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CASE NO.: Appeal (civil)  1151 of 2005

PETITIONER: Sushanta Tagore & Ors.

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 03/03/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

[@ S.L.P. (Civil) Nos. 23803 of 2004]

S.B. SINHA, J :

       Leave granted.

INTRODUCTORY REMARKS:

                The Appellants herein are residents of Santiniketan in the District of  Birbhum of the State of West Bengal.   

       Visva Bharati University (University) was conceived and established  by Rabindranath Tagore, the great poet, story writer, song composer,  playwright, essayist, painter, educationist and Nobel Laureate, on 23rd  December, 1921.   

       An environment ambiance had all along been maintained in  consonance with the ideals of Tagore and for which the same was  established.   

THE ACT:         The Parliament with a view to preserve and protect the uniqueness,  tradition and special features of the said University, in exercise of its  legislative power conferred on it under Entry 63, List I of the Seventh  Schedule of the Constitution of India enacted The Visva-Bharati Act, 1951  (the Act) declaring it to be an institution of national importance.  The  University was constituted as an unitary, teaching and residential University  with a view to preserve the tradition and special features of the institution, as  would appear from its Statements of Objects and Reasons which are as  under:

"The Visva-Bharati founded by Dr. Rabindranath  Tagore at Santiniketan in 1921 is a unique  institution, and has since its inception served as a  centre for the study of, and research in, the  different cultures of the East on the basis of their  underlying unity, and has sought to approach the  West from the stand-point of such a unity of the  life and thought of Asia.  The Institution has  acquired a world-wide recognition and has  attracted scholars and pupils from many countries  all over the world.

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2. The University Education Commission  commended the special and very valuable work  done by this institution, particularly its "effort to  discover, preserve and transmit the vast elements  of old Indian culture, and the work with the  surrounding villages" and recommended that the  Visva-Bharati should be given a provisional  Charter as a University with suitable capital and  recurring grants.  The recommendations of the  University Education commission were approved  by the Central Adversory Board of Education at its  meeting in April, 1950, and the Government of  West Bengal agree to the establishment of a  unitary, teaching and residential University at  Santiniketan by an Act of Parliament.

3. There is no provision in the Constitution of  India for the grant of a Charter (as distinct from an  Act) as recommended by the University Education  Commission, but the Constitution makes the Union  Government responsible for institutions declared  by law to be of national importance (vide item 63  of List I of the Seventh Schedule to the  Constitution).

4. It is, therefore, proposed to make such a  declaration and have the Visva-Bharati constituted  as a Central University.  The constitution that is  proposed to be given to Visva-Bharati is in  conformity with the recommendations made by the  University Education Commission with such  modifications as are considered necessary to  preserve the tradition and special features of the  institution."

       Section 4 of the Act provides for incorporation of the University.  The  object of the University in terms of Section 5A thereof was to disseminate  and advance knowledge and understanding by providing instructional,  extension and research facilities and by the example and influence of its  corporate life, and in organizing its activities, have due regard to the objects  specified therein for which the Visva-Bharati at Santiniketan was founded  by Rabindranath Tagore, as expressed in his own words including "to see to  realize in a common fellowship of study the meeting of the East and the  West, and thus ultimately to strengthen the fundamental conditions of world  peace through the establishment of free communication of ideas between the  two hemispheres".

       Section 5B provides for the principles to be followed in organizing the  activities of the University, in respect whereof as also for implementation of  its academic programmes shall have due regard to the pattern of education  envisaged by Rabindranath Tagore in his writings.

       Section 6 provides for the power of the University some of which are:

"(6) to establish and maintain such Bhavanas,  Schools of Studies and Research, Chatravasas,  Gymnasia and such other institutions as are  deemed necessary, from time to time, for the  development of healthy corporate life in the  University and to abolish any such Bhavana  School, Chatravasa, Gymnasium or other  institution;

(7) to establish; at any place in India, campuses,  special centres, specialized laboratories or other

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units for research and instruction as are, in the  opinion of the University, necessary for the  furtherance of its objects;

(9) to undertake the promotion of adult education,  rural reconstruction, co-operative organizations,  social welfare, development of cottage industries  and all other nation-building activities and works  for the benefit of the public;

(32) to establish campuses within the territorial  limits of the University specified in the Second  Schedule;"

       By reason of Section 7 of the Act, the powers of the University  conferred by or under this Act shall be restricted to the area specified in the  Second Schedule.

       The Second Schedule appended to the Act provides for an area known  as Santiniketan admeasuring 3000 hectares bounded on the North by the  Kopai River, on the west by a line running from Ballavpur and Bonuri  villages to Bandgora, on the south by a line running from Bandgora via  Bolpur Dak Bungalow to the bridge over the Eastrn Railway cutting, and, on  the east by the Eastern Railway line.  PUBLIC INTEREST LITIGATION:         The Appellants herein who are residents of Santiniketan filed a public  interest litigation before the Calcutta High Court aggrieved by the  continuing process of defacement of the ambiance and environment which  was destroying the very ideals and purpose for which Visva Bharati was  conceived and founded by Tagore.  Such encroachment upon the ambiance  is said to have been committed by reason of indiscriminate constructions and  in particular construction of residential \026 cum \026 commercial complexes by  developers and promoters in utter disregard of, inter alia, environmental and  pollution control laws and requirements which had endangered the very  purpose, tradition and objective with which Visva Bharati was established  and which was thereafter sought to be preserved by the Act.  The Appellants  herein who are in particular aggrieved by proposed constructions which are  likely to come up in the area known as Khoai being land created in the  natural process through running rain water for millennia which is a rare  natural phenomenon and which, if destroyed, cannot be restored even with  the help of science  and, thus, requires preservation, approached the High  Court in the said proceedings.   

RESPONDENTS’ CONTENTIONS :         The Legislature of the State of West Bengal enacted the West Bengal  Town and Country (Planning and Development) Act, 1979 to provide for the  planned development of rural and urban areas in West Bengal and for  matters connected therewith or incidental thereto.

       The State of West Bengal claims to be owner of the lands situated at  Santiniketan being vested in it under Section 4 of the West Bengal Estate  Acquisition Act, 1953.  It is, however, not disputed that 1761 acres of land,  according to Sriniketan Santiniketan Development Authority (SSDA) (1127  acres, according to the University), were acquired for the University within  the aforementioned 3000 acres of land.

       The Respondents contend that the Universities which are either  declared to be of National Importance or have been set up by the State only  contain a territorial jurisdiction for the sole purpose of academic activities   and Section 7 of the Act must be interpreted accordingly.  Academic  territorial jurisdiction, according to Respondents, would not confer any title  thereupon in the University.  The area which was in contemplation of  Rabindranath Tagore is said to be known as the "Deer Park Area" as in

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1870, i.e., around the time when the said composition was made there was  only one barrage or bandh, in Santiniketan, which is still in existence and is  known as "Lal Bandh".  A decision to develop the said area was taken  whereupon a Land Use Map was published and objections thereto were  invited.  Upon consideration of such objections, some modifications in Land  Use Development and Control Plan were made out and the same received  the approval of the State of West Bengal in terms of Section 37 of the 1979  Act.  The Government of West Bengal allegedly sanctioned long term  settlement of the government land as mentioned in the Government Order  dated 25th April, 2003 in favour of SSDA.  Pursuant thereto or in furtherance  thereof SSDA has entered into an agreement with Bengal Ambuja Cement  Housing Development Ltd. which is a joint sector company of West Bengal  Housing Board, a body corporate formed under the West Bengal Housing  Board Act, 1972 and Gujarat Ambuja Cements Ltd. having equal  participation of 49.99%.  It is contended that the proposed constructions are  being made at a minimum distance of 250 meters of Visva Bharati area and  in terms of the land use and development plan no development is permitted  within 50 metres outside the boundary of Visva Bharati University. In its  counter affidavit, SSDA contended :  

"(Ac) The proposed development of the said plot  will be advantageous in all respects.  Had the  project not being undertaken the said plot would be  occupied by encroachers and unautorised buildings  constructed by them.  Areas nearby have been  encroached upon by private persons and buildings  have been constructed.  Under the planned  development much, lesser area than permissible  under SSDA will be covered and accordingly there  will be considerable open space in addition to 3  acres of land for greenery.  No building will  exceed permissible height as mentioned  hereinbefore.  There will be primary school, which  in very much needed in the area.  Unauthorised  structures on the plot have been mostly removed  but still some of them exist.  Revenue to be  received by SSDA out of this project is to be  utilized for carrying out various other projects for  public purpose.  SSDA has undertaken various  works of public benefit.  Several roads have been  developed project for supply of potable water has  been undertaken and has been substantially  implemented.  Further implementation in other  area is also under process.  Genuine residents of  Santiniketan will be benefited out of the said  works undertaken by SSDA."

HIGH COURT:

       A Division Bench of the High Court dismissed the said public interest  litigation holding that the University being not the owner of the entire 3000  acres of land no relief can be granted.  While arriving at the said finding, it  was opined :

(i)     "\005If it is not Vishwabharati’s special dominion  land for setting up campuses as and when it so  will, then the State has authority to deal with the  same in accordance with law, because there are no  other objectors.  It is not illegal to set-up  reasonably peaceful activities or abodes of  citizens, near or even very near, Universities."

(ii)    "That the continued increase of population in  Santiniketan and the continued increase of building  activity there, will slowly change the place almost

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beyond the recognition of the poet, if he were to be  alive even today, cannot be disputed."

(iii)   "The Act contains no indication that by reason of  any spirit of the Act, or the spirit of the poet,  Santiniketan is to be made into such an exclusive  spot forever."

(iv)    "Moreover, assuming that the building activity is  to take place only in accordance with the spirit and  ideas of the poet, Rabindra Nath Tagore, how, we  ask ourselves, is such activity to be monitored in  the practical World?  Will every builder make an  application first to the Vishwabharati University,  seeking permission?  Will every such case of  permission ultimately travel to the Public Interest  Litigation Court, for us to decide ultimately  whether the building activity would be in keeping  with the old ideas of the old Santiniketan?  In our  opinion, this is an unreasonable and, therefore, an  illegal and an impractical way of thought.  The  building activity can be mentioned and controlled  only if some law says that it is to be so monitored  and controlled, and also lays down specific ways  in which such restrictions are to be imposed by  specified or named authorities.  None of the laws  shown to us prevents the Bengal Ambuja Project."

(v)     "We are of the opinion that the Bengal Ambuja  Housing Complex will, to that extent, change the  topography of Santiniketan in the canal front but  that there is no public interest which calls for  restraint of such a change.  In our opinion, the  University activities can go on with substantially  the same amount of vigour and benefit to mankind  whether we are aware that we are going a long way  in saying this, but still we do state this to do so, the  Santiniketan outside the University becomes a  residential town or even an Industrial town,  provided the growth is planned, systematic and in  accordance with the laws relating to freedom from  population."   

SUBMISSIONS:         Mr. Soli J. Sorabjee, learned senior counsel appearing on behalf of the  Appellants, in assailing the judgment of the High Court, would submit that  the issues raised in the writ petition must be considered having regard to the  purposes for which the Act was enacted and having regard to its Preamble  and the Statement of its Objects and Reasons.  Activities going against the  tenor the said Act, Mr. Sorabjee would contend, should not be permitted.   

       The learned counsel submitted that the findings of the High Court to  the effect changes necessary to be brought about in the topography and the  same would slowly change the place almost beyond the recognition of the  poet, if he were to be alive even today as fallacious inasmuch postulate such  activities which the Act intends to prevent.  Comparison of the said  University with other universities, Mr. Sorabjee argued, is wholly  misconceived.  Mandate of the Act, according to Mr. Sorabjee, provides for  guidelines to maintain the ambiance of entire Santiniketan which will itself  be in public interest.  If by reason of the activities, the character of the place  sought to be preserved by the Act is changed beyond recognition and  topography of Santiniketan itself is affected thereby, the Court should  invoke the doctrine of ’implied prohibition’ for giving a true meaning of the  Act.  Our attention in this connection has been drawn to a report of the West  Bengal Pollution Control Board.  It was urged that although the said report

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was in relation to the construction activities carried out by M/s. Bengal  Peerless Housing Development Company  but it would appear therefrom  that the site of development of housing of M/s. Bengal Ambuja Ltd. was also  visited.   

The learned counsel submitted that the Division Bench of the Calcutta  High Court neither took into consideration the report of the West Bengal  Pollution Control Board in its proper perspective nor applied its mind with  regard to preservation and protection of Khoai which was the basis for  maintaining the writ petition.

       Mr. G.L. Sanghi, learned senior counsel appearing on behalf of the  Respondent No. 10, took us through the counter-affidavit filed by SSDA and  submitted that having regard to the fact that the State has the exclusive  legislative competence as regard town planning, the Parliamentary Act  cannot interdict in the areas covered by the State Act.   

       The learned counsel would contend that by reason of such  constructional activities neither the academic programme of the University  as contemplated under Section 5B of the Act nor the academic territory of  the University has contemplated under Section 7 thereof are affected.  The  University itself having not claimed any ownership in respect of the land  beyond what had been acquired for its purpose, and, thus, the writ petition  filed by the Appellant herein had rightly been dismissed.  It was pointed out  that there exist many houses within the area of 3000 acres of land and in fact  the most of the Appellants are residents thereof and, thus, it does not lie in  their mouth to contend that no constructional activities should be carried out  within the area contained in the Second Schedule of the Act.

       The learned counsel appearing on behalf of the State of West Bengal  and SSDA adopted the submissions of Mr. Sanghi.

       Mr. Gautam Banerjee, learned counsel appearing on behalf of the  University, however, left the matter at the hands of the court stating that the  activities of Respondent No. 10 are outside the area of the University.   

       Mr. T.S. Doabia, learned senior counsel, appearing on behalf of the  Union of India, however, would support the Appellants herein contending  that in the larger interests the provisions of the Act should be implemented  in letter and spirit and nothing should be done so as to destroy the purport  and object for which the University was founded.

       Mr. R. Mohan, learned ASG, appearing on behalf of the West Bengal  Pollution Control Board submitted that his client stands by its report.

REPORT OF THE POLLUTION CONTROL BOARD:         From the report sent by the W.B. Pollution Control Board, it would  appear that it had issued a direction restricting the municipal corporations,  etc. from sanctioning any building plan of big housing complexes without  obtaining its  environmental clearance.  Having regard to the peculiar  features and the fact that SSDA’s working area includes maintenance and  preservation of cultural heritage and natural environment of Sriniketan- Santiniketan and further in view of the increase in the price of the land of  Khoai and as people visiting Santiniketan enjoy Khoai by seeing in different  climatic and scenic conditions, it was stated:

"Increasing constructional activity in Sriniketan- Santiniketan area may cause serious disruption in  natural drainage system.  It is therefore necessary  to examine the drainage pattern (both dry weather  flow and storm water flow) in the area and  document it as per field condition.  It is suggested  that SSDA could take up the job examining the  drainage pattern and system and document them in  a map (marked with contour).  The coming rainy

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season (July-September) could be ideal for the  field study.

As Santiniketan is getting developed as tourist  place, therefore, it is essential to preserve the  natural beauty and heritage which people like to  enjoy.  It is true that planned housing is one of the  component of urbanization.  There is a great  demand of housing not only from the local  residents but also from people outside.  Many want  to keep a 2nd home for use during weekends,  holidays and festivals.  Housing needs supporting  infrastructures, also required to be constructed.   Further, it will require adequate water supply,  sanitation and drainage, solid waste management,  etc.

Urbanization will have impact on ambient air  quality unless problem mitigation measures are  taken properly.  The rapid EIA report submitted by  BPHDCL though indicated that suspended  particulate matters in ambient air at Sonar Taree  area are below maximum permissible limit, but the  same near Pearson memorial Hospital was more  than the permissible limit in December.  Even on  some days of December the SPM was more than  the permissible limit at Sonar Taree area.   However, other parameters of ambient air are well  below the permissible limit."

       It was opined:

"SSDA should follow land use and development  control plan already prepared by Urban  Development (T&CP) Department.  In addition,  SSDA must see to conservation of the natural  heritage of the place as far as practicable.  It is also  true that when development of Santiniketan- Sriniketan area is a necessity due to promotion of  tourism and urban pull, there must be certain  changes in the land use pattern resulting in  disappearance of khoyai landscape from certain  places.  Hence SSDA must look into this aspect  while planning for development of area keeping  changes of Khoyai land formation minimal."

       Among other things, the Report recommended that:

(i)     no more housing projects be undertaken until SSDA’s perspective  plan \026 2025 including Visva Bharati’s special requirements was approved, (ii)    ensure minimal damage to the remaining Khoai so as to preserve its  natural beauty, heritage and natural drainage system, (iii)   a Satellite Township be built at a suitable distance from the Visva  Bharati area.

ANALYSIS OF THE PROVISIONS OF THE ACT:         Visva Bharati is an institution of national importance.  The purport  and object for which the Act was enacted is neither in doubt nor in dispute.   The preamble of the Act as well as the Statement of Objects and Reasons are  clear and explicit.   

       As Shri A.C. Guha put it during the Parliamentary Debate on the Bill,  Visva Bharati is a "symbol of our culture".  During the Parliamentary  Debate, Maulana Abdul Kalam Azad had said, "Nature has provided it with  the canopy of the sky and the open places and they do not want to make any

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additions to them in the form of brick and stone".  Pandit Jawaharlal Nehru  said, "And I entirely agree with Dr. Mookerjee when he laid stress on certain  factors that may be called external if you like, but, nevertheless, which must  have a very powerful influence in moulding the student there and creating a  new environment, whether it is teaching in the mango grove or doing  anything like that.  I entirely agree with him that we should not spend our  money on a large number of brick structures as we unfortunately still do in  making our buildings, whether educational buildings or other buildings, and  have little left to carry on the work in those buildings".

The Act was enacted with the consent of the State of West Bengal.   The State, having regard to the purport and object of the Act, has, thus,  a  duty to see that the environmental ambiance which would not be in  consonance with the ideals of Visva Bharati should not be undertaken.   Visva Bharati is sui generis.  It is an institution of national importance.  It is  a unitary teaching and residential University.  The jurisdiction of the  University is not only confined to the area specified in the Second Schedule  appended to the Act, as regard its academic activities but in view of Section  6(32) of the Act it may establish campuses within the territorial limits of the  University as specified therein. The provisions of the Act and in particular Sections 5A, 6, 7 and the  Second Schedule thereof must be conjointly read with the preamble and the  Statement of Objects and Reasons thereof.   

DETERMINATION         The Division Bench of the High Court, as noticed hereinbefore,  arrived at a finding that the continued increase of building activities will  slowly change the place almost beyond recognition of the poet and the  activities of Bengal Ambuja Housing Complex Ltd. will to some extent  change the topography of Santiniketan in the canal front.  Despite holding  so, the High Court observed that such changes are necessary having regard  to the continued increase in population of Santiniketan and, as the Act does  not contain any provision Santiniketan was required to be made an exclusive  spot forever and, furthermore, as allowing the Santiniketan in its original  form would be impractical, it can be permitted to become residential town or  even industrial town provided the growth is planned, systematic and in  accordance with the laws relating to freedom from population.

       If by reason of any activity, the tradition and special features of Visva  Bharati are not preserved, the very purpose of the enactment would be  defeated.  It has not been denied or disputed that even now the Visva Bharati  organizes classes in open air and also on Khoai lands, particularly, drawing  and painting classes.                      Indisputably, changes are taking place everywhere in India but  Santiniketan should maintain the tradition and special features of the Visva  Bharati in terms of the statutory scheme.   

       The Appellants had brought on records that frequent and unscheduled  excursions and picnics in the area by the students of Kala Bhavana and Patha  Bhavana were the hall-marks of Tagore’s unique educational innovation.

       The Division Bench of the High Court, in our opinion, was not correct  in holding that in the event the building activity in the territorial area  comprising Santiniketan as specified in the Act was to take place in  accordance with the spirit and ideas of Rabindranath Tagore, such activity  cannot be monitored in the practical world and, therefore, would constitute  illegal and impractical way of thought and furthermore although the House  Complex project of the Respondent No. 10 would change the topography of  Santiniketan in the canal front, there was no public interest calling for  restraint of such a change.

       The West Bengal Pollution Control Board is a statutory body.  The  environmental impact assessment in terms of the provisions of the laws  governing ecology of the area is imperative.  The Pollution Control Board

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which has statutory duties to perform had issued certain directions for  preservation   and conservation  for cultural, historical, archaeological,  environmental and ecological purposes.  Such directions are binding on the  State as well as SSDA.  If any construction is carried on the Khoai, the same  indisputably will destroy its unique natural and cultural heritage, as opined  by the Board, and, thus, all constructional activities must abide by the same.

       It is imperative that the ecological balance be maintained keeping in  view the provisions of  both directive principles of State Policy read with  Article  21 of the Constitution.  Furthermore, a State within the meaning of  Article 12 of the Constitution of India must give effect to the provisions of  Article 51A(g) of the Constitution which reads as under :   "51A. Fundamental duties \026 It shall be the duty of every   citizen of India \026                         ***                     ***             *** (g)     to protect and improve the natural environment  including forests, lakes, rivers and wild life, and to have  compassion for living creatures;"

       It may be true that the Appellants herein have their own houses within  3000 acres of land but they have been residing there for a long time.  What is  being objected to by them is constructions of huge residential and  commercial complexes which even according to the High Court would not  only change the topography but also would change the place almost beyond  the recognition of the poet.

       It may be true that the development of a town is the job of the town  planning authority but the same should conform to the requirements of law.   Development must be sustainable in nature.  A land use plan should be  prepared not only having regard to the provisions contained in the 1979 Act  and the rules and regulations framed thereunder but also the provisions of  other statues enacted therefor and in particular those for protection and  preservation of ecology and environment.

       As Visva Bharati has the unique distinction of being not only a  University of national importance but also a unitary one, the SSDA should  be well-advised to keep in mind the provisions of the Act, the object and  purpose for which it has been enacted as also the report of the West Bengal  Pollution Control Board.  It is sui generis.           It is idle to compare Shantiniketan with any other university.  Truism  is that Shantiniketan has unique features.  Its environmental ambiance, thus,  must be maintained.  There is no other university which having regard to the  purport and object of the Act, as would appear from the objects and reasons  thereof, can be compared with Visva Bharati.  Our attention has not been  drawn to any other statute establishing any university which has such unique  features as Visva Bharati.  

       Only because some  advantages would ensue to the people in general  by reason of the proposed development, the same would not mean that the  ecology of the place would be sacrificed.  Only because some  encroachments have been made and unauthorized buildings have been  constructed, the same by itself cannot be a good ground for allowing other  constructional activities to come up which would be in violation of the  provisions of the  Act.  Illegal encroachments, if any, may be removed in  accordance with law.  It is trite law that thee is no equality in illegality.

       The Parliamentary Debates, some of which we have noticed  hereinbefore, clearly go to show that the Act was enacted with particular  objectives in view.  Such statutory objects could not have been given a go  by.  It is not suggested that the Santiniketan should remain as it was in 1921  but it cannot be permitted to become full of concrete jungles and industrial  hub.  For carrying out further constructional activities, it may not be

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necessary for a builder to apply to the University for seeking its permission  but the local-self government which is responsible therefor must take into  consideration the salutary principles laid down in the pollution control laws  as well as the Act.  The land use and future planning of Santiniketan must be  done in such a manner so that the changes be brought about which would not  be beyond the recognition of the poet as  also the provisions of the Act.   SSDA in that sense must distinguish itself from the other development  authorities.  It has an extra-burden to shoulder.  It cannot shut its eyes to the  provisions of the Act and the object and purport it seeks to achieve.  It  cannot ignore the environmental impact assessment made by the Board.  It is  one thing to say that the SSDA may permit small constructions to be made  by the owners of the land or additions or allow alterations to the existing  building for residential purposes but it is another thing to say that it would  not consider the effect of the changes which may be brought about by  turning Santiniketan into a commercial and industrial hub.

       We, with respect to the High Court, are not in a position to agree with  the observations which clearly run counter to its own findings of fact.  

CONCLUSION:

       The question is \026 what do we do in the instant case?

SSDA issued notices as regard adoption of the land use map as far  back as in the years 1999 and 2000.  The State Government had granted a  long term settlement in favour of SSDA with a further right to the residential  flat owners for the unexpired period of lease by an order dated 25.4.2003.  In  2003 itself, the project had been given a green signal and it is stated before  us that the Respondent No. 10 has already spent about 1.5 crores of rupees.   

       Our attention has further been drawn by Mr. Sanghi that the house  project of Bengal Peerless has already come into being.  In that view of the  matter, we do not intend to stop the construction activities which are being  carried out by the Respondent No. 10 but direct that in future SSDA must  keep in mind the statutory provisions referred to hereinbefore as also the  observations made by us herein.   

       This appeal is disposed of with the aforementioned directions.  No  costs.