S. MOHAN. J. ( 1 ) THE facts leading to the Writ Appeal are shortly as follows ; premises known as 'hotel Shivaprasad', situated at Kundapur Town, belongs to a partnership firm consisting of the following partners : (1) V. K. Shetty; (2) B. Arunkumar Shetty ; (3) Arithkala S. Shetty ; (4) Vasanthamala R. Shetty ; and (5) Amrithkala S. Shetty. One P. M. Krishna Murthy Bhat was a lessee of this premises who was running a restaurant. O. S. No. 28/1978 was filed before the learned Civil Judge, Udipi, for his eviction. That ended in a decree in favour of the landlord. In execution of that decree in E. C. No. 14/1983 ultimately, possession was delivered to the landlord on 22-4-1983. ( 2 ) THEREAFTER the premises wasleased in favour of Smt. B. Rukmini K. Shetty (respondent herein) under lease deed dated 30-7-1983. She started a restaurant under the same name and style of Hotel Shivaprasad afresh. She obtained loan from the Bank for starting this restaurant with new furniture and utensils. She also obtained a fresh licence from the municipality which is required under the karnataka Municipalities Act for running restaurant. She recruited new employees. It may also 02 added that no one of the employees of the previous establishment was continued. ( 3 ) THE Regional Provident Fundcommissioner, held an enquiry under Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act 1952 (for short the Act), to determine whether the restaurant run by the respondent (Smt. B. Rukmini) would be entitled to infancy protection under Section 16 (1) (b) of the Act. He came to the conclusion that this was only continuation of the old establishment which had been covered by the Provisions of the Act with effect from 1-4-1985. Merely, because, there is a reduction of the number of employees which had fallen below 50, it cannot go out of the purview of the Act in view of section 1 (5) of the Act. Therefore, he concluded that the establishment run by respondent continued to be covered under the scheme. This order was passed on 6-7-1985. The validity of the order was challenged by the respondent before our learned brother Justice Doddakalegowda in W. P. No. 5511/1986. Therefore, he concluded that the establishment run by respondent continued to be covered under the scheme. This order was passed on 6-7-1985. The validity of the order was challenged by the respondent before our learned brother Justice Doddakalegowda in W. P. No. 5511/1986. ( 4 ) IT was contended on behalf of the first Appellant- Commissioner that, merely because there had been periodical lease of the same premises in favour of different persons, that does not mean that at every time a fresh lease commences and the lessee could claim infancy protection. Further, this is a case in which delivery of possession has taken place in favour of Smt. Rukmini K. Shetty even earlier. Lastly, the goodwill had also come to be purchased. Therefore, relying on a decision in Sayaji Mills Ltd. v regional Provident Fund Commissioner, (AIR 1985 SC323), it was urged that the claim for infancy protection must be rejected. The learned Single Judge, on a consideration of the entire matter, was of the view that the ruling in AIR 1985 SC 323 has no bearing. He was also of the view merely because the respondent has taken over possession even prior to the execution of the lease deed on 30-7-1983, it would b'3 of no consequence where a fresh commencement of business has taken place by a new lessee by purchasing new utensils etc. . Accordingly he quashed the order dated 6-7-1985 and made rule absolute. Thus the Writ appeal. ( 5 ) MR. Shylendrakumar, learned counsel for the appellants, would urge that in this case the old lease came to an end on 22-4-1983 and hardly within three months the wife of one of the partners becomes s Lessee; in her favour possession is delivered even before execution of the degree; the said business is continued under the same name and style of Hotel shivaprasad. Therefore this establishment is the continuation of old establishment and in this case Section 15 of the act would squarely apply. The reliance placed by the appellants on AIR 1985 SC 323 was fully justified. ( 6 ) MR. P. V. Shetty, appearing for the respondent, would counter these submissions contending that with reference to claim for infancy protection under section 1s{1) (b) of the Act, the fact in each case will have to be gone into. The reliance placed by the appellants on AIR 1985 SC 323 was fully justified. ( 6 ) MR. P. V. Shetty, appearing for the respondent, would counter these submissions contending that with reference to claim for infancy protection under section 1s{1) (b) of the Act, the fact in each case will have to be gone into. The whole object of the Act is to prevent every person claiming infancy protection but it cannot be contended that every time a now lease takes place that claim for infancy protection is well founded. On the contrary it has to bo seen whether it is a new establishment or merely a continuation of the old establishment. The facts here undisputedly prove that the establishment run by Smt. Rukmini K. Shetty is a new establishment. May be the old name as Hotel Shivaprasad came to be continued. But the. previous Lessee was evicted by process of law by filing a suit. After getting an order and degree for eviction and in execution of that degree the fruits came to be obtained, namely, possession came to be obtained, "hereafter, the partnership firm being the owner leased out the property in favour of Rukmini K. Shetty. Thus, there is absolutely no connection between the provious Lessee and the present Lessee. It cannot be made much of it that she is wife of one of the partners. That could be no bar to decide whether establishment 'run by her is new establishment or not. Then, again not one of the previous employees came to be employed. Only a few employees came to be recruited newly for the purpose of running the restaurant. ( 7 ) LOAN had been obtained from the bank and with the help of that loan new utensils and furniture had also come to be purchased. Lastly, a new Municipal licence had come to be obtained in her name. Ail these facts clearly establish that the establishment commenced by smt. Rukmini K. Shetty is entirely a new one. Under identical circumstances in rubka Fruit Products Private Limited v Regional Commissioner, Employees' provident Funds and Family Pension fund, Madras {vol. 53 F. J. R. 56) the court has come to the conclusion that the claim for infancy protection is well- founded. The same ratio will apply to the facts of this case. Under identical circumstances in rubka Fruit Products Private Limited v Regional Commissioner, Employees' provident Funds and Family Pension fund, Madras {vol. 53 F. J. R. 56) the court has come to the conclusion that the claim for infancy protection is well- founded. The same ratio will apply to the facts of this case. ( 8 ) IN AIR 1985 SC 323 , the Position was entirely different. There was an interval of 11 months. Both the District r. 20 court as well as High Court, on an examination of the facts, found that it was a continuity of the old establishment and therefore tightly the learned Judge did not apply that ruiling to the facts of this case. 8a. Having regard to the above, the only question that arises for our determination is whether the rejection, of the claim of respondent (Rukmini K. Shetty) for infancy protection under Section 16 (a) (b) of the Act is correct. ( 9 ) WITH regard to the claim for infancy protection we are clear in our mind that the question has to be approached in the light of whether the establishment is a new one or it is a continuation of the old. This question can be determined with reference to the facts available in each case. Then again the object that has to be decided in each of the cases is whether there is any evasion of its liabilty under the Acts to claim infancy protection or again whether the provisions of the Act are circumvented with a view to claim infancy protection. ( 10 ) IN this back-ground, we propose to analyse the facts : the undisputed facts are as under: (i) Originally the Lessee was one p. N. Krishnamurthy Bhat; (ii) The owners of the property, namely a partnership consisting of V. K. Shetty; B. Arunkumar Shetty; Arithkala s. Shetty; Vasanthamala R. Shetty and amrithkala S. Shetty, filed O. S. 28/1978 on the file of the learned Civil Judge, udipi for eviction of the Lessee. That suit came to be hotly contested and ultimately it ended in a decree in favour of the landlord-firm. (iii) In execution of that decree in ex. That suit came to be hotly contested and ultimately it ended in a decree in favour of the landlord-firm. (iii) In execution of that decree in ex. C. No. 14/83, possession came to be obtained by the landlord-firm on 22-4-1983; (iv) Thereafter the premises in question was leased as per lease deed dated 30-7-1983, in favour of Rukmini K. Shetty, who is none other than the wife of V. K. Shetty; (v) She obtained loan from the Bank for establishing a restaurant; (vi) She purchase new furniture and utensils; (vii) She obtained fresh licence from the Municipality; (viii) She recruited new employees ; and (ix) Not one of the employees of the previous establishment was ever continued in service. ( 11 ) THE only point on which the respondent made a slip, if at all, was to continue under the name and style of hotel Shivaprasad. Therefore, having regard to all these facts can it be said it is a continuation of the old establishment or a new establishment ? We have not the slightest hesitation in holding that it is a new establishment altogether. It is not denied before us by the appellants that there is no relationship between the previous Lessee-P. N. Krishnamurthy Bhat and V. K. Shetty. In other words, what we want to stress is this is not with a view to circumvent and to gain an undue advantage of infancy protection that all these things have taken place. We have referred to the legal proceedings which ended in eviction to show that it is only by recourse to Law, possession was obtained and not through any consent or connivance between the old Lessee and new Lessee. ( 12 ) THE Commissioner for Provident fund would reiy on obtaining of delivery of possession prior to the execution of the lease deed on 30-7-1983. That will itself be no bar and rightly therefore the learned Judge rejected the same. Then the question is, whether running the restaurant under the same name and style of hotel Shivaprasad would show that it is continuation of the old establishment. That by itself cannot in any manner be conclusive, nor the singular fact can be taken into consideration in isolation disregardful of all the facts we have set out above. Then the question is, whether running the restaurant under the same name and style of hotel Shivaprasad would show that it is continuation of the old establishment. That by itself cannot in any manner be conclusive, nor the singular fact can be taken into consideration in isolation disregardful of all the facts we have set out above. Therefore, in the light of these facts, it is impossible for us to apply the ratio of the ruling reported in AIR 1985 sc 323 . ( 13 ) AS rightly contended by Mr. P. V. Shetty, in that case, as seen from para-2, the trial Court as well as High court, on an examination of fact, came to the conclusion that it was a continuation of old establishment, and it was under these circumstances in para-11 their Lordships observed as follows:"this is not a case where the old factory was reduced into scrap and a new factory was erected in its place, nor can it be said that there was total discontinuity brought about between, the old factory and the factory which was restarted after the appellant purchased it. The stoppage of production was brought about temporarily as stated earlier by the winding up order and the factory was restarted after it was sold to the appellant by the Official Liquidator. The finding of fact recorded by the trial Court in this case which is affirmed by the High Court clearly establishes that it was the same old, factory which recommenced production on November 12, 1955. What is of significance is that a substantial number of workmen and staff who were working under the former management had been employed by the appellant though it is claimed that they had entered into new contracts of employment. Mere investment of additional capital or effecting of repairs to the existing machinery before it was restarted, the diversigication of the lines of production or change of ownership would not amount to the establishment of a new factory attracting the exemption under S. 16 (1) (b) of the Act or a fresh period of three years. "clearly, therefore, this case is distinguishable, ( 14 ) YET another ruling relied on by the learned counsel for the appellant reported in M/s, R L. Sahni and Company v. Union of India, Represented by the regional Provident Fund Commissioner, madras and Another (AIR 1966 Madras 416 ). "clearly, therefore, this case is distinguishable, ( 14 ) YET another ruling relied on by the learned counsel for the appellant reported in M/s, R L. Sahni and Company v. Union of India, Represented by the regional Provident Fund Commissioner, madras and Another (AIR 1966 Madras 416 ). In overruling the judgment of anantanarayanan J, as he then was, reported in AIR 1965 Madras 508, the division Bench observed as follows : "our conclusion gains support from a number of decided cases. In Nazeena traders (Pvt.) Ltd. v. Regional Provident fund Hyderabad, Commissioner Hyderabad, air 1965 Andh. Pra 200 one of the contentions raised was since the petitioner had taken on lease the cinema theatre on a particular date he was entitled to have a further protection under S. 16 (b) from the date of his lease. This was repelled by a Division bench of the Andhra Pradesh High court in these words (at page 231) :"this section contemplates the postponement of the application of the Act only to establishments and not to the persons connected with the management, the object of the provision being to afford protection to the industries subjected to the obligations imposed by the Act in their infancy, The legislature seems to have thought that these industries would establish themselves on a firm basis within 3 or 5 years as the case may be and that thereafter they will be in a position to meet the demands of the Act. A change of management of an establishment does not attract this section, since that does not amount to starting a new establishment and consequently, it could not invoke the period of protection afresh, from the date of the lease. "we are not for a moment holding that in every case where there is a fresh lease, the claim for infancy protection must follow. On the contrary, if the fact established as in the present case, that there is a commencement of new business and it is not a continuation of the old, how should the infancy protection under Section 16 (1) (b) of the Act be denied. On the contrary, if the fact established as in the present case, that there is a commencement of new business and it is not a continuation of the old, how should the infancy protection under Section 16 (1) (b) of the Act be denied. Of course, if it had been a continuation of the old establishment by reduction of the number below 20, certainly the respondent cannot gain the benefit of Section ( 15 ) BUT once if it is estabmshed that it is not continuation of the old establishment we have no other option than to agree with the learned Judge that the order denying infancy protection is wrong. ( 16 ) THE learned counsel for the respondent relied on the decision in rubka Fruit Products Private Ltd. v regional Commissioner Employees' provident Funds and Family Pension fund. Madras (Vol. 53 F. J. R. 56 ). The head-note reads thus :"if, in a particular case, it appears that the new establishment is not genuinely such, but is only an old one formally resuscitated in order to avoid a legal obligation, it is always open to the Court to hold that it is the old establishment which is substantially continuing, and that the legal liability must be affixed to the apparently new form also. But where, in reality, the old establishment has come to an end, and there is a new establishment, this establishment is entitled to infancy protection under Section 16 (1) (b) of the Employees' Provident Funds and Family pension Fund act, 1952, in its own right, even if it happens by coincidence to have employed a large part of the personnel of the previous establishment. Where, therefore, the machinery of a Company which went into liquidation were bought from the mortgagee by the petitioner company which commenced business in the same premises after an interval of six months, the petitioner company would be entitled to the infancy protection provided under Section 16 (a) (b) of the Act: Provident Fund Inspector, trivandrum v N. S. S. Co-operative society (1971)40 FJR. 310 (SC) applied. " ( 17 ) FOR these reasons, we agree with the learned Judge and dismiss the writ Appeal with costs. Counsel's fee rs. 500/ -. Writ appeal dismissed with costs. --- *** --- .