STATE OF GUJARAT v. DHIRAJLAL AMRATLAL KANSARA — 1975 DIGILAW 56 (GUJ)

A. N. SURTI, P. D. DESAI, J. ( 1 ) CRIMINAL Appeal No. 839 of 1974 is filed by the State of Gujarat against the order of acquittal passed in favour of respondent No. 1 (hereinafter referred to as original accused) by the learned Sessions Judge Surendranagar in Criminal Appeal No. 30 of 1974 which arose out of an order of conviction and sentence passed by the learned Judicial Magistrate First Class Wadhwan in Criminal Case No. 233 of 1973 for the commission of an offence punishable under bye-law No. 15 read with bye-law No. 12 of the bye-laws regarding octroi of Wadhwan City Municipality (hereinafter referred to as the bye-laws ). The learned Magistrate had sentenced original accused to pay a fine of Rs. 75/in default to suffer S. I. for seven days for the commission of the aforesaid offence. ( 2 ) THE Original complainant filed Miscellaneous Criminal Application No. 613 of 1974 in this Court as he was aggrieved by the aforesaid order of acquittal and the same is placed for admission before us at the time of final hearing of the aforesaid appeal. Since we are disposing of the State-appeal we do not propose to pass any orders on Miscellaneous Criminal Application No. 613 of 1974 and accordingly the same is disposed of. ( 3 ) A few relevant facts giving rise to the present appeal may be stated. In substance the prosecution case was that original accused had brought goods within the municipal limits of the city of Wadhwan between February 1 1963 and February 19 1973 without payment of any octroi duty to Wadhwan Municipality. In this behalf on February 19 1973 the in-charge Chief Officer of the Municipality addressed a letter Ex. 22 to original accused and forwarded to him the prescribed requisition form Ex. 21 so as to get the necessary information in regard to the import of goods during the aforesaid period. The original accused by his letter dated February 20 1973 Ex. 26 informed the Municipality that during the aforesaid period no goods were brought without payment of octroi duty and that an inquiry may be made in that behalf. At the same time original accused did not fill in the aforesaid prescribed form and sent it back to the municipality. The original accused by his letter dated February 20 1973 Ex. 26 informed the Municipality that during the aforesaid period no goods were brought without payment of octroi duty and that an inquiry may be made in that behalf. At the same time original accused did not fill in the aforesaid prescribed form and sent it back to the municipality. ( 4 ) THE term of the office of the Chief Officer who was appointed as the Chief Officer under sec. 47 (1) of the Gujarat Municipalities Act 1963 had expired on February 29 1972 By an order dated March 1 1972 (vide Ex. 11) passed by the president of the Municipality the Senior Clerk the complainant in the aforesaid criminal case was asked to hold the charge of the chief officer from the same day i. e. March 1 1972 ( 5 ) ON March 12 1972 the Senior Clerk (in-charge Chief Officer) filed the aforesaid criminal case in the Court of the Judicial Magistrate First Class Wadhwan City alleging that original accused committed an offence punishable under bye-law No. 12 read with bye-law No. 15 of the bye-laws. In substance the allegation against original accused was that he imported certain goods within the municipal limits of Washwan city during the aforesaid period without payment of octroi duty and that inspite of the aforesaid requisition original accused neglected to comply with the same within seven days after the receipt thereof by him and failed to fill in the prescribed form. On these facts it was alleged that original accused had committed an offence punishable under bye-law No. 12 read with bye-law No. 15 of the bye-laws. ( 6 ) BEFORE the learned Magistrate original accused denied the accusation leveled against him. ( 7 ) THE learned Magistrate after considering the evidence led before him and the relevant provisions of the bye-laws came to the conclusion that original accused was guilty for the commission of the alleged offence and sentenced him as stated above. ( 8 ) THE original accused was grieved by the aforesaid order of conviction and sentence and filed Criminal Appeal No. 30 of 1974 in the Court of the learned Sessions judge Surendranagar. It was contended before the learned Sessions Judge that the in-charge Chief Officer can exercise administrative functions and cannot exercise any statutory powers. ( 8 ) THE original accused was grieved by the aforesaid order of conviction and sentence and filed Criminal Appeal No. 30 of 1974 in the Court of the learned Sessions judge Surendranagar. It was contended before the learned Sessions Judge that the in-charge Chief Officer can exercise administrative functions and cannot exercise any statutory powers. The learned Sessions Judge took the view that the in-charge Chief Officer was not appointed as the Chief Officer and hence he could only exercise administrative functions. He also took the view that the in-charge Chief Officer could not have called upon original accused to furnish the requisite information and that original accused by not supplying the information could not be said to have committed the offence. As a result of his said reasoning he allowed the appeal and the order of conviction and Sentence passed by the learned trial Judge was set aside and original accused was acquitted of the offence of which he was convicted by the learned trial Magistrate. He also directed that if the amount of fine was paid -the same should be refunded. It is under these circumstances that the State has filed the present appeal - We may mention at this stage that the application filed by the original complainant against the order of acquitted passed by the learned Sessions Judge is disposed of by us as stated above. ( 9 ) MR. A. J. Patel the learned Public Prosecutor appearing for the State has raised only the following contentions:- That the complainant in the instant case was the in-charge Chief Officer and as such was the Chief Officer competent to file the aforesaid complaint in the Court of learned Magistrate on the basis of the aforesaid allegations against original accused. In support of the contention Mr. Patel invited our attention to sec. 19 of the Bombay General Clauses Act 1904 (Bombay Act No. 1 of 1904) which provides as follows :- 19 In any Bombay Act (or Gujarat Act) made after the commencement of this Act it shall be sufficient for the purpose of expressing that a law relative to the chief or superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior to prescribe the duty of the superior. (2) This section applies also to all Bombay Acts made before the commencement of this Act. Mr. Patel urged that in view of the provisions contained in sec. 19 of the Bombay General Clauses Act 1904 it was lawful for the in-charge Chief Officer to perform the duties of the Chief Officer as mentioned in the Bye laws and that being so it was perfectly lawful for the in-charge Chief Officer to call upon original accused to fill in the requisition form as provided by bye-law No. 12 of the Bye laws and to file the complaint in question in the court of the learned Magistrate as provided by Bye law No. 15 of the Bye laws. Mr. Patel urged that in view of the said submission the impugned order of acquittal is bad and in its stead the order passed by the learned Magistrate should be restored. ( 10 ) NOW in order to appreciate the contentions raised by Mr. Patel we may usefully refer to certain provisions of law contained in Gujarat Municipalities Act 1963 being Gujarat Act. No. 31 of 1964. Sec. 47 (i) provides as follows :- 47 For every municipality there shall be a chief officer appointed by the municipality Sec. 49 (1) (a) provides as follows :- (1) The chief officer shall (A) subject to the general control of the president watch over the financial and executive administration of the municipality and perform all the duties and exercise all the powers specifically imposed or conferred upon him this Act; Sec. 49 (2) (c) provides as follows :- (2) The Chief officer may (A ). . . . . . . . . . . . . . . . . . . . . (B ). . . . . . . . . . . . . . . . . . . (C) with the sanction of the executive Committee delegate any of his powers or duties to any municipal officer or servant; Provided that such delegation shall be subject to such limitations if any. as may be prescribed by the executive committee and also to control and revision by the chief officer. ( 11 ) SEC. . . . . . (C) with the sanction of the executive Committee delegate any of his powers or duties to any municipal officer or servant; Provided that such delegation shall be subject to such limitations if any. as may be prescribed by the executive committee and also to control and revision by the chief officer. ( 11 ) SEC. 122 of the aforesaid Act provides as follows :-A municipality when submitting for sanction a proposal for the imposition of octroi shall submit therewith for sanction a draft of by-laws for the purposes of clause (1) of sub-sec. (1) of sec. 275 after observing the requirements of sub-secs. (3) (4) and (5) of that section. ( 12 ) SEC. 246 (i) of the aforesaid Act provides as follows :- Subject to the provisions of sub-sec. (3) the Chief Officer may and where the executive committee so requires shall direct any prosecution for any public nuisance whatever and order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any rule or by-law thereunder and shall order the expenses of such prosecutions or other proceedings to be paid out of the municipal fund; Provided that no prosecution for an offence under this Act or by-laws framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or discovery of such offence. ( 13 ) SEC. 274 of the aforesaid Act provides for power to make bylaws. Sec. 275 (1) (1) 275 275 and sec. ( 13 ) SEC. 274 of the aforesaid Act provides for power to make bylaws. Sec. 275 (1) (1) 275 275 and sec. 275 (4) provide as follows :- (1) fixing octroi limits and stations; providing for the exhibition of tables of octroi regulating subject to any general or special orders which the State Government may make in this behalf the system under which refunds are to be made on account thereof when the animals or goods on which the octroi has been paid or articles manufactured wholly or in part from such animals or goods are again exported and the custody or storage of animals or goods declared not to be intended for consumption use or sale within the municipal borough and prescribing a period of limitation after which no claim for refund of octroi shall be entertained and the minimum amount for which any claim to refund may be made; (K) for enforcing the supply of such information by inhabitants of the municipal borough as may be necessary to ascertain their respective liabilities to any tax imposed therein; (1) (DD) generally for the regulation of all matters relating to municipal administration; (4) No by-law alteration or rescission of a by-law made under sub-sec. (1) shall have effect unless and until it has been sanctioned by the State Government. ( 14 ) WE may also state that the State Government sanctioned byelaws regarding octroi of Wadhwan City Municipality under sec. 275 (1) (1) 275 and sec. 275 (1) (dd) of the Gujarat Municipalities Act 1963 by passing the Government Resolution Panchayat and Health Department No. GNA 6167/6358/dh dated August 29 1967 Thus it is clear to us that the aforesaid bye-laws are having the statutory force. Bye-law No. 12 provides as follows :-THE Chief Officer of the municipality may when satisfied that it is necessary in the interest of the municipal income issue the requisition in form of schedule D or any other form approved by the Executive or octroi committee asking the owner or the importer to return it duly filled in and signed by him and the owner or the importer shall within seven days from the receipt of such requisition fill in correct details and return it duly signed by him. The octroi duty found due on the particulars or details mentioned by the owner or the importer when returning the requisition or when such return contains the information which the chief officer has reason to believe to be incorrect on other authentic information obtained shall be recovered in the manner prescribed in Chapter IX of the Act. Bye-law 15 provides as follows :-Whoever does or omits to do an act in contravention of any provisions of these bye-Laws or makes out a false transit pass or gives false certificates or makes a false declaration may be punished with a fine which may extend to Rupees one hundred in addition to any punishment he may become liable to under the Act or under the Indian Penal Code and shall lose his claim of refund if any. The Octroi Inspector may after obtaining the sanction of the Chief Officer file the complaints in the Magistrate Court for the above said punishment. ( 15 ) NOW it is clear that the object and purpose of bye-law No. 12 is that when it appears to an officer of a certain status and experience with a due sense of responsibility and circumspection namely the Chief Officer that any owner or importer of goods has not paid to the municipality the octroi duty the chief officer in the interest of the municipal income may issue the requisition as provided in bye-law No. 12 of the Bye-laws. If on the receipt of the requisition duly filled in by the owner or the importer of the goods the Chief Officer has reason to believe that the information supplied by the owner or the importer is incorrect the Chief Officer can take recovery-proceedings for collecting the amount of octroi-duty as provided in Chapter IX of the Gujarat Municipalities Act 1963 Thus bye-law 12 of the Bye-laws in essence and substance provides for a statutory machinery for the recovery of octroi duty not paid by the owners or importers of the goods and for achieving that purpose the Chief Officer appointed under the Gujarat Municipalities Act 1963 is assigned the aforesaid statutory function and duty. In the context of the aforesaid object and purpose of bye-law No. 12 we have read bye-law No. 15 of the Bye-laws where also the officer designated is the same namely Chief Officer so far as sanctioning of the prosecution is concerned. In the context of the aforesaid object and purpose of bye-law No. 12 we have read bye-law No. 15 of the Bye-laws where also the officer designated is the same namely Chief Officer so far as sanctioning of the prosecution is concerned. A plain reading of bye-law No. 15 shows that an octroi inspector can file the complaints in the Courts of the learned Magistrates after having obtained the sanction of the Chief Officer. The Chief Officer may also file such complaints against a person who offends against any provision of the bye-law under sec. 246 (1 ). At this stage we however wish to make it clear that in the instant case it was nobodys case before us that the complainant in the instant case was the delegate of the Chief Officer and hence we have not considered the question as to whether a delegate of the chief officer can sanction such prosecution or file such a complaint or not. Suffice it to state that before any complaint can be filed against a person for doing an act or omitting to do an act in contravention of any provisions of the bye-laws the chief officer who is an officer of a certain status and experience with a due sense of responsibility and circumspection has to apply his mind for sanctioning to file the complaint or he may himself file the complaint. The emphasis is on the officer designated namely the chief officer and that statutory function can only be discharged by a person if he is appointed as the Chief Officer as provided in sec. 47 (1) of the Gujarat Municipalities Act 1963 In the instant case the learned Public Prosecutor conceded that the complaint who was in charge Chief officer not appointed as Chief Officer as provided in sec. 47 (1) of the Gujarat Municipalities Act? 1963. However as stated above. Patel the learned public prosecutor pressed into service the provisions of sec. 47 (1) of the Gujarat Municipalities Act 1963 In the instant case the learned Public Prosecutor conceded that the complaint who was in charge Chief officer not appointed as Chief Officer as provided in sec. 47 (1) of the Gujarat Municipalities Act? 1963. However as stated above. Patel the learned public prosecutor pressed into service the provisions of sec. 19 of the Bombay General Clauses Act 1904 In our opinion the provisions of the said section cannot come to the aid of the prosecution where on a true interpretation and having regard to the object and purpose of an enactment a statutory duty is to be performed by a duly appointed designated officer of a certain rank and not by his subordinate even if such subordinate is temporarily performing the duties of the office of the superior. Sec. 19 of the Bombay General Clauses Act 1904 could not and does not have the effect of making and appointing or substituting the subordinate in place of the superior irrespective of the language of the statute in question. ( 16 ) IN this context we might usefully refer to certain decisions of the Supreme Court. In Ajaib Singh v. Gurbachan Singh A. I. R. 1965 Supreme Court 1619 the court had to consider whether the Additional District Magistrate invested with all the powers of the District Magistrate under sec. 10 (2) of the Code of Criminal Procedure and In view of a temporary vacancy in District Magistrates post exercising District Magistrates powers under sec. 11 of the Code of Criminal Procedure is the District Magistrate who could pass a detention order under Rule 30 (1) (b) of the Defence of India Rules. In this connection the Supreme Court in paragraph 10 of its judgment observed as follows :-WE have therefore to see whether Shri Lal Singh was appointed as District Magistrate of Amritsar under sec. 10 (1) of the Code. As to that it is admitted that there was no notification appointing Shri Lal Singh as the District Magistrate of Amritsar under sec. 10 (1) of the Code. 10 (1) of the Code. As to that it is admitted that there was no notification appointing Shri Lal Singh as the District Magistrate of Amritsar under sec. 10 (1) of the Code. All that the Advocate General can point out is the instruction issued by the Governor of the Punjab when transferring Shri Bhalla who was the District Magistrate of Amritsar to the effect that Shri Bhalla should handover charge to Shri Lal Singh who will hold the current charge of the office of the Deputy Commissioner Amritsar. This means that there was a temporary vacancy on the transfer of Shri Bhalla and Shri Lal Singh temporarily succeeded to the chief executive administration of the district. As such he would be entitled to exercise the powers of the District Magistrate under the Code under sec. 11. Further as he had been empowered as Additional District Magistrate to exercise powers of the District Magistrate under any other law for the time being in force he would exercise those powers also by virtue of being so authorised. But even though Shri Bhalla may have gone away after handing over charge on the afternoon of May 15 1964 Shri Lal Singh could not and did not become the District Magistrate of Amritsar in the absence of a notification under sec. 10 (1) of the Code by the State Government. The instructions to which we have already referred cannot in our opinion take the place of a notification under sec. 10 (1) of the Code. Therefore though Shri Lal Singh may be exercising all the powers of the District Magistrate by virtue of his being an Additional District Magistrate under the notification issued in April 1963 and also by virtue of sec. 11 of the Code he was not the District Magistrate of Amritsar in law on June 30th 1954 It is true that when passing the order he showed his designation as District Magistrate and that may be because Shri Bhalla who was the District Magistrate had gone away and no other officer had replaced him till June 30 1964 The transfer of Shri Bhalla would not automatically make Shri Lal Singh the District Magistrate of Amritsar in the absence of a notification under sec. 10 (1) of the Code. 10 (1) of the Code. When we say this we should not be understood to mean that a notification appointing a District Magistrate must necessarily recite in terms that it was being made under sec. 10 of the Code; all that we mean is that there must be an order of the State Government appointing an officer as District Magistrate of the District. In the absence of such an order no officer can claim to be the District Magistrate of the district. The in which were issued in this case however do not say that Shri Lal Singh was being appointed the District Magistrate of the district in place of Shri Bhalla. If that were so we would have found a proper notification to that effect published in the Gazette. We therefore hold that Shri Lal Singh was not the District Magistrate of Amritsar when he made the order on June 30 1964 ( 17 ) IN Harin Chand v. Batala Engineering Co. A. I. R. 1969 Supreme Court 483 the Supreme Court had considered whether the Additional District Magistrate empowered under sec. 10 (2) Cr. P. C. was competent to requisition the property. In paragraph 7 or the judgment the Supreme Court observed as follows :-THE Additional District Magistrate as has previously been noticed can similarly exercise all or any of the powers of a District Magistrate if the State Government makes a direction under sec. 10 (2) of the Code but even an officer who heads the which executive administration of the district temporarily under sec. 11 exercises all the powers of a District Magistrate. The 5scheme of sec. 10 of the Code leaves no room for doubt that the District Magistrate and the Additional District Magistrate are two different and distinct authorities and even though the later may be empowered under sub-sec (2) to exercise all or any of the powers of District Magistrate but by no stretch of reasoning can an Additional District Magistrate be called the District Magistrate which are the words employed in sub-sec. (1) of sec. 10. ( 18 ) IN Ballabhdas Agarwal v. J. C. Chakravarti A. I. R. 1960 Supreme Court p. 576 the Supreme Court had to consider whether a complaint filed by the Health Officer who was not duly empowered in that behalf under sec. (1) of sec. 10. ( 18 ) IN Ballabhdas Agarwal v. J. C. Chakravarti A. I. R. 1960 Supreme Court p. 576 the Supreme Court had to consider whether a complaint filed by the Health Officer who was not duly empowered in that behalf under sec. 12 of Calcutta Municipal Act (3 of 1923) was in accordance with law and in that behalf if there be any defect whether the same was curable under sec. 537 of the Act. Dealing with the question the Supreme Court observed as follows in paragraphs 19 and 23 as follows :- on behalf of the appellant it has been urged before us that the provisions of sec. 537 are obligatory and the principle invoked in aid of this construction Is that adopted by the Privy Council in Nasir Ahmad v. King Emperor 63 Ind. Appl. 372 at p. 381:- (AIR 1936 PC 253 at p. 257) viz. that where a power is given to do a certain thing in a certain way the thing must be done in that was v or not at all. In other words the argument of the learned counsel for the appellant is not that the word must necessarily be read for the word may in sec. 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 sec. S37 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 sec. 537. 23 An examination of the aforesaid provisions shows that the Calcutta Municipal Act 1923 provides Inter alia for a machinery for proceedings before Magistrate 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 the provisions. It would we think be against the tenor and scheme of the Municipal Act to hold that sec. All these provisions can have one meaning only viz. that the machinery provided in the Act must be followed in enforcing the provisions. It would we think be against the tenor and scheme of the Municipal Act to hold that sec. 537 is merely enabling in nature and that any private person may institute a legal proceeding under the Municipal Act independent and irrespective of the provisions of the Act Dealing with the same question the Supreme Court referred to the decision in The State v. Manilal Jethalal A. I. R. 1953 Bom. 365 and quoted the observation therefrom as follows in paragraph 28 of the judgment. Now it is true that the object of sec. 69 sub-sec. (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 Commissioners power is delegated under the provisions of sec. 69 But we do not think that it Would be correct to restrict the meaning of the words take proceedings to actually thing a complaint. The object of sec. 481 is that whenever it is alleged that any person has committed an offence under the MUD_municipal Act or under the rules framed under the Act he should not be prosecuted unless either the Commissioner himself 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 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. It is quite true that that words take proceedings may mean to lodge the complaint oneself. But we think 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. Having quoted these observations the Supreme Court proceeded to observe:- This decision also helps 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 Commissioners 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 see. 537 of the Calcutta Municipal Act are different. ( 19 ) WE may also refer to contain observations made by the Supreme Court in Mangulal Chunilal v. Manilal Maganlal A. I. R. 1968 Supreme Court p. 822. In paragraph 9 at page 824 the Supreme Court observed inter alia as follow. A person who files a complaint under the Act must show that he has the authority to file that complaint and that authority cannot be conferred upon him by an erroneous interpretation long acquiesced in. This Court held in Ballavdas Agrawal v. J. C. Chakravarti A. I. R. S C 576 that a complaint under the Calcutta Municipal Act 1923 could only be filed by the authorities mentioned therein and not by an ordinary citizen. Similarly here it seems to us that only the authorities mentioned in sec. 481 read with sec69 can launch proceedings against any person charged with offences under the Act or the rules regulations or by-laws made under it. This Court noticed the decision of the Bombay High Court in Manilal Jethalals ease (Supra) and observed:- The decision proceeded however. on a somewhat wide meaning given to the words take proceeding that part of the decision as to the correctness of which we say nothing does not concern us here because the words used in sec. 537 of the Calcutta Municipal Act are different. ( 20 ) THE reasoning underlying the aforesaid decisions of the Supreme Court completely supports the view which we are inclined to take in the present case. 537 of the Calcutta Municipal Act are different. ( 20 ) THE reasoning underlying the aforesaid decisions of the Supreme Court completely supports the view which we are inclined to take in the present case. We are satisfied that on a true interpretation of byelaw 15 read with Bye-law 12 the duly appointed Chief Officer alone can sanction the filing of a complaint or himself file a complaint. In the instant case the complainant a Senior Clerk who was in-charge Chief officer was not duly appointed as Chief Officer as provided in see. 47 (1) of the Gujarat Municipalities Act 1963 and he could not have taken such an action. We are further satisfied that sec. 19 of the Bombay General Clauses Act 1904 could not and did not have the effect of making or appointing him as Chief Officer as provided under sec. 47 (1) of the Gujarat Municipalities Act much in the same way as sec. 10 (2) or sec. 11 of the Criminal Procedure Code could not make an additional District Magistrate a District Magistrate. The ill-charge Chief Officer cannot therefore be permitted to discharge the statutory functions as provided in bye-laws Nos. 12 and 15 of the Bye-Laws as that statutory function in our opinion can only be discharged by the designated officer duly appointed. . ( 21 ) AS a result of the aforesaid discussion we agree with the ultimate conclusion arrived at by the learned Sessions Judge though for different reasons. The appeal filed by the State accordingly fails and is dismissed. application filed by the original complainant stands disposed as aforesaid. Appeal dismissed. .