judgement:
Civil Appeal Nos. 545 and 546 of 1960.
Appeals from the judgment and order dated August 13, 1954, of the Madras High Court in Writ Petitions Nos. 743 and 748 of 1954.
K.N. Rajagopal Sastri and P. D. Menon, for the appellants.
The respondent did not appear.
January 17.
The Judgment of the court was delivered by SHAH, J.
These are two appeals with certificates of fitness granted by the High Court of Judicature at Madras against certain orders passed in Writ Petitions under article 226 of the Constitution.
One Ramaswami Iyer father of the respondent was assessed to income tax in the status of a Hindu Undivided Family.
Ramaswami Iyer died in 1949 and the respondent M.R. Vidyasagar became the manager of the family.
The family was a partner through its manager in a firm styled "The Madura Knitting Company", and the share in the profits of the partnership which was registered under the Indian Income tax Act was the principal source of its assessable income.
Under section 18A of the Indian Income tax Act, the Hindu undivided family was liable to pay advance tax for each of the assessment years 1946 47, 1947 48 and 1948 49.
The Income tax Officer, Madura, issued notices under section 18A (1) of the Indian Income tax Act for payment of advance tax on the basis of the preceding year 's income.
It was open to the assessee to submit a revised estimate of his income under section 18A (2) in respect of the year in question and Ramaswami Iyer who was at the material time the 615 manager availed himself of the option to submit a revised estimate and estimated the income for each of the assessment years 1946 47 and 1948 49 at Rs. 45,000/ .
The assessments of these two years were completed respectively on November 28, 1950 and February 29, 1951, and the income received from the Madura Knitting Company was included in the assessments under section 23(5).
The Income Tax Officer assessed the total income of the Hindu undivided family for the year 1946 47 at Rs. 1,01,335/ and for the year 1948 49 at Rs. 3,10,697/ .
As the total income assessed far exceeded the estimate of Rs. 45,000/ , submitted by the manager of the assessee family, the Income Tax Officer in making the assessment ordered the respondent to pay Rs. 6,999/12/ and Rs. 36,687/ respectively for the assessment years 1946 47 and 1948 49 as interest.
In appeals against the orders of assessment by the Madura Knitting Company, by order dated March 12, 1954 the Income tax Appellate Tribunal reduced the income of the firm, and on that basis reduced the share of the family in the income of the firm for the year 1946 47 to Rs. 83,335/ and for the year 1948 49 to Rs. 2,83,868/ .
The Income tax Officer, Madura, in giving effect to the orders passed by the Appellate Tribunal under the 3rd proviso to section 18A (6) reduced the interest to Rs. 4,358/ for the year 1946 47 and to Rs. 32,714/10/ for the year 1948 49, and called upon the respondent to pay the arrears of tax inclusive of interest so adjusted.
The respondent then called upon the Income Tax Officer not to levy interest under section 18A (6) submitting that the levy was illegal and unjustified, and in the alternative requested that the interest be waived under the powers vested under the 5th proviso to section 18A (6) which was added by section 13 of the Indian Income tax (Amendment) Act (25 of 1953).
The Income tax Officer declined to accede to the request and the respondent 's application to the 616 Inspecting Assistant Commissioner for cancelling the levy of interest was also rejected.
The respondent then moved two petitions (Nos. 743 and 748) under article 226 of the Constitution in the High Court of Judicature at Madras for writs cancelling the orders imposing liability for payment of interest, contending that the levy of penal interest was opposed to law and was prima facie, unjustified on the facts and circumstances of the case.
The respondent submitted that the levy of interest under section 18A(6) was penal in character and could not be imposed upon the legal representative of the deceased manager who was not in any manner responsible for the original return filed by the firm of which the manager was a partner.
He also contended that the levy was not warranted by the provisions of the Indian Income tax Act inasmuch as in respect of the assessment years in question the respondent was not the assessee, that the delay in completing the assessment was not attributable either to the then manager of the family, Ramaswami Iyer or to himself and therefore, no liability for payment of interest could be imposed, and that in any event refusal to cancel the levy of interest was arbitrary and not based on any judicial exercise of discretion vested in the Income tax Officer.
A Division Bench of the Madras High Court held that the provision imposing liability to pay interest under sub section
(6) of section 18A was not opposed to law and could be enforced against the legal representative of the deceased manager, who was a partner of the assessee firm.
The High Court, however, was of the view that as the Income tax Officer and the Inspecting Assistant Commissioner had failed to consider whether in the circumstances of the case, the reduction or waiver of the interest was justified, it be ordered that the Income tax Officer to decide whether the petitioner had made out a case for the exercise of the discretion vested in the 617 Income tax Officer to waive or reduce the interest under the powers conferred on him by the 5th proviso of cl.
(6) of section 18A.
Against that order with certificates of fitness these appeals are preferred by the Commissioner of Income Tax.
Section 18A which imposes liability upon the tax payer to make advance payment of tax was incorporated into the Indian Income tax Act by Act 11 of 1944.
That section enables the Income tax Officer on or after the 1st day of April in any financial year, by order in writing, to require an assessee to pay to the Central Government in specified instalments income tax and super tax payable on so much of such income as is included in the assessee 's total income of the previous year in respect of which he had been assessed.
Under sub section
(2), if the assessee who is required to pay tax by an order under sub section (1) estimates at any time before the last instalment is due that the part of his income to which the sub section applies for the period which would be the previous year for an assessment for the year next following is less than the income on which he is required to pay tax and accordingly wishes to pay tax which is less than amount he is required to pay, he may send to the Income Tax Officer an estimate of the tax payable by him, and pay tax as accords with his statement.
It is, however, provided by sub section
(6) inter alia that where in any year the assessee had paid tax under sub s.(2) on the basis of his own estimate and the tax paid is less than 80% of the tax determined on the basis of his regular assessment (so far as such tax relates to income to which the provisions of section 18 do not apply) simple interest at the rate of 6% per annum from the 1st day of January in the financial year in which the tax was paid upto the date of the said regular assessment shall be payable by the assessee upon the amount by which the tax so paid falls short of the said 80%.
As originally enacted the liability to pay interest upon 618 the amount by which the tax paid fell short of 80% of tax was absolute.
The Income tax Officer had no discretion in the matter, and was bound to impose liability for payment of interest.
But by section 13 of the Indian Income tax (Amendment) Act, 1953 (25 of 1953), an additional proviso was enacted to sub section
(6) in the following form: "Provided further that in such cases and under such circumstances as may be prescribed, the Income tax Officer may reduce or waive the interest payable by the assessee".
This proviso was given retrospective effect as from April 1, 1952.
Thereafter in exercise of powers conferred by section 59 the Central Board of Revenue added Rule 48 to the following effect: "48.
The Income tax Officer may reduce or waive the interest payable under section 18A in the cases and under the circumstances mentioned below, namely: (1) Where the relevant assessment is completed more than one year after the submission of the return, the delay in assessment not being attributable to the assessee.
(2) Where a person is under section 43 deemed to be an agent of another person and is assessed upon the latter 's income.
(3) Where the assessee has income from an unregistered firm to which the provisions of clause (b) of sub section (5) of section 23 are applied.
(4) Where the "previous year" is the financial year or any year ending near about the close of the financial year and large profits are made after the 15th of March in circumstances which could not be foreseen.
619 (5) Any case in which the Inspecting Assistant Commissioner considers that the circumstances are such that a reduction or waiver of the interest payable under section 18A (6) is justified.
The effect of the incorporation of the 5th proviso in section 18A (6) and of Rule 48 was manifestly to authorise the Income Tax Officer in exercise of his discretion to relieve against the rigour of the inflexible rule originally enacted in cl.
(6) about payment of interest by the assessee when the tax paid by him on his estimate fell below 80% of the tax payable on regular assessment.
The only question which falls to be determined in these appeals is whether the benefit of the fifth proviso to section 18A (6) could be claimed in respect of the assessments of the income of the respondent 's family which were completed by the Income tax Officer before April 1, 1952.
The High Court was of the view that even if the assessment by the Income Tax Officer was completed before April 1, 1952, if the final adjustment pursuant to the order of the Appellate Tribunal was made after that date the Income Tax Officer was competent, in exercise of the powers with which he was invested by the fifth proviso to cl.
(6) of section 18A to reduce or waive the interest payable by the assessee and the Income tax officer having failed to exercise his discretion a case was made out for the issue of a writ under article 226 of the Constitution directing that officer to consider whether in the circumstances of the case relief may be granted to the respondent.
On behalf of the Commissioner of Income tax it is urged that the power conferred by the fifth proviso may undoubtedly be exercised in those cases where assessment is completed on or after April 1, 1952, but where the assessment was completed and liability to pay interest had crystallized under 620 sub s.(6) as it originally stood, the Income tax Officer has no power under the amended sub section to reduce or waive the interest ordered to be paid by the assessee even if the proceedings in assessment are pending in appeal before the Appellate Assistant Commissioner or the Appellate Tribunal.
It was urged that the interest under section 18A(6) is payable upto the date of the regular assessment and if in the contingencies prescribed by section 18A(6), as originally enacted liability to pay interest crystallized, the Income tax Officer could not, in exercise of the power invested by the amending Act reopen the order, because the legislature had given to the amending statute only a partial retroactive operation and its retroactivity could not be enlarged; to do so, would be plainly to defeat the plain intendment of the Legislature.
It is unnecessary for the purpose of these appeals to consider whether an assessment which has become final before the date on which the fifth proviso came into operation, and which is not subject to any pending appeal, can be reopened and the benefit of the power conferred by the fifth proviso be afforded to an assessee.
The question which falls to be determined is whether in an assessment subject to an appeal which is pending, or which may be lawfully filed, the power to reduce or waive the interest can be exercised.
There is, in our judgment, inherent evidence in the rule indicating that such a power can be exercised even if the regular assessment is completed by the Income tax Officer before April 1, 1952.
The power vested in the Income tax Officer to reduce or waive interest payable by an assessee is exercisable "in such cases or such circumstances as may be prescribed" by the Rules.
By Rule 48 the Income tax Officer is given the power to reduce or waive interest payable under section 18A(6) in the events specified therein.
By the first clause of Rule 48 where the assessment is completed more than one year after the submission of the return the delay in assessment 621 not being attributable to the assessee the power of the Income tax Officer may be exercised There is nothing in the Rule which indicates that the power to grant relief may be exercised only before the regular assessment is completed by the Income tax Officer.
The terms of clauses (1) and (5) of the Rule clearly support the view that the order reducing or waiving interest may be passed even after the order of assessment is made, and interest is included.
Again, by making Act 25 of 1953 operative retrospectively from April 1, 1952, the Legislature has evinced an intention that to regular assessments made between April 1, 1952, and the date on which the Act was enacted, the fifth proviso to 18A(6) may apply.
The argument that liability to pay interest crystallizes when the Income tax Officer incorporates the direction for payment of interest, because the order is not made appealable has no force.
The order for payment of interest was liable to be modified if the assessment of income was varied by the Appellate Assistant Commissioner, or by the Tribunal.
It is true that interest could be charged upto to the date of regular assessment by the Income tax Officer but that does not support the theory of crystallization of liability.
If therefore the quantum of liability was capable of being altered even after the date of the regular assessment, the assumption that the power to give relief against a rigid statutory provision should be restricted to cases which are decided by the Income tax Officer only after April 1, 1952, is not warranted.
The power of the Income tax Officer arose only after April 1, 1952, but there is nothing in the act to show that it was to be exercised only in respect of assessments made by the Income tax Officer after that date.
In our judgment, the jurisdiction under the fifth proviso may be exercised by the Income tax Officer in all cases which are pending on April 1, 1952, before the Income tax Officer or any superior authority having under the Income tax Act power 622 to modify the assessment of income, or are commenced after that date.
In the present case, the original assessments made by the Income tax Officer in both the years in question were modified in view of the orders passed by the Appellate Tribunal in the assessment of the Madura Knitting Co. The order of the Appellate Tribunal was passed on April 12, 1953, i.e. after the date on which Act 25 of 1953 came into operation.
After that date the Income tax Officer was bound to give effect to the orders of the Appellate Tribunal and to adjust liability in computing the assessable income and the tax payable thereon.
The Income tax Officer being bound to adjust liability to pay interest under cl.
(6) of section 18A we see no reason why in adjusting that liability he may not exercise the powers with which he has been invested since April, 1952, if the circumstances of the case warrant such exercise.
In our view the High Court was right in holding that the Income tax officer had the power in the case of the assessments in question to exercise the authority conferred by the fifth proviso to section 18A(6) and he having failed to exercise the discretion, a writ requiring him to consider whether a case is made out for the exercise of his discretion was properly issued.
These appeals therefore fail and are dismissed.
Appeals dismissed.

summary/full:
The Income tax Officer, Madura, issued notice under section 18A (1) of the Indian Income Tax Act, 1922, for payment of advance tax.
R, the then manager of the Hindu Undivided family availed of the option to submit a revised estimate for the years 1946 47 and 1948 49.
The assessment of these two years were completed respectively in November, 1950 and February, 1951, as the total income assessed far exceeded the estimate submitted by R, the Income tax Officer ordered the respondent, the legal representative of R, to pay the interest under section 18A (6) of the Act.
On appeal, the Income tax Appellate Tribunal reduced the income and the Income tax Officer in giving effect to the said order reduced the interest and called upon the respondent to make payment.
The respondent asked the Income tax Officer not to levy interest under section 18A (6), submitting that the levy was illegal and unjustified, alternatively he requested that the interest be waived by virtue of the powers vested on the Income tax Officer under proviso 5 to section 18A (6) which was added by section 13 of Act 25 of 1953, with retrospective effect from April 1952.
The Income tax Officer and the Inspection Assistant Commissioner declined to accede to the request.
The respondent then moved the High Court at Madras for a writ under article 226 cancelling the levy of interest on the ground among others that refusal by the Revenue authorities to cancel the levy was arbitrary and not based on any judicial exercise of the discretion vested by the Act.
The High Court upheld the plea, ordered the Income tax Officer to decide whether the respondent had made out a case for the exercise of the discretion.
The only question in the appeal before the Supreme Court was whether benefit of the said 5th proviso to section 18A (6) may be granted in respect of assessments of income which were completed by the Income tax officer before April 1952.
614 ^ Held, that the jurisdiction under 5th proviso of section 18A (6) of the Income tax Act may be exercised by the income tax Officer in all cases which were pending on April 1, 1952 before him or any superior authority having under the Act power to modify the assessment of income.


judgement:
ION: Criminal Appeal No. 167 of 1961.
Appeal by special leave from the judgment and order dated September 29, and October 11, 1961, of the Bombay High Court in Criminal Appeal No. 906 of 1961.
section G. Patwardhan, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for the appellant.
H. R. Khanna and P. D. Menon for the respondent.
January 18.
The Judgment of the Court was delivered by KAPUR J.
This is an appeal against the judgment and order of the High Court of Bombay secting aside the order of acquittal of the appellant and sentencing her to one year 's rigorous imprisonment and evicting her from the premises which she was occupying as a tenant.
The appellant was tried by the Additional Chief Presidency Magistrate, Esplanade, Bombay for offences under sections 3(2) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act (Act 104 of 1956) hereinafter called the 'Act '.
The charge against the appellant was that she supplied a girl to Manmohan Anandji Mehta who is a witness and she kept or managed a brothel at block No. 6, plot No. 144; Shivaji Park, Bombay; that she knowingly lived on the earnings of prostitution and that the procured women for the purpose of prostitution.
The story of the prosecution was that information was received by Police Superintendent Kanga that the premises were being used as a brothel and that the appellant was supplying 634 girls for the purpose of prostitution.
He thereupon laid a trap and sent two persons, Manmohan Anandji Mehta and Prabhakar K. Loke, the former was to ask for a girl for the purpose of prostitution and the latter was to be a panch i. e. a witness of that fact.
Sub Inspector Purohit, it is stated, gave two one hundred rupees marked currency notes to Manmohan Anandji Mehta with the instruction that he was to pay out of that to the appellant and thus to obtain a girl from her for the purpose of prostitution.
He along with Loke went to the house of the appellant, rang the bell and was admitted by her.
He then asked the appellant to arrange a girl for him and both Manmohan Anandji Mehta and Loke are alleged to have said that they wanted two girls for enjoyment.
Two girls were shown, one Kamal Govind and the other Indu Bapurao Salunke both of whom are witnesses.
The amount quoted by the appellant in the case of the former was Rs. 100/ and for the latter Rs. 50/ .
Manmohan Anandji Mehta selected Kamal and handed over heroine one hundred rupees currency note to the appellant which she put under her blouse.
Manmohan Anandji Mehta and the girl then went into the kitchen and there they undressed and were later found naked on the floor and in a rather compromising position.
On a signal being given the police i.e. Superintendent Kanga and Sub Inspector Purohit entered the premises and were told by Loke that Manmohan Anandji Mehta and the girl were in the kitchen.
The police officers opened the door of the kitchen and found both Manmohan Anandji Mehta and Kamal as stated above.
They then were asked to dress and come out.
Manmohan Anandji Mehta then returned the other one hundred rupees currency note to superintendent Kanga.
A woman Panch who had accompanied the police party searched the appellant and recovered the one hundred rupees currency note from under the blouse.
It is stated that the male members of the party were at that time in a passage adjoining the 635 hall where the appellant was searched.
The appellant was tried for the offences above mentioned but was acquitted by the Additional Chief Presidency Magistrate.
On appeal the High Court set aside the order of acquittal and sentenced her to a year 's rigorous imprisonment and also ordered her eviction from the premises she was occupying as a tenant.
The evidence mainly consists of Manmohan Anandji Mehta and Loke and the two police officers.
The testimony of Manmohan Anandji Mehta and Loke by itself may not, in the circumstances of the case, be of much value but their testimony receives corroboration and thus gives credence to the prosecution case.
The evidence of Police Superintendent Kanga shows that when the door of the kitchen was pushed open both Kamal and Manmohan Anandji Mehta were naked and were in a compromising position; their clothes were lying by the side of the mattress, The testimony of Sub Inspector Purohit is also to the same effect.
The other circumstances which is very much against the appellant is that there is evidence to show that when the woman panch accompanied the police party and searched the appellant a hundred rupees currency note was found from her person under her blouse.
The fact is deposed to by Sub Inspector Purohit and by Police Superintendent Kanga.
Loke has also deposed to the same effect.
But it was submitted on behalf of the appellant that this evidence should not be accepted as, according to law, no woman can be searched except by another woman and having regard to the emphasis on decency under sections 52 and 103 of the Criminal Procedure Code that cannot be done in the presence of men.
There is no evidence to show except that of Manmohan Anandji Mehta that the men were asked to move away from the hall or had actually left the hall during the search.
But assuming they were not in the hall even then it will not be an extraordinary circum 636 stance that one or all of them should have seen the hundred rupees, note being taken out from under the blouse of the appellant.
The High Court has, accepted the testimony of Loke and we find no reason to depart from the usual practice of this Court, of accepting such findings.
Besides, the High Court has also accepted the testimony of Loke in regard to the payment of a hundred rupees currency note to the appellant which proves that money was paid before the girl, Kamal Govind, was asked to go with Manmohan Anandji Mehta for the purpose of prostitution.
Counsel for the appellant emphasised two points: (1) that the woman, who was brought by the police to search the appellant and is alleged to have recovered the hundred rupees note from her person, has not been produced and (2) that considering that the person to be searched was a woman it must be presumed that in accordance with the requirements of law and of decency no man could have been present when the search of the appellant took place.
In support of the first contention reference is made to a judgment of this, Court in Purvez Ardeshir Poonawalla vs The State of Bombay(1), where the necessity of producing the search witness was emphasised and it was observed: "This is, one of those cases where the rule in regard to search witnesses becomes applicable and importance must be attached to the lack of that class, of search witnesses which are envisaged by the Criminal Procedure Code in section 103.
" The Privy Council also in Malak Khan vs Emperor(2) emphasised the necessity of the presence of search witnesses.
Lord Porter there said: "In their Lordship 's opinion the presence of witnesses, at a search is always desirable and their absence will weaken and may sometimes destroy the acceptance of the evidence as, to the finding of the articles. ." 637 The observations in Poonawalla 's case (1) and Lord Porter in Malikkhan vs Emperor (2) are not directly applicable in the present case.
As we have said above there is evidence in this case which has been accepted by the High Court that a hundred rupees note was given to the appellant by Manmohan Anandji Mehta.
There is also evidence that as a consequence of the payment of money Manmohan Anandji Mehta did hire Kamal Govind for prostitution and it is regrettable to say that with the money given to him by the police he acted not merely as a 'bogus customer ', as he has been described, but his participation was more active, reprehensible, immodest, indecent and indecorous.
If in any case the following observations of Lord Goddard, Chief Justice, in Brannan, vs Peek (3) are apposite it is this case: "The court observes with concern and disapproval the fact that the police authority as Derby thought it right to send a police officer into a public house to commit an offence.
It cannot be too strongly emphasised that,. it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected.
" We have only to substitute the words "aid an act of prostitution" for "to commit an offence" and the analogy is complete.
In this case two youngmen were given money to go to the house of the appellant and also to use that money in rather an improper manner.
Manmohan Anandji Mehta seems to be a person of rather doubtful character and the employment of this class of persons for detection of offences is hardly a credit to any one.
What is more reprehensible and a matter of greater concern is the sending, with him a young student who was reading for his Matriculation.
To use students in 638 this manner should not be allowed by any governmental authority in a country like ours.
It is no justification to say that, in order to suppress immoral traffic in women and to stop prostitution somebody has to be used and the only class of people that can be employed are persons like Manmohan Anandji Mehta who is confessedly a police agent and Loke who is a youngman willing to be employed by the police.
After saving this we have still to see what is the consequence of the testimoney of these witness produced in this case.
The High Court has believed the testimony of Loke in regard to the payment of one hundred rupees and there is evidence to show that amount was used for the purpose of procuring Kamla for prostitution.
The payment must therefore be held to be proved.
It may be that the search was contrary to the spirit or even the letter of the Criminal Procedure Code but the fact remains that the High Court has accepted that there was a search and a hundred rupees currency note was recovered and even if the recovery of a hundred rupees currency note were held not proved, the payment of that amount will not thereby become unproved if there evidence which the High Court has accepted.
On the findings of the High Court we are unable to come to any other conclusion but the one to which the High Court came that the appellant is guilty of the offences of which she was accused.
The next submission of Counsel for the appellant was that the High Court in appeal could not order the appellant 's eviction because that power only a Magistrate has under section 18 of the Act.
The argument raised was that the powers of the appeal court under section 423, Criminal Procedure Code are to reverse the order of acquittal or to order a fresh enquiry or a retrial etc.
but not to order eviction.
But this argument is untenable in view of the fact that in the Act there is a specific provision in section 18 639 of the Act authorising the making of such an order by a court convicting a person of offences under section 3 or section 7 of the Act.
The relevant portion of section 18 is as follows: section 18 "Closure of brothels and eviction of offenders from the premises, (1). . ,and if after hearing the person concerned, the magistrate is satisfied that the house. . or portion is being used as a brothel or for carrying on prostitution then the magistrate may pass orders (a) directing eviction of the occupier within seven days of the passing of the order from the house. . (2) A court convicting a person of any offence under section 3 or section 7 may pass orders under sub section (1) without further notice to such person to show cause as required in that sub section.
" The High Court ordered the conviction of the appellant under section 3 of the Act and therefore it had the power to order her eviction.
The second contention is also without substance.
The appeal is therefore dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
On learning that the appellant was using her premises as a brothel and was supplying girls for the purpose of prostitution, the police arranged to lay a trap.
With two one hundred rupees marked currency notes given by the police two persons, M and L, went to the premises occupied by the appellant; M was to ask for a girl for the purpose of prostitution and L was to be a witness of the fact.
M selected a girl and gave the one hundred rupees note to the appellant who put it under her blouse.
When M and the girl were in the room, on signal being given, the police entered the room and found them in a rather compromising position.
A woman Panch who had accompanied the Police party searched the appellant and recovered the one hundred rupees currency note from under the blouse.
The appellant was tried for offences under ss.3(2) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, by the Magistrate who, however, acquitted her.
On appeal, the High Court accepted the prosecution case and convicted the appellant and, further ordered her eviction.
The High Court accepted the testimoney of L in regard to the payment of the hundred rupees currency note to the appellant and also the evidence in the case to show that the amount was used for the purpose of prostitution.
The appellant contended (1) that the conviction was bad because it was based only on the evidence of the police and its agents, and the search was not conducted in accordance with the provisions of the Code of Criminal Procedure, and (2) that, in any case, only the Magistrate was given the power of eviction under section 18 of the Act.
^ Held, that on the evidence accepted by the High Court, the conviction of the appellant was valid.
The practice of the Governmental authority, like the police, employing young men, particularly students studying at the educational institutions, as in the present case, in 633 order to suppress immoral traffic in women and to stop prostitution, condemned.
Held, further, that the High Court having ordered the conviction of the appellant, had the power to evict her under section 18 of the Act.


judgement:
Civil appeal No. 646 of 1961.
Appeal by special leave from the judgment and decree dated April 7, 1961, of the Punjab High Court in Civil Revision No. 354 of 1959.
Gopal Singh, for the appellates.
Bishan Narain and Naunit lal, for the respondent No. 1. 1962.
January, 17.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is an appeal by special leave against an order of the High Court of Punjab at Chandigarh, dated April 7, 1961.
The appellants are five tenants, who have been evicted from certain shops and chobaras in the town of Patiala, on the application of the first respondent, the landlord.
The application by the landlord was made in June, 1957, under section 13 of the Patiala and East Punjab States Union Urban Rent Restriction ordinance, 2006 BK (No. VIII of 2006 BK).
The grounds urged by the landlord were (a) non payment of rent by the tenants, (b) non payment of house tax by the tenants and (c) that the shops were in a state of great disrepair and were dilapidated, and the landlord wished to rebuild them after dismantling the structures.
The landlord averred that he had obtained sanction of the Municipal Committee to a proposed plan of construction, and accumulated some building material before making the application.
The tenants resisted the application.
The Rent Controller framed issues relating to the three 625 grounds; but the first two have ceased to be material now.
On the issue relating to the third ground, the Rent Controller held that in deciding whether the tenants should be ordered to hand over possession to the landlord, the Courts must have regard to the bona fides of the request of the landlord, which meant that the desire to rebuild the premises should be honestly held by the landlord, but that the condition of the building also played an important part in determining whether the landlord had the intention genuinely and was not using this excuse as a devise to get rid of the tenants.
In this connection, the Rent Controller observed that the state of the building, the means of the landlord, and the possibility of a better yield by way of rent, all entered into the appraisal of the landlord 's state of mind.
Examining the case from this angle, the Rent Controller held that there was hardly any proof that the building was in a dilapidated condition.
One solitary witness who testified to this, admitted that he had not seen the building from the inside.
The landlord himself did not give evidence.
On the other hand, there was ample evidence that the building was good.
As regards the financial status of the landlord, the witnesses who stated on his behalf that, he could spend Rs. 5,000 to Rs. 10,000 knew nothing about his means.
Even the landlord 's brother.
who conducted this case on behalf of the landlord, could not give any details.
The plan showed a building requiring about Rs. 20,000 to build.
The landlord had an income of Rs. 200/ per month and his family consisted of his wife and five children.
The Rent Controller, therefore, held that he had no means to rebuild the premises.
The Rent Controller did not feel impressed by the alleged purchase of 40 bags of cement, because a greater part of the cement was used up already in building two or three latrines, and the quantity left was wholly insufficient for the proposed building.
He, therefore, decided the issue against the landlord.
626 On appeal, these findings were confirmed by the appellate authority, who held that the shops and chobaras were in good condition, and that the landlord was not, in good faith, wanting to replace the building, when he had no means to built it.
Against the order of the appellate authority, an application for revision purporting to be under section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (3 of 1949), was filed in the High Court.
This application was allowed.
The learned single Judge posed the question thus: "The question in the present case is whether there is a bona fide desire to rebuild the premises?".
He referred to an earlier decision of a Divisional Bench of that Court (Civil Revision No. 223 of 1960), in which Gosain, J., laid down the law in the following words: "It is pertinent to note that the word 'building ' in the aforesaid clause is not qualified by the words 'requiring reconstruction ' or 'requiring rebuilding '.
The landlord can, in these circumstances, require any building for the re erection of the same, and when in any case a claim to that effect is made by him the only point that has to be determined is whether on the facts and circumstances of that case his requirement is bona fide.
A building, for instance, may not be immediately unsafe, but its condition may be such that unless it is reconstructed it may involve the landlord at a later date very heavy expenditure.
All round a particular building different types of buildings may have been constructed of an entirely different design and the particular building in question may then be looking very ugly and the landlord may want to bring the same in conformity with the structures around it.
" 627 After quoting this passage, the learned Judge observed that the consideration which must weigh in determining the question of ejectment is whether the landlord genuinely wants to rebuild the premises, and further, that the actual condition of the premises is "a wholly irrelevant factor".
In dealing with the merits of the case, the learned Judge referred to the offer of the landlord to put back the tenants in possession, if the premises were not demolished within a month of his obtaining possession thereof, and concluded, without discussing the evidence, as follows: "Upon the evidence on record it seems to me established beyond all doubt that the landlord genuinely and bona fide requires these premises for rebuilding." He, therefore, set aside the concurrent orders of the two Tribunals, and ordered the eviction of the tenants, giving them two month 's time in which to vacate the premises.
Two questions have been argued in this appeal.
The first is that the revision application is incompetent, because under s.16(4) of the Patiala and East Punjab States Union Urban Rent Restriction ordinance, 'the decision of the appellate authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any court of law whether in a suit or other proceeding by way of appeal or revision".
It is contended that s.15(5) of the East Punjab Urban Rent Restriction Act, which conferred a power of revision on the High Court does not apply to the present case, because this case did not arise in proceedings taken under the Act.
The next contention is that the interpretation placed by the learned Judge upon section 13(3) (a) (iii) read with section 13 (3) (b) is erroneous, and that the High Court had no power to reverse a concurrent finding of fact without itself re appraising the evidence, if at all.
628 On the first point, the learned counsel for the respondents relies upon a decision of this court reported in Moti Ram vs Suraj Bhan (1), where it was held that a revision application in analogous circumstances was maintainable.
In our opinion, even if a revision application lay, the learned single Judge was in error in his interpretation of the relevant sections of the ordinance, and in reversing a concurrent finding of fact, without giving any substantial reasons.
Section 13 of the ordinance, omitting portions which are irrelevant here, reads as follows: "13.
(1) Notwithstanding anything contained in any other law for the time being in force, a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this ordinance or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.
x x x (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession.
x x x (iii)in the case of any building, if he requires it for the re erection of that building or for its replacement by another building, or for the erection of other building; x x x (b) The Controller shall, if he is satisfied that the claim of the landlord is bonafide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as 629 may be specified by the Controller, and if the Controller is not so satisfied, he shall make an order rejecting the application; x x x (4) where a landlord who has obtained possession of building or rented land in pursuance of an order under. sub paragraph (iii) of the aforesaid paragraph (a) put that building to any use or lets it out to any tenant other then the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly. " Reading these provisions as a whole, it is obvious that if the landlord 's need be genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be.
If, however, he does not re erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back in possession.
Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour.
The Controller has to be satisfied about the genuineness of the claim.
To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on.
It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, 630 said to be entertained by him.
The clause speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re erection must be bona fide, that is to say.
honest in the circumstances.
It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existance of an intention to reconstruct, in the mind of the landlord.
This intention must be honestly held in relation to the surrounding circumstances.
In our opinion, the interpretation placed by the Punjab High Court (in the decision of Gosain, J.) puts too narrow a construction, and leaves very little for the Controller to decide.
It is well known that Rent Restriction Acts were passed in view of the shortage of houses and the High rents which were being demanded by landlords.
The very purpose of the Rent Restriction Acts would be defeated, if the landlords were to come forward and to get tenants turned out, on the bare plea that they want to reconstruct the houses, without first establishing that the plea is bona fide with regard to all the circumstances, viz., that the houses need reconstruction or that they have the means to reconstruct them, etc.
The two Tribunals below had gone into the matter thoroughly, and had agreed that the landlord had neither the means to reconstruct the building nor had he made any attempt to face cross examination as a party.
They were also of the opinion that the building was in a good state and did not need to be pulled down or reconstructed.
With such clear findings, one would expect that a revising Court, however vide its powers may be, would, at least, go into the question over again, if it was going to depart from this unanimous conclusion.
It is hardly necessary to go into the question of the extent of the powers of the High Court under section 15(5) of the Rent Restriction Act.
They have been adverted to in the ruling of this Court, above mentioned.
They 631 do not, however, include the power to reverse concurrent findings, without showing how those findings are erroneous.
In the present case, the learned Judge has given his conclusion without adverting to single piece of evidence, from which his conclusion was drawn.
In these circumstances it cannot be said that he had examined the propriety of the order sought to be revised, even under the provisions of the law he was administering.
Learned counsel relying upon the case to which we have already referred, said that there the sanction by the Municipal Committee was taken into consideration in deciding the need of the landlord.
The facts in that case are not fully stated, and from the observations, it would appear that there was other evidence besides the sanction by the Municipal Committee, on which the conclusion of the High Court was supported.
In any event, a case cannot be an authority on a point of fact, and each case will have to be examined in the light of the circumstances existing in it.
In the present case, the two Tribunals specially appointed to consider these matters, went thoroughly into the question, and discussed it from a correct angle.
If they had examined they facts after instructing themselves correctly about the law, a Court of revision should be slow to interfere with the decision thus reached, unless it demonstrates by its own decision, the impropriety of the order, which it seeks to revise.
No attempt of this kind has been made in this case, and in our opinion, the High Court was not justified in reversing the clear finding.
In the result, this appeal must be allowed.
The order of the High Court is set aside, and that of the appellate authority is restored.
The landlord shall pay the costs here and in the High Court.
Appeal allowed.

summary/full:
The application for eviction against the appellant was based inter alia on the ground that the premises in suit were dilapidated and the landlord wished to rebuild them after dismantling the structure.
The Rent Controller dismissed the application observing that there was hardly any proof that the building was in a dilapidated condition and that the landlord had no means to rebuild the premises.
The appellate authority confirmed the finding holding that the premises were in good condition and that the landlord was not, in good faith, wanting to replace the building.
An applications purporting to be under section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, was made before the High Court.
The High Court following an earlier decision of the same Court allowed the revision petition holding that in determining the question of ejectment, what needs alone to be considered is whether the landlord genuinely wants to rebuild the permises and that the condition of the premises is 'a wholly irrelevant factor '.
^ Held, that the investigation by the Rent Controller cannot be confined only to the existence of an intention in the mind of the landlord to reconstruct.
This intention must be honestly held in relation to the surrounding circumstances, otherwise the very purpose of the Rent Restriction Act would be defeated, if the landlords were to come forward and to get tenants turned out, on the bare plea that they want to reconstruct the house without first establishing, that the plea is bona fide with regard to all circumstances, viz. that the houses need reconstruction or that they have the means to reconstruct them.
Held, further, that when the Tribunals have examined the facts after instructing themselves correctly about law, a Court of Revision should be slow to interfere with the decision, thus reached, unless it demonstrates by its own decision the impropriety of the order which it seeks to revise.
Under section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, the powers of the High Court do not include 624 powers to perverse a concurrent finding without showing how those finding are erroneous and without giving any substantial reasons for its finding.
Held, also, that a case cannot be an authority on a point of fact and reach case has to be examined in the light of the circumstances existing.
Moti Ram vs Suraj Bhan, [1960] 2 section C. R. 896, referred to.


judgement:
Civil Appeal No. 466 of 1960.
Appeal from the judgment and order dated October 31, 1958 of the Kerala High Court in I. T. R. No. 2 of 1956 (K).
K. N. Rajagopal Sastri and P. D. Menon, for appellant.
The respondent did not appear.
January 16.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The Commissioner of Income Tax, Kerala and Coimbatore, has filed this appeal against the judgment and order of the High Court of Kerala dated October 31, 1958, by which the High Court answered in favour of the respondent (Helen Rubber Industries, Ltd., Kottayam) the following question: "Whether under the provisions of the Indian Income tax Act the petitioner is entitled to carry forward the loss for a period of six years notwithstanding the fact that during the period when the loss had occurred, the law applicable was the Travancore Income tax Act ?" The High Court has granted a certificate under section 66A(2) of the Income tax Act.
Two questions were referred to the High Court in compliance with an earlier order of the High Court under section 66(2); 607 but with the other question, we are not concerned in this appeal.
Messrs. Helen Rubber Industries, Ltd. is a Company, which was incorporated in the former State of Travancore with its registered office at Kottayam.
In the year 1941, the assessee Company granted a lease of the factory to certain persons for a period of 15 years.
From that year, the rent and royalty received from the lessees were the only source of income.
Disputes having arisen, the lessees suspended payment from June 1946.
Litigation followed; but the dispute was settled by the assessee Company receiving Rs. 23,000/ odd in full satisfaction.
With the details of these disputes and their settlement, we are not concerned.
The year of account of the assessee Company is the Calendar year.
Before the extension of the Indian Income tax Act, there was in force in Travancore State, the Travancore Income tax Act, 1121 M. E. (Act XXIII of 1121 M. E.), which came into force on the first day of Chingom 1122 M. E. (August 17, 1946).
The assessment year under the Travancore Act ended on the last day of Karkadakom, which corresponds to August 16, 1947.
Thus for the account year, 1 1 1946 to 31 12 1946 of the firm the assessment year was 1123 M. E. (17 8 1947 to 16 8 1948).
The assessee Company declared losses in the account years, 1946, 1947 and 1948.
These losses, together with the dates of the account years and the assessment years are tabulated below: Year of account Year of assessment.
Loss 1946(1 1 1946 to 1123 M. E. (17 8 1947 Rs. 4031 10 0 31 12 1946) to 16 8 1948) 1947(1 1 1947 to 1124 M. E.(17 8 1948 Rs. 6605 1 6 31 12 1947) to 16 8 1949) 1948 (1 1 1948 to 1125 M. E. (17 8 1949 Rs. 2604 13 9 31 12 1948) to 16 8 1950) Total Rs. 13241 9 3 608 The dispute in this case is about the right of the assessee Company to carry forward the loss of the year 1946 under the provisions of the Travancore Act read with section 24(2) of the Indian Income tax Act and the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950 to the assessment year, 1951 52, in the assessment of the Company for its year of account, the Calendar Year, 1950.
The Income tax Officer held that the loss of the year 1946 could not be carried forward to that year, since it had lapsed after two years under section 32 of the Travancore Act, and section 24(2) was not applicable, in view of paragraph 3 of the Order, mentioned above.
The order of the Income tax Officer was confirmed in appeal by the Appellate Assistant Commissioner and the Appellate Tribunal.
The Tribunal was moved for a case, but declined to state one; but the High Court called for a statement of the case under section 66(2) and the above mentioned question was decided in favour of the assessee Company.
The only question argued in this appeal is whether the High Court was right in the answer it gave.
The assessee Company was not represented at the hearing before this Court.
The Indian Income tax Act was extended to Travancore Cochin by section 3 of the Indian Finance Act, 1950.
By section 13(1) of the same Act, it was provided: "If immediately before the 1st day of April, 1950, there is in force in any part B State. any law relating to income tax that law shall cease to have effect except for the purposes of the levy, assessment and collection of income tax. . in respect of any period not included in the previous year for the purposes of assessment under the Indian Income tax Act, 1922 (XI of 1922), for the year ending on the 31st day of March, 1951, or for any subsequent year. " 609 By this section a clear division was made between the operation of the prior law and the Indian Income tax Act.
The assessment for the year, 1951 52, was thus made on the assessee Company under the Indian Income tax Act.
Under section 24(2) of the Indian Income tax Act, as it existed prior to its amendment by the Finance Act, 1955, it was provided: "Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March 1940, under the head 'Profits and gains of business, profession or vocation ' and the loss cannot be wholly set off under sub section(1), the portion not so set off shall be carried forward to the following year, and so on, but no loss shall be so carried forward for more than six years, and a loss arising in the previous years for the assessment for "the years ending on the 31st day of March, 1940, the 31st day of March, 1941, the 31st day of March, 1942, the 31st day of March, 1943, and the 31st day of March 1944 respectively shall be carried forward only for one, two, three, four and five years respectively.
" Since we are concerned with the loss for the year, which does not correspond to the years named in the latter part of the section above quoted, that part of the section does not apply to the assessee Company 's case.
What was thus claimed was the benefit of the earlier part, where the loss was allowed to be carried forward for six years.
This position taken by the assessee Company can hardly be considered in view of the provisions of section 32 of the Travancore Act, read with the Removal of Difficulties Order passed in 1950.
Section 32 of the Travancore Act was a reproduction of the Indian section 24(2) except for a change of the 610 dates mentioned therein, due obviously to the fact that the Travancore Act came into force on the first day of Chingom, 1122 M. E. (August, 17, 1946).
It is enough to point out that instead of "31st March", wherever they occurred, the words "the last day of Karkadakom" (August, 16) were substituted, and instead of the years, 1940, 1941, 1942, 1943 and 1944, were substituted the Malayalam years, 1122 (17 8 1946 to 16 8 1947), 1123 (17 8 1947 to 16 8 1948), 1124 (17 8 1948 to 16 8 1949), 1125 (17 8 1949 to 16 8 1950), and 1126 (17 8 1950 to 16 8 1951).
These were the only differences between the two sections, and section 24(2) of the Indian Income tax Act, so modified, can be read as section 32 of the Travancore Act.
The existance of these two sections in the two Acts was likely to lead to some difficulty, and a question was likely to arise which law was to prevail.
Section 12 of the Indian Finance Act, 1950, therefore, enabled the Central Government to pass an Order removing any such difficulty.
The Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950 was thus passed.
Paragraph 3 of that order provided: "3.
Carry forward and set off of previous losses where in any previous year prior to the previous year for "the assessment for the year ending on the 31st day of March 1950, an assessee has sustained a loss of profits or gains in any business, profession or vocation carried on by him, and such loss would, had the State law continued to be in force, have been set off against the profits and gains, if any, from the same business chargeable to tax in the said year of assessment or in any year subsequent thereto, such loss would be so set off in the same manner, to the same extent, and up to the same year of assessment as it would have been set off had the State law continued to be in force.
" 611 The critical words are those contained in the later part, namely, "in the same manner, to the same extent, and up to the same year of assessment, as it would have been set off had the State law continued to be in force".
They show that the law to apply to the loss of "any previous year prior to the previous year for the assessment for the year ending on the 31st day of March, 1950" was the law in force in a Part B State here, the Travancore Act.
Now, taking the case of the assessee Company, we shall indicate which previous year or years would be governed by the Travancore Act.
The previous year of the assessee Company for the assessment year ending 31st day of March 1950 would be the Calendar year, 1 1 1949 to 31 12 1949.
To that, the Indian Income tax Act would apply.
The application of the Travancore Act by para 3 of the order was limited to the previous year before 1 1 1949 and other earlier previous years.
The previous year, with which we are concerned, 1 1 1946 to 31 12 1946, is so clearly a previous year, to which the Travancore Act applies.
that it does not admit of any doubt or difference.
The matter is thus governed by the Travancore Act.
The Travancore Act laid down, inter alia, that a loss arising in the previous year for the assessment for the year ending on the last day of Karkadakom, 1123, could be carried forward for two years.
The assessment year for 1123, M.E. covered the period, 17 8 1947 to 16 8 1948, and the previous year of the assessee Company relative to that assessment year was 1 1 1946 to 31 12 1946.
The loss of the Calendar year, 1946 could be carried forward to the Calendar years, 1947 and 1948 and given effect to, till the assessment year, 1125 (17 8 1949 to 16 8 1950).
The assessment year, 1 4 1951 to 31 3 1952, corresponded to the account year of the assessee Company, 1 1 1950 to 31 12 1950, and that is beyond two years, whether one takes 612 the account year or the assessment year as the basis of the calculation of two years.
The High Court, with all due respect, was not right in thinking that the Removal of Difficulties Order, 1950 was meant to enlarge the rights of the new assessees brought within the reach of the Indian Income tax law.
The intention of the law was to make a dividing line between those previous years to which the provisions of the earlier law would apply, and those previous years to which the provisions of the Indian Income tax Act would apply.
The rights were neither enlarged nor curtailed.
As pointed out by Chagla, C.J. in the Indore Malwa United Mills Ltd. vs Commissioner of Income tax (1).
"the only right integration has given to an assessee is the right contained in clauses (sic) 3 of the (Removal of Difficulties) Order, 1950 and that right is that if the law of his own State permitted him to carry forward the losses, then that right is preserved under the Indian Income tax Act.
" paragraph 3 of the Order clearly said that the right was available in the same manner, to the same extent and up to the year of assessment, as laid down in the State law (here, the Travancore Act).
Since in this case, the carry forward of the loss was for only two years and those years were before the previous year from which the Indian Income tax Act began to apply, there is no question of the application of the Indian Income tax Act.
The appeal thus succeeds, and is allowed.
The assessee Company shall pay the costs of the appeal in the High Court, but there shall be no order about costs in this Court.
Appeal allowed.

summary/full:
The respondent company was incorporated in the former State of Travancore.
The dispute was about the right of the respondent assessee company to carry forward the loss of the years 1946 under the provisions of the Travancore Act read with section 24 (2) of the Indian Income tax Act and the Taxation laws (Part B States)(Removal of Difficulties) Order, 1950, to the assessment year 1951 52 in the assessment of the company for its year of account.
The Income tax Officer held that the loss of the year 1946 could not be carried forward to that year, since it had lapsed after two years under section 32 of the Travancore Act and section 24 (2) was not applicable, in view of para 3 of the order. ^ Held, that the Taxation laws (Part B State) (Removal of Difficulties) Order, 1950, passed under section 12 of the Indian 606 Finance Act, 1950, was not intended to make a dividing line between those previous years to which the provisions of the earlier law would apply, and those previous years to which the provisions of the Income tax Act would apply.
The rights were neither enlarged or curtailed by para 3 of the order.
That paragraph said that the right was available in the same manner, to the same extent and upto the same year of assessment as laid down in the State law.
The law to apply was thus the State law and the carry forward could only be for two years.
Indore Malwa United Mills Ltd. vs Commissioner of Income tax, (1959) 35 I. T. R. 271, approved.