Full Judgment Text
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PETITIONER:
B.PRABHAKARA RAO.
Vs.
RESPONDENT:
DESARI PANAKALALA RAO & ORS & OTHERS
DATE OF JUDGMENT05/04/1976
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
CHANDRACHUD, Y.V.
UNTWALIA, N.L.
CITATION:
1976 AIR 1803 1976 SCR (3)1032
1976 SCC (3) 550
ACT:
Motor Vehicles Act. 1947 s. 47 and 57-Andhra Pradesh
State Transport Appellate Tribunal Rules, 1971, s.15-
Validity of.
HEADNOTE:
Tribunal-If had power to admit evidence beyond the time
limited by 57(4).
Rule 15 of the Andhra Pradesh State Transport Appellate
Tribunal Rule 1971, states that parties to the appeal or
application shall not be entitled to produce additional
evidence, whether oral or documentary, before the Tribunal
except in cases stated therein but it empowers the Tribunal
to allow evidence or documents to be produced or witnesses
to be examined for any other sufficient reason.
The Regional Transport Authority granted a stage
carriage permit to the appellant. Before the State Transport
Appellate Tribunal another applicant produced certain
information against the appellant which was not mentioned
either in his history sheet or in the representations of any
party under s. 57(3) of the Act. Rejecting the appellant’s
objection that such new grounds could not be heard from an
rejector at the stage of appeal, the State Transport
Appellate Tribunal cancelled the appellant’s permit and gave
it to respondent
On appeal it was contended that a representation under
s. 57(4) could not be made at the appellate stage beyond the
time limited by that section and if rule IS permitted it, it
violated the substantive provisions of the Act.
Dismissing the appeal,
^
HELD: Rule 15 is intra vires and it merely makes patent
what is otherwise latent in the statutory provisions. . Rule
15 does not entitle parries to the appeal or application to
produce additional evidence but clothes the Tribunal with dn
creationary power to allow such evidence. What is received
is not qua representation under 8. 57(4) but qua evidence
with public interest flavor. [1041F 1039C] United Motor
Works, A.l.R. 1964 Pat. 154 and Cumbum Roadways, A.I.R. 1965
Mad. 79, approved.
(a) Public interest is the paramount consideration in
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transport business while private rights apparently
constitute a quasi-lis for decision. The touchstone of
better merit is solely the ability to serve the public and
the hierarchy of transport tribunals, bearing true faith and
allegiance to s. 47 of the Motor Vehicles Act. 1948 have the
duty and, therefore, the power to consider all factors
pertinent to the larger scheme of efficient public
transport. The duplex scheme of the statute is the holding
of a public enquiry to determine who will serve public
interest best but ordinarily activated into that enquiry by
private applicants for permits. The pro bono publico
character of the hearing cannot be scuttled in the name of
competitive individual rights and narrow procedural
trappings. [1033E-G]
(b) Section 47 enjoins upon the Regional Transport
Authority to have regard to the presiding idea of public
interest generally and in ib ramification as set out in s.
47(1)(a) to (f). In addition, the RTA shall also receive
representations as mentioned therein and take them into the
reckoning. It is not as if the sole source of decision-
making materials consists of the representations made under
s. 57(3) within the time stipulated in s. 57(4). The primary
channel the information that the RTA may gather bearing on
matters touched upon in 47(1)(a) to (f) supplemented by
facts stated in representation referred to In
1033
s. 57(3). Under s. 47 passengers’ associations, police
officers, local authorities and existing operators who may
have nothing directly to do with the rivalry for A a permit
have a place in the scheme and may make representation on a
variety of matters. So also, in an appeal, the RTA itself
may be heard. Thus the consideration going into the judicial
verdict are dominated by public interest. non-parties who
have Only to present points germane to public interest are
allowed to represent their point of view. [1038C; 1035B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1985 of
1975.
Appeal by Special Leave from the Judgment and order
dated the 28th November 1975 of the Andhra Pradesh High
Court in Writ Appeal No. 1038 of 1973.
M. N. Phadke and B. Kantarao, for the Appellant.
V. S. Desai K. R. Chaudhury, S. L. Setia and Mrs. V.
Khanna, for Respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J. Counsel for the appellant a jolted
transport operator has assertively argued for an untenable
position, heedless of the true nature of ’transport permit’
jurisprudence. The sole issue on which limited leave has
been granted to him by this Court under Art. 136 lends
itself to straight forward resolution, once we grasp the .
public character of the litigation and public purpose of the
jurisdiction where per nits regulating the plying of stage
carriages are awarded or refused. The conscience of this
branch of public law is justice to the public, although, in
the process of adjudication, private claims to carry on
transport business through permits are comparatively
evaluated. Public interest is the paramount consideration,
while private rights, fundamental though, apparently
constitute the quasi-lis for decision. The touchstone of
better merit is solely the ability to serve the public, and
the hierarchy of transport tribunals, bearing true faith and
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allegiance to s. 47 of the Motor Vehicles Act, 1948 (for
short, the Act) have the duty and, therefore, the power to
consider as factors pertinent to the larger scheme of
efficient public transport. To equate-and thereby hamstring
this jurisdiction and processual law with what governs a
civil proceeding under the Civil Procedure Code, is to miss
the policing policy of the law and maim the amplitude of the
power duty complete. In other words, the duplex scheme of
the statute is the holding of a public enquiry to determine
who will serve public interest best but ordinarily activated
into that enquiry by private applicants for permits. The pro
bono publico character of the hearing cannot be scuttled in
the name of competitive individual rights and narrow
procedural trappings.
The minimal facts. The appellant and the 1st
respondent, among others, applied for permits to ply a stage
carriage on a specified route in the Krishna District,
Andhra Pradesh. Although there were two permits for
issuance, one was given to R2 and that has become final. We
are now concerned only with the other permit which had been
granted by the Regional Transport Authority (acronymically,
RTA) to the appellant but was switched over to the 1st
respondent by the
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State Transport Appellate Tribunal (STAT) or taking into
consideration a fresh ground and supporting evidence to the
effect that the appellant was guilty of a transport tax
violation and had compounded that offence under s. 60(3) of
the Act. The power in this behalf was stated to be based on
s. 15 of the Andhra Pradesh State Transports Appellate
Tribunal Rules, 1971 (hereinafter referred to as the
Appellate rules), which reads:
"15. Additional Evidence (i) The parties to the
appeal 9 or application shall not be entitled to
produce additional evidence whether oral or documentary
before the Tribunal but,-
(a) if the authority from whose order the appeal
or application is preferred has refused to
admit evidence which ought to have been
admitted, or
(b) if the party seeking to adduce additional
evidence satisfies the Tribunal that such
evidence, notwithstanding the exercise of due
diligence was not within his knowledge or
could not be produced by him at or before the
time when the order under appeal was passed;
or
(c) if the Tribunal requires any documents to be
produced or any witnesses to be examined to
enable it to pass just orders, or
(d) for any other sufficient reason, the Tribunal
may allow such evidence or documents to be
produced or witnesses examined:
Provided that where such evidence is received the
other party shall be entitled, to produce rebutting
evidence, if any.
(ii) If the Tribunal is of opinion that any
witness should be examined in connection with any case
before it, it may instead of examining him before
itself, issue a commission to the concerned Regional
Transport Authorities or the State Transport Authority
as. the case may be, or to an Advocate or such other
suitable person as it may deem fit, in the
circumstances of the case."
The vires of this rule was challenged before us and we
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will examine the contention. But, to continue the narrative"
when the appellate authority deprived the appellant of his
permit he attacked the order without avail, before the High
Court at both tiers. Undaunted he has carried the appeal to
this Court where the controversy is confined to the validity
of s. 15, although we have heard arguments on a wider basis
to appreciate the point made by counsel. The argument of
ultra vires urged before us rests on The scope of ss. 57(4)
and 64 of the Motor Vehicles Act and the fitment of s. 15
into the purpose and text of these provisions.
Having heard counsel on both sides, we are disinclined
to accede to the submission of Shri Phadke for the
appellant. Why ? We will proceed to answer.
1035
Rulings galore, of this Court and the High Courts, have
focussed A on s. 47 of the Act to emphasize that the quasi-
judicial bodies entrust ed with the work of issuing stage-
carriage permits must be conscious of the brooding presence
of public interest, in the midst of the sparring contest of
private applicants. A casual perusal of that provision
brings home this juristic under-pinning of the jurisdiction.
Against this background, we may notice the meaning of the
clauses which - broaden the nature of the enquiry and mark
it off from a traditional civil litigation. Passengers’
associations, police officers, local authorities and
existing operators who may have nothing directly to do with
the rivalry for a permit have a place in the scheme and may
make representations on a variety of matters. So also, in an
appeal, the RTA itself may be heard. Thus, the
considerations going into the judicial verdict are dominated
by public interest; non-parties who have only to present
points germane to public interest are allowed to represent
their point of view. Why? Because the object of thus
regulatory statute is to promote smooth public transport and
subject to the weighty factors bearing thereon set down in
s. 47(1) of the Act and, indeed, with a view to serve the
public the better, applicants are chosen in recognition of
their fundamental right under Art. 19 canalised by
reasonable restrictions in public interest. To imprison such
an enquiry into the familiar mould of a civil proceeding in
ordinary courts is to be pathological, if one may say so. A
freer, healthier, approach is the prescription. Of course,
Shri Phadke is right in that any representation, ground or
evidence presented by anyone prejudicing the right of an
applicant has to be considered only subject to the canons of
natural justice and in the discretion of quasi-judicial
authority. Justice to the public and the parties can and
must be harmonised. Such is the simplistic statement of the
law.
A few more facts and some more law are necessary.
As stated earlier, the appellant got the permit from
the RTA although both the contestants before us were equally
qualified, having obtained equal marks on the basis of the
Andhra Pradesh Motor Vehicles Rules (for short, the MV
rules). The appellate result went against the appellant
because another applicant who had filed an appeal before the
STAT produced, at that stage, a certificate from the
concerned authority to prove that the present appellant had
used a contract carriage as a stage-carriage on a trip to
Tirupati and had compounded this offence by payment of a fee
of Rs. 2,340/-. This circumstance was regarded by the STAT
as a blot on the history-sheet of the appellant, although
inadvertently omitted from the history-sheet prepared
officially for the consideration of the RTA. It is admitted
on all hands that this semi-punishment had not been
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mentioned in the representations of any party under s. 57(3)
of the MV Act. Therefore, an objection was raised before the
STAT that this ground was new, although the episode which
formed its basis existed prior to the disposal of the
applications by the RTA. It was further urged that such new
grounds could not be heard from an objector who had not
included it in his representation made within the time
limited by s. 57(4) of the Act. However, the STAT over-ruled
these objections and proceeded on the footing that this was
material information
1036
A relevant to s. 47(1) and used it, after giving a fair
opportunity to the affected appellant to meet it.
Consequentially, he upset the award of the permit to the
appellant since this factor tilted the scales against the
appellant. We cannot, in this Court, and especially on a
limited leave, look into the evaluation.
These foundational facts are common ground, but the
divergence rises on the exercise of the power under s.15 of
the Appellate Rules. Shri Phadke contended that a
representationist, under s. 57(3) & (4), had to abide by the
time-limit discipline of the provision and could not
transgress it by making an additional representation at the
appellate stage beyond the time limited by s. 57(4). If s.
15 permitted such a course, it violated the substantive
provision of the Act. Since a stream cannot rise above its
source and rules cannot go beyond the sections of the Act,
this Court must hold the said rule avoid. Any way, if s.
57(3) & (4) had a more spacious connotation than was
attributed to it by Shri Phadke, s. 15 could have full play
and be accommodated within the parent provision in the Act
regulating procedure. This was the counter-contention of
Shri V. S. Desai for the contesting respondent.
Before proceeding further, it is useful to extract s.
57(3) and (4) and test whether the rule-making power has
exceeded the ambit of s. 57 or gone counter to it in framing
s. 15 (earlier extracted):
"57. Procedure in applying for and granting permits.-
x x x x
(3) on receipt of an application for stage
carriage permit or a public carrier’s permit,
the Regional Trans port Authority shall make
the application available for inspection at
the office of the authority and shall publish
the application or the substance thereof in
the prescribed manner together with a notice
of the date before which representations in
connect‘ion therewith may be submitted and
the date, not being less than thirty days
from such publication, on which and the time
and place at which, the application and any
representations received, will be considered:
Provided that, if the grant of any permit in
accordance with the application or with
modifications would have the effect of
increasing the number of vehicles operating
in the region, or in any area or on any route
within the region, under the class of permits
to which the applications relate, beyond the
limit filed in that behalf under sub-section
(3) of Section 47 or sub-section (2) of
Section 55, as the case may be, the Regional
Transport Authority may summarily refuse the
application without following the procedure
laid down in this sub-section.
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(4) No representation in connection with an
application referred to in sub-section (3)
shall be considered
1037
by the Regional Transport Authority unless it
is made in writing before the appointed date
and unless a copy thereof is furnished
simultaneously to the applicant by the
person making such representation."
We unhesitatingly agree with Shri Phadke that natural
justice-that J fine facet of judicial ethos-must broadly
inform exercise of power by administrative tribunals. This
obligates such bodies to give an ’a affected party a fair
opportunity to meet any evidence obnoxious to his case if it
is to be pressed into service against him. In the pre sent
instance, it is not disputed, as the High Court has noted,
that the canons of natural justice have been conformed to.
The surviving issue therefore is as to whether there is any
soundness in the submission that s. 57(3) & (4) read with s.
47 builds barricades against receiving any information by
the STAT from any representator beyond the time filed in the
above sub-sections of s. 57.
Administrative law-a growing branch of Indian
jurisprudence has a mission. Where the trellis work of
technical procedures and rules of evidence usually
applicable to ordinary courts under the Code contains too
many taboos regarding pleadings and too many prescriptions
regarding trials, administrative bodies, manned by lay and
legal men, charged with duties which are wider than decision
of individual disputes between specific parties and
operating quasi-judicially at the public-interest level,
have to enjoy more liberal powers and less formal and more
flexible processes if they are to fulfil the statutory
behest efficaciously. To over judicialize is to undermine.
In the construction of statutes establishing administrative
agencies and r defining their powers, there is little scope
for the deep-rooted shibboleth that into the statute must
be, read, by lawyer’s instinct, the requirements of the
trial of a civil suit or the hearing of an appeal by the
ordinary courts of the land. This may result in defeating
their obvious purpose. We will therefore briefly examine the
legislative goal of the statute under construction, the
general policy of the legislature in enacting the relevant
sections and the definition of the sources from which
information or evidence may be sought by the tribunal
working within the framework of the Act. Mr Justice
Frankfurter has aptly stated that ’the answers to the
problem of an art are in its exercise’ and John Chipman had
paid that the process of statutory construction is a
practical art (See: Extrinsic Aid in the Construction of
Statutes-by V. S. Deshpande-Journal of Indian Law
Institute-Vol. II, April-June 1969, p. 123, 126). Thus, the
true test of the amplitude and correct interpretation of s.
57(3) & (4) is to be found in a study of its area and its
exercise, as intended by its makers. The oft-quoted saying
of Mr. Justice Holmes that - ’the meaning of a sentence it
to be felt rather than to be proved’ also helps us to feel
our way through the public law area sketched by s. 57(3) &
(4) understood in the background of s. 47 and the conspectus
of other provisions. We have to shake off from our minds
that the type of litigation contemplated by s. 57 is the
thrust and parry in a civil suit or appeal. With these
observations we may take a bird’s eye view of the relevant
provisions of the Act to give us a hang of the subject and
help us interpret adequately.
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1038
Section 42 of the Act insists on a permit being taken
by every transport operator. Section 44 lays down how the
RTA is to be constituted. It has a mixed composition of lay
aud judicially-trained me, the reason being that the process
of adjudication is not purely legal pugilis but a broader
search taking note of public considerations which may not be
brought to its notice by contenders for permits. The nature
of the enquiry is reflected in the very structure
of the body. Section 46 speaks of applications for stage-
carriage permits. When we reach s. 47, we have to take a
close-up of that provision. Properly understood, s. 47
enjoins upon the RTA to have regard to the presiding idea of
public interest generally and in its ramifications as set
out in s. 47(1) (a) to (f). In addition, the RTA shall also
receive representations as mentioned therein and take them
into the reckoning. It is not as if the sole source of
decision making materials consists of the representations
made under s. 57(3) within the time stipulated in s. 57(4).
The primary channel, it , looks, is the information that the
RTA may gather, bearing on matters touched upon in s. 47(1)
(a) to (f), supplemented by facts stated in representations
referred to in s. 57(3). Once we grasp this essential
truth, the resolution of the conflict raised in this case is
easy. The focus is not on who, as between A and B, has the
title to the permit, but on who, as between A and B, should
be preferred to better sene the public interest.
We may, as a result of the above discussion, set down
the following five propositions:
1. Stage-carriage permits are granted for providing
an F. efficient public transport system.
2. The adjudicatory content has dual elements-public
interest in the best stage-carriage service and
private title to better sene the public.
3. The procedure is flexible, free from-the rigidly
of court trials, and this flexibility flows from
the duty of the tribunal charged with the task of
picking out him who has the best plus points for
playing a good bus service, to discharge it
properly. A people-conscious power cannot be pared
down in a self-defeating manner.
4. An activist tribunal (RTA, and, in exceptional
case, even the STAT) may even collect useful
information bearing on considerations set out in
s. 47 and, after public exposure of such
information at the hearing and reasonable
opportunity to meet it, if anyone is adversely
affected, put it into the crucible of judgment.
5. The antithesis is not between the right of
representation within the time limited by s. 57(4)
and beyond it but between representations by
statutorily authorised entities under ss. 47 and
57 and receipt of relevant
1039
evidence or information from any source whatsoever
at any stage whatsoever but subject to the
wholesome rules of natural justice.
These fivefold guidelines squarely accommodate s. 15 within
the framework of ss. 47, 57 and 54 of the Act and there is
no spill-over breaching the banks of the provisions. The
rule merely gives effect to what the sections intend and is
not therefore ultra vires.
Here the certificate of payment of compounding fees was
filed by one of the appellants before the STAT and was
received not as a representation under s. 57(4) but as some
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information the STAT regarded had a bearing on matters
falling under s. 47. It is important to note that s. 15 does
not entitle parties to the appeal or application to produce
additional evidence but clothes the tribunal with
discretionary power to allow such evidence. What is received
is not qua representation under s. 57(4) but qua evidence
with public interest flavor. The rule is good and covers
familiar ground to enable just orders being passed. A
reference to order XLI, rule 27 C.P.C. and s. 540 Crl. P.C.
proves this point. Justice to the public is the keynote of
ss. 47, 57 and s. 15. We are not lobbying for unconventional
procedures of quasi-judicial tribunals but interpreting the
relevant provisions according to well-established canons. We
must listen to the signature tune of quasi-judicial justice
to appreciate the note. We may also highlight the basic
principle that subject to statutory regulations, each
tribunal has its inherent power to device its own procedure.
Novelty, if it improves purposeful efficiency, is not
anathema. But caution must be exercised in going against
time tried procedures lest processual law prove a charter
for chaos. Like- wise, it is necessary to mention that while
a ’representator’ under s. 47, read with s. 57, has a right
to make representations and be heard, subject to the
limitations written into those provisions, those who fall
under it or outside it have no right to bring in evidence or
urge grounds as and when they please or at all unless the
tribunal, in its discretion, chooses to accept such extra
information. The first is a right of the ’representator’ the
second is the power of the tribunal. F
We are strengthened in our general approach and
particular construction by a ruling of this Court in New
Prakash Transport(l) and two rulings of the High Courts, one
of a Full Bench of the Madras High Court (AIR 1965 Madras
79) and the other a Division Bench of the Patna High Court
to which one of us (Untwalia, J.) was a party (AIR 1964
Patna 154).
In United Motor Works(2), the Patna Case, the Court
observed:
"It was also pointed out by the Supreme Court in
that case that the Motor Vehicles Act and the rules
framed thereunder do not contemplate anything like a
regular hearing in a Court of Justice and no elaborate
procedure has been prescribed as to how the parties
interested have to be heard either before the Regional
Transport Authority or
1040
before the Appellate Transport Authority. The principle
is well established that in the absence of any such
prescribed procedure the appellate authority may adopt
any procedure which it thinks best for hearing the
appeal provide always that the rules of natural justice
are observed. The matter has been clearly put by Lord
Loreburn in the course of his speech in Board of
Education v. Rice (1911 AC 179) as follows:
"Comparatively recent statutes have extended, if
they have not originated, the practice of imposing upon
departments or officers of State the duty of deciding
or determining questions of various kinds. In the
present instance, as in many others, what comes for
determination is sometimes a matter to be settled by
discretion, involving no law. It will, I suppose,
usually be of an administrative kind; but sometimes it
will involve a matter of law as well as a matter of
fact, or even depend upon matter of law alone. In such
cases the Board of Education will have to ascertain the
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law and also to ascertain the facts. I need not add
that ill doing either they must act in good faith and
fairly listen to both sides, for that is a duty lying
upon every one who decides anything. But I do not think
they are bound to treat such a question as though it
were a trial. They have no power to administer an oath,
and need not examine witnesses. They can obtain
information in any way they think best, always giving a
fair opportunity to those who are parties in the
controversy for correcting or contradieting any
relevant statement prejudicial to their view."
Ramaswami C. J., (as he then was) also laid down:
"It is. . . manifest that the power of the
appellate authority is co-extensive with the power of
the Regional’ Transport-Authority in this respect, and
there is no reason why the appellate authority should
not take these matters into consideration in deciding
the appeal under s. 64 of the Act"
It is trite that an appeal is a re-hearing and ordinarily
appellate power is as wide as original power. The facts of
the Patna case (supra) bear a close parallel to our case.
Another point with which we are not concerned and also
decided in the Patna judgment (one of the two writ petitions
heard together) was challenged in the Supreme Court and
reversed. That bears upon the interstate routes which does
not arise in the instant appeal before us.
In Cumbum Roadways(1) Kailsam J. (as he then was),
speaking for the Full Bench, stressed the same view. The
head note in the Report is sufficiently explicit and we
quote:
"The representator, who makes the representation
other wise than under s. 57(4) will not have a right to
have his
1041
objection heard and considered, but there is no
prohibition against the authority taking the
information furnished by the objector and acting on it
after giving an opportunity to the affected party, to
prove that the information is false or that it should
not be acted upon. The jurisdiction of the Regional
Transport Authority or the Appellate Tribunal to act
upon any information, whether it was brought to its
notice by the objector or by the Transport Authority
cannot be questioned. But it is within the discretion
of the Regional Transport Authority or the Appellate
Tribunal to accept the information taking into account
the relevant circumstances under which the information
was brought before it. If the authority decides to
accept, it is bound to ‘ give a reasonable opportunity
to the affected person to show cause as to why the
information should not be acted upon. r When the
authority is acting on the information, but not as a
representation by the objector, the person affected can
not object to the authority considering the information
on the ground that it was brought to its notice by one
of the objectors without including the information in
the representation made by the objector. The right of
the representer as such is no doubt limited, for, he
has no right to insist that any representation made
otherwise than under s. 57(4) should be considered in
the manner prescribed under s. 57(5). But that does not
in any way debar the authority under s. 47(1) of the
Act from taking the information into account for
deciding to whom the permit should be given in the
interests of the public."
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The decision of the Assam High Court (AIR 1959 Assam 183)
brought to our notice by Shri Phadke does not really
consider the issue from the position we have delineated and
turns on approach which is not quite correct.
Our conclusion therefore is that s. 15 is intra vires
and, further that the said rule merely makes patent what is
otherwise latent in the statutory provisions. The appeal
accordingly, fails and is dismissed with costs.
P.B.R Appeal dismissed.
1042