judgement:
iminal Appeals Nos.
150 152 of 1965.
Appeals by special leave from the judgment and order dated March 17, 1965 of the Mysore High Court in Criminal Appeals Nos.
93 to 95 of 1965.
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
K. R. Chaudhury, for the respondents.
812 The Judgment of the Court was delivered by Mudholkar, J.
This judgment will also govern Criminal Ap peals Nos. 151 and 152 of 1965.
The respondent was at the relevant time a dealer at Bijapur in groundnuts, cotton seed and other commodities and was registered as a dealer under the Mysore Sales Tax Act, 1957.
For the period between November 12, 1958 and October 31, 1959 he was assessed to sales tax amounting to Rs. 9,864 31 ps.
by the Commercial Tax Officer, Bijapur in his order dated December 4, 1963.
On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring him to pay the tax assessed on him within 21 days.
He was similarly assessed to pay tax for two subsequent periods by two separate orders passed by the Commercial Tax Officer.
Two separate notices of demand were served on him requiring him to pay the tax assessed within 21 days.
It is common ground that the respondent did not comply with any of the three notices.
Three separate complaints were, therefore, preferred against him by the Commercial Tax Officer before the Judicial Magistrate, First Class, second court, Bijapur for offences punishable under section 29(1)(d) of the Act.
The respondent had preferred appeals against each of the three orders ,of assessment under sub section
(1) of section 20 of the Act.
He did not, however, pay the tax assessed against him or any portion thereof as contemplated in the second proviso of sub section
(1) of section 20 nor did he seek or obtain from the appellate authority any order under the proviso to sub section
(5) of section 20.
The learned Magistrate held that since the respondent had preferred appeals against the orders of assessment and those appeals were still pending when the complaints were made before him the respondent was not liable for offences under section 29 (1) (d).
On this ground the learned Magistrate acquitted the respondent in all the three cases.
Appeals preferred by the State of Mysore against the orders of acquittal passed in favour of the respondent were rejected by the High Court on the ground that as the State could avail itself of other remedies under the Act for enforcing the payment of tax levied on the respondent it did not think it fit to exercise its discretion under section 421 (1) of the Code of Criminal Procedure and entertain the appeals.
Mr. Chaudhuri refers to the proviso to sub section
(3) of section 13 and contends that unless the requirements of the proviso are satisfied he is not liable to be proceeded against under section 29 (1) (d).
In order to appreciate his argument it is desirable to reproduce the provision relied upon by him.
Sub section (3) of section 13 reads as follows "Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered (a) as if it were an arrear of land revenue, or 813 (b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him: Provided that no proceeding for such recovery shall be taken or continued as long as he has, in regard to the payment of such tax or other amount, as the case may be, complied with an order by any of the authorities to whom the dealer has appealed, or applied for revision, under sections 20, 21, 22 23 or 24.
" The matter dealt with by section 13 is "payment and recovery of tax".
The substantive part of the provision renders an assessee in arrears of tax liable to be proceeded against under either cl.
(a) or cl.
(b) of the provision.
Mr. Chaudhury, however, contends that by virtue of the proviso an assessee will not be liable to be proceeded against unless it is shown that he has failed to comply with an order made by the appropriate authority under one of the sections refered to in the proviso.
He points out that though he has preferred appeals under section 20 of the Act no order has been made by the appellate authority in any of the appeals dealing with the question of payment or otherwise of the tax and that,the refore,there has been no failure on the part of the respondent to comply with an order made by the appropriate authority.
Mr. Chaudhury in effect wants us to construe the proviso as if it contemplated the creation of liability to pay the tax by an order of the appropriate authority under one of the sections specified in the proviso.
There is no warrant for such a construction.
The liability to pay tax is created by the order of assessment.
Where tax so assessed is not paid despite service of notice of demand the substantive portion of sub section
(3) of section 13 renders the assessee liable to be proceeded against under cl.
(a) or cl.
(b) of that provision.
The assessee who has moved the appropriate authority under one of the provisions referred to in the proviso has, however, been afforded interim protection from action under cl.
(a) or cl.
(b) provided that he approaches the appropriate authority and obtains from that authority an order of stay of proceedings under cl.
(a) or cl.
That, however, is not enough.
If the order of the appropriate authority lays down any condition the proviso requires that the assessee must comply with those conditions before he can obtain interim relief under the proviso.
Apart from that, we fail to see how the proviso to sub section
(3) of section 13 can at all be an answer to a prosecution under section 29 (1) (d).
What is rendered an offence under section 29 (1) (d) is the failure of the assessee to pay the tax within the time allowed.
But where, as here, the assessee has not paid the tax within the time allowed by a notice of demand he immediately renders himself liable to be proceeded against under section 29 (1) (d).
Mr. Chaudhury then contended that in view of the fact that an appeal has been preferred the liability of the assessee to pay 814 the tax must be deemed to have been suspended during the pendency of the appeal.
This argument ignores the specific provisions of sub section
(5) of section 20 and the proviso thereto.
They read thus : "Notwithstanding that an appeal has been preferred under sub section (1), the tax shall be paid in accordance with the assessment made in the case : Provided that the appellate authority may, in its discretion give such directions as it thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed.
" The provision we have just quoted is a complete answer to Mr. Chaudhuri 's contention.
Mr. Chaudhury then contended that there was no wilful default on the part of the respondent.
It is difficult to appreciate what he means by saying that there was no wilful default.
The respondent knew that he was required to pay the tax within certain time and also knew that he had not complied with the notice of demand.
His action in not paying the tax was quite clearly deliberate and, therefore, wilful.
There is no substance in this contention.
We are, therefore clear that the acquittal of the respondent for offences in the case was unwarranted.
We would, therefore, have, after setting aside his acquittal in each of the three cases, convicted and sentenced him under section 29 (1) (d) of the Act but for the fact that when special leave was granted an undertaking was given by the State that irrespective of the result of the appeal the respondent would not be prosecuted.
Probably what was meant was that the State would not press for conviction and sentence of the respondent.
Therefore, though we allow the appeals and set aside the acquittal of the respondent in the three cases we leave the matter just there.
Appeals allowed.

summary:
The respondent was assessed to sales tax and was served with a notice requiring him to pay the amount within 21 days.
He preferred an appeal against the order of assessment but did not pay the tax, nor did he obtain an order of stay of proceedings from teh appellate authority.
While the appeal was pending a complaint was filed against him under section 29(1)(d) of the Mysore Sales tax Act, 1957, because the demand was not complied with, but the trial court and the High Court acquitted In appeal to this Court by the State, HELD: The acquittal of the respondent was unwarranted as his action in not paying the tax within the time allowed, was deliberate and therefore wilful and such failure to pay is rendered an offence under section 29(1)(d).
[814 D, E] The liability to pay tax is created by the order of assessment.
Where the tax so assessed is not paid despite service of notice of demand, the tax may be recovered under section 13(3)(a) as an arrear of land revenue or under section 13 (3) (b) on an application to a magistrate as if it were a fine imposed on the assessee.
Under the proviso to section 13(3), the assessee has been afforded interim protection from action under section 13 (3) (a) or (b), provided he obtains from the appropriate appellate or revisional authority mentioned in the proviso, an order of stat of proceedings.
Merely because an appeal has been preferred, the liability of the assessee to pay the tax cannot be deemed to be suspended under section 20(5).
This provision requires that if the order of such appropriate authority lays down any condition, the proviso requires that the assess must comply with it before he can obtain interim relief.
Apart from these two methods of obtaining interim relief, the proviso to section 13(3) cannot be an answer to a prosecution under section 29(1)(d).
(813 E G]


judgement:
minal Appeal No. 108 of 1964.
Appeal from the judgment and order dated September 4, 1963 of the Calcutta High Court in Criminal Revision No. 396 of 1962.
Debrata Mookerjee, B. L. Mehta, R. H. Dhebar and B. R. G. K. Achar, for the appellant.
D. N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
This is an appeal by certificate under article 134 (1) (c) of the Constitution, against the judgment of the High Court of Calcutta dated September 4, 1963 by which the conviction of the respondent Motilal Kanoria under section 5 of the Imports and Exports (Control) Act, 1947 and the sentence of fine of Rs. 200/(in default simple imprisonment for one month) imposed by the Presidency Magistrate, 6th Court, Calcutta, were set aside and an acquittal was entered.
The facts of the case are not in controversy and may therefore be stated briefly.
Motilal Kanoria was a director of Lachminarayan Jute Manufacturing Co. Ltd., Calcutta.
The Company was managed by a firm of the name of Mukhram Lachminarayan and Motilal Kanoria was one of the partners of the firm.
The Company and the Managing Agents had a common address in Calcutta.
Motilal Kanoria used to sign on behalf of the Managing Agents and also generally to deal with the affairs of the Company.
All transactions in this case were by Motilal Kanoria and he had signed the documents to which reference will be made presently.
In February 1955 the Government of India approved of the proposal of the Company to manufacture hackle and combing pins and sanctioned the import of plant and machinery for the 93 5 purpose.
The Company was permitted to apply to the Chief Controller of Imports, New Delhi for a licence.
The letter of Government is exhibit 2 dated February 4, 1955.
On February II.
1955 the Company applied to the Chief Controller of Imports, New Delhi, on the proper application form, for an import licence.
In that application the Company stated that the machinery was to be installed or used at their Mills at Konnaggar, Eastern Railway (exhibit 1).
On May 26, 1955 a licence was issued (exhibit 3).
The licence read as follows "This licence is issued subject to the conditions to the goods licensed as detailed in the Policy Book for the current licensing period and any public notices that may be issued in this behalf from time to time.
LICENCE NO.
035925 Counterfoil Not available for foreign exchange unless authorised by Reserve Bank of India.
IMPORT TRADE CONTROL (Valid for all India Ports) (Not transferable except under a letter of authority from the authority who issued the licences or from any Import Trade Controller).
Messrs. Shree Luchminarain Jute Manufacturing Co. Ltd., of 59, Netaji Subhas Road, Calcutta 1.
are hereby authorised to Import the goods of which particulars are given below: 1.
Country from which consigned: West Germany.
Quantity & Description Machinery as per of goods: list attached for the manufacture of Hackling & combing pins.
Approximate value C.I.F. Rs. 1,88,000/ (Rupees One Lakh and Eighty eight thousand only) 4.
Period of shipment: Revalidated upto 31st May 1957.
Name & Address of M/s. Schunacher Metal Manufacturer Shipper or Works Aktiengesche Suppliers: Ilacheft, Aachen, Germany.
936 6.
Limiting factor for purpose of clearing through Customs: Value 7.
Name of actual user in Self India This licence is granted under Government of India, late Commerce Department Notification No. 23.
ITC/43 dated the 1st July 1943 as continued in force by the Imports and Exports (Control) Act 1947 18 of 1947) and subject to the rules and orders issued thereunder.
This licence is also without prejudice to the applications of any other prohibitions or regulations affecting the importation of the goods which may be in force at the time of their arrival.
Illegible Section Officer 26 5 55 for Chief Controller of Imports and Exports.
26 5 1955.
Issued from file No. L. IV/49 (11) CG/55.
(Space for Endorsements by Import Trade Control Authorities) This licence is issued with an initial validity period of one year from the date of issue.
It will be revalidated at or before the end of the said period of one year, for a further period of two years, provided satisfactory evidence is produced that the order for the goods has been accepted by the foreign suppliers and a firm contract is made within the initial period of one year.
In no case, however, will the validity period extend beyond three years from the date of issue.
" In the covering letter, which was sent when forwarding the licence, the Chief Controller said inter alia, (3).
The licence is granted to you subject to the following conditions: (a) In case the project involves any capital issue and if such capital issue is not sanctioned the licence is liable to cancellation.
(b) That if any sanction to the project is necessary under the laws of the Central, Provin 937 cial or a State Government the same should be obtained and the position reported to this office by the licensee; in the absence of such sanction being received the licence is liable to cancellation.
The licence is liable to cancellation if particulars as to progress of time in accordance with the detailed instructions contained in the accompanying slip are not furnished.
The Government do not guarantee for supply of raw materials required for manufacture of the goods.
On June 19, 1956 the Company asked for "revalidation" of the licence and the licence was extended to May 31, 1957.
This extension is mentioned in the licence above reproduced at No. 4.
On December 13, 1956 the Company entered into an agreement (exhibit 25) with Shalimar Wood Products (P) Ltd. of Calcutta for the sale of the machinery imported by the Company.
The sale, it is submitted, was at invoice price and there was no profit.
On the arrival of the machinery in February of the following year the Company authorised Shalimar Wood Products to receive the shipping documents from the Company 's bankers and to clear it from the Docks.
The plant and machinery were then cleared by the Agents of the Shalimar Wood Products and the latter took them with a view to installing them in their own factory.
On July 30, 1958 the Company wrote a letter (exhibit 7) to the Chief Controller of Imports informing him that owing to the death of their director of Sawal Ram Kanoria who was interested in the production of the said pins the Company was compelled to sell the imported plant and machinery to Shalimar Wood Products.
(P) Ltd., Calcutta and asked for the approval of the transaction.
The Chief Controller of Imports in reply pointed out that permission ought to have been obtained before the transfer and that the Company had apparently committed a contravention of the import licence.
A report was made to the police for investigation and later a complaint under section 5 of the Import and Exports (Control) Act, 1947 was filed in the Court of the Chief Presidency Magistrate, Calcutta, by the Deputy Chief Controller of Imports and Exports.
Lachminarain Jute Manufacturing Company was named as the accused "represented by Shri Motilal Kinoria".
In paragraph 2 of the complaint the Company was stated to be the accused but in later paragraphs of the complaint Motilal Kanoria was named as the accused.
In the prayer it was requested that the court should summon "accused Motilal Kanoria representing the Company and the Managing Agents" to answer the charge of a breach of the pCI/66 14 938 conditions of the licence which constituted an offence under section 5 of the Imports and Exports (Control) Act, 1947 read with clause (5) of the Imports (Control) Order No. 17 of 1955, dated December 17, 1955.
Motilal Kanoria appeared at the trial, was questioned as an accused, pleaded not guilty and stood the trial.
He does not appear to have objected to being arraigned as an accused person a point he took later in the High Court and has taken before us.
The prosecution examined a large number of witnesses and filed documents to prove the above facts none of which is now denied.
The Presidency Magistrate, 6th Court, Calcutta, convicted Kanoria under section 5 of the Imports and Exports (Control) Act, 1947 for contravention of clause (5) of the Imports (Control) Order, 1955 and sentenced him to a fine of Rs. 200/ or simple imprisonment for one month.
On revision the High Court acquitted him but certified the case as fit for appeal to this Court and the present appeal is the result.
As the prosecution is in respect of an offence under section 5 of the Imports and Exports (Control) Act, 1947, we shall begin by examining what the ingredients of that offence are.
Under the scheme of that Act there is a power to prohibit or restrict imports and by section 3 the Central Government is enabled to make provision, by order published in the Official Gazette, for prohibiting, restricting or otherwise controlling them.
Section 5 prescribes penalty for contravention of an order.
The section, as amended by Act 4 1960, is set down here "5.
If any person contravenes or attempts to contravene, or abets a contravention of, any order made or deemed to have been made under this Act or any condition of a licence granted under any such order, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the , as applied by sub section (2) of Section 3, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both".
(The words underlined were introduced in 1960).
The complaint in this case was filed after this amendment.
Different orders at different times were passed by the Central Government under section 3 and a word may be said about the orders of 1943 and 1948, although on the date of the transfer of machinery (December 13, 1956) only the order of 1955 was in force.
The first order was made under sub rule (3) of rule 84 of the Defence of India Rules in force in 1943 (Notification No. 23 I.T.C./ 43 dated 1st July, 1943).
That order was general and there was no provision authorising the imposition of conditions in the licence, the breach of which would be deemed to be a breach of the order.
939 In 1948 another order was issued under section 3 (Notification No. 2 I.T.C. dated 6th March, 1948).
It provided for imposition of conditions but the provisions of the order did not indicate that any particular condition would be deemed to be included in a licence if not expressly included.
The provisions of that order may be read here: "In exercise of the powers conferred by sub section (1) and sub section (3) of section 3 of the Imports and Exports (Control) Act, 1947 (18 of 1947), the Central Government is pleased to make the following order namely: (a) Any officer issuing a licence under clauses (viii)to (xiv) of the notification of the Government of India in the late Department of Commerce No. 23 I.T.C./43, dated the 1st July, 1943, may issue the same subject to one or more of the conditions below: (i) that the goods covered by the licence shall not be disposed of or otherwise dealt with without the written permission of the licensing authority or any person duly authorised by it; (ii) that the goods covered by the licence on importation shall not be sold or distributed at a price more than that which may be specified in any directions attached to the licence; (iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be granted; (iv) that the licence shall not be transferable except in accordance with the permission of the licensing authority or a person duly authorised by it; (v) that such other conditions may be imposed which the licensing authority considers to be expedient from the ad ministrative point of view and which are not inconsistent with the provisions of the said Act.
(b) Where a license is found to have con travened the order or the terms and conditions embodied in or accompanying a licence, the 940 appropriate licensing authority or the Chief Controller of Imports may notify him that, without prejudice to any penalty to which he may be liable under the Imports and Exports (Control) Act, 1947 (18 of 1947), or any other enactment for the time being in force he shall either permanently or for a specified period be refused any further licence for Import of goods.
" By this order the licensing authority was given the power to include conditions in a licence.
On December 7, 1955 an order was issued (Notification No. 17/55 dated December 7, 1955).
It consolidated all the rules in one place and by clause 12 read with Schedule IV repealed the earlier two orders and some others but while effecting this repeal it added a saving clause "Provided that anything done or any action taken, including any appointment made or licence issued under any of the aforesaid Orders, shall be deemed to have been done or taken under the corresponding provision of this Order.
" The order of 1955 also included several new provisions regarding conditions which may be introduced in licences and others which would be deemed to be so introduced.
Conditions relevant here may be noticed.
Conditions of Licence.
(1) The licensing authority issuing a licence under this Order may issue the same subject to one or more of the conditions stated below: (i) that the goods covered by the licence shall not be disposed of, or otherwise dealt with, without the written permission of the licensing authority or any person duly authorised by it; (ii) that the goods covered by the licence on importation shall not be sold or distributed at a price exceeding that which may be specified in any directions attached to the licence; (iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be granted.
(2) 941 (3) It shall be deemed to be a condition of every such licence, that: (i) no person shall transfer and no person shall acquire by transfer any licence issued by the licensing authority except under and in accordance with the written permission of the authority which granted the licence or of any other person empowered in this behalf by such authority.
(ii) that the goods for the import of which a licence is granted shall be the property of the licensee at the time of import and thereafter upto the time of clearance through Customs.
(iii) the goods for the import of which a licence is granted shall be new goods unless otherwise stated in the licence.
(4) The licensee shall comply with all conditions imposed or deemed to be imposed under this clause.
" Conditions 5 (1) (i), (ii) and (iii) and 5 (3) (i) are the same as conditions (a) (i) to (iv) of the 1948 Order but 5 (3) (ii) and (iii) and 5 (4) are new.
Conditions 5 (3) (i), (ii) and (iii) become a part of every licence and further the licensee has to comply with all the conditions imposed or deemed to be imposed under clause 5.
The effect of these clauses has to be considered in relation to the licence granted in this case but in this context the provisions of clause 7 are also relevant and the clause may be set down here: "7.
Amendment of Licence.
The licensing authority may, of its own motion or on application by the licensee, amend any licence granted under this Order in such manner as may be necessary to make such licence conform to the provision of the Act or this Order or any other law for the time being in force or to rectify any errors or omissions in the licence; Provided that the licensing authority may, on request by the licensee, amend the licence in any manner consistent with the Import Trade Control Regulations.
" 942 Much of the argument in this case is based on the dates of these notifications and of the amendment of the section 5 of the Act, considered in relation to the dates on which the several facts in this case took place.
The Presidency Magistrate applied the Order of 1955 because the licence was "revalidated" on June 27, 1956, and according to him, this was apparently done under powers derived from clause 7 of that Order.
According to the Presidency Magistrate the Company had imported the plant and machinery for its own use (vide No. 7 of the licence) and this was an express condition of the licence.
He also pointed out that the licence was expressly made subject to such restrictions as might be imposed from time to time and the Order of 1955 imposed conditions which made the transfer of machinery an offence being a breach of subclause (3) clause (5) of the 1955 Order.
The High Court held that section 5 of the Act as it stood on December 13, 1956 when the alleged offence was committed, did not make breach,of a condition of a licence an offence and, therefore, there was no offence.
The Division Bench relied principally on the observations of Sen and Mitter JJ.
in C. T. section Pillai vs H. P. Lohia and Anr.(1) to the following effect : "It is clear, therefore, that the section penalises only contravention of any order made or deemed to have been made under the Act.
But the question is whether contravention of a condition imposed by a licence issued under the Act or issued under a statutory order made under the Act is also an offence under section 5, Imports and Exports (Control) Act, 1947.
Although license is granted under a statutory order made under the Act and conditions may be imposed in the license under another statutory order made under the Act, it is difficult to hold that the license or the conditions in the license amount to an order made or deemed to be made under the Act.
Notification No. 23.
I.T.C./43 dated 1 7 1943 merely provides that no goods shall be imported except goods covered by special license issued by an authorised officer.
Notification No. 2 I.T.C./48 dated 6 3 1948 authorises a licensing officer to impose one or more conditions prescribed in that order and a licensing officer, therefore may impose a condition in view of the provision of Notification No. 2 I.T.C./48.
But if the licensee contravenes the condition imposed by the license it can hardly be said that he has contravened the order under this Act, that is, the Notification No. 2 I.T.C./48.
The order No. 2 I.T.C./48 does not directly impose any duty but it gives power to the licensing officer to impose certain conditions.
But contravention of condition im (1) A. I. R. 943 posed by the licensing officer cannot prima facie be regarded as contravention of the notified order itself.
When there is a special license covering certain goods and there is a condition imposed in the special license it cannot be said that by breach of the condition imposed in the special license it cannot be said that by breach of the condition there has been any breach of Order 231 I.T.C./43 or of the subsequent Notification No. 2 I.T.C./ 48.
It may be mentioned that the difficulty apparently was realised in Pakistan and therefore the Imports and Exports (Control) Act, 1947, was first amended by an ordinance and then by the Imports and Exports (Control) Act, 1950, of Pakistan.
Section 3(2) of that Act provides that 'no goods of the specified description shall be imported or exported except in accordance with the conditions of a license to be issued by the Chief Controller or any other Officer authorised in this behalf by the Central Government.
The penal section 5, refers not only to contravention of an order or Rule made under the Act but also to the contravention of any condition imposed by the License. .
It is clear that unless the penal section itself includes the contravention of a condition of the license as an offence, it is not possible to hold that the licensees by merely committing breach of a condition imposed by a license has committed the offence which consists in contravention of an order made or deemed to be made under this Act.
In this view, therefore, although the reasons given by the learned Magistrate have not been considered by us as sound, it is clear that the prosecution of the opposite party under section 5 of Imports and Exports (Control) Act, 1947, must fail".
These observations were referred to by the majority decision of this Court in East India Commercial Co. Ltd., Cakutta vs Collector of Customs, Cakutta (1) in the following words : before a division Bench of the Calcutta High Court, consisting of Mitter and Sen. JJ., and the learned Judges, by their judgment dated March,3, 1955 dismissed the revision holding that there had been no contravention of the order made or deemed to be made under the Act.
The learned Judges construed section 5 of the Act and held that the said section penalised only a contravention of an order made or deemed to have been made under the said Act, but did not penalise (1) ; at 356, 369, 372. 944 the contravention of the conditions of licence issued under the Act or issued under a statutory order made under that Act, and dismissed the revision.
It will be seen from this order that it does not provide for a condition in the licence 'that subsequent to the import the goods should not be sold.
Condition (v) of cl.
(a) only empowers the licensing authority to impose a condition from an administrative point of view.
It cannot be suggested that the condition, with which we are now concerned, is a condition imposed from an administrative point of view, but it is a condition.
which affects the rights of parties.
It follows from the above that the infringement of a condition in the licence not to sell the goods imported to third parties is not an infringement of the order. . .
The Division Bench considered that the earlier Calcutta case was approved.
Following the above observations the learned Judges applied them to this case.
They noted that the breach of a condition became an offence only after the 17th of March, 1960 when Act 4 of 1960 was passed and as it could not be an offence before, even if the Order of 1955 deemed certain conditions to be a part of the licence, their breach was not an offence.
They distinguished the decision of the Bombay High Court ill State vs Abdul Aziz(1) on the ground that the licence in that case was granted on January 2, 1956, that is to say, after the coming into force of the Order of 1955.
The Division Bench therefore held that no offence was committed.
Adverting also to the fact that there was confusion as to which of the two the Company or Motilal Kanoria was the accused the learned Judges held that the Presidency Magistrate was further wrong in convicting Kanoria although the prosecution was really against the Company.
The questions that arise in this case are really two and they are : (a) whether by disposing of the plant and machinery without permission an offence was committed; and (1) A.L.R. 945 (b) if so, by whom ? In our judgment both these questions must be answered in favour of the State of West Bengal.
It was overlooked in the High Court that under the proviso to clause 12 of the Order of 1955 the licence, although granted before that Order was brought into force, came under its terms.
The words of that proviso refer to a 'licence issued ' under any of the earlier orders as something done or action taken under the corresponding provision of the 1955 Order.
The corresponding conditions were those we have extracted from the Order of 1955 and set down earlier.
By the terms of the licence (item No. 7) the licensee undertook to use the goods himself.
He further bound himself by "any other prohibitions or regulations affecting the importation of the goods which may be in force at the time of their arrival" and not to transfer the licence "except under a letter of authority from the authority who issued the licence or from any Import Trade Controller".
The goods arrived long after the Order of 1955 came into force.
By the operation of the revalidation under clause 7 and the conditions of the licence, even as they were, the provisions of the Order of 1955 were attracted.
As clauses 5(3) and (4) became a part of the licence, their breach was a breach of the Order and an offence was, therefore, committed.
It was decided in Abdul Aziz vs State of Maharashtra(1) (on appeal from the case sub.
State vs Abdul Aziz of the Bombay High Court) that if the licence was issued under the Order of 1955, the provisions of sub cl.
(4) of cl. 5 made it obligatory upon the licensee to comply with all the conditions imposed or deemed to be imposed under clause 5 and that the contravention of any condition of a licence amounted to the contravention of the provision of sub cl.
(4) of cl. 5 of the Order and consequently to the contravention of the order made under the Imports and Exports (Control) Act and therefore the licensee became liable to the penalty under section 5 of the Act.
The only distinction between Abdul Aziz 's case and this lies in the fact that the licence in the former was given after, and in this case before, the coming into force of Order of 1955.
But this distinction loses significance when the provisions of clause 12 of the Order of 1955 are read in conjunction with the licence itself.
Between them they bring into operation clause 5 of the Order of 1955 and the result reached by this Court in Abdul Aziz 's case obtains here also.
The fact that the licence was revalidated presumably under clause 7 of the Order of 1955 further fortifies the above conclusion.
The submission of Mr. D. N. Mukherji that this extension was under the last paragraph of the licence is not the whole of the matter.
A power might have been reserved by that paragraph but it could only be (1) ; 946 exercised by the licensing authority after December 7, 1955 by virtue of the Order of 1955 because all previous orders were repealed.
There was thus an offence under section 5 of the Imports and Exports (Control) Act for the breach of clause 5 of the Order of 1955.
Mr. D. N ' Mukherjee seeks to distinguish between the transference of the licence and that of the machinery.
This argument is not acceptable to us.
The licence created its own conditions that the goods would be used by the licensee and the transfer of goods in circumstances is tantamount to transfer of the licence.
It would be refining matters too finely to distinguish between the transfer of the licence and the transfer of the goods.
Even if a distinction can be drawn the licence was for the actual use of the licensee.
When the goods were sold condition No. 7 was broken and so would be a breach of the 1955 Order which had come into force.
The final question is whether Kanoria can be said to have committed any offence and whether he was prosecuted at all.
The section as amended in 1960 makes the abetment of contra vention an offence.
If the amendment applied because the prosecution was after the amendment (a point we need not decide) Kanoria would be definitely guilty at least of abetment.
In our opinion it is not necessary to decide this point because Kanoria is guilty as a principal offender and the section as it originally stood, must apply to him.
The section said "if any person contravenes any order made or deemed to have been made. . "he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both." The question is whether Kanoria was such a person.
Kanoria was responsible for the issuance of the licence and for the transfer of the goods covered by the licence.
He wrote every document connected with these two matters.
He was, therefore, responsible principally along with the Company.
In fact the Company could not have committed the offence of contravention if Kanoria had not acted as he did.
Abetment, of which the section now speaks, is an act of a different kind.
The act of Kanoria was not abetting any one else but one which by itself led to the contravention of the Order of 1955 and he was, therefore, liable principally.
The complaint no doubt was not clear as to who was really meant to be prosecuted but it described Kanoria as an accused.
Under the Explanation to section 537 of the Code of Criminal Procedure no error, commission or irregularity in the complaint should have led to a reversal of the finding that Kanoria was guilty unless there was.
a failure of justice.
The objection that he was not named.
as an accused throughout the complaint and that he was thus not an accused could have been raised at the trial but it was not.
On the contrary Kanoria entered a plea of not guilty on his own behalf and also stood examination as an accused.
It is obvious 94 7 that he was regarded as the accused and he understood his own position.
The objection could not be entertained in revision in the High Court as it was belated and the defect, if any, had not occasioned a failure of justice.
This ground also has no force.
For the above reasons we are satisfied that the High Court erred in interfering with the conviction of the respondent.
We accordingly allow the appeal, set aside the acquittal ordered by the High Court and restore the conviction under section 5 of the Imports and Exports (Control) Act, recorded by the Presidency Magistrate together with the fine of Rs. 200 or simple imprisonment for one month.
Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent was the director of a company and also a partner in the firm managing it.
On behalf of the company he made an application for an import licence under the Imports and Exports (Control) Act 1947, and in May 1955 the licence was granted.
At that time the grant of licence was governed by an Order issued in 1948 issued under section 32 of the Act, and under that Order the Controller of Imports and Exports could attach conditions to licences issued by him.
According to the terms of the licence granted to the aforesaid company the goods imported under the licence were to be employed for the company 's own use.
In December 1955 the Imports (Control) Order No. 17 of 1955 was passed.
Under cl.
5(3) of the Order certain conditions were deemed to be part of every licence and under cl.
5(4) every licencee was enjoined to observe the condition of the licence.
In 1956 the respondent secured a revalidation of the licence issued to the company.
Thereafter when the goods arrived they were sold by the respondent to another party.
A complaint was filed against the respondent and the company for an offence under section 5 of the Imports and Exports (Control) Act 1947 read with cl.
(5) of the Imports (Control) Order 1955.
The respondent faced the trial as an accused and participated in the proceedings without any objection.
He was convicted by the trial Magistrate but the High Court acquitted him on the ground that at the time when the transaction of sale was entered into i.e. in December 1956, breach of a condition of licence did not constitute an offence under section 5 of the Act of 1947.
The State appealed to this Court.
The questions that fell for determination were : (i) whether by disposing of the imported goods without permission any offence was committed; and (ii) if so whether the respondent was personally liable.
HELD: (i) Although section 5 of the Imports and Exports (Control) Act, 1947 did not, before its amendment in 1960, specially provide that breach of a condition of licence would be deemed to be a breach of the Imports (Control) Order, yet by virtue of cls.
5(3) and (4) read with cl. 12 of the Imports (Control) Order 1955 the transfer of a licence was a breach of the said order and constituted an offence.
No distinction could validly be made in the circumstances of this case between transfer of a licence and transfer of goods imported under it.
[945 E G; 946 B C] C.T.S. Pillai vs H. P. Lohia & Anr.
A.I.R. 1957 Cal. 83, referred to.
East India Commercial Co. Ltd. Calcutta vs Collector of Customs, Calcutta, ; , distinguished.
934 Stare vs Abdul Aziz ; , applied.
(ii) The fact that the licence was obtained by 'the respondent while the 1948 Order was in operation did not help the respondent as under cl. 12 of the 1955 Order any licence issued under any of the earlier Orders was deemed to have been issued under the corresponding provisions of the 1955 Order.
The goods under the licence were, moreover, imported and sold after 1955.
The licence itself was revalidated in 1956 and that could only have been done by power derived under cl. 7 of the 1955 Order.
[945 B, D] (iii) The respondent was responsible for the issuance of the licence and for the transfer of the goods imported under it.
He was therefore responsible principally along with the company.
The complaint no doubt was not clear as to whom was really meant to be prosecuted but it described the respondent as an accused to which he did not object at his trial.
The error, omission or irregularity, if any, in the complaint was curable under section 537 of the Code of Criminal Procedure and in the present case could not be said to have led to a failure of justice.
[946 E H]


judgement:
Appeal No. 756 of 1965.
Appeal by special leave from the judgment and order dated April 9, 1965 of the Mysore High Court in Civil Revision Petition No. 1044 of 1962.
section K. Venkatarangaiengar G. L. Sanghi, J. B. Dadachanji O. C. Mathur and Ravinder Narain, for the appellant.
Mirle N. Lakshminaraynappa O. P. Malhotra, section section Khanduja Ganpat Rai, for the respondent.
869 The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Mysore in Civil Revision Petition No. 1044 of 1962, filed under section 17 of the Mysore House Rent and Accommodation Control Act, 1951 (Mysore Act 30 of 1951)hereinafter referred to as the Act whereby the High Court set aside the order passed by the III Additional District Judge, Bangalore.
The III Additional Judge had set aside the order of ' the First Munsiff, Bangalore, who had directed the eviction of the tenant from the premises in dispute.
The appellant before us, Padmanabha Setty, hereinafter referred to as the tenant, was the tenant of a non residential premises No. 281, Old Tharagupet, Bangalore City. ] 'be tenant had installed some machinery in the premises.
The respondent, K. P. Papiah Setty, is the landlord.
He had purchased the premises for his own use and occupation, namely, for the purpose of shifting his business which hewas carrying on in a rented building to the premises in dispute.
The landlord tiled an application under s.8(3)(a)(ii) of theAct for the eviction of the tenant on the ground that he required the premises in dispute for his own use and occupation.
It is not necessary to give the other allegations made in the application as both the First Munsiff, Bangalore, and the III Additional District Judge, Bangalore, have found that the landlord required the premises for his bonafide use and occupation, namely, for shifting his business from the rented premises to the premises in dispute.
The III Additional District Judge, however, held that under section 8(3)(a)(ii) the landlord was not entitled to possession of the premises in dispute unless and until he was prepared to vacate the shops in which he was trading at the time.
This finding of the learned Additional Judge was contrary to the decision of the Mysore High Court in section G. Narayanappa and Bros. vs A. N. Narasimhiah(1).
The landlord then filed a revision petition under section 17 of the Act, and the High Court, following the decision in section G. Naravanappa and Bros. vs A. N. Narasimhiah(1) set aside the order of the Additional District Judge.
The tenant having obtained special leave, the matter is now before us.
Two points are raised before us: (1) that the construction put upon section 8(3)(a) (ii) of the Act by the Mysore High Court is erroneous and the construction put upon a similar provision by the Madras High Court in V. Thanappa Chetty vs Arcot Govindaswami Naicker(2) is correct; and (2) that the High Court was not right in setting aside the order of the Additional District Judge in a revision under section 1 7 of the Act.
(1) (2) A.I.R, 1952 Mad.
870 The Act was passed to regulate the letting of residential and non residential houses and to control the rents of such houses and to prevent unreasonable eviction of tenants therefrom in the State of Mysore.
The word "tenant" is defined as follows in sub section
(9) of section 2 of the Act: " 'tenant ' means any person by whom or on whose account rent is payable for a house and includes the surviving spouse or any son or daughter of a deceased tenant who had been living with the tenant in the house as a member of the tenant 's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a house by its tenant or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house or of rents for shops has been farmed out or leased by a local authority.
" There is no doubt that the definition of the word "tenant" is wider than the ordinary meaning of the word and includes a person ,continuing in possession after the termination of the tenancy in his favour.
Section 4 deals with the determination of fair rent and section 5 with lawful increase of or addition to or reduction in fair rent.
Section 6 prohibits the landlord from claiming or receiving anything in excess of fair rent or agreed rent.
Section 7 deals with issue of receipts for rent.
Sections 7A and 7 B deal with the right of tenant to deposit rent in certain cases and time for deposit and savings.
Section 7 C deals with eviction of tenant in occupation of a house under an allotment order.
Section 8 deals with eviction of tenants and provides that ,a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of s.7 C or of this section.
Sub section (2) provides the circumstances in which a landlord would be entitled to seek eviction of a tenant in possession.
For instance, a landlord is entitled to evict a tenant if the tenant has not tendered or paid the rent due by him in respect of the premises within the time fixed in the agreement of tenancy with the landlord on in the absence of any such agreement, by the last day of the month next following that for which the rent is payable; if he has transferred his right under the lease or sublet the entire premises or any portion thereof; or used the premises for the purpose other than that for which they were leased; or if the tenant has committed such acts of waste as are likely to impair materially the value or utility of the house; or if the tenant has without the landlord 's consent in writing erected on the house or any portion thereof any permanent ' structure; or if the tenant or any person residing with the tenant has been guilty of such acts and conduct as amounts to nuisance or annoyance to the adjoining or neighbouring occupiers 871 or has been using the house or allowing the house to be used for immoral or illegal purposes; or that the house is reasonably and bona fide required by the landlord for carrying out repairs or reconstruction which cannot be carried out without the house being vacated; or that the house has not been used without reasonable cause for the purpose for which it was let for a continuous period of three months immediately preceding the date of application; or that the tenant, after the commencement of the Act, has built, acquired vacant possession of or been allotted a suitable house.
We have set out these conditions in detail because it would be relevant to consider whether in view of these conditions a tenant can be said to have a right to possession of the premises of which he is a tenant.
Then we come to sub section
(3) (a) which reads as follows: "(3)(a) A landlord may, subject to the provisions of clause (d) apply to the court for an order directing the tenant to put the landlord in possession of the house (i)in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of a member of his family and if he or such member, as the case may be, is not occupying a residential building of his own in the city, town or village concerned; (ii)in case it is a non residential building, if the landlord requires it for a business which he or a member of his family is carrying on and if for the purposes of the said business is not in occupation of a non residential building which is owned by or to the possession of which the landlord or such member, as the case may be, is entitled whether under this Act or otherwise.
" It is not necessary to set out the Explanation or the first proviso but the second proviso is relevant and runs thus: "Provided further that where a landlord has obtained possession of a house for his own use or occupation or for the use or occupation of a member of his family under this clause he shall not be entitled to apply again under this clause (ii)for possession of another non residential building of his own, for himself or for the same member of his family, in case he has obtained possession of a nonresidential building." The Madras High Court held in V. Thannappa Chetty vs Arcot Govindaswami Naicker (1) that the tenant under the Madras (1) A.I.R. 1952 Mad.
553 at p. 554 555.
872 Buildings (Lease and Rent Control) Act (Madras Act 15 of 1946) had a right to possession unless and until he was evicted under the provisions of the Madras Act, and, therefore, the landlord would not be entitled to possession of a non residential building if he was in possession of another non residential building as a tenant, for in such a case he would be entitled to possession of those premises.
The reasoning of Subba Rao, J., then a Judge of the High Court of Madras, was as follows: "It will, therefore, be seen that the relationship between the landlord and tenant even in cases in which such relationship terminated under the provisions of the Transfer of Property Act, continues su bject to the provisions of the Act.
The rights of the tenants as well as the landlord are defined.
The tenant tinder the Act has a right to possession unless and until he is evicted under the provisions of the Act.
Under the provisions of the Act, a landlord will not be entitled to the possession of his non residential buildings, if he obtains an order for eviction against another tenant in respect of another non residential building, or if he is in possession of another non residential building as a tenant; for in either case he is entitled to possession of that premises.
The words used in the section, viz., "to the possession of which he is entitled" are wide and I do not see any reason why the latter category should be excluded from the express words used which in their ordinary meaning take in that class." "It was argued that a statutory immunity is different from a right to possession.
But in my view a statutory immunity is not inconsistent with a right to possession.
The statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisions of the Act.
" The Mysore High Court dissented from this decision of the Madras High Court, and the reasoning of Ahmed Ali Khan, J., in section G. Narayanappa and Bros. vs A. N. Narasimhiah(1) is as under: "After a careful consideration of the arguments advanced before me, I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlord 's claim to evict him cannot be described as a right to possession, but only as a statutory immunity from eviction, as observed by the Federal Court in the case Kai Khushrao vs Bai Jerbai (2).
It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federa Court by stating that a statutory immunity is not inconsistent with the right to posses (1)[1962] Mys.
L.J.76 (2) A. I. R. (128).
873 sion and that such immunity may itself create a right.
The right to immunity from eviction involves a negative element in it.
In other words it restricts the right of possession of the landlord.
Hence, it cannot be construed to have an effect of creating a right of possession to a tenant.
Though the statutory immunity from eviction may not be consistent with the right to possession, the fact remains in view of the inherent element involved in both the rights, that the immuni ty from eviction cannot be equated to the right to possession.
Therefore, with great respect, I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in section 8(3) (a)(ii) of the Mysore House Rent and Accommodation Control Act, as taken in the Madras ruling cited above.
" In our opinion, with great respect to Subba Rao, J., Ahmed Ali Khan, J., arrived at the correct conclusion.
A tenant who can be evicted under the conditions prescribed in section 8(2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant.
No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises.
Section 8(3)(a)(ii) deals with two types of cases; first where the landlord is in occupation of a non residential building which is owned by him, and secondly, a non residential building of which he is in occupation not as a landlord but otherwise.
The object of the Act is to prevent unreasonable evictions of tenants.
Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in section 8(2) is satisfied, and over one of which he has no control.
For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance or annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house.
If any of these conditions is proved, he is liable to be evicted.
In our view, in the context the words "entitled to possession" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him.
In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in section G. Narayanappa and Bros. vs A. N. Narasimhiah.(1) (1) M12Sup.
C.I.166 10 874 There is no force in the second point raised by the learned counsel of the tenant.
It is true that the jurisdiction of a High Court under provisions similar to section 1 7 of the Act is limited, but we cannot say that the High Court was wrong in holding that the Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge.
It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under article 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground.
In the result the appeal fails and is dismissed with costs.
The tenant is granted two months ' time from today to vacate and deliver possession of the premises in dispute to the landlord.
Appeal dismissed.

summary:
The appellant and the respondent were the tenant and landlord respectively, of the non residential premises in dispute.
The respondent 's application under section 8(3)(a)(ii) of the Mysore House Rent and Accommodation Control Act, 1951, for eviction of the appellant on the ground that the respondent required the premises for the purpose of shifting his business which he was carrying on in a rented building, was ordered, but the order was set aside by the appellate court.
The High Court in revision set aside the appellate order and restored the order of eviction.
In appeal to this Court, it was contended that : (i) since the respondent was, within the meaning of section 8(3)(a)(ii), "entitled to possession" of the building in his occupation he had no right to ask for the appellant 's eviction; and (ii) the High Court should not have interfered in revision under section 17 of the Act.
HELD (i) The High Court was right in ordering the eviction of the appellant from the premises.
The respondent, who was in occupation of a building as a tenant, and over which he had no absolute right of possession but only a right to remainin possession till one of the conditions in section 8(2) is satisfied.
could notbe said to be "entitled to possession" of that building.
Those words aremore akin to the right of possession which an owner has in respect ofa building owned and occupied by him.
[873 F G] (ii)In not following the decision of the High Court in Narayanappa vs Narasimhiah, , the appellate court acted with material irregularity and so the High Court could set aside the appellate order in revision.
[874 B] Thanappa Chetty vs Govindaswami Naicker, A.I.R. 1952 Mad.
553 overruled.


judgement:
Appeal No. 1090 of 1963.
Appeal by special leave from the judgment and decree dated June 2, 1961 of the Calcutta High Court in Appeal from Appellate Decree No. 786 of 1956.
M. C. Setalvad and D. N. Mukherjee, for the appellant.
A. K. Sen and P. K. Chatterjee, for the respondent.
16 The Judgment of the Court was delivered by Hidyatulla, J.
This appeal by special leave against the judgment and order of the High Court of Calcutta, December 5, 1961, arises from a suit between landlord and tenant.
The Indian Iron & Steel Co. Ltd. (appellant) is the landlord and Biswanath Sonar (respondent) is the tenant, and the tenancy is in respect of a piece of land with a rent of Rs. 4/ per month.
According to the Company the tenancy commenced in December 1938 and according to the tenant in the beginning of 1935.
The two courts of fact have found in favour of the Company on this point and the High Court has very properly accepted this concurrent finding but has held that tenancy began on the 1st of December, 1938, but more of that later.
The suit was commenced in the Court of the Munsif at Asansol by the Company after serving a notice dated June 28, 1950 terminating the alleged monthly tenancy of the respondent with the expiry of December, 1950.
The notice was served on June 29, 1950.
The Company asked for the relief of khas possession by evicting the tenant and reserved the relief of compensation for wrongful occupation after January 1, 1951, for a separate suit.
The Company offered to pay such reasonable compensation for structures on the land as the court might determine.
The respondent claimed benefit of section 9(1)(iii) of the Bengal Non AgricuItural Tenancy Act under which, he submitted, his tenancy could not be determined except by service of six months ' notice in writing expiring with the year of tenancy.
He contended that the notice served on the 29th of June terminating the tenancy at the end of December, 1950, was not in accordance with the provisions of the Act as the tenancy commenced in the beginning of 1935, and, therefore, the suit was not maintainable.
The learned Munsif held the notice to be proper and dec.
reed the suit.
On appeal the Additional District Judge, Asansol confirmed the decree passed by the Munsif.
On second appeal a learned single Judge in the High Court reversed the decision of the two courts below and ordered the dismissal of the suit.
He followed a decision of a special Bench of his Court reported in the Indian Iron and Steel Co. Ltd. vs Baker Ali(1) which had approved of two unreported decisions of the same Court reported in Sudhindra Nath Roy vs Haran Chandra Mistry (S.A. No. 879 of 1950 dated 25 1 1955) and Narayan Chandra Sen vs Sripati Charan Kumar (S.A. No. 425 of 1952 dated 9 8 1955).
The learned single Judge refused leave to file an appeal under the Letters Patent but the appellant was granted special leave by this Court to appeal against the judgment of the learned single Judge.
In this appeal two questions arise, namely, (i) whether the provisions of section 9(1)(iii) of the Non Agricultural Tenancy Act apply to the present tenancy, and (ii) whether the notice served upon the respondent compiled with the terms of the Act.
In so far as the A.I.B. 17 first question is concerned no further facts are necessary.
This question should have given no difficulty but for the fact that the language of the enactment is far from clear.
Section 9(1)(iii) reads as follows: "9.
Incidents of non agricultural tenancies held for less than twelve years.
(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, if any non agricultural land has been held for a term of more than one year but less than twelve years (a) under a lease in writing for a term of more than one year but less than twelve years to which the provisions of clause (5) of section 7 do not apply, or (b) without a lease in writing, or (c) under a lease in writing but no term is specified in such lease, then the tenant holding such non agricultural land shall be liable to ejectment on one or more of the following grounds and not otherwise, namely: (i) (ii) (iii) on the ground that the tenancy has been terminated by the landlord by six months" notice in writing expiring with the end of a year of the tenancy served on the tenant in the prescribed manner in clause (b): Provided that a tenant shall not be liable to ejectment on the ground specified in clause (iii) except on payment of such reasonable compensation as may be agreed upon between the landlord and the tenant or if they do not agree, as may be determined by the Court on the application of the laodlord or such tenant. . .
Difficulties arise in connection with two expressions in this section.
Firstly what is meant by the phrase "for a term of more than one year but less than twelve years" in the opening part, and, secondly, what is meant by the phrase "six months ' notice in writing expiring with the end of the year of the tenancy" The appellant contends that the first phrase contemplates tenancies in which the agreed duration under a contract is more than one year but less than 12 years and the second phrase means that the notice in writing must expire with the end of the year of the tenancy when the tenancy is 18 from year to year and with the end of the term when, it is more than one year 's duration.
The respondent contends that the two phrases respectively describe the duration for which non agricultural land must actually be held and that the notice of six months must end on the anniversary of the commencement of the tenancy.
The appellant 's contention, shortly stated, is that a monthly tenancy cannot get the benefit of section 9(1)(iii) however long the occupation of the land.
Both sides agree that this is non agricultural land and that the tenancy is from month to month.
It has also been found that it is a monthly tenancy.
If the provisions of section 9(1)(iii) apply also to a monthly tenant who has been in possession of land for more than a year, then the respondent will be protected from eviction, otherwise not.
This depends on what is meant by the two phrases we have referred to earlier.
The construction of the first phrase is rendered difficult because the Act does not use the words strictly in the same sense throughout.
Sometimes the word "term" is used to indicate a period of time without any reference to a contract determining it and sometimes to a period settled, agreed or determined by a contract.
In section 9(1)(iii) the word "term" is used and the question arises whether it indicates a period of occupation or a period agreed upon in a: contract.
To determine the right meaning we shall first analyse the provisions of the Act generally and then consider what is the true meaning of the two expressions in section 9 on which there has been a difference of opinion between the High Court and the two courts below.
The Act was passed to make comprehensive provisions relating to the law of landlord and tenant in respect of non agricultural tenancies in West Bengal and is a part of protection given in modern times by law to tenancies of various kinds of which the Rent Control Acts and Acts relating to agricultural tenancies represent some other aspects.
After defining the terms such as 'land ', 'non agricultural land ' and 'non agricultural tenants ' (to which definition pointed reference here is unnecessary), the Act classifies non agricultural tenants into tenants and under tenants, and then it makes separate provisions for their protection.
The Third Chapter (sections 6 to 15) provides for tenants and the Fourth Chapter for under tenants.
The remaining Chapters providing for the manner of transfer of non agricultural tenancies ', preparation of records of rights, settlement, rents, etc.
do not presently concern us.
We shall, therefore, confine our attention to the chapter on tenants.
Section 6 lays down the manner of use of non agricultural lands.
It states generally that the tenant may use land in any manner not inconsistent with the purpose of the tenancy but so as not to impair its value.
The section goes on to state that the tenants to whom ss, 7 and 8 apply may erect any structure including a pucca structure, dig any tank, plant and enjoy the flowers and fruits and fell and utilise or dispose of timber of any tree on such land, but the tenants to whom 19 section 9 applies may only erect structures other than pucca structures and may not dig tank, or fell, utilise or dispose of, trees not planted by :them.
Sections 7, 8 and 9 lay down the incidents of two different kinds of tenancies: (a) those held for a term of not less than 12 ,years and (b) those held for a term of less than 12 years but more than one year and the question which we have stated earlier is whether by the word "term" is meant the duration of the least agreed upon or merely the period of occupation of the non agricultural land.
A close study of the Act shows that the word "term" is used in both senses and the context must determine in which sense it is to be understood.
We need not reproduce here all the sections or clauses in which the word "term" is used in one sense or the other because sub sections (3) and (4) of section 7 between them illustrate adequately this two fold meaning.
We may reproduce them here: "7.
Incidents of certain tenancies.
Notwithstanding anything contained in any other law for the time being in force or in any contract (1) .
. (3) If any non agricultural land has been held for a term of not less than twelve years under a lease in writing but no term is specified in such lease, or (4) if any non agricultural land held under a lease in writing for a period specified therein continues to be held with the express or implied consent of the landlord after the expiration of the time limited by such lease and the total period for which such land is so held is not less than twelve years, or (5) .
then (i) the tenant holding the non agricultural comprised in such tenancy shall not be eject.
ed by his landlord from such land except on the ground that he has used such land, in a manner which renders it unfit for use for the purposes of tenancy, (ii) the interest of the tenant in the non agricultural land comprised in such tenancy shall, in the case where such tenant dies intestate in respect of such interest.
be transmitted by inheritance in the same manner as his other immovable property: . .
" 20 A bare 'perusal of these enactments is sufficient to show that the word "term" used for the first time in (3) indicates that the period of occupation must not be less than 12 years.
It cannot mean an agreed period because the latter part says that this applies where "no term" is specified in the lease and in this part the word "term" must obviously mean an agreed period.
(4) shows that if land is held beyond the period specified in the lease in writing and if the total period then becomes not less than 12 years, the protection is again obtained.
The word "term" thus may indicate a period specified in a lease or a period of occupation according as the context requires.
This diversity of meaning is also illustrated by sections 7(2), 8(1) and 8(3).
We now come to section 9 which we have already quoted.
It begins by excluding any other law or contract of lease from consideration and speaks in the opening part of land held for a term of more than one year but not less than twelve years thereby distinguishing between tenancies on the basis of the length of occupation.
As the marginal note says, the section deals with tenancies held for less than twelve years.
Clauses (a), (b) and (c) also establish the above meaning because (a) applies to leases in writing for a term of more than one year but less than twelve years, (b) refers to cases in which the occupation Is without a lease in writing and (c) refers to cases in which there Is a lease in writing but no term is specified.
In those cases in which there is no written lease or in which no term is specified in the lease in writing, the opening portion must obviously mean that the land must be held, that is, occupied for more than one year.
The difference between sections 7 and 8 on the one hand and section 9 on the other lies in the kind of protec tion afforded.
A tenant who has held the land under lease for more than 12 years cannot be ejected at all unless he has used such land in a manner which renders it unfit for use for the purpose of the tenancy, and his interest becomes heritable, transferable and devisable like any other immovable property.
A tenant who has held land in occupation for less than 12 years but more than one year can,only be ejected by a notice of six months expiring with the end of a year of the tenan It is argued that the words "end of a year of tenancy" are inappropriate where the tenancy is from month to month because there is no year of tenancy.
Those words no doubt are indicative of, a tenancy from year to year but they are not such as to be altogether inapplicable to a tenancy from month to month.
What the section contemplates is occupation for more than one year and it says that a tenant who has held the land for more than a year, albeit, on a tenancy from month to month, shall only be evicted on the anniversary of the day on which his tenancy commences.
Where the tenancy is from month to month " year" means a period of twelve months and the tenant may only be required to quit at the expiry of the whole year, that is to say, on the anniversary of the commencement of the lease.
21 it is argued that this would have the effect of converting the, tenancy from month to month into a tenancy from year to year.
This is perhaps true.
In the matter of certain rights of the tenants, particularly in the matter of termination of their tenancy by notice, it appears that this legislation intends to bring even a monthly tenant, who has occupied land for more than a year, within the protection of six months ' notice before he is evicted.
A different protection is given to a tenant who occupies land for 12 years and in that case he cannot be evicted even by notice unless he uses the land in a manner which renders it unfit for the purposes of the tenancy or his other property goes to Government and his interest in the land is extinguished.
Section 9(1)(iii) was interpreted in much the same way in the three decisions of the High Court of Calcutta above referred to and in our judgment those cases took the right view of the matter.
The Company itself served a notice in June expiring with the end of the year alleging that the tenancy had commenced in December 1938 indicating quite plainly that it also.
considered that a notice of 15 days expiring with the end of the month of the tenancy would not be sufficient.
In its view also, the notice to be a valid notice had to be of six months expiring with the end of the year of tenancy.
Therefore, the notice was despatched on the 28th of June, 1950 and was served on the following day.
It asked the tenant to quit at the end of December, 1950.
The High Court held that the tenancy must be deemed to have commenced on December 1, 1938 and the notice fell short of six months.
In fact, the notice would fall short of the necessary period unless the tenancy had commenced on a date between the 29th and 31st December, 1938.
There is no proof when the tenancy really commenced and the Company has not cared to give evidence on this part of the case.
Even if we reject the finding of the High Court that the tenancy commenced on the 1st of December, we are not in a position to say that it commenced on any particular date.
We are, however, relieved of the trouble to make the effort because the account books of the Company show that the tenant was on the land even in November and had paid rent.
In view of this and in view of the construction we have placed on section 9(1)(iii) it is quite plain that the notice must fall short of the statutory six months.
It was, therefore, quite ineffective and the High Court was right in holding that it was invalid although our reasons are different.
The appeal has thus no force.
If fails and will be dismissed with costs.
Appeal dismissed.

summary:
The appellant company gave on lease a piece of land to the respondent in 1938.
On June 28, 1950 the company gave notice to the respondent terminating the tenancy.
The period mentioned in the notice, which was received by the respondent on June 29, 1950 was six months ending with the expiry of December 1950.
Later the company filed a suit for the eviction of the respondent.
The latter claimed benefit of section 9(1) (iii) of the Bengal Non Agricultural Tenancy Act.
The trial court decreed the suit and the first appellate Court upheld the decree, but the High Court set it aside and dismissed the suit.
By special leave, the company appealed to this Court contending that since the respondent 's tenancy was from month to month section 9 (1) (iii) did not apply.
It was urged: (i) the phrase "for a term of more than one year but less than twelve years" in the first part of the section contemplated tenancies in which the agreed duration under a contract was more than one year but less than 12 years; (ii) the phrase "six months ' notice expiring with the end of a year of the tenancy" in the latter part of the section meant that the notice in writing must expire with the end of the year of the tenancy when the tenancy was from year to year and with the end of the term when it was more than one year 's duration.
HELD:(i) The Act uses the word "term" both in the sense of a period of occupation and of a period agreed, upon in a contract.
The context must determine the sense in which it is to be understood.
In the opening words of section 9(1) (iii) it means that the land must be held, that is, occupied, for more than one year.
It does not signify that there should be an agreed term of more than one year.
[18 C D; 19C; 20E] (ii) The words "end of a year of tenancy" in the latter part of section 9(1) (iii) are no doubt indicative of a tenancy from year to year but they are not such as to be inapplicable to a tenancy from month to month.
What the section contemplates is occupation for more than one year and it says that a tenant who has held the, land for more than a year, albeit, on a tenancy from month to month.
shall only be evicted on the anniversary of the day on which his tenancy commences.
[20 F H].
(iii) The tenancy having commenced as held by the High Court on December 1, 1938 the notice given by the company in the present case fell short of the statutory six months and was therefore in valid.
[21 E G].


judgement:
Appeal No. 76 of 1964.
Appeal by special leave from the judgment and order dated the October 26, 1960 of the Allahabad High Court in Civil Revision No. 1209 of 1957.
J. P. Goyal, for the appellants.
O. P. Rana, for the respondents.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of Dhavan, J., in Civil Revision No. 1209 of 1957.
The 64 learned Judge, following Sarju Prasad vs Civil Judge, Farrukhabad(1) held that an order of the Court on an objection against an award made under section 12(4) of the Uttar Pradesh Consolidation of Holdings Act (U.P. Act V of 1954) (hereinafter called the Act) was appealable under section 39 of the (X of 1940) Mr. J. P. Goyal, learned Counsel for the appellant urges that this decision of the Allahabad High Court is wrong.
In order to appreciate the contentions of Mr. Goyal, it is necessary to give a few facts and set out the relevant statutory provisions, During consolidation proceedings in village Dharaki Garhi, a question of title arose.
The Consolidation Officer, acting under section 12(4) of the Act, referred the question of title to the Civil Judge, Aligarh, who referred the same to the arbitrator, Shri Vikram Singh, who had been appointed under section 37 of the Act.
Section 12(4) reads as under: "12(4) Where the objection filed under sub section (1) involves a question of title and such question has not already been determined by a competent Court, the Consolidation Officer shall refer the question for determination to the Civil Judge having jurisdiction who shall thereupon refer it to the Arbitrator.
" Section 37 provides: "37.
Arbitration (1) Where any matter is, by or under this Act, directed to be referred to an Arbitrator for determination, the Arbitrator will be appointed by the State Government from amongst Civil Judicial Offi cers or Assistant Collector of the I class of not less than five years ' standing and in all other respects the matter shall be determined in accordance with the provisions of the .
(2) The appointment of an Arbitrator under sub.
section (1) may be made either generally or in respect of any particular case or class of cases or in respect of any specified area or areas.
" The arbitrator gave his award on May 14, 1956, and submitted the same to the Civil Court for final decision.
On May 19, 1956, Charan Singh, Dungar Singh, Maharaj Singh and Lajja Ram, appellants before us, filed objections before the Civil Judge, Aligarh.
The Civil Judge, on September 8, 1956, modified the award dated May 14, 1956.
Babu Lal, Mohar Singh and Ram Piyari filed an appeal before the District Judge against the order of the Civil Judge, dated September 8, 1956.
Before the District Judge, a preliminary objection was raised.
that no appeal lay (1) I.L.R. [1959] 1 All.
65 against the order of the Civil Judge.
The District Judge overruled the objection.
On the merits, the District Judge held that the Civil Judge was not justified, under section 15 of the , in modifying the award merely because he disagreed with the finding.
He, therefore, allowed the appeal and set aside the order of the Civil Judge modifying the award, and the award announced by Shri Vikram Singh was accepted.
Charan Singh, Maharaj Singh, Doonger Singh and Lajja Ram filed a petition before the High Court under section 115 of the Civil Procedure Code.
As stated above, Dhavan, J., dismissed the petition on the ground that an appeal lay under section 39 of the .
This Court granted special leave and now the matter is before us.
Mr. Goyal contends that section 37 of the Act applies the provi sions of the only as far as procedure is concerned, and section 39 of the which provides for appeals does not apply to arbitrations referred to in section 37 of the Act.
He relies strongly on section 12(6) of the Act which provides that the decision of the arbitrator under sub section
(4) shall be final.
We have already set out section 12(4).
He, however, does not contend that the provisions of section 15 of the do not apply because the appellants had apparently applied under section 15 of the to the Court to modify the award made by Vikram Singh and they had succeeded in getting an order modifying the award in their favour.
In our opinion, the High Court arrived at the correct con clusion in Sarju Prasad vs Civil Judge, Farrukhbad(1) and Sayeed Ullah Khan vs The Temporary Civil Judge of Sultanpur.(2) Section 12(4) of the Act provides for a statutory arbitration and section 37 of the Act provides for the appointment of an arbitrator by the State Government.
It seems to us that apart from the question of appointment of the arbitrator, in all other respects the matter referred to, i.e. the question of title referred to under section 12(4) shall be determined in accordance with the provisions of the .
Section 37 of the Act does not make any distinction between provisions like section 39 and section 15 of the .
Further, the effect of section 46 and section 47 of the is that all the provisions of the except sub section (1) of section 6, sections 7, 12, 36 and 37, apply to arbitrations under the Consolidation of Holdings Act.
Section 37 of the Act cannot be held as providing anything inconsistent with this.
In our opinion, the effect of section 37 of the Act, read with sections 46 and 47 of the , is inter alia to apply sections 15 and 39 of the to the proceedings under the Act.
It is not necessary to rely (1) I.L.R. (1959) 1 All. 354.
(2) I.L.R. (1959) 1 All.
66 on ff. 63 and 64 of the Uttar Pradesh Consolidation of Holdings Rules, 1954, but we may mention that they proceed on the basis that sections 15, 16 and 30 of the apply to the arbitration proceedings under the Act.
Mr. Goyal then urges that this Court in the case of Attar Singh vs The State of U.P.(1) understood section 37 of the Act to mean that it makes the applicable to the proceedings before the arbitrator in the matter of procedure only.
It is true that at p. 935 of the judgment, Wanchoo, J., observed: "Further section 12 provides that where there is a dispute as to title and such question has not already been determined by any competent Court, the Consolidation Officer has to refer the question for determination to the Civil Judge who thereafter will refer it to the arbitrator.
The arbitrator then proceeds in the manner provided by r. 73 (sic 63) and gives a hearing to the parties and takes evidence both oral and documentary before making his award; and section 37 of the Act makes the applicable to the proceedings before the arbitrator in the matter of procedure.
" We are unable to agree with Mr. Goyal that this passage in any manner decides the point which is before us.
This Court in Attar Singh 's(1) case was concerned with the validity of the Act, and ground No. 2 which was urged before the Court was: "Sections 8, 9 and 10 read with section 49 of the Act provide a procedure for the correction and revision of revenue records for villages under consolidation, which is vitally different from that applicable to villages not under consolidation, and there is thus discrimination which offends article 14 of the Constitution." In dealing with this ground, Wanchoo, J., made the observations which have been set out above.
There was no question there of considering the effect of sections 46 and 47 of the , or considering whether section 39 of the applies to arbitrations under section 12(4) of the Act.
Mr. Goyal also laid a great deal of emphasis on section 12(6) of the Act which provides that the decision of the arbitrator under sub section
(4) shall be final.
In our opinion, section 12(6) must be read with section 37 of the Act, and if it is so read it is quite clear that what is made final is the decision of the arbitrator as it emerges after appropriate proceedings, if any, have been taken under the provisions of the .
(1) [1959] Supp.
I SCR 928.
67 In the result we hold that the High Court is right in holding that the decision of the Civil Judge modifying the award was appealable under section 39 of the .
The appeal accordingly fails and is dismissed with costs.

summary:
During consolidation proceedings in a village, under the Uttar Pradesh Consolidation of Holdings Act, 1954, a question of title arose, and the Consolidation Officer referred the question to the Civil Judge who referred it to an arbitrator appointed under section 37 of the Act.
The Arbitrator submitted his award to the Court.
The appellants filed objections under section 15 of the , and the Civil Judge modified the award.
On appeal by the respondents, the District Court held that the appeal was maintainable and that the Civil Judge was not justified in modifying the award.
A revision petition to the High Court filed by the appellants was dismissed.
In appeal to this Court, it was contended that section 39 of the , which provides for appeals does not apply to arbitrations under section 37 of the U.P. Act.
HELD:The decision of the Civil Judge modifying, the award was appealable under section 39 of the .
[67 A].
The effect of section 37 of the U.P. Act read with sections 46 and 47 of the is, to apply sections 15 and 39 of the to the proceedings under the U.P. Act; and under section 12(5) of the U.P. Act what is made final is the decision of the arbitrator as it emerges after appropriate proceedings, under the provisions of the .
[65 G H; 66 H].
Carju Prasad vs Civil Judge, Farrukhabad, I.L.R. [1959].
1 All354 and Sayed Ulla Khan vs The Temporary Civil Judge, Sultanpur, , approved.
Attar Singh vs State of u.p.
[1959] Supp. 1 S.C.R. 928, explained.