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minal Appeal No. 159 of 1956.
Appeal from the Judgment and Order dated June 25, 1956, of the Calcutta High Court in Criminal Revision No. 870 of 1956, arising out of the judgment and order dated May 5, 1956, of the Sessions Judge, Howrah, in Criminal Petition 8 of 1956 against the judgment and order dated February 20, 1956, of the Magistrate First Class, Howrah, in Case No. 1 C of 1954.
N. C. Chatterjee section K. Kapur and Nanak Chand Pandit, for the appellant.
section C. Mazumdar, for the respondent.
January 15.
Judgment of section K. Das and A. K. Sarkar, JJ. was delivered by section K. Das, J., Hidayatullah, J. delivered a separate Judgment.
I section K. DAS, J.
The appellant Ballavdas Agarwala was the proprietor of a restaurant in the Railway premises at Howrah Railway Station within the Municipality of Howrah, and his servant Shyamlal Missir was in charge of that restaurant.
Under an agreement with the Railway authorities, the appellant 742 had taken out a vendor 's license dated January 9,1952, by which he was permitted to sell or exhibit for sale sweetmeats, betel, bidi, cigarettes etc., but not specifically including butter, at the Howrah goods shed.
On December 2, 1953, during the currency of the license, the Health Officer of the Howrah Municipality along with his Sanitary Inspector and a peon visited the establishment and found that butter was being sold from glass jars standing on a table between the customers and the vendor.
The appellant was then absent and Shyamlal was dealing with the customers.
The Sanitary Inspector then took three samples from an one pound slap of butter which was taken out of a glass jar that was fully exposed to public view and which stood open on the selling counter.
The samples were taken in clean bottles, sealed and labelled on the spot under a seizure list which Shyamlal signed.
A sum of Rs. 2 was also given to Shyamlal as the price of the sample butter.
One of the samples was later sent to the Health Department of the Government of West Bengal for analysis and report.
The Public Analyst of West Bengal sent a report stating that the butter in question was grossly adulterated and did not contain any butter fat, and also contained a large excess of water.
On January 2, 1954, the Sanitary Inspector filed a complaint before the magistrate of Howrah asking for the issue of summons to the appellant and his servant Shyamlal for an offence under sections 488/406 and 407 of the Calcutta Municipal Act, 1923, as extended to the Municipality of Howrah.
The complaint was signed in token of sanction by the Health Officer of the Municipality.
On the aforesaid complaint, the appellant and his servant were put on trial.
Their defence was that it was not a case of voluntary sale, nor of a sale of butter.
The learned Magistrate who tried the case in the first instance held that no case of selling adulterated butter was made out, and the reason which the learned Magistrate gave for his finding was that the butter purchased by the Sanitary Inspector was not purchased from the jar from which butter was being sold to other customers.
The learned Magistrate acquitted both the accused persons.
743 The Administrator, Howrah Municipality, then preferred an application in revision to the High Court of Calcutta.
The High Court set aside the order of acquittal and ordered a retrial by another magistrate.
At the retrial several points were taken on behalf of the appellant one of which was that at the relevant time the Health Officer had no power to sanction the prosecution.
This time the trying magistrate foundagainst the appellant on all questions of fact, and onthe question of sanction he referred to certain orders of the Chairman of the Municipality and held that the power delegated to the Health Officer by one of thoseorders had not been revoked and, therefore, the HealthOfficer was competent to sanction the prosecution.
The appellant was accordingly convicted under sections 406 and 407 read with section 488 of the Calcutta Municipal Act and sentenced to a fine of Rs. 200/ or in default simple imprisonment for 30 days.
The appellant then moved the learned Sessions Judge of Howrah for a reference to the High Court, but without success.
An application in revision was then moved in the High Court, but this was summarily dismissed by a Single Judge.
From that summary order of dismissal, the appellant asked for and obtained from a Division Bench of the High Court a certificate for leave to appeal to this Court under Article 134(1)(c) of the Constitution.
While granting th certificate Das Gupta, J. giving the decision of the Division Bench said: On the 4th July, 1951, in my opinion the Health Officer of the Municipality had no longer in him the powers to order prosecution in any case regarding the Health Department and that power was at that time vested in the Vice Chairman of the Municipality Shri Sankar Lal Mukherjee, as a result of delegation by the Chairman by the order, Exhibit D.
On the 12th December, 1952, the new Chairman Shri K. C. Datta passed a further order revoking his previous order dated 4th July, 1951, so far as it related to the Health Department.
The position, therefore, after 12th December, 1952, was that the Chairman of the Howrah Municipality 744 himself was the only person compent to exercise the powers of Commissioners under Section 537 of the Calcutta Municipal Act.
If, therefore, the proceedings unless instituted by the Commissioners in accordance with Section 537 of the Calcutta Municipal Act cannot form the legal basis of any conviction for contravention of any provision of that law, the conviction in this case must be held to have no legal basis." He expressed the view that the question of the true import and effect of the provisions of section 537 of the Calcutta Municipal Act, 1923 was a question of general public importance which should be settled by this Court.
The present appeal has come to us on the aforesaid certificate.
On behalf of the appellant it has been argued that (1) the appellant was not responsible for the sale, because the licence did not authorise the sale of butter and (2) there was no " adulteration " of butter, because there was no butter fat in the sample analysed.
On these two points we are in agreement with the conclusion reached by our learned brother Hidayatullah, J. and we do not think it necessary to repeat what he has said in support of that conclusion.
We proceed now to consider the question of the power and authority of the Health Officer to sanction the prosecution in the present case.
On this question we have reached a conclusion different from that of our learned brother.
It is not disputed before us that the sanctioning of prosecution for selling or storing adulterated food is a matter which concerns the Health Department of the Municipality and any delegation of powers in respect of the Health Department will include the power to sanction prosecution for selling adulterated food, unless otherwise expressly stated in the order of delegation.
In the High Court, at the stage of the application for a certificate for leave to appeal, counsel for the Municipality relied on section 51 of the Bengal Municipal for his contention that the Chairman was entitled to exercise all the powers vested in the Commissioners and could delegate his powers to any other Municipal Officer.
It appears now that the relevant section is section 12 of the Calcutta Municipal Act, 1923 as applied to Howrah.
Under sub section (1) of section 12, the Commissioners may by a resolution passed at a special meeting delegate to the Chairman any of their powers, duties and functions 'under the Calcutta Municipal Act, 1923 as in force in the Municipality of Howrah or under the Bengal Municipal Act, 1884 or under any rule or bye law made thereunder.
Under sub section (2), the Chairman may by a general or special order in writing redelegate to the Vice Chairman or any Municipal officer any of the powers, duties or functions which have been delegated to him by the Commissioners.
We may, therefore, proceed on the basis, as did the High Court with reference to section 51 of the Bengal Municipal Act, 1932 that the Commissioners could delegate to the Chairman their powers under section 537 by a resolution passed at a special meeting, and the Chairman in his turn could redelegate those powers, by a general or special order, to the Vice Chairman or a Municipal officer.
The question before us is did he do so by a valid, subsisting order at the relevant time ? The relevant date is the date of the complaint which was made on January 2, 1954.
Therefore, we have to see what the position was on that date.
The first difficulty in the way of the respondent is that it led no evidence in this case to show that the provisions of section 12(1) of the Calcutta Municipal Act, 1923 were complied with, and the Commissioners by a resolution passed at a special meeting delegated their powers under section 537 to the Chairman.
Even if we ignore this difficulty on the ground that no question regarding the powers of the Chairman was raised and, therefore, no evidence was given on the point, there is a second and, in our opinion, insuperable difficulty.
An Order Book of the Chairman of the Howrah Municipality containing extracts of orders passed by the Chairman of the Municipality from May 9, 1938 to April 22, 1957, was 95 746 filed in the case.
This book is, however, of very little use to us.
It does not give the terms of the orders northeir dates.
It contains a reference to orders under other sections, but not under section 537.
The five orders with which we are concerned were exhibited separately and to those we now turn.
The first order is the one dated February 6, 1948, by which the then Chairman of the Howrah Municipality delegated to the Vice Chairman all his powers, duties and functions as Chairman in respect of seven departments including the Health Department.
This was followed by a second order passed on December 20, 1949, which was in the following terms : " I hereby delegate my powers and functions to the Health Officer to order prosecution, to sign prosecution sheets in respect of cases concerning the Health and Conservancy Departments.
" The third order came on April 7, 1951, on the eve of the new election.
This third order, so far as it is relevant for our purpose, stated: " Till the election of Executives by the New Board I delegate all my powers and functions except those that are delegated to the Vice Chairman to respective officers of departments." The exact date on which the new election took place is not known, but it is admitted that some time between April 7, 1951 and July 4, 1951, the New Executives had come into being.
On July 4, 1951 the New Chairman passed the following order : " I hereby delegate to the Vice Chairman, Sri Sankar Lal Mukherjee, all my powers, duties and functions as Chairman in respect of the following departments which are placed under his charge: 1.
Assessment Department (Except power under Section 146 C. M. Act.
Health Department.
Building Department.
Lighting Department.
Accounts Department.
Cash Department.
The fifth order was passed on December 12,1952 which said 747 I hereby revoke my order dated the 4th July, 1951, so far as it relates to the Health Department which shall henceforth be direct under my chargeuntil further orders.
This will take effect from 15th December, 1952.
" The question before us is what is the effect of the aforesaid five orders ? It is clear that by the order dated February 6, 1948, the Chairman delegated his powers to the Vice Chairman in respect of the Health Department, and by the next order dated December 20, 1949, he delegated his powers to the Health Officer in respect of certain particular matters, such as, ordering prosecution and signing complaints concerning the Health and Conservancy Departments.
On April 7, 1951, however, the Chairman passed another order which imposed a time limit by the expression: "Till the election of the Executives by the new Board.
" The question is if this time limit affected the operation of the second order dated December 20, 1949 so that it would come to an end with the election of the new Executives, and the position thereafter would be governed by the orders dated July 4, 1951, and December 12, 1952.
Ex Facie, it appears to us that the order dated April 7, 1951, affects the operation of the second order dated December 20, 1949.
The two orders, placed side by side, cannot stand together unless the earlier order is read as modified by the latter order.
The earlier order delegated the power of the Chairman in respect of some particular matters mentioned therein to the Health Officer ; the latter order states that it delegates all the powers of the Chairman to respective officers of Departments till the election of the new Executives.
We have emphasised the word ' all ' occurring in the latter order, as it must include the particular powers referred to in the earlier order.
It cannot be that in the same field the two orders will operate one un limited and the other limited by a time factor.
It has, however, been submitted to us that they do not operate in the same field and three reasons have been given firstly,it is said that the order dated April 7, 1951, is a general order which does not affect the order dated 748 December 20, 1949, which is a special order and for this, the principle of generalia specialibus non derogant is invoked; secondly, it is said that the time limit imposed by the order dated April 7, 1951, related to such delegation as is made by that order itself; and thirdly, it is said that if the time limit imposed by the order dated April 7, 1951, applies even to earlier administrative orders, then there would be great inconvenience by such orders coming abruptly to an end as the new Executives come into existence.
We shall now deal with these reasons.
We do not think that the question is one of the application of the principle of generalia specialibus non derogant.
Apart from any doubt that may arise as to whether such a principle is applicable to orders by which the Chairman redelegated powers delegated to him by the Commissioners, we think that the real answer to the question must be found in the words used in the order.
The order dated April 7, 1951, makes an exception in favour of the Vice Chairman ; it says "except those that are delegated to the Vice Chairman.
" This obviously has reference to the delegations already made in favour of the Vice Chairman, because the order makes no new delegation in favour of the Vice Chairman.
It states in terms that the time limit applies to all delegations except those made in favour of the Vice Chairman.
Only one exception is made, and if the intention was that there would be other exceptions, the order would have said so.
The order does not say so; on the contrary, it is expressed in language of the widest amplitude to include within itself all delegations of power except those made in favour of the Vice Chairman.
We are not impressed by the argument of administrative inconvenience.
Obviously, the object of the order of April 7, 1951, was to leave the new Chairman free to pass his own orders of delegation and not to fetter the discretion of the new Executives in any way ; that is why in the matter of delegation a time limit was imposed.
We do not have in the records full details of all orders of delegation made by the new Chairman.
We 749 have only two orders dated July 4, 1951, and December 12, 1952.
By order dated July 4, 1951, the new Chairman delegated his powers to the Vice Chairman in respect of six departments including the Health Department, though the earlier delegation in favour of the Vice Chairman was not subject to any time limit.
The order dated December 12, 1952, is important.
It not merely revoked the order dated 4, 1951, but said that "the Health Department shall hence forth be direct under my charge until further orders.
" If earlier special orders regarding the Health Department were subsisting on December 12, 1952, the Chairman would not have used the words which he used on that date.
We are, therefore, of the view that in the absence of a fresh order of delegation of which there is no evidence in the record, the Health Officer of the Howrah Municipality was not empowered as the duly delegated authority to institute criminal proceedings against the appellant on the date on which he made the complaint.
Whether as an ordinary citizen he could file the complaint takes us to the next question are the provisions section 537 merely enabling or are they obligatory in the sense that no legal proceeding under the Calcutta Municipal Act, 1923 as in force in the Municipality of Howrah, can be instituted except in accordance with the provisions of that Act ? It is necessary to read at this stage section 537.
It is in these terms: "The Commissioners may (a)institute, defend, or withdraw from legal proceedings under the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah or under any rule or byelaw made thereunder; (b)compound any offence against the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah or against any rule or bye law made thereunder which, under any enactment for the time being in force, may lawfully be compounded; (c)admit, compromise or withdraw any claim made under the Calcutta Municipal Act, 1923, as in 750 force in the Municipality of Howrah or under any rule or bye law made thereunder; and (d) obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain for any of the purposes referred to in the foregoing clauses of this section, or for securing the lawful exercise or discharge of any power or duty vesting in or 'imposed upon the Commissioners or any Municipal officer or servant.
On behalf of the appellant it has been urged before us that the provisions of section 537 are obligatory, and the principle invoked in aid of this construction is that adopted by the Privy Council in Nazir Ahmad vs King Emperor (1) viz. that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
In other words, the argument of learned counsel for the appellant is not that the word 'must ' must necessarily be read for the word may ' in section 537, but that if a legal proceeding is to be instituted under the Municipal Act in question, it must be done in accordance with the provisions of the Act and not otherwise.
On behalf of the respondent, however, the contention is that section 537 is merely enabling in nature, as the use of the word may ' shows, and the general principle embodied in the Code of Criminal Procedure of taking cognisance of an offence on a complaint by even a private person is not in any way affected by section 537.
These are the rival contentions which fall for consideration and we are of the view that the construction put on the section on behalf of the appellant is the sounder and more acceptable construction.
The section talks of various acts which the Commissioner may do and these acts have been put in four categories under clauses (a), (b), (c) and (d).
We are primarily concerned with clause (a), which talks of three things " institute, defend, or withdraw from legal proceedings under the Calcutta Municipal Act, 1923.
" It can hardly be doubted that the section does not compel the Commissioners to institute, defend or withdraw from legal proceedings; for example, (1) (1936) L.R. 63 I.A. 372 at 381.
751 clause (d) says "obtain such legal advice and assistance as they may from time to time think it necessary or or expedient to obtain etc.
" This obviously shows that the Commissioners are not compelled to obtain legal advice.
In the context, the use of the word may ' is therefore appropriate.
But the question still remains if the Commissioners wish to do any of the acts mentioned in section 537, must they do so in accordance with the provisions of the Act ? We think that they must; otherwise section 537 becomes clearly otiose.
What is the necessity of section 537 if the Commissioners can do the acts mentioned therein independent of and in,% manner other than what is laid down therein? Learned counsel for the respondent suggested that section 537 was enacted by way of abundant caution to enable the Municipality, a body corporate, to spend money on the institution of legal proceedings etc.
We are not impressed by this argument.
Like all other Municipal Acts, the Calcutta Municipal Act, 1923 has a section (section 5) which constitutes the Municipality into a body corporate and there are detailed provisions about Finance, Loans, Accounts, Taxation etc.
Section 84 of the Calcutta Municipal Act, 1923 lays down: " 84 (1) The moneys from time to time credited to the Municipality shall be applied in payment of all sums, charges and costs necessary for carrying out the purposes of this Act, or of which the payment is duly directed or sanctioned by or under any of the provisions of this Act.
(2)Such money shall likewise be applied in payment of all sums payable out of the Municipal Fund under any other enactment for the time being in force.
" Obviously, therefore, no other separate provision for expenditure of money in connection with the acts mentioned in section 537 was necessary by way of abundant caution.
We are, therefore, unable to accept as correct the reason given by learned counsel for the respondent for the insertion of section 537.
There are other provisions of the Act which also throw some light on the question.
Section 531 752 provides for the appointment of Municipal Magistrates ' for the trial of offences under the Act and the rules or bye laws made thereunder.
Section 532 provides for cognisance of offence by Municipal Magistrates having jurisdiction in Calcutta; section 533 gives power to hear a case in the absence of the accused person; section 534 prescribes a period of limitation for prosecution and section 535 says who can make a complaint of the existence of any nuisance.
Under section 535 the complaint can be made either by the Municipality or any person who resides or owns property in Calcutta.
The above provisions are followed by sections 537, 538 and 539.
Section 537 gives power to the Municipality to institute legal proceedings etc.; section 538 deals with suits against the Municipality and section 539 provides the usual indemnity clause.
An examination of the aforesaid provisions showsthat the Calcutta Municipal Act,, 1923 provides inter alia for a machinery for proceedings before Magistrates and other legal proceedings.
All these provisions can have one meaning only, viz. that the machinery provided in the Act must be followed in enforcing these provisions.
It would, we think, be against the tenor and scheme of the Municipal Act to hold that section 537 is merely enabling in nature, and that any private person may institute a legal proceeding provisions of the Act.
We now turn to such authorities as have been brought to our notice.
We may, say at once that no decision directly in point has been brought to our notice.
It is well to remember, however, that the phraseology adopted in different Municipal Acts is not the same.
Some Municipal Acts have adopted a phraseology which leaves no doubt in the matter; e.g. section 375 of the Bihar and Orissa Municipal Act, 1922 which says "No prosecution for any offence shall be instituted without the order or consent of the Commissioners Section 353 of the Bengal Municipal Act, 1884 was in similar terms.
Having regard to the phraseology so adopted, there are decisions which say that the sections there considered were 753 obligatory and sanction or consent of the Commissioners was necessary.
We have, however, seen no decision directly bearing on section 537 of the Calcutta Municipal Act, 1923 except one (to which, we shall presently refer), and that decision was given in an entirely different context.
We may refer first to some decisions which deal not with a Municipal Act but other Acts.
Sections 82 and 83 of the Indian have given rise to a divergence of views, which need not detain us: see Gopi Nath vs Kuldip Singh (1) Nga Pan Gaing vs King Emperor(2) and Emperor vs Muhammad Mehdi and Others (3).
We do not think that the said provisions in the Indian are in pari materia, and the decisions given on the terms of those sections are not of much assistance in solving the problem before us.
There is a decision of this Court on which learned counsel for the respondent has placed some reliance.
Dr. Sailendranath Sinha and Another vs Josoda Dulal Adikary and Another(4).
That decision dealt with sections 179 and 237 of the Indian Companies Act, 1913 and it was held that there was nothing in those sections which indicated that if a liquidator took action without a direction of the court, that action would be illegal or invalid.
The decision proceeded on the terms of the sections there considered and is of no help in construing section 537 of the Calcutta Municipal Act, 1923.
Now, we come to the decisions under the Municipal Act.
In Sisir Kumar Mitter vs Corporation of Calcutta it was observed : "Section 537 of the Calcutta Municipal Act, as we read it, is merely an enabling section, and the powers given thereunder to do the various acts specified therein can, in our opinion, only be exercised in accordance with the provisions of the Code of Criminal Procedure.
" Learned counsel for the respondent relies on these observations in support of his contention that the (1) (1885) 1 (2) Rangoon 437.
(3) All. 412.
(4) ; (5) Cal.
96 754 provisions of section 537 are merely enabling provisions.
It is worthy of note, however, that the precise question for decision in that case was entirely different.
The question there raised was whether the provisions of section 248 of the Criminal Procedure Code were affected or abrogated by section 537 of the Calcutta Municipal Act.
What happened in that case was that the Sanitary Inspector of the Corporation as the complainant filed a petition of withdrawal but the magistrate rejected the application.
On a later date the accused was absent, and a warrant of arrest was issued against him.
The accused then moved the High Court, and the main ground taken was that the magistrate should have allowed the withdrawal; because section 537 of the Calcutta Municipal Act must be held to have modified the provisions of section 248 of Criminal Procedure Code and taken away the discretion of the magistrate not to permit withdrawal of the case.
This contention was negatived, and it was held that section 248 of Criminal Procedure Code was neither abrogated nor modified by section 537 of the Calcutta Municipal Act.
It was incidentally observed that the Corporation being a creature of the statute, it was necessary to give it specific power to institute, defend or withdraw from legal proceedings.
We do not read the decision as deciding the question if a private person can institute a legal proceeding under the Calcutta Municipal Act independent of the provisions of that Act.
It decided merely the short point that section 248 of Criminal Procedure Code was not modified nor abrogated by section 537 of the Calcutta Municipal Act; this clearly was right, because section 537 does not compel the Municipality to to withdraw from a legal proceeding nor does it impose any obligation on the Court to accept such withdrawal.
The other observation made therein appear to us to be obiter, and it is unnecessary for us to consider the correctness of those observations, though learned counsel for the appellant relying on The Minister of Works and Planning vs Henderson and Others (1) has contended that the mere fact of incorporation without reservation confers on a body corporate the privilege of suing and the liability to be sued.
(1) (1947) 1 K.B. 91.
755 The next decision is that of Keshabdeo Kedia vs P. Banerjee, Sanitary Inspector, Howrah Municipality(1).
This related to section 535 of the Calcutta Municipal Act, and it was held that a magistrate was not entitled to act under section 535(2) upon a complaint filed by the Sanitary Inspector in his personal capacity in the absence of anything to show that he was authorised by the Chairman of the Municipality or was complaining on behalf of the Municipality or resided or owned property in Calcutta.
This decision helps the appellant to the extent that it holds that the right of a private person to make a complaint is cut down by section 535.
In The State vs Manilal Jethalal (2), sections 481 and 69 of the Bombay Provincial Municipal Corporations Act (59 of 1949) came in for consideration.
Section 481 of that Act gave the Commissioner power to "take", or withdraw from, proceedings in respect of an offence committed under the Act.
The complaint in that case was filed by the Jilla Inspector, and the argument was that he was not authorised by the Commissioners to "take" proceedings.
This argument was dealt with in the following observations: "Now, it is quite true that the object of section 69, sub section
(1), is to empower the Commissioner to delegate his powers under the Act to other Municipal officers, with a view that the Commissioner may not himself be burdened with duty of deciding whether any action should be taken against a person, who, it is alleged, has committed an offence either against the Act or the rules.
It is also true that whenever the Act gives any power to a Commissioner, the power must be exercised by him, or by an officer, to whom the Com missioner 's power is delegated under the provisions of section 69.
But we do not think that it would be correct to restrict the meaning of the words "take proceedings" to actually filing a complaint.
The object of section 481 is that whenever it is alleged that any person has committed an offence under the Municipal Act, or under the rules framed under the Act, he should not be prosecuted, unless either the Commissioner himself (1) (2) A.I.R. (1953) Born.
756 or some responsible officer has had an opportunity of applying his mind to the question as to whether a prosecution should or should not be instituted.
But once this has been done, there does not seem to be any particular necessity for requiring.
that, if it is decided to prosecute, the complaint must actually be lodged by the Commissioner, or the officer, to whom his powers are delegated.
It is quite true that that words " take proceedings" may mean to lodge the complaint oneself.
But we think that that is not the only meaning which can be given to these words.
It also means to do an act by which a prosecution would be lodged.
" This decision also help the appellant in so far as it lays down that whenever the Act gives any power to a Commissioner, the power must be exercised by him, or by an officer, to whom the Commissioner 's power is delegated.
The decision proceeded, however, on a somewhat wide meaning given to the words " take proceedings" that part of the decision,, as to the correctness of which we say nothing, does not concern us here, because the words used in section 537 of the Calcutta Municipal Act are different.
Our attention has been drawn to four English decisions where a private person was held competent to make a complaint in respect of (1) consumption of refreshments in places of public resort, (2) sale of margarine" (3) acts of cruelty to animals and (4) sale of unsound meat: Cole vs Coulton (1); Buckler vs Wilson (2); The, Queen vs Stewart (3); Giebler vs Manning (4).
All these four decisions proceeded on the terms of the statutes under which the offences were alleged to have been committed and it was held that those statutes did not contain any provisions which made it obligatory that the complaint should be made by a particular authority in a particular manner.
They do not really help the respondent to establish his contentions that in spite of section 537, Calcutta Municipal Act, a private person can institute a legal proceeding under the said Act.
They take us back (1) 2 Ellis & Ellis 695; ; (2) (1896) 1 Q.B.D. 83.
(3) (4) 751 to the point from which we started; namely, what is the true nature and import of section 537 of the Calcutta Municipal Act.
If it is obligatory in the sense explained earlier, the appellant is entitled to succeed.
If it is merely enabling, then the respondent is entitled to succeed.
The decision in The Queen vs Stewart (1)on which learned counsel for the respondent strongly relied, dealt with the provisions of the Diseases of the Animals Act, 1894.
Lindley, L.J. said: " Reading those sections together, they in fact affirm the right of any person to prefer an information in most significant terms.
Is there anything in the Act or the Order which so clearly restricts that right that we ought to say that in this case no one but the borough council had the right to take proceedings? I can find nothing of the kind.
" Giebler vs Manning (2) was decided on the terms of section 47, sub section
(2) of the Public Health (London) Act, 1891 and the question was could a private person institute proceedings under section 47, sub section
(2) ? Lord Alverstone C. J. answered the question in the following observations: " Having regard to the object of the statute, the protection of the public against the offering of diseased meat for sale, I think that if it had been intended to limit the right to take proceedings for the recovery of penalties to a limited class of persons, such as medical officers and sanitary inspectors, words would have been introduced into the section taking away from private persons the right to lay informations under the section.
" Lastly, there is the decision in The Queen vs Cubitt (3).
This was a case under the Sea Fisheries Act, 1883 (46 and 47 Vict.
c. 22), section 11 of which said: "The provisoes of this Act. . shall be enforced by seafishery officers.
" It was held that the effect of the above words was that no one except a sea fishery officer could prosecute for an offence against the Act and a rule calling upon the justices to hear and determine a summons for an offence against the Act taken out by a private individual, was discharged.
Lord Coleridge, C. J. observed: (1) (2) (3) 758 any one may enforce the Act, section 11 is useless.
I do not think that negative words are required to exclude proceedings by persons other than sea fishery officers.
For instance, if an Act provided that the Attorney General was to sue for a penalty, no one else could sue for it; it is obvious that if everyone could sue for the penalty the Attorney General could sue for it, so that on that view of the statute the clause enabling him to sue would be unnecessary and useless." On a parity of reasoning, if anybody can institute a legal proceeding under the Calcutta Municipal Act, section 537 thereof becomes practically useless.
Even without that section, the Municipality could do the acts specified therein, and it is difficult to understand the necessity of a provision like section 537 unless the intention was to confer a power on the Municipality which power must be exercised in accordance with the provisions of the Act and not otherwise.
It was faintly suggested that the absence of a complaint by the Commissioners or the Chairman or a duty delegated authority was a mere error or irregularity which could be cured under section 537 Criminal Procedure Code.
Our attention was also drawn to section 79 of the Calcutta Municipal Act, 1923.
In the view which we have taken the absence of a proper complaint was not a mere defect or irregularity; it affected jurisdiction and initiation of proceedings.
For these reasons, we allow the appeal and set aside the conviction and sentence passed against the appellant.
The fine, if paid, must be refunded to the appellant.
HIDAYATULLAH J.
In this appeal which has been filed on a certificate of fitness under article 134 (1)(c) of the Constitution granted by the Calcutta High Court, the appellant challenges his conviction under sections 406 and 407 read with section 488 of the Calcutta Municipal Act as applied to Howrah, and the sentence of fine of Rs. 200 (in default, simple imprisonment for 30 days).
The appellant, Ballabhdas Agarwala, is the proprietor of a chain of restaurants, and one such restaurant is at the Howrah Railway Station.
He had 759 entered into an agreement with the railway, and had taken out a vendor 's licence No. 54 of 1951 datedJanuary 9, 1952, by which he was permitted to sell or exhibit for sale, sweetmeats, betel, bidi, cigarettes, tea, cake, bread and biscuits and parched gram at Howrah goods shed between January 6, 1951 and December 31, 1953.
On December 2,1953, the Health Officer, a Sanitary Inspector and a peon of the Howrah Municipality visited the restaurant, whore the servant of the appellant, one Shyamlal Missir, was in charge.
Onthe counter, there was a jar containing " butter ".
This ,butter " was being sold to customers.
TheSanitary Inspector took three samples of this " butter " from an one pound slab and put them into three clean bottles, which were sealed and labelled.
Missir was paid Rs. 2 as the price.
One bottle was left with Missir as required by the rules.
Of the remaining two bottles, one was sent for analysis of the sample, to the Public Analyst, West Bengal.
On the report of the Analystthat the sample did not contain any butter fat at alland contained an excess of water, the Health Officeraccorded sanction for the prosecution of the appellant and Missir.
The complaint was signed by the Sanitary Inspector as well as the Health Officer.
The case was tried summarily, and the Magistrate acquitted both the accused, because, in his opinion, the samples were taken not from the jar from which butter was being sold to the other customers but from another jar.
The High Court, however, set aside the order, and the case was retried.
It resulted in theconviction and sentence of the appellant, as stated above.
The Sessions Judge (appellate jurisdiction) who was moved by a criminal motion rejected the motion.
The appellant then moved the High Court in revision, but Debabrata Mookerjee, J. dismissed it summarily.
The appellant applied for and obtaineda certificate of fitness under article 134 (1) (c) of the Constitution and filed this appeal.
Three points were argued before us.
The first was that by the terms of the agreement and licence,the appellant was not authorised to sell butter, and 760 thus he was not responsible for the sale in question.
It was contended that the sale might have been made by Missir on his own account.
This contention is without substance.
That there was a sale of the seized article at the restaurant of the appellant goes without saying.
Sections 406 and 407 of the Calcutta Municipal Act make the sale of adulterated or misbranded article an offence, and every person who sells such article directly or indirectly, himself or by any other person is liable.
Even though such sale might be outside the permit of the vendor 's licence, the seized article was, in fact, sold.
The words of the sections vicariously fasten the responsibility on masters for the acts of the servants, and the maxim, qui facit per alium facit per se applies.
The finding is that the sale was for and on behalf of the proprietor, and in view of the clear words of the section, he would be answerable.
Next, it was argued that this was not a case of adulteration " at all, because there was, in fact, no butter fat, in the sample analysed.
Reference was made to a decision of the Punjab High Court in Mangal Mal vs The State (1) in support of the contention that the prosecution for the sale of " adulterated " butter was defective.
No doubt, the ordinary sense of " Adulteration " connotes the mixing of deleterious or other substance with the main basic article; but the definition in the Act has been widened to include even those articles where the contents do not include the basic substance either wholly 'or partly.
In view of the definition, this line.
of criticism was rightly not pressed.
The last point is the main argument in this case, on the strength of which the certificate was obtained.
The argument is that the complaint presented to the Court in this case was by an unauthorised person and was thus no complaint at all.
The argument embraced a consideration of certain sections of the Calcutta Municipal Act, 1923, as applied to Howrah and of the Bengal Municipal Act, 1932, and the notifications issued under them.
The first section to which reference (1) A.I.R. 1952 Pun.
761 was made is section 537 of the Calcutta Municipal Act in its application to Howrah Municipality.
It reads thus: "The Commissioners may (a) institute, defend or withdraw from legal proceedings under the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah or under any rule or by law made thereunder; (b) compound any offence against the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah or against any rule or by law made thereunder which, under any enactment for the time being in force, may lawfully be compounded; (c) admit, compromise or withdraw any claim made under the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah or under any rule or by law made thereunder; and (d) obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain, for any of the purposes referred to in the foregoing clauses of this section, or for securing the lawful exereise or discharge of any power or duty vesting in or imposed upon the Commissioners or any municipal officer or servant.
" It is contended for the appellant that the Commissioners are the only body of persons who could have instituted the complaint.
In reply, it is pointed out that under section 12 of the Calcutta Municipal Act as applied to Howrah, the Commissioners can delegate their functions to a Chairman by a resolution passed at a special meeting, and the Chairman can also by a general or special order in writing, re delegater any of the delegated powers to the Vice Chairman or to any municipal officer.
This power of delegation authorises both the Commissioners as well as the Chairman to delegate or re delegate, as the case may be, their powers under the Bengal Municipal Act also.
The Divisional Bench of the Calcutta High Court referred to section 51 of the Bengal Municipal Act, 1932 as enabling delegation, but that section has no application, in view of the provisions of section 542 of the Calcutta Municipal Act, which repeals section 51 of the Bengal 97 762 Municipal Act in its application to the Howrah Municipality.
I have thus only section 12 of the Calcutta Municipal Act in its application to the Howrah Municipality to consider, and as summarised above, it permits delegation of powers from the Commissioner to the Chairman and from the Chairman to the ViceChairman or any other officer of the Municipality.
It was by virtue of this section that the Chairman was presumably delegated the powers of the Commissioners, though no proof has been given in this case.
No point was made of the lack of this evidence, and I need say nothing about it.
If it had been raised, the prosecution would have led evidence, if available.
But without this objection having been raised at an appropriate stage, it is impossible to say now that it is well founded.
It is, however, in the re delegation of the powers from the Chairman to the other officers of the Municipality that the question, whether such delegation was existing on the date on which the prosecution was initiated against the appellant, has arisen.
A number of notifications must now be set out, because it is contended that the later notifications rescind or modify those issued earlier: "Howrah Municipality order.
I hereby delegate to the Vice Chairman, Dr. Beni Chandra Dutta, all my powers, duties and functions as Chairman in respect of the following departments which are placed under his charge: 2.
Health Department.
The 6th February, 1948.
section K. Mukherji,Chairman.
Howrah Municipality.
Order.
I hereby delegate my powers and functions to the Health Officer to order prosecution, to sign prosecution sheets in respect of cases concerning the Health and Conservatory Departments.
763 The 20th December, 1949.
section K. Mukherjee, Chairman.
III Howrah Municipality.
Order, Till the election of Executives by the New Board I delegate all my powers and functions except those that are delegated to the Vice Chairman to respective officers of departments. .
The 7th April, 1951.
section K. Mukherji, Chairman.
Howrah Municipality.
Order.
I hereby delegate to the Vice Chairman, Sri Sankar Lal Mukherji, all my powers, duties and functions as Chairman in respect of the following departments which are placed under his charge.
. . . . . . . . . . 2.
Health Department.
. . . . . . . . . .
The 4th July, 1951.
K. C. Dutta, Chairman.
" It is admitted in this case that the election of the Executives by the New Board took place between April 7, 1951 and July 4, 1951.
V. Howrah Municipality.
Order.
I hereby revoke my order dated the 4th July, 1951, so far as it relates to Health Department which shall henceforth be direct under my charge until further orders.
This will take effect from 15th December, 1952.
The 12th December, 1952.
(Sd.) K. C. Dutta, Chairman.
" This was the position of the Orders on December 2, 1953 (the date of the offence) and also on January 5, 1954, when the complaint was filed.
Now, the municipal corporation is a collection of persons, and is invested with a legal personality by the statute under which it is created.
The statute 764 gives it perpetual succession and a power to act in many ways.
Among, its multifarious functions is an inherent power to sue or be sued by its corporate name, but the statutes creating such corporations aggregate provide expressly for such power.
In the absence of provision to the contrary, the body corporate in such matters must act as a corporation.
The inconvenience of having the entire body to meet and decide upon every individual case is apparent, and the law, therefore, provides for delegation of the functions of the body corporate to the Chairman.
Even there, the burden on the Chairman 's time would be enormous, and thus the law enables him to re delegate, in his turn, his delegated powers to others.
Section 12 of the Calcutta Municipal Act enables the Chairman to delegate his powers, duties or functions to the Vice Chairman or to any municipal officer.
Such officers are to be distinguished from mere servants who carry out orders but do not exercise definite Municipal do.
This distinction was made in Abbott 's Corporations, Vol. 11, p. 1456 etc., and is to be found reflected also in the Act under consideration.
An officer of the municipality must himself perform his them to others, unless expressly authorised in this behalf.
The Act does not so empower the officers to delegate their functions in their turn, and thus an officer to whom the power is delegated by the Chairman must perform them himself.
A glance at the Act under consideration will show the numerous functions with which the Act invests the Chairman.
In addition, the Chairman is invested with the functions delegated by the Commissioners.
In most municipalities (if not all), the Chairman maintains an order book in which he designates the officers to 'whom his functions are delegated.
In the present case, there are extracts from the orders of the Chairman from May 9, 1938 to April 22, 1957 (exhibit A).
These extracts show only the powers and functions delegated to the Engineer, Water Works Overseers, and they run the course of thirteen pages of small print in the Paper Book and involve one hundred 765 and thirty seven special delegations.
If the whole book were to be before us, these special delegations will show an enormous number of specially delegate,.
powers.
These functions cannot be performed by any but the officers concerned and are not taken away every time the Chairman passes an order investing by a general order his functions, in the Vice Chairman, or withdraws them from him.
Notification No. 11 quoted above was a special delegation, and would presumably figure in the order book as an item in the duties of the Health Officer specially delegated to him.
After this delegation, it was the Health Officer and Health Officer alone who could exercise this power.
It is contended, however, that the Order of April 7, 1951 (No. 111) led to the cancellation of the Order of December 20, 1949 (No. 11), or at least imposed a time limit till the election of the new Board.
I am afraid this is not a correct interpretation of the No doubt, the Chairman stated that he delegated all his powers and functions to the respective officers of the departments till the election of the new Board; but the officers of the Department are invested with both administrative and special powers.
In my opinion, a distinction must be made between delegation of a power to do special acts by a special order, and delegation of a general character which can only be interpreted generally as applicable to administrative control.
Section 12 itself contemplates two kinds of orders, and it cannot be gainsaid that the Order of December 20, 1949 (No. 11) was a special Order, while the Order of April 7, 1951, was a general one.
The first Order (No. 1 dated February 6, 1948) delegated all the powers of the Chairman in respect of the Health and other Departments to the Vice Chairman.
It did not mean that the order book (exhibit A) came to an end; nor did it mean that from February 6, 1948, it was the Vice Chairman who alone could do all that is mentioned in the thirteen pages printed in the Paper Book and what is presumably there regarding other departments.
Delegation of administrative powers is one thing, and delegation of 766 power to do some specific act or acts is quite another.
The general order in favour of the Vice Chairman (No. 1) would not cut down the special orders of the Chairman.
The general order cannot be read as special,because generalia verba sunt generaliter intelligenda, and generalities never derogate from specialities.
It only granted the residuary powers which were not covered by the special delegations from time to time.
No doubt, the word used is "all", but the whole intent and purpose of the delegation must be borne in mind.
Qui haeret in litera haeret in cortice.
(Broome 's Legal Maxims, 9th Edn., p. 443).
The rules of interpretation of statutes only follow rules of interpretation of deeds and instruments and not vice versa.
To hold otherwise would mean that after the order of February 6, 1948 (No. 1), all functions, duties and powers including those specifically mentioned in the order book came to be centred in the Vice Chairman.
It was he alone who could inspect and examine house drains (section 275), approve the site and position of the cesspools (section 279), issue or serve notices (section 503), inspect the service pipes (R. 5 (3)), examine the water pipes (R. 6)so on and so forth.
And yet, this would be the effect of the Order of February 6, 1948, if the effect of the Order of April 7, 195 1, on the Order of December 20, 1949, is, as is claimed.
It may be contented that if that is the effect of the Order, we can declare it to be so ; but one reaches this result only if one disregards the distinction between special and general orders, and there is no principle of interpretation on which it can be rested.
The special delegation order of December 20, 1949, could only come to an end if it was withdrawn either expressly or by necessary implication.
No doubt, it was a delegation by Mr. section K. Mukherjee, and he ceased to hold office later; but the delegation made by him would not fall by that reason alone.
The delegation was not personal to Mr. Mukherjee but was made by virtue of office and it could only cease to be operative if cancelled in the same manner by the same officeholder or his successor.
It was, however, argued that it came to an end because of a time limit imposed by 767 the Chairman by his Order of April 7, 1951 (No. 111).
That Order stated that powers and functions except those delegated to the Vice Chairman were to be exercised till the election of the Executives by the new Board.
But the time limit was imposed on powers delegated by that Order.
This is clear from the language employed : " Till the election of Executives by the New Board I delegate all my powers and functions. to respective officers of departments.
" The contention is that this Order had the effect of imposing a time limit on all delegations made even before.
This general order did not have this effect on a special order for the reasons stated.
The delegation of the power to order prosecution and to sign prosecution sheets was specially conferred by the Order of December 20, 1949 (No. 11), and was not revoked by the general order which could not be read specially ; nor was it intended that this power was to have a time limit.
By "officers of the department" was not meant the officers on whom special powers were conferred to do special acts.
The Order quoted above is in general terms, and puts a timelimit on the delegation made by that order.
It says nothing about delegations of a special kind already in existence, or that the general order was to be in supression of all special orders.
It does not, in terms, seek to affect them either expressly or even by implication.
In my opinion, the special delegation made by the Order of ]December 20, 1949 (No. 11), remained unaffected, and thus enables the Health Officer to file the complaint.
In this view of the matter, it is unnecessary to decide whether section 537 of the Calcutta Municipal Act is merely enabling or mandatory, and whether in the absence of a proper delegation, the Health Officer or other officers of the Municipality or any private person could have initiated the prosecution in such a case.
I would, therefore, hold that the appeal has no force, and that it should be dismissed.
ORDER OF COURT In view of the judgment of the majority the appeal is allowed.
Appeal allowed.

Output:
The appellant was convicted of selling adulterated butter under sections 406 and 407 read with section 488 of the Calcutta Municipal Act as extended to the Municipality of Howrah on a complaint filed by the Sanitary Inspector on January 2, 954 which was signed in token of sanction by the Health Officer of the said municipality.
The appellant contended that the trial was vitiated for want of a valid sanction because at the relevant time the Health Officer of the municipality did not have any power to sanction the prosecution.
Under the Act the power to institute 740 a complaint vested in the Commissioners but they could delegate the power to the Chairman and the Chairman could also by a general or special order in writing re delegate the power to the Vice Chairman or to any municipal officer.
The question of the delegation of their power by the Commissioners was not specifically raised, but it was urged that the Chairman had by certain subsequent orders revoked the delegation in favour of the Health Officer.
The first order passed by the Chairman on February 6, 1948, delegated to the Vice Chairman all his powers, duties and functions in respect of seven departments including the Health Department.
The second order was passed on December 20,1949, by which the Chairman delegated his powers and functions to the Health Officer to order prosecution and to sign prosecution sheets in respect of cases concerning the Health and Conservancy Departments.
The third order was made on April 7, 1951, on the eve of the new election, and stated: "Till the election of Executives by the New Board I delegate all my powers and functions except those that are delegated to the Vice Chairman to the respective officers of departments".
After the election, the new Chairman passed an order on July 4, 1951, delegating all his powers, duties and functions in respect of six departments including the Health Department to the Vice Chairman.
The last order was passed on December 12, 1952, which said: "I hereby revoke my order dated the 4th July 1951, so far as it relates to the Health Department which shall henceforth be direct under my charge until further orders.
This will take effect from 15th December, 1952".
The appellant urged that the third order modified the second and placed a time limit on it and that the delegation lapsed on the expiry of the time.
The respondent contended that the third order did not affect the second and that in any case the Health Officer could file the complaint as a private citizen.
Held, (per section K. Das and A. K. Sarkar, jj.) that the Health Officer was not empowered as the duly delegated authority to institute criminal proceedings against the appellant on the date on which he made the complaint.
The third order made by the Chairman on April 7, 1951, modified the second order by making the delegation thereunder in favour of the Health Officer effective only till the election of the new Executive.
The object of the third order was to leave the new Chairman free to pass his own orders of delegation and not to fetter his discretion in any way.
The orders passed by the new Chairman did not delegate the power to the Health Officer.
Held, further, that a complaint under the Calcutta Municipal Act, 1923, as applied to Municipality of Howrah, can only be filed by the authorities mentioned therein and not by an ordinary citizen.
Section 537 of the Act provides that the Commissioners may institute, defend or withdraw from legal proceedings under the Act; under section 12 the Commissioners, can delegate their functions to the Chairman, and the Chairman can in his turn delegate the same to the Vice Chairman or to any municipal 741 officer.
The machinery provided in the Act must be followed in enforcing its provisions, and it is against the tenor and scheme of the Act to hold that section 537 is merely enabling in nature.
Nazir Ahmed vs King Emperor, (1936) L.R. 63 I.A. 372.
referred to.
Sisir Kumar Mitter vs Corporation of Calcutta.
631, explained.
Keshabdeo Kedia vs P. Banerjee, Sanitary Inspector, Howrah Municipality.
and State vs Manilal Jethalal A.I.R ,referred to.
Cole vs Coulten,2 Ellis & Ellis 695, Buckler vs Wilson, , The Queen vs Stewart, (1896) 1 Q.B.D. 300 and Giebler vs Manning, , held inapplicable.
The Queen vs Cubitt. , relied on.
Per Hidayatullah, 1.
The sanction given by the Health Officer was valid as the delegation of authority, to him by the order of December 20, 1949, was not taken away by subsequent orders.
The order of December 20, 1949, which specially conferred the power to order prosecution to sign prosecution sheets was a special order and was unaffected by the general order of April 7, 1951.
The later order put a time limit only on delegations made under that order and not on orders made before.


Input:
iminal Appeals Nos. 102 and 103 of 1958.
Appeals by special leave from the judgment and order dated March 28, 1958, of the Calcutta High Court in Criminal Appeal No. 428 of 1957 and reference section 374 Cr. P. C. No. 8 of 1957 arising out of the 1325 judgment and order dated September 21, 1957, of the Court of the Sessions Judge of Cooch Behar in Sessions Trial No. 2 of 1957 (Sept. Sessions) (Sessions Case No. 18 of 1957).
section K. Kapur, for the appellants.
B. Sen, P. K. Ghosh for P. K. Bose, for the respondent.
September 19.
The Judgment of the Court was delivered by IMAM J.
In these appeals the appellants were convicted for the murder of Malchand Bhadani.
A charge under section 302, Indian Penal Code had been framed against each of them.
The Sessions Judge found that the murder had been committed in the furtherance of their common intention.
In his opinion as appellant Bipin Behari Sarkar had actually committed the murder he convicted this appellant under section 302 of the Indian Penal Code.
He convicted the appellant Bishnu Charan Saha under section 302/34 of the Indian Penal Code.
He sentenced both the appellants to death.
The appellants appealed to the Calcutta High Court while the Sessions Judge made a reference for the confirmation of the death sentence passed by him.
The High Court found the appellants guilty under section 302/34 of the Indian Penal Code.
It accordingly confirmed the sentence of death imposed on the appellants by the Sessions Judge.
According to the prosecution, one Tarachand Bhadani had a cloth shop at Mathabhanga in the district of Cooch Bihar.
He was joint in business and mess with his two sons, Prithiraj and the deceased Malchand.
The annual turn over of the shop was between Rs. 50,000 to Rs. 60,000.
On December 18, 1956, Tarachand had gone to Rajasthan and Prithiraj had gone to Falakata Hat.
Accordingly at the shop on that day Malchand was the only person in charge of it.
At about 8 30 p. m., after the close of the day 's business, Malchand was counting the cash in the iron safe in an ante room of the shop when the appellants with one Sanatan Das, who was acquitted at the trial, 1326 called at the shop.
Malchand came out of the anteroom into the shop to attend to these late customers.
He had left open the safe and one of its drawers on the floor.
The appellants purported to make certain purchases and examined various pieces of cloth.
After selection of the cloth they were put into packets.
Cash memoes in duplicate were prepared and signed by Malcliand and the appellant Bishnu Charan Saha.
The cash memoes had been completely filled in.
Two of them had been separated from the cash memo book, but before the 3rd cash memo could be detached from the book, Malchand was struck down by the appellants with a heavy cutting instrument which they had carried.
The neck was so severely cut that the head was nearly severed from the trunk.
Just about then, a neighbour called out to Malchand by way of casual enquiry before retiring for the night.
This so frightened the miscreants that they fled.
The money in the open safe was left untouched.
The motive for the murder was to steal the money from the safe.
On December 25, 1956, the police seized a sharp cutting weapon variously described as a sword or a dagger.
It was found lying close to some shrubbery near Malchand 's shop.
It was stained with human blood.
It was a practice of the shop of Tarachand Bhadani to despatch from time to time, after obtaining Hundis, the accumulated proceeds of the business to Calcutta.
On the morning of December 18, 1956, Prithiraj, before he went to Falakata Hat, had made enquiries from the firm of Bhairabhan Bhowrilal whether any Hundi was available.
As Bhowrilal was not able to supply him the Hundi the cash remained in the shop.
The contents of the safe showed that on December 18, 1956, before Malchand was murdered there was a sum of Rs. 3,913 in cash and 8 1/4 tolas of gold.
There was, therefore, a substantial amount in the safe at the shop which would have been stolen were it not that the miscreants fled after murdering Malchand because of a neighbour calling out to him.
The conviction of the appellants, as pointed out by the High Court, depended entirely on circumstantial 1327 evidence.
The High Court did not rely upon the confessional statement made by the appellant Bishnu Charan Saha to a Magistrate, as, in its opinion, it was not a voluntary statement.
Reference will be made to the circumstantial evidence, upon which the High Court relied, in due course.
Before we deal with that aspect of the case it is necessary to refer to a submission made on behalf of the appellants concerning the tender of pardon under section 337 of the Code of Criminal Procedure to Bishnu Charan Saha and, the failure of the prosecution to comply with the provisions of section 339 of the Code of Criminal Procedure.
It was urged that the provisions of section 339 of the Code not having been complied with the trial ",as vitiated as the appellant Bishnu Charan Saha could not be tried alongwith the appellant Bipin Behari Sarkar.
In order to understand this submission it is necessary to state a few facts.
Bishnu Charan Saha was arrested at about 3 p. m. on December 19, 1956.
His confession was recorded by the Magistrate Mr. section C. Chaudhury on December 20, 1956.
A charge sheet against the appellants and Sanatan Das was submitted by the police on June 20, 1957.
On June 22, 1957, a prayer was made to the Sub divisional Magistrate on behalf of the prosecution that Bishnu Charan Saba may be tendered a pardon under section 337 of the Code of Criminal Procedure and the Magistrate recorded an order to the effect that this appellant was tendered pardon under section 337 of the Code of Criminal Procedure on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof.
The Sub divisional Magistrate bad already reported on June 20, 1957, to the District Magistrate that both he and the other Magistrate of Mathabhanga should not hold the commitment proceedings as they had had something to do with the investigation.
On August 1, 1957, the Magistrate Mr. Sinha, to whom the case had been ultimately transferred, recorded an order to the effect that the three accused had been produced before him and that he had seen the Court 1328 Inspector 's petition praying that the accused Bishnu be made an approver in the case under section 337 of the Code of Criminal Procedure.
This accused had, however, stated that he made the confessional statement before the Magistrate at Mathabhanga as he had been assaulted by the police and that he did not wish to become an approver.
After the completion of the enquiry before commitment, the appellants and Sanatan Das were committed to the Court of Session to stand their trial for the murder of Malchand.
Section 339(1) of the Code provides that " where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which lie appears to have been guilty in connection with the same matter ".
The proviso to this sub section prohibits the trial of such person jointly with any of the other accused and that such person shall be entitled to plead at such trial that he had complied with the condition upon which such tender was made.
The provisions of this section clearly pre suppose that the pardon which had been tendered to a person had been accepted by him and that thereafter that person had wilfully concealed anything essential or had given false evidence and therefore bad not complied with the condition on which the tender was made to him.
Section 337 of the Code, under which a pardon is tendered, shows that such tender is made on the condition that the person to whom it is tendered makes a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as a principal or an abettor to the commission thereof.
Sub section (2) of this section requires that every person who has accepted a tender shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
1329 It is clear, therefore, that a mere tender of pardon does not attract the provisions of section 339.
There must be an acceptance of it and the person who has accepted the pardon must be examined as a witness.
It is ' only thereafter that the provisions of section 339 come into play and the person who accepted the pardon may be tried for the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion he has, either wilfully concealed anything essential or had given false evidence and had not complied with the condition on which the tender was made.
In the present case, there is nothing on the record to show that on July 22, 1957, although Bishnu Charan Saha had been tendered a pardon, he had accepted the tender.
Indeed, the order sheet of the Sub divisional Magistrate of that date does not even disclose that Bishnu Charan Saha had been produced before him.
On the other hand, when Bishnu Charan Saha and his co accused were produced before the Magistrate Mr. Sinha, to whom the case had been transferred, the prosecution made a prayer to the Magistrate that Bishnu Charan Saha may be made an approver in the case under section 337 of the Code of Criminal Procedure.
This would show that upto that time Bishnu Charan Saha had not accepted the tender of pardon made to him by the Sub divisional Magis trate on June 22,1957.
On the prayer of the Prosecutor made to Mr. Sinha on August 1, 1957, Bishnu Charan Saba flatly denied that he wished to be an approver and had stated that the confessional statement made by him to Mr. Chaudhury was not a voluntary one.
On the facts of the present case, therefore, all that is proved is that at one stage of the proceedings a tender of pardon had been made to Bishnu Charan Saba.
There was, however, no proof that that tender had been accepted by him.
Such being the situation it could not be said that there was in existence an effective pardon under section 337 and that its provisions applied to the facts of the present case.
Consequently, no question arises about the applicability of section 339 to the proceedings before the Magistrate holding an enquiry before commitment or to the trial of the appellants, because the 1330 provisions of section 339 can only come into operation if there is in existence an effective pardon under section 337 of the Code.
In our opinion, on the facts of the present case, there is no foundation for the submission which had been made.
Coming now to the circumstantial evidence in the case upon which the High Court relied for upholding the conviction of the appellants, which may be summed up as follows: (1) The evidence clearly established that the appellants were local men who lived or worked not far from Malchand 's shop.
They accordingly had the means and the opportunity of knowing the state of things obtaining at his shop at a particular date.
(2) The association of the appellants and Sanatan Das immediately prior to the murder.
(3) The evidence of their movements towards the direction of Malchand 's shop.
(4) The evidence concerning their presence in the shop of Malchand shortly before the latter was murdered.
(5) The evidence concerning the appellant Bipin Bihari Sarkar hurrying away from the direction of Malchand 's shop closely followed by the appellant Bishnu Charan Saha.
(6) The evidence of injuries on the palms or fingers of the appellants found at the time of their arrest which took place within 24 hours, or shortly thereafter, of the murder.
(7) The evidence of the presence of human bloodstains on the shirt of Bishnu Charan Saha and bloodstains on the wrapper of Bipin Behari Sarkar with burnt holes at places where the stains were found.
(8) The cash memoes with the signatures of the appellant Bishnu Charan Saha.
(9) In the opinion of the doctor the nature of the injuries on Malchand showed that probably he was overpowered by someone first and then another person pressed the weapon against his neck.
The matter for consideration is whether the circumstantial evidence, as stated above, is sufficient to prove 1331 that the appellants had participated in the murder of Malchand.
Two findings of the High Court may be stated at, this stage before the circumstantial evidence is referred to.
One concerned the cash memoes signed by Bishnu Charan Saha and the other concerned the colour of the wrapper worn by Bipin Behari Sarkar when he was seen by Kali Mohan Sarkar, P. W. 7 going away from a place near the shop of Malchand after the murder.
The cash memoes bore the date 11 12 56 and not 18 12 56.
The High Court gave good reasons for holding that the date 11 12 56 was wrongly entered in these cash memoes after examining the account books of Malchand 's shop and the other circumstances in the case as well as the admission of Bishnu Charan Saha that on December 18, 1956, between 1 30 and 2 p. m. be had caused three cash memoes to be issued in the shop of Malchand.
We find ourselves in complete agreement with the findings of the High Court in this respect.
The wrapper worn by Bipin Behari Sarkar at the time he was seen by Kali Mohan Sarkar was described by the witness as blue in colour whereas, in fact, the recovered wrapper from the house of this appellant was green in colour.
The High Court thought and, in our opinion, rightly that what was in fact green in colour might have appeared to be blue to a witness when seen at night by him.
A mistake in describing the colour accurately in the circumstances of the present case did not materially affect the evidence that Bipin Behari Sarkar was wearing a wrapper at the time he was seen at a spot near Malchand 's shop after the murder.
Further reference to the wrapper will be made when we consider the case of this appellant.
Mohan Lal Sarma, P. W. 4 had stated that at about 8 p.m. on December 18, 1956, he had seen the appellants and Sanatan Das sitting in the latter 's shop.
Bishnu Charan Saha was the first to leave the shop.
10 or 15 minutes later, Bipin Behari Sarkar and Sanatan Das left after padlocking Sanatan 's shop.
The evidence of this witness had been fully accepted 169 169 1332 by the High Court.
Sudhir Ranjan De, P. W. 8 deposed that in the evening of December 18, 1956, at about 7 30 p.m. he had seen Bishnu Charan Saha passing in front of Gostha 's shop which was nearly opposite Malchand 's shop.
He had on his body a Sujni Chaddar.
4 or 5 minutes later, Bipin Behari Sarkar and Sanatan Das were seen going in the same direction.
The High Court believed the evidence of this witness.
It came to the conclusion that on the evidence of Mohan Lal Sarma and Sudhir Ranjan De it was established that at about 8 p.m. the appellants and Sanatan Das were moving towards Malchand 's shop.
There was no doubt some discrepancy about the timing but, as was pointed out by the High Court, the witnesses were giving the time approximately and did not purport to give the exact time.
Kumud Lal Saha, P. W. 2 deposed that at about 8 30 p.m. on December 18,1956, he saw the appellants and Sanatan sitting with Malchand in the latter 's shop.
Malchand was at that time placing cloth for their inspection.
The High Court referred to the various criticisms levelled against the testimony of this witness and after dealing with them came to the conclusion that the witness was a truthful witness and that his evi dence established that the appellants were at the shop of Malchand at about 8 30 p.m. and that Malchand was last seen alive with them.
The evidence of Khum Chand Bothers, P.W. 3 proved that at about 8 30 p.m. on the night of Malchand 's murder he had called out "Malchand " " Malchand ", but had received no reply.
Kali Mohan Sarkar, P. W. 7 proved that at about 8 p.m. on the night in question when he was going home he met the appellant Bipin Behari Sarkar who was going away hurriedly from the direction of the Bazar.
On some enquiry made by the witness this appellant stated that he had been pressed by a call of nature.
Thereafter, the appellant Bishnu Charan Saha was seen coming behind Bipin Behari Sarkar.
Bipin Behari Sarkar had on his person a blue coloured wrapper.
The spot at which he had met the appellant Bipin Behari Sarkar was at a distance of about 100 cubits to the south of the passage meant for sweepers 1333 of Malchand 's house.
He had heard Bishnu Charan Saha calling out " Hei, Hei " to Bipin Behari Sarkar .
The evidence of these witnesses, which had been accepted by the High Court, established that the appellants were seen going in the direction of Malchand 's shop.
Thereafter, they were seen with Malchand at his shop.
Subsequent to that, Bipin Behari Sarkar was seen going away hurriedly at a place not far from Malchand 's shop followed by Bishnu Charan Saha who was calling out to him " Hei, Hei ".
The last time that Malchand was seen alive was in the company of the appellants.
The existence of the cash memoes, which were stained with human blood, with the signatures of Bishnu Charan Saha clearly established that at least Bishnu Cliaran Saha must have been present at the time of the murder because the cash memoes were being made out for him and they were stained with human blood which shows that Malchand was murdered while he was handling the cash memoes.
It had been further proved that Bishnu Charan Saha had on him certain injuries of which one was an incised injury.
The evidence of the doctor was that this injury could have been caused by the same instrument with which the neck injury of Malchand had been caused.
It had been further established that the shirt of Bishinu Charan Saha was stained with human blood.
The explanation offered by Bishnu Charan Saba for the injuries on his person was not accepted by the High Court and, in our opinion, rightly.
Bishnu Charan Saha had stated to the doctor at the time of his examination that injury No. 1 was caused as the result of contact with a grass cutting dao and injuries Nos. 2 and 3 by having drawn his hand over a rough piece of wood, but to the doctor this explanation was unacceptable inasmuch as this appellant was not a left handed person a fact which appeared clear from his formation and development.
When examined under section 342 of the Code of Criminal Procedure Bishnu Charan Saha told the Court that 2 days prior to his examination by the doctor lie had been cutting straw for his cattle with his left hand when his daughter aged about 1334 4 came up from behind and pushed him which resulted in the injury to his finger by its contact with the dao and that he had also received injuries on the back of his finger by striking it against a piece of wood.
So far as the shirt stained with human blood, which was found on his person at the time of his arrest, was concerned, Bishnu Charan Saha seriously disputed the identity of the shirt.
The identity of the shirt, however, had been clearly established.
His explanation to the Court was that some of the stains had been caused by betel spit and that one or two might have been caused by some drops of blood falling on the shirt at the time he had sustained his injuries.
This explanation was also not accepted by the High Court and, we think, rightly.
The evidence therefore established that so far as Bishnu Charan Saha was concerned he was seen in the company of Bipin Behari Sarkar and Sanatan Das near about 8 p. m.
He was seen shortly thereafter, as were the other two, going in a direction which was towards the shop of Malchand.
He was seen along with the other two persons at the shop of Malchand at about 8 30 p.m.
Thereafter, he was seen not far from the shop of Malchand going in the same direction as Bipin Behari Sarkar and calling out to him.
The cash memoes at Malchand 's shop had been signed by him.
He had injuries on his person consistent with their having been caused while the murder of the deceased took place.
The shirt that he was wearing at the time of his arrest was stained with human blood for which he gave no reasonable explanation.
In our opinion, the sum total of the evidence against Bishnu Charan Saha established beyond any reasonable doubt that he had participated in the murder of Malchand.
Coming now to the case of Bipin Behari Sarkar the evidence against him is the same as against Bishnu Charan Saha about the movements towards the shop of Malchand, presence at the shop of Malchand and being seen going away at a place near the shop of Malchand and the existence of injuries on his person.
In addition there was the evidence that a wrapper was seized the next morning after his arrest with marks of 1335 burning round which there were traces of blood.
Unlike the case of Bishnu Charan Saba no signatures of his were found on the cash memoes.
It is a matter for consideration whether in the case of this appellant ' any reasonable doubt could arise as to his guilt.
It was urged that mere movements towards the shop of Malchand, his presence at the shop of Malchand and his being seen going away at a place near the shop of Malchand would not be sufficient circumstantial evidence to convict him.
So far as the injuries were concerned the doctor had admitted that they could have been caused by a split bamboo.
The doctor had at no time stated that they could have been caused by the same weapon which caused injuries to the neck of Malchand.
The existence of the injuries, therefore, was no additional incriminating circumstance from which any conclusion could be drawn against this appellant.
So far as the wrapper was concerned, there was no evidence that the burnt marks found on it were not there before December 18, 1956.
Although blood stains had been found on this wrapper it had not been established that they were human blood stains.
The wrapper was also, therefore, n0 additional incriminating circumstance against this appellant.
It is, however, to be remembered that this appellant was with Bishnu Charan Saha and that Malchand was last seen alive in the company of the appellants.
The murder of Malchand had already taken place when this appellant followed by Bishnu Charan Saha was seen going away hurriedly at a spot near the shop of Malchand and Bishnu Charan Saha was calling out " Hei, Hei " to him.
It is remarkable that this appellant was seen not only at the shop of Malchand but near that shop after he bad been murdered and that he was found to have injuries oil his person when he was arrested at 10 30 p.m. on December 19, 1956.
It would be a remarkable coincidence that both he and Bishnu Charan Saha should have injuries on their persons so shortly after the murder.
Bipin Behari Sarkar denied ownership of the wrapper.
His explanation was not that the burnt marks on the wrapper were there before December 18.
1336 This wrapper had blood stains.
They were too small in quantity to enable a Serologist to determine their origin, but it is remarkable that wherever the bloodstains were found on the wrapper an attempt had been made to burn out those marks.
Unfortunately, for the appellant, his attempt to burn out the bloodstains on the wrapper was not entirely successful.
This was in our opinion, an incriminating circumstance against this appellant.
The circumstantial evidence taken as a whole leaves no room for a reasonable doubt in our minds about the guilt of this appellant.
In our opinion, the High Court rightly found the appellants guilty under section 302/34 of the Indian Penal Code.
It could not be said that the sentence of death for a murder of the kind proved in this case was unduly severe.
The appeals are accordingly dismissed.
Appeals dismissed.

Output:
The two appellants and one other person were accused of committing a murder.
The second appellant made a confession before a Magistrate.
The police submitted a charge sheet against the three accused.
Thereafter the prosecution made a prayer to the sub divisional Magistrate that the second appellant may be tendered a pardon under section 337, Code of Criminal Procedure and the Magistrate recorded an order to the effect that he was tendered a pardon under section 337 on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge.
Before the Committing Magistrate the second appellant stated that the confession made by him was not voluntary and that he did not wish to become an approver.
The appellants were committed to the Court of Sessions and were convicted of the murder and were sentenced to death.
On appeal the High Court confirmed the conviction and sentence.
It was contended by the appellants that the second appellant having been tendered a pardon the joint trial of the appellants was vitiated as it was barred by the proviso to section 339(I) Of the Code.
Held, that there was no effective pardon under section 337 Of the Code and consequently the provisions of section 339 did not come into operation in this case.
A mere tender of pardon does not attract the provisions of section 339 ; there must be an acceptance of the pardon by the accomplice and he must be examined as a witness.
It is only after this that section 339 comes into play if the accomplice who has accepted the pardon fails to comply with the conditions on which the pardon was tendered.
In the present case though a tender of pardon was made to the second appellant there was no proof that it was accepted by him and as such it could not be said that there was in existence an effective pardon under section 337.


Input:
Appeal No. 355 of 1981.
From the Judgment and Order dated 27.10.1980 of the Delhi High Court in S.A.O. No. 241 of 1979.
G.L. Sanghi and S.L. Aneja for the Appellant.
K. Parasaran, Gopal Subramanium, Arvind Verma and Mukul Mudgal for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
For the view we take in this appeal by special leave and leaning as we would be on our discretion ary power under Article 136 of the Constitution, no elabo rate details are necessary of the facts involved therein and for its disposal by a brief order.
The appellant, Subhash Mehta, more than two decades ago obtained a residential lease of the first floor in premises bearing No. D 32, South Extension, Part II, New Delhi from Dr. S.P. Choudhary (now dead) the landlord who was himself residing on the ground floor thereof.
The settled rent was Rs.800 per mensem.
The landlord on 508 November 27, 1972 served a notice on the tenant demanding arrears of rent from September 1, 1972 onwards.
The demand having not been met he instituted an eviction petition before the Rent Controller, Delhi on March 13, 1973 on grounds of non payment of rent as also on other grounds.
On June 1, 1973 the Rent Controller passed an order under section 15(1) of the Delhi Rent Control Act, 1958 (hereinaf ter referred to as the 'Act ') directing the tenant to depos it arrears of rent within one month from the date of the order and further to pay month to month rent by the 15th of every calendar month.
The appellant, within the period allowed, deposited Rs. 10,000 to cover arrears of rent as well as to cover future rent uptill September 15, 1973.
Thereafter neither on October 15, 1973 nor on November 15, 1973, did the tenant deposit monthly rent as required by the aforesaid order of the Rent Controller.
He was alleged to have defaulted on that count.
Yet on December 1, 1973 he made a deposit of Rs.2,800 partly covering the default of the previous period.
The landlord took objection to the late deposit and after much debate the Rent Controller struck off the defence of the appellant.
The Rent Appellate Tribunal, Delhi set aside the order of the Rent Controller striking out the defence of the tenant on appeal by the tenant and remitted the case back to the Rent Controller for further proceedings.
Second appeal to the High Court of Delhi by the landlord was dismissed.
The Additional Rent Controller who became seisin of the matter on remand went into all the grounds as originally raised in the eviction petition; the other grounds, besides the tenant being in arrears of rent, being sub letting, conversion of the user of premises from residential to commercial, the tenant having acquired vacant possession of a residential house in M 18, Green Park Extension, New Delhi and for bona fide requirement of the daughter of the land lord who being a student of M.B.B.S, was expected to set up medical practice.
The Additional Rent Controller by his order dated December 12, 1978 ordered eviction of the tenant on the sole ground of non payment of future rent in terms of his order passed under section 15(1) of the Act, granting the tenant two months ' time to vacate the premises.
The other grounds of eviction were rejected.
The tenant 's appeal before the Rent Control Tribunal centered round the sole question of delayed payment of arrears of rent and of the scope and rigour of section 15(1) of the Act.
In assailing the order of the Additional Rent Controller, reliance was placed by the tenant on a judgment of this Court in Hem Chand vs Delhi Cloth Mills, to contend that even if the tenant had not strictly complied 509 the terms of the order made under section 15(1) of the Act in as much as depositing future rent late it was not impera tive in all events of the defence of the tenant being struck off and a fair amount of discretion had been left with the Rent Controller under section 15(7) which should have been exercised in his favour and before his defence was to be struck off the Rent Controller had to come to the view that his conduct was wilful or contumacious in disobeying the order made under section 15(1) of the Act, and which in the instant case he had failed to record.
Even being aware of these principles the Rent Control Tribunal on August 18, 1979 dismissed the appeal observing that no infirmity in the order of the Additional Rent Controller could be found.
On the same lines and reasoning second appeal of the tenant was dismissed by the High Court of Delhi on October 27, 1980 keeping maintained the ejectment of the tenant for non compliance of the order made under section 15(1) of the Act.
This has led to the instant appeal on the grant of special leave.
The landlord Dr. S.P. Choudhary as hinted earlier died in the year 1981 during the pendency of this appeal leaving behind a widow and a daughter; the latter now being a divor cee rearing a minor son.
This is the uncontroversial asser tion of the successor landlords.
The eviction order in their favour has been assailed by Mr. Sanghi, learned counsel for the tenant appellant on the strength of the decision of this Court in Ram Murti vs Bhola Nath and Another, stressing the point that the words 'as required by section 15(1) of the Act ' occurring in sub section (7) of section 15 must be construed in a reasonable manner and that the said provision confers a wide discretion on the Rent Controller not to strike off the defence of the tenant which indicates that defences could still be open to the tenant under the Act to claim plain protection under section 14(2) thereof.
In that case this Court ruled that the Rent Con troller necessarily by legal implication has power to con done the default on the part of the tenant for deposit of future rent or to extend time for such deposit.
On the said plea advanced on behalf of the tenant the result sought to be achieved is that the delay in making deposit of future rent be excused saving him from eviction.
The tenant had before the Rent Controller while explaining cause for late deposit of future rent put up the plea that the counsel present at the time of the passing of the order under sec tion 15(1) in place of his engaged counsel had only intimat ed to him about the payment of arrears of rent and not about the deposit of future rent by the 15th of every calendar month.
On that basis the order of eviction was sought to be upset by accepting such plea of the tenant.
On the other hand, learned counsel for the successor landlords 510 tactically took shelter behind the other grounds of eviction which were rejected by the Additional Rent Controller and besides raising them vehemently before us projected that in the facts and circumstances of this case and the subsequent events which have come by, this Court should refrain from interfering in the matter under Article 136 of the Constitu tion.
On such stance adopted it is plain that the ground on which eviction has been maintained before the Tribunal and the High Court concurrently the successor landlords seeming ly had an uphill task to have it maintained in view of Ram Murti 's case (supra).
Yet, without conceding on that score other grounds of eviction were pressed despite opposition by learned counsel for the tenant that these grounds were neither pressed in the court of the Rent Control Tribunal nor in the High Court while supporting the order of eviction and no cross appeals in these two forums were filed by the landlord, which if serious he legitimately could.
It is true that the Tribunal and the High Court are both silent on the point.
The order of the Additional Rent Controller suggests that the tenant is an industrialist.
His finding is that within the years 1971 to 1974 he was active in incorporating three companies and that he was a proprietor of M/s. Globe Marketing and Management Limited, a Director of M/s. Sports Equipment Private Limited and again a Director in M/s. Indian Consultants Private Limited.
His further finding is that while living in the demised premises he had floated these companies and later taken in other directors.
In so far as the latter two companies were concerned, this act of the tenant was not sub letting, assigning or parting with the possession of the disputed premises as held by the Rent Controller.
Sequelly the finding further recorded was that there was no misuser of the disputed premises inasmuch as the respective offices run by the companies therein had caused no damage to the premises.
With regard to the fact that the tenant had acquired another premises at M 18, Green Park Extension, New Delhi the Rent Controller took the view that factually the father of the tenant had acquired the same and the tenant could not live in that premises with his father as a matter of right.
Lastly with regard to the bona fide requirement of the landlord the Rent Controller took the view that the landlord 's family comprising of himself, his wife and daughter had sufficient accommodation in their possession even though his daughter had to estab lish practice as a doctor.
The additional plea of the suc cessor landlords as given out in their counter affidavits now is that the telephone connections standing in the name of afore referred three companies, with which the tenant is intimately connected, are at the demised premises as per the Mahanagar Telephone Nigam Directory 511 and that the tenant is a rich and well:connected industrial ist deserving no protection of the rent laws, misplacedly sought by him.
We have pondered over the matter and have weighed every aspect of the case.
The facts and circumstances now emerging are that the successor landlords are two ladies; one a widow and the other a divorcee.
If we were to allow the appeal by releasing and relaxing the rigour of the order of eviction relying on Ram Murti 's case, we unhesitatingly then would take the step to have the matter remitted back at an appro priate stage where the successor landlords could convenient ly have the other grounds of eviction adjudicated upon and overrule the objection that the landlord could have filed an appeal before the Rent Appellate Tribunal and the High Court seeking eviction of the tenant on grounds other than the ground on which the eviction was ordered.
This course, however, appears to us to be not only unfair and unreasona ble in the facts and circumstances of this case but time consuming and inequitous as well to the successor landlords who, as said before, are two ladies brought in the fray by operation of law.
Now since almost eighteen years have passed by, we feel there should be an end to the dispute and this course is in the interest of all concerned as well as the State.
Instead of putting the parties to a fresh bout of litigation we would in these circumstances prefer and opt to let remain the order of eviction sustained however on slen der ground, and consequently order dismissal of this appeal but without any order as to costs.
Still we do not wish to dislocate the appellant abruptly, concerned as we are for him also, and for that purpose grant him sufficient time ending on March 31, 1991 for vacating the premises subject to his giving an undertaking before this Court for vacation on or before the said date but on payment of rent to the landlords as has fallen due for the period uptill and by March 31, 1990 and future monthly rent by the tenth of each calendar month.
Let the undertaking be filed by March 10, 1990 in the Registry in the usual manner.
P.S.S. Appeal dismissed.

Output:
In the proceedings for eviction under the Delhi Rent Control Act, 1958 for arrears of rent, subletting, conver sion of user from residential to commercial and bona fide need, the appellant tenant committed breach of the Control ler 's directions under section 15(1) of the Act in the matter of payment of monthly rent.
Consequently, his defence was struck off and the suit decreed on the sole ground of de layed payment of future rent.
All the other grounds were rejected.
The tenant assailed the order before the Rent Control Tribunal relying on Hem Chand vs Delhi Cloth Mills, on the rigour of section 15(1) of the Act.
The Tribunal found that there was no infirmity in the order.
The High Court maintained the ejectment.
In the appeal by special leave, it was contended for the appellant on the strength of the decision in Ram Murti vs Bhola Nath, that section 15(7) of the Act con fers a discretion on the Rent Controller not to strike off the defence of the tenant and consequently the delay by him in making deposit of future rent should have been excused, and that since no cross appeals were filed by the landlord against the rejection of other grounds in the court of the Rent Control Tribunal or in the High Court nor those grounds were pressed in these two forums by the landlord, those grounds were no more available to him.
The landlord died during the pendency of the appeal and his widow and divorced daughter respondent succeeded to him as landlords.
It was contended for them that the tenant was a rich and well connected industrialist deserving no protection of the rent laws.
Dismissing the appeal, the Court, HELD: 1.
If the appeals were to be allowed by releasing and relaxing the rigour of the order of eviction, the matter then would have to be 507 remitted back at an appropriate stage where the successor landlords could conveniently have the other grounds of eviction adjudicated upon, by overruling the objection that the landlord could have filed an appeal before the Rent Control Tribunal and the High Court seeking eviction of the tenant on grounds other than the ground on which the evic tion was ordered.
[51 lB C] 2.
The successor landlords are two ladies, one a widow and the other a divorcee, brought in the fray by operation of law.
Remitting the case back would not only be unfair and unreasonable but time consuming and inequitous as well to them.
Since almost eighteen years have passed by there should be an end to the dispute.
This course is in the interest of all concerned as well as the State.
Instead of putting the parties to a fresh bout of litigation the order of eviction should, therefore, be sustained. ]51 IC E] 3.
The appellant is granted time ending on March 31, 1991 for vacating the premises subject to his giving an undertaking for vacation on or before the said date and payment of rent to the landlords.
[511E F]