Full Judgment Text
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PETITIONER:
PRITAM SINGH CHAHIL
Vs.
RESPONDENT:
STATE OF PUNJAB AND ORS.
DATE OF JUDGMENT:
01/02/1967
BENCH:
RAO, K. SUBBA (CJ)
BENCH:
RAO, K. SUBBA (CJ)
SHAH, J.C.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.
CITATION:
1967 AIR 930 1967 SCR (2) 536
CITATOR INFO :
RF 1967 SC1776 (7)
RF 1972 SC2097 (6)
RF 1976 SC2316 (19)
D 1976 SC2363 (11)
ACT:
Pepsu Tenancy and Agricultural Lands Act, 1955, as amended
by Act XV of 1956 and Act III of 1959, s. 32FF--Ceiling
fixed on land under personal cultivation of
landholder--Transfers to certain relations to be ignored for
purpose of ceiling-Such relations enumerated by r. 23A
framed under the Act by Government--Validity of s. 32FF-
Whether suffers from excessive delegation-Right under Art.
31A, 2nd proviso, Constitution of India, whether affected.
HEADNOTE:
The petitioner owned certain land in the erstwhile State of
Pepsu. After August 21, 1956 he transferred one half of the
said land in favour of his wife. After this transfer the
land remaining in the hands of the petitioner was less than
the ’ceiling of 30 standard acres prescribed by the Pepsu
Tenancy and Agricultural Lands Act, 1955 as amended by Act
XV of 1956. However by s. 32FF introduced into the above
Act by Art III of 1959 it was laid down that transfers of
land after August 21, 1956 to certain relations (to be named
by the State Government) were not to affect the right of the
State Government under the Act to the surplus area to which
it would be entitled but for such transfer or disposition.
By r. 23A framed under the Act the State Government
prescribed the relations. Relying upon s. 32FF and r. 23A
the Special Collector, Chandigarh included in the total area
held by the petitioner the land transferred by him in favour
of his wife and served on him a draft statement holding that
a certain extent of big land was surplus area. The
petitioner filed a petition under Art. 32 of the
Constitution challenging the Special Collector’s order and
the validity of the Act.
It was urged in support of the petition that : (i) By adding
the land transferred to certain relations to the land held
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by a, person under his cultivation for the purpose of
determining the ceiling and the surplus area s. 32FF of the
Act. and r. 23 of the rules made thereunder contravened Art.
31A, 2nd proviso; (ii) The legislature without enumerating
the relations or indicating some principles for ascertaining
the relations abdicated its legislative function and
delegated it to the State Government to prescribe the
relations and therefore s. 32FF was void; (iii) The rules
prescribed for fixing compensation for the land acquired
were ultra vires because they did not take into account the
current’ value of the cronraised thereon; and the State
therefore( was interfering with the petitioner’s right to
the land, unsupported by law,
HELD: (i) Section 32FF was enacted in order to prevent
transfer of land to relations with a view to evading the
provisions of the 1956 Act which imposed a ceiling on the
land under the personal cultivation of the landholder. The
Legislature certainly is competent to make such a law. The
validity of such a provision may perhaps be questioned under
certain circumstances on the ground that it is an
unreasonable restriction within the meaning of Art. 19(2) of
the Constitution. But that was not open to the petitioner
as the amending Act giving retrospective operation relates
to an ’estate. Therefore Art. 31A operates as a bar against
raising any such
537
question. Section 32FF is therefore valid and as the land
acquired in the present case was admittedly above the.
ceiling, the second proviso to Art. 31 had no application.
[541 A-D]
(ii)From the mere fact that the enumeration of relations for
the purpose of s. 32FF is left to the State Government it
cannot be said that the Legislature had abdicated its
function. It has clearly laid down the policy and on the
basis -of that policy enumeration can easily be worked out.
The expression ’relation’ is comprehensive and has a local
significance. The relatives must be such as those in whose
favour benami transactions are usually entered into or those
whose benefit is indirectly the benefit of the transferor
himself. It is such relations who are mentioned in r. 23A
although the mention of sisters has been omitted by mistake.
[541 EG]
(iii) The validity of the rules prescribed for fixing
compensation could not be decided by the Court for want of
relevant materials on the record. [545 HI
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 110 of 1966.
Petition under Art. 32 of the Constitution of India for en-
forcement of fundamental rights.
K. P. Bhandari and R. Gopalakrishnan, for the petitioner.
Gopal Singh and R. N. Sachthey, for respondents Nos.1 and 3.
R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
SubbaRao, C.J. This is a petition under Art. 32 of the
Constitution of India for a declaration that the provisions
of Sections 32A9 32D, 32E, 32FF and 32G of the Pepsu Tenancy
and Agricultural Lands Act, 1955, as amended by Act XV of
1956, hereinafter called the Act, are illegal, ultra vires
and unconstitutional and for a declaration that the
provisions of Rule 28 of the Pepsu Tenancy and Agricultural
Lands Rules, 1958, hereinafter called the Rules, are illegal
and void, and for restraining the respondents from
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dispossessing the petitioner from his land under the provi-
sions thereof.
The facts may be briefly stated : The petitioner owned land
measuring about 284 bighas situated in village Narinderpura.
In the year 1956 he transferred one half of the said land in
favour of his wife Shrimati Charanjeet Kaur. Excluding the
land so transferred, the land remaining in the hands of the
petitioner is admittedly below the ceiling prescribed under
the Act. On October 30, 1956, Act XV of 1956 was passed by
the Legislature of the Patiala and East Punjab Union. It
amended the Pepsu Tenancy and Agricultural Lands Act, 1955.
By the amendment Chapter 4-A was added to the earlier Act
and also a ceiling was imposed on land under personal
cultivation. The petitioner is admittedly in personal
cultivation of his land, which, excluding that sold to his
wife, is below the ceiling prescribed under the Act.
538
On January 14,:1959 the Punjab Legislature passed Pepsu
Tenancy and Agricultural Land (Amendment) Act, 1959, (Act
III of 1959). Under the said amending Act, no transfer or
other disposition of land effected after August 21, 1956,
except in favour of persons mentioned thereunder, shall
affect the right of the State Government under the Act to
the surplus area to which it would be entitled but for such
transfer or disposition’s Relying upon that section and
including in the total area held by the petitioner the land
transferred by him in favour of his wife the Special
Collector, Chandigarh, on May 31, 1962, served a draft
statement on the petitioner holding that certain extent of
land was surplus area. The petitioner, questioning the
order of the Collector on various grounds, filed this
petition for the enforcement of his fundamental rights.
The learned counsel for the petitioner raised before us the
following three points : (1) The provisions of ss. 32A, 32D,
32E, 32FF, 32G and 32P of the Act are inconsistent with the
second proviso to Art. 31A of the Constitution; (2) the
provisions of s. 32FF, read with r. 23A of the Rules, amount
to delegation of legislative. power-, and (3) the provisions
of r. 28 of the Rules are inconsistent with the provisions
of s. 32G of the Act and therefore Art. 31A is not a bar
against the enforcement of the petitioner’s fundamental
right under Arts. 19, 13(2) and 14 of the Constitution.
To appreciate the scope of the first question it is
necessary to read the relevant provisions of the Acts and
the Constitution. The second proviso to Art. 31-A of the
Constitution reads:
"Provided that where any law makes any
provision for the acquisition by the State of
any estate and where any land comprised
therein is held by a person under his personal
cultivation, it shall not be lawful for the
State to acquire any portion of such land as
is within the ceiling limit applicable to him
under any law ;for the time being in
force . . . unless the law relating to the
acquisition of such land..............
provides for payment of compensation at a rate
which shall not be less than the market value
thereof."
Section 3 of Pepsu Tenancy and Agricultural Lands Act, 1955
as amended by Act XV of 1956 provides
"Permissible limit for the purpose of this Act
is thirty’ standard acres of land and where
such thirty standard acres on being converted
into ordinary acres exceed eighty acres, such
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eighty acres
Section 32-A provides
" Notwithstanding anything to the contrary
in any
law custom, usage or agreement, no person
shall be
539
entitled to own or hold as landowner or tenant
land under his personal cultivation within the
State which exceeds in the aggregate the
permissible limits."
Section 32-E provides
"Notwithstanding anything to the contrary
contained in any law, custom or usage for the
time being in force, and subject to the
provisions of Chapter IV, after the date on
which the final statement in respect of a
landowner or tenant is published in the
Official Gazette, then-
(a) in the case of the surplus area of the
landowner . . . . . . . . which is not
included within the permissible limits of the
land owner, such area shall on the date on
which possession thereof is taken by or on
behalf of the State Government be deemed to
have been acquired by the State Government for
a public purpose and all rights, title and
interest of all persons in such land shall be
extinguished, and such rights, title and
interest shall vest in the State Government
free from encumbrances created by any person".
Section 32FF inserted by the Punjab Act III of
1955 reads as under
"Save in the case of land acquired by the
State Government under any law for the time
being in force or by an heir by inheritance
held by a small landowner or not being a
relation as prescribed of the person making
the transfer or disposition of land, for
consideration up to an area which with or
without the area owned or held by him does not
in aggregate exceed the permissible limit no
transfer or other disposition of land effected
after 21st August 1956, shall affect the right
of the State Government under this Act to the
surplus area to which it would be entitled but
for such transfer or disposition".
Rule 23A of the Rules of Pepsu Tenancy and
Agricultural Lands Rules, 1958 reads as under
"For the purposes of s. 32FF of the Act, the
prescribed relations shall be the wife or
husband, male or female descendants and the
descendants of such female, father, mother,
father’s or mother’s sister, brother and his
descendants, mother’s brother and his
descendants, wife’s brother and sister’s
husband."
The gist of the said provisions may be stated thus: No
person shall be entitled to own or hold as landowner or
tenant land under his personal cultivation exceeding the
Permissible limit, that is, thirty standard acres. Any land
in excess of the permissible limit
540
vests in the State. Under Act III of 1959, the Act was
amended and for the purposes of ascertaining the surplus
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land, the land transferred after August 21, 1956, in favour
of the persons mentioned in r. 23A was added to his. land
and if the total thereof was above the permissible area, the
surplus would vest in the State Government. To put it
differently, the said transfer is ignored and the surplus
area is ascertained. In the instant case if the transfer by
the petitioner in favour of his wife is not ignored, the
petitioner’s land would be within the permissible area. But
if ignored it would be above that area. Admittedly also
under the provisions of the Act, compensation payable in
respect of the surplus area is not its market value but that
ascertained 1 in the manner prescribed by the Act and the
Rules made thereunder. Under the second proviso to Art. 31A
of the Constitution. if the State acquires any portion ,of
land which is within the ceiling limits, it shall pay
compensation at a rate which shall not be less than the
market value thereof."
Learned counsel for the petitioner contends that s. 32FF,
inserted by Punjab Act III of 1959 , where under land
validly transferred after August 21, 1956, is added to the
transferor’s land for the purposes of ascertaining the
ceiling offends the second proviso to Art. 31A. It is
argued that while under the said second proviso a person is
entitled to market value in respect of the land below the
ceiling acquired from him, s 2FF by a fiction statutorily
raises the ceiling. The answer to the question raised
depends upon the constitutional validity of s. 32FF of the
Act. It is not disputed that the Parliament can make an Act
in respect of the matters within its purview either
prospectively or retrospectively. It is a well known
legislative device to put an earlier date in order to
prevent the evasion of an impending statute. It appears
that on August 13, 1956, the Pepsu Tenancy and Agricultural
Second Amendment Bill, 1956 was published in Pepsu Gazette
Extraordinary fixing the permissible limits of a landholder
and introducing some provisions against the eviction of
tenant in possession of lands above the said limits. The
statement of objects and reasons reads thus
"The necessity for introducing certain
agrarian reforms particularly with a view to
Protecting the tenants against eviction and
fixing for allottees a higher limit for
reservation of land for personal cultivation
was being felt for some time past. This bill
seeks to achieve the object by amending the
Pepsu Tenancy and Agricultural Lands Act,
1955."
The proposal to introduce the said bill must have caused
apprehension in the minds of the landowners that they would
lose the lands above the permissible area and naturally they
must have transferred their lands in favour of their
relatives. Section 32FF
541
was added to frustrate such devices and to make the
enforcement of the Act really effective. Under the said
section such a transfer made after August 21, 1956, shall
not affect the rights of the State Government under the Act
to the surplus area to which it would be entitled but for
such transfer. Between the transferor and the transferee
the transfer would be good, but it would not be effective
against the State Government. That is to I say for
ascertaining the surplus area the land transferred would It
included in the transferor’s land. Out of the total extent,
the land above the ceiling, that is the permissible limit,
would be the surplus land. The Legislature certainly is
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competent to make such a law. The validity of such a
provision may perhaps be questioned under certain
circumstances on the ground that it is.an unreasonable
restriction within the meaning of Art. 19(2) of the
Constitution. But that is not open to the petitioner as the
amending Act giving retrospective operation relates to an
"estate’. Therefore, Art. 31A operates as a bar against
raising any such question. We, therefore, hold that s. 32FF
is valid and as the Ian, I acquired is admittedly above the
ceiling, the second proviso to art 31A has no application.
The second point also has no merits. Under s. 32FF of the
Act, transfers in favour of relations prescribed have to be
ignored. The contention is that the Legislature without
enumerating the relations or indicating some principles for
ascertaining the relations abdicated its legislative
function and delegated it to the State Government to
prescribe the relations and, therefore, the said section is
void. From the mere fact that the ’enumeration of the
relations is left to the State Government, we cannot say
that the Legislature has abdicated its function. It has
clearly laid down the policy and on the basis of that policy
enumeration of the relations can easily be worked out. The
expression ’relation’ is comprehensive and has a local
significance The relatives must be such as those in whose
favour benami transactions are usually entered into, or
those whose benefit is indirectly the benefit of the
transferor himself. The fact that under r. 23A
comparatively distant relations are mentioned but the sister
is omitted, is relied upon to prove the indefiniteness of
the policy laid down in the Act. But a perusal of r. 23A
shows that all relations are mentioned, but, by some
mistake, sister is omitted. We, therefore, reject this
contention.
The next argument covers a wider fiel 1. It may be put thus.
The Act provided for acquisition after paying compensation
in the manner prescribed. But the Rules prescribing the
fixation of compensation are ultra vires the Act and,
therefore, they are not valid rules in that regard.
Fixation of compensation is an integral part of acquisition.
There cannot be an acquisition under the Act without payment
of compensation. With the result there
542
is no valid law enabling the State to acquire the lands of
the petitioner. The petitioner is not questioning the law
of acquisition on the ground that it infringes the
fundamental right under Art. 19, 14 or 31, but complains
that the State is infringing his fundamental right under
Art. 19 without any valid law to support its action. So
stated there is considerable force in the argument. But the
whole edifice would be brought down if the Rules prescribing
the compensation are valid, for, in that event, the
petitioner’s fundamental rights are infringed under the law
of acquisition and by Of Art. 31-A he cannot question the
validity of the law on the ground that it infringes the
three fundamental rights mentioned therein.
At this stage the argument advanced by learned counsel for
the respondents that the decision of this Court in The State
of Bihar v. Maharajadhiraja Sir Kameshivar Singh of
Darbhanga(1) concludes the matter against the petitioner on
the question raised by him may be noticed. In that case
one of the contentions raised was that the Bihar Land
Reforms Act, 1950 (XXX of 1950) and other Acts were ultra
vires the Constitution for want of legislative competency,
as law made under Entry 36 of List II of the Seventh
Schedule to the Constitution should provide for compensation
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and as the Acts did not provide for compensation, they were
void. This argument was built upon the contention that
under Entry 36 of List II of the Seventh Schedule only a law
of acquisition could be made that the existence of a’ public
purpose and an obligation to pay compensation are the
necessary concomittants of compulsory acquisition of private
property, and that, therefore, the term "acquisition" must
be construed as importing, by necessary implication, the two
conditions aforesaid. This Court held that the expression "
acquisition" in Entry 36 of List II did not take in the
concept of compensation and, therefore, the Acts could not
be said to be bad for want of legislative competence. Be
that as it may, this judgment has no real bearing on the
question raised before us. The point taken is quite a
different’, one. namely, the Legislature made a law of
acquisition providing for fixation of compensation in the
manner prescribed and that the rules prescribing the said
manner are ultra vires the statute, and therefore, the State
is interfering with the petitioner’s right unsupporte 1 by
law.
To appreciate the argument it will be necessary to consider
the relevant provisions of the Act and the Rules made
thereunder. Under s. 32-G of the Act, "where any land is
acquired under s. 32E, there shall be paid compensensation
which shall be determined by the Collector or any other
Officer in the manner and in accordance with the principles
hereirnafter set out." One of the principles is that in
respect of land other than banjar land for the first 25
standard acres of land the compensation payable is 12 times
the
(1) [1952] S.C.R. 889.
543
fair rent. Under the proviso the compensation in no case
can be less than 90 times the land revenue (including the
rates and cesses) payable for the land or two hundred rupees
per acre, whichever is less. Under sub-s. (2) of s. 32G,
the Collector or the officer authorised by the State
Government shall prepare a compensation statement in the
form and manner prescribed. Under r. 28 of the Rules the
mode of determination of fair rent an, 1 classification of
soils are given. The relevant provisions of the $aid rule
on which such reliance is placed in support of the argument
reads
Rule 28. Determination of fair rent and classification of
soils
(1) Fair rents shall be determined by the
Commission for each assessment circle as
recognised at the last Settlement.
(2) In determining fair rents, the
Commission shall,-
(1.) follow the principles laid down in rules
1 to 12 of the Land Revenue Rules, 1929, which
shall be applicable mutatis mutandis and
subject to the amendment that the average
yield per acre of any crop given and The last
Settlement Report shall be adopted; and
(2) take into account such other factors,
not being inconsistent with the provisions of
the Act and these rules, as it may
consider necessary.
(3) The Commission shall, as far as
possible, adhere to the classification of
soils as adopted at the last Settlement, and
where it feels that owing to any circumstance
which may have developed since the last
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Settlement, reclassification of soils in any
area has become necessary, it shall, while
reclassifying soils, in view the principle
that -classification should be as simple as
possible and be based on broad differences of
a fairly permanent character which affects in
a marked degree the economic rental of the
land."
Under rr. 1 to 12 of the Land Revenue Assessment Rules,
1929, the following procedure is prescribed: ’,An estimate
of net assets shall be framed on the basis of rents in kind
paid by tenants at will prevailing in, the estate or group
of estates under consideration. That estimate is made by
taking into consideration the relevant factors mentioned in
sub-r. (2) of r. 1, namely, (a) the average, acreage of each
crop on each class of land for which it is proposed to frame
separate rates; (b) the average yield per acre
544
of each crop so grown for which rent is taken by division of
produce; (c) the average price obtainable by agriculturists
for each of the crops referred to under clause (b); and (d)
the actual share of -the gross produce received by
landowners in the case of crops which are divided and the
rent payable on zabti crops. The land is classified under
different categories depending upon whether they are
cultivated or uncultivated lands. The prices to be adopted
in the estimate shall be the average of the prices which are
likely to be obtained for their crops by the agriculturists
during the coming settlement and other relevant
Considerations. In estimating the average -yield of
different crops on different classes of land in an estate or
a group of estates, the Revenue Officer shall be guided by
the results of certain relevant factors mentioned in r. 5 of
the Land Revenue Assessment Rules. After an estimate is
made of the annual gross product of an estate or group of
estates, an estimate shall be made of the annual value of
the produce of the land-owner or of his net assets. This
method by which the estimate of the money value of the net
assets of an estate; or a group of estates shall be made is
adopted for ascertaining the fair rent under the Act,
subject to the modification that the average yield per acre
of any crop given in the last settlement report shall be
adopted. It is said that the last Settlement, in Pepsu area
took place 50 years ago; that is to say, the average yield
per acre fixed by the said last Settlement Report shall be
substituted for r. 5 of the Land Revenue Assessment Rules,
1929. It is argued that if the average yield of each crop
is taken not as it is now but as it was 50 years ago it is
not possible to arrive at the fair rent under the -Act, as
there may be phenomenal raise in the yield of each crop
during this long period and, therefore, the rules providing
for the estimate of fair rent on such artificial basis are
ultra vires the statute. In estimating the net assets of an
estate the aforesaid four factors will have to be taken into
consideration, i.e the class of land, the average acreage of
each crop, the average yeild per acre of each crop, the
average price and the actual share of the land-owner.
During these 50 years there may be changes in the fertility
of the land, in the character of the land, in the average
yield per acre and also in the price and in the actual share
of the land-owner. So far as the price and the average
acreage of each crop are concerned, the date of acquisition
is the determining factor under the rules. In regard to the
fertility of the soil, the Commission is authorized under
the rules to ’reclassify the lands on the basis of broad
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difference,-, of fairly permanent character which affect in
a marked degree the economic rental of the lands that is to
say if in the last Settlement it was a barani land, the
Commission may say, having regard to the changed
circumstances, that it is a sailab land or abi land. If a
land is differently classified, the yield taken for
determining the fair rent will be that of the higher
classified land. But as regards the yield from different
categories of land, there is nothing on the record to
545
show why the rules accepted the average yield per acre of
any crop given in the last Settlement Report. Though it is
theoretically possible that, improvement in seeds and the
use of chemical fertilisers may have increased the yield of
a particular crop per acre, there is nothing on record to
show that in Pepsu there is any such abnormal increase in
the yield per acre in respect of any particular crop. The
fact that the average yield of the last Settlement-’ Report
is adopted prima facie indicates there has been no such
increase in yield in respect of any particular crop. The
petitioner does not say in his affidavit that there is any
such increase. Irk sub-para (a) of para 18 of the petition
he says
"In order to determine the fair rent. the
average yield of the land in question should
be adopted as the basis. it is submitted that
the yield of the land is recorded at the
conclusion of every crop in the Khasra
Girdawari by the Village Patwari and the same
is checked by the Assistant Collector."
In sub-para (b) thereof he adds
"That the provisions of rule 28 of the rules
are inconsistent with the provisions of
Section 32G of the Act. The provisions of
rule 28 provide that the Commission shall
adhere to the classification of the soil as
adopted at the last Settlement. It is
submitted that the last Settlement took place
in erstwhile Patiala State about 50 years
back. The village Narinderpura was part of
Patiala State at that time,. The provisions
of rule 28 accordingly run contrary to the
letter and spirit of the provisions of section
32G of the Act. The classification of the
land should be taken on the date the land is
acquired under the Act."
it will be seen from the said two sub-paragraphs of para 18
of the affidavit of the petitioner that his complaint is
that the classification of the soil is that which obtained
50 years ago and that the yield can be ascertained from
Khasra Girdawari. But there is no allegation that the yield
of the land in respect of any crop per acre has so increased
that it will be unreasonable to take the yield recorded in
the last Settlement as the criterion for arriving at the
fair rent. So far as the classification is concerned, as we
have pointed out earlier, r. 3 of the Rules enjoins the
Commission to reclassify, the lands, if owing to supervening
circumstances there is change in the category of the land.
On the record, as placed before us, without an allegation
that there is an increase in the yield per acre in regard to
A particular crop, it is not possible for us to hold that
the relevant rules are ultra vires the Act. It may be that
in some other case where specific allegations are made in
that regard and
546
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established, the validity of the Rules may have to be
considered. We, therefore, hold that on the facts placed
before us we cannot hold that the Rules are ultra vires the
Act. If so, it follows that the petitioner’s land is being
acquired under a law of acquisition and that the petitioner
is precluded, by reason of Art. 31A Of the Constitution,
from questioning the validity of the Act or the Rules made
thereunder on the ground that his fundamental right under
Art. 19, 14 or 31 of the Constitution is infringed.
In this view, no other question arises for consideration.
In the result, the petition is dismissed but, in the
circumstances, without costs.
G.C. Petition dismissed.
547