, J 950. , A In the assessment year 1959-60, the Wealth-tax Officer estimated the ' value at is. 10,25:123 and included it in the n•i wealth onhe assessee. For the assessment vears l 960-6r and 1961-62, the assessee produced a Jetter from the District Cllector; Arnih, to show that the. , assessee is entitled to compensation of Rs. 4,39,713 only .. The . ; wealth-tax 'officer estimated 75% the, eof as the market value of the B right of the assssee to receive the compensation. Accordingly he 'J included 1n the assessee's net wealth Rs. 3,29,784. On appeal, tlie ' Appeilate Assista.nt Commissioner 'reduced the valuati01i for the. Jst -< year to Rs. \29;?84.

For the riext two .years, namely 1960-61 and -. 1961-62, the Appellate Assistant Commissioner held that it would be reasonable to est1rnate the market. value of the compen<ation to

C be'received by the ssessee at.65°1, of the face valu~.

The assessee preferred appeals before the Appellate Tribunal regarding assessments for the aforesaid three years and reiterated his contention tliat the' right to receive compensation under'. the Land Reforms Act WdS not aq asset within the' meaninr: or' Section 2 ,(m)

., of the Act and. cou1d not be inclu{i.ed in the assessee's net wealth. The --Tribllnal held that the estiniatd amount of za1nind1ri colTjpensation ,..,. .. payable to th~ assessee 'was an as'set and had1to. be iuclu(l.ed in the assessee's net wealth, However, it directed the Wealth-tax Officer to . . ' , ,1 .. estimate !he value atid compensation t<? be reeiveci. by the assess_ee .at . L65% even for the rst year, i.e 1959-.60, as w!'ts <'.one by, the Appellate\ ·.Assistant Commissipner whh regard to .th.e scond and third yearn i.e.- 196Q-61 and 1961-62. l ''~

The contention: of the asessee fUrther W?S that the unpaid agricu.i-

• -.F tural income-fax as a .debt was lieductihe while computing. his net

wealth. , , His claim was that this. debt was Rs.' 5,10,831 in the

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first year,> Rs. 4,76;46LOO in the second year an\i Rs. 4,75,706 in the 'third year. A sum of R < ' 24.430 being agricultural income-tax demand for 1363 fasli was allow.er. to be. ~.<'ducted by the Wealfh-dx: _Officer .for the second and third yCars" arrears of agric.111turft1 inCome~ G tax, ihe assessee had. pro<1.uced Government letter io show that the . . amount of compensation receivable by the assessce would be nil. Accor-·.

ding to the enquiries fron1 the re.venue depart1nellt. 11 also ppcarect that the final con; ipcnsation money.payable in respet of th• assessee's zamindari was less than the agricu'ltµral ii\com.,., tax dues outstanding H. aganist him,.andso.it was hot possible to effect r.ealisatiort of te dues

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1 "" • I of ai; ricu1tural income-tax only by adjustment from the final compensation muney. The Triqunal, therefore, held that except Rs. 2(430 which was agricultural income-tax demand for 1363 fasli and .which. was allowed to be deducted by the wea!th-.tax Officer, thi; other amounts as 'cla.i; ned by the assessee were not 'deductible as the arrears were outstanding for more than 12 months, in view of th<i provisi01; is contained under Section. 2 (m)of the Act and the Government Jetter was.· . . ' not f>t all h.elpful to the assess.ee. Then reference wasmade to the High

Court under Section 27(1).of the Act raising five questions out of which .. question No._ (iii) as set out hereinbefore is before us.

The questiOns before the High Court including' t\le question w, hich is before us were referred to a Foll Bench of the court and the reference was disposed of by .the 'Full Ben.ch o( Patna High Court on 17th September, 1~'71: anil the decision is reported in 84 LT.R. p. 240. ,

• • The Fu'H-Bench decided.the. question , in issue before us against the revenue and in favour of the assessce holding thereby that in the facts arid circumstances of the case as nothirg was receivable 1'y the assessee--in view of the arrears of agricultural inCcmc-taX, t.he value of

.. .'jj . ' -·- the asset to the assessee was nil. · . . .

Though at one point of time .there was certain controversy as ·•r.} . '

11. to whether the right t~ receive comp!nsati9n on the vesting of the • estate of the appellant m the" Government was an asset a11d as .such fts .value had to bi; taken in computing the net value of assets or not,. . There is t\o doubt that it is and it was not urged before us that it is not "!'. an; rsset. The only questioil, is:· how should it be va.lued.

H was cori-. tended before us that the Act pcohibit~ setting off of deductions of debts which are outstanding for more than .. 12 months .on account of the arrears of 'tax on income, agricultural or otherwise. - Therefore .it was urged that if the arrea; s of agricultural inc0111e-tax. due as in .this case are taken into account against the value of the. compensation \.: receivable by . the asse.ssee, then it would not •be in accordanc.e with the scheme of the .Act and it would permit defeating the intention of . "~ . ·, the legilature, namely, permitting deduction of arrears of .agricul\ural income-tax•outstanding for more than 12. months by indirect meihod which is prohibited c\irectly in terms .of Section 2 (m) (iii) of th.i; Act .. This.is the que.stion for our consideration in these app.eals. .. ·

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i c.w.T. v. _M.K. KAMAL SINGH.(Mukh11rji, J.)

we may at a glance examine. the proisiori," or"the llihar Land Reforths Act, under which compensation was pa'yable .t0 the asseisee and the 'value of which was under consideratio.n in this case. Before we do that, it is necessary to note the rlevant proisions ofthe Wealth Tax Act and to find out the scheme under ih~ W_ealth 'fax Act~. to how the assets have to be valed. Section 3 of the said Act is the charg- . ing section which imposes 1a tax for. every assessment year in respect of' _ • th!' net wealth on the corresponding valuation date. Section 4 make.•

'-, I, . some deeming inclusion of certain assets as assets ofthe assessee. It i•· not necessary to deaLwith these in c'.etail ii'iitit may be mentione<l that

certain assets which are not standing in the name .cif th~ asses see ire

 ·included .in the net wealth, for exa, mple,. assets •transferred to spouse : or minor child or partner of a firm etc. These deal with the assets wh1'ch

are not in the name or standing in the name.of assessee but .which .. really belong to the a.ssessec acc\mi.ing. to the scheme. of the legislation •.

-~ _ we may note }iere as-it.w~:.S conVaS-scrl. before us.that under sub-sectjon

(3) of Sectio~ 4 of the Act which provides that w.here the value ohny asset is to, be ihcluded. in the net' wealth of a~ assessee ii~ accordance

- with cbuse (a)' of sub, setion (l) or sub-sMion (JA).11\ere shall be

ded'uced from such valuQ>any debts owing on the valuation <late by the tfansferree mentioned i~ that clause in so fr as such debts are ' . . ' .. . ' . --. . . referable to' such assets; .and the provisions of Section 5 shall apply

.. ._ inrehitiOn to scli.ssets as Ir sucJi a}sE:ts'.were assets -beJoJ1ging o th.~ assessee. Sction 5 deals with the exemption of certain assets.

I Section 6 excludes .. ce.rtain -l,; sets an_d debts ?utside India_: . Section '-<l.-1 1s import.ant which provides~ the metho0 .. how the .1• . to be assessed. n -provides th.at it shall be esti'matec\ to be the price

which in the. opi, Jlion of the Wealt!Hax Officer ii wol)ld fetch if sold in the open market on the valuation .date.' Section 2 (m) clea1' -..ith ,,.

-, '_'nt wealth" _upon wliich tax is levied and read• as follows :

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. "2 (m)-"nei wealth" mens the mount by which. the i aggregate value coputed. in accordance . with the. provision• of

this .Act of all tlfe assets,· wherever located, belonging, to tho , assessee on the Valuation date, including assets required to b6

induded in his net wealth as on that date under thi• Act, ii i11. excess.of the. aggregate value pf all the debts m;, ed by the aoie .. ec

on the valuation c.,; te other than-. . . •

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(i) .debts which under section 6are not t• bO tak•a isl@ H account; ,

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SUPREfE COURT REPORTS [1984] 2 s.c.R.

(ii) debtnhich are secured on or which !)ave been incurred in . relation to, any property in respect of which wealth-tax is not chargeable under this Act;, and •

. (iii) the amount of the tax, penalty or interest apayable inconsequcnce of any order passed under or in pursuance of this.· Act or any law relating to taxation of income or profits,

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- or the Estate :buty Act, 1953 (34 of !953j, the Expe.rlditure -'<' Tax Act, 1957 (29 ofl957),.j)r the Gift-tax Act, 1958 (18 of •. 1958),- . . . - -~

, (a) which is outstanding on the valuation date andis claimed by the assessee in appeal, revision or other proceed-

.J .

ing as not being payable by liim; or ~

(b) which, although not claimed by the assessee as not

being payable by 'him, is rit!Vertheless, outnding for a period of more than twelve months on the valuation

I , date".

The main contention of the revenue is •that the amount of tax, penalty 01; interest payable in consequence o'f any order passer. unc'.er or in pursuance of the ACt. or any lawrelating to taxation of income___}- - or profits, or the Estate Duty Act which is outstanding on the valuation date and is claimed by the assessee in appeal, revision or other proccedillgs as not being payable by him and which, although not claimed by the assessee as not .being payable by him, is ll!'vertheless_ outstanding for more than twelve months on the valuation date should not be f'

considere~. to be debt entitled to be deducted from net wealth. 'Net wealth' as we have noticed mearis the amount by which the aggregate ..;, value computed in accordance with the P!ovisions of the, Act, of all

the_ assets wherever.located, belonging to theassessee 'is in excess of the aggregate value of all debts exclml.ing the debts mentioned in Section 2 (m) of the Act. Therefore the scheme ofimposition of wealth tax in , case of an assessee which is not a company and the present assessee

is not a company ahd the c0mputation f the wealth tax of an asses see

which is a company might be done under s.ub-sectlon (2) of Section 7 of the Act,. must be done by firt estimating the value of the assets in in acc_ordance with the provisions of .'the Act. That is the first 'step. Therefore the estimation of the value of the assets is first necessary '

 c:w.T, v. M.K. KAMAL SINGH (lefukharji, J.)' 64\

\ . ' ' ' _ _,,_ in accordance with the provisions of the-Act: The material provision of the Act forthb-1:mrpcise in the' said Act would be Section 7 (I) _which enjoins, hc-, Wea•thtax Officet"rn case Of an asset other _t:ha!'- cash(to estimate the. prk'- which, in his opinion, it would fetch if sold in t]\~. open market on rne valuation date. 1:hcrefore tlw first step in the facts and circumstances of this case was .that the Wealth-tax Officer to esti! mate the. price .which in his opinion the right to compensation of the

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B. . ' assessee would fetch if sold ju the open market, and after determining the value in the manner aforesaid to deduct therefrom debts owed by . the assessee excluding however the debts which are m'entioned in clause ' '~~ (i), (ii) and (iii) of Section 2 (m) of the Act.

.. . . . ' ' ( - . ' .. _ Keeping this scheme Jr, the Act in "mird. we have to examine the nature of compensation under Bihar Lant! Reforms Act, 1950 ..

Section 3 provides• for th~ notification vesting an cstte 'or tenure in the .State and from-'the date specifiedin the notification, the estates or . '

tenures of a proprietor or te_nureholder,·pecified in the notification,

-~, will pass oi: to and become vested in the State. , It is 'not dispted that D iii"this case this has happened in respect of, the property in question. / . , section'. 4_ deals with the consequences of the vesting of an estate or r

•-y ' tenure in the State and stipulates different conseque&es. We are riot ! really concerned with-.all the various consequences. We may,'h-.; wever, •

mention clause (c) of SectiQn 4 which is important for our piesent

E . f purpose. It provides as it in<\icates .that the arrears of re.venue and

'-.....:. QCSSCS remainin)I ]awfully due in respect of the estate Of tenure shall

_. coritinue to be recoverable from him in spite othe vesting of the estate

and "shall without_ prejudice to any other 'rnod, e af recovery, be recoverable (emphasis supplied) ••. when so ordert:<l, by the Collector, by the (!, eduction thereof from the amount payable to such interrne- . .. • .

I , diary under Section 32, Section 32A or Section 33". Reference was made to Section, 14 which _deals with__proisions rlating to certairidebts of proprietors and tenure-holde!S. 'sections 19 '23 arid-24 were also referred to. which we do not thiJi, k are material for our present purpose. Section 26 onwards deal with the p1iblication ofCompeustion Assessmeni-rdll. Section. 32 provides for the .manner of pay- . ment of compen•ation. 'Secti-on 32A provides as follows:- - ' ...... ' ' . . . . - .

"32A-Where the Compensation Officer considers that delay is likel,- to occur in.payment of compensation under section 32, he may, subject to the provisions of section 32B, pav).n the H . manner, io far as may. be applicable, provided in section 32; ·

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. . \ I to the person entitled thereto under thi~ Act a sum not exceeding .fifty per centum of the approximate aniount of compensation payable in him under .section 32. calculated in the mal\l)er prescribed in this behalf. ·

Provided that, if subsequently it .is tund.by th~ Compensation Officeror the Collector that any amount has been paid to ahy person fo excess of the amount payable to him under section .\ ' 32 or that the person to .whom the aomount has been paid was . not entitled to it under this Act. the amount so paid shall, after~ giving the , person concerned , a reasonable opportunity of being, - heard, be recoverable frnm him together 'with interet at 6t per centum per annum as if it were a public d.e1nand".

sectio~ 40 is also. important and is as follows~ \ ..

. ) . . ' . ' ' . "40--(1) The Collector, the Claims Officer or the Compensation0fficer may,.at any time either before or after the date of vesting, by a written order served in the presecribM manner, 'require any intermediary or any other, person in possession of ar

estate or tenure or any part thereof or any agents or employees of such intermediary or other person, as the case m;\y be, 'to pro- ' . duce, at a tifl!e and place specified in the order, such documents,. __ ).. or.to furnish an affidavit otherwise such information relating to hny estate or tenure of s.uch intermediary as the Collector; Claims Officer or the Compensatipn Officer may, from time to time require fr any of the purposes of this Act or for giving effect to any provision thero( ·

(2>) Where any intermediary or other person, referred to in ·l!b-scctiol\ (!), if so required by'a written order of the Col)ector, fails without sufficient cause, to prcc.uce s11ch docments, or to furnish such information at' such time and pla~ as may be specified in the circler, such intermediary or other person, as the .case may be:shall be liable to.a, penalty which may; extend to fifty rupees for eveiy day after the expiration .of such time until such documents have been produced or such infotmatfon has ·

ben furnished and such penalty' shall be realised as a public demand:. ·

. "

C.W.T. v. M.K. KAMAL' siNGH (M_ukharji, J.) 643

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Provided that where the sum of sch penalty exceeds five hunded rupees, the Collector shall 'refer the mauer to. the Commissioner .whose orders thereon shall be final: ' .

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' Pr0vided further that the Commissioner may at any time, of his own motion or oh the _application of any iriterinediary.- .revise any .order of the Collector imposing any pe.iJalty and the

order of the Commisionr on revision shall be fia]".

I . .

- section 33 which provides for !]laking ad interim payments to

1 proprietors, sub, scction (2) of. which contains the . followirig

'-.C proviso :.

' ' ' . • ".Provided that the Collector. shall 'have the . power. to refuse, suspend or stop any sue\" ad inteq111, payment in the case . of any proprietor or tenure-holder wh6 in his opinion has failed tpr neglected to comply wii)l any.order under sectioii: 40":.

. ,, ft . . . . '

The Patna High: Court was of the opinio;· that in view .of the ' ; facts an<l spocially. the letter given by the Collector, the market value of the right of ihe asseSsc _to rece!e 1 ad, intefim coJhpt;:satiori' • ..,, .. shul,<l be Mtennined in veiw, of the p'rovisions of Section 4(9 of

Binar.Land Reforms Act, 1950, and. keepjng in .view' the correspon-· . . - - "(_ dence passing. behveeri the collector.and the' assessee. It is frue.ihat the tax1.ng authority has adopted 65 % of the fa_ce value of the amount discounting the rest oi\ accouJ!t bf delayed payment. It may be .mentioned tha.t these compensations were payable in 40 years .. That is a factor which has to be taken into. account and discounted but the other vital factor affecting the value of the asset namely, the liability. aiid the obligation to have the amount deductedmider Section 4 (c} of the Bihar Land Reforms Act has not'beentaken into account at. 'all. 'In case ; here bonds have_' been issed .after' taking inio °C9nsidera- - . tiqn the_Iiability under Section 4.(c) of the BiharLand Reforms Act

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or where liability , under .Section 4 (c) has been determined and dedu- • '' G "cted frm' the compensaiton,

0 in such a cas.e up question of <le_duction · ' • on accouiit of the arrears of agricultural incorrie-tax mentioned in c Section 4 (c) of the, Bihar Land Reforms' Act' would.arise but in all 1 other. cases, !his is a liability; a hzard, a factor, .. a clog or a jeopardy whiCh _detracts from' the val.ue. of the asset and. in estimating ' the value which-, one_has todo on the bas.is .which a. wiliing purchaser

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• 644

SUPREME COURT REPORTS

[1984] 2 S.C.:R ' . . ' would pay for buying the said asset in open market, the Wealth-ta;

Officer must take that factor into account, otherwise it woi.ild be an unreal estimate. This chance and hazard inust influence all .buyers. . . . . - , . . There are two different stages. One is estimation o{ the value of

the assets agd the other deduction therfrom the debts owed by the

assssee .. In last mentioned stage, surely in view of the provisions of Section 2 (m), the.debt in respect of income-tax which is outstanding for more than 12 months ca11not be dtdui:ted. But in estimating the .:....- value of the assets, this possibility, which is indeed in the nature of an j . • • obligation of the Compensation Officer, is a hazard,. a clog or a hindr:ince which if a proper estimate is made under Section 7 (1) by the W<ealth-tax Officer, he has to take into consideration. It is not a quc •. stion of deducting the,. debt 'but a quest1n of estimation of the alue of tl11: asset rn question. •

.-.,. ..

.....

. / ~,

'';~ . Learned counsel for the aS:Sessec drew our attention to the 'i:cision of this Court in the case of Standard Mills Co. ; Ltd. v. Commissioner of Wealth-tax, Bombay"> and to Bench decision of the Bombay High Court in the case of Commissioner of Wealth-tax Bombay City II , v: Purshottam N. 'Amersey and Anoth&r121• These decisions; in our opnion, are not relevant at an.: Reliance was also pliced on a dCcison of1this Court i.n the case, of Pandil Lakshmi Kant Jha v. Commissioner of Wealth-tax Bihar and Orissa'l. This question was not in issue but it was reiteratd that under e Bihar Land Reforms Act, 1950 as soon.'_) as the esta.te or,1 tenure of a proprietor or tenll!l' holcler vested in the State, he becan1e entitled-to receive compensation. The rjght to receive compensation from the State was a valuable right. The fact that com- • pensation was not . payable immediately and its P';'Yment might be • spread over a period of 40 years would be relevant only for the purpose .. of evaluating his right of compensa, tion. The right to receive compen- . • sation even though the date of payment ls d•ferred fa property and constituted an asset for the pwpose of Wealth _Tax Act.

We are ~!early of .the opinion that the possibility of deductjn of the dues of the assessee for agricultural income tax under Section -;-·-------- (!) 63 I.T.R. p. 470. . (2) 71 I.1.R. p. 180.

(3) 90 I, T.R.j p, 97. .

c.w.T v. M.K. KAMAL SINGH (Mukharji, J.) . 645 . . . , . . ' 4 (c) of the Bihar Land :Reforms Act from the compensation money . is a factor that aifects•price or value of the compensation money recei:

vable by the assessee .under .the Bihar Land Reforms Act and nntil it has been finallydetermii1ed that no arrears of agrienltural income tax is payable at all; will remain a hindrance and the value of which must' be quantified and deducted before a proper estimate of the value of the asset money recivable by the asessee is prepared ... Except in cases where the question of arrears of 'agricultural income. tax is settled, this is a factor which goes to the , diminution.of thevalue of the asset.

To what extent thatwould affect the value Of the asset is a matter of

, .. - I, ' ' . • . . ' . quantification. We are not concerned with that question. of actual

-,,.:-~--quantification: We are concerned. with _the question whether that . " factor is a matter which hastb be taken into ccrnsideration in estimating the value of the asset in question. We are of the opinion that it is a factor cerfainly td. be taken into cnsideration in estimating what it . • would fetclt in the pen market. ft is .not a case as was contci1ded on . behalfof the revenue, that this was permitting indirectly deduction of debt hich ;.s prohibited by the legislation. Sectio; 7 and 2 (m) of the Act though must be read harmoniousiy apply to two different stages. Section 7 is the estimation,..of the market valu~ of the asset, section 2 (m.) enjoins that from the same the debt owed by the assessee to be deducted. Such debt owed ·, would be computed in acordance

wih ection 2 (in) but the estimat, i.on of the value of asset is on. the basis which such as, set :vould fetch i~ the open market taking intqlcl'-- . sideratfon the view pomt of a willmg purchaser. .

F .

I ( We ust mention-that' our attention was drawn to certain citer '--"provisions of the Inc.ome-tax Act. ad also Wealth. Tax Act. and it was contended that any debt which is exclude<\ under thie provi; ions of · Wealth Tax Act cannot be deducted . and on the same principle a .i.ebt which is not deductible befanse of provision of Section 2 (m) should .not be takewinto-consideration in estimating the vluc.of an asset. 'we are unable to accept this position in the facts and circumstnces of this case. . . . · .. :.our attention was .dr~ t~ certa.in other. rules namely,··" Rule 34 of'the Bihar Land Reforms Rules, 1951. We do not think it fa. material , to discuss these ruies any further.

In the view_ we have taken, we.are of the opinion that the Full Bench of the Patna High Court was ight in its conc!U:sion. The'appeais thGrefore fail and are accordingly dismissed with costso

/ . '

,. . . .. •ff

"'H.S.K'.

Appeal . dismissed.,

, I

MAHARAJA KUMAR KAMAL SINGH

V.D. TULZAPURKAR

R.S. PATHAK

Tax Act, 1957

RejOnns Act, 1950

Land tforms Act, 1950

s. 4

Wealth Tax Act, 1957

Land Reforms Act, 1950

Wealth Tax Act, 1957

Section 4

Bihar land Reforins Act, 1950

Lilnd Reforms Act

Bihar Land Reforms Act

B.JJ. Ahuja

A,. Subhashini

Y.S. Chita

U.P. Singh

SABYASAcHI MuKHARJJ

High.Court of Patna

Section 27

B.D. Singh

Government of Bihar

Section 3

M.K. KA

MAL SINGH,:(Mukhaii

Arnih

Section 2

Section 27(1)

Section 2

M.K. KAMAL SINGH.(Mukh11rji

Land Reforths Act

Section 3

Section 4

Section 5

Section 6

Section 2

section 6

Tax Act, 1957

Gift-tax Act, 1958

Section 2

Section 7

M.K. KAMAL SINGH

lefukharji

Section 7

Section 2

Reforms Act, 1950

Section 3

Section 32

Section 32A

Section 33

sections 19

Section 26

section 32

section 32B

section 32

section 32

C.W.T. v. M.K. KAMAL' siNGH (M_ukharji, J.) 643
; . .

section 33

Patna High: Court

Section 4

Section 4

Section 2

Section 7

Purshottam N. 'Amersey and Anoth&r121•

M.K. KAMAL SINGH

Mukharji

Section 7

section 2

Wealth Tax Act

Section 2

Bihar Land Reforms Rules, 1951

Patna High Court


. €

.... . ·""

'4' .

SMT. M.M. AMONKAfl &. OTHERS

i v.

DR. S.A. JOHARI

Febraury 21, J 91l'4

[ V.'D. TULZAPURJ::AR AND SAnYASACHI MUKHARn; JJ. ] . - ,.

"'1-iQtitution of India, .1950, Article 221 Scope of-Justification of interference with a uni:urrent finding of fact recoYifed by bOih the lower courts inreSjJect of the 1111tur6 of ccupationofpr~1nises by_ the lessee aµd in favour of the lessor by the High

€ourt-Jf'heth1r the less'' of the cabin a ''protected licensee. under th~ Bombay Rent A•! (N•. 57 •/1947) •s •mi"d<d hy the Maharashtra Act XVII o/1973. \ _ .

Th• Rospondent original plaintiffa doctor by profession was .in occupation

. (~

of~ small cabin (adm~suring appro':timately.115 sq ft) Whiph is a part of the_ Pl,"crµieos of Dr. Amonkar hospital of which the appellilnts are tho propi:ictors. The Life Insurance Corp6ration of India is the Owner of the building. The appellants furcatoned the ResQondcnts to evict him after issuing a .Q.otice dated March 20, 1973 iaforming tho Repondent that his atachment as Honorary Surgeon was Ilolnger .)· required with effect from 1-4-1973 and that he should make hls own arrangements __ for his_ private consultation. The ResPondent filed a suit in the Sn1aU causes Court of BOmbay ecidng a dlaration that h.e was a "protected lincensee,, (having becdme a deemed tenant) of the suit premises under section 15A of the Bombay Rent Act (Acl 57of1947).as amentled by the Maharashtra Act XVII of 1973 and for injunciion rastraining: the appellant-defendants from taking forcible possession. of the --~ suh premises and or disturbing or interfering Witli bis.use anci employment thereof / :OChenvise th3.n in due course of Jaw. ThC suit was resisted by the. appellant-dcfCndants on threc•grounds: (a) that the cabin was never givell to the resporidnt-defen .. danc QJ; l:leaveand licence basis, that' he wtis-never in exctu.sive' use arid occupation thereof but the user of the cabin was given to .. him because of his' attachment as Honorm_-y Surgeon to Dr. AIT!-onkar hospital tlrough the good offices Or one Dr . . Rawaiia and after obtaining a writing an stamp paper reflecting the true nature and

eharacter of the arrangement between.the appellants and the ReSpoildent p1ii.lntitf;

(b) that tbe cabin in q'uestion Was not "premiseS" within the meaning. of SectiOn 5(8)(b) of th~ Rent, At. in as 'much as the sa"me could not'be said to have been given on. licence "separately" because the respondellt plairtiff was permitted the user . ; thereof only fQr 2-/2 hours in the evening on week days between S P.M. and 7.30 : PM. and for the rest of the time it was being used by the h0spital staff and that one 1 of che i:t1Y'• of at ca.bin always remaincd'with the itaff of the hospita~ and henco

.... ..

_,; .•

, I

M.M. AMONKAR V. S.A. JOHARI 647

disentitling to any protectio~ of the Rent Act, and (c) that ihe cabin in question. rn;.

A ing admittedly'.' a room in the hospitai•; feJI .. within the eXclusiOnary. part of the dcfin_ition of the .. licensee" given SeCtiOn 5(4A)•and as such wa~ outside the protc:- : •. tion conferrer! on licensees bY section 15A of the Rent Act;

; ' '- I •, '

. , !he appella1its also fife~ an Ejection A_pf)Jication _<1 gainst the res_pondent plaintiff seeking his eviCtiori from the suit premises undCr secti'on 41. Qf the Presidency

Small Causs Courts Act on the S; roulld .that the rcSPondent's right t9 occupy the suit cabin had come t9 an cnd, alohg wit_h the termination of his'it'tachment as Honorary SUrgeon to Dr. Amonkar hospita'L The rspondent plaintiff _resisted the said suit. Both thC.suits_ were therefore heard-togethC_i: and coillmon evidencerecorded._ On an appreciation of the or.ii arid. documentary evjdence and 'the surrounding circumstancei, the tral court cam~ to te cpn'Clusionthat the user Of the sui Cabin~,

had been permitted to the rCsponpent-plainti'ff not on leave' and licence basis but because _of.his attachment as HonorarY "Sur&eon to Dr. Ainonkar Hospital a

1nd' that Ex. No .. 1 'Which s igned byhim after ri:iny reaUsing its Jn1plications, as. a genuine writing fcflecting the true nature of the. arrangement' between th~· parties and so as suh the reSpondent plaintiff was not entitled to the protectiO.n of stion

- . l 5A of "the RCnt Act and. triat Whh the tCrmitlation of his attachment as Honorary

Surg'eol'l to Dr. AinOnkar hospital his right to occupy_ the suit cabit-caflie to an epd.

The Trial iudgC decreed the suit.- In-ai>peal preferred by the respondent-plaintiff;

he Appellate ·-Bench of the sma.1rcallses Court On rCappraisal of the entire material oh record confifmed the: findings of the trial court both .on _the.· factual and on legal issue4 and 'dismissed the fPPeal. The respon_.dent-Pl!lintiff' when .approached _the High Court under Articla 227 of. the Constituti9'!! the High Court interferred with ... the concurrcrlt findin.gs_ of facf found by .the two "16wer courts and reversed the deci-

1io.ns both on the factual issue and the two.le&al issues. HenCe the appeal aftef obtain ...

in.i the siaf.Jea:vc)of the Court.. , · '1 .• ' ,

Allowing the appeal:;,· the Cotirt

. ' . . .

~HELD: J.

The H:iih Court was nOi rieh~ ifi reversing the concurreni finding \ f fact rorded by bo~. th~ courts bdoW oid eve~ on me; rts, the Hih Court. Jtidg-

.:ment cannot be sustained. (663 C]_ " _ , ..

• I .2.1. The Opinion of the.High Court th"at there.were two diturbing features', revealed in the respectivC procecdinBs: and judjtlnents of the courts below which were suggestive Of non-judicial aPproach,. $Omc bias andpartiality (in favour Of

the ap_Ddlant .defendants nd agains( the resPonderit__:.pl11intiff) on their part which

""n~_ssitated a-full and unresfricted cX¢rCise .of its power of superinten.dencc by going

t~ the extent Or reapprcciating the cvidcne 1n depth. as if it were a 'first Appellate

ourt _was nOt_correct. [65~ F~GJ ,. •

' . ., ' I ' ' ' . . • -The com~nts of the High .Court that th~ rejectio~ of an ap'plic<il!on to ~Ii one of the witn~Sts -viz._ Dr. Rawalia and. to direct him to produce hi_s Income Tax

. ,

G ·.

A •

 ..

. SUPREME COURT REPORTS

(1984] 2" S.C.R .

• ,!e!_urns b~ the trial court on 18-10~1976 was a disturbing feature suggestive of non-judicial approach, son1c bias or so1nc partiaity sho, vn by tbe Trial .Judge, would have had : been _si1nply dismissed. \Vithcut .giving• any reason ·.bu( the learned ;.._trial Judt.e. passed a lengthy rder giving three. Teisons for the rcjr.ction of th~ application: (a) ihat vague averinent_s .L were made in the application aboµt the r.eceipt of theJ infarllliltion regarding Income Tax ·.Returns of :Dr. Rawalia on 8th qctObei, 1976 ithout the occasion -for receiving the information or thC source of information being indicate9. and thit when the court made a Querry in that behalf bis cou.nsel Was not willing to give particulars or disctoSe the source of information and .it was, therefore, difficult to believe that the rcspon detit-plaintiff came in possession of the said information after the cross-cxamiw nation of.the witness was over and after the closure of a.Ppellant-defendant5' .ease;

(b) that under section'!38(1),(b) of the. Income Tax Act, 196.1 the respondent-plaintiff could have and should have obtainc:dithe ilecessary information or n1aterial from the Commissioner of Income-tax by making an application in the prescribed form

and.sine he.had not done so it wollld not be proper to helP him to get the infor mation through thd court; in other words, if be had attcn1pted and failed to get the information by following the prescribed proCedure the court cold have helped: hirrli{and (c) thil.t the Court's power to recall and examine any witness at any sta£; e of the suit under _Order-XVIII Rule 17 of CPC on which strong relia1ice was placed by counsel for the respondent-plaintiff Was to be exercised in exceptional circum stances and. no exceptional circumstance had been mado out by the respondentplaintiff inasmuch as th"ese documents would have bycome a vailablc to him before he started .. the witnCss's: cross-ex.amination. May be iri the exercise its discretion another Court n1ight have; taken"a different_ view and allowed lhe application.

But -unless -the reasolls give11 by the learned trial Judge could be se.id to be moon-shine, flimsy or irrational the rCjcction of the applicatiOn cannot be dubbed as suggestive of no~-judicial approach or biaS Or partiality on his part. -It is also pos!.ible that the reasons for giving a_ ruling ona point'. or for rejecting an apJ)lication n1ay be wrong of diSclose a nonjudicous exercie of discretion and . open tO correction in appeal, but non motive of non-judicial apprpach r bia~ or partiality could be attributed unless the reasoi:i given are moon-sbire or so fl]msy or irratio.nal that there arc unreal: Considere'.d dispassionately, such a thing:could

~1ever be said about thC reasons given by the trial Judge for rejectin, g the application.

In any' case, the rejection Of thC application could nbt be regarded as having stemmed from any. oblique motive or purpose. [656BH, 657 A-C] .

' Further. the so called disturbing feature noted by the High Court jn the Judgment of the First Ai:>pellato Court is so innocuous and inconsequential that it c6uld hardly afford al)Y jutification to reappfeciat"e the whole evidence as done by it.

On the contrary. the broadfeatures eJUGrging from the evidence on record clearlY support the appellant-defendants' case that the user of th"e suit cabin wa_s allowed to the respondent-plaintiff not on leave and licence basis but bect1:use of his attach .. ment s-Honorary surgecin to Dr. Amonkar hospital. [663 B~C]

CIVIL APPELLATE JURISDICTI'JN: Civil Appeals Nos. 104:105of198r

Appeals by Special leave from the Judgment and Order dated . ( . . . - .

. I. , ' . . . . , '

' "I . . . ' M.M. AMONKAR v.' s.A. JOHAR! (Tulzapurkar, J;) '649

~ ' . . . '; the 18th August, 1980 of the Bombay High Court in Writ Petition A.

Nos. 30 aud 115 of 1979. ' . , . \,

' . ' V. M. Tarkunde, P.H. Parekh, Mrs. Manik Karanjeial and Miss.Ind11 , Malhtra for the Appellants.· . ..

"\ J .

A.nil n(ivan, Respondent.

Dalveer. B!tant/ari and R.:f.· Yatfav for the

- ,.,

' The Judgment of the Court was. delivered by . '

I TuLzAPURKAR, J. These appeals by special leave rai•e tll'o questions for oilr determination: (I) Whether the High Court in exer-· oise .of its powers of superintendence 'under Art. 227 was justified in . interfering with a. concurrent finding of fact. recorded. by, both the

.lower Courts .in favour of the appellants?_ and (2) Whether the respon-

_dent was a protected licensee in respect of the'suit pre111ises under the

Bombay Rent Act (Nd. 57 of 1947) as amended by the Maharashtra Act XVII of 1973? i_ . This unfor.tunate litigation between eminent medical. practic ••.

-lloners of Bombay has been hotly.contested before ).IS since it relates' ·

.· to professional accollll11odation of which. there is great dearth in that

city: The accommodation in question consists or a small cabin admeasurillg 15'-6" x 1-1'-2" (approximately 175 sq. ft.) which'is a-part of •

the. premises of Dr. Amonlcar Hospital located on the fourth floor of - Boip.bay Mutual Terrace at 534, Sandhurst Bridge, Bombay, of whieh . one Dr. M. D. Amonkar; since decea-sed, was the propri.etor (whose heirs and legal representatives are the appellant-defendauts before us, befog his widow and two soils 1and three daughters-of whom one. son and two daughters are medicos). ' . . . .

Dr: J'ohari (the respondent-plaiatiff) an M.B.B.S. of Bombay, ' '

- F.R.C.S. of London and Edinburough and' Hoi10urary Surgeon attached to G.t. Hospitaiand Bombay Hospital, . filea a suit (R.A. Suit , .... ' , - . '

• '111111 ' • ' • • • :

• .. . '

'.

• .. 650 .

SUPREME COURT REPORTS.

. (1984] 2 S.C.R;

No. 779/2893 of 1973) ; n the Sn1al!' Causes. Court at Bombay s~king a declaration that he was a "protected' licensee' (having become a deemed tenant)• of the .suit premises @der s. 15A of the.

Bombay Rent Act (No. 57 of 1947). as amended by the Maharashtra Aet xvn of 1973 and for injunction restraining the appel\ant-defen .. dants from taking forcible poSS\'SSion of the suit premises and or disturbing or interfering with his"usc and enjoyhient thereof otherwise than in due course of lalv.

Bis case was that he came to occupy exclusively the suit premises (being the cabiil admeasuring about '175 sq. ft. with . the 'facility of using the adjacent common waiting rooJll. together with the facility of water and electricity) on ISt May, 1970 on leave and licence bas!s under an oral agreement ith late Dr.· All).onkat o~ payment of monthly com-

.Pnsation of Rs .. 201 for doing his private consultation surgical practice. ms further case was that though within a few days of his occupation laie Dr. Amonkar had obtained from him a_ writing ' purporting to state that he was attached as an Honburary Surgeon • . to Dr; Amonkar Hospital. and was, therefore, allowed to have his private cohsultation practice in the premises, that he had agreed to .bear and pay rateably the expenses.of telephone, us!:' of fwniture, etc. and that he was neither a tenant nor a licensee, the said writing had' . been obtained from Iiimmerely as a safeguard for Dr. Amonkar. against'. a possible objection that might be raised by the Life Insurance Corporation the landlords of . the building, and was not to be ate, d upon. According to him, he had cordial relations with late Dr. Amonkar and that even after his death which occurred towards the end of

J..-

,.· 1971 he was regularly paying Rs. 201/- per month to his heirs till Jan- _),,

uary 1973 but since threats of forcible di'spossession were held out to him by the appeliant-defendants, particularly l5y, appeallant-cl.cfendant 'No. 3 Dr. Suman Gaitondey (the married. daughter of' the deceased) on her return to Bomb'ay from Calcutta, and since by. a notice dated .20th-March, I ~73 he was .informed ,.that his attachment as honourary Surgeon was no longer required with effect from 1-4-1973 and tha.t he should make hiS own arrangements for his pfivate consultation, he. was forced to file the suit seeking reliefs of a declaration: and injunction mentioned above. .. ·

\ .

. The suit' was resisted by . the appellantefend, ants on three grounds: (a) that the cabin was never given to' the respondent-plain tiff on leave and licence basis as alleged by him; that he was never in

exclusiv~ use and occpatio~ therC<; if<but the user'o/the c:; bin was given

~ \

- M.M. A:MON_KAR l'. S.A . .JOHAR! (Tu.fzapurkar, J.) 651 .· ' ' . . to him because of his attachment . as .' Fionouiary .Surgeon to Dr.

A, monkar Hospital, through thegood offices of one Dr. Rawalia'; that

• • I .." - ' ' the writing on the stamp paper of Rs. J.50 bearing date 4th May, 1970

signed bJ' the respondent...!..plaihtiff reflected the true nature and . character of the .arrangement.between the parties,;, it was emphatically denied that the sai~.

1 writing was obtained .by late br. Amo11kar, for the purpose r moti~~ suggested by the respondent-plaintiff or was not intended to be acted upon, (b) that the cabi.nfo question was not "ptcmises" withi.n'the meaning of s. 5 (8) (b) of .the Act, inasmuch as the same> .could n-c.t be sa'd to have been given on J.icence. 'separately' .. ,~, because the respondentplaintiff was permitted the user''thereof only' for '.r-1/2 hrs. in.the evening on week days hete.en 5.00 p.'m. to 7.30'

p.m.an~. for the .rest of the time .it was being used by the hospital staff.and thaton~ of the keys qf that cabin alyiays remained wi.th the , staff of• the hospital and hence .the plaintiff was not entitlrd to cny ..

-..,;... . . _protection of the .Rent Act;. and (c). that the cabin in question.being admittedly 'a room in the hospital' fell within \he 'e'xclusionary pert

of the definition of the licensee' given in s. 5 (4A) and as such was outside the protection 'cm1ferred bn licensees by s. J5A of 'i'he Atl. j ' ' ,, ____

, Jt may te stated th'at.while the aforesai<1. suii'was per.ct.iiig. the. ' , appellantdcf<11<1.ants on their 'part filed an .eviction petition being

.1 . EjectmentApplicaticn No. 259/E of 1976 against the plaintiff-respon-

~ d•nt seeki1\g his eviction from the• suit pre111ises uncl.er s .. 41 of , the • '"· Presidency Small Causes Courts Act on the.ground that.the plaintiff's

~ > right. to eccupy the suit cal:!in had come to an .end alongwitli the termination of is attachment as Honourary Surgeon to Dr .. Amonkar Hospital and the plaintiff resisted the said' evicticn en.the ground that he was a, protected Jicensee under the Bombay Rent Act as ani.end.ed by the Maharashtra Act XVII of 19(3 and was,' thereforto, not liable . ' to be evitcd therefrom. The two proceedings were '.heard together

and common evidence wiis recorded in the &c!aratory suit .being R.A:. "" ' - . ' N0. 779/2893 of .1973. . " . . . .. .

t • • • •

It is clea.r that on .the 'be.sis of the rival pleadings of tl; e two .parties in.the two pr?ceedings before the SmallCauses Court princip:illy

three isSl\es aros, e for .qetermination, namely, (1) v.:hat was the true . nature ofthearrange, ment.between the part; is regarding the user of the suit cabiti by t11e plaintiff, whether the plaintiff's user oftbe cabin was on Jeave and Jicente. l]asis on payment of mon.thly _compensatio~ or it .H

,, A •

,. B

SUPREME COURT REPORTS

[1984] 2 S.C.R. ,. . • was on account of his attachment as Honurary Surgeon to Dr .

Amonkar Hospital? In other .words, wether•the writing on the .stamp paper signed by. the plaintiff (E.xt. N; o. 1)' was a, genuine doument reflecting the true nature of the arrangement between the parties?

(2) whether the .suit cabin was not 'premises' within the meaning.of s. 5 (S)(b) of the Act? and (3) )Vhether the suit cabin was 'a room in in the hopital' falling within rl)e exclusionery part of the definition of 'licensee' under 5 ( 4A) and, therefore; outside the protectionc ontemplated by s. ISA of the Act? It is obvious thatthe first issue raised purely a question ill fact, the determi; iation whereof depended on appreciation of the evidence led by the parties before the Court while . the other two isues raised questions of Jaw:rather mixed questions

of "law and fact. ' • · . . . ~

( - At the trial parties Jed oral frs well as documentary evidence on all the is$ues arising in the case. TM evidence on the side or th~. fespondent-plaintiff consisted only of his oral testimony, during the course of•which he asserted that the user of the abin had been given to him by late Dr. Amonkar 'On leave and licence basis on payment of monthly colnpensation. On the side of the appellant-defendants , the o)'.al testimony consisted of depositions of two witnesses (i) Dr.

D.M. Amonkar (defendant No. 2) and (ii),, Dr. Rawalia and the.do.c\J.- mentary :evidence consisted of two writings obtained by late Dr. _).

Amonkar-'--one from the respondent-plaintiff and the either from Dr. Rawalia. Ext. No." I is a writing 'on a stamp paper of Rs. 1.50. bearing date 4-5, 1970 obtained. from the respondenf-plaintiff recor-· ding the arrangement with him, and Ext. No. 2 is a. writing on a. stamp paper dt. 23'4-1962 .signed by Dr. Rawalia recording the arrangement with him .'Both Bxts. No., I and'No. 2 are identical in terms and appears that Jong before respondent-plaintiff was allowc'c'. the use . of the suit cabin, Dr. Rawalia had been allowed the use of another cabin in the hospi!al prmises by late Dr. Amoi1kar on the sa1ne terll).s.

Each writing signed by.the occupant in terms .states: ''I am an Hen.

Surgeon to Dr. Amonkar Hospital•.

I am allowed to practice may. private consultation in the premises. I am neither licensee nor subtenant. I have to bear rateably the expenses incurred tcwan\s teleph.one,. electricity, use of furniture and instruments". Dr. Rawalia, through . .)¥hose good offioes the respondent--:-_plaintiff got the suit~· •cabin from late Dr. Amonkai; 'fully supported the appellant-defendants' case that late Dr. Amonkar had permitted the respondent-plain- ·

' . '

' .

'""

.. :-l-- ' •

.M.M. AMO~AR v. S.A. JOHAR! (fohap; irkar, J.). 653

tiff to make use of the suit cabin because-of his attach'ment as Hano- . . rary Surgeon to/ Dr. _Amonkar l; Iospjtal•. On an ppieciation of the.

ofal and documentary evidence and the surrounding circm{1stances, .. the trial Cout came. tq_ th, e ·onclusion that the user of the suit cabin' . had been ipermittcd to the respondent-plaintiff not on leave and, . licence basis but because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital and that Ext. No. I which was signed by liim , after fullv .realising its .implications/ was a gem1ine writing reflecting

_the true ature of the . arrangement between the parties and as. such <~ theplaintiff was not.entilted to the protec!ion of s. 15A of the Rent

 'Act and with the termination of his attachment as Hortourary Surgeon

to Dr. Amonkir Hospital his right to coccup~ the' suit~ cabin came to . end, The trial Court also decided the legal issues in appellantdefen- . . dants' favour with the result that the respo_ndent-plaintiff's detlara- . tory. suit was dismissed and. the ejectment application of the appel- rant-defendants \vas decreed.In appeal preferred by the respondent- . plaiii.tiff the Appeliate Bench of tJ; te Small Causes Court on a re-appraisal of the entire 'material .. on record confirmed the findings of. the

triaJ.ourt on the factual isue as also' on the. legal issues. The appeal was dismissed and the ejectment decree passed by the Trial Court in favour f the appellant-defendants was confirmd.' ' ·

' \

. . ·ai11St the dismissal of his declaratory suit nd the ejectmen! ( decree passed in E.A. N8. 2?9 /F of 1976. the respondent-plaintiff ·- --- approacheti. the High Cort undei Art. 227 of the Constitution by preferring two procee<J.ings ~Special Civil Application No. 30 o/,1979 a_nd Writ Petition No. 115 of .1979 bo_th of hich were disposed of by the High Court by common judgment rendered on 18th August,_ ,_,,. . 1980. The High Court was of. the opinion 'that there were two distur" ·

bing features revealed i1] the respective proceedings/judgrcent's of the . Courts below which were suggestive of non-judicial apprnach, some bias and partiality (in favour of the appellant....:..defendants and again.st . the respondent__:plaintiff) on their part which necessitated a full and

linteS.tricted exercise of its pow.er. bf superintendence by going to the extent of re-appreciating the evidence in depth.as if it were a first'Appel- . late Court; anq. after briefly.indicating what it felt were the two distur-

~ bing features, the High Caur_t re-appreciated the entire evidence fully . and in depth and came to the conclusioJf that the user of the suit

cabin was given to the responden!-'-plaintiff on ieave and licence basis and the. writing _Ext' No." I did not' repesent the real state of affairs' as far as the. re.pondent-plaintiff's fight to use the .. suit cabin was concerned and that the sanie had been iaicen by late Dr. Amonkar only

!..

I .

\. .E

. ' H

'--. __

( •

SUPREME COURT REPORTS.

[1984] 2 S. C.R:

for his' protection against his own. landlord, namely, Life Jnspraiice Corporation. The High Court also negativ.ed the findings recorded by the Courts below.on the two lega).tssues"and held that the suit cab.in was "premises" within the meaning of s .. 5 (8) (b) of the Bombay Rent Act, the same having bee~· given on licence 'separately' to the respondentplaintiff and that the suit cabin was not 'a room in the hospital' and as such the respondent-plaintiff could be and was a 'protected

Jicenee' entitled to. Claim protection under s. 15A: of the Act. ·The

High Court's illterferenee with the concurrent finding of fact recorded by 'the two Courts below .on the factual issue as also its conclusions

n the two legal issues are assailed befre ·s in the instant appeals.· . '

The first contentfon urged by counsei' for the appellant-defend: ants is that the question whether the ser of the suit qabin had been

allowed to the, respondent,-plaintiff on leave and Jience.o!Jasis or because of his attachment as Honou.rary: Surgeon to Dr. Amonkar ·

Hospital and'whethor the writing fat.· No. J was a genuine document • and reflected the tnie nature of the artangement .between the partjes - or not was purely a question f fact depending upon the evidence Jed by the parties and it was on an appreciation of , theoral and cl.ocumentary evidence ancl. the surrounding circmstances that both the lower

Courts, had come to 'the conclus, ion that. the' respondentplaintif('s occupation of the, suit cabin: was not on leave and licence basis but

E ·, onaccountofhisa\tachmentasanHoiiourary Surgeon to' Dr.Amonkar Hospital and that the writing Et. No. I was not any camouflage or facade obtained by late Dr. Amonkar for the purpose suggested by the respondent---'p)aintiff b.ut was' a genuine document which nfii'ctcd the real arrangement betwee11 the parties and, such a. concurrrn.t fir.ding of fact, unless it was perverse, which it was not because there wqs ample evidence 011 record to support it, could not be intrfer<d with by the flig)!_Court under Art: 227 .. CouriSl further urged that the justifi- F

cation given by the High Court for inierfering with such ccncurrcnt finding uf fact was unsustainable inasmuch as the socalifd two disturbing features wer~ not really auy distrubing features much less .were theY suggestive of any !'lon:judicial approac)1 or some 'bias or partiality on the part of the lower Courts in favour of. the appellant-cl.cfenc.ants and /against tl\e respondent.....plai!'tiff. Counsel' strongly urged that '' , the suggesti.on of non-judicial approach or of bias 9r of partiality on the part of the .learned single Judge and the two learned Judges of the

 H Appellate Bench of the Couhrt ofbSeme al\ CdaeuseBvs we nas 0 nunmwea~;:~~:dH~:~ • called for and ought not to ave n ma . , ~.

' ;,,:.

. -.J •

...

I: ' . , . . . .

I M.M. AM~NKAR v .. S.A. IOHARl (Tulzapurkar, J.) .

6SS

Court's view. on the factual issue. was wrong. It was.also , contended. that evid, nceclearly showed that the suit c, abin.had not been 'separately' given to the respondent-plaintiff: and in 'any case it was 'a rocm fo the hospital' and as s.uch' the respondent-plaintiir'was not , entitled to claim any protection of the Bombay Rent Act. Of\ the, other hand, cou;, sel for the respondent-plaintiff supported the .. High Court'g findings on all the issues and urged that there was no 'reason to disturb the judgment !ll)der appeal. ·

. . . This necessitates a.close scrutiny of the two disturbing featutes~ ;~ one pertaining to theproceeding bef0re the, trial .. Court and the other pertaining to the judgment of the Appellate Bench-which according

io the High Court ma(\, e it to undertak.e a re-appredati<Jn of the entire . evidence in depth 1as if it were a first appellate Court. lU-theirial Court

.~--

after examining their two witnesses (he appellan(-defendants clc.sed their case on 18th September, 1976 and the case was fi"ed for ari; u,. ments 'an 4th of October, 1976,' o;, which day, however, argumen\s could npt be heard and the matter was adjdun1ed. Ii appears that On.

18th September, 1976 during the .course of his cross-examination it was .suggested to"'Dr. Rawalia that in his Income-Tax Returns he ha~.· been showing payment of Rs. 223 per month to Dr. Amonkar as.rent;. he denied the suggestion and asserted that he had been only showing

'~ . the amount as paid to Dr. Amonkar. In other words, he had merely . shown the payment as expenditure without indicating its character. / On !2th of October, 1976 the resllondent-plairitiff mae an appljcation .A-statmg that on 8th October, 19"6, he had come to know that Dr. . Rawaiia had filed his Income Tax Returns showing that he , had paid Rs.1870lis rent for 1972-73, Rs.2250as rent for 1973-74 and Rs .. 2275_,,<is rent for 1974-75 and had daimed deductions of the sai~. amounts as expenses and, therefore, (a) Dr. Rawalia. be nr~ Jkc'.Jcr further cross_,, xamination anU (b) tha1 his Jnccme Tax Rturns for the said thiee years be got produced through a witness summos or . le, tter of request being issued t~ the Co.minissioner of Income Tax, Bomay. Obviousiy, the application was made with a view to confront

' ...

Dr. Rawalia by.his own Income Ta7Returns which he had fi~d for provmg (1) that Dr. Rawaha had made a false statement and (11) that ·• payments made by him to the apptllmit-defenc!:lnts bore the charac- · ter of rent. It cannot be disputed that the aspects sought to be proved by recalling Dr. RawaHa and by geting liis,.Jncome Tax Returns prcf.ued were relevant to the issue involved in the case, though it is well'_ settled that a particular nomenclature .given fo paymentiymade . by a paliY is not conclusive or decisive of the wetter. 'fhe applicaticn :at£·

,.._'_

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SUPRBME COURT Rl!PORTS.

[1984) 2 S.C.R.

dismissed. by the learned trial Judge on 18th of October, J 976 and according to the High Court this rejection o! the application was a disturbing feature. suggestive of a non'::judicia.J approach, some bias '.or some partiality in favour of the appellaµt-dfend.ants on the part'

of the learned trial .lud.ge .. In our vi.ew the comments of the !Iigh Court . in the matter of rejection of this applicati01{ would have had ; ome

B . r force if the, application had been 6mply dismissed w.ithout giving any

reasons but the learned trial Judge passed a lengthy order giving three reasons for the rejection of the application: (a) that vague averments . I 'nvere made in the application about the -receipt of the information". '{:. regarding Income Tax Returns of.Dr. Rawalia on 8thOctober, 1976 .. without the 09casion for receiving the information or. the. sonrce of..._,,_ C information, being indicated and that' when the Cm1rt made a qu'erry . in that behalf his counsel was not willing to give particulars or disclose the source of information and it was, therefore, difficult to believe that .. 'the respondeht-plaintfff came, i~ PC!ssession of the. said inf9rmation . after the cross-exarllination of , witness \Va'S over arid afte; th_c closure .of appellant-defe'ndants; case; (b) that under s. 1°38 (I) (bi of the D Income Tax Act, 1961 the respondent-plaintiff could have and should have obtained the necessary information or material froin the Co~;

missioner( of Icome Tax by making an application in the. prescribed c form and, since he had not done so 1t would not be pi:oper to help him "' . t-0 get the information through the Court; in other words, if he had

.attempted and failed to get the information by followillg 'the prescri- E bed procedure the Court could have 11elped him; and (c) that the Co1,1rt's power to recall, and exainin~ any witness at any stage of the \ suit under Ozrder XVIII, Rule 17 of C.P.C., on which strong reliance-_..; A-, was placed by Counsel for the respondent-plaintiff was to be execised _ . in exceptional circumstances and no exceptional circumstance had been made out by the respondent_:_, plaintiff inasmuch as these .docu- F . ments would .have become available to him before he started the witness'~ cross-examination. May be in the exercise of iis dicretion . f anot.her Court might have taken a different view and allowed the application. But unless the reasons given by the learned trial Judge could be said to be nioon-&hine, flimsy or irrational the rejectiJn of the application cannot be dubbed as suggestive of non-jµdicial approach e .. o~ bia.s or partiality on his part. It is also possible that the reasons - . for givlng a ruliii.g on a point or'for rejecting an'applic;:ttion may be

wrong or disclose a non-judicious exrcise of discretion and open _to oorrection in appeal, but no motive of a, non-judicial app!oach or bias or partiality could be attribuied unless, as we have said above, the H reafons given are moon .. shine or so flimsy or irrational that they are • 'llarcal. Cousidered dispassionately, such a tlling can never: be said

' •

...

. -. '

• M~M. 'AMO!oUU.R v ... S.A. JOHAR! .(Tu/zapurkar, l.) ' . 657 \ - : . . .- . . . f~;·. '."'-'. . . . . , about th<i"reasous given by the trial Judge for rejecting the application. ·

It is true that the appellafe Court has not dealt with this point though iu ground No. 27 of the Memp. of Appeal a point had been.taken that 1 the application .had beeu '.wrongly rejected but in all , probability it .

was not argued by counsel otheru, ise the appellate. Court would have dealt wi.th it. In the High Court no asscrti.on was made that the point was actually argued or pressed before tjle Appellate Bench but it was ,· meidy urged that althbugh a complaint against the rejection f the

~ .~. ,,, appllcationhad been made in Ground .No. 27 of the Memo.of Appeal

 f, the' anpellate Court has tj°ot dealt with.it. This alo .shbws tht the.

ejection was not' regi; rded by the respondent-plaintiff or hjs counsel .

,~ before the appellate Court as any serious or disturbing feature. In any .. -._ case, as stated earlier, the rejection of the appliciition could not be C regarded as hving stemmed from anx_ oblique motjve or. purpose.

This soalled .disturbing feature., therefore, did not afford any justification to the; I{igh Court to undertake a .re-appreciation. of the .entire

~- evidence in depth for reversing a concurrent .finding of fact .recorded by the. two Courts below. ·

~· ...

Turning 'to the judgment of the' Appellate Court, the so-calkd disturbing feature 'noted by the High Court, is, in our view, so. innocqous and inconsequential that it cO'uld hardly afford' any justification

~.... to reappreciate the whole evidence as clone by it. It appears that during the. hearing of the appeal after .supporting the trial Court's finding on ' . {t~ factual issuy as .also .th<o'firidings on' the legal issuj)s and' pressing

 to their acceptance, counsel for .the , appellant"rllefendants put for- -. . ' ward an alternative lstsubmissicin that even proceeC!ing. on the assumptfon that allc ora1 licece h.a4. been created in. respondent--'plaintiff.'s favour by-late ill. Amonkar, as alleged by him, the material on record . . '"\ showed that the'sai~ Jicen.cedid not subsist on the relvant date,.namely, .

1-2-1973, mentioned in' s .. 15A and, therefore,, he was not entitled to .

an~ protection under the Act, and in -that behftlf an averment made by . . the respo, ndent-plaintiff in paragraph 4 of his Complaint dated. • f li4-3"1.973 addressed 'tothe Inspector ofJ>olie, Gamdeyi.Police Statlcm

was relied, which avermen!' runS'thus: ·"Ever since ihere has been a , publicity in the newspaper. that the Govt. of Maharashtra is aboJ;.. shing he leave and licence system (meaning thereby that the Govern-· ,,;... ment is t!tinking ofconveting occupa.pisunder leave and licence basil

into 'deemed tenants') Dr.· (Miss)· Usha .Amonkar and Dr. D.f>.C. Amonkarare asking him to vacate the premises",' and the. contention was that .since the Bill amending the Bombay Rent Act (snbsequentlf numbered as Act XVII of 1973) had. been introduced or publiihet'I itl. .

'_. . . ' . ,. . .. . -... · .

' '

. \\ \ I ., '~ • ' .

.)

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658 ' . '

[1984] 2 $.C.R.

S\iPRBMfl COURT REPORTS . ~~ :::~.,:±~ . ·( August, 1972 the respondent-plaintiff's licence, on his own aforesaid .'""-' averment, was"not subsisting and had come to an end long before. 1-2-1973. The. appellate Court accepted this argument on the footing that the Bill had been intrddnced (not in the Assembly) in 'newspapers for, information to the public in August 1972 and held that the respon- Mnt-plaintiff's .licence, iftany. was not subsisti11g 011 Isl of febn\ary,

I. 973 am! he w. as riot enti.tied to protection ev. en if his.·ase were assumed cL. to be true. 'According to the High Court such a conclusion drawn b)•

the appellate Bench ws an impossible one having regard to the plead-· >--- l. ings and the cyidence on record, foi-, according to•the High Court, it was by notice dated 20th March; 1973, issued by the.widow of I~ Dr. Amonkar that the respondent-plaintiff was.categoriclly told that ' he should make altefnativc arrangment for his consultation practice elsewhere with effect from 1-4-.1973 which showed that his licen£e was tenninatedwith effect from date. It must however be bcrne in mind that whi1t was termiatcd h'' the notice dated 20th. , March, 1973 was the respondeJ1t_,:plaintiff's attachment as an Honow .., rary Surgeon to Dr. Amon kar Hospital and. not his licem:e. ln fact, it was never the case of the appellant--defendants that the respondentplaintiff was a. licensee and. _therefofc,_ neither their pleac\ing nor their notice could be used for showing that the. respondent-pl,, intiff's licence. continued upto Jst f April, 1973. The appellat-e Court while accepting the alternatiye sbmission was proceeding on theassumption ··~-~ . that the resopondent-plaintiff's occupation was as a licensee and on that basis it considered what would be the effet of the avermrnt made • by him in para A of his complaint which suggested that his oral lice".~~}.. had been terminated by being 'asked to vacate the cabin long before 1-2-1973. Now in the first place assuming. that the appellate Court's conclusion in that behalf was not justified on the evidence on recorc, the same! contd at the highest be regarded as a 'rong conclusion but it is impossible to say that it was suggestive of a non-juc\icial apprcach y or bias or partiality on its par!.. Secondly, it amounted to acceptance of the alternative contention on an assumed basi.s after the appellate Court had already, on a re-appraisal of the entire material in' the case, recorded its finding on the factual issue in agreeent with the trial Court in favour of the appellant-defendants: In other words, theconclusion. qn the_alternatiVc subrnssin ·, vas not 1nere1y i.nnocuous i.e. unmotivated by any oblique purpose but inconsequential to the dispcc -lsal of the case. Ha'{ing regard to the above discussion we are clearly """' • of the view there was no justification for the High Court to undertake ·· . ' a' re-appreciation of the evidence: and it <iutght !'ot to ha.ve interferred .

'with the concurrent finding of fact recorded by t]·, e two Courts below

 on tb.e factu.al isse arising in the case. •

, .. ,./

M.M. AMONKAR _v. ~.A. JOHAR! (Tulzapurkar, '.!.) . 659

Though _the aforesaid conclusion of ours would be sufficient to ' dispose of the appeals, even on-merits we feel that the broad faturc• , emerging from the, evidence ori reeord make it d.ifficult to accept t.he:

: respondent-plaintiff's case that .the user of the 'suit cabin was penriitted to him on leave and licence basis as claimed by him. Admittedly, Dr. Amonkar H'ospital was never exclusieiy a Maternity and Gynaeocological Hospilal and had a 'Nursing Home Department where general

e>perations were undertaken and as such.attachment of couple of doctors as Honourary S.urgeons to it would he most natural and. since r.t the : materi<il time. both the _senior Dr. Amonkar_ (since deceased) an<\, the .. junior Dr. Am?nkr (defendant N~. 2) were on account of their ill-

~Jiealth, unable lo work with full vigour, with only <1.octors (Dr. Mi•s ' . Usha Am0nkar and.pr .. Rawalia) in attendance the resp<'m.dent--'-plain-

'tiff's attachment as Hlriourary Surgeon to it for temporary dt\ration

till Dr, IMrs.) Gaiton.de rurned from Calcutta, couldnct be said to be unecessary s opinefi by 'the High court but wis.more probable ..

Even. the High Court has observecfthat late Dr .. Amonkar had obliged '

the~ respondent-,, p)aintiff by accommodating him in the suit cabin tempi>rarily when he was suddenly made. to fowe his premises o.n the

third floor. of the very building and that the respondent-plainti, ff had iakenadvantage of the gesture shown to him by late Dr. Amonkar as Dr. (Mrs.) Gaitonde was away at Calcutta. ' . ~. . ,

. Secondly,. even the High urt ha• accepted the po_siiion thaf the ( user of the suh cabin became. available o the respondent-plaintiff .0._as a result of his d!fect approach to late Dr. Amonkar but through the • .

I . . . _intervention and good offices of Dr. Rawalia, arid l)_e has fully supported ti1e Appellants-Defendants' case that such user was allowed to the

respondent~-plaintitfan the.same terms on hich he had been permitc. ted the user of his cabin In-that Hospital, namely, b; causeof attach- .

'-:-<( • ment as Honourary Surgeon to -Dr. Amonkar Hospital. But Dr.

...

'Rawalia's evidence has been discarded by the High Court.for reasons which are, in our "view, not sound.· Aprt from some minor contradictions (which were really omissions) that appeared in his evidence in light of the averments made by hiin in his earlier Affidavits filed in the_

G proceedings, the main reason for° discarding his evidence has been that he could not be regarded as disinterested witness because of his close ties with the Amonkar fall)ily and that he had displayed-an >-,"). attitude of befog ever willing to sign any afii.davit or to swear to any~.,. thing'lo help whom he had come to help; for instance, he had gone to the extent of saying "so. far I am not asked to go out but I an\ prepared .

;; ...... ; i.·,~~

to go .as and when they will tell me to get out", wh1clt showed tltat ·. ·

'"

~ "

• • '

'660 illJ!'REME COURT REPORTS

(\1)84] _2 S.C.R.

he had identified himself with.Amonkars. In cur.view these aspects r f':would. not be good reasons for discarding his evidence. True, s0md of .:'.his.answers do show that he was having dose ties .with the Amonkar

family but.this is not unnatural if itis borne iQ mind th~.t he has been. •' i<'.wotking with them ii:t that Hospital since 1954 and the.mere fact tht:t 'lie' hass'tated that he was prepared to "go ;., hene:ver Amonkars would rask him to go would not show that there was any private or secret- : understanding between him and Amonkars as was sought to be. sug- ; gested by counsel for. the respon, dent-plaintiff. Since, he , was a signa-. i' tory to writing Exh. No. 2 all that he wanted \o convery was that his 'user of the cabin wasbecause of his attachment as Honourary Surgcot~ : to Dr. Amonkar Hospital'and as such his ri'ght to occupy the cabin

•·; __ would. come t" an end as and when his attachip.ent woula cease, that"· . ' is to say, as and when Amonkars would ask. him to go. Far from show- . ing any interestedness in the Amonkars his aforesaid statement was . ·-

. 11.1! admission against bis own interest, as it exposed him to imminent __ / .i.,. , risk .of eviction, and as such deserved commendation. Honouring one's · , . ' ' . ~·

" D

, , word has. become a rare virtue tbese days and it would become_ rarer . ' still if those who'display it are to be discredited like this. To disbelieve

... ' .

" Dr. -Rawalia who showed his willingness to honour his word by stick-:

. ing to the arrangement to which he "."a~ a signatory and fo5net behaving: '

111. the manner as :respondent-plamttff has done, would be a travesty._, 'of justice. .; ; ' j

: Thlrdiy: turning to the do, oumentay eyidtinc, itmustheobserved J; . Uhat the three.or fo11t receipt produced by the respondi:nt-plaintiff'

; showing monthly payments made by him would be of no avail bec!'nse I' \he nature or the character of th<i payment, whether it was by way of ' compensation or towards ratable expenses, has no where been indicated

I . . . "" 'in any of them. But s.o far as Exh .. No. 1 is concerned it is clear, that 'r , :. this document in terms indicates that the respondent-plaintiff was"

; \permitted, to use the suit , cabin not on leave and licence basis but be- ' -cause of his attachment as Honouiary Surgeon to Dr. Amonkar Hospi-

~ tal and truiJ it contains a.categorical admission on'h.is par!'tJiat he was ·

... neither a tenant nor a licensee thereof. In crosxamination respon_- .

G .. dent_:plaintiff admitted that be had signed this documen.t after. fully ..

"' .. :understa, nding the contents thereof. If that be so, .his oral _testimon, Y, j

. ·:.which runs-counter to the document cannot obv10usly .be accepted ' :.;._,..,.

:unless, of, course: the document'is showu to have,, been obtained. by- ' late D~; monkar from. him °for the purpose of avoiding a p_ossible ~

objection that might be raised by 'the LI.C: and was not to be acted Up ..

Ollllti lillgjlested by the FOspoudent:._plaintifr,, As. regards the motive or ..

• '

• ...

. . • M.M. AMONKAR. v. S.A. JOHARI.(Tu/zapurkar, J.) ' ' . . . ' .

purpose for which the document wassaicl to hae be;, iiobtined.there are two cir£umstances which militate against it., Jn _the first place nt the material time that is in May l 970 uniawful subletting of promises '

was a. ground for eviction and not ihe giying it on leave and licence bas'is:and. late Dr. Amonkar might have faced some difficu.Jty from his own landlord, namely, L.I.c. if he had sublet t~, e aid cbin to the respondent-plaintiff but at that time it coufrf not be within the contem plation.of anybody to.seek protection gains! givlngpreises.on licence ' a!So, and even so Ext. No . .! in terms records that respond.ent-pleintiff was neither a ienarit nor a licensee -of the suii' cabin. Sucha double ., ir---: protection wa~ un"necessary as agalnst the L.I.C. but: i.t was necessary

.. as against therespondent-plaintiffto.whoin late Dr. Amonkar want<d ' . to ensure tht the use'r of the cabin ws allowed only .fo the capacity of anattachea Honourary Surgeon to the Hospital and in no ther - "" - ' ' .

.A -"'f

and that is-what" Ext. No: J says, In our vi.ew, the. motive suggested by the re.spondent-'plaiiitiff does noi fit in with the sifoati0n or stilte of affairs that existed in May,_1970 and. the document really records the true transactin between-the parties; namely, that the respondent- . plaintiff wasalJowd 'the user of the suit cabin because df his attacliment as, H<iuorary Surgeon to' Dr, Amonkar .H:ospital.·:_Secondiy, if

. E.xt. No. 1 was not to beacteci upon and it wassigned byrspondent plaintiff on the representation made.to him by late Dr, "Amonhr that it wa~ simply for the purpose of protecting hli; nself against the L.fC. and was not to M nsed against the respo.ndent-'-plaintiff, ihe re'spondentplaintiff could 'have obtained froiii later Dr. Amonkar.a writing I , .. . . . . . ,1.._tl]at effect which he could have preserved'. or hjs own safety but no .. such \Vriting was obtained by bin). from late Dr. Amonkar and, in our view, if.the respond.ent-plantiff's yersion were true that ExL No. 1- had been obtained on.'tbe alleged representation two writings coul_d have been execute<\ and preserved by each for his own safety'but this was not done. Iftberef0re, resp6ndent-p1aintiff's suggestiop as to why Ext. No. 1 was obtained by late Dr. 'Amonkar from him' is not' believable-and for the reasm; tS indicated above it is.riot-the respon-. dent-'-plaintiff must be held boundby the writing E>:l .. No. !; which he execute~ after fully understanding the contents thereof and .his oral" testimonythat the user of the cabin was giveu to him on leave and licence basis cannot be. acceptd. _ 1 · ,

. .

It may be stated that the main reafon why the.-High Court felt that Ext. No. I did not reflect the true' nature of the transaction between the parties was that no documentary evidence was produced by the . appellantefendants to show that actually medical sorviees were

G .

. F

• 662 SUPRJlME COURT REPORTS -

I [1984] 2 ~.C.R.

_rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On his point there was merely tlie respondentplaintiff's word as against ,.:ot)l.e testimony of defen{!a, nt No. 2 and Dr. Rawalia. Respondent-plain- .

. tiff claimed that he had not rendered any services to Dr. Amonkar

HosJ:itaras .an attached Honourary surgeon thereto while bo!l; the

witnesss on the side of the appellant-<lefendanis asserted that con~ aultations were held with the respondent--plaintiff whenever occasions arose in maternity cases done in the Hospital. Leaving aside the High Court's view about the unsatisfactory nature of evidence of Dr. Rawalia, there was no reason why the evidence of defendant. No. 2 (Junior Dr. 'Amonkar)--who had as per the High Court's view given evidence in" responsible and restrained manner-shouid not have been accepted 1 • on the point. Defendant No. 2 had clerly stated in his evidence that oonsultations with the respondent-plaintiff were ll.e!d whenever preoperative or :post-operative problems arose in maternity cases and this was don~ at least 4 or 5 times a month and he was consulted in his capacity as an Honorar¥ Surgeon ;:ittachec\ to the Hospital. t is true that no documentary recorg of such consultations was produced but whether any record of consultafions would be maintained or not would depend upon the nature. and t:vpe of consultations made and it is eq1hlly possible that due to lapse of time 'that had occurred between auch consultations and the trial such record may not have been preserved. In 'our view defendant No. 2:s evidence in this behalf heed not have been rejected simply.' because no record of such consultations I, was produced. Furthermore the respondent No. 2 admitted in his \ evidence that he had made use of the Operation Theatre together with _ the facilities attached thereto of Dr. Amorikar Hospital for performing . operations ,;-n his private patients a.nd though there is a controversy as to whether such user of the Operation 'Theatre was freJ; .of charge or on payment, in our view such user of Operation Theatret 2gether with the facilities atiached thereto would not have beell) perrnittd to respondent.....:plaintiff. if he were an independent licensee of the suit cabin and was. not. connected with and attached to the Hospital. Lastly, the evidence clearly shows that right. from commencement of his occupation of the suit cabin till January 1973 (when the respondentiaintiff obtained an interim injunction) the respondent . plaintiff had

o servant of liis own attached to the suit'cabin but he was getting the iervices frothe inembers of the Hospital staff in the matter of sweeping, cleaning and dusting. of hi~ cabin, ceivig .his. patients. m the . , commoi:i waiting room and ushrmg the~ mto his cabm for which no ..

5eparate payment was bing. made hr him. Were he _an mdepenent.'.' · lioeaiee of. the liuit cabin :!lnd not attached-to the Hospital such service. ,

I . .

M.M. AMONKAR v. S.A. JOHAR! (Tulzapurkar1) . . 663 ,. would noLhave been mai!e available to him free. of charge.

' " Jn our~\iew the aforesaid broad features emerging from the evidence on record clearly ·)upport _thee.ppellanis-i.\efeno.ants' cose .. that the .user of the suit cabip.was allowed to. the respondent-plainti(f not on leave and icence basis but because Of his attachment" as: Honou-·

rary Surgeon to Dr., Amonkar Hoplta'I.' Such being our

4 conclusion on the factilal'issue it is un-necessary for us to deal with or discuss the . '"-"' other two sen!i_'.legal isses that wore argµed before vs in theppeals. • . . We are clearly of the view that the High_Court was .not right' in revers- , . -~ ing the concurrent , finding of fact recorded: by bpth the courts below

and even on merits the High Colirt judgment cannot be sustained: ~.

The. appeals are therefore allowed and the High Couri -judgment is

set aside and the concurrent firi!).ing of both the lower courts n the. facttial issue .is restored. 'The dismissal of the declaratory suit and

the findings in tii.e Eject:lnent Appiication E.A. No. 259/E of 1976 are • confirmed. Parties will bear their re~.Pective costs tbr6tigho.ut.

.tf

S.R.

.-f ••

.__

.---

B 1

M. AMONKAfl &. OTHERS

S.A. JOHARI

Article 221

required with effect from 1-4-1973 and that he should make hls own arrangements  for his private consultation.

section 15A

Maharashtra Act XVII of 1973

Rawaiia

section 15A

Small Causs Courts Act

Income Tax Act

CPC

Amonkar hospital

CIVIL APPELLATE JURISDICTI'JN

P.H. Parekh

Manik Karanjeial

Ind11 , Malhtra

A.nil n(ivan

I TuLzAPURKAR

Art. 227

Maharashtra Act XVII of 1973

Amonlcar Hospital

Bombay

M. D. Amonkar

J'ohari

Dr: J'ohari (the respondent-plaiatiff) an M.B.B.S. of Bombay, ' '
F.R.C.S. of London and Edinburough and' Hoi10urary Surgeon attached to G.t.

s. 15A

Bombay Rent Act

Amonkar

Amonkar Hospital

Suman Gaitondey

Calcutta

Tu.fzapurkar

s. 5

s. 5

Presidency Small Causes Courts Act

Jicensee under the Bombay Rent Act

s. 5

D.M. Amonkar

Rawalia

Rawalia

Amonkar Hospital•.

Amonkai

s. 15A

Art. 227

s. 15A

Rawaha

RawaHa

s. 1

Income Tax Act, 1961

C.P.C

Govt. of Maharashtra

Usha .Amonkar

D.f>.C. Amonkarare

Amon kar Hospital

March, 1973 was the respondeJ1t,:plaintiff's attachment as an Honow .., rary Surgeon to Dr. Amon kar Hospital and.

M.M. AMONKAR

, .. ,./

M.M. AMONKAR _v. ~.A. JOHAR! (

Amonkar H'ospital

Am?nkr

both the senior Dr. Amonkar (since deceased) an<\, the .. junior Dr. Am?nkr (defendant N~. 2) were on account of their ill-

~Jiealth, unable lo work with full vigour, with only <1.octors (Dr. Mi•s ' .

Usha Am0nkar

Gaitonde

Amonkars

Amonkars

Amonkar Hospital'and

2 all that he wanted \o convery was that his 'user of the cabin wasbecause of his attachment as Honourary Surgcot~ : to Dr. Amonkar Hospital'and as such his ri'ght to occupy the cabin

•·;  would.

-Rawalia

Amonkar Hospital

Rawalia

appellant-<lefendanis

Amonkar)--who

Amorikar Hospital

Amonkar Hoplta'I.