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PETITIONER: SOBHRAJ ODHARMAL

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 17/09/1962

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER SUBBARAO, K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1963 AIR  640            1962 SCR  Supl. (1)  99  CITATOR INFO :  R          1970 SC 898  (37A)  F          1971 SC1986  (10)

ACT: Road   Transport--Scheme--Objections--Notice  of   hearing-- Whether  sufficient--Approval  of  Scheme--Cancellation   of permits of private operators--State plying vehicles  without permits--If infringes fundamental right-Motor Vehicles  Act, 1939  (4 of 1939), ss. 42 (1) and 68R--Rajasthan State  Road Transport Service (Development) Rules, 1960, r. 7(4).

HEADNOTE: A  scheme  for operating a motor transport  service  on  the Jaipur-Kotah  route by the State Roadways was  published  in the  Government Gazette. 61 private operators on  the  route filed  objections  to the scheme.   The  Legal  Remembrancer heard  the  objections and rejected them.   The  scheme  was approved by the State Government and was published.  Some of the .operators moved the High Court for a writ quashing  the scheme.  The High Court allowed the petition, set aside  the scheme  and  directed the Legal Remembrancer to  rehear  the objections.  The Legal Remembrancer sent individual  notices by  registered post to the 61 operators fixing the  date  of hearing  and  also  published the  notice  in  the  Gazette. Notices were delivered to 13 operators and 39 were  returned unserved.   The Legal Remembrancer heard the objections  and approved  the  scheme,  which  was  then  published  in  the Gazette.   The Regional Transport Authority issued an  order declaring  that the Roadways shall operate on the route  and cancelled  the  permits  of  the  private  operators.    The Roadways,   commenced   operating   without   permits    but subsequently  they  were granted  permits.   The  appellants moved the High Court for a writ to quash the scheme but  the High   Court  rejected  the  application.   The   appellants appealed to the Supreme Court against the order of the  High Court; one of them filed a petition for a writ alleging that his   right  to  carry  on  business  was  infringed.    The appellants  contended that the proceedings before the  Legal

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Remembrancer  were illegal as notices were not  served  upon all  the operators, that r.7(4) which provided that  on  the publication  of  the  notice  in the  Gazette  it  shall  be presumed  that  all  the parties concerned  have  been  duly intimated was illegal and that the plying of the vehicles by the Roadways without obtaining permits infringed 100 the fundamental rights of the appellants to carry on their Held,  that the appellants were duly served with the  notice of hearing of the objections before the Legal  Remembrancer, and  if  they  failed to appear before him  to  press  their objections they could not challenge the scheme after it  was duly published and had become final.  The Legal Remembrancer was  of  the opinion that even those operators who  had  not been  personally  served  had notice of  the  hearing.   The opinion’  of the Legal Remembrancer was based upon  evidence and  he did not rely upon the presumption under r.7(4).  The High Court had also held that the objectors were duly served and  the Supreme Court, according to its  settled  practice, did not interfere with such findings. Held,  further, that no fundamental right of the  appellants was infringed.  Once a scheme was legally and properly  made and published, the permits’ of the private operators on  the route  could  be lawfully cancelled and they  Would  not  be entitled  to  challenge the plying of the  vehicles  by  the State  Roadways with or without permits.  Since the  permits of the appellants were lawfully cancelled their rights  Were extinguished and they had no fundamental rights which  could be  infringed..  On  the  finalisation  of  the  scheme  the Regional  Transport  Authority had no option  but  to  grant permits to the State Roadways. Abdul  Gafoor  v.  State of Mysore,  [1962]  1  S.C.R.  909, ’Samarth  Transport  Co.  (P)  Ltd.  v.  Regional  Transport Authority, [1961] 1 S.C.R. 631 and Kalyan Singh v. State  of U. P. [1962] Supp. 2 S.C..R. 76, referred to.

JUDGMENT: CIVIL  APPELLATE ORlGINAL JURISDICTION Civil Appeal  471  of 1962. Appeal from the judgment and decree dated 9th May, 1962,  of the Rajasthan High Court in D. B. Civil Misc.  Write No. 214 of 1962.                          WITH Writ Petition No’. 66 of 1962. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. M. C. Setalvad Attorney-General  for India, K. Garg,  D.  P. Singh,  S.  C.  Agarwala  and  M.  K.  R.Mamurthi,  for  the appellants and the petitioner. 101 C.  K. Daphtary, Solicitor-General for India, S. K.  Kapoor, K.  K.  Jain and P. D. Menon, for the  respondents  (in  the appeal and the petition). 1962.   September  17.   The  judgement  of  the  Court  was delivered by SHAH  J.-Questions  relating  to the validity  of  a  scheme approved by the State of Rajasthan under s.68D of the  Motor Vehicles  Act, 1939(4 of 1939) and its effect are raised  by the  appeal  and  the writ petition.   In-  the  appeal  the validity  of the scheme is challenged on the plea  that  the appellants were denied reasonable opportunity of being heard in  support  of  their  objections  before  the  scheme  was approved.   In  the writ petition it is submitted  that  the

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fundamental right of the petitioner to carry on business  of a  ’motor  transport operator is infringed by the  State  of Rajasthan  plying its buses along the route covered  by  the scheme without obtaining permits under s.42(1) of the  Motor Vehicles Act. A  scheme  for operating a motor transport  service  on  the Jaipur-Tonk-Deoli-Kotah  route, was published  on  September 10,  1960  in  the  Rajasthan  Government  Gazette,  by  the Rajasthan   State  Roadways  which  is  a  State   Transport Undertaking  within  the meaning of s. 68A(b) of  the  Motor Vehicles  Act, 1939.  Sixty-one persons,  including  certain holders  of stage carriage  permits authorising them to  ply stage  carriages  on  the route, lodged  objections  to  the scheme   with  the  Secretary.,  Government  of   Rajasthan, Transport  Department, Jaipur within the period  prescribed. The  objections were heard by the Legal Remembrancer of  the State  and  were rejected by order dated February  2,  1961. The scheme was then approved by the State Government and was published under s 68D of the Motor Vehicles Act and r.8  off the  Rajasthan  State Road Transport  Service  (Development) Rules, 1960.  Some holders of stage carriage permits applied under  Arts.226  and, 227 of the Constitution  to  the  High Court ;of Rajasthan for the 102 issue  of  writs cancelling the scheme.  The High  Court  by order dated May 3, 1961, allowed the petition and set  aside the scheme.  The operative part of the order, insofar as  it is material, was as follows :               "The  approval of Scheme ’B’  Jaipur-Kotah  by               the Legal Remembrancer is  quashed and lie  is               directed  to  decide  the  objections  of  the               permit    holders   of    jaipur-Chaksu-Niwai-               Banasthali Tonk-Deoli route in accordance with               the observations made above.  The Notification               of the State Government, publishing the scheme               is also set aside." Thereafter  the Legal Remembrancer sent individual  ,notices by Registered. post pre-paid and addressed to all the sixty- one objectors fixing June 26, 1961, for hearing  objections, and  also  published  in the State  Government    Gazette  a general  notice  to that effect.  Out of  sixty-one  notices despatched,  thirteen were duly received by  the  addressees and thirty-nine were returned unserved ; about the remaining nine  notices  no intimation was received  from  the  Postal Department,  till.’ June 19, 1961.  The  Legal  Remembrancer commenced  hearing  the objections.  The  proceeding  lasted from June 1961 to March 1962.  There were fifteen  hearings, at  which  evidence  was recorded and  oral  arguments  were heard.  The Legal Remembrancer by his order dated March  23, 1962, approved the scheme subject to certain  modifications. The scheme as approved was then published on April 2,  1962, in the Government Gazette.  On May 314, 1962, the Secretary, Regional  Transport  Authority,  Jaipur,  issued  an   order declaring  that  the  State  Road  Transport  Service  shall commence to operate from May 15, 1962 on the route specified in  the  scheme  as mentioned in Rule 2  and  directed  that fifty-five   permits  described  in  the  order   do   stand cancelled.   Pursuant  to  the scheme  the  State  Transport Undertaking commenced operating its vehicles upon the  route without obtaining permits under s. 42 (1) o 103 the  Motor  Vehicles Act.  Subsequently,  applications  were submitted  to the Regional Transport Authority  for  permits and the same were granted to the State Transport Undertaking on July 28, 1962.

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In  the mean time, sixteen persons-who will  be  hereinafter referred  to collectively as appellants claiming  that  they had not received notice of the proceedings before the  Legal Remembrancer after the scheme was quashed by the High  Court of  Rajasthan and the proceedings were remanded  applied  to the  High Court under Arts. 226 and 227 of the  Constitution for  writs  of certiorari quashing the order  of  the  Legal Remembrancer dated March 23, 1962, and all proceedings after May  31,  1961, regarding the scheme of  nationalisation  of Road  Transport  Service on the route in question,  and  the scheme  published  in the Rajasthan  Government  Gazette  on April  2,  1962, and writs of  prohibition  restraining  the State,  of Rajasthan, the Regional Transport Authority,  the Legal   Remembrancer  and  the  Rajasthan  State   Transport Undertaking   from  implementing  the  scheme  and   further restraining the Transport authorities from cancelling  their permits for plying vehicles on the route and restraining the Regional Transport Authority from granting permits to the Rajasthan  State Transport Undertaking in pursuance  of  the impugned scheme.  The appellants also claimed a  declaration that  cl.  (4)  of r. 7 of  the  Rajasthan  State  Transport (Development)  Rules, 1960 and the public notice  dated  May 30,  1961,  published in the  Rajasthan  Government  Gazette dated May 31, 1961, " were illegal, null and void and  ultra vires"  and  a declaration that the  proceeding  before  the Legal  Remembrancer  was taken without  affording  any  real opportunity to the appellants to produce their evidence  and without hearing their objections in accordance with law. It  was  urged by the appellants, inter alia, that  as  only thirteen objectors were served and the remaining 104 forty-eight  were  not served with notice  of  hearing,  the proceeding commenced before the Legal Remembrancer,  relying upon  the presumption of due service under cl. (4) of r.  7, was illegal.  The High Court, without issuing rule upon  the State and the Transport Authorities, dismissed the petition, holding that r. 7 (4) was not ultra vires the Motor Vehicles Act,  and  that  it was difficult, on  the  material  placed before the Court to hold that the Legal Remembrancer had not in fact determined the question of regularity of service  of notice  upon the objectors before he commenced  hearing  the objections. Against the order dismissing the petition Appeal No. 471  of 1962  has  been filed by the appellants in  this  Court.   A petition  has  also been filed by one of the  appellants  in this  Court under Art. 32 of the Constitution for a writ  of mandamus  restraining the State of Rajasthan, the  Rajasthan State  Transport  Undertaking  and  the  Regional  Transport Authority,  Jaipur Region, from "commencing their  transport service"  and  from  interfering  with  the  right  of   the petitioner  in  the  exercise  of his  right  to  ply  stage carriages  on  that  route  under a  permit  issued  by  the Regional  Transport Authority and which was,  as  originally granted, valid up to November 30, 1963.  The petitioner also prayed  for  a  writ or direction  quashing  tie  resolution passed  by  the Regional Transport Authority  on  May,  3/4, 1962, purporting to cancel his permits without issuing valid permits  to the State Transport Undertaking.  The  principal ground  in  support of the petition was that  the  State  of Rajasthan  and  the State Transport  Undertaking  could  not commence  to  ply  their  vehicles  on  the  route   without obtaining  valid permits under s. 68F and s. 42 (1)  of  the Motor Vehicles Act. By  s.  68C of the Motor Vehicles Act, 1939 (4  of  1939)  a State  Transport Undertaking, if it be of the opinion as  to

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certain  matters specified in the section, is authorised  to prepare a scheme giving particulars 105. of  the  nature of the service and the area or route  to  be covered thereby, and to publish it in the Government Gazette and in such manner as the State Government may direct.  Per- sons  affected  by the scheme may lodge  objections  to  the scheme  within  the period prescribed.  The  objections  are thereafter heard by the State Government after giving oppor- tunity  to  the  objectors  to  support  them.   The   State Government  may, thereafter, approve or modify  the  scheme, and the scheme so approved or modified when published in the official  Gazette becomes final.  Section 68F  (1)  requires the  Regional Transport Authority, notwithstanding  anything to  the contrary contained in Ch.  IV, to issue  permits  to the  State  Transport Undertaking for plying  vehicles  when that  Undertaking  applies for permits in  pursuance  of  an approved  scheme.  Sub-section (2) of s. 68D  provides  that for  the purpose of giving effect to the approved scheme  in respect  of a notified area or notified route, the  Regional Transport  Authority may, by order refuse to  entertain  any application  for  renewal  of any other  permit,  cancel  or modify  an existing permit.  Section 681 confers power  upon the  State  Government  to make rules  for  the  purpose  of carrying  into effect the provisions of Chapter IVA  and  in Particular  for  certain specific matters set  out  therein. The  Government  of  Rajasthan framed under s.  68  I  rules called  the Rajasthan State Transport Service  (Development) Rules,  1960.  Rule 3 prescribed the authority which was  to prepare  the  scheme  on  behalf  of  the  State   Transport Undertaking, and the matters in respect of which  provisions were to be made in the scheme.  Rule 4 prescribed the method of publication and r. 5 the manner of filing objections.  It was  provided  by  cl. (4) of r. 5 that  the  memorandum  of objection  shall  contain,  amongst  other,  the   following information               "(a) Full name and address of the objector  on               which  the  service of notice or  order  under               these Rules maybe made;" 106 Rule  7  dealt  with the  procedure  for  consideration  and disposal of objections.  By cl. (1) it was provided that the objections  shall be considered by an officer authorised  to do so by the Governor.  The officer so authorised had by cl. (2)  to fix the date, time and place for hearing  objections and to issue notice thereof to the objectors and the General Manager  of the State Transport Undertaking asking  them  to appear  before  him.  Clause (3) prescribed  the  method  of service of notice, that "the notice under sub-rule (2) shall be  sent  by Registered post and shall be  posted  at  least fourteen  days before the date fixed for  hearing".   Clause (4) provided that "notwithstanding anything in sub-r. (3)  a general  notice may also be given regarding the  date,  time and place of hearing of objections by publication thereof in the  official  Gazette and where notice has been  issued  in this  manner,  it  shall be presumed that  all  the  parties concerned have been duly intimated".  Rule 8 prescribed  the from  in  which the approved scheme shall be  published  and Rule  9 provided for the consequences of publication of  the scheme. The  appellants  contend  that  they  did  not  receive  the individual notices sent to them by registered post and  that they  "did not at all come to know about the hearing or  the decision   of   the  aforesaid  objections  by   the   Legal Remembrancer  till the approved scheme relating  to  Jaipur-

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Tonk-Deoli-Kota   route  was  published  in  the   Rajasthan Government Gazette dated April 2, 1962".  Opportunity to  be afforded to the objector under s. 68D(1) must of course be a reasonable opportunity : he must have advance notice of  the date,  time and place and designation of the  authority  who will  hear  the objections.  The authority hearing  the  ob- jections  must therefore give notice of the date,  time  and place  for hearing the objections.  Such notice must  afford reasonable opportunity to the objector to appear before  the authority and substantiate his objections.  On behalf of the appellants it was submitted 107 that the notice sent by registered post which was not served because it was never tendered to the addressees, followed by publication of the notice in the Government Gazette did  not amount  to affording reasonable oportunity to the  objectors to  substantiate  their objections to the  scheme.   It  was contended that cl. (4) of r. 7 which raises a presumption of service  on publication of notice in the Government  Gazette is invalid, because the State Government is not entitled  to deprive  the objectors of a reasonable opportunity of  being heard  by prescribing a presumption of service of notice  of hearing  merely  from  publication  of  the  notice  in  the Government  Gazette.   But in considering this  case  it  is unnecessary  to  embark upon the larger question  which  was canvassed  at  the Bar, whether notice given in  the  manner prescribed by cl. (3) r. 7 i.e. an individual notice sent by the  registered post followed by a general notice  published in  the Government Gazette must, because of the  presumption contained  in  cl.  (4) of r. 7,  always  be  considered  as affording  reasonable  opportunity  to  the  objectors.   As already  observed sixty-one objectors had  filed  objections before  the Legal Remembrancer in the first instance.   They appeared  before the Legal Remembrancer and objected to  the scheme.   The scheme was approved by the Legal  Remembrancer but the order of the Legal Remembrancer approving the scheme was  set aside by the High Court in certain petitions  filed before it.  It is admitted by the appellants that they  knew about the proceeding commenced in the High Court challenging the validity of the scheme, and the order passed by the High Court remanding it to the Legal Remembrancer for hearing the objections.    The   appellants,   however,   contend   that thereafter  they ’did not receive any notice of the  hearing pursuant  to  the order of remand and they did not  come  to know  of the proceeding before the Legal  Remembrancer  till the  scheme  was published by the Government  of  Rajasthan. But the Legal Remembrancer was primarily the authority to be satisfied whether the 108 objectors  had  adequate notice.  There is nothing  to  show that he even relied upon the presumption of service  arising from  the  publication of, the notice under r. 7(4).  ,  The Legal Remembrancer was appraised of the fact that individual notice was received only by thirteen individual objectors by registered  post and he had manifestly to  consider  whether the proceeding for hearing the objections could be  started. The  Legal Remembrancer had, when he commenced hearing,  the following  matters before him, that all the  objectors  were aware of the proceeding before the High Court and the  order passed  therein,  that he had  directed  individual  notices under r. 7 cl. (3) and the same were duly despatched, that a general notice was also published in the Government Gazette, that  the  scheme was an integrated scheme in respect  of  a route  on  which  stage carriages were being  plied  by  the objectors,  and  the objectors were  vitally  interested  in

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plying and continuing to ply their buses and the publication of  the scheme constituted a serious threat to  their  busi- ness.   It  is  also  manifest that  he  had  to  deal  with operators of Motor Vehicles-a class of persons-who in  order to  carry on efficiently their business have  constantly  to acquaint  themselves  with the State Government  Gazette  in which  the rules framed under the Act, the schemes,  notices and the directions which the Government issue for  acquiring control over Road Transport are published as required by the Motor  Vehicles  Act.  There is no reference  in  the  order sheet  dated June 19, 1961 to the presumption  which  arises under  r. 7(4).  It appears that the Legal Remembrancer  was of the opinion that those who had not been personally served with  individual notices sent by registered post  had  still notice that the proceeding was to commence on June 26, 1961. The  inference  raised by the Legal Remembrancer  cannot  be said  to be based on no evidence.  The High Court  has  also held that the Legal Remembrancer was satisfied about service of  the notice on the objectors in accordance with law,  and that in proceeding to hear the objections 109 the Legal Remembrancer acted according to law.  The  finding of  the High Court that the objectors were duly served  with the  notice  was one of fact, and according to  the  settled practice   of  this  Court,  no  interference  with  I   the conclusion  of’ the High Court would be called for.  If  the objectors  were  duly served and they failed  to  appear  to press  their objections before the Legal Remembrancer,  they cannot  seek  to  challenge  the scheme  after  it  is  duly published and which by the statute is declared final. That brings us to the question whether any fundamental right of  the  petitioner  in  the writ  petition,  .to  carry  on business  was infringed by the State  Transport  undertaking plying  its vehicles without obtaining permits under  s.  42 (1).   The scheme was by order dated March 23, 1962, of  the Legal  Remembrancer who was invested with authority to  hear objections  thereto, duly approved.  The scheme so  approved by  the Legal Remembrancer was published in  the  Government Gazette,  and  thereby it was directed that  permits  of  55 operators  (amongst whom is the petitioner) on the route  in question  shall  be cancelled, and  the  Regional  Transport Authority  in exercise of the powers conferred under s.  68F (2)  and  in  pursuance of the  scheme  ordered  that  those permits be cancelled. Sub-section  (1)  and  (2) of s.  68F  deal  with  different matters;  exercise  of  the  powers under  cl.  (2)  is  not dependent  upon  the  grant  of any  permits  to  the  State Transport  Undertaking.  By sub-s. (1) a statutory  duty  is imposed  upon  the  Regional Transport  Authority  to  grant permits  to the State Transport Undertaking, if  application is  made in that behalf pursuant to an approved scheme.   To such an application the provisions contained in Ch.  IV such as  ss. 47, 48, 57 and allied sections will not  apply.   It was  observed  by  this Court in Abdul Gajoor  v.  State  of Mysore (1), "In-order that the approved scheme may be imple- mented  the State Transport Undertaking which is to run  and operate the Transport Service under the (1)  [1962] 1 S.C.R. 909. 110 scheme  must  have  a permit  from  the  Regional  Transport Authority.   Section  68-F  (1)  provides  that  the   State Transport Undertaking will have to apply for a permit (i) in pursuance  of  the approved scheme and (ii)  in  the  manner specified in Chapter IV.  Once that is done, the sub-section proceeds to say "A Regional Transport Authority shall  issue

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such  permit to the State Transport Undertaking",  and  this ""notwithstanding  anything  to the  contrary  contained  in Chapter IV".  It appears clear to us that the provisions  of s.  57 (3) have nothing to do with these matters dealt  with by  s.  68-F  (1).  x x x x Under s.  68-F  (1)  as  already mentioned the Regional Transport Authority has no option  to refuse the grant of the permit provided it has been made  in pursuance of the approved scheme and in the manner mentioned in  Chap. IV.  The duty of the Regional Transport  Authority on  receipt  of  the application from  the  State  Transport Undertaking  for  a  permit  is  therefore  to  examine  the application for itself to see whether it is in pursuance  of an approved scheme and secondly whether it has been made  in the  manner laid down in Chapter IV.  This is a  duty  which the  Regional Transport Authority has to perform for  itself and  there is no question of its asking for assistance  from the public or existing permit holders for Transport Services on the route.  Neither the public in general nor the  permit holders has any part to play in this matter." Sub-section (2) authorises the Regional Transport  Authority to  take action or to make orders to effectuate  the  scheme and  to implement its directions.  In the Samarth  Transport Co.  (P)  Ltd. v. The Regional Transport  Authority,  Nagpur (1), dealing with the conditions under which the power under s.68-F(2)(a)  may  be exercised it was observed  that  "this power   does  not  depend  upon  the  presentation   of   an application  by the State Transport Undertaking for  a  pen- nit.   This power is exercisable when it is brought  to  the notice of the authority that there is an (1)  [1961] 1 S.C.R. 631. 111 approved  scheme, and to give effect to it, application  for renewal cannot be entertained." In  Kalyan Singh v. State of Uttar Pradesh it was held  that an  order passed by the Regional Transport  Authority  under s.68-F(2)  pursuant  to  a direction  under  a  scheme  duly approved  and  published is purely  consequential  upon  the scheme,  and is not open to challenge.  In  considering  the effect of cl.(2) of s.68F it was observed in that case  that "the  Regional Transport Authority was by the terms  of  the scheme  left  no discretion in the matter.  It was  .by  the scheme that the right of the appellant was restricted and if the  scheme became final and binding the Regional  Transport Authority  had no authority to permit the appellant  to  ply his  vehicles".  It was further observed that "if the  right of  the appellant to ply his buses is lawfully  extinguished he  is  not entitled to maintain an appeal  challenging  the right of the State Transport Undertaking to ply their  buses with  or without permits.  Nor is any fundamental  right  of the  appellant infringed by the State Transport  Undertaking plying its buses without permits, and a petition under  Art. 32  of  the  Constitution  cannot  be  maintained  unless  a fundamental  right of the applicant is infringed".   It  was therefore held in that case that if a valid scheme  contains a direction’ for cancellation of outstanding permits and the permits  are  in  fact cancelled by order  of  the  Regional Transport  Authority, it is not open to the  operator  whose permits  are  cancelled to claim that  the  State  Authority which  commenced to operate its vehicles  without  obtaining permits  under s.42 of the Motor Vehicles Act infringes  the right  of the operator to carry on his business.  The  right of  the  operator, having been  lawfully  extinguished  .pro tanto  by  the  scheme and  the  consequential  order  under s.68F(2),  he is not entitled to have resort to  this  Court under  Art.  32 of the Constitution for  protection  of  his

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alleged right. The  scheme  was duly published and the  permits  issued  in favour of fifty-five operators whose names (1)  [1962] Supp. 2 S.C.R. 76. 112 are  set  out  in  the  order  dated  May  3/4,  1962   were lawfully cancelled.  The objectors had since cancellation of their  permits  no  fundamental  right  which       could be infringed  by the State Government plying its vehicles  with or   without  permits  issued  by  the  Regional   Transport Authority under s.42(1) of the Motor Vehicles Act. The  appeal  and the writ petition therefore  fail  and  are dismissed with costs.  There will be one hearing fee.                   Appeal and writ petition dismissed.