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PETITIONER: K.   S. RAMAMURTHI REDDIAR

       Vs.

RESPONDENT: THE CHIEF COMMISSIONER,PONDICHERRY & ANR.

DATE OF JUDGMENT: 22/01/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1464            1964 SCR  (1) 656  CITATOR INFO :  MV         1966 SC1089  (54)  F          1967 SC1857  (6)  RF         1975 SC1331  (180)

ACT: Stage  Carriage  Permit-Grant  to  native  of   Pondicherry- Affirmed  by Chief Commissioner as Appellate  Authority-Dis- crimination  on  ground of place  of  birth-Jurisdiction  of Supreme Court-"The State"--"Under the control of  Government of  India"-Meaning-Constitution of India, Arts. 12, 15,  32, 136.

HEADNOTE: The petitioner, a resident of Pondicherry, was an  applicant for  a  stage carriage permit,. before the  State  Transport authority  pondicherry,  alongwith 14  other  persons.   The Permit  was  granted to one Perumal Padayatchi  taking  into account  the fact that he was a native of Pondicherry  along with other facts.  The petitioner, whose application for the permit  was  rejected,  went  in  appeal  to  the  Appellate Authority who dismissed the appeal .    The petitioner filed a writ petition under Art. 32 in this Court  and   contended that  preference  on  the ground  of  place    of      birth is   violative of Art. 15 of the Constitution. On the  dates of the orders sought to be impugned, Pondicherry was not yet part  of the territory of India, but when the  petition  was heard it had become part of the territory of India.  It  was contended  on behalf of the respondent that in view  of  the observations  in the decision in N. Masthan Sahib  v.  Chief Commissioner, [1962] Supp. 1 S. C. R. 981, the writ petition was not maintainable. Held,  that in Art. 12 the words "under the control  of  the Government of India" qualify the word "authorities" and  not the  word  "territory"  and  Art.  12  gives  an   iaclusive definition of the word "State". Held, further, that if no writ could be issued at the time-. when  the order was passed for the reason  that  Pondicherry was  not part of India at that time, no such writ  could  be issued in respect of past acts after Pondicherry had  become

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part of India  657 as  that  would  be giving retrospective  operation  to  the Constitution. Janardan  Reddy v. The State, [1950] S.C. R.  940.  referred to. Held, also, that judicial or quasi-judicial authorities out- side the territory of India but under the administration  of the  Government  of India cannot be said to  be  ’under  the control  of  the  Government of  India’  as  the  expression "control" connotes power to issue directions regarding how a thing  may  be done by a superior authority to  an  inferior authority, and in the case of a quasi-judicial authority  no such  directions or orders could be issued.  It is  only  in the  case of executive action that a superior authority  may direct  that a particular thing may be done in a  particular way  by  the subordinate authority.  In the very  nature  of things  where  rule  of law prevails it is  not  open  to  a Government, be it the Government of India or the  Government of a State, to direct a quasi-judicial or judicial authority to  decide Any particular matters before it in a  particular manner. N.   Masthan Sahib v. Chief Commissioner, [1962] Supp. 1  S. C. R. 981, referred to. Held, also, that the Chief Commissioner who is the Appellate Authority  in  the  case, fell  outside  the  definition  of ’State’,  he being a quasi-judicial authority not under  the control  of the Government of India and, therefore, Art.  15 of  the Constitution did not apply to him and no  protection under  Art. 15 was available against the Chief  Commissioner at the time the impugned order was made.

JUDGMENT: CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No.  569 of 1961. Appeal  by special leave from the order dated  September  9, 1960,  of the Chief Commissioner, Pondicherry in Appeal  No. 94 of 1960.                             WITH                 Writ Petition No. 347 of 1960.         Petition  ’tinder  Art. 32 of  the  Constitution  of India for enforcement of Fundamental Rights. 658 N.   C.  Chatterjee, R. K. Garg and S. C. Agarwala  for  the Appellant. C.   K. Daphtary, Solicitor-General of India, B.     R.   L. Iyengar  and R. N. Sachthey, for respondent No. 1 (in C.  A. No. 569/61). R.   Mahalinga Iyer, for respondent No. 2 (in C.A.569/61). N.   C.  Chatterjee, R. K. Garg and S. C. Agarwala, for  the petitioner and the intervener. C.   K.  Daphtary,  Solicitor-General  of India,  B.  R.  L. Iyengar and R. N. Sachthey, for respondent No. 1 (in W.  I,. No. 347/60). R.   Thiagarajan,  for  respondent  No.  3  (in  W.  P.  No. 347/60). 1963.  January 22.  The judgment of the Court was  delivered by WANCHOO,  J.--The appeal and the writ petition arise out  of the  same  order of the Chief  Commissioner  of  Pondicherry acting  as the appellate authority under the Motor  Vehicles Act and will be dealt with together.  The petitioner is  one of  fourteen  persons who had applied for a  stage  carriage

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permit  before the State Transport  Authority,  Pondicherry. The petitioner’s application was rejected and the permit was granted to Perumal Padayatchi, one of the respondents before us.   The  State  Transport  Authority  considered   various factors  one  of  which was that Perumal  Padayatchi  was  a native  of  Pondicherry  and taking  all  the  factors  into account, the permit was granted to Perumal Padayatchi.   The petitioner  went in appeal before the  Appellate  Authority, who is the Chief Commissioner of Pondicherry.  The Appellate Authority dismissed  659 the appeal and observed that even if it were conceded.  that the  claim%  of the petitioner were more or  less  equal  to those of Perumal Padayatchi, the latter would be entitled to preference on the ground that he is a native of Pondicherry. We  may.  add  that though the petitioner used  to  live  in Pondicherry, he was not a native of Pondicherry.  This order rejecting  the appeal was passed on September 9, 1960.   The appeal has been filed with special leave against this order. ’I  he petitioner has also filed the writ  petition  against this order in which he raises, the same points. The  main  contention urged on behalf of the  petitioner  is that  the  order  of  the  appellate  Authority  shows  that preference  was granted to Perumal Padayatchi on the  ground that  he was a native of Pondicherry (i. e. he was  born  in Pondicherry), while the petitioner was merely a resident  of Pondicherry  (i.  e.  he  was  born  in  Pondicherry).   The petitioner  contends  that such grant of preference  on  the ground  of  place  of  birth  is  hit  by  Art.  15  of  the Constitution  as the petitioner is a citizen of  India,  and Art.  15  lays down that "the State shall  not  discriminate against any citizen on grounds only of religion, race, case, sex, place of birth or any of them". This  contention of the petitioner is met on behalf  of  the respondents in this way.  The respondents submit that at the relevant  time, Pondicherry was not within the territory  of India and the Constitution did not apply to it.   Therefore, the  petitioner would have no right to apply to  this  Court for  special leave under Art. 136 of the  Constitution;  nor would  the  petitioner have a right to proceed by way  of  a writ  petition  under  Art. 32 against an  order  which  was passed  by the Appellate Authority in Pondicherry at a  time when  Pondicherry  was  not  in  the  territory  of   India. Reliance  in  this  connection is placed on  behalf  of  the respondents on the decision of this 660 Court   in   N.  Masthan  Sahib   v.   Chief   Commissioner, Pondicherry(1) The  petitioner  also relies on the same  decision  of  this Court.   It is conceded on his behalf that in view  of  that decision it was not open to the petitioner to apply to  this Court  under  Art. 136 and therefore the appeal may  not  be maintainable.   But  it is urged that under Art.  12  ,,,the State"  for the purpose of part III of the  Constitution  is defined to include "’the Government and Parliament of  India and the Government and the Legislature of each of the States and  all local or other authorities within the territory  of India or under the control of the Government of India".   It is therefore contended that even though Pondicherry was  not a  part of India when the order under challenge was  passed, the Appellate Authority which passed the order was a  "local or  other authority under the control of the  Government  of India" and therefore was amenable to a writ under Art. 32 of the  Constitution.   Further it is urged that  whatever  may have  been the position when Masthan Sahib’s case  (1),  wag

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decided,  Pondicherry is now within the territory  of  India since  August 1962 and therefore this Court can now issue  a writ   to  the  Appellate  Authority  if  the  order   under challenge, violates Art. 15 of the Constitution. The   respondents  however  contend  that  the   fact   that Pondicherry  is now within the territory of India  makes  no difference  in  the application of the decision  in  Masthan Sahib’s  case (1).  It is submitted that the  reasons  which led  the  majority in that case to refuse to  issue  a  writ clearly  imply  (even  if there is  no  actual  decision  in express terms on the question now raised) that a judicial or quasi-judicial  authority cannot be said to be an  authority "under  the control of the Government of India"  within  the meaning of Art. 12, and therefore the.  Appellate  Authority which was a quasi-,judicial authority was not under the (1)  [1962] Supp.  1 S.C.R. 981.  661 control of the Government of India and could not be amenable to  a  writ under Art. 32 at the time when the  order  under challenge  was passed.  Further as the Constitution  is  not retrospective  in operation the fact that Pondicherry  since August 1962 is part of the territory of India would not give this  Court jurisdiction to issue a writ now when  it  could not  issue a writ to the Appellate Authority  in  September, 1960,  even  reading  Art.  32 along with  Art.  12  of  the Constitution. Before we come to consider the questions thus raised in  the writ  petition,  we may state that so far as the  appeal  is concerned,  it  is  concluded by  the  decision  in  Masthan Sahib’s case (1).  Article 136 gives power to this Court  to grant  special  leave to appeal from any  judgment,  decree, determination,  sentence  or order in any  cause  or  matter passed or made by any court or tribunal in the territory  of India.  Admittedly, Pondicherry was not within the territory of  India when the order was passed and therefore  Art.  136 would not apply to such an order.  We have already indicated that this position is conceded on behalf of the  petitioner. So  far  therefore  as the appeal is concerned  it  must  be dismissed  on  the authority of Masthan  Sahib’s  case  (1), though  in  the circumstances we shall pass no order  as  to costs. Turning  now  to the writ petition, the main  question  that falls for consideration is the effect of Art. 12 and whether on  a proper interpretation of that Article,  the  Appellate Authority  could  in this case be said to be  "’a  local  or other  authority  under  the control of  the  Government  of India".   It is submitted on behalf of the respondents  that this  matter  is  also  concluded by  the  decision  of  the majority in Masthan Sahib’s case (1), and that the effect of that  decision  is  that  a  judicial  or  a   quasijudicial authority  would not be an authority "under the  control  of the Government of India".’ On the (1)  [1962] Supp.  1 S.C.R. 981. 662 other  hand, the petitioner contends that there was no  such decision  in  that case as will appear from  the  concluding portion  of the judgment and therefore the question is  open for consideration before us. As  both  parties  rely on that decision we  may  quote  the relevant part thereof.  Before we do so we may mention  that the  decision in that case was in two parts, the first  part being  delivered  on April 28, 1961 and the  final  part  on December 8, 1961, though the report contains only the  final part.   Relevant part of that decision which appears in  the first part delivered on April 28, 1961, is as below :--

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             "Learned  counsel  pointed out  that  for  the               purpose of the exercise of this Court’s  power               under  Art.  32 of the  Constitution  for  the               enforcement  of  the  fundamental  rights  its               jurisdiction   was   not   limited   to    the               authorities  functioning within the  territory               of  India  but that it extended  also  to  the               giving of directions and the issuing of orders               to  authorities functioning even  outside  the               territory   of   India  provided   that   such               authorities were subject to the control of the               Government of India.  This  submission.appears               to us well-founded and the power of this Court               under  Art.  32  of the  Constitution  is  not               circumscribed  by any territorial  limitations               it  extends  not merely over  every  authority               within  the territory of India but also  those               functioning   outside,  provided   that   such               authorities  are  under  the  control  of  the               Government of India". Then after considering Arts. 142 and 144 of the Constitution and pointing out that in view of the limitations imposed  by Art. 142 on the territory within which alone - the orders or directions  of  this  Court could be  directly  enforced,  a question  was  posted  whether  a  writ  in  the  nature  of certiorari or  663 other  appropriate  order  or direction to  quash  a  quasi- judicial order passed by an authority outside the  territory of India, though such authority is under the control of  the Government  of  India could issue.   The  majority  judgment observed as follows in answer to the question thus posed :-               "If  the  order  of the  authority  under  the               control   of  the  Government  of  India   but               functioning outside the territory of India was               of  an  executive  or  administrative  nature,               relief could be afforded to a petitioner under               Art. 32 by passing suitable orders against the               Government  of  India directing them  to  give               effect  to the decision of this Court  by  the               exercise  of their powers of control over  the               authority  outside  the  territory  of  India.               Such  an order could be enforceable by  virtue               of Art. 144, as also Art. 142.  But in a  case               where the order of the outside authority is of               a quasi-judicial nature, as in the case before               us,   we  consider  that  resort  to  such   a               procedure  is  not possible and  that  if  the               orders  or directions of this Court could  Dot               be directly enforced against the authority  in               Pondicherry,  the order would  be  ineffective               and that the Court will not stultify itself by               passing such an order." In  the final order, however, at p. 1009 of the Report,  the majority observed as follows:-               "The  writ  petitions must also  fail  and  be               dismissed for the reason that having regard to               the  nature  of  the  relief  sought  and  the               authority  against  whose  orders  relief   is               claimed  they  too must fail.  They  are  also               dismissed.  We would add that these dismissals               would   not  preclude  the  petitioners   from               approaching  this Court, if so desired in  the               event  of  Pondicherry becoming  part  of  the               territory of India".

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664 it  is  contended  on  behalf of  the  petitioner  that  the majority  decision  in  that case seems to  imply  that  the Appellate Authority was under the control of the  Government of India as otherwise it would not have been  necessary   to put the two questions which were   out to the Government  of India by the first part  of  the  decision.  Further  it  is contended  that  the observations in the final part  of  the judgment  that  the  petitioners  in  that  case  were   not precluded from approaching this Court, if so desired, in the event  of  Pondicherry  becoming part of  the  territory  of India, also show that it was not held in that decision  that judicial  or quasi-judicial authorities could not  be  under the control of the Government of India.  On the other  hand, it  is contended on behalf of the respondents that  judicial or quasi-judicial authorities were not under the control  of the Government of India, for if they were a writ would  have been  issued in that case in the same way as in the case  of an executive or administrative authority, i.e. a writ  could issue  to  the Government of India "directing them  to  give effect  to  the decision of this Court by  the  exercise  of their  powers  of  control over the  authority  outside  the territory  of  India".   We have  carefully  considered  the observations in the majority decision in this connection and it must be held that that decision is not a direct authority on the question that is now posed before us., for the  point was  not  then specifically raised; and  expressly  decided, though  as we will later point out, the implication  of  the said  decision  is  against the  contention  raised  by  the petitioner.  We have therefore to examine the contentions of either  party as to the exact scope and effect of the  words "’all  local  or other authorities within the  territory  of India  or under the control of the Government of India",  as if the question is res integra. The first contention on behalf of the petitioner is that the words "’under the control of the Government  665 of  India" in Art. 12 do not qualify the word  "authorities" therein  but qualify the word "territory".   The  petitioner would therefore read the relevant words of Art. 12 like this :  "All local or other authorities within the  territory  of India or all local or other authorities within the territory under  the  control  of the  Government  of  India".   Thus, according  to the petitioner, all that is required  is  that the  territory  even if it is not the  territory  of  India, should be under the control of the Government of India,  and if  the territory is under the control of the Government  of India  all,  local or other authorities  in  such  territory would  be included in the words "the State".  On  the  other hand,  the contention on behalf of the respondents  is  that the  words  "under the control of the Government  of  India" qualify the word "authorities" and not the word  "territory" in  the relevant part of Art. 12 and that that part  on  its true  interpretation would read thus : "all local  or  other authorities  within the territory of India or all  local  or other  authorities  under the control of the  Government  of India". Having given our anxious consideration to this matter we are of opinion that the interpretation put on the relevant words on  behalf  of  the  respondents  is  the  right  one,  both gramatically  and  otherwise.  Art. 12  gives  an  inclusive definition  of the words "the State" and within these  words of that Article are included, (i) the Government and Parlia- ment  of India, (ii) the Government and the  legislature  of each   of  the  States,  and  (iii)  all  local   or   other

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authorities.   These  are  the only  authorities  which  are included in the words "the State" in Art. 12 for the purpose of Part III.  Then follow the words which qualify the  words "all  local  or other authorities".  These  local  or  other authorities which are included within the words "’the State" of  Art. 12 are of two kinds, namely, (i) those  within  the territory of India, and (ii) those under the control of the 666 Government, of India.  There are thus two qualifying clauses to  "all  local or other authorities." These clauses  are  : (i)within the territory of India and (ii) under the  control of  the  Government of India.  It would in  our  opinion  be gramatically  wrong to read the words "under the control  of the Government of India" as qualifying the word  territory". From  the scheme of’ Art. 12 it is clear that three  classes of  authorities are meant to be included in the words  ’,the State",  there; and the third class is of two kinds and  the qualifying   words   which  follow  "all  local   or   other authorities"  define  the two types of such local  or  other authorities  as already indicated above.  Further all  local or  other authorities within the territory of India  include all authorities within the territory of India whether  under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be  under  the  control  of  the  Government  at  all.    In contradistinction  to  this  the  second  qualifying  clause refers only to such authorities as are under the control  of the Government of India and so the second qualifying  clause must   govern  the  word  "authorities".’   Therefore,   the interpretation  put  forward on behalf  of  the  respondents seems  to us to be correct both gramatically and  otherwise. "All local or other authorities" would thus be of two kinds, namely,  (i) those within the territory of India,  and  (ii) those under the control of the Government of India.  In  the latter  case there is no qualification that they  should  be within  the  territory of India.  It is enough if  they  are under  the control of the Government of India wherever  they may  be.   We are therefore of opinion that  no  writ  could issue to the appellate authority at the time when the  order under challenge was passed, unless it could be called "other authority  under  the  control of the  Government  of  India Further,, there can be no doubt that if no writ could  issue to the Appellate Authority at the time the order was passed, no writ could issue now after  667 Pondicherry  has become part of the territory of India,  for that   would  be  giving  retrospective  operation  to   the Constitution  for  this purpose which  obviously  cannot  be done: (see Janardan Reddy v. the State(1)). The  next  question is whether a judicial  or  quasijudicial authority  outside  the territory of India  but  within  the territory  under  the administration of  the  Government  of India can be said to be under the control of the  Government of India.  For this purpose we have to find out the  meaning of the words "under the control of the Government of  India" as  used  in  Art. 12.  It is submitted  on  behalf  of  the petitioner  that  if  an  authority  is  appointed  by   the Government of India, is paid by the Government of India  and is liable to disciplinary action by the Government of India, it  would  be  an  authority  "under  the  control  of   the Government  of  India".   It  is urged  that  as  the  Chief Commissioner, who is the appellate Authority, was  appointed by  the Government of India, was paid by the  Government  of India  and  was  under  the  disciplinary  control  of   the Government  of  India, he would be an  authority  under  the

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control  of  the Government of India and  this  court  would therefore  have  been entitled to issue a writ  against  him even  when the order was passed and therefore all  the  more so,, when Pondicherry is now within the territory of  India. The  contention however that this Court could issue  a  writ under  Art. 32 against the Appellate Authority even  at  the time when the order was passed, is clearly negatived by  the majority  decision in Masthan Sahib’s case (2), for if  that could  be  done, writ would have been issued in  that  case. The  reason why writ was not issued in Masthan Sahib’s  case (2), was that the quasi -judicial authority was outside  the territory of India and this Court held that if the authority were of an executive or administrative nature, a writ  could have been issued to the Government of India ""directing them to give effect to the decision of this Court by the exercise of their powers (1) [1950] S.C.R. 940. (2) [1962] Supp. 1 S.C.R. 981. 668 of  control  over  the authority outside  the  territory  of India".   But as the authority in that case ’just  like  the authority in the present case was a quasi-judicial authority resort  to  such  a procedure was not possible  and  if  the orders or directions could not be directly enforced  against the   authority   in  Pondicherry,  the   order   would   be ineffective.   This clearly implies that the  quasi-judicial authority  was  not under the control of the  Government  of India  like  an executive or  administrative  authority  and therefore  it  was not possible for this Court  to  issue  a direction  to  the Government of India to  direct  a  quasi- judicial  authority to give effect to the decision  of  this Court  "by the exercise of their powers of control over  the authority outside the territory of India".  It follows  from these  observations  in the majority decision in  that  case that  the control envisaged by the words "under the  control of  the Government of India" in Art. 12 is not  the  control which arises out of mere appointment, payment and the  right to  take  disciplinary action; the control  envisaged  under Art.  12  is a control of the functions of  the  authorities concerned,  and  the  right of the Government  of  India  by virtue  of that control to give directions to the  authority to  function  in a particular manner with  respect  to  such functions.   Now if the authorities were  administrative  or executive  the control of the Government of India would  not only  be by virtue of appointment, payment and  disciplinary action, but it would also extend to directing the  authority to  carry  out its functions in a particular  manner  and  a purely  executive or administrative authority can always  be directed  by  the  Government  of India under  which  it  is functioning to act in a particular manner with    respect to its  functions.   This, however,cannot be said of  a  quasi- judicial or judicial authority even though the Government of India may have appointed the authority and may be paying  it and  may have the right to take disciplinary action  against it in certain eventualities.  It was not open  669 to  the  Government of India to control the functions  of  a quasi-judicial or judicial authority and direct it to decide a particular matter before it in a particular way.  It seems to us therefore that the control envisaged under Art. 12  is control  of the functions of the authorities and it is  only when the Government of India can control the function of  an authority  that it can be said that the authority  is  under the  control  of the Government of India.  Such  control  is possible in the case of a purely executive or administrative authority; it is impossible in the case of a  quasi-judicial

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or  judicial  authority, for in the very nature  of  things, where  rule  of’  law  prevails,  it  is  not  open  to  the Government, be it the Government of India or the  Government of a State, to direct a quasi-judicial or judicial authority to  decide  a particular’ matter before it in  a  particular manner.   Therefore,  this being the nature of  the  control which the Government of India must exercise in order that an authority functioning outside the territory of India may  be said to be an authority under the control of the  Government of India within the meaning of Art. 12, a quasi-judicial  or judicial  authority cannot be said to be an authority  under the control of the Government of India within this  meaning. We  are  therefore of opinion that the  Appellate  authority being quasi-judicial could not be directed by the Government of  India  to  decide a particular matter  before  it  in  a particular manner and therefore it cannot be said that it is an  authority under the control of the Government of  India. As  we  have  already  indicated,  this  follows  from   the reasoning  of  the  majority in Masthan  Sahib’s  Case  (1), though it was not decided specifically as such in that case. We are therefore of opinion that judicial or quasi-.judicial authorities  functioning in territories administered by  the Government  of  India  but outside the  territory  of  India cannot  be said to be authorities under the control  of  the Government  of  India  within the meaning of  Art.  12,  and therefore Art. 12 would not apply to 670 such authorities functioning outside the territory of India. Consequently  it would not be open to this Court to issue  a writ   under   Art.  32  read  with  Art.   12   against   a quasi-.judicial  authority  outside the territory  of  India even though that authority might have been appointed by  the Government  of  India, might be paid by  the  Government  of India  or  the Government of India might have the  power  of disciplinary  action  against it.  The  Appellate  Authority being a quasijudicial authority would thus not be under  the control  of  the Government of India within the  meaning  of Art.  12.   Therefore it would not have been  open  to  this Court to issue a writ against the order under challenge when it was passed.  In consequence it is not open to this  Court now  that  Pondicherry has become part of India to  issue  a writ  to  the Appellate Authority with respect to  an  order passed by it before Pondicherry became part of India, as the Constitution for this purpose is not retrospective. The  matter  can  be  looked at in  another  way.   Art.  15 prohibits the State from discriminating against any  citizen on  grounds  only of religion, race, caste,  sex,  place  of birth  or any of them.  Therefore it is only when the  State as  defined in Art. 12 (for there is nothing in the  context of  Art.  15  to require otherwise)  discriminates,  that  a citizen  can complain of the breach of Art. 15 and  ask  for relief from this Court under Art. 32.  We have however  held that the Chief Commissioner being a quasi-judicial authority was not under the control of the Government of India  within the  meaning  of Art. 12.  Therefore, he could  not  be  the State  within  that  Article.  If so, it  follows  that  the discrimination (assuming there was any) was by an  authority which  was  not the State.  The protection of  Art.  1.5  is against  discrimination  by  "the  State."  The   petitioner therefore would not be entitled to any protection under Art. 15  against the Chief Commissioner at the time the  impugned order  671 was  made.  That is another reason why the present  petition must fail.

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We  therefore  dismiss the appeal and pass no  order  as  to costs in respect thereof.  We dismiss the writ petition with costs.                             Appeal dismissed.                             Writ petition dismissed.