civil appellate jurisdiction civil appeal number 1359
 nt  of 1974
from the judgment and order dated 11.1.1974 of the
orissa high companyrt in special jurisdiction case number 62 of
1972.
govind das p.n. misra d.c. taneja and p.k. juneja for
the appellant. s.desai p.k. bhatnagar and miss a. subhashini for
the respondent. the judgment of the companyrt was delivered by
pathak j. this appeal by special leave is directed
against the judgment of the high companyrt of orissa and raises
the familiar question whether a loss suffered by the
assessee is a capital loss or a revenue loss. the assessee deals in automobiles and also sells spare
motor parts. for the assessment year 1963-64 the relevant
accounting period being the year ended march 31 1963 the
assessee claimed a loss of rs.53650 sustained by it on
disposing of its subscription to the orissa government
floated loan 1972. it claimed that the loss suffered by it
was revenue loss and therefore deductible against its
profits for the year. the income-tax officer disallowed the
loss in the view that it was
a capital loss. the assessees appeal was dismissed by the
appellate assistant companymissioner of income-tax. but on
second appeal the income-tax appellate tribunal accepted the
contention of the assessee that the subscription to the
government loan was companyducive to its business and that the
loss arose in the companyrse of the business and that
therefore the assessee was entitled to a deduction of the
loss claimed by it. the accountant member and the judicial
member wrote separate but companycurrent orders. at the instance
of the revenue the appellate tribunal referred the case to
the high companyrt of orissa for its opinion on the following
question of law. whether in the facts and circumstances of the
case the loss of rs.53650 sustained by the
assessee on the sale of the government loan is a
capital loss or a revenue loss. disagreeing with the findings of the appellate tribunal
the high companyrt held that the loss was a capital loss and
accordingly answered the reference in favour of the revenue
and against the assessee. at the outset we find it necessary to numbere that the
high companyrt has taken the view that the factual substratum of
the case has been misconceived by the appellate tribunal and
that it is therefore entitled to re-examine the evidence
and arrive at its own findings of fact. we think the high
court fell into serious error in doing so. it is number well
settled that the appellate tribunal is the final fact-
finding authority under the income-tax act and that the
court has numberjurisdiction to go behind the statements of
fact made by the tribunal in its appellate order. the companyrt
may do so only if there is numberevidence to support them or
the appellate tribunal has misdirected itself in law in
arriving at the findings of fact. but even there the companyrt
cannumber disturb the findings of fact given by the appellate
tribunal unless a challenge is directed specifically by a
question framed in a reference against the validity of the
impugned findings of fact on the ground that there is no
evidence to support them or they are the result of a
misdirection in law. there is a long line of cases decided
by this companyrt laying down this proposition. see india
cements limited v. c.i.t. 60 itr 52 64 hazarat pirmahomed
shah saheb roza companymittee v. c.i.t 63 itr 490 495-6

i.t. v. greaves companyton company limited 68 itr200 c.i.t. v.
meenakshi mills limited 63 itr 609 613 c.i.t. v. madan gopal
radhey lal 73 itr 652 656 hooghly trust limited v. c.i.t.
73 itr 685 690 c.i.t. v. imperial chemical industries
 india  limited 74 itr 17 and aluminium companypon. of india limited

c.i.t. 86 itr 11. the high companyrt has relied on company
missioner of income-tax bihar and orissa v. s.p. jain. 87
itr 370 to justify its re-examination of the evidence and to
supersede the findings of fact rendered by the appellate
tribunal by findings of fact reached by itself. in that
case however the questions raised in the reference before
the high companyrt included questions specifically challenging
the findings of fact reached by the appellate tribunal as
being invalid in law. in the present case the question
referred to the high companyrt was framed on the assumption that
it had to be decided in the factual matrix delineated by the
appellate tribunal in the circumstances the findings of
fact set forth in the judgment of the high companyrt must be
vacated. we would have sent the case back to the high companyrt
requiring it to answer the question of law referred to it on
the basis of the facts found by the appellate tribunal but
we refrain from doing so and propose to dispose of the
reference ourselves on the statements of fact companytained in
the appellate order of the appellate tribunal. the case has
remained pending through its successive stages for the last
over 20 years and it is appropriate that it should be
disposed of number without further delay. according to the statement of the case drawn up on the
basis of the appellate order of the appellate tribunal the
assessee was told that if it subscribed for the government
loan preferential treatment would be granted to it in the
placing of orders for motor vehicles required by the various
government departments and to the further benefit of an
advance from the government up to 50 per cent of the value
of the orders placed. pursuant to that understanding an
advance to the extent of rs. 1837062 was received by the
assessee and a circular was also issued by the state
government to various departments to make purchases of the
vehicles required by them from the assessee. because of the
advance received from the government the assessee was able
to save rs.45000 as bank interest during the year. it was
also numbericed that the sales shot up substantially. on
september 4 1961 the assessee made a deposit of rs.5 lakhs
consequent upon a resolution of the board of directors
passed about 6 weeks before after a statement made by the
chairman during the board meeting that the government had
approached him to subscribe to the government loan and that
the companypany should do so as good orders companyld be expected. the purchase of the loan was approved by the board of
directors and was ratified in the annual general meeting of
the shareholders held on december 31 1961. the appellate
tribunal found that having regard to the sequence of events
and the close proximity of the investment with the receipt
of government orders the companyclusion was ines-
capable that the investment was made in order to further the
sales of the assessee and boost its business. in the
circumstances the appellate tribunal held that the
investment was made by way of companymercial expediency for the
purpose of carrying on the assessees business and that
therefore the loss suffered by the assessee on the sale of
the investment must be regarded as a revenue loss. we are of
opinion that the appellate tribunal is right. the high companyrt as has been mentioned re-examined the
facts on the record and found that the investment was number
connected with the orders placed by the government with the
assessee and the advance payment made by the government
departments to the assessee and it was in that companytext that
the high companyrt held that the investment in the loan was a
capital assest and the loss was a capital loss. the high
court took the view that the investment was of enduring
benefit to the assessee and therefore it companyld number be
allowed. we find it difficult to hold that an enduring
benefit was brought about by the assessee investing in the
loan. so far as orders from the government departments were
concerned the material on record shows that on august 30
1961 it was decided to purchase 16 jeeps 8 trucks and 4
one-tonne pick-up vans. there is numberhing to show that there
was any reason for the assessee to hold on to the investment
in the loan indefinitely. there was numberenduring advantage. accordingly we hold that the investment did number bring in an
asset of a capital nature and that in the circumstances of
the case the loss suffered by the assessee was a revenue
loss and number a capital loss. it was held by the orissa high
court in companymissioner of income-tax v. industry and companymerce
enterprises  p  limited 1979 118 itr 606 and by the madras
high companyrt in additional companymissioner of income-tax madras-
ii v. b.m.s.  p  limited 1979 119 itr 321 and again in
commissioner of income-tax tamil nadu-v v. dhandayuthapani
foundry  p  limited1980 123 itr 709 that where government
bonds or securities were purchased by the assessee with a
view to increasing his business with the government or with
the object of retaining the goodwill of the authorities for
the purpose of his business the loss incurred on the sale
of such bonds or securities was allowable as a business
loss.


civil appellate jurisdiction civil appeal number 281 of 1955.
appeal from the judgment and order dated march 18 1954 of
the bombay high companyrt in income-tax reference number 35 of
1953.

n. rajagopal sastri and d. gupta for the appellant. j. kolah and ram ditta mal for the respondent. 1959. may 8. the judgment of the companyrt was delivered by
hidayatullah j.-this appeal on a certificate of fitness
granted by the high companyrt of judicature at bombay has been
filed by the companymissioner of income-tax bombay against
ranchhoddas karsondas of bombay  hereinafter referred to as
the assessee  under s. 66a of the indian income-tax act. the facts leading tip to this appeal are as follows for the
assessment year 1945-46 a public numberice under s. 22 1  of
the income-tax act  hereinafter called the act  was issued
requiring every person whose total income during the
previous year exceeded the maximum amount which was number
chargeable to income-tax to furnish within such period number
being less than sixty days as might be specified in the
numberice a return of his income in the prescribed form and
verified in the prescribed manner. this numberice was
published on or about may 1 1945. the assessee did number
make a return of his income. the income-tax officer while
examining the books of account of a partnership called the
assar syndicate of which the assessee was a partner found
that in the account year companyresponding to the assessment
year 1945-46 there were six cash credits aggregating to rs. 59026 in the name of the assessees wife. before however
the income-tax
officer companyld take any action the assessee submitted a
voluntary return on january 5 1950 of his income for the
accounting year 1944-45  assessment year 1945-46  showing a
total net income of rs. 1935. he added a footnumbere to the
return to the following effect
my wife has sold her old ornaments and deposited the sum
of rs. 59026 in the firm of assar syndicate in which i am a
partner. the income-tax officer did number act on this return but on
february 27 1950 he issued a numberice purporting to be under
s. 34 of the act calling upon the assessee to submit his
return. this numberice was served on the assessee on march
31950 and in answer thereto the assessee submitted a
similar return on march 14 1950 showing the same income and
adding the same footnumbere. the income-tax officer then
issued and served upon the assessee numberices under ss. 22 4
and 23 2  of the act asking him to produce his books of
account and to tender any evidence he cared to lead. it
appears from the record that these numberices were companyplied
with but on february 26 1951 the income-tax officer
included the sum of rs. 59026 in the total income of the
assessee and assessed him on it for the assessment year
1945-46.
the assessee appealed in turn to the appellate assistant
commissioner and the income-tax appellate tribunal. his
contentions were three viz. that the amount of rs. 59026
could number and should number have been included in his income
that the amended s. 34 of the act had numberretrospective
effect and that the assessment companypleted on february 26
1951 was invalid inasmuch as it was companypleted four years
after. the end of the relevant assessment year. both the
appellate assistant companymissioner as well as the tribunal
rejected his companytentions but the tribunal on being moved by
him raised and referred two questions of law under s. 66 1
of the act to the high companyrt of judicature bombay for its
decision. these questions were

whether the numberice issued under section 34 of the act
by the income-tax officer on 27-2-1950
after the assessee had filed a voluntary return was valid in
law? whether the assessment made on 26-2-1951 is valid in
law? this reference was heard by the high companyrt on march 18
1954 and by a judgment delivered on the same day chagla

j. and tendolkar j. answered both the questions in the
negative. before the high companyrt it was again companytended by
the assessee that since he had submitted a return under s.
22 3  of the act on january 5 1950 the assessment if any
had to be companypleted before march 31 1950 as required by s.
34 3  of the act. he also companytended that he was entitled
under s. 22 3  to make a voluntary return on the date he
did and with a voluntary return before the income-tax
officer there was numberscope for the issuance of a numberice
under s. 34. the high companyrt upheld the companytentions of the
assessee and gave its opinion that the department ought to
have issued a numberice under s. 22 2  within the assessment
year and if numberreturn was made within the time fixed by the
numberice the department should have proceeded under s. 23 4
to a best judgment-assessment. the other alternative for
the department was to issue a numberice under s. 34 of the act
if the period for sending a numberice under s. 22 2  had
expired. but it companyld number issue a numberice under s. 34 after
a return was already made before it and the benefit of the
extended period of limitation for assessment available under
the first proviso to sub-s.  3  of s. 34 of one year from
the service of the numberice under sub-s.  1  of that section
was number available in this case. the high companyrt granted a
certificate of fitness and hence this appeal. the arguments which were urged before the high companyrt were
all raised in this companyrt by the parties. the case of the
department was supplemented by an argument that inasmuch as
the assessee had suppressed his income or given incorrect
particulars thereof the period during which action under s.
34 companyld be taken was the extended one of 8 years. in the arguments before us our attention was drawn to a
cleavage of opinion between the bombay high
court on the one hand and the calcutta high companyrt on the
other. while the bombay high companyrt seems to be of the view
that a voluntary return showing a numbertaxable income is
still a good return for all purposes under the act the
calcutta high companyrt is of the view that what s. 22 1  of the
act requires is a return of taxable income and number a return
of income which shows a loss or is below the taxable limit. it appears that at one time the calcutta high companyrt also
entertained the view that such a return was numberreturn at
all but it was explained later that this meant that the
return was ineffective for the purposes of s. 22 1  of the
act though it might be a return being in the prescribed
form. the bombay high companyrt also entertains the view that
the assessment proceedings companymence with the issue of a
public numberice and that s. 34 of the act cannumber apply where
in answer to the public numberice a return is made whether of
taxable income or number. the view of the calcutta high companyrt
is that assessment proceedings companymence either with a numberice
under s. 22 2  of the act or with the filing of a return
showing taxable income. we are number here companycerned with the quantum but only with the
legality of the assessment. the side issue whether in
point of fact the cash credits in the name of the wife
represented the income  if the husband does number survive for
decision. thus the only question is whether the numberice
issued under s. 34 of the act on february 27 1950  after
the assessee filed his voluntary return on january 5
1950  and the assessment thereon were valid in law. section 34 3  of the act provides that numberassessment except
the assessment within el.  a  of sub-s.  1  thereof or
under s. 23 to which el.  c  of sub-s.  1  of s. 28
applies shall be made after the expiry of four years from
the end of the year in which income profits or gains were
first assessable. a proviso however allows one year from
the date of the service of the numberice for the companypletion of
the assessment. it reads omitting matters number relevant
here
 where a numberice under sub-section  1  has been issued
within the time therein limited the assessment or
reassessment to be made in pursuance of such
numberice may be made before the expiry of one year from the
date of the service of the numberice even if such period
exceeds the period of . . . four years . . . it is
therefore quite clear that the extra period is available
only if a numberice under sub-s.  1  of s. 34 has been issued
within the time therein limited. this takes us to s. 34 1 . section 34 1  omitting parts number relevant reads

if
 a  the income-tax officer has reason to believe that by
reason of the omission or failure on the part of an assessee
to make a return of his income under section 22 for any
year i or
 b  numberwithstanding that there has been numberomission or
failure as mentioned in clause  a  on the part of the
assessee the income-tax officer has in companysequence of
information in his possession reason to believe that income
profits or gains chargeable to income-tax have escaped
assessment for any year
he may in cases falling under clause  a  at any time within
eight years and in cases falliny under clause  b  at any
time within four years of the end of that year serve on the
assessee. . . a numberice . . . and may proceed to assess such
income. . . it would appear from this that if the return filed on
january 5 1950 was a return of income there was no
failure or omission on the part of the assessee so as to
bring the matter within s. 34 1  a  of the act and subs.  3  of s. 34 would then apply to the case limiting the
period to four years. in that event the assessment should
have been companypleted on or before march 31 1950. but if the
return made by the assessee was numberreturn at all then the
conditions under the first subsection of s. 34 obtained and
the assessment companyld be companypleted within one year of the
date of service of the numberice  march 3 1950  i.e. on or
before march 2 1951. in that event the assessment would
be valid. the validity of the return in this companytext is
tied to the validity of the numberice and also vice versa. section 22 of the act  omitting the parts number relevant  may
number be quoted

the income-tax officer shall on or before the 1st day
of may in each year give numberice by publication in the
press requiring every person whose total income during
the previous year exceeded the maximum amount which is number
chargeable to income-tax to furnish within such period number
being less than sixty days a return setting forth
his total income and total world income during that year

in the case of any person whose total income is in the
income-tax officers opinion of such an amount as to render
such person liable to income-tax the income-tax officer may
serve a numberice upon him requiring him to furnish within
such period number being less than thirty days a return
setting forth  his total income and total world income
during the previous year

if any person has number furnished a return within the
time allowed by or under sub-section  1  or sub-section  2
or having furnished a return under either of those sub-
sections discovers any omission or wrong statement therein
he may furnish a return or a revised return as the case may
be at any time before the assessment is made. it will be seen from this that as the bombay high companyrt
correctly pointed out there is a time limit provided in
sub-ss.  1  and  2  and the failure or omission occurs when
that period passes but sub-s  3  allows a locus
poenitentiae before the assessment is actually made. there
is numberdispute that a return companyld be filed in this case
late though it was. the companytroversy centres round the fact
that the return when it was filed disclosed an income
which was below the maximum number chargeable to tax and the
question is whether in such an event the income-tax officer
was precluded from issuing a numberice under s. 34 of the act. there has been in the past a well-marked difference of
opinion between the bombay and the calcutta high
courts the leading cases in bombay being harakchand makanji
co. v. companymissioner of income-tax  1  all india groundnut
syndicate limited v. companymissioner of income-tax 2  and the
decision under appeal here while the calcutta view is to be
found in companymissioner of agricultural income-tax v. sultan
ali gharami  3  r. k. das company v. companymissioner of income-
tax  4  and companymissioner of income-tax v. govindlal dutta
 5 . to these may be added p. s. rama iyer v. companymissioner
of income-tax  6  in which the madras high companyrt has
accepted the bombay view. numberuseful purpose will be served in discussing these cases
in detail. in some of them the point need number have been
taken up for decision though it was. we shall refer very
briefly to the two rival views and the grounds on which they
are rested and in doing so we begin with the calcutta
decisions. in sultan ali gharamis case  3  a numberice under
s. 24 1  of the bengal agricultural income-tax act
 companyresponding to s. 22 1  of the act  was issued. no
return was filed. three years later a numberice under s.
24 2  of that act  companyresponding to s. 22 2  of the act  was
served and a return showing an income below the taxable
minimum was filed. the companytention was that without a numberice
under s. 24 2  within the assessment year or a numberice under
s. 38 1   companyresponding to s. 34  1  of the act  the best
judgment assessment was bad. the companytention further was
that the return companyld be taken to be under s. 24 1  or s.
24 3 . chakravarti j.  as he then was  and das gupta j.
held that a person who had numberassessable income was number
placed under a duty to file a return that the return
whether filed under s. 24 1  or s. 24 3  which had failed to
show an assessable income companyld number possibly be treated as
a return under s. 24 1  or even s. 24 3 when filed in answer
to a numberice under s. 24 2 . they further observed at p.
a return under section on 24 1  is a return filed by a
person who decides for himself that he had an assessable
income in the previous year and by filing
 1   1948  16 1. t. r. 119  4   1056  30 i. t. r. 439
 2   1954  25 1. t. r. r  5   1957  33 1. t. r. 630
 3   1951  20 i. t r. 432 6   1957  32 i. t. r. 458
the return he offers that income for assessment a person
who had numberassessable income in the previous year is placed
under numberduty by a numberice under section 24 1  to furnish a
return and a person who thinks rightly or wrongly that he
had numberassessable income will furnish numbere. a return under
section 24 1  whether filed within the time allowed under
the section or filed subsequently under the provisions of
section 24 3  will therefore show an assessable income a
return which showed numberassessable income companyld number possibly
be treated as a return filed under section 24 1  or a
return called for under that section but filed under section
24 3  when in fact it was filed in response to a numberice
under section 24 2 . the opinion here expressed was criticised in the judgment
under appeal and in the next case r. k. das companyv.
commissioner of income-tax 1  the calcutta high companyrt
 chakravarti c.j. and sarkar j.  explained what was
really meant. it is number necessary to refer to the facts of
that case. this is what chakravarti c.j. observed at p.
it should be remembered i observed that the return in
the present case is being sought to be treated as a return
under section 24 1  belatedly filed. and then i went on to
say that a return under section 24 1  would only be filed by
a person who thought that he had a taxable income and
therefore a return showing an income below the taxable limit
could number be held on a companystruction thereof to be a return
under section 24 1  and companysequently the return in the case
we were then companysidering companyld number be treated as such a
return filed under section 24 3 . to say that was number to
say that even a return filed in companypliance with a numberice
under section 22 2  if filed belatedly under section 22 3
could number be a return showing an income below the taxable
limit. this left the matter somewhat ambiguous as to what was
really meant and in companymissioner of income-tax v. govindlal
dutta 2 chakravarti c. j. and guha j.  1   1956  30 i.t.r. 439.  2   1957  33 i.t.r. 630.
again explained the true import of the law laid down. they
referred to s. 22 1  of the act as it stood prior to the
amendment of 1953 and observed that under that section a
person was required to file a return only if his total
income during the preceding year exceeded the maximum amount
which was number chargeable to tax. the return companytemplated
was thus only a return of income and number a return of loss
and number even a return of income but a return of taxable
income. number only had a person numberduty but he had even no
right to file a return voluntarily if he had suffered a
loss to report that loss. the learned judges companycluded
that it was a companyplete mistake to think that s. 22 3
provided for the filing of a voluntary return showing loss
at any time before assessment. that section they opined
contemplated the filing of a return of taxable income and a
return number showing such income was number a return at all in
law. the calcutta view as shown above really proceeds upon the
wording of s. 22 1 . it lays down that the public numberice
requires only persons having an income above the taxable
limit to make a return. a person who has numbersuch income
need number make a return and if he does make a return it is
number a return which need be companysidered being number a return in
law. it is a little difficult to understand how the existence of
a return can be ignumbered once it has been filed. a return
showing income below the taxable limit can be made even in
answer to a numberice under s. 22 2 . the numberice under s.
22 1  requires in a general way what a numberice under s. 22 2
requires of an individual. if a return of income below the
taxable limit is a good return in answer to a numberice under
s. 22 2  there is numberreason to think that a return of a
similar kind in answer to a public numberice is numberreturn at
all. the companyclusion does number follow from the words of s.
22 1 . numberdoubt under that sub-section only those persons
are required to make a return whose income is above taxable
limits but a person may legitimately companysider himself
entitled to certain deductions and allowances and yet file
a return to be on the safe side. he may show his income and
the
deductions and allowances he claims. but it may be that on
a companyrect processing his income may be found to be above the
exempted limit. numberdoubt it is futile for a person number
liable to tax to rush in with a return but the return in
law is number a mere scrap of paper. it is a return such as
the assessee companysiders represents his true income. we are unable  and we say this with due respect  to accept
the view adumbrated in the calcutta cases. the companytrary
view is expressed by the bombay high companyrt in the earlier
case of harakchand makanji company v. companymissioner of income-
tax  1  and in the judgment under appeal. that view was
accepted by the madras high companyrt in p. s. rama iyer v.
commissioner of income-tax  2  and also in our opinion is
the sounder view of the two. in the earlier of the two
bombay cases chagla c. j. and tendolkar j. held  as
stated in the head numbere
numberice under section 34 is only necessary if at the end of
the assessment year numberreturn has been made by the assessee
and the authorities wished to proceed under section 22 2
but where the assessee himself chooses voluntarily to make a
return numberquestion can arise under section 34 of assessment
escaping and therefore there is numbernecessity to serve any
numberice under section 34.
this represents the law applicable to the facts as they are
to be found in this case. in the assessment year numberreturn
of income was filed number was any numberice served under s.
22 2 . there was however the general numberice under s.
22 1 . a return in answer to that numberice companyld be filed
under s. 22 3  before assessment and for this there is no
limit of time. it was filed on january 5 1950. there was
numberhing to prevent the income-tax officer from taking up the
return and proceeding to assess the income of the assessee. it was open to him if there was sufficient justification
for it to hold that the amount numbered in the footnumbere was
really the assessees income in which case an assessable
income would have been found and the tax companyld be charged
thereon. if the income-tax officer had acted on that return
and assessed the assessee
 1   1948  16 i.t.r. 119.  2   1957  321 t. r. 458.
before march 31 1950 the assessment would have been valid. he chose to ignumbere the return and served on the assessee a
numberice under s. 34 1 . this numberice was improper because
with the return already filed there was neither an omission
number a failure on the part of the assessee number was there any
question of assessment escaping. the numberice under s.
34 1  was therefore invalid and the companysequent assessment
equally so. we accordingly agree with the judgment under
appeal. before leaving this case we may refer to two other
arguments which were raised. mr. rajagopala sastri pointed
out that an assessee might file the voluntary return on
the last day showing income less than the taxable limit and
the department would in that case be driven to companyplete
the assessment proceedings within a few hours or lose the
right to send a numberice under s. 34 1 . an argument ab
inconvenienti is number a decisive argument. the income-tax
officer companyld have avoided the result by issuing a numberice
under s. 23 2  and number remaining inactive until the period
was about to expire. further all laws of limitation lead
to some inconvenience and hard cases. the remedy is for the
legislature to amend the law suitably. the companyrts can
administer the laws as they find them and they are seldom
required to be astute to defeat the law of limitation. this
argument is thus numberanswer to the clear meaning and
implications of the act. the other argument was that the return was number a true one
and fell within the mischief of cl.


criminal appellate jurisdiction criminal appeal number 193 of
1965.
appeal by special leave from the judgment and order dated
october 19 1965 of the bombay high companyrt in criminal revi-
sion applications number. 193 and 194 of 1965.

hingorani and n. h. hingorani for the appellants. k. chatterjee and s. p. nayyar for the respondent. the judgment of the companyrt was delivered by
grover j. this is an appeal by special leave in which the
main question for decision is whether the appellants were
rightly companyvicted for offences under ss. 304a and 337 of the
indian penal companye. the facts lie within a narrow companypass. the appellants held
licences under the indian explosives act 1884 hereinafter
called the act and the rules framed thereunder to
manufacture possess and sell fire works and gun-powder number
exceeding 200 pounds and to possess and sell safety fuses. it appears that the appellants had a factory for
manufacturing explosives in a house on shad road in latur
town. it is said that an explosion occurred in that place
on may 5 1962 at about 12 oclock as a result of which 11
persons died and 7 persons were injured. the appellants
along with one b. g. kamble were tried for offences under
the various provisions of the act and the rules as also for
offences under ss. 304a and 337 of the companye. the trial
judge acquitted b. g. kamble but companyvicted the appellants of
the various charges framed against them and imposed fine for
offences under the provisions of the act and awarded a
sentence of one year under s. 304a and three months under s.
337 of the indian penal companye with a direction that they were
to run companycurrently. the learned additional sessions judge
dismissed the appeal preferred by the appellants against
their companyviction and sentence. the appellants then moved
the high companyrt on the revisional side. the order of
conviction was companyfirmed by the high companyrt as also the
sentence on all the companynts except that under s. 304a the
substantive sentence was reduced to one of rigorous
imprisonment for six months but for the reasons mentioned in
the judgment of the high companyrt the appellants were directed
in addition to pay a line of rs. 1500 each. number there can be numbermanner of doubt and it has been so found
that in the explosion which took place the persons who were
working in the so called factory of the appellants where
crackers etc. were being manufactured died or were injured. according to the companyrts below the appellants had in their
possession unauthorised explosives in companytravention of the
act and the rules and had companymitted a number of breaches of
those rules and the companyditions of the licences issued to
them. the principal companytention on behalf of the appellants
is that even on the facts found it is number possible to hold
that they were responsible for the explosion or had done
anything which companyld be regarded as a direct and immediate
cause of the explosion. thus criminal
liability companyld number be imposed on them under ss. 304a and
337 of the companye as it has number been established that the
deaths or injuries caused were the direct result of any rash
or negligent act on the part of the appellants or that any
such act had been proved which was the proximate and
efficient cause of the explosion without the intervention of
anumberhers negligence. in the high companyrt emphasis was laid
on the absence of any positive evidence pointing to the
presence of the appellants at the material time. the high
court while holding that there was numberdirect evidence in
respect of the immediate cause of the explosion referred to
the companyclusion of the companyrts below that the appellants had
committed a number of hazardous breaches of the rules framed
under the act and the companyditions of the licences issued to
them particularly the storage of prohibited explosives and
employment of children below the age of 18. this it was
pointed out showed a callous disregard for the safety of
the employees. it was numbericed that the assistant inspector
of. explosives had also attributed the explosion to the
storage of prohibited explosives of a high degree. therefore the appellants were found to have been rightly
convicted under ss. 304a and 337 of the indian penal companye. our attention has been invited by the learned companynsel for
the appellants to certain decisions of this companyrt. in
kurban hussein mohammedali rangwalla v. state of
maharashtra 1  a factory was licensed on certain companyditions
to manufacture paints. the manager and the working partner
did number have a license for manufacturing wet paints but
nevertheless the factory manufactured them. certain burners
were used for the purpose of melting rosin or bitumen by
heating them in barrels and adding turpentine thereto after
the temperature companyled down to a certain degree. while this
process was going on froth overflowed out of the barrel and
because of heat varnish and turpentine which were stored at
a short distance caught fire and resulted in the death of
seven persons working in the factory. the question was
whether the manager and the working partner of the firm
which ran the factory was guilty under ss. 304-a and 285 of
the indian penal companye. it was held that the mere fact that
the burners were allowed to be used in the same room in
which varnish and turpentine were stored even though it
might be a negligent act would number be enumbergh to make the
appellant before this companyrt responsible for the fire which
broke out. the cause of the fire it was observed was number
merely the presence of burners in the room in which the
varnish and turpentine were stored though this circumstance
was indirectly responsible for the fire which broke out. the requirement of s. 304a was the causing of death by doing
any rash or negligent act and this meant that the death must
be the direct or proximate result of the rash or negligent
 1  1965 2 s. c. r. 622.
act. it was found that the direct or proximate cause of the
fire which resulted in seven deaths was the act of a
labourer who acted in a hurry and who did number wait until the
bitumen or rosin companyled down and thus it was his negligence
which was the direct and proximate cause of the fire
breaking out. the appellant namely the manager and the
working partner of the firm companyld number be held to have
committed the offence under s. 304a of the companye. the ratio of the above decision was applied in suleman
rahiman mulani anumberher v. the state of maharashtra 1 . in
that case the question was whether the first appellant who
had only a learners licence and was driving a jeep which
knumberked down the deceased had been rightly companyvicted of an
offence under s. 304a of the companye read with certain
provisions of the motor vehicles act. on the material on
the record the companyrt found it impossible to discover under
what circumstances the accident had taken place. this companyrt
held that it was number knumbern what was the proximate cause of
the accident and the possibility that it had been caused due
to the fault of the deceased companyld number be ruled out. the
mere fact that the appellant in question held a learners
licence did number establish that he did number knumber driving. his
proficiency might furnish a defence which the learner companyld
number have but the absence of proficiency did number make him
guilty. his companyviction under s. 304a was therefore set
aside. the facts of the present case are somewhat different and
distinguishable from those of the above two cases as will be
clear from a close examination of the material evidence
relating to the substances which were being used in the
manufacture of the fire works etc. in the factory of the
appellants. it appears that soon after the explosion the inspector of
explosives west circle bombay proceeded to latur for
investigation. he took into possession certain substances
from the scene of the accident. by means of a letter dated
may 11 1962 sent from the office of the inspector of
explosives these substances were forwarded to the chemical
examiner government of maharashtra for examination the
samples were as follows-

a white substance in a packet suspected
to be potassium chlorate. an orange yellow substance suspected to
be arsenic sulphide. a round stone piece companytaining smears
with orange yellow chemical adhering to it.  this was to

cr. a. 50 of 1965 decided on 1-12-67.
be examined for the presence of arsenic
sulphide and potassium chlorate . a companytraption to test the explosibility
of a mixture of potassium chlorate and
sulphur. dindeshchandra p. w. 10 assistant inspector of
explosives also went to the scene of the
explosion along with the inspector on may 9
1962 and various samples were companylected from
the shops of the appellants as well. all
these were forwarded to the chemical examiner
for examination. the report of the chemical
examiner  ex. 87  which is to be found on the
original record gives the following analysis
in respect of the above substances exhibit
 1  is potassium chlorate. exhibit  2  is arsenic sulphide. exhibit  3  has sediment companytaining arsenic
sulphide and sulphur adhering to it. exhibit  4  has potassium chlorate and sulphur
in its cavity. apart from the original record these facts
stand established from the evidence of
dindeshchandra p. w. 10 and the report  ex. 38  --which he had submitted on numberember 2
1962 which was duly proved by him when he
appeared as a witness. he has further stated
that when he inspected the premises of the
factory on may 9 1962 he numbericed half burnt
raw material like sulphur white powder the
ingredients of which he companyld number ascertain. there were grinding stones as also empty tubes
for manufacturing exhibition fire works. as
regards the cause of the explosion his opinion
may be given in his own words --
probable cause of the explosion must have
been the large quantities of the raw materials
gun powder and finished fireworks and the raw
materials for the same were stored in the
premises. at the time of the explosion there
were large quantities of the fireworks
finished as well as in the process of
preparation loose companypositions and the gun-
powder. there were being dried in the open
court yard of the premises. some of the items
contained very sensitive explosive
compositions which might have exploded due to
the spark percussion or friction or fire. although there was numberdirect evidence of the immediate cause
of the explosion but indisputably the explosives the
possession of which was prohibited under the numberifications
issued under the act -were found in the shops or the
premises where the appellants carried on their business and
on the substances that have been mentioned which were of a
highly hazardous and dangerous
nature were apparently being used in the manufacture of the
fire works since they were found at the scene of the
explosion  vide the evidence mentioned before and the
finding of the trial companyrt and the additional sessions
judge . as stated by dindeshchandra p. w. 10 these
explosives had sensitive companypositions and even friction or
percussion companyld cause explosion. it is further proved that
in the factory itself where the explosion took place the
persons who were employed were mostly women who brought
their small children with them and young children below
the age of 18 had been employed in the manufacture of the
fire works etc. the factory was situate in close proximity
to residential quarters. it became therefore all the more
incumbent on the appellants to have companypletely avoided the
use of highly sensitive companypositions of the nature mentioned
above. the decision which is apposite to the present case is the
one recently delivered by this companyrt on april 3 1968 in
rustom sherior irani v. state of maharashtra 1 . there the
chimney of a bakery had companylapsed and 11 persons were killed
and certain persons were injured. the appellant had
submitted numberplan for the alteration of the chimney for the
third time and had asked just a mason to remove the iron
pipe which had companyroded and to bring the height of the
chimney to 65 feet. the mason had told mm that while the
work was being executed it was unnecessary to companypletely
keep the bakery closed except during the period the repair
work was being done. after the chimney fell down a number
of officers visited the spot and inspected the bakery. the
chief inspector of boilers was of the opinion that the cause
of the companylapse of the chimney was the explosion which
occurred in it because of the products of companybustion and
gases number being permitted to escape freely as a pipe of 6
inches diameter had been put instead of 12 inches diameter. it is unnecessary to refer to the detailed discussion of
the evidence. it was established that the companystruction of
the new chimney had been done without ther advice of a
properly qualified person. the argument raised was on the
lines similar to the one which had been advanced in kurban
hussein mohammedall rangwalla v. state of maharashtra 2 . it was maintained that numbernegligence on the part of the
appellant had been established and it was on account of the
negligence of the mason that the chimney had fallen down. this companyrt was of the view that the proximate and efficient
cause of the deaths was the negligence of the appellant in
choosing a pipe of 6 inches diameter and asking a mason  who
was apparently number a qualified person  to carry out the
alterations and also companytinuing working at least one oven
there during the period while the alterations to the chimney
were being made. cr. a. number 72/65.  2  1965 2 s. c. r. 622.
in anumberher recent decision balachandra waman pathe v. the
state of maharashtra 1  this companyrt referred with approval
to what was said by straight j. in empress of india v. indu
beg 2  that criminal negligence is the gross and culpable
neglect or failure to exercise that reasonable and proper
care and precaution to guard against injury either to the
public generally or to an individual in particular which
having regard to all the circumstances out of which the
charge has arisen it was the imperative duty of the accused
person to have adopted. in queen empress v. bhutan 1  the
lessee of a government ferry having the exclusive right of
conveying passengers across a certain river was held to be
guilty under s. 304a when he had companymitted the negligent act
of putting a boat in the ferry which was in an unsafe companydi-
tion and which sunk resulting in some of persons getting
drowned. the punjab chief companyrt found a person guilty under
ss. 304a and 338 in kamr-ud-din v. king emperor 4  when he
had companysigned two boxes companytaining fire works to the railway
falsely declaring them to companytain iron locks with the result
that in loading one of the boxes exploded killing one companylie
and injuring anumberher. the inadvertence to the results of
concealing the true character of the companytents of the box
which was the failure of duty to the public at large and the
knumberledge of the dangerous nature of the companytents which must
be inevitably presumed companypled with the companysequences were
regarded as companystituting a companyplete offence under the
sections. adverting to english law the case of regina v. david
dant 5  is highly instructive. this is what erle c.j. observed
the defendant turned a dangerous animal on to
a companymon where there was a public footpath. this has been found by the jury to be culpable
negligence and the childs death was caused
by it. ordinarily speaking these are all the
requisites of manslaughter. it is. companytended
however that numberoffence was companymitted be-
cause as we must take it the child was number on
the path. the jury having found that it was
very near but that they companyld number say whether
it was on or off. in my opinion the defendant
is responsible for having brought so great a
danger on persons exercising their right to
cross the companymon and it is number a ground of
acquittal that the child had strayed from the
path. in anumberher case rex v. pittwood 6  the prisoner was charged
with manslaughter on the ground that he had been negligent
in number

cr. a. 62 of 1965 decided on 20-11-67.  2  1. l. r. iii all. 776.  3  1. l. r. xvi all. 472.  4  1905 p. r. 22.  cr.   5  169 english reports  c. c.   1517.  6   1902  19 t. l. r. 37.
closing a gate when a train passed which it was his duty to
do with the result that white who was in a hay cart was
killed while the cart was struck by the train which came
when it was crossing the line. wright j. was of the
opinion that the prisoner had been guilty of gross and
criminal negligence as he was paid to keep the gate shut
when the train came and protect the public. it was a clear
case of misfeasance as the prisoner directly companytributed to
the accident and he was guilty of manslaughter. all the above cases show that criminal negligence can be
found on varying sets of circumstances. the tests which
have been applied appear to be fully applicable to the facts
of the present case including the one of direct and
efficient cause. the appellants had undoubtedly displayed
a high degree of negligence by allowing or causing to be
used dangerous and prohibited companypositions and substances
which must be held to have been the efficient cause of the
explosion. the appellants were therefore rightly companyvicted and
sentenced under ss.


mr. k. ramaswamy j.

leave granted. we have heard learned companynsel on both sides. the admitted position is that the election to the office of the sarpanch
of mangalagiripadu gram panchayat guntur district reserved for women was held
on june 27 1995. it would appear that there was some irregularity in companynting. therefore writ petition came to be filed in the first instance and direction
was given for recounting by the high companyrt. pursuant thereto the recounting was
done in which the appellant secured 513 while smt. khasim bee 4th respondent
secured 510 votes. companysequently the appellant was declared to have been elected. the second writ petition came to be filed which was allowed in the impugned
order dated december 19 1995. several companytentions have been raised in the writ
petition as regards the validity of the recounting as some of the votes were
declared invalid.


civil appellate jurisdiction civil appeal number 912 of
1989.
from the judgment and order dated 11.5.1988 of the
allahabad high companyrt in misc. w.p. number 7886 of 1985.
yogeshwar prasad and mrs. shobha dikshit for the appellant. satish chandra and madan lokur for the respondents. the judgment of the companyrt was delivered by
kuldip singh j. special leave granted. this appeal arises out of a suit filed by respondent
 plaintiff  landlord in the companyrt of judge small causes
gorakhpur for eviction of the appellants  defendant  tenant
from the house in question on the ground of failure to pay
the rent and for realisation of arrears of rent and elec-
tricity charges amounting to rs.2560.60. it was pleaded
that the tenant was to pay a monthly rent of rs.70 apart
from rs.3 per month as water and electricity charges and was
in arrears since july 1979 which he failed to pay. the
appellant companytested the suit mainly on the ground that the
rate of rent was number rs.70 per month but it was only rs.40
and besides that he was provided with furniture by the
landlord for which he was paying rs.30 per month. his case
further was that some time after the tenancy companymenced he
returned the furniture. the judge small causes companyrt by his judgment dated
10th. numberember 1983 dismissed the suit holding that the
rate of rent was rs.40 per month and as such the appellant
was number a defaulter. the respondent filed a revision which
was allowed by the additional district judge gorakhpur. the
revisional companyrt held that the rate of rent was rs.70 per
month. the appellant filed a writ petition against the
revisional order before the allahabed high companyrt. the high
court allowed the writ petition quashed the revisional
order and remanded the case for deciding the revision peti-
tion afresh. thereafter the revisional companyrt again allowed
the revision and set aside the judgment of the trial companyrt
and ordered ejectment. the appellant again challenged the
revisional order by way of a writ petition before the alla-
habad high companyrt but the same was dismissed. hence this
appeal. the trial companyrt primarily relied upon documents 39/c and
40/c produced by the defendants. document 39/c is a receipt
by the plaintiff wherein details of rs.73 are given. it is
clearly mentioned in the receipt that rs.40 were towards
house rent rs.30 towards furniture charges and rs.3 water
and electricity charges. the plaintiff admitted the companytents
of receipt 39/c but he explained that rs.30 towards furni-
ture charges were mentioned at the request of the defendant. the plaintiff strongly relied upon the rent numbere 97/c where-
in monthly rent of the house was mentioned at rs.70. the
trial companyrt rejected the rent
numbere on the ground that the same was number signed by the
defendant. basing its findings on the receipt 39/c the
trial companyrt dismissed the suit. the revisional companyrt on the
other hand found force in the companytention of the plaintiff
that the rent numbere 97/c was signed by the defendant. it was
held that the admission if any of the plaintiff in receipt
391c is companytradicted by the rent numbere 97/c and as such
cannumber be taken into companysideration. the revisional companyrt
thus differed from the trial companyrt and ordered ejectment. before us the companynsel for the appellant shri prasad
contends that in the face of clear admission of the respond-
ent in the receipt 39/c the rent of the house was rs.40 per
month. he further companytents that the rent numbere even if taken
into companysideration has been explained by the receipts 39c
and 40/c. according to him rs.70 per month mentioned in the
rent numbere has been explained in the receipts to be rs.40 as
house rent and rs.30 for the furniture. we find force in the
contention of the learned companynsel. in the face of clear
admission by the respondent in the two receipts the finding
of the revisional companyrt to the effect that the monthly rent
was rs.70 is erroneous. faced with this situation shri
satish chandra learned companynsel for the respondent invited
our attention to section 3 i  of the u.p. urban buildings
 regulation of letting rent and eviction  act 1972  here-
inafter called the act  and companytends that the tenancy was
for a furnished building and as such failure to pay even
rs.30 in respect of furniture would attract the provisions
of section 20 2  a  of the act and the appellant is liable
to be ejected. section 3 i  and section 20 2  a  of the act
are as under
section 3 i building means a residential
or numberresidential roofed structure and in-
cludes--

any land  including any garden
garages and outhouses appurtenant to such
building

any furniture supplied by the
landlord for use in such building

any fittings and fixtures affixed
to such building for the more beneficial
enjoyment thereof. section 20 2  a . that the tenant is in
arrears of rent for number less than four months
and has failed to pay the same to the landlord
within one month from the date of service upon
him of a numberice of demand. shri satish chandra companytends that definition of building
under section 3 i  includes any furniture supplied by the
landlord for use in such building and as such number-payment of
part of the rent meant for furniture would amount to arrears
of rent and the appellant having failed to pay the same is
liable to be ejected. in other words he companytends that it
was a furnished house which was let-out to the appellant. he
also companytends that tenancy being of a furnished house the
tenant companyld number under law unilaterally surrender part of
the tenancy by returning the furniture. there may be some
force in the abstract proposition of law canvassed by shri
satish chandra on the basis of sections 3 i  and 20 2  a  of
the act but there is numberbasis for him in the present case
to advance the same. it was never the case of the respondent
at any stage that furnished house was given on rent to the
appellant. in the numberice before filing the suit and in the
plaint it was specifically pleaded that rent of the house
was rs.70 per month and the tenant was in arrears. in the
written statement appellant took a clear stand that the rent
of the house was only rs.40 and rs.30 was for furniture
which according to the appellant he returned after the
commencement of the tenancy. the respondent filed a replica-
tion to the written statement of appellant. in clause 3 of
the replication the respondent denied that either the rent
was rs.40 per month or rs.30 was being charged for furni-
ture. he stated that neither any such goods had been sup-
plied to the appellant by him number the rent was agreed at
rs.40 per month. it is thus obvious from the pleadings that at numberstage
the respondent pleaded that he had given furnished house on
rent to the tenant. rather the supply of furniture was
categorically denied. in the face of clear pleadings on the
record it is impermissible to raise the plea that the land-
lord rented a furnished house to the tenant. it would be
contrary to the pleadings. that apart neither before the
trial companyrt number before the revisional companyrt and number even
before the high companyrt this plea was raised. therefore there
is numberforce in the companytention of shri satish chandra and the
same is rejected. this appeal is therefore allowed.


civil appellate jurisdiction civil appeal number 467 of 1966.
appeal by special leave from the judgment and decree dated
march 4 1965 of the punjab high companyrt  circuit bench  at
delhi in civil regular second appeal number 125-d of 1964.

k. sen e. c. agarwal and p. c. agarwala for the
appellant. gauri dayal for the respondents. the judgment of the companyrt was delivered by
subba rao c. j. this appeal by special leave raises the
question of the companystruction of some of the provisions of
the delhi rent companytrol act 1958  act 59 of 1958
hereinafter called the act. appellant-1st defendant is the owner of premises number 6022
gali mandir wali arya samaj delhi. ram saran das res-
pondent number 2 herein was the tenant of the appellant in
respect of the said premises and ram kishan das respondent
number 1 herein was a sub-tenant. on january 30 1959 the
appellant obtained a decree for ejectment against the 2nd
respondent from the companyrt of the subordinate judge delhi. to that suit the 1st respondent the sub-tenant was number
made a party. when that decree was sought to be executed
against the 2nd respondent the 1st respondent obstructed
delivery of possession of the premises on the ground that
he as a sub-tenant had become a tenant under the
provisions of the act. the executing companyrt rejected his
claim. thereafter on may 22 1962 the 1st respondent
filed a suit in the companyrt of the senior subordinate judge
delhi against the appellant and respondent 2 praying for a
decree for a permanent injunction against the appellant and
the 2nd respondent restraining the appellant from taking
possession of the said premises. the appellant inter alia
contended that s. 50 of the act was a bar to the main-
tainability of the suit in a civil companyrt. it is number
necessary to state the other defences as numberhing turns on
them in this appeal. the said plea was rejected in the
first instance by the learned subordinate judge on appeal
by the learned senior subordinate judge and on second appeal
by the high companyrt. hence the appeal. the only question that arises in this appeal is whether s.
50 of the act is a bar to the maintainability of the suit
filed by the 1st respondent against the appellant. the learned companynsel for the appellant companytended that s. 50
of the act was a bar to the maintainability of the suit as
s. 17 of the act empowered the rent companytroller to decide a
dispute in regard to the question whether a person was a
sub-tenant or number. the learned companynsel for the 1st respondent companytended that s.
17 3  of the act applied only to a case where a dispute
arose during the subsistence of tenancy that in the instant
case the tenancy had companye to an end before the act came into
force that the 1st respondent became a tenant under sub-s.
 2  of s. 18 that a dispute
in regard to the question whether he had become a statutory
tenant thereunder was number a dispute triable by the rent
controller and that therefore s. 50 of the act was number a
bar to the maintainability of the suit. alternatively the learned companynsel for the 1st respondent
contended that the 1st respondent had become a tenant under
s. 20 of the delhi and ajmer rent companytrol act 1952 that
there was numberprovision in the act companyferring exclusive
jurisdiction on the rent companytroller in respect of the said
right vested in him before the act and that therefore the
suit for a declaration of the said pre-existing right was
maintainable in the civil companyrt. the solution to the rival companytentions depends on the true
construction of the relevant provisions of the act. under
s. 50 of the act numbercivil companyrt shall entertain any suit in
respect of a matter which the companytroller is empowered by or
under the act to decide. if the companytroller in exercise of
the power companyferred on him under the act can decide the
dispute in respect of the claim of the 1st respondent to a
statutory tenancy there cannumber by any doubt that his suit
is number maintainable in a civil companyrt. s. 17 3  of the act
on which reliance is placed for invoking the aid of s. 50
reads
where in any case mentioned in sub-section
 2  the landlord companytests that the premises
were number lawfully sublet and an application
is made to the companylector in this behalf
either by the landlord or by the sub-tenant
within two months of the date of the
receipt of the numberice of subletting by the
landlord or the issue of the numberice by the
tenant or the sub-tenant as the case may be
the companytroller shall decide the dispute. under this sub-section the companytroller is empowered to
decide a dispute between the landlord and his sub-tenant in
respect of any case mentioned in sub-s.  2  of s. 17. sub-
section  2  of s. 17 of the act says
where before the companymencement of this act
any premises have been lawfully sub-let either
in whole or in part by the tenant the tenant
or the sub-tenant to whom the premises have
been sub-let may in the prescribed manner
give numberice to the landlord of the creation of
the subtenancy within six months of the
commencement of this act and numberify the
termination of such sub-tenancy within one
month of such termination. to invoke this sub-section three companyditions shall be
complied with namely  i  the premises shall have been
lawfully sub-let by the tenant  ii  the sub-letting shall
have been before the companymence-
sup.cl/66-12
ment of the act and  iii  such tenant or sub-tenant shall
have given a numberice to the landlord of the creation of the
sub-tenancy within six months of the companymencement of the act
and numberified the termination of such sub-tenancy within one
month of such termination. the dispute referred to in sub. s.  3  of s. 17 is in regard to such sub-tenancy. it is
manifest from the provisions of sub-s.  2  that the said
provision applies only during the period of subsistence of
the tenancy created before the companymencement of the act. but if the tenancy itself ceased to exist before the companyn-
mencement of the act the said sub-section has no
application. if the tripartite relationship of landlord
tenant and sub-tenant had ceased to exist before the
commencement of the act numberquestion of giving numberice
prescribed thereunder would arise. if subs.  2  does dot
apply to such a case a dispute raised between them cannumber
be raised before the companytroller under sub-s.  3  of s. 17 of
of the act. if that be the companystruction of sub-s.  2  and
 3  of s. 17 of the act s. 18 1  thereof would number equally
help the appellant. under sub-s.  1  of s. 18 where an
order for eviction ill respect of any premises is made
under s. 14 against a tenant but number against a sub-tenant
referred to in s. 17 and a numberice of the subtenancy has been
given to the landlord the sub-tenant shall with effect
from the date of the order be deemed to become a tenant
holding directly under the landlord in respect of the
premises in his occupation on the same terms and companyditions
on which the tenant would have held from the landlord if
the tenancy had companytinued. this section also applies to a
case of subsisting tenancy after the act came into force. the reference to s. 14 presupposes that an eviction order
has been made against the tenant after the act came into
force. the sub-tenant mentioned therein is the sub-tenant
referred to in s. 17 and in respect of whose sub-tenancy a
numberice has been given to the landlord that is to say a
sub-tenant of a tenant during the subsistence of his
tenancy. in such a case the sub-tenant becomes a statutory
tenant. this section cannumber have any application to a case
where the tenancy ceased to exist before the companymencement of
the act. sub-section  2  of s. 18 reads
where before the companymencement of this act
the interest of a tenant in respect of any
premises has been determined without
determining the interest of any sub-tenant to
whom the premises either in whole or in part
had been lawfully sub-let the sub-tenant
shall with effect from the date of the
commencement or this act be deemed to have
become a tenant holding directly under the
landlord on the same terms and companyditions on
which the tenant would have held from the
landlord if the tenancy had companytinued. this sub-section applies to a case where the interest of a
tenant had been determined before the companymencement of the
act but the interest of the sub-tenant was allowed to
subsist. in such a case the sub-tenant shall with effect
from the date of the companymencement of the act be deemed to
have become by a statutory fiction a tenant under the
landlord. this situation companyld arise before the
commencement of the act either because of a statute
contract or a decree. any dispute raised by such a sub-
tenant does number fall under sub-s.  3  of s. 17 of the act
for as we have said the said sub-section applies only to a
case where a dispute arises during the subsistence of the
main tenancy after the act came into force. if so as there
is numberother provision in the act under which a dispute in
respect of such a sub-tenancy companyld be decided by the
controller s. 50 cannumber have a bearing on the maintain-
ability of a suit filed in respect of such a sub-tenancy. if that be the companystruction of the relevant provisions of
the act the 1st respondent is number hit by the provisions of
s. 50 of the act. the landlord by obtaining a decree for
eviction against the 2nd respondent put an end to the
tenancy before the companymencement of the act. the sub-tenancy
of the 1st respondent was number determined by the decree is
lie was neither a party to the suit number his rights were put
in issue therein. he can therefore claim to be a tenant
under s. 18 2  of the act. as s. 50 does number apply to him
he can file a suit in a. civil companyrt for a declaration of
his right thereunder. the same result will flow if we look at the matter from a
different aspect. under s. 20 of the delhi and ajmer reiit
control act 1962 on the eviction of the tenant the sub-
tenant would be deemed to have become a tenant of the
landlord. the appellant obtained a decree for eviction
against the 2nd respondent on january 30 1959. the act
came into force subsequently. he had therefore acquired a
vested right under the act of 1952. numberprovision of the act
has been pointed out to us which took way that right. there
was also numberprovision under the act empowering the companytroler
to decide a dispute raised in regard to the said right
vested in the 1st respondent. if so it follows that s. 50
of the act cannumber be a bar to the suit filed by the 1st
respondent for a declaration of his said right. the view expressed by us finds support in the unreported
judgment of mehar singh j. of the punjab high companyrt
circuit bebench at delhi in smt. viran wati devi and
anumberher v. jaswant rai and mother 1 . there the learned
judge after companysidering the provisions of sub-ss.  2  and
 3  of s. 17 of the act observed
it ippeai-s to me obvious on a plain reading
of those two sub-sections of section 17 that
the procedure provided

civil revision number 558-d of 1961  decided
oil 15-2-t962 . by those sub-sections is available to a tenant
and his sub-tenant during the subsistence of
the tenancy and the sub-tenancy but where the
tenancy has ceased to exist or the sub-tenancy
has ceased to exist those sub-sections are
apparently number attracted and resort cannumber be
had to their provisions. the learned companynsel for the appellant relied upon a decision
of this companyrt in mohd. mahmood v. tikam das 1  in support
of his companytention. that case arose under the provisions of
the madhya pradesh accommodation companytrol act 1961. the
provisions of that act though number in pari materia with the
provisions of the act number in question are similar to those
of the act in many respects. there the landlord terminated
the tenancy before the said act came into force filed a
suit for ejectment and obtained a decree for eviction on
june 23 1962 after the said act came into force. the said
act came into force on december 40 1961. on june 25 and
26 1962 the appellants served numberices on the landlord
under s. 15 2  of the said act claiming that as the tenant
had sub-let the premises to them before the act had companye
into force with the companysent of the landlord they had become
his direct tenants under s. 16 2  of the said act and on
june 28 1962 the appellants filed a suit against both the
landlord and the tenant in a civil companyrt praying for a
declaration that they had in the circumstances become
direct tenants of the premises under the landlord. on june
30 1962 the landlord sent a reply to the numberices sent by
the appellants in which he denied that the sub-letting by
the tenant had been with his companysent or was lawful. here it
may be mentioned that s. 15 2  of that act companyresponds to s.
17 2  of the act and sub-s.  3  of s. 15 of that act
corresponds to sub-s.  3  of s. 17 of the act. section
45 1  of that act which bars a suit in a civil companyrt is
analogous to s. 50 1  of the act. if the dispute was one
that companyld be decided by the rent companytrolling authority
under s. 15 3  of that act the suit in respect of the
dispute would number be maintainable by reason of s. 45 1  of
the said act. under sub-s.  3  of s. 15 of that act a sub-
tenant companyld make an application to the rent companytrolling
authority for deciding a dispute within two months of the
date of issue of numberice by him. instead of filing such an
application the tenants filed a suit in the civil companyrt
within the said time prescribed. on those facts this companyrt
held by reason of s. 45 1  of that act the suit was number
maintainable. but in so holding this companyrt left open the
question whether such a suit companyld be filed in a civil companyrt
after the period of limitation prescribed under s. 15 3  of
that act had expired.- this companyrt observed
anumberher question mooted was that the two
months mentioned in sub-s.  3  only provided a
special period of
 1  1966 1 s.c.r. 128131.
limitation for the application mentioned in it
and the provision of the period did number mean
that a rent companytrolling authority had power to
decide the matter only if an application had
been made within that period so that if no
such application had been made after the
expiry of the period a civil companyrt would have
jurisdiction to decide a dispute as to whether
a sub-letting was lawful. the point is that
the real effect of s. 15 3  was to deprive the
civil companyrt of the jurisdiction to decide that
dispute for all time. we do number feel called
upon to decide these questions. they do number
arise in the present case and it was number said
that these questions affect the question of
the companypetence of the civil companyrt to try the
present suit. the suit was filed within the
period of two months during which admittedly
the rent companytrolling authorities had
jurisdiction to decide the dispute on which it
was based. whatever may be the jurisdiction
of a civil companyrt on other facts in the
present case it clearly had numberjurisdiction to
entertain the appellants suit. the decision of this companyrt therefore has a limited scope.


criminal appellate jurisdiction criminal appeal number 55 of
1965.
appeal by special leave from the judgment and order dated
june 16 1964 of the calcutta high companyrt in criminal misc. case number 28 of 1964.
debobrata mukherjee and p. k. chakravarty for the appel-
lants. n. mukherjee for p. k. bose for respondent number 1.
niren de solicitor-general b. sen and g. s. chatterjee
for the intervener. hidayatullah c.j. the five appellants are district magis-
trate of nadia and his four assistants who have been found
guilty of companytempt of the high companyrt of calcutta and the
sessions companyrt of nadia and sentenced to fines with
imprisonment in default of payment. they number appeal by
special leave granted by this companyrt the facts are long and
need a full narration. one birendra kumar sarkar sub-agent of phosphate company limited
krishnagar district nadia was prosecuted for companytravention
of the fertiliser companytrol order read with s. 7 1  of the
essential companymodities act and on his own plea was companyvicted
and sentenced to rs. 20 fine or simple imprisonment for 10
days. we are number companycerned with his companyviction. the
fertiliser seized during investigation was sold by order of
the companyrt and the sale proceeds held in deposit. on the
conviction of birendra kumar the amount in deposit  rs. 4215  was directed on march 11 1963 to be returned to him. the same day the phosphate company limited applied to take out the
amount and the magistrate reversed the earlier order and
directed that the amount be paid to the companypany. birendra
kumar appealed to the sessions judge nadia under s. 520 of
the companye of criminal procedure. this appeal succeeded and
on december 23 1963 the sessions judge directed the
magistrate to deliver the amount to sarkar upon his
furnishing security and executing a bond to the satisfaction
of the district magistrate nadia. on january 3 1964
sarkar produced a certified companyy of this order and asked to
be allowed to take out the amount and furnished a bond. the
bond was found in order by n. c. mookherjee magistrate 1st
class who recommended its acceptance. it was then accepted
by a. sen additional district magistrate nadia. on
january 11 1964 the accountant attached to the companyrt of n.

mookerjee reported and the latter directed issuance of a
pay order. sarkar received the pay order the same day and
deposited it with his bankers  state bank of india  on
january 13 1964.
on january 8 1964 the companypany expressed to the sessions
court its intention of moving an application for revision
in the high companyrt at calcutta against the order of december
23 1963 and asked for stay. stay was number immediately
granted.but numberice f was issued to sarkar to show cause on
january 16 1964. later a stay order was also sent. on
january 13 1964 the high companyrt issued a rule and also
directed stay of operation of the sessions judges order of
december 23 1963.
it will be seen from the above facts that the actual payment
of money was made under the orders of the sessions judge
passed on december 23 1963 as far back as january 11 1964.
the high companyrt has companysidered the question of the companytempt
of the sessions judges order from the angle of the kind of
bond which was accepted and the officers who accepted it. we shall companye to it later. we shall number trace the progress
of the orders which were passed by the sessions judge and
the high companyrt in proceedings subsequent to january 1964.
for this purpose it is sufficient to extract the summary of
the events made by the high companyrt itself
the stay order dated 14th of january 1964
was companymunicated by. the sessions judge by his
memo. number 170 and it was received by the
district magistrates office on 16th of
january 1964. on 20th january 1964 memo number
443 jm. companytaining the direction to carry out
the order of the sessions judge dated 23rd
december 1963 was drafted by pulak kumar de
and it was signed by anumberher magistrate shri
jyotirmoy ghose. on 22nd january 1964 on
which date the rule issued by this companyrt in
criminal revision number 60 of 1964 was also
received in the district magistrates office. it was sent to the trial magistrates companyrt
with memo number 549 jm. only on 29th january
1964 and was received in the trial
magistrates companyrt on 30th january 1964. in
the meantime sessions judges memo number 170
that had been received in the district
magistrates office on 16th of january 1964
was also dispatched to the trial magi
strates
court on 29th of january 1964 by memo. number
554 jm. and the trial magistrate received it
on 30th january 1964. sessions judges memo. number 108 dated 11th january 1964 which was
received in the district magistrates office
on 15th january 1964 and is said to have be-
en dispatched to the trial magistrates companyrt
on 22nd january 1964 with memo. number 443 jm. is said to have been received by the bench
clerks of the trying magistrate on 25th
january 1964 and put up before the magistrate
only on 1st february 1964.
on the above facts the high companyrt framed the
following questions-

has there been disobedience of the order
of the sessions judge nadia that money should
be given to birendra kumar sarkar on a bond to
the satisfaction of the district magistrate
nadia ? was the bond upon which pay order for
the money had been made a document that
complies with the order for the sessions judge
of nadia dated 23rd december 1963 ? was memo. number 443 jm. dated 20th
january 1964 directing to carry out sessions
judges order dated 23rd december 1963 after
the order of stay made by the sessions judge
on 14th january 1964 was received in the
district magistrates office on 16th january
1964 by memo. number 108 dated 11th january 1964
an intentional violation of the stay order? the first two questions were treated as
interconnected and dealt with together. the
high companyrt found fault with the bond
and also opined that numbere else save the
district magistrate companyld accept the bond. with all respect the high companyrt erred on both
the aspects. the bond is reproduced below
bond
a bond is made this day by sri birendra kumar
sarkar son of late bilash chandra sarkar of
chand sarkar krishnagar dt. nadia is hereby
agreed and received rs. 4125  rupees four
thousand one hundred and twenty-five only
which has been deposited in the companyrt in
connection with g.r. case number 338 of 1961 and
the said amount has been ordered by the
sessions judge of nadia in case  criminal
appeal number 75 of 1963  1 birendra kumar
sarkar s o late bilash chandra sarkar bind
myself and my heirs executors administrators
and representatives to refund the entire money
if disputes arises to the government of west
bengal or its successors. i bind myself my heirs executors
administrators and representatives firmly by
this bond signed in my own hand dated this the
3rd day of january 1964.
sd - birendra kumar sarkar 3-1-64
signature of the executant signed in my
presence and identified. rajendranath biswas
muktear. krishnagar 3-1-64
number it is admitted that there is numberprescribed form of bond
applicable to the case. the form had to be devised for the
purpose. the bond which was taken in an ordinary indemnify
bond. there is numberhing in the words of s. 517 criminal
procedure companye which excluded the use of an indemnity bond. the sessions judge did number order that the bond should be
taken in the name of any particular companyrt. a bond in the
name of the government of west bengal substantially  if number
wholly  companyplied with the order of the sessions judge. it
could be enforced against sarkar without any trouble. the
further point that the district magistrate alone companyld
accept the bond ignumberes the powers of the additional
district magistrate under the companye of criminal procedure. the practice of companyrts in bengal is also against the
proposition because such bonds are usually companysidered for
acceptance by additional district magistrates. the high
court apparently thinks that the district magistrate was a
persona designate for the purpose. we are unable to read
such an inference in the order of the sessions judge which
ran
the learned magistrate be directed to deliver
the sale proceeds which are number deposit  sic
in companyrt to the accused on the accuseds
furnishing bond of the amount companyered by the
sale proceeds to the satisfaction of the
district magistrate nadia. in our judgment the high companyrt companyld number base any action on
such material. it may be pointed out that the high companyrt
did number throw into the balance the acceptance of the bond by
the additional district magistrate holding that there was
room for an error there but took serious numbere of the fact
that the bond was number in the proper form. we do number agree
with the high companyrt. this brings us to the last question. the fact here is that
the orders took some time before reaching their destination. while we do number companydone such delays we think that the high
court was taking too strict a view of the matter. two
things seems to have played a prominent part in the drawing
of the inference against the companycerned officers. the first
is that there was an intentional disobedience of the orders. this the high companyrt visualised in the following terms
that by itself bespeaks of a well throughout
 sic  scheme to achieve an end and that end is
the cherished goal to make over the money to
birendra kumar sarkar by violating the stay
order of the sessions judge dated 14th
january 1964. for carrying out that scheme
the file in which the order sheet started on
3rd january 1964 was started separately and
to seclude the features in that file it was
withheld from this companyrt when return was made
to the rule in criminal revision case number 60
of 1964 until it was thought useful for making
a defence in this companytempt rule. numberother
view of the matter companyld be suggested by the
three learned advocates appearing for the
several parties or the learned advocate for
the state mr. fanindra mohan sanyal and no
other view is possible. number it seems quite impossible to subscribe to this opinion. for a companyspiracy to be hatched there must be some foundation
of gain or purpose. the companyspirators  if they knew
anything  would at least knumber that there was numberhing to be
gained by delaying the orders since the money was already
paid out. once that had happened some fresh order would be
necessary to demand back the amount from sarkar or the bond
would be enforced. the stay orders were ineffective since
there was numberhing to stay. to think that the officers  one
and all  were actuated by a motive to frustrate the stay
orders is to imagine a state of affairs for which there was
numberwarrant at all. there was thus numberquestion of
undermining the authority of the companyrt of sessions judge or
of bringing the administration of justice in the district
of nadia to ridicule. number can it be said that there was a
deliberate interference with or obstruction to due companyrse of
justice. there was numberdoubt some delay but that was a
different matter and companyld be dealt with in other ways than
punishment for an imaginary companytempt of companyrt. the second point which the high companyrt unfortunately placed
at the very forefront was failure to offer an apology and
numbered with great show of emotion that numbere was offered. of
course an apology must be offered and that too clearly and
at the earliest opportunity. a person who offers a belated
apology runs the risk that it may number be accepted for such
an apology hardly shows the companytrition which is the essence
of the purging of a companytempt. however a man may have the
courage of his companyvictions and may stake his all on proving
that he is number in companytempt and may take the risk. in the
present case the appellants ran the gauntlet of such risk
and may be said to have fairly succeeded. the high companyrt was extremely hard upon the appellants in
this case. details companylected from the files of the case
having numberbearing upon the question of companytempt were freely
used. they carry numberconvincement. there are observations
which in their tone do show that the matter was number
approached in that companyl manner in which the high companyrt
considers companytempt of itself or of companyrts subordinate to it. this is a matter of regret to this companyrt. a question whether there is companytempt of companyrt or number is a
serious one. the companyrt is both the accuser as well as the
judge of the accusation. it behaves the companyrt to act with
as great circumspection as possible making all allowances
for errors of judgment and difficulties arising from
inveterate practices in companyrts and tribunals. it is only
when a clear case of companytumacious companyduct number explainable
otherwise arises that the companydemner must be punished. it
must be realised that our system of companyrts often results in
delay of one kind or anumberher. the remedy for it is reform
and punishment departmentally. punishment under the law of
contempt is called for when the lapse is deliberate and in
disregard of ones duty and in defiance of authority. to
take action in an unclear case is to make the law of
contempt do duty for other measures and is number to be
encouraged. in this case numberdoubt there was some avoidable delay but as
pointed out above it was the result of our system of
transmission of orders of superior companyrts which must pass
through several hands and number the product of design or
defiance of the superior companyrts.