N. C. Mukherji, B. C. Ray ( 1 ) THIS rule is directed against an order of revision passed by the Additional Commissioner of Commercial Tax, West Bengal confirming the appellate order of the Assistant Commissioner, Commercial Tax, and the order for assessment of the Commercial Tax Officer, Taltolla Charge. ( 2 ) THE petitioner and his brother Probhat Chandra Mukherjee had been carrying on the business of florist under the name and style of S. C. Mukherjee and Sons a partnership concern. The petitioner used to grow flowers and also to purchase flowers from the markets and re-sale the same also garlands and bouquets by making them according to the taste and desire of the customers. The petitioner's turnover never exceeded the taxable quantum and as such he did not get the firm registered under the Bengal Finance (Sales Tax) Act, 1941. The petitioner was not an importer nor a manufacturer. The petitioner, it was stated, maintained a Tokcha Khata wherein daily purchase and sale of goods were kept in normal course of business. ( 3 ) IN pursuance of a notice under S. 14 of the said Act the petitioner produced his books of accounts before the Commercial Tax Officer, Taltola Charge who fixed his liability under S. 4 (2) of the said Act and completed assessments under S. 11 (2) of the Act for 1360 B. S. The said order fixing the date of liability and the order of assessment on its basis were however set aside on appeal with direction to make the assessment afresh after determining the date of liability. The Commercial Tax Officer, again determined the liability on and from Aghran, 1361 B. S. and these assessments were again set aside on appeal and the Commercial Tax Officer was directed to make their assessment after fixing the date of commencement of liability. On October 4, 1963, the Commercial Tax Officer determined the liability of the petitioner to pay tax on and from 30th Jaistha, 1363 B. S. Thereafter three assessments were made for the years 30th Jaistha, 1363 B. S. ; to 31st Chaitra 1365 B. S. In making the assessments the Jabeda Khata (Tikcha book) produced by the petitioner was rejected and assessments had made on estimating the turnover without recording any reason for or basis of such estimate. The appeal case Nos. The appeal case Nos. 8, 9 and 10 of 1964-65 filed before the Assistant Commissioner, Commercial Tax, Calcutta (South) Circle were dismissed on the grounds that the order determining liability being not challenged in revision could not be questioned in the appeal and that the estimates of turnover as made were reasonable and the orders of assessment could not be interfered with. Revision case Nos. 312, 313 and 314 of 1965-66 filed against the said order were also dismissed by the Additional Commissioner of Commercial Tax, West Bengal who held that the petitioner was a manufacturer and the assessments made on estimating the turnover were reasonable and proper. The orders of assessments were affirmed. ( 4 ) ON March 1, 1966 the Commercial Tax Officer completed assessments for the periods from first day of Baishak, 1364 B. S. to 13th Bhadra, 1370 B. S. (September 3, 1963 ). Appeal Case No. 94 of 1966-67 against the order of assessment was dismissed by the Assistant Commissioner, Commercial Tax, Calcutta (South) Circle holding that the question of dealer's liability had been already decided by the Additional Commissioner. ( 5 ) FLOWER has been included in the first column of Schedule 1 to the said Act and it has been exempted from Sales Tax from May 10, 1963. ( 6 ) A counter to the petition concerned by Sri P. Sengupta, respondent No. 3 has been filed on behalf of the respondent No. 1 to 3. In paragraph 6 it has been stated that the petitioner did not show to respondents any Jabeda, Khatian or vouchers in support of purchases or sales. Only rough statement of sales in plain papers without any supporting document were produced and no reliance could be placed on the said statements. In paragraph 7 it has been stated that the order fixing the liability from 30th Jaistha 1364 B. S. as passed on October 4, 1963 has not been challenged by the petitioner and the assessments have been made on the basis thereof. In paragraph 8 it has been stated that the petitioner did not produce any authentic evidence upon which reliance could be placed and as such the best judgment of assessment had to be made. It is submitted that the estimates are valid and lawful. In paragraph 8 it has been stated that the petitioner did not produce any authentic evidence upon which reliance could be placed and as such the best judgment of assessment had to be made. It is submitted that the estimates are valid and lawful. In paragraph 13 it has been stated that the order passed by the respondents in respect of fixation of liability of the petitioner since 30th Jaistha, 1363 B. S. and all subsequent orders on the basis of the said fixation of the liability are valid, lawful, proper and in consonance with the principles of natural justice and are not in breach of Article 19 of 265 of the Constitution. It has been submitted that the petitioner had enough remedy under the statute and this application under Article 227 of the Constitution was not maintainable in the facts and circumstances of the case. Affidavit-in-reply has been affirmed by the petitioner reiterating the statements and contentions made in the petition. The assessments and certificate proceedings are illegal and void since their inception as the petitioner had no statutory liability either to be registered under the Act or to comply with any of the provisions of the Act. The petitioner was not liable to pay any tax. ( 7 ) MR. Gopal Chandra Chakravorty, learned Advocate for the petitioner, has contended that the order dated 4. 10. 63 under S. 4 (2) of the Act determining the liability of the petitioner to pay tax for sale of garlands bouquets from 30th Jaistha, 1363 B. S. as made by the Commercial Tax Officer, Taltolla Charge, the respondent No. 3 prior to the initiation of assessment proceeding under S. 11 (2) is a nullity and is without jurisdiction and the assessments made on its basis are also illegal and void. Reference has been made to the Bench decision in 32 Sales Tax Cases 601. ( 8 ) MR. Samarendra Nath Datta, learned Advocate appearing on behalf of the respondents urged that the order under S. 4 (2) of the said Act being not challenged in revision as provided under the said Act could not be challenged in the application. Reference has been made to the Bench decision in 32 Sales Tax Cases 601. ( 8 ) MR. Samarendra Nath Datta, learned Advocate appearing on behalf of the respondents urged that the order under S. 4 (2) of the said Act being not challenged in revision as provided under the said Act could not be challenged in the application. He also submitted that the power under S. 4 (2) is ancillary to S. 7 and 11 and as such the Commercial Tax Officer was competent to fix the liability of a dealer whose turnover though exceeded the taxable quantum did not get himself registered under the Act before initiating any proceeding under S. 11 (2) of the said Act and for this purpose no separate delegation of the power under S. 4 (2) by the Commissioner to the Commercial Tax Officer is necessary. Mr. Datta also submitted that under S. 7 of the Act when a dealer applied for registration the Commercial Tax Officer is competent to see whether the information given in the application for registration regarding the turnover of the dealer was correct or not and in determining the same the Commercial Tax Officer can fix the date of liability of the dealer or in other words the date when the turnover of the dealer exceeded the taxable quantum. ( 9 ) MR. P. K. Sengupta, learned Advocate subsequently appearing on behalf of the respondents also contended that S. 4 (2) of the said Act automatically creates the liability of a dealer whose gross turnover in any year exceeds the taxable quantum to get himself registered under the Act in the manner prescribed and S. 7 enjoins that unless such a dealer registers itself cannot carry on business as a dealer. Mr. Sengupta, therefore, contends that it is a liability created by the Act and the Commercial Tax Officer to whom power under S. 7 of the Act has been delegated for considering the application for registration filed by the dealers and for registering the dealer is competent to fix the liability of a dealer to pay tax under S. 4 (2) of the said Act and for this no separate delegation is at all necessary. As such the order dated 4th October, 1963 fixing the date of commencement of the liability of the petitioner, it has been submitted, is a quite valid and proper order. As such the order dated 4th October, 1963 fixing the date of commencement of the liability of the petitioner, it has been submitted, is a quite valid and proper order. In support of the submission reliance has been made on an unreported decision in Civil Rule No. 6607 and 6608 (W) of 1969 made by Chittatosh Mukherjee, J. In order to decide this contention it is necessary to mention the scheme of the Act. Section 3 of the Act vests the Commissioner with all the powers for carrying out the purposes of this Act and in doing so the State Government has appointed other officers such as Assistant Commissioners, Commercial Tax Officer etc. to assist him in this matter. These officers shall exercise such powers as are delegated to them by the Commissioner. Section 15 of the Act has empowered the Commissioner to delegate his powers under the Act to the persons appointed under S. 3 to assist him subject to such conditions and restrictions as prescribed by the rules framed under the said Act. Rule 71 empowers the Commissioner to delegate his powers under S. 7 and 11 to the Commercial Tax Officer. Section 4 of the said Act provides for determination of the liability to pay tax. Section 4 (2) lays down that every dealer whose gross turnover calculated from the commencement of any year exceeds the taxable quantum at any time shall be liable to pay tax on the expiry of two months from such date when the gross turnover exceeds the taxable quantum on all sales effected thereafter. Section 11 provides the procedure for assessment of liability fixed under S. 4 of the said Act. Section 11 (2) which is applicable to the case of an unregistered dealer is set out hereunder:"if upon information which has come into his possession the Commissioner is satisfied that any dealer, who has been liable to pay tax under the Act in respect of any period but has failed to get himself registered or to obtain a special certificate, as the case may be, the Commissioner, shall proceed in such a manner as may be prescribed to assess to the best of his judgment the amount of tax due from the dealer in respect of such period and all subsequent periods and in making such assessment shall give the dealer a reasonable opportunity of being heard. " ( 10 ) ON a scrutiny of the said provision it is evident that upon information received the Commissioner has no determine first that the dealer is liable to pay tax under this Act in respect of a certain period and he has failed to get himself registered or to obtain a special certificate and then the Commissioner shall proceed to assess the dealer in respect of such period and all subsequent periods after giving him a reasonable opportunity of hearing. This provision, therefore, enjoins that the liability to pay tax of a dealer from a certain date has to be fixed in a proceeding for assessment under S. 11 (2) of the said Act. The determination of liability to pay tax from a certain date under S. 4 (2) of the said Act cannot be made independently of and prior to the initiation of any proceeding under S. 11 (2) of the said Act. It can only be done in connection with a proceeding under S. 11 (2) of the said Act and not otherwise. In other words S. 4 of the said Act is a mere charging section creating the liability of a dealer to pay Sales Tax after expiry of two months from the date when his total turnover exceeds the taxable quantum but it does not contemplate the fixation or determination of the date of commencement of the liability which can be made only in a proceeding for assessment as envisaged in S. 11 (2) of the said Act. It is convenient to refer in this connection the observation of D. Pal, J. in the decision in 32 Sales Tax Cases 601 (Sri Surajmal Jain v. Commercial Tax Officer and Others) :"in fact section 4 of the Bengal Act (the corresponding provision being section 6 of the Central Act) does not envisage the exercise of any power by any Commercial Tax Officer under the Act. That section being a charging section creates the liability to pay. Such liability, as already pointed out, does not depend upon any assessment. That section being a charging section creates the liability to pay. Such liability, as already pointed out, does not depend upon any assessment. If Section 6 of the Central Act or Section 4 of the Bengal Act requires the making of any order or contemplates the exercise of any power under the aforesaid sections, there would have been a delegation of such power to the subordinate authorities as it has been provide for in the case of the making of an assessment under Section 1 of the Bengal Act. Having regard to the scheme of the Central Act as also the Bengal Act, respondent No. 1 had no such power for the determination of any such liability independently of any assessment proceeding. The order made by him on 12th May, 1972 fixing such liability is without any jurisdiction. "in determination in Civil Rule Nos. 6607 (W) and 6608 (W) of 1969 on 12th May, 1972 made by Chittotosh Mukherjee, J. the dealer was admittedly registered under the Bengal Finance Sales Tax Act in September, 1967. Subsequently the said registration was cancelled as the authority who granted the registration certificate had no territorial jurisdiction over the area in which the dealer's factory was situated. Thereafter in July, 1962 the dealer submitted a fresh application for registration under the said Act and it was duly registered by the authorities concerned. The order of assessment under S. 11 (2) of the said Act was challenged on the ground that he was not a dealer and the application for registration was submitted through mistake and as such he was not liable to pay tax. It was also contended that the condition precedent for invoking the power under S. 11 (2) was absent and as such the order of assessment was wholly without jurisdiction. In that case it has been held:"in deciding whether any assessment should be made in respect of any period for which a dealer was liable to pay tax but failed to get itself registered, the authority concerned is bound to decide the period for which tax should be assessed. Therefore such decision of the Commercial Tax Officer determining the liability of the dealer is incidental and ancillary to the exercise of the powers under Section 11 (2 ). The exercise of power under Section 11 (2) necessarily involves a determination of the period of liability. Therefore such decision of the Commercial Tax Officer determining the liability of the dealer is incidental and ancillary to the exercise of the powers under Section 11 (2 ). The exercise of power under Section 11 (2) necessarily involves a determination of the period of liability. "thus, in our opinion, there is no conflict in the decisions referred to above. On the other hand, it has been clearly held that the power of fixation of liability to pay tax from a certain date under S. 4 (2) of the said Act is to be determined in a proceeding under S. 11 (2) of the said Act. The order dated October 4, 1963 determined the liability of the petitioner to pay tax independently of any proceeding under S. 11 (2) of the said Act is, therefore, without jurisdiction. ( 11 ) IT is now well settled that statutory powers are to be exercised in the mode prescribed by the statute and not in any other manner. In Taylor v. Taylor (1875) 1 Ch. D. page 426 it has been held"if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified or by any other person than one named, is impliedly prohibited. ""the said decision has been relied on in AIR 1975 Supreme Court 915 at page 918 Ramchandra v. Govinda Jyoti where it has been held that statutory power has to be exercised in the manner prescribed for exercise of that power and in no other way. The impugned order passed on October 4, 1963 under S. 4 (2) of the Act is, therefore, illegal and as such is liable to be set aside. " ( 12 ) WITH regard to the submission that there was an alternative remedy by way of revision provided in the statute against the said order determining the liability being one without jurisdiction can be successfully challenged in this revisional application. It has been held in the decision reported in 64 CWN page 683 Paresh Nath Cloth Stores v. N. Pal that the existence of an alternative remedy by way of appeal is not a bar to the exercise of the High Court's power of superintendence under Article 227 of the Constitution in a case where the order in question is without jurisdiction. In AIR 1963 Calcutta 409 Durgasree Stores v. Board of Revenue it has been observed that if an error, be it an error of fact or of law, is such that the erroneous decision has resulted in the subordinate Court or tribunal exercising jurisdiction, not vested in it by law, or in its having failed to exercise jurisdiction, vested in it by law, that will come within the scope of S. 115 of the Civil Procedure Code or, for the matter of that, of Article 227 of the Constitution, as the case may be. ( 13 ) THE next question that arises for consideration is if the petitioner who made garlands and bouquets of flowers according to the aesthetic tastes of the consumers and sold them is a manufacturer liable to be assessed to tax under this Act. Mr. Gopal Chandra Chakraborty, the learned Advocate for the petitioner ha surged that the petitioner was not a manufacturer and the assessment order are illegal and without jurisdiction. He has submitted that in bouquet or garland there is no change in substance nor a new substance has been brought, only the flowers are arranged according to the method behind which there may be individual artistic mind, skill and aesthetic sense. Garlands and bouquets cannot pass from hand to hand as a commercial commodity as they are not durable and they have also no resale value if once used. Several decisions have been cited at the bar in support of this contention. ( 14 ) MR. P. K. Sengupta, learned Government Pleader on the other hand has contended that garlands and bouquets are different from loose flowers as to make them creepers, leaves, strings or thread etc. are required. Labour, manipulation and treatment are also necessary to prepare garlands and bouquets and as such it is manufactured. The assessment of the petitioner as a manufacture is quite legal, valid and proper. ( 15 ) THE word "manufacture" has not defined in the Sales Tax Act. This is derived from the Latin word "manu" which means by hand and "factura" from "facere" means "to make". In Cassell's compact English dictionary "manufacture" means as "to make or work up for use, produce for fashion by labour or machinery specially on a large scale". ( 15 ) THE word "manufacture" has not defined in the Sales Tax Act. This is derived from the Latin word "manu" which means by hand and "factura" from "facere" means "to make". In Cassell's compact English dictionary "manufacture" means as "to make or work up for use, produce for fashion by labour or machinery specially on a large scale". According to shorter Oxford dictionary manufacture means "the action or process of making by hand, the making of articles or materials (not on a large scale) by physical labour or mechanical power. " In 10 STC 501 Nilgiri Hill Tea Supply Company v. State of Bombay the question was whether blending of different brands of tea purchased in bulk from the market by a registered dealer according to a formula evolved without the application of mechanical or chemical process can be treated as altered or processed after purchase within the meaning of S. 8 (a) of the Bombay Sales Tax, 1853 so that the dealer would not be entitled to deduct the value of the purchase of tea from the turnover for purposes of assessment of Sales Tax. It was held that although some skill was involved in preparation of tea mixtures, that could not be regarded as proceeding within S. 8 (a) of the Act. The commodity remained in the same condition. There was no alteration in the nature and character of the goods in the preparation of tea mixtures as contemplated by the said Act. In AIR 1963 Supreme Court 791 Union of India v. Delhi Cloth and General Mills it was held by the Supreme Court that the word "manufacture" generally meant the bringing into existence of new substance and does mean merely to produce some changes in a substance, however minor in consequence the change may be. In this connection reference was made to passage from an American judgment quoted in the permanent edition of "words and Phrases", Volume 26 which is set out hereunder:"manufacture implies a change but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use. "this decision has been relied on in AIR 1968 Supreme Court 922 S. B. Sugar Mills v. Union of India and it has been observed that the word manufacture implies a change but every change in the raw material not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive, character or use. These decisions have been followed in a bench decision of this Court reported in 77 Calwn 382 (Eastern Drug Company Limited v. The State of West Bengal and Ors.) where His Lordship Sabyasachi Mukehrji, J. held that no constitute manufacture there must be transformation or change of the raw material into a different marketable article. In 20 STC 430, Debidas Gopal Krishnan v. State of Punjab it was observed by the Supreme Court that the dictionary meaning of manufacture is "transform fashion of raw materials into a changed form or use. When oil is produced out of soil seeds the process transforms the raw material into a different article for use and as such it is manufacture. The process whereby scrap iron loses identity and becomes rolled steel sections, a new marketable commodity, is one of manufacture. " ( 16 ) IN the determination made in 23 STC 385 Commissioner of Sales Tax v. Dr. Sukh Deo it was held that mixture of different drugs prepared by a medical practitioner or by his employees for the use of a patient in the treatment of his ailment or discomfort diagnosed by the medical practitioner by his professional skill and which mixture was normally incapable of being passed from hand to hand as a commercial commodity, the medical practitioner supplying the medicines could not be said to be a manufacturer of medicines within the meaning of notification issued under S. 3a of the U. P. Sales Tax Act, 1948 and the medical practitioner would not be assessable to Sales Tax on the turnover of medicines so dispensed. It was tried to be contended on behalf of the respondents that this decision of the Supreme Court did not take notice of a Bench decision of this Court reported in 1 Sales Tax Cases 157, North Bengal Stores v. Board of Revenue, Bengal where it was held by a Division Bench of this Court that preparation of mixture of different drugs by a dispensing chemist according to the prescription of a physician is manufacture. Whatever may be the effect of this decision it cannot override the ratio decidendi of the case in 23 S. T. C. 385 which is binding on all courts according to Article 141 of the Constitution. ( 17 ) THUS on a conspectus of all the aforesaid decisions the following ingredients are necessary to constitute manufacture (a) that there must be change in substance and different article must emerge having a distinctive character and use from the raw material by the use of either by physical labour or by mechanical process. (b) The articles produced either by physical labour or by mechanical process will be on large scale and will pass as a commercial commodity from hand to hand. ( 18 ) IN bouquet or garland there is no change or transformation in substance nor any view article is brought different from flowers. There is not change in the nature and character of goods. When the thread or strings by which flowers are made into garlands are taken out it becomes flowers without any change in substance. Garlands and bouquets are made according to aesthetic tastes of the consumers and according to the skill and artistic mind of the florists who make them. As such garlands and bouquets prepared by different florists cannot be uniform. Moreover, garlands and bouquets once used are not saleable and they cannot pas like any other commercial commodity from hand to hand as they are not durable. ( 19 ) IN accordance with the directive of this Court informations were sought for from other States if garlands and bouquets were treated as manufacture and replies to this effect have been received from different States. It appears from the replies received that in Orissa flowers are liable to Sales Tax but there is no registered dealer in the State to manufacture garlands. It appears from the replies received that in Orissa flowers are liable to Sales Tax but there is no registered dealer in the State to manufacture garlands. In Madhya Pradesh flower is taxable under Madhya Pradesh Sales Tax Act and preparation of garlands and bouquets from it flowers is a process of manufacture for the purpose of the said Act. In Rajasthan, Hyderabad, Gujarat, Punjab and Madras flowers are exempt from Sales Tax and making of garlands is not treated as manufacture. In Bihar though flowers and garlands are subject to Sales Tax yet garlands and bouquets are not treated as manufacture. ( 20 ) IN the right of the observations made by the Supreme Court in the case mentioned before we hold that making of garlands and bouquet is not manufacture and the petitioner is not a dealer assessable to tax as a manufacturer. The orders of assessment passed under S. 11 (2) of the Act, therefore, in our considered opinion, illegal and unsustainable. Flower was taxable under the Act till May 9, 1963 and thereafter it was exempted from Sales Tax by its inclusion it the column 1 of schedule 1 to the West Bengal Sales Tax Act 1941. The gross turnover of the petitioner as a dealer in flower being much less than the taxable quantum as specified in sub-s. 5 of S. 4 of the said Act was not liable to registration and payment of tax under the Act. ( 21 ) IT appears that the respondent No. 3 completed an assessment of the petitioner for the period from 1st Baisakh 1370 BS to 13th Bhadra 1370 BS which corresponds to September 3, 1973. Admittedly flower was exempted from taxation from May 10, 1973 by its inclusion in the first column of schedule 1 to the said Act and as such the assessment made for the period from May 10 to September 3, 1963 is ex facie illegal and without jurisdiction. ( 22 ) THE next question that arises for consideration is whether the orders making best judgment assessments rejecting the tokcha book and estimating the turnover are arbitrary and capricious. Admittedly the petitioner who claims to be not a manufacturer and as such not a dealer assessable to tax did not file the returns of his turnover. ( 22 ) THE next question that arises for consideration is whether the orders making best judgment assessments rejecting the tokcha book and estimating the turnover are arbitrary and capricious. Admittedly the petitioner who claims to be not a manufacturer and as such not a dealer assessable to tax did not file the returns of his turnover. Tokcha book containing accounts of daily sale and purchase of goods by the petitioner was rejected by the Commercial Tax Officer, respondent No. 3 on the ground that there was no supporting vouchers and cash memos. The respondent No. 3 thereafter estimated the turnover of the petitioner according to the best of his judgment and completed assessments on the basis of such estimated turnover. It was contended that the respondent No. 3 should not have rejected the tokcha book and if the account was not clear and intelligible the Commissioner could have directed the petitioner to keep such accounts and record of sales in the manner prescribed as provided in S. 13 of the said Act. This being not done the order rejecting the books of account is unwarranted as contended on behalf of the petitioner. On a reading of S. 13 of the said Act it is apparent that the said provision applies only to the case of a registered or certified dealer and not to a dealer like the petitioner. It appears from the order of assessment of the years in question that the respondent No. 3 after rejecting the books of account produced by the dealer estimated the turnover without recording any reason or basis for arriving at such estimate. Nor it disclosed in the said order any material on the basis of which he drew his inference. In 17 S. T. C 215, Ramdhari Saha v. State of West Bengal it has been held by this Court that best judgment assessment must necessarily be to some extent arbitrary in all cases where returns were not filed by the assessee. So long as the assessing authority had acted honestly and not vindictively or capriciously in making a fair estimate of the figure of assessment, the assessment cannot be assailed on the ground that it had been made on surmise. So long as the assessing authority had acted honestly and not vindictively or capriciously in making a fair estimate of the figure of assessment, the assessment cannot be assailed on the ground that it had been made on surmise. If the assessing authority had proceeded on same material in drawing the inference, the estimate cannot be challenged nor can the order imposing liability for tax be assailed on the ground that the assessing authority had acted arbitrarily or capriciously. In 17 S. T. C. 465, State of Kerala v. V. C. Verukutti it has been observed by the Supreme Court that though there is an element of guess work in a best judgment assessment, it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case. In this case as the best on a capricious surmise unsupported by any relevant material the same could not be sustained. ( 23 ) FOR the reasons aforesaid all the contentions raised on behalf of the petitioners having succeeded this Rule is made absolute. The orders of assessment complained of as well as the certificate case No. 49 S. T. (TL) 67/68 are set aside. In the circumstances of the case there will be no order as to costs. Oral prayer for stay is refused. Rule made absolute.