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2009 DIGILAW 355 (CAL)

Heman Ductile Irons Ltd v. CESC Ltd

2009-05-06

BISWANATH SOMADDER, S.S.NIJJAR

body2009
Judgment : SURINDER SINGH NIJJAR, C.J. (1) Aggrieved against the judgment of the learned single Judge dated 23-12-2008 the petitioners have filed the present letters patent appeal. By the aforesaid common judgment the learned single Judge has dismissed writ petition No. 687 of 2003 and allowed writ petition No. 1265 of 2006. The petitioner is an industrial consumer of electricity supplied by respondent No. 1 (hereinafter referred to CESC Limited). Petitioners received a notice dated 20th of September, 2001 from CESC Limited alleging tampering with the seals of the meter and demanding a sum of Rs. 14,20,102.40 paise on account of unmetered illegal consumption of power. The petitioners challenged the aforesaid notice in W. P. No. 1903 of 2001. By an order dated 25th of September, 2001, the Court appointed an advocate and an electrical inspector to be appointed by the Chief Electrical Inspector, as Special Officers to visit the factory premises and file separate reports as to whether the meter bears any sign of tampering with any seal. In the same order the petitioners were directed to pay a sum of Rs. 3.80 lakhs without prejudice to his rights and contentions. The petitioners were also directed to deposit Rs. 26,030/- as costs and charges for replacement of a new meter and reconnection charges. It appears that the Special Officer was changed by order dated 27th September, 2001. Thereafter, the Special Officers visited the premises of the petitioners in terms of the order dated 25th of September, 2001. Two reports were submitted to this Court. On perusal of the same by a further order dated 28th of September, 2001 the Court directed one PRS Parmacel, the supplier of the seals to CESC Limited to depute experts for examination and/or testing of the seals at the factory premises. In the meantime, upon payment of a sum of Rs. 4,06,030/-, the electricity supply of the factory was restored on 30th September, 2001. After restoration of the supply the factory premises consumed electricity through meter No. 1994493. This matter was replaced on 29-4-2002 by a new matter being No. 1994618. In the meantime, upon payment of a sum of Rs. 4,06,030/-, the electricity supply of the factory was restored on 30th September, 2001. After restoration of the supply the factory premises consumed electricity through meter No. 1994493. This matter was replaced on 29-4-2002 by a new matter being No. 1994618. (2) The writ petition was disposed of by order dated 10th of December, 2001; the dispute was referred to the Chief Electrical Inspector to go into the question, upon inspection of the disputed meter, as to whether the seals were tampered with by the writ petitioners for the purpose of committing theft of electrical energy. This was necessitated as an objection was raised with regard to the impartiality of M/s. PRS Parmacel as it was the sole supplier of seals to CESC Limited. CESC Limited challenged the aforesaid order of the learned single Judge in appeal. This appeal was disposed of by a consent order dated 12-4-2002 which reads as under :- "CESC Limited will install a meter duly tested and certified by the office of the Chief Electrical Inspector within 5 days, expenses of testing will be borne by the writ petitioner, after removing the existing meter and in course of such removal, if any Holographic/ Roto Seal(s) is/are damaged then CESC Limited will not rely on such damaged Holographic/Roto Seal(s). For the purpose of supervising the process of removal of the existing meter at the consumers premises and installation of the tested meter Mr. Subhasis Chakraborty an Advocate of this Court is appointed Special Officer who will remain present at the site in question at the time of removal of the existing meter and installation of the tested meter upon notice to and in presence of Chief Electrical Inspector or his authorized representative. The Special Officer shall make a record of the Holographic/Roto seal(s) which will be disturbed at the time of removal of the existing meter. The Special Officer shall also make a record of the other Holographic/Roto seal(s) which will remain undisturbed. The Chief Electrical Inspector or his authorized representative shall also record defects found, if any, on the metering circuit during the process of removal of the existing meter and installation of the tested meter. The Special Officer shall forward the copy of the minutes of the meeting to the Adjudicating Officer of CESC Limited as also to the Chief Electrical Inspector. The Special Officer shall forward the copy of the minutes of the meeting to the Adjudicating Officer of CESC Limited as also to the Chief Electrical Inspector. The existing meter, after removal, shall be kept in a sealed box duly countersigned by the representatives of CESC Limited, writ petitioner and the Special Officer and the same shall be sent by the Special Officer for testing of the undisturbed Holographic seal(s) and Roto seal(s) to the Dean of Faculty of Engineering and Technology, Jadavpur University who shall forward the report of such testing to the Adjudicating Officer of CESC Ltd. Cost and expenses of such testing shall be borne by the petitioner. The Dean of Faculty of Engineering and Technology, Jadavpur University shall then forward the meter in a sealed cover to the Chief Electrical Inspector under intimation to CESC; Limited, the writ petitioner and the Special Officer. The Chief Electrical Inspector shall, after testing the meter and after hearing the parties and looking into relevant records that may be placed by the parties including the minutes of the Special Officer, adjudicate as to the actual consumption for the period from October 25, 2001 till the meter is replaced. The Chief Electrical Inspector shall decide the matter within a period of 4 weeks from the date of receipt of the meter from Jadavpur University after affording opportunities of hearing to the parties. After installation of the tested meter CESC Limited shall raise monthly energy bills on the basis of that meter, and the writ petitioner shall go on paying such bills. Till installation of the tested meter as above, bill shall be raised on the basis of recording of such meter at the Sub-Station of CESC Limited and the petitioner shall pay the same without prejudice and subject to Award of the Chief Electrical Inspector or his authorized representative. After the dispute is resolved by the Chief Electrical Inspector and the liability of the writ petitioner for the period from October 25, 2001 till date of replacement of the Meter as mentioned above is crystalised, appropriate credit shall be given to the writ petitioner for the payments already made by him during the said period. After giving such credit, if any amount is payable by the writ petitioner, the writ petitioner shall pay the same with Delayed Payment Surcharge. After giving such credit, if any amount is payable by the writ petitioner, the writ petitioner shall pay the same with Delayed Payment Surcharge. Similarly, if any amount is found to be refundable to the writ petitioner for the said period the same shall be adjusted from the future bill of the writ petitioner along with the same rate of interest as that of Delayed Payment Surcharge chargeable by CESC Limited. The authorities of CESC Limited will make necessary arrangement to take the Special Officer at the site in question. The Special Officer will be entitled to a remuneration of 300 gms. to be paid equally by CESC Limited and the Writ Petitioner. The Adjudicating Officer of CESC Limited shall dispose of the matter relating to the period from August 16, 2001 till September 24, 2001 after receiving the report of the Jadavpur University and the Special Officer within a period of 4 weeks upon affording reasonable opportunity of hearing to the Writ Petitioner." (3) In view of the directions issued by the Division Bench, the Adjudicating Officer assessed the amount due and payable by the petitioners. The assessment made by the Adjudicating Officer was challenged by the petitioners before the appellate authority of CESC Limited. The appeal was dismissed by order dated 25th of February, 2003. This order was challenged by the appellants in W. P. No. 687 of 2003. Similarly, pursuant to the order of the Division Bench the Deputy Chief Electrical Inspector, West Bengal, adjudicated the actual consumption of electricity by the appellants for the period from 25th of October, 2001 till 29th of April, 2002. A detailed order was passed on 27th of September, 2002. Ultimately, the following directions were issued :- "However, considering the above facts, counter arguments and submissions, it reveals that meter reading seems to be incorrect but all the other seals at the V T Jumper are in order and the meter after thoroughly testing was detected as set right condition as per report of testing Department. Therefore it is ordered :-That the Bills for the disputed period shall be revised as per average of actual meter reading consumption for the period of August 1, Sept. 1, Oct. Therefore it is ordered :-That the Bills for the disputed period shall be revised as per average of actual meter reading consumption for the period of August 1, Sept. 1, Oct. 1 before the installation of the actual meter (which after testing found O. K) i.e. average of three months to be taken into consideration;" (4) The appellants claim that on the basis of the aforesaid order the petitioners would be entitled to obtain a refund of a sum of Rs. 38,08,044.88/-. (5) Against the aforesaid observations CESC Limited filed an appeal which was heard by the Officer on special duty and ex officio Special Secretary, Depart, of Power, Government of West Bengal. By order dated 16th of May, 2006 the appeal was allowed with the following observations :-"Hence, I find that the Deputy Chief Electrical Inspector as the authorized representative of Chief Electrical Inspector had the jurisdiction to hear the matter and dispose of the same. I find that the Deputy Chief. Electrical Inspector failed to calculate the actual consumption for the period from 25-10-2001 to 29-4-2002 as per the directives of the Honble High Court. Hence, I set aside the order passed by Shri A. K. Das, Deputy Chief Electrical Inspector on 27-9-2002 in the above matter." (6) W. P. 1265 of 2006 was filed by the appellants challenging the aforesaid order. (7) The learned Single Judge after considering the aforesaid facts and the legal submissions has dismissed W. P. No. 687 of 2003. W. P. No. 1265 of 2006 has been disposed of with the directions to the appellant authority to take a fresh decision on the appeal in accordance with law. (8) We have heard the learned counsel for the parties. (9) Mr. Pratap Chatterjee, learned senior counsel for the appellants, submitted that the learned Single Judge after correctly noticing the test, that the parties are required to be put to notice about the material to be taken into consideration, has failed to apply the same in the case of the appellants. In this case the appellants had clearly pleaded that the load survey data in respect of the meter installed at the factory for the period from 16th of August, 2001 to 24th of September, 2001 was not disclosed to the appellants. The appellants were clearly deprived of an opportunity to make submissions regarding the aforesaid data. In this case the appellants had clearly pleaded that the load survey data in respect of the meter installed at the factory for the period from 16th of August, 2001 to 24th of September, 2001 was not disclosed to the appellants. The appellants were clearly deprived of an opportunity to make submissions regarding the aforesaid data. The learned Single Judge had observed that the adjudicating authority is required to put the parties on notice about any material which would be taken into consideration and give them an opportunity to explain it. The learned Single Judge also observed that in the process the adjudicating authority has to ensure that the parties have the liberty of having copy of the same or taking notes there from. The learned Single Judge clearly held that In fine, the requirement would be met if the parties have access thereto at the time of hearing. Having held so, the learned Single Judge erred in observing as follows:- "............The position would, however, be different if the adjudicator finds that the parties before him have in their possession documents that may be of some relevance in deciding the lis. At the time of hearing, it may not be necessary for the adjudicator in such case to express his mind before the parties that he intends to rely on a particular document out of several documents which might be in their possession. If any particular document contains material adverse to the interest of a party and that party is of the opinion that the said document ought not to be considered by the adjudicator as it is either irrelevant or immaterial or it contains incorrect data, it is for that party in course of hearing to ventilate a grievance in respect thereof before him. Rules of natural justice would be complied with if reasonable opportunity is given to the parties to present their respective cases before the adjudicator. It appears in the present case that the petitioners did have the readings of the monitor meter with them much prior to initiation of proceedings before the Appellate Officer. If the petitioners were aggrieved by and/or dissatisfied with the contents of the said document, it was open to them to contend before the Appellate Officer that he ought not to rely on the same. If the petitioners were aggrieved by and/or dissatisfied with the contents of the said document, it was open to them to contend before the Appellate Officer that he ought not to rely on the same. However, the Appellate Officer was under no obligation to convey to the petitioners at the time of hearing that the same would ultimately be considered by him while passing the final order. The petitioners, without doubt, had been extended reasonable opportunity to explain it............" (10) ( 10) Mr. Chatterjee submitted that the aforesaid observations are contrary to basic principles of rules of natural justice. It is submitted that without knowing as to which document was to be relied upon by the adjudicating authority it was impossible for the appellants to have made submissions on the contents or the veracity of the same. Learned counsel relied on Division Bench of Judgment in Mrinal Kanti Das Burman v. State of West Bengal and Ors. 1976 (1) CLJ 571 to emphasize the importance of the principle that the Court would decline to consider any material against a party without due notice. Learned counsel also relied on judgments of the Supreme Court in the cases of :- (1) Km. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors; AIR 1990 SC 1402 , (2) Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal, AIR 1955 SC 65 , (3) C. I. T. (Central), Calcutta v. Daulat Ram Rawatmull; (1973) 3 SCC 133 : (1972 Tax LR 1174), (4) S. L. Kapoor v. Jagmohan and Ors., (1980) 4 SCC 379 . (11) On the. basis of the aforesaid judgments learned counsel for the appellants submitted that the entire proceedings before the appellate authority in the order dated 25th of February, 2003 are vitiated. (12) On the other hand, Mr. Utpal Bose submits that the report of the Dean of Jadavpur University clearly shows that the seals were tampered with. Monitor meter had been duly installed. Appellants have only challenged the order on one ground, i.e., non-supply of relevant documents. This according to the learned counsel is contrary to the findings recorded by the appellate authority. According to the aforesaid order, the appellants had opportunity to know the details of the consumption pattern in respect of the meter. Monitor meter had been duly installed. Appellants have only challenged the order on one ground, i.e., non-supply of relevant documents. This according to the learned counsel is contrary to the findings recorded by the appellate authority. According to the aforesaid order, the appellants had opportunity to know the details of the consumption pattern in respect of the meter. In any way, the appellate authority had clearly recorded that the load survey data for the period from 16-8-2001 to 24-9-2001 in respect of the meter had been placed before and was duly considered by the Chief Electrical Officer. The appellants were all along aware of the load survey data. The appellants had accepted this position. It was the cumulative effect of the findings of the Jadavpur University as well as the other relevant data that lead to the findings that the appellant is guilty of pilferage of electricity. In any case, no prejudice has been caused to the appellants. Therefore, the principles laid down by the Supreme Court in the case of S. L. Kapoor ( AIR 1981 SC 136 ) (supra) would not be applicable. Learned counsel relied on a number of judgments in support of the submissions that there has to be judicial restraint in judicial review of the decisions rendered by quasi-judicial authorities. Learned counsel relied on the judgments of the Supreme Court in the cases of (1) Union of India and Ors. v. Flight Cadet Ashish Rai; (2006) 2 SCC 364 : ( AIR 2006 SC 1243 ), (2) Transmission Corporation of A. P. v. Ch. Prabhakar and Ors., AIR 2004 SC 3368 , (3) Swapan Kumar Pal v. Achintya Kumar Nayak and Ors. (2008) 1 SCC 379 : (2007 AIR SCW 6794), (4) Tata Cellular v. Union of India; (1994) 6 SCC 651 : ( AIR 1996 SC 11 ). Learned counsel also relied on the judgment of the Supreme Court in the case of Haryana Financial Corporation and Ann v. Kailash Chandra Ahuja (2008) 9 SCC 31 : (2008 AIR SCW 6055) for the submission that to succeed on the ground of breach of rules of natural justice, the appellants would have to show what prejudice has been caused to it. (13) Mr. (13) Mr. Pratap Chatterjee, however, submitted that the findings recorded by the Appellate Authority clearly show that the materials that were placed before the Deputy Chief Electrical Inspector have been considered by the Appellate Authority. Clearly, therefore, the appellants have been condemned unheard. (14) We have considered the submissions of the learned counsel for the parties. (15) It is a matter of record that the relevant period of dispute between the parties was bifurcated into two separate segments. The adjudication of the dispute for the period from 16-8-2001 to 24-9-2001 was to be done by the Adjudicating Officer of the CESC Limited. Dispute with regard to the period from 25th of October, 2001 to 29th of April, 2002 was to be adjudicated by Deputy Chief Electrical Inspector. It is not disputed before us that the documents which were relied upon by the Adjudicating Officer were available to the appellants. Therefore, it was not necessary to give any further notice to the Appellants. In the case of Mrina! Kanti Das Burman (supra) the Court declined to examine the documents with the following observations :- "28. At the hearing of these Rules we enquired from the learned Advocate General, who appeared on behalf of the respondents as to whether the State proposed to claim any privilege regarding the production of the original records relating to the passing of the aforesaid orders under Article 311(2) proviso (c) against the petitioners of these two Rules. The learned Advocate General submitted that the Government did not propose to claim any privilege. At the same time, the respondents signified their unwillingness to bring the said records and any further materials relating to the passing of the impugned orders. The learned Advocate General submitted that he, however, had no objection to show the relevant files to us provided the same were not disclosed to the petitioners. We declined to peruse the files behind the back of the petitioners as it would be a flagrant disregard of judicial principles to decide these two Rules on the basis of our personal knowledge about the contents of these files without affording any opportunity to the petitioners to meet the allegations that might have contained in the files." (16) These observations, in our opinion, would not be applicable in the facts of this case as clearly the appellants were in possession of the relevant documents. The only grievance made by the appellants, in this case, is that they did not know as to which particular document would be relied upon by the Appellate Authority. In the case of Km. Neelima Misra ( AIR 1990 SC 1402 ) (supra) the Supreme Court culled out the principles with regard to exercise of quasi-judicial functions and the nature of quasi-judicial decisions. It has been held that all quasi-judicial decisions ought to be made by observing the rule expressed in the Latin maxim audi alteram partem. Therefore, the decision maker should afford to any party to a dispute, an bpportunity to present his case. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. It has also been held that there is a shift now to a broader notion of fairness or fair procedure. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly, depending upon the context and considerations. In our opinion, the observations made by the Trial Court are not in contravention of the ratio of law laid down in the case of Km. Neelima Misra ( AIR 1990 SC 1402 ) (supra). In the case of Dhakeswari Cotton Mills Ltd. ( AIR 1955 SC 65 ) (supra). The Supreme Court observed as follows :- "(9). In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next, it did not give any opportunity to the company to rebut the material furnished to it by him, and lastly, it declined to take all the material that the assessee wanted to produce in support of its case. The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by the Income-tax Officer and the Tribunal seems to be based on surmises, suspicions and conjectures.........." (17) These observations, in our opinion, would not be applicable in this case. The Tribunal acted on information supplied by the departmental representative which were not disclosed to the assessee. The estimate of the gross rate of profit on sales, both by the Income-tax Officer and the Tribunal seems to be based on surmises, suspicions and conjectures.........." (17) These observations, in our opinion, would not be applicable in this case. The Tribunal acted on information supplied by the departmental representative which were not disclosed to the assessee. As noticed above, in the present case the appellants were in possession of the relevant documents. They were aware of the case that they were required to answer. The parties have been engaged in continuous litigation, on the same subject-matter in one form or another. Therefore, no credence can be given to the plea of ignorance or presumed prejudice, advanced by the appellants. In the case of C. I. T. (Central), Calcutta (1972 Tax LR 1174) (supra), the Supreme Court observed as follows :- "12. When a Court of fact acts on material partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises.................." (18) These observations are also not relevant in the case of the appellants as all the necessary documents were made available. In the case of S. L. Kapoor ( AIR 1981 SC 136 ) (supra) the Supreme Court observed as follows :- "24. In our view, the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. (19) These observations again would not be applicable in the facts and circumstances of the present case as it is not the case of the appellants that the documents were not made available. The only grievance is that the appellants were not aware as to which document would be relied upon. (20) We find merit in the submissions made by Mr. Bose that the appellants have taken this plea at a belated stage before the learned Single Judge as an afterthought. The only grievance is that the appellants were not aware as to which document would be relied upon. (20) We find merit in the submissions made by Mr. Bose that the appellants have taken this plea at a belated stage before the learned Single Judge as an afterthought. In our opinion, it was incumbent on the appellants to plead as to what prejudice had been caused by the non-disclosure of data survey report. In such circumstances, we are of the opinion that the ratio of law laid down in the case of Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors., (1993) 4 SCC 727 : ( AIR 1994 SC 1074 ) would be more relevant. In the aforesaid judgment it was held as follows :- "30............. (v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. Where, therefore, even after the furnishing of the report, no different consequence would have followed it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice." (21) These observations have been reiterated by the Supreme Court in the case of Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja ( 2008 (9) SCC 31 ) : (2008 AIR SCW 6055) in the following words :- "21. From the ratio laid down in B.Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the Court on that point, the order of punishment cannot automatically be set aside." (22) We also find merit in the submissions of Mr. Bose that the appellants have failed to show that the decision making process in the proceedings is either illegal, irrational or arbitrary. It is well settled that judicial review is not concerned with reviewing merits of the decision, but the decision making process itself. Undoubtedly, if an adjudication is made by quasi-judicial authority by adopting a procedure which has led to a breach of rules of natural justice, the same would be amenable to judicial review. But the scope of judicial review of the decisions rendered by quasi-judicial authorities is confined within very narrow limits. In the case of Union of India and Ors. Undoubtedly, if an adjudication is made by quasi-judicial authority by adopting a procedure which has led to a breach of rules of natural justice, the same would be amenable to judicial review. But the scope of judicial review of the decisions rendered by quasi-judicial authorities is confined within very narrow limits. In the case of Union of India and Ors. v. Flight Cadet Ashish Rai ( AIR 2006 SC 1243 ) (supra) , the Supreme Court reiterated the principles to be observed by the Court while assessing judicial review in the following words:-"6. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the Court is (a) to confine itself to the question of legality; (b) to decide whether the decision-making authority exceeded its powers; (c) committed an error of law; (d) committed breach of the rules of natural justice; and (e) reached a decision which no reasonable tribunal would have reached; or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner : (i) Illegality : this means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety." (23) We are of the considered opinion that the appellants have failed to bring on the record any material which would tend to show that the decision making process of the authorities suffers from such arbitrariness or irrationality, so as to fall within the Wednesbury Principle. (24) We find no merit in the appeal. (25) The appeal is, thus, dismissed. (26) Later The learned counsel for the appellants prays for stay of the operation of this judgment and order which is considered and rejected. Appeal dismissed.