Holding

It is inequitable for the Government to rely on the irregularity of its own order after procurement, and the State is statutorily bound to pay the market rate, rendering the retrospective price reduction and recoveries unlawful.

Summary

The appellants, rice millers, supplied rice to the Food Corporation of India under the Andhra Pradesh Rice (Procurement Ex‑Mill Prices) Order, 1975 and were paid the notified procurement price. The State later issued a memorandum (Nov 2 1976) extending that price to the 1976‑77 crop and, by a Gazette notification dated Feb 24 1977, reduced the prices retrospectively to 7 Sept 1976, seeking to recover the excess payment. The State argued that the memorandum was not gazetted and that the 1975 Order ceased to operate after the 1975‑76 crop, contending the Government acted under mistake of law. The Supreme Court held that the Government could not rely on its own procedural irregularity after it had compulsorily procured rice and paid the millers, and that the State was statutorily bound to pay the market rate under the Essential Commodities Act. Consequently, the retrospective amendment was deemed to infringe the appellants’ vested right to the price, making the recoveries unlawful. The Court allowed the appeals, set aside the High Court’s decision and awarded no costs.

Issues considered

The validity of the State's retrospective amendment of the procurement price and its claim to recover excess payments.
Whether the memorandum of 2 Nov 1976 required Gazette notification to be legally effective.
Whether the 1975 procurement order continued to apply to rice supplied after 7 Sept 1976.
Whether the State could invoke mistake of law to avoid payment.

Legislation cited

Essential Commodities Act, 1955s. 3(1), s. 3(2), s. 3(3A), s. 3(3b)
Indian Contract Act, 1872s. 70

Subjects

essential commoditiesprocurement priceretrospective legislationvested rightsadministrative lawsubordinate legislationmistake of lawrice procurementstate liabilitycontract law

Judgment

M/S. BEJGAM VEERANNA VENKATA NARASIMLOO ETC. A
v.
STATE OF ANDHRA PRADESH AND ORS.

MARCH 21, 1997

[S.P. BHARUCHA AND SUHAS C. SEN, JJ.) B

Essential Commodities Act 1955, S. 3(1)-Andhra Pradesh Rice
(Procurement Ex-Mill Prices) Order, 1975 requiring rice millers to supply
to Food Corporation of India at 'notified' procurement prices-!975 Order C
coming into force on October 1, 1975 and operative for Kharif crop 1975-
76 and subsequent crop-State by order dated November 2, 1996 continuing
rates fixed by 1975. Order for supplies made subsequent to September 7,
1976--0rder not gazetted-Thereafter State issuing gazette notification on
February 24, 1977 lowering procurement Prices with retrospective effect
from September 7, 1976-Recoveries of excess price paid sought to be made D
from appellants-State government contending that November, 1976 Order
not gazetted and had no legal effect and 1975 Order not operative beyond
September 7,1976- Held, it would be inequitable to permit government to
plead irregularity of its order after procuring rice on the basis of that order;
even otherwise government was statutorily bound to pay market rate- E
Contract Act 1872, s. 70.

Administrative Law-Subordinate Legislation-:-Retrospective effect a/-
Procurement Order requiring rice millers to supply at notified price-State
by subsequent gazette notification lowering price with retrospective effect-
Recoveries sought to be made from appellants-High Court upholding validity . F
ofsubsequent order as it did not take awey any vested right-Held, appellants
had acquired vested right to be paid at notified price; recoveries sought to
be made retrospectively were unlawful and myust.

Under the Andhra Pradesh Rice (Procurement Ex-Mill Prices) Order,
1975, effective October 1, 1975, the appellants (rice millers) were entitled to
be paid the 'notified price' fixed thereunder for supplies to be made to the_ G
Foods Corporation oflndia (FCI) of rice of"Kharif 1975-76 or subsequent
crop".

By an Order issued on November 2, 1976, the procurement price of rice
in force for the year 1975-76 was made payable for the crop year 1976-77. H
389
390 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A The appellants thus continued to sell rice to FCI after September 7, 1976 at
the procurement price fixed for the crop year 1975-76.

By a subsequent order dated February 24, 1977, the procurement price
for various varieties of rice fixed in the 1975 Order was brought down with
retrospective effect from September 7, 1976. Recoveries were sought to be
B made from the appellants for the difference.

The High Court held that merely because it was given effect to from an
anterior date, the 1977 Order could not be said to be a retrospective
subordinate legislation since it did not take away vested rights of the appellants.

C Before this Court, the State contended that the 1977 Order had not
been gazetted and, therefore, had no legal effect. The 1975 Order could not
be given effect to beyond September 7, 1976.

Allowing the appeals, this Court

HELD: I.I. It would be inequitable to permit the Government to take
D the plea of irregularity of its own Order after procuring rice on the basis of
that order. If the Memorandum was required to be notified, the Government
could not take advantage of its failure to notify it. Having acted on the basis
of the unnotified Memorandum and having collected rice compulsorily from
the millers on its strength and also having paid the millers at the rate fixed
E by the Memorandum, the Government could not be heard to say that the
Memorandum was of no legal effect and the payment was made under mistake
of law. [398-E; DI

1.2. Even ifthe contention of the State Government was upheld and the
Memorandum was held to be void and of no legal effect, the State Government
F had a statutory duty to pay for the rice procured by it at the market rate
calculated in the manner laid down by the statute. (398-G I

2. The recoveries sought to be made from the appellants were unlawful
and unjust. Rice had been sold under a procurement order and a right to be
paid in terms of that order had accrued to the seller as soon as sale of rice
G was effected. The appellants not only had acquired a vested right to be paid
but actually received pllyment for the rice sold. The retrospective subordinate
legislation tried to take away a portion of the money the appellants had
lawfully obtained. [399-H; 400-AI

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3196-3200 of
H 1981 etc.

}
B. V. VENKATA NARASIMLOO v. STA TE [SEN, J.] 391
From the Judgment and Order dated 11.8.81 of the Andhra Pradesh A
High Court in A. Nos. 290-93, 327, 372 and 331of1980.

A. Subba Rao and B. Parthasarthy for the Appellants.
G.I. Gopalkrishna, Y.P. Rao, K. Ramkumar and T.V.S.N. Chari for the
Respondents.
B
The Judgment of the Court was delivered by

SEN, J. Section 3 of the Essential Commodities Act, 1955 confers upon
the Central Government power, inter alia, to regulate production, supply and
distribution of essential commodities for securing their equitable distribution
and availability at fair prices. The power given to the Central Government by C
sub-section (I) of Section 3 is in very broad terms. Sub-section (2) specifically
provides that an order can be made by the Central Government, inter a/ia,
"for controlling the price at which any esse11tial commodity may be bought
or sold." Clause (f) of sub-section (2) of Section 3 has also empowered the
Central Government to require any person holding in stock, or engaged in the
production, or in business of buying or selling, of any essential commodity, D
to sell the whole or a specified part of the quantity held in stock or produced
or received by him to the Central Government or a State Government or to
an officer or agent of such Government or to a Corporation owned or controlled
by such Government as may be specified in the order. Sub-section (3A) of
Section 3 provides that wnere any person sells any essential commodity in E
compliance with an order ma.de with reference to clause (f) of sub-section (2),
there shall be paid to the seller as the price therefor' -
(a) where the price can consistently with the controlled price of
the food stuffs, if any fixed under this section, be agreed
upon, the agreed price; F
(b) where no such agreement can be reached, the price
calculated with reference to the controlled price, if any;
(c) where neither clause (a) nor clause (b) applies, the price
calculated with reference to the average market rate prevailing
in the locality during the period of three months immediately G
preceding the date of the notification.

Sub-section (3b) of Section 3 provides : -

"Where any person is required, by an order made with reference to
clause (f) of sub-section (2) to sell to the Central Government or to H
392 SUPREME COURT REPORTS fl997J SUPP. 5 S.C.R.

A a State Government or to an office or agent of such Government or
to a Corporation owned or controlled by such Government, any grade
or variety of foodgrains, edible oilseeds or edible oils in relation to
which no notification has been issued under sub-section (3A), or
su~h notification having been issued, has ceased to be in force, there
shall be paid to the person concerned, notwithstanding anything to
B the contrary contained in sub-section (3), an amount equal to
procurement price of such foodgrains, edible oil seeds or edible oils,
as the case may be specified by the State Government, with the
previous approval of the Central Government having regard to:-
.(a) th: controlled price, if any, fixed under this section or by_ or
c under any other la.w for the time being in force for such
grade of variety of foodgrains, edible oilseeds or edible oils;
(b) the general crop prospects;
(c) the need for making such grade or variety of foodgrains,
edible oilseeds or edible oils available at reasonable prices
D to the consumers, particularly the vulnerable section of
consumers; and
- (d) the recom_mendations, if any, of the Agricultural Prices
Commissions with regard to the price of the concerned
grade or variety of foodgrains, edible oil seeds or edible
E oils."
There is no dispute that 'rice' is an 'essential commodity' under the
Essential Commodities Act. Andhra Pradesh Rice (Procurement Ex-Mill Prices)
Order, 1974 and Andhra Pradesh Rice.(Procurement Ex-Mill Prices) Order,
1975, were promulgated requiring persons carrying on business in foodgrains,
F paddy, rice, rice milling, etc. to supply rice to Food Corporation of India (FCI)
at procurement prices fixed by Orders issued by the Andhra Pradesh
Government from time to time. The rice millers were entitled to be paid what
is called the "notified price" which has been defined to mean the price fixed
under the A'ndhra Pradesh Rice (Procurement Ex-Mill Prices) Order, 1975.
G The appellants, who are rice millers, supplied the FCl rice milled from
Khariff and Rabi crops for the crop year 1975-76 and also 1976-77 under the
aforesaid Orders. The FCI paid them price fixed by Andhra Pradesh Rice
(Procurement Ex-Mill Prices) Order, 1975.
The present dispute arises out of an Order issued by the Government

r
H of Andhra Pradesh on 8th October, 1975, which is as under :
B.V. VENKATA NARASIMLOO v. STATE [SEN. J.) 393
"NOTIFICATION" A
In exercise of the power conferred by Clause (c) of Sub-section (2) of
Section 3 of the Essential Commodities Act, 1955 (General Act I 0 of
1955) read with the order of the Government of India, Ministry of
Agriculture (Department ofFood), New Delhi, G.S.R. 316 (E) dated the
20th June, 1972 and all other powers hereunto enabling and with the B
prior concurrence of the Government of India, the Governor of Andhra
Pradesh hereby rescinds with immediate effect, the Andhra Pradesh
Rice (Procurement Ex-Mill Prices) Order, 1974 issue in G.O. MS. No.
1001, Food and Agriculture (CS.V) Department, dated the 6th November,
1974 and published at pages 1-13 of the rules Supplement to Part II C
Extra-ordinary of the Andhra Pradesh Gazette, No. 38 dated the 7th
November, 1974.

Provided that such recession shall not affect :

(a) the previous operation of the said Order of any thing duly D
done or supported thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued
or incurred under the said Order; or

(c) any penalty, forfeiture or punishment incurred in respect of
any offences committed against the said Order; E
(d) any investigation, legaiproceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid, and any such
investigation, legal p(oceeding or remedy may be instituted,
continued or enforced and any such penalty, forfeiture or F
punishment may be imposed as if the said Order has not
been rescinded.

xxx. xxx xxx

11. In exercise of the powers conferred by Clauses (c) of Sub-section· G
(2) of Section 3 of Essential Commodities Act, 1955 (Central Act 1O
of f955) read with the Order of the Government of India, Ministry of
Agriculture (Department of Food,) New Delhi G.S.R. No. 316 (E), dated
20th June, 1972 and of all other powers hereunto embling and with
the prior concurrence of the Government of India, the Governor of
Andhra Pradesh hereby makes the following order, namely :- H
394 SUPREME COURT REPORTS (1997] SUPP. 5 S.C.R.

A I. Short title, extent, application and commencement

(I) This Order may be called the Andhra Pradesh Rice (Procurement Ex-
Mill Prices) Order, 1975.

(2) It extends to the whole of the State of Andhra Pradesh.
B (3) It shall apply only to the rice milled or hand-pounded from paddy
of Khariff 1975-76 or subsequent crop.

(4) It shall be deemed to have come into force on the I st October,
1975."

C There is no dispute that even after 7.9.76, FCI continued to procure rice
and pay the appellants the price fixed by the 1975 Levy Order. The case of
the appellants is that there is no reason not to pay at the old rates till
promulgation of a new Order in accordance with law fixing new rates. The
case of the State is that the price notified in the 1975 Order will have no
D application to the supplies of rice made on m after 7.9.76. It has been
emphasised that in clause (3) of the Order, it has been specifically made clear
that the order shall be operative "only to the rice milled or hand-pounded from
paddy of Khariff 1975-76 or subsequent crop". This can only mean that the
order will not be operative beyond the crop year 1975-76.

E As against this, the contention on behalf of the appellants is that the
Order came into force on !st October, 1975. It was made operative not only
for the Khariff crop of 1975-76 but also for the "subsequent crop." "Subsequent
crop" need not be confined only to the crop raised in 1975-76. The procurement
price provided in the Order must continue till a new Order is promulgated
laying down the levy price. Otherwise, there will be a vacuum. The rice millers
F will have to supply rice compulsorily to FCI without knowing what is the
procurement price. The intention behind the Order clearly was to continue the
procurement price fixed by that Order to all subsequent crops until a fresh
Order was issued.

G Assuming that the contention of the State Government is correct what
will be the price payable for the crop year 1976-77 commencing on and from
7.9.1976. A fresh order of procurement was published in the official Gazette
only on 24.2.1977. Under the provisions of Section 3 of the Essential
Commodities Act, any person who sells any essential commodity in compliance
·of an order passed with reference to clause (t) of sub•section 2 of Section
H 3 will have to be paid (a) an agreed price which is consistent with the
B.V. VENKATA NARASIMLOO v. STATE [SEN, J.] 395
_... controlled price, if any, fixed under Section 3 or (b) in the absence of any A
agreement, the price calculated with reference to the controlled price, if any,
or when neither (a) or (b) applies, the price calculated with reference to the
average prevalent market price of the locality during the period of three
months immediately preceding the day of the notification.

In this case, on and from 7.9.76, the rice millers sold and the FCI bought B
rice at the procurement price fixed for the crop year 1975-76. This was because
of an Order issued on 2. I 1.1976 by which the procurement price of rice in
force for the year I 975-76 was made payable for the crop year I 976-77. The
relevant portion of the Order is as under :
c
"MEMO NO. 261 l/SCI(2)/76-2, DATED 2.11.1976

Sub : Civil Supplies-prices and procurement policy for Khariff cereals
for 1976-77 season-Regarding.

Ref: I. From the Government of India, Ministry of D
Agriculture and Irrigation (Department ofFood), New
Delhi, Telex Message No. 167 (28) 76-PY.I, dated
30.9.1976.

2. From the Government of Jndia, Ministry of E
Agriculture and Irrigation (Department of Food), New
Delhi, Lr. No. 167/28176 PY. I dated 30.9.1976.

The Government of India in their reference cited, copies of which F
are communicated herewith to all District Collectors, Chief Rationing
Officer, Hyderabad, Directors, Vigilance Cell (CS) and Board of Revenue
(CS), have declared the procurement policy for Khariff cereals 1976-
77. They are informed that the producers levy slabs prescribed for the
crop year 1976-77 in the Schedule to the Andhra Pradesh, Paddy G
Procurement (Levy) Order, 1972 as amended last in G.0.Ms. No.844,
F&A (CS.I) dated 24.9 .1975 shall continue to apply for crop year 1976-
77 also.

2. The procurement price of paddy and specification for the crop
year 1976-77 shall be the same as were fixed for the crop year 1975- H
396 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 76 and notified in G.O.Ms No. I 002 Food & Agrl. (CS.V) dated 6.11.1974
in the Schedules under the Andhra Pradesh Paddy (Procurement
Prices) Order, 1974. The Procurement Prices of rice for crop year 1976-
-
77 shall be the same as notified in the Schedules to the A.P. Rice
(Procurement Ex-Mill Prices) Order, 1975.
B
With regard to the Mill Levy, it has been decided to fix 50% levy
uniformly for millers and dealers and necessary amendment to the
relevant Schedule to the Andhra Pradesh Rice (Procurement Levy)
and Restriction on Sale Order, 1967 will be issued shortly in
consultation with the Government of India. Pending issue of the
c amendment, the District Collectors are instructed to take action to
collect levy from millers and dealers not exceeding the percentage
mentioned above for the crop year 1976-77 ."

Even after expiry of the crop year 1975-76, in terms of the aforesaid
D order, the appellant-rice millers supplied rice to the FCI and were paid at the
rate prescribed in the Order/Memorandum dated 24.9.1975. Not only the
procurement price but also the quantum of levy of rice was determined by this
order/Memorandum.

On 24.2.1977, the Food and Agriculture Department of Andhra Pradesh
E
Government, issued a Gazette Notification to the followi~g effect :-

"In exercise of the powers conferred by Clause (c) of sub-section (2)
of Section 3 of the Essential Commodities Act, 1955 (Central Act 10
of 1955) read with the order of the Government of India, Ministry of
F Agriculture (Department of Food), New Delhi in G.S.R. No. 316(e)
dated the 20th June, 1972 and with the prior concurrence of the
Government of India, the Governor of Andhra Pradesh hereby makes
the following amendments to the Andhra Pradesh Rice (Procurement
Ex-Mill Prices) Order, 1975 issued in G.0. Ms. No. 901, Food and Agri.
G at page 8 of the Rules supplement of Part I Extra-ordinary of the
Andhra Pradesh Gazette No. 53 dated the 9th October, 1975 as
subsequently amended.

2. The amendment hereby made shall be deemed to have come into
H force on 7th September, 1976.
~
B.V. VENKATA NARAS)MLOO v. STATE [SEN. J.] 397
AMENDMENTS A

(i) In Schedule I to the said order in Col. (2) for the figures 149 .00,
136.00, 125.00 and 121.00 against varieties of rice super fine and
coarse the figures 146.00, 133.00 and 118.00 shall respectively be
substituted."
B
As a result of this notification, procurement price for various varieties
ofrice fixed in the 1975 Order was brought down purportedly with retrospective
effect from 7.9.1976. This created an anomalous, situation because in the
period between 7.9: I 976 and 24.2. I 977 rice was actually procured according
to the slab laid down in the Andhra Pradesh Paddy Procurement (Levy) Order, C
_ 1972 as amended by the order dated 24.9.75 for which price was paid according
to the rates laid down in that order on the basis of the Memorandum issued
on 2. I 1.76.

The Andhra Pradesh Government claimed ·that payment for the levy of D
rice on and from 7.9.76 had been made at an excessive rate. The proper rate
would be the rate as fixed in the order dated 24.2. 77. Therefore, the excess
payment made by the assessee will have to be recovered from the rice millers.
It has been argued on behalf of Andhra Pradesh Government that the
Memorandum dated 2.1 I .76 was of no legal effect because it was not notified E
in the Official Gazette. Therefore, anything done on the basis of this
Memorandum was of no legal effect. If price was paid in terms of thaf
Memorandum it was by mistake of law and the Government had a right to
recover the excess amount paid. It was further argued that Levy Order of J.975
had spent its force at the end of the crop year I 975-76. Therefore, procurement F
price on the basis of that order could not in any event be paid in the crop
year 1976-77.

We are of the view that the contentions made on behalf of the Andhra
Pradesh Government are untenable in law. It has not been explained how and
in what circumstances the order/memorandum dated 2, I I. 76 extending the life G
of the I 975-76 procurement order came to be issued. The issuance of the
memorandum is not denied. It is also not denied that rice was procured in
terms of this order. Rice millers had to deliver the rice according to the
quantum or slab fixed by the I 975-76 order on the strengili of the Memorandum
dated 2.11.76. FCI also acted upon this Memorandum and paid the millers at H
398 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A the rates laid down in the order dated 24.9.75. It is not open to the Andhra
Pradesh Government now to say that this Memorandum is of no legal effect
because 'it was not notified in the Official Gazette and was not addressed to
any of the rice millers but was merely an inter-departmental communication.
-
The Memorandum categorically stated "pending issue of the amendment, the
B District Collectors are instructed to take action to collect levy from millers and
dealers not exceeding the percentage mentioned above for the crop year 1976-
77''. District Collectors acted on the basis of this Memorandum. The rice
millers were compelled to sell rice to FCI. In the background of all these facts,
it is not open to the State Government to contend that the Memorandum was
C not notified and therefore, no right or obligation flowed from that Memorandum.
If the Memorandum was required to be notified, the Government cannot take
advantage of its failure to notify it. Having acted on the basis of the unnotified
Memorandum and having collected rice compulsorily from the millers on the
strength of this memorandum and also having paid the millers at the rate fixed
D by the Memorandum, the Government cannot be heard to say that the
Memorandum is of no legal effect and the payment was made under mistake
oflaw.

In our view, it will be inequitable to permit the Government to take the
plea of irregularity of its own Order after procuring rice on the basis of that
E order.

There is also another aspect of this case. Sub-section (3A) of Section
3 provides that where any person sells any essential commodity in compliance
with an order made with reference to clause (f) of sub-section (2), "there shall
F be paid to the seller.......... the price therefor ........ ". The language of the Section
is mandatory. The price for the rice procured will have to be paid. In the
absence of any agreed price or controlled price, the price calculated with
reference to the average market rate prevailing in the locality during the last
three months will have to be paid to the seller. Even if the contention of the
G State Government is upheld and the memorandum is held to be void and of
no legal effect, the State Government has a statutory duty to pay for the rice
procured by it at the market rate calculated in the manner laid down by the
statute.

The next question is whether the State Government can fix the
H procurement price of the rice purchased by it retrospectively. The High
B. Y. VEN KATA NARASIMLOO v. STA TE [SEN. J.] 399

Court's view was that the State Government cannot do it. But the High Court A
has tried to salvage the case for the State Government by holding that the
notification dated 24.2.1977 was not really retrospective even though clause
(2) of the notification states that "the amendment hereby made shall be
deemed to have come into force on 7th September, 1976." The High Court
stated the question before it and its answer in the following words : B
"Thus, the whole question in this case boils down to one of
interpretation of the relevant provisions of the E.C. Act. In this case,
it must be admitted that there is no provision in the E.C. Act authorising
the making of subordinate legislation with retrospective effect. It
follows, therefore, that Ex. B-4 would be invalid if it is truly a C
retrospective subordinate piece of legislation. This raises the question
whether Ex. B-4 dated 24.2.77 fixing prices with effect from 7.9.76 can
be truly called a retrospective law. We are of the clear opinion that it
is not."
D
The High Court was of the view that merely because a subordinate
legislation was given effect to from an anterior date, it cannot be treated as
a piece of retrospective subordinate legislation. It was held that a subordinate
legislation can be said to be retrospective only when it took away or impaired
any vested right acquired under existing laws or created new obligations or E
imposed a new duty or attached a new disability in respect to transactions
or considerations already passed. Reliance was placed upon Craies on Statute
Law, 6th Edition p. 386. It was held that by notification dated 24.2.1977, the
Government did not reduce in any way the price legally payable to the
appellants because there was no such price in existence nor did it alter in any F
way the legal rights of the appellants with regard to their sales for the second
year.

We are unable to follow how the High Court could. come to the
conclusion that the vested right of the appellants had not been disturbed in
any way by the subordinate legislation. Rice has been sold under a procurement G
order and a right to be paid in terms of that order had accrued to the seller
as soon as sale of rice was effected. As a matter of fact, the FCI did pay the
appellants the price for the rice purchased. If a portion of the price by the
FCI is taken away, the appellants will be prejudicially affected. They not only
had acquired a vested right to be paid but actually received payment for the H

..
400 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A rice sold. If the rice was delivered without any valid procurement order, the ...
sellers were entitled to be paid at the market rate in terms of Section 70 of
the Contract Act. The retrospective subordinate legislation has tried to take
away a portion of the money the appellants had lawfully obtained.

We are of the view that the decision of the High Court is clearly
B
erroneous. The recoveries which are now sought to be made from the appellants
are clearly unlawful and unjust. The appeals are allowed. The judgment under
appeal is set aside. There will be no order as to costs.

C.A. No. 8296 of 1997
C (Arising out of S.L.P (C) No. 568/1982)
Leave granted.
In view of our above decision in C.A. Nos. 3196-3200 of 1981, this
appeal is also allowed with no order as to costs.

D S.M. Appeals allowed.