Full Judgment Text
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CASE NO.:
Appeal (civil) 78-79 of 2002
PETITIONER:
S. Bagirathi Ammal
RESPONDENT:
Palani Roman Catholic Mission
DATE OF JUDGMENT: 06/12/2007
BENCH:
B.N. Agrawal & P.P. Naolekar & P. Sathasivam
JUDGMENT:
JUDGMENT
CIVIL APPEAL NOS. 78-79 OF 2002
P. Sathasivam, J.
1) Challenging the order dated 20.7.2001 passed by the
High Court of Judicature at Madras in Review Application Nos.
8 & 9 of 1997 filed by the respondent herein whereby a
learned single Judge of the High Court allowed the same, the
appellant has filed these appeals.
2) The respondent herein was the owner of the suit vacant
land in question. In 1959, the suit land was leased out for five
years by the respondent to the appellant herein. On 3.3.1965,
the tenancy was renewed for another period of three years.
After the expiry of three years, the respondent wanted the
appellant to vacate the premises. As the appellant did not
vacate, the respondent issued a notice on 28.8.1968
demanding possession for which he sent a reply with false and
frivolous allegations. In the year 1969, the respondent filed
O.S.No.218 of 1969 for recovery of land. The appellant also
filed O.S.No. 75 of 1970 as a counter blast for getting a fresh
lease document from the respondent. On 14.12.1970, O.S.No.
218 of 1969 was compromised and O.S.No. 75 of 1970 was
dismissed as not pressed. The appellant did not vacate the
suit property in spite of repeated demands by the respondent,
therefore, the respondent filed a fresh Suit i.e. O.S.No. 76 of
1977 for delivery of possession. On 27.7.1978, O.S. No.76 of
1977 was decreed in favour of the respondent while O.P. No. 4
of 1977 filed by the appellant for purchase of the land by her
was erroneously dismissed and an order of eviction was
passed against the appellant by the Court of District Munsif,
Palani. The Madras City Tenants Protection Act, 1921 gives
the option of purchasing the site from the landlord by the
tenant in case a suit for eviction is filed by the landlord where
the tenant is the owner of the superstructure standing thereon
and if the tenant is not interested in buying the site then the
landlord can buy the superstructure or ask the tenant to
remove the superstructure and seek delivery of possession.
The said Act was extended to the town of Palani in Tamil Nadu
only in 1975, therefore, the option of buying the site from the
respondent became available to the appellant as the owner of
the superstructure. The appellant filed an application O.P.
No. 4 of 1977 in Suit No. 76 of 1977 for purchase of land by
him which was dismissed. Against the said order, the
appellant filed A.S.No. 121 of 1978 and another A.A.O. No. 94
of 1978 against the order in O.P. No. 4 of 1977. The appellate
Court allowed the appeals of the appellant directing the
respondent to sell the land to the appellant for an amount of
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Rs.65,092.50. Aggrieved by the said order, the respondent
filed S.A.No. 2149 of 1981 and C.R.P. No. 2204 of 1980
against the order allowing the petition of the appellant for
purchase of the suit property. The second appeal and the
revision petition filed by the respondent were dismissed by a
learned single Judge of the High Court of Madras. Against
that order, the respondent filed S.L.P.(c) Nos. 5029 and 5030
of 1984 before this Court which were dismissed. After the stay
order operating from 1980 to 1985 continuously ceased to
operate, the appellant deposited the full site value. With the
dismissal of the S.L.Ps by this Court and the deposit of the full
site value by the appellant, the same became final. In the year
1985, the appellant filed an execution petition being E.P. No.
257 of 1985 for execution of the sale deed of the land in his
favour by the respondent. On the other hand, the respondent
filed an execution petition being E.P. No. 79 of 1983 for
executing the compromise decree in O.S.No.218 of 1969. Both
the petitions were taken up together for disposal. The
Executing Court allowed E.P. No. 257 of 1985 filed by the
appellant for execution of the sale deed and dismissed E.P. No.
79 of 1983 filed by the respondent. Dissatisfied therewith, the
respondent filed C.R.P. No. 1445 of 1988 against the order in
E.P. No. 79 of 1983 and A.A.O. No. 767 of 1989 against the
order in E.P. No. 257 of 1985. Both the petitions were heard
together and the same were dismissed by the High Court
upholding the directions of the Execution Court to execute the
sale deed in favour of the appellant. On 28.10.1996, the sale
deed in favour of the appellant was executed by the Court of
District Munsif, Palani. The sale deed was registered as
Document No. 1908 of 1996 in the Registrar’s office. Against
the order in C.R.P. No. 1445 of 1988 and A.A. O. No. 767 of
1989, the respondent filed S.L.P.(C) Nos. 22925 and 22926 of
1996 before this Court which were dismissed. After every
thing became final with the execution and registration of the
sale deed in favour of the appellant and the dismissal of the
S.L.Ps by this Court, the respondent filed review applications
being Review Application Nos. 8 & 9 of 1997 in the High Court
against the order dated 26.7.1997 passed by the High Court
on the same grounds as were in S.L.Ps. and the same were
dismissed on the ground that they were not maintainable after
the dismissal of the S.L.Ps by this Court. On 7.2.1997, the
appellant filed an application E.A.No. 820 of 1996 for return of
the duly registered sale deed and the same was allowed. The
respondent was not a party to the said E.A. and he did not
make any effort to implead himself. Against the said order,
the Registrar who was a party filed C.R.P. No. 1819 of 1997.
In the said C.R.P., the respondent filed an application being
C.M.P. No. 3005 of 1998 to implead himself which was
dismissed by the High Court. The C.R.P. filed by the Registrar
was dismissed and the Registrar returned the sale deed to the
executing Court. Against the order dated 16.12.1998 in the
R.A.Nos. 8 & 9 of 1997, the respondent filed S.L.P.(c) Nos.
6097 & 6098 of 1999 before this Court. On 2.2.2001, this
Court passed an order of remand of the review applications in
S.L.P.(c) Nos. 6097-6098 of 1999 because of the decision of
this Court in Kunhyammed vs. State of Kerala, (2000) 6
SCC 359 holding that the summary dismissal of a special
leave petition does not bar a review petition permissible under
the law. The respondent filed an application in the review
applications for producing additional documents which was
allowed by a learned single Judge of the High Court. As a
result of the order of the High Court, the proceedings for
return of the registered sale deed to the appellant was
dismissed by the executing Court. Aggrieved by the said
order, these appeals have been preferred by the appellant.
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3) Heard Mr. M.N. Krishnamani, learned senior counsel
appearing for the appellant and Mr. P.P. Rao, learned senior
counsel appearing for the respondent.
4) The only point for consideration in these appeals is
whether the High Court is justified in allowing Review
Application Nos. 8 & 9 of 1997 under Order XLVII Rule 1
C.P.C.
5) Since we have already narrated the case of both the
parties in the paragraphs supra, there is no need to traverse
the same once again. Before considering the rival claims made
by both the parties, it is useful to refer the provisions under
Order XLVII Rule 1 C.P.C. relating to Review which read as
under:
"1. Application for review of judgment:- (1) Any person
considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed,
or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on
account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may
apply for a review of judgment to the Court which passed the
decree or made the order.
(2) A party who is not appealing from a decree or order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where the
ground of such appeal is common to the applicant and the
appellant, or when, being respondent, he can present to the
Appellate Court the case on which he applies for the review.
[Explanation \026 The fact that the decision on a question of law
on which the judgment of the Court is based has been
reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a ground for
the review of such judgment.)"
A reading of the above provision makes it clear that Review is
permissible (a) from the discovery of new and important matter
or evidence which, after the exercise of due diligence could not
be produced by the party at the time when the decree was
passed; (b) on account of some mistake; (c) where error is
apparent on the face of the record or is a palpable wrong; (d)
any other sufficient reason. If any of the conditions satisfy,
the party may apply for a review of the judgment or order of
the Court which passed the decree or order. The provision
also makes it clear that an application for Review would be
maintainable not only upon discovery of a new and important
piece of evidence or when there exists an error apparent on the
face of the record but also if the same is necessitated on
account of some mistake or for any other sufficient reason. An
error contemplated under the Rule must be such which is
apparent on the face of the record and not an error which has
to be fished out and searched. In other words, it must be an
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error of inadvertence. It should be something more than a
mere error and it must be one which must be manifest on the
face of the record. When does an error cease to be mere error
and becomes an error apparent on the face of the record
depends upon the materials placed before the Court. If the
error is so apparent that without further investigation or
enquiry, only one conclusion can be drawn in favour of the
appellant, in such circumstances, the review will lie. Under
the guise of review, the parties are not entitled re-hearing of
the same issue but the issue can be decided just by a perusal
of the records and if it is manifest can be set at right by
reviewing the order. With this background, let us analyze the
impugned judgment of the High Court and find out whether it
satisfy any of the tests formulated above.
6) It is the claim of the respondent herein that it is a Roman
Catholic Mission and is a religious institution within the
meaning of Amended provisions of The Tamil Nadu City
Tenants Protection Act, 1921 (hereinafter referred to as "the
Principal Act). The "Roman Catholic Mission" (hereinafter
"Mission" in short), in support of the above claim, filed several
documents, namely, Ex. A-1 to A-15 and also let in evidence of
PW-1 and PW-2 who were conversant with their activities. The
High Court, on appreciation of those materials, arrived at a
factual conclusion that the same came under the Roman
Catholic Diocese which has as its object and maintenance of
churches and hence it is a "religious institution". Though it
was contended by the learned senior counsel appearing for the
appellant herein that only certificate of registration was
produced by the Mission to substantiate its case that it is a
religious institution, in view of the categorical factual finding
by the High Court based on acceptable oral and documentary
evidence, we reject the said objection. It is relevant to point
out that when the above appeals were heard on 19.01.2006 at
length, this Court after finding that it would be just and
expedient to call for a finding from the trial Court as to
whether the Palani Roman Catholic Mission is a ’religious
institution’ or ’institution of religious charity’ belonging to
Hindu, Muslim, Christian or other religion within the meaning
of Section 1(f) of the Madras City Tenants’ Protection Act,
1921, as amended by Act 2 of 1996, directed the trial Court to
record a finding on the said question after giving opportunity
of adducing oral and documentary evidence to the parties and
thereupon remit its finding to this Court within a period of six
months from the date of receipt of copy of the said order.
Pursuant to the said direction, this Court received a report
dated 09.08.1996 from the trial Court i.e. District Munsiff,
Palani and the same was handed over to learned counsel
appearing on behalf of the parties. They were given an
opportunity to peruse the report and submit their objection, if
any. The report shows that the learned District Munsiff, after
affording opportunity to both parties and after recording
evidence and relying on documents placed by both parties,
arrived at the following conclusion:-
"\005. \005. Thus, on cumulative appraisal of the evidence on
record in the context of the undisputed averments of the
proof-affidavit of the P.W.1 and P.W.2 in particularly P.W.2
with regard to the factum of conducting the religious
ceremonies, prayers and masses in the plaintiff-Mission, this
Court feels that an inescapable and irresistible conclusion
can be drawn that the plaintiff-mission is a place of worship
for the people who have faith in the Christianity in
particularly believers attached with the Roman Catholic
denomination. Therefore, in view of the finding as above,
this Court hold that the Palani Roman Catholic Mission is a
religious institution in the context of the sec.(1)(f) of the
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Madras City Tenants Protection Act, 1921 as amended by
Act 2 of 1996.
In the result, on the basis of the evidence emerged on
record, I hold that the Palani Roman Catholic Mission is a
religious institution within the meaning of sec. (1)(f) of the
Madras City Tenants Protection Act, 1921 as amended by
the Act 2 of 1996."
In view of the conclusion of the High Court as well as the
report of the trial Court holding that Palani Roman Catholic
Mission-respondent herein is a religious institution within the
meaning of Section (1) (f) of the principal Act as amended by
Madras City Tenants Protection Act as amended by Act 2 of
1996. We agree with the said conclusion.
7) Now we will consider the provisions of the Principal Act
as well the provisions of the Amendment Act i.e., the Madras
City Tenants’ Protection (Amendment) Act, 1994 (Tamil Nadu
Act 2 of 1996) [hereinafter referred to as "the amended Act"].
The Statement of Objects and Reasons of the Act shows that in
many parts of the City of Madras (and other Municipal towns)
dwelling houses and other buildings have from time to time
been erected by tenants on lands belonging to others, in the
expectation that subject to payment of a fair ground rent they
would be left in their undisturbed possession, in spite of any
agreement about duration of the tenancy and the terms on
which the buildings were to be leased. Attempts made or
steps taken to evict a large number of such tenants had shown
that such expectations are likely to be defeated. The tenants,
if they were evicted, can remove the superstructure which can
only be done by pulling down the building, or claim
compensation for the value of the building put up by them and
the value of any tree planted by them. As a result of such
wholesale destruction, congested parts of the city (municipal
towns) would become more congested to the serious detriment
of public health. In the circumstances, it was though just and
reasonable that the landlords when they evict the tenants
should pay for and take the buildings. There may however be
cases where the landlord is unwilling to eject a tenant, if he
can get a fair rent for the land. The Act provides for the
payment of compensation to the tenant in case of ejectment
for the value of any buildings which may have been erected by
him, or his predecessor-in-interest. It also provides for the
settlement of fair rent at the instance of the landlord, or
tenant. Provision is also made to enable the tenant to
purchase the land in his occupation, subject to certain
conditions.
8) Section 9 gives the right to the tenant, who has put up a
superstructure to purchase such part or extent of the land, be
reasonably required for his enjoyment. Since we are
concerned about the Amended Act, there is no need to go into
other provisions. The Amended Act received the assent of the
President on 5.1.1996 and published in the Tamil Nadu
Government Gazette Extraordinary Part IV Section 2 dated
11.1.1996. By Amendment Act, the Tamil Nadu legislature
has amended Section 1 of the principal Act and added certain
provisions in sub-section 3. The amended provisions are as
follows:
"Amendment of Section 1 - In Section 1 of the Madras City
Tenants’ Protection Act, 1921 (Tamil Nadu Act III of 1922),
(hereinafter referred to as the principal Act), in sub-section
(3), in the first proviso; after clause (e), the following clause
shall be added, namely:-
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(f) by any religious institution or religious charity belonging
to Hindu, Muslim, Christian or other religion.
Explanation:- for the purpose of this clause"-
(A) "religious institution" means any-
(i) temple
(ii) math;
(iii) mosque
(iv) church; or
(v) other place by whatever name known
which is dedicated to, or for the benefit of, or used as
of right by, any community or section thereof as a
place of public religious worship;
(B) "religious charity" means a public charity associated
with a religious festival or observance of religious
character (including a wakf associated with a religious
festival or observance of religious character), whether it
be connected with any religious institution or not."
3. Certain pending proceedings to abate - Every
proceeding instituted by a tenant in respect of
any land owned by any religious charity
belonging to Hindu, Muslim, Christian or other
religion and pending before any Court or other
authority or officer on the date of the publication
of this Act in the Tamil Nadu Government
Gazette, shall in so far as the proceeding relates
to any matter falling within the scope of the
principal Act, as amended by this Act, in respect
of such land, abate and all rights and privileges
which may have accrued to that tenant in
respect of any such land and subsisting
immediately before the said date shall in so far
as such rights and privileges relate to any matter
falling within the scope of the principal Act, as
amended by this Act, cease and determine and
shall not be enforceable:
Provided that nothing contained in this section
shall be deemed to invalidate any suit or
proceeding in which a decree or order passed has
been executed or satisfied in full before the said
date."
We have already mentioned that the amendment was
published in the Gazette on 11.1.1996 and as per sub-section
(2) of Section 1, it came into force on the date of publication.
In other words, from 11.1.1996 benefits conferred on the
tenants under Section 9 of the Principal Act have been deleted
in respect of the lands belonging to religious institution or
religious charity of Hindu, Muslim, Christian or other religion.
We have already referred to the finding of the High Court
holding that the respondent herein is a Roman Catholic
Mission which is a "religious institution" within the meaning of
the amended provision. The Amended Act has given the
respondent herein a valuable right of exemption from the
provisions of the Principal Act.
9) It is relevant to mention here that the Amendment Act
No. 2 of 1996 has been upheld by the Full Bench of the High
Court in N. Sreedharan Nair vs. State of Tamil Nadu,
(2000) 3 M.L.J. 616 and the said decision of the Full Bench
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has also been approved by this Court by dismissing C.A.Nos.
4531 of 2003 etc.etc. titled Mylapore Club vs. State of
T.N. & Anr. 2005 (5) CTC 494, filed against the same.
10) Both before the High Court as well as before this Court, it
was contended that in view of the orders/decisions of various
Courts including this Court, the issue cannot be agitated once
again by way of review application; hence, the impugned order
of the High Court is to be set aside. Mr. P.P. Rao, learned
senior counsel appearing for the respondent, has brought to
our notice that in the earlier proceedings, this Court in Civil
Appeal Nos. 1055-1056 of 2001 directed the High Court to
consider the review applications afresh. In other words, by
virtue of the said order, the High Court was directed to decide
the review applications on merits. In such circumstances, the
High Court was fully justified in analyzing the issue as
directed by this Court and its ultimate decision that Roman
Catholic Mission is a "religious institution" cannot be faulted
with since it relied on acceptable materials in the form of oral
and documentary evidence (vide Ex. A-1 to A-15 and evidence
of PW-1, PW-2). It was demonstrated that these religious and
charitable institutions were not only deprived of their
legitimate income but also their valuable properties. It was
also their claim that because of the provision, namely, Section
9 of the Act, the tenants flourished and the landlord-
institutions were crippled. It was further pointed out that in
those circumstances Act No.2 of 1996 was enacted in order to
protect those religious institutions. We have already
concluded that pleadings of the respondent herein-review
petitioners and various orders/judgments show that it is a
"religious institution". As rightly observed by the High Court,
the claim that the "Mission" is a "religious institution" is
apparent from the materials without any further investigation.
In such circumstances, as per Section 1(f) of the amended Act,
all proceedings instituted by a tenant would abate. The
amended Act came into force from 11.1.1996 and on the
question whether on the date of coming into force of the
amended Act, giving certain benefits to the religious
institutions and taking away the right of the tenant under
Section 9, the High Court concluded as under:
"\005The Transfer C.M.A. which was a continuation of the
application under Section 9 of the Tamil Nadu City Tenants
Protection Act filed by the respondent who is the tenant was
still pending. The proceedings had not attained finality.
Therefore, they terminated and they became unenforceable.
On the date when the first appeal and the C.M.A. were
disposed of, tenancy granted by religious institutions were
still governed by the provisions of the Act. Now, by the
introduction of Act 2 of 1996, they cease to apply, ergo, all
proceedings instituted by the tenant shall abate. All rights
and privileges that may have accrued to her cease. They
come to an end and they shall not be enforceable. The
jurisdiction of the Court to decide the tenants claim ceased."
It is clear that on the date when the amended Act came into
force, the application under Section 9 of the principal Act filed
by the tenant-appellant herein was still pending. Though Mr.
M.N. Krishnamani, learned senior counsel appearing for the
appellant, submitted that all formalities were completed before
coming into force of the amended Act, as pointed out earlier,
pursuant to the order of the High Court, the sale deed was
executed only on 28.10.1996 whereas the amended Act (Act
No.2 of 1996) came into force on 11.1.1996 much earlier to the
execution of the sale deed, hence, the contention of learned
senior counsel for the appellant is not acceptable and we are
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in agreement with the conclusion arrived at by the High Court.
As rightly concluded by the High Court, the decree in O.P. No.
4 of 1977 became a nullity on and from 11.1.1996, the
executing Court committed an error in executing the sale deed
after coming into force of amended Act. Further as rightly
observed by the High Court, unless the sale deed is executed
either by the Mission or by the Court, the fruits of the decree
will not be realized by the tenants and the proceedings will
come to an end only upon execution of the sale deed.
Therefore, the tenant cannot be heard to say that the proviso
applies to him and that the proceedings are not invalidated.
The High Court is right in holding that the decree not having
been executed by means of a sale deed, the proceedings are
deemed to be pending and, therefore, were determined with
the coming into force of the amendment Act.
11) Finally, Mr. M.N.Krishnamani placing reliance on the Full
Bench decision of the Madras High Court rendered in
CRP(NPD) 2758 of 1996 titled Arulmigu Kasi
Viswanathaswamy Devasthanam vs. Kasthuriammal
submitted that the moment tenant deposited the amount the
order is fully satisfied. He further pointed out that as per the
said decision the moment the order under Section 9 (3) (a) is
passed, it shall be construed that the proceedings got
terminated and the suit stood dismissed as per Section 9 (3)
(b) of the Act. We are unable to accept the said proposition.
The relevant provisions are as follows:-
"9. (3) (a) On payment of the price fixed under clause (b)
of sub-section (1) the Court shall pass an order
directing the conveyance by the landlord to the tenant of
the extent of land for which the said price was fixed.
The Court shall by the same order direct the tenant to
put the landlord into possession of the remaining extent
of the land, if any, the stamp duty and registration fee
in respect of such conveyance shall be borne by the
tenant.
(b) On the order referred to in clause (a) being made, the
suit or proceeding shall stand dismissed, and any
decree or order in ejectment that may have been passed
therein but which has not been executed shall be
vacated."
It is clear that if the tenant complies with the order passed
under Section 9 (1) (b) and deposits the amount within the
time as fixed, the Court has to pass an order directing the
conveyance by the landlord to the tenant. It is true that as per
Section 9 (3) (b) on passing an order under clause (a) the suit
or proceeding shall stand dismissed. In the light of the
language used in clause (a) i.e. "conveyance" to be made by the
landlord to the tenant, till the proper document conveying title
to the tenant it is presumed that the proceeding is kept
pending. To put it clear that unless the sale deed is executed
by the landlord in favour of the tenant or in the alternative by
the Court on behalf of the landlord the fruits of the decree can
not be realized. The suit or proceeding will come to an end
immediately on execution of sale deed either by the landlord or
by the Court on behalf of the landlord. In our case, as said
earlier, the sale deed was executed only on 28.10.1996,
however the amended Act 2/96 came into force on 11.01.1996
much earlier to the execution of sale deed. The view expressed
in the Full Bench decision runs counter to the language used
in the statute and we are unable to accept the same.
12) From the materials, we are satisfied that the conclusion
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reached by the High Court holding that the review
petitioner/respondent herein is a "religious Mission"/
"institution" within the meaning of amended provision and
entitled to the benefits of amended Act. Further if the same is
not applied to the Mission, it would result in miscarriage of
justice and it had been rightly rectified by the High Court by
the impugned judgment. The benefit that has been bestowed
upon the religious institution by the Legislature cannot be
ignored lightly merely because the issue was decided by way of
review applications. Inasmuch as at the relevant point of time,
the Amended Act 2 of 1996 was not enacted and not available
for consideration before the Court and also of the fact that the
proceeding instituted by the tenant/appellant herein was
pending and not reached finality on the date of coming into
force of the amended Act, we are satisfied that the High Court
is justified in granting the relief as provided under the
amended Act (Act No.2 of 1996) by allowing the review
applications. As held earlier, if the judgment/order is vitiated
by an apparent error or it is a palpable wrong and if the error
is self evident, review is permissible and in this case the High
Court has rightly applied the said principles as provided under
Order 47 Rule 1 C.P.C. In view of the same, we are unable to
accept the arguments of learned senior counsel appearing for
the appellant, on the other hand, we are in entire agreement
with the view expressed by the High Court.
13) In the light of the above discussion and conclusion, the
appeals fail and are accordingly dismissed. No costs.