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PETITIONER: HARIDWAR SINGH

       Vs.

RESPONDENT: BAGUN SUMBRUI AND ORS.

DATE OF JUDGMENT25/02/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN HEGDE, K.S.

CITATION:  1972 AIR 1242            1972 SCR  (3) 629  CITATOR INFO :  R          1976 SC 263  (13)

ACT: Contracts--Acceptance  of auction bid by  Divisional  Forest Officer  subject  to  confirmation by  Government  does  not result in concluded contracts in the absence of confirmation by   Government--Rules  of  Executive  Business   of   Bihar Goverment made under Art. 166(3) of Constitution--Rule 10(1) as  relaxed  does  not  prohibit  grant  of  lease   private treaty--Rule   10(1)  in  so  far  as  it   requires   prior consultation with Finance Department is mandatory.

HEADNOTE: The  right  to  exploit  a bamboo  coup  in  the  Hazaribagh district of Bihar was auctioned in August 1970.  The reserve price was Rs. 95,000/but the appellant’s bid of Rs. 92,001/- being  the  highest was accepted by  the  Divisional  Forest Officer.  The petitioner deposited the security required and executed an agreement.  The Divisional Forest Officer  about the  auction sale to the Conservator of Forests,  Hazaribagh Circle-.  As the price for which the coup was  provisionally settled  exceeded  Rs. 50,0001- the Conservator  of  Forests forwarded  the  papers  regarding the auction  sale  to  the Deputy   Secretary  to  the  Government  of  Bihar,   Forest Department  for  confirmation of the acceptance, by  the  Go Since  provisional  settlement was made for an  amount  less than  the reserve price the matter was also referred to  the Finance  Department.   When  the  matter  was  pending   the appellant  expressed his willingness to take the  settlement at  the reserve price of Rs., 95,000/- by his  communication dated October 26, 1970.  The appellant thereafter filed  an application  on November 3, 1970 praying for  settlement  of the  coup on the basis of the highest bid.  The Minister  of Forest  by his proceedings dated November 27, 1970  directed that  the coup may be settled with the highest bidder  viz.. the appellant at the reserve price.  A telegram was sent  by the  Government  to the Conservator of  Forests,  Hazaribagh Circle  on  November 28, 1970 with copy of the same  to  the Conservator  of Forest, Bihar co  the auction sale at  the reserve price of Rs, 95,000/.  As no intimation was received by the Divisional Forest Officer he did not communicate  the proceedings  of the Minister to the appellant.  On  December 24,  respondent  No. 6 filed a petition  to  the  Government

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offering to take the settlement of the coup in question  for Rs.  101125/-.   The  Minister,  by  his  proceedings  dated December 13, 1970 cancelled the settlement of the coup  with the appellant and settled the same with respondent No. 6 for Rs. 101125/-.  ’The appellant filed a writ petition in  the high  Court contending that there was a  concluded  contract when the bid of the appellant was accepted by the Divisional Forest  Officer though that was subject to the  confirmation by   the  Government  and  when  the  Government   confirmed acceptance  by its proceedings dated number 27, 1970 it  was no  longer  within the Dower of the Government to  make  the settl ement  of  the coup upon the 6th respondent.   It  was also contended that the settlement of the coup in favour  of the 6th respondent was invalid because (a) rule 10(1) of the Rules  of Executive Business made under Art. 166(3) of  the- Constitution  as  relaxed  by  the  letter  of.  the  Deputy Secretary  to  the Government dated November 27,  1967  pro- hibited  the  grant of lease by private treaty and  (b)  the requirement of 12--L1031SupCI/72 630 prior  consultation in r. 10(1) with the Finance  Department was  mandatory  and had not been complied  with.   The  High Court  rejected the appellant’s contentions.  In  appeal  to this Court by special leave. HELD  :  (1)  The acceptance of the  appellant’s  offer  was subject to confirmation by the Government and in the absence of such confirmation them could be no concluded contract. The appellant’s bid was for Rs;. 92001/-.  The acceptance of the  bid  by the Divisional Forest  Officer  was  therefore, subject  to confirmation by the Government.  The  proceeding of  the Minister dated November 27, 1970 would show that  he did  not-confirm acceptance of the offer by  the  Divisional Forest  Officer.  What the Minister did was not  to  confirm the acceptance made by the Division 31 Forest Officer but to accept the offer made by the appellant in his  communication dated  October 26, 1970 that he would take the coup for  the reserved  price  of Rs. 95,000/.  There was, there  for,  no confirmation  of the acceptance of the bid to take the  coup in  the settlement for the amount of Rs.  92,001/-.  [634-G- 635B] If  the offer that was accepted was the offer  contained  in the  communication of the appellant dated October 26,  1970 it could not be said that there was any communication of the acceptance  of  that offer to the appellant.   The  telegram sent  to  the  Conservator of  Forest,  Hazaribagh  by-  the Government on November 28, 1970 could not be considered as a communication  of  the  acceptance  of  that  offer  to  the appellant.   The acceptance , of the offer was not even  put in  course  of transmission to the appellant;  and  so  even assuming  that acceptance need not come to the knowledge  of the offer or, the appellant could not contend that there was a concluded contract on the basis of his offer contained  in his communication dated October 26, 1970, as the  acceptance of  that  offer was not put in the course  of  transmission. Apart from that the appellant himself revoked the offer made by  him on October 26, 1970 by his letter dated November  3, 1970  in which he stated. that the coup may be settled  upon him  at the highest bid made by him in, the auction.   There was,  thus no concluded contract between the  appellant  and the government. [635B-D] The  Rajanagaram Village Cooperative Society, v.  Veeraswami Mudaly, [1950] 11 M.L.J. 486, distinguished. Somasundaram  Pillai  v. Provincial  Government  of  Madras, A.I.R. 1947 Madras, 366, applied. (ii)Rule  10(1) in so far as it was relevant to the  present

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case  only  says  that no  department  shall  without  prior consultation  with the Finance Department authorise  by  any order the lease of license of mineral or forests.  The  rule read  in the context of its relaxation as mentioned  in  the letter  of  the  Deputy  Secretary  would  only  show   that consultation  with the Finance Department is  not  necessary for  a lease if lease is of land of the value of  more  than Rs. 50,0001- and ’is granted in pursuance of public  auction held  in  conformity with the conditions  mentioned  in  the letter  of the Deputy Secretary.  The rule where  before  or after  relaxation  did not prohibit the grant  of  leave  by private treaty. [637C] (iii)It  was clear from records relating to the  proceedings for  the grant of the lease in favour of the 6th  respondent that  the  Finance Department was not consulted  before  the Minister  passed  the order on December 13, 1970.  to  grant lease.  It could not be said that rule 10(1) in so far Is it requires  prior consultation with the Finance Department  is only  drirectory and therefore even if there was  no,  prior consultation the settlement 631 was  valid.   The negative or prohibitive language  of  rule 10(1) is a strong indication of the intent to make the  rule mandatory.   Further  rule 10(2) makes it clear  that  where prior  consultation with the Finance Department is  required for a proposal and the department on consultation, does  not agree  to  the  proposal,  the  department  originating  the proposal  can take no further action on the  proposal.   The Cabinet alone would be competent to take a decision.   Prick consultation is, therefore, an essential prerequisite to the exercise  of  power.  The, order passed by the  Minister  of Forest,  Government of Bihar on December 13,  1970  settling the coup in favour of the 6th respondent was, therefore  bad and the order must be quashed. [637EF; 638D-F] Dattatreya  Moreshwar Pangerkar v. The State of  Bombay  and Others. [1952] 2 S.C.R. 612 applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1807 of 1971. Appeal  by special leave from the judgment and  order  dated May  6, 1971 of the, Patna High Court in C.W.J.C. No. 41  of 197 1. L.  M.  Singhvi,  S.  C. Dingra and U.  P.  Singh,  for  the appellant. S. V. Gupte and B. P. Singh, for respondents Nos.  1 to 5. S. N. Prasad and D. N. Mishra, for respondent No. 6. The Judgment of the Court was delivered by Mathew,  J. The appellant filed a writ petition  before  the High Court of Patna_praying for quashing an order passed  by the Minister of Forest, Government of Bihar, on December 13, 1970,  and  for issue of a writ in the  nature  of  mandamus directing  the  respondents  1 to 5 to give  effect  to  the previous order of the Minister of Forest dated November  27, 1970.   The writ petition was heard by a Division  Bench  of the  Court and the petition was dismissed.  This appeal,  by special leave, is from that judgment. There is a bamboo coup know as "Bantha Bamboo coup in Chatra North  Division of Hazaribagh district.  On July  22,  1970, the Forest Department of the Government of Bihar  advertised for  settlement of the right to exploit the COUP  by  Public auction’  The  auction  was  held  in  the  Office,  of  the Divisional  Forest Officer on August 7, 1970.  Five  persons including the appellant participated in the auction.  Though

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the  reserve  price  fixed  in the  tender  notice  was  Rs. 95,000/-,  the  appellant’s bid of Rs. 92,001/-,  being  the highest, was accepted by the Divisional Forest Officer.  The petitioner thereafter deposited the security amount of  Rs. 23,800/-  and executed an agreement.  The Divisional  Forest officer  reported about the auction We servator of  Forests, Hazaribagh Circle, by his letter dated August 25, 1970.   As the price for which the coup was provisionally, 632 settled  exceeded Rs. 50,0001-, the Conservator  of  Forests forwarded  the  papers  regarding the auction  sale  to  the Deputy Secretary to Government of Bihar, Forest  Department, for coation of the acceptance by the Government.  Since  the provisional settlement was made for an amount less than  the reserve  price, the matter was also referred to the  Finance Department.   The Finance Department invited  comments  from the  Divisional Forest Officer as to why the settlement  was made for a lesser amount.  The Divisional Forest Officer, by his   letter  dated  October  30,  1  970.   submitted   his explanation  for  the provisional settlement  at  an  amount below the reserve price.  When the matter was pending before the  Government, the appellant expressed his willingness  to take  the settlement at the-reserve price of Rs.  95,000  by his  communication  dated October 26, 1970.   The  appellant thereafter filed an application on November 3, 1970, praying for settlement of the coup on the basis of the highest  bid. The  Minister of Forest, by his proceedings  dated  November 27,  1970,  directed that the coup may be settled  with  the highest bidder. namely the appellant, at the reserve. price. A telegram was sent by the Government to the Conservator  of Forests, Hazaribagh Circle on November 28, 1970, with a copy of the same to the Conservator of Forest, Bihar,  confirming the  auction sale to the appellant at the reserve  price  of Rs.  95,000/-.   As  no  intimation  was  received  by   the Divisional  Forest  Officer,  he did  not  cormmunicate  the proceedings  of  the  Minister to the  appellant.   One  Md. Yakub,  Respondent  No. 6, filed a petition on  December  4. 1970,  before  the Government of Bihar,  Respondent  No.  1. offering to take the settlement of the coup in question for Rs.  1,01,125/-.  A telegram was sent by the  Government  on December   5,  1970,  to  the  Divisional  Forest   Officer, directing  him  not to take any action on the basis  of  the telegram  dated November 28, 1970, sent to him in  pursuance of  the  proceedings of the Government  dated  November  27, 1970.   That telegram was received by the Divisional  Forest Officer  on  December 10, 1970. and  the  Divisional  Forest Officer, by his letter dated December 10. 1970, informed the Government  that  the previous telegram dated  November  28, 1970,  was  not received by him and so it  content  was  not communicated to the appellant.  The whole matter was  there- after placed before the Minister of Forest and the Minister, by  his proceedings dated December 13, 1970,  cancelled  the settlement  of the coup with appellant and settled the  same with  Respondent No. 6 for.Rs. 1,01,125/-.   The  Government thereafter  sent  telegrams on December 21,  1970,  /to  the Conservator  of  Forests and the Divisional  Forest  Officer informing   them  that  the  coup  had  been  settled   with Respondent  No.  6. The Divisional Forest  Officer.  by  his letter  dated December- 23, 1970, directed Respondent No.  6 to  deposit  the  security  amount  and  to  pay  the  first instalment.   Respondent  No.  6  deposited  the  same   and executed an agreement. 633 The  contention  of the appellant in the writ  petition  was that  there  was a concluded contract when the  bid  of  the

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appellant  was  accepted by the  Divisional  Forest  Officer though  that was subject to confirmation by  the  Government and  that, when the Government confirmed the  acceptance  by its  proceedings, dated November 27, 1970, it was no  longer within the power of Government to make the settlement of the coup  upon  the  6th Respondent  by  its  proceedings  dated December 13, 1970.  It was also contended in the alternative that  the  settlement  of the coup in  favour  of.  the  6th Respondent   was  in  violation  of  statutory  rules   and, therefore, in any event, that settlement was invalid. As already indicated, the High Court negatived these conten- tions and upheld the validity of the settlement in favour of the 6th Respondent. The  special conditions in the tender notice makes it  clear that the Divisional Forest Officer has the right to,  accept a bid of less than Rs. 5,0001-, that acceptance of a bid  of more than Rs. 5,0001- by him is subject to confirmation  by- the  Chief Conservator of Forests and the Forest  Department of  the Bihar Goverment, that an auction sale for an  amount of more than Rs. 5,0001- would not be recognised until it is confirmed by the competent authority, and that a bid made in auction  and  which has been provisionally accepted  by  the Divisional Forest Officer shall be binding on the bidder for two  months  from the date of auction or till  the  date  of rejection by the competent authority, whichever is earlier. Counsel for the appellant contended that there was a  condi- tional  acceptance  of  the offer of the  appellant  by  the Divisional  Forest  Officer,  that on  confirmation  by  the Government,   that  acceptance  became  unconditional   and, therefore,   there  was  a  concluded  contract   when   the Government   confirmed  the  acceptance,  even  though   the confirmation  was  not communicated to  the  appellant.   In support  of  this,  he relied  on  The  Rajanagaram  Village Cooperative  Society v. Veerasami Mudaly(1).  There  it  was held  that  in the case of a conditional acceptance  in  the presence of a bidder, the condition being that it is subject to  approval  or  confirmation by  some  other  person,  the acceptance,  though conditional, has to be communicated  and when  that  is  communicated, there is no  further  need  to communicate  the  approval  or  confirmation  which  is  the fulfillment  of the condition.  It was further held  that  a conditional acceptance has the effect of binding the highest bidder  to the contract if there is subsequent  approval  or confirmation by the person indicated, that he cannot  resile from  the  contract or withdraw the offer, and if  there  is approval. or confirma- (1) [1950] 11 M.L.J.486. 634 tion, the contract becomes concluded and enforceable.   This decision was considered in Somasudaram Pillai v.  provincial Government of Madras(1) where Chief Justice Leach,  speaking for  the Court said that, to have an  enforceable  contract, there  must be an offer and an unconditional acceptance  and that  a person who makes an offer has the right to  withdraw it  before acceptance, in the absence of a condition to  the contrary  supported by consideration.  He further  said  the fact  that  there  has been  a  provisional  or  conditional acceptance would not make any difference as a provisional or conditional  acceptance  cannot  in itself  make  a  binding contract. The  question whether by an acceptance which is  conditional upon  the  occurrence  of a future ’event  a  contract  will become  concluded  was considered by Williston and  this  is what he says : (-)               " A nice distinction may be taken here between

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             (1)  a  so-called  acceptance  by  which   the               acceptor agrees to become immediately bound on               a condition not named in the offer, and (2) an               acceptance  which  adopts  unequivocally   the               terms of the offer but states that it will not               be  effective  until  a  certain   contingency               happens or fails to happen.  In the first case               there  is a counteroffer and rejection of  the               original offer; in the second case there is no               counter-officer,  since there is no assent  to               enter into an immediate bargain.  There is, so               to  speak, an acceptance in escrow,  which  is               not  to take effect until the future.  In  the               meantime,  of course, neither party  is  bound                             and either may withdraw’ More over, if  the time               at   which  the  acceptance  was   to   become               effectual  is unreasonably remote,  the  offer               may   lapse  before  the  acceptance   becomes               effective.  But if neither party withdraws and               the, delay is not unreasonable a contract will               arise  when  the contingency happens  or  sti-               pulated event occurs" In  this  case, it is not the want of communication  of  the confirmation by the Government to the appellant that  really stands  in the way of there being a concluded contract,  but rather  the  want of confirmation by the Government  of  the conditional  acceptance  by the Divisional  Forest  Officer. The  appellant’s bid was for Rs. 92,001/-.  The,  acceptance of the bid by the Divisional Forest Officer was,  therefore, subject  to confirmation by Goverment.  The proceedings.  of the Minister dated November 27, 1970, would show that he did not confirm the acceptance of the (1)  A.I.R. 1947,34 Madras, 366. (2)  Williston On Contracts, Vol. I, 3rd Ed.  Section 77A, 635 offer  by the Divisional Forest Officer.  What the  Minister did was not to confirm the acceptance made by the Divisional Forest  Officer,  but  to  accept  the  offer  made  by  the appellant in his communication dated October 26, 1970,  that he  would  take  the  coup for the  reserved  price  of  Rs. 95,000/-.   There  was, therefore, no  confirmation  of  the acceptance of the bid to take the coup in settlement for the amount of Rs. 92,001/-.  If the offer that was accepted  was the  offer contained in the communication of  the  appellant dated  October 26, 1970, we do not think that there was  any communication of the acceptance of that offer to the  appel- lant.   The  telegram  sent to the  Conservator  of  Forest, Hazaribagh,  by the Government on November 28, 1970,  cannot be  considered as a communication of the acceptance of  that offer to the appellant.  The acceptance of the offer was not even put in the course of transmission to the appellant; and so  even  assuming that an acceptance need not come  to  the knowledge  of the offeror the appellant cannot contend  that there  was  a concluded contract on the basis of  his  offer contained  in his communication dated October 26,  1970,  as the  acceptance of that offer was not put in the  course  of transmission.  Quite apart from that, the appellant himself revoked  the offer made by him on October 26, 1970,  by  his letter  dated November 3, 1970, in which he stated that  the coup may be settled upon him at the highest bid made by  him in  the  auction.  We are, therefore, of  the  opinion  that there  was no concluded contract between the  appellant  and the Government. This  takes  us to the question whether  the  settlement  in

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favour  of  the  6th  Respondent was  in  violation  of  any statutory  rule.   The appellant’s contention was  that  the settlement  in  favour of the 6th Respondent  by  a  private treaty was in violation of the, rules of executive  business made under Article 166(3).  Rule 10 of the Rules provides :               "10(1)  No department shall, without  previous               consultation  with  the  Finance   Department,                             authorise   any  orders  (other   than    orders               pursuant to any general or special  delegation               made by the Finance Department) which               (a)    either   immediately   or   by    their               repercussion, will affect the finances of  the               State, or which, in particular,               (i) involve any grant of land or assignment of               revenue or concession, grant, lease or licence               of  mineral or forests, rights or a  right  to               water  power of any easement or  privilege  in               respect of such concession.               **        ***       **      *** 636               (2),  Where  on a proposal  under  this  rule,               prior consultation with the Finance Department               is   required,  but  on  which   the   Finance               Department  might not have agreed, no  further               action  shall  be taken on any  such  proposal               until  the  cabinet takes a decision  to  this               effect." A  copy  of  the letter from the  Deputy  Secretary  to  the Government of the Accountant General, Bihar, dated  November 22,  1967 would show that some relaxation of Rule  10(1)  of the  rules  of executive business was made  by  the  Finance Department  relating,  to lease of forest  Coups  or  forest produce of the value of more than Rs. 50,0001-.  That letter reads as under :               "Subject  : Revision of procedure  in  issuing               any  order involving any grant of lease,  sale               or  licence  of minerals of forest  rights  if               such  order  is issued by  the  Administrative               Department at the, Secretariat level.               "Sir,               I  am  directed to say that in  relaxation  of               rule  10 of the Rules of  Executive  Business,               Government  have been pleased to  decide  that               the  Forest Department shall authorise  orders               sanctioning leases of Forest coups or  produce               of the value of more than Rs. 50,0001- (rupees               fifty thousand) each, subject to the following               conditions that -               (1)  Reserve price of the coup has been  fixed               before auction.               (2) Highest bid should be accepted.               (3)  Highest bid should not be less  than  the               reserve price.               (4)   Any  relaxation to the above  conditions               may not ordinarily be allowed except with  the               prior concurrence of the Finance Department." Before the High Court the contentions of the 6th  Respondent were,  firstly, that the rule 10(1) is not a statutory  rule and, secondly, that it did not concern lease of forest land. The  High Court, without deciding the question  whether  the rule is a statutory rule, held that the rule has nothing  to do  with the lease of forest coups and said that  there  was nothing which prevented the Government from giving the  coup on lease by private treaty.  The High Court, therefore, held

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that  there  was  no  bar statutory  or  otherwise,  to  the settlement of the coup in favour of Respondent 637 No.  6 by private negotiation and as such the settlement  in his favour was valid., Counsel  for the appellant argued that the High  Court  went wrong in its conclusion that rule 10(1) as relaxed, did  not apply to the grant of the lease of the coup in question  and that  it really prohibited a lease of forest land except  by public auction., We are not satisfied that the  construction contended  for is correct.  Neither rule 10(1) nor the  rule as  relaxed  says  that forest land can be  leased  only  by public  auction.  Rule 10(1) in so far as it is relevant  to the present case only says that no department shall, without prior consultation with the Finance Department, authorise by any order, the lease or licence of mineral or forests.   The relaxation  made  to rule 10(1) as evidenced by  the  letter from the Deputy Secretary to the Government is to the effect that  in  the case of lease of forest land of the  value  of more  than Rs. 50,000/-, if made by public auction,  it  can only be made subject to the conditions mentioned there.   In other  words,  rule 10(1) as relaxed does not  prohibit  the grant  of a lease by private treaty.  The rule read  in  the context of its-relaxation as mentioned in the letter of  the Deputy Secretary would only show that consultation with  the Finance  Department  is not necessary for a  lease,  if  the lease  is of of the value of more than Rs. 50,000/-  and  is granted in pursuance of a public auction held in  conformity with  the conditions mentioned in the letter of  the  Deputy Secretary. Now the question is whether the coup in question was settled in  favour  of the, 6th Respondent in accordance  with  Rule 10(1).  It  is  clear  from  the  records  relating  to  the proceedings for the grant of the lease in favour of the  6th Respondent  that  the Finance Department was  not  consulted before  the Minister passed the order on December 13,  1970, to grant the lease.  But counsel for the Government of Bihar and  6th Respondent contended that rule 10(1), in so far  as it requires prior consultation with the Finance  Department, is only directory in character and therefore, even if  there was  no prior consultation, the settlement was  valid.   So, the question arises whether rule 10(1) which requires  prior consultation  with  the Finance Department is  mandatory  or not. Several  tests  have been propounded in  decided  cases  for determining  the question whether a provision in a  statute, or a rule is mandatory or directory.  No universal rule, can be laid down on this matter.  In each case one must look  to the  subject  matter  and consider  the  importance  of  the provision disregarded and the relation of that provision  to the  general object intended to be secured.  Prohibitive  or negative words can rarely be directory and are indicative of the  intent that the provision is to be mandatory (see  Earl T. Crawford.  The Construction of Statues, pp. 523-4). 638 Where a prescription relates to performance of a public duty and  to invalidate acts done in neglect of them  would  work serious  general inconvenience or injustice to  persons  who have  no  control over those entrusted with the  duty,  such prescription is generally understood as mere instruction for the  guidance of those upon whom the, duty is  imposed  (see Dattatreya  Moreshwar Pangerkar v. The State of  Bombay  and others(1)]. Where,  however,  a power or authority is conferred  with  a direction  that  certain regulation or  formality  shall  be

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complied  with,  it seems neither unjust  nor  incorrect  to exact   a  rigorous  observance  of  it  as   essential   to acquisition   of  the  right  or  authority  (see   Maxwell, Interpretation of Statutes, 6th edition, pp. 649650). in  this case, we think that a power has been given  to  the Minister  in  charge of the Forest Department to do  an  act which concerns the revenue of the State and also the  rights of  individuals. The negative or prohibitive  language  of rule 10(1) is a strong indication of the intent to make  the rule  mandatory.   Further, rule 10(2) makes it  clear  that where  prior  consultation with the  Finance  Department  is required for a proposal, and the department on  consultation does  not agree to the proposal, the department  originating the  proposal  can take no further action on  the  proposal. The  cabinet  alone would be competent to take  a  decision. When we see that the disagreement of the Finance  Department with  a  proposal on consultation, deprives  the  department originating the proposal of the power to take further action on   it,  the  only  conclusion  possible  is   that   prior consultation  is an essential pre-requisite to the  exercise of the power.  We, therefore, think that the order passed by the Minister of Forest, Government of Bihar on December  13, 1970, settling the coup in favour of the 6th Respondent  was bad and we quash the order. We  allow  the appeal to the extent indicated  but  make  no order as to costs. G.C.                                   Appeal allowed. (1) [1952] S.C.R. 612 at p. 624. 639