Judgment R.K.Choudhary, J. 1. The writ application in M. J. C. 945 of 1956 and the two criminal references, namely, Criminal Reference No. 129 of 1956 and Criminal Reference No. 76 of 1957, have been heard together with the consent of the parties as they all relate to the same concern and a common question of law is involved in all of them. This judgment will, therefore, govern them all. 2. The facts giving rise to the above cases, stated shortly, are these : The Bata Shoe Company, hereinafter to be referred to as the company, is a private limited company having) its registered office at 30 Theatre Road, Calcutta 16. It owns various factories at different places, one of them being at Digha in Patna. Mr. J. D. Mackenzie is at present undisputedly the manager of the factory at Digha. He is petitioner No. 1 in the writ application and petitioner No. 2 is the above factory. Under Rule 4 of the Bihar Factories Rules, 1950 , hereinafter to be referred to as the rules, framed under Sec. 6 of the Factories Act, 1948 (Act No. 63 of 1948), hereinafter to be referred to as the Act, the occupier of a factory is required to submit to the Chief Inspector of Factories an application for registration of the factory and grant or renewal of a licence. Originally, Mr. K.R. Vytopil was the manager of the above factory and he, claiming also to be an occupier of the same, applied for registration of the factory and grant of a licence, and the above factory was duly registered bearing registration No. 78/PT and a licence was duly granted by the Chief Inspector of Factories, Bihar, with the approval of the Bihar Government as required by law in his name valid up to 30th of December, 1950. The licence was renewed from time to time on applications being made by the said Mr. K. R. Vytopil for the years ending on 31-12-1951, 31-12- 1952, 31-12-1953, and 31-12-1954. The petitioner No. 1 assumed charge of the above factory on 1-4-1955, and claims to have been the manager as well as the occupier of the factory since then. On 20-30-1955, he describing himself as the occupier of the factory made an application for the renewal of the licence and it was issued in his name valid till 31-12-1956. The petitioner No. 1 assumed charge of the above factory on 1-4-1955, and claims to have been the manager as well as the occupier of the factory since then. On 20-30-1955, he describing himself as the occupier of the factory made an application for the renewal of the licence and it was issued in his name valid till 31-12-1956. On 26-10-1956, petitioner No. 1 again describing himself as an cccupier of the factory made an application for the renewal of the licence accompanied by a notice o£ occupation signed by him both as occupier and manager. The Chief Inspector of Factories, Bihar, Ranchi, opposite party No. 1 in the writ application, by his letter No. 13292, dated 19-11-1956, intimated to the Managing; Director of the company his decision that petitioner No. 1 was not the occupier of the factory in question and required an application for renewal of the licence and the notice of occupation to be filed by a Director of the company. On 22-11-1956, the Chief Secretary of the Company replied to the opposite party No. 1 that the proper person to apply for renewal of a licence was petitioner No. 1 who is the occupier of the factory and that the company was not the occupier. Thereafter, on 6-12-1956, by letter No. 8823, opposite party No. 1 required the Directors of the company to submit an application for the renewal of the licence and the notice of occupation within 15 days and threatened to direct the Inspector of Factories to institute a case against the occupier under the penal section of the Act. The position, therefore, is that the licence in question has not yet been renewed and no action has been taken in this regard on the application made for the renewal of the same by petitioner No. 1 as an occupier. The two petitioners have, therefore, made the writ application under Art. 226 of the Constitution of India for issue of a writ in the nature of certiorari quashing the orders communicated in the letters issued by opposite party No. 1 on 19-11-1956, marked as annexure "D" to the application and on 6-12-1956, marked as annexure "F" to the application and for issue of a writ in the nature of mandamus commanding opposite party No. 1 to renew the licence in the name of petitioner No. 1. There is also a prayer for issuing a writ in the nature of mandamus prohibiting the opposite parties from taking or causing to take steps for prosecution of petitioner No. 1 or of any of the Directors or officers of petitioner No. 2, but it has not been pressed. The opposite parties are : 1. the Chief Inspector of Factories, Bihar, Ranchi, 2. the Inspector of Factories, Patna Circle, Patna, and 3. the State of Bihar. Cause has been shown by the opposite parties by filing a counter affidavit sworn by the Inspector of Factories, Labour Department, Patna Circle, Patna. 3. In January, 1956, Sri Badriram, Inspector of Factories, inspected the Digha Factory and made a written report alleging non-compliance with the provisions of law relating to various matters. On 17-4-1956, three complaints were filed by him against Mr. J.D. Mackenzie, Manager of Factory, and Mr, J.F. Bartos, the Managing Director of the Company. Cognizance was taken, and the three cases were transferred to the file of Mr. Nazir Ahmed, Magistrate, First Class. The numbers of the above cases are : (1) case No.151(2)/56 29 Tr.,(2) case No.152(2)/56 130. Tr.,and (3) case No.153(2)/56. 131. Tr. Mr. Mackenzie appeared in all these cases and was released on P. R. bond. But Mr. Bartos filed three criminal revisions, being criminal revision Nos. 147, 148 and 149 of 1956, before the Sessions Judge of Patna on 29-6-1956, for making a reference to the High Court for quashing the proceedings as against him. The learned Sessions Judge of Patna allowed the above criminal revisions and has made recommendation to this Court that the three criminal trials against Mr. Bartos be quashed. This is criminal reference No. 129 of 1956. In April, 1956, the said Inspector of Factories, Sri Badriram, again inspected the Digha Factory and made a report alleging contravention of various sections of the Factories Act with regard to the over-time working of some of the workers. He, therefore, filed three complaints on 28-5-1956, before the Sub-Divisional Officer of Patna against Mr. J.D. Mackenzie, the manager of the Factory, and Mr. J.F. Bartos, the Managing Director of the Company. Cognizance was taken of the three cases and they were transferred to the tile of Mr. B. N. Tewari, Magistrate, First Class. The numbers of these cases are: (1) 29(2)/56, -------- 70 Tr. (2)35(2)/56 and (3) 36(2)/56, Mr.Mackenzie ------- ------- 76 Tr. 77 Tr. J.F. Bartos, the Managing Director of the Company. Cognizance was taken of the three cases and they were transferred to the tile of Mr. B. N. Tewari, Magistrate, First Class. The numbers of these cases are: (1) 29(2)/56, -------- 70 Tr. (2)35(2)/56 and (3) 36(2)/56, Mr.Mackenzie ------- ------- 76 Tr. 77 Tr. appeared in all these cases and was released on furnishing P. R. bond. Mr. Bartos, however, again moved three revision applications before the Sessions Judge of Patna in March, 1957, for making a reference to the High Court for quashing the trials as against him. They are criminal revision Nos. 43, 44 and 45 of 1957. The learned First Additional Sessions Judge allowed these revision applications on 6-4-1957, and made a recommendation to this Court for quashing of the trials against Mr. Bartos in the three cases. This is criminal reference No. 76 of 1957. 4. I will, first, take up the writ application. Sec. 6 of the Act empowers the State Government to make rules requiring, amongst others, the registration and licensing of factories or any class or description of factories, and prescribing the fees payable on such registration and licensing and for the renewal of the licences. Rule 4 of the Rules so made provides that the occupier of every factory shall submit to the Chief Inspector an application in Form No. 2 for the registration of the factory and grant of a licence. It further provides that the application shall be accompanied by the notice of occupation in Form No. 3 in triplicate, prescribed under Section 7 of the Act. Rule 5 says that a licence for a factory shall be granted by the Chief Inspector with the approval of State Government on payment of the prescribed fees and that every licence granted or renewed under this Chapter shall remain in force up to 31st of December of the year for which the licence is granted or renewed. Rule 7 lays down that a licence may be renewed by the Chief Inspector, with the approval of State Government and that every application for the renewal of a licence shall be accompanied by the notice of occupation in Form No. 3, in triplicate. Rule 7 lays down that a licence may be renewed by the Chief Inspector, with the approval of State Government and that every application for the renewal of a licence shall be accompanied by the notice of occupation in Form No. 3, in triplicate. Rule 11 (3) states that it shall be the obligation of the occupier or the licensee, as the case may be, to submit to the Chief Inspector an application for registration and grant of licence or for renewal, transfer or amendment ot the licence as may be necessary within the prescribed time. In the present case the application for the renewal of the licence has been made in Form No. 2 by Mr. J. D. Mackenzie, described as being the occupier of the factory. Notice of occupation has also been submitted in triplicate in Form No. 3 and it has been signed by Mr. J. D. Mackenzie, both as Manager and occupier. 5. Mr. Das appearing for the petitioners has contended that on such application being made, the petitioners were entitled to have the licence renewed, and it was beyond the power of the Chief Inspector to question the status of Mr. Mackenzie as an occupier. His contention is that the Chief Inspector is a creature of the statute and no provision has been made throughout the Act or the rules made thereunder giving him any power to question and decide as to the status of an applicant as an occupier, and the exercise of such a power, therefore, has been impliedly prohibited. I am unable to agree with this contention. The Chief Inspector of Factories has, under the Act and the rules framed thereunder, been given power to grant licence and to renew the same if certain conditions are fulfilled. Before granting or renewing any licence he has, therefore, to examine and determine whether the requirements of law have been complied with or not. One of the conditions required for grant or renewal of the licence is that the application must be made by an occupier and the notice of occupation must be signed by him. Before granting or renewing any licence he has, therefore, to examine and determine whether the requirements of law have been complied with or not. One of the conditions required for grant or renewal of the licence is that the application must be made by an occupier and the notice of occupation must be signed by him. It is, therefore, within his jurisdiction to examine if this condition has been complied with or not, and, in order to come to a decision either way in this regard, he has necessarily to decide whether the application has been made by the occupier and the notice of occupation has been signed by him. In order to come to any decision on this point, he is not only to look to the application and the notice of occupation stating one to be an occupier and to accept it, but, on the other hand, he is perfectly entitled to examine and decide whether the person who claims to be an occupier is, on the facts and circumstances of a particular case, really an occupier within the meaning of the law. Even though no explicit provision has been made in the Act or the rules framed thereunder in this regard, the power lies in the Chief Inspector by implication and as inherent to the exercise of his power in granting or refusing a licence or a renewal of the same. The status of occupier has a very great importance in the Act and Section 92 of the Act makes an occupier criminally liable for contravention of its provisions. It will, therefore be absurd to think that the Chief Inspector of Factories is bound to recognise this status merely on an application being made by any one describing himself as an occupier without holding any enquiry as to the merit of his claim of being an occupier. I am, therefore, unable to accept the contention that the Chief Inspector has no power to decide the question whether or not the applicant is an occupier within the meaning of the Act. The view that I have taken gains support from a Bench decision of the Bombay High Court in Emperor V/s. Taylor, 10 Bom LR 38 (A). Sec.14 of the Indian Factories Act, 1881, required that the occupier of the factory shall sign the notice prescribed within one month after his occupation had commenced. The view that I have taken gains support from a Bench decision of the Bombay High Court in Emperor V/s. Taylor, 10 Bom LR 38 (A). Sec.14 of the Indian Factories Act, 1881, required that the occupier of the factory shall sign the notice prescribed within one month after his occupation had commenced. The first question raised in that case was : "Does the person who sends a notice under Sec.14 prima facie become the occupier of a factory, and does the burden of proving that he is not one, lie on him?" Chandavarkar, J., referring to that question held as follows "As to the first question, the substance and import of Sec.14 merely are that the occupier of a factory shall send the notice prescribed within one month after his occupation has commenced. If any individual sends such a notice, that is evidence of a representation by him that he is the occupier; but there is nothing in the Act which makes it necessarily conclusive evidence. The Court may treat the evidence of the notice as sufficient to discharge the onus of proof lying on the prosecution at the outset and to shift the burden on to the person who gave the notice. The Court is of course not bound to treat it as such. Whether it should so treat it or not must depend on the circumstances of each case." This contention of Mr. Das, therefore, fails. 6. The next contention put forward by Mr. Das is that petitioner No. 1 is an occupier within the meaning of the Act and the rules framed thereunder. Section 2 (n) of the Act defines "occupier" of a factory to mean the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory. Reading this section as it is, it is manifest that a distinction has been made between the actual and immediate control and the ultimate control. One may be in actual and immediate control over the affairs of a factory, but the ultimate control over the same may not be in him. In that case, he cannot be an occupier of the factory within the meaning of this section. One may be in actual and immediate control over the affairs of a factory, but the ultimate control over the same may not be in him. In that case, he cannot be an occupier of the factory within the meaning of this section. In order, therefore, to determine whether a person is an occupier of a factory or not, the nature of his control over the affairs of the factory has to be examined and considered, and, in my opinion, the question as to who is an occupier is a mixed question of law and fact. As held in 10 Bom LR 38 (A), referred to above, the answer to the question must depend upon the circumstances in each case and the question cannot be treated as one purely of law. What is an occupation is a question of fact in each case, to be determined with reference to some well-known principles of law, and the question who is the occupier of a factory must depend, among others, upon these circumstances, namely, who alone has the right of using the factory for the purposes for which it is constructed and worked; who has the right of regulating and controlling it; whose is the predominant possession of and general superintendence over it. It has also been held that the Manager may become an occupier if he has these rights; but if he is merely a servant or agent of the owner, then he is not an occupier. In Emperor V/s. Jamshedji Naserwanji, AIR 1931 Bom 308 (B), the owner of a printing press was charged of an offence for having employed a person for more than 11 hours in the day and more than 60 hours in a week contrary to the provisions of the Factories Act (12; of 1911). The case of the owner was that he was the owner of the press, but he knew nothing about the management over the same and the whole conduct of the press was left to the manager. The manager went into the witness-box and admitted that he was the manager of the press and did everything in connection with the press. In deciding that question, Beaumont, C. J., made an observation with regard to the meaning of the term "occupier" as follows : "... ... ... occupier in general means a person who occupies the factory either by himself or his agent. In deciding that question, Beaumont, C. J., made an observation with regard to the meaning of the term "occupier" as follows : "... ... ... occupier in general means a person who occupies the factory either by himself or his agent. He may be an owner, he may be a lessee or even a mere licensee, but he must, I think, have the right to occupy the property and dictate how it is to be managed." and, then referring to the case under consideration, the learned Chief Justice said that on the facts of that case the owner of the press must be held to be the occupier and that the manager who in fact controlled it was his servant and the owner was, therefore, liable as an occupier. In Emperor V/s. Narayan Vithoba, AIR 1933 Nag 100 (C), it was held that the word "occupier" denotes a person who is either a proprietor or otherwise entitled to be in possession of the factory and controls its working. He may or may not actually occupy the building and even if he carries on the work through an agent, he does not cease to be the occupier. He cannot, therefore, be anyone who is a mere servant charged with specific duties either in regard to the contrcl of the machinery, workmen or office. In Public Prosecutor V/s. Papanna, AIR 1942 Mad 347 (1) (D), four persons, who were numbered as accused 1 to 4, were charged under Sec. 60, Factories Act, as the occupiers of a factory, and accused 5 as the manager of that factory, with contravening the provisions of the Act by not fencing in a certain machine. On behalf of the first four accused persons it was contended that the affairs of the factory were entrusted to the manager, accused 5, and they, therefore, were not liable for the offence. It was held that they, having the ultimate control of the factory, were liable to punishment and the fact that they were ignorant persons and that they trusted to the knowledge and good sense of their manager, might be a reason for awarding them a smaller punishment than the manager. Ram Chandra Sharma V/s. State, AIR 1956 All 4 (E), is a case under the present Act. In that case the petitioners were partners of a firm which had workshop in Agra. Ram Chandra Sharma V/s. State, AIR 1956 All 4 (E), is a case under the present Act. In that case the petitioners were partners of a firm which had workshop in Agra. The Inspector of Factories found certain breach of the rules and reported the matter to the Chief Inspector of Factories, and a complaint was lodged against them. They were ultimately convicted under Section 92 of the Act and they, therefore, filed a revision application in the High Court. It was contended on their behalf in the High Court that only one of them, namely, Brijnandan Lal, was the occupier of the factory as he alone had the control over the factory and not the rest. The contention was overruled and it was held that all the partners were individually liable. 7. Reliance has been placed by Mr. Das on the case of Meigh V/s. Wickenden, 1942-2 KB 160 (F). In that case a debenture holder, acting under a debenture, appointed the appellant receiver and manager of a company which carried on business in a factory within the meaning of the Factories Act, 1937, to manage and carry on the business of the company, to take possession of, get in and collect the property and assets, and to sell, convert into money and realise the same, and to convey the property sold in the name and on behalf of the company. The debenture further provided : any receiver so appointed shall, so far as the law allows, be deemed to be the agent of the company for all purposes and the holder of this debenture shall not be under any liability for his remuneration or otherwise. After the appellant, as receiver and manager, entered on the factory premises, the business continued to be controlled by the directors of the company by day and by night, and the appellant, being an accountant with no knowledge of machine or technical factory affairs, attended the premises infrequently and conducted his receivership mainly by a clerk who attended at the offices of the company only during normal business hours in the daytime. An employee having been injured in consequence of a guard not being provided for a milling machine, the appellant was held liable for a contravention of a regulation made under the Act directing the provision of guards for such machines, as being the occupier of the factory within the meaning of the Factories Act. This case, in my opinion, instead of being of any assistance to the petitioners, supports the contention of the opposite party. As already observed, after the appellant entered into on the factory premises, the actual control over the business continued to be with the directors of the company and even then the appellant was held liable for the contravention. Reliance has also been placed on behalf of the petitioners on the statement of law as given in. Halsburys Laws of England, third edition, volume 17, page 59, paragraph 103, according to which the person who runs the factory, who regulates and controls the work that is done there and who is responsible for the fulfilment of the provisions of the Acts within it is the occupier. On a careful consideration of the provisions in the Act and the rules as well as the authorities referred to above, my concluded opinion is that in order to be an occupier of a factory, it is not essential that he should have actually physical and immediate control over its affairs, and even a remote but ultimate control clothes him with that status. 8. In the present case the petitioners have stated in the writ application that petitioner No. 1 is the occupier of the factory in question and though the directors of the company are vested with the control over the affairs of the company and its business, but, so far as the affairs of the factory for the purposes of the Act are concerned, the ultimate control is entrusted to petitioner No. 1. The opposite parties in their counter affidavit have denied the above statements and have said that petitioner No. 1 assumed charge of the factory as its manager and not as occupier within the meaning of the Act and that he has not got the ultimate control over the affairs of the factory. The opposite parties in their counter affidavit have denied the above statements and have said that petitioner No. 1 assumed charge of the factory as its manager and not as occupier within the meaning of the Act and that he has not got the ultimate control over the affairs of the factory. The petitioners have not disclosed in their petition or placed any material on the record to show as to how the ultimate control over the affairs of the factory was entrusted to petitioner No. 1 and what were the powers possessed by him in regard to the affairs of the factory. A vague statement alleging that he is the occupier of the factory and the ultimate control has been entrusted to him is not enough. In the absence of any statement as regards the specific powers conferred on the petitioner No. 1 in regard to the affairs of the factory as well as in the absence of the material showing how the ultimate control was entrusted to him, it is not possible to hold in favour of the petitioners that petitioner No. 1 is the occupier within the meaning of the Factories Act. That being the position, there is nothing, wrong in the impugned orders and they, therefore, cannot be quashed. The petitioners are, therefore, not entitled to an issue of any writ either in the nature of certiorari or in the nature of mandamus and their application has to be rejected. 9. So far as the two criminal references are concerned, the only argument advanced by Mr. Das on behalf of Mr. Bartos, the petitioner, is that prosecution having been started against him as being the managing agent of the company is bad in law. The contention of Mr. Das is that the company being a private one, only the shareholders could be prosecuted for contravention of the provisions of law and not the managing agent. He also submitted that Mr. Bartos was not a share-holder. We, however, required the petitioner to make the above statement on affidavit on the next day of the hearing. But on that date he conceded that he could not file the affidavit as Mr. Bartos was a share-holder in the capacity of a trustee. The petitioner is, therefore, liable to be prosecuted as a share-holder and the prosecution against him as being a managing agent may amount to a mis-description. But on that date he conceded that he could not file the affidavit as Mr. Bartos was a share-holder in the capacity of a trustee. The petitioner is, therefore, liable to be prosecuted as a share-holder and the prosecution against him as being a managing agent may amount to a mis-description. That, however, cannot be fatal to the prosecution. In this view of the matter, there appears to be no merit in the contention raised by Mr. Das as against the prosecution of the petitioner. No other point has been raised. The two criminal references, therefore, have to be discharged. 10. The result, therefore, is that the writ application fails and is dismissed with costs. Hearing fee : Rs. 150. The two criminal references also fail and are discharged. V.Ramaswami, J. 11 I agree.