Holding

The Chairman of the Standing Committee has locus standi and the Commissioner must disclose the documents; the proviso to Section 73(c) cannot be invoked in the present circumstances.

Summary

The Chairman of the Standing Committee of the Kalyan‑Dombivli Municipal Corporation filed a writ petition seeking a mandamus directing the Commissioner to produce tender documents and related records before the Committee, arguing that the Committee could not decide on a contract without them and that the proviso to Section 73(c) of the Mumbai Provincial Municipal Corporation Act, 1949 could not be invoked. The High Court dismissed the petition on a narrow reading of the proviso and on the ground that the Chairman lacked locus standi. The Supreme Court held that the Chairman, as representative of the statutory Committee, has locus standi, that the Committee is entitled to the documents under Rule 24, and that the proviso applies only when the Committee deliberately refuses or fails to act, not when it is denied necessary material. Consequently, the Commissioner must furnish the requested documents and the High Court’s order was set aside.

Issues considered

The Chairman of the Standing Committee has locus standi to maintain the writ petition.
Whether the proviso to Section 73(c) of the Mumbai Provincial Municipal Corporation Act can be invoked when the Committee is denied documents and cannot decide within 15 days.
Whether the Commissioner is statutorily bound to provide documents requested by the Standing Committee under Rule 24.
Whether Section 451 of the Act provides an alternative remedy that bars the writ petition.

Legislation cited

Constitution of Indias. Article 226

Subjects

statutory interpretationlocus standimunicipal corporationcontract approvalSection 73public interest litigationmandamusdocument disclosureRule 24provisoalternative remedy

Judgment

A NANDKISHORE GANESH JOSHI
v.
COMMISSIONER, MUNICIPAL CORPORATION OF KALYAN AND
DOMBIVALI AND ORS.

OCTOBER 15, 2004
B
[N. SANTOSH HEGDE AND S.B. SINHA, JJ.]

Constitution of India, 1950:

C Article 226-Standing Committee appointed under Mumbai Municipal
Corporation Act-Committee while considering approval of a contract asking
Commissioner to supply required documents-Commissioner, approving the
contract invoking proviso to s.73 (c) of the Act-Writ petition by Chairman
of Standing Committee challenging order of Commissioner-Locus standi of
D Chairman to file writ petition-Held, Chairman has locus standi to maintain
the writ petition-Question involving interpretation of statutory provision
can be gone into by High Court even in a public interest litigation-s.451
cannot be said to provide an alternative remedy-Mumbai Municipal
Corporation Act, 1949-ss. 20, 73 (c) and 451-Locus standi.

E Mumbai Municipal Corporation Act, 1949:

s.73(c)-Contract-Approval of by Standing Committee-Committee's
power to ask for documents-Held, Standing Committee is entitled to ask for
relevant documents-Direction issued to place before the Standing Committee
all materials required by it-Rule Book of Mumbai Municipal Corporation-
F Rule 24.

s. 73(c), proviso-Proposal for approval of contract submitted to
Standing Committee-Commissioner approving the contract invoking the
proviso-Held, approval of contract by Standing Committee is not an empty
formality-Proviso would apply in a situation where despite meeting Standing
G Committee deliberately or otherwise refuses. or fails to take any decision-
/nterpretation of statutes.

Legal Maxim-ut res magis valeat quam pereat-Applicability of

H 584
N.G. JOSHI v. COMMR., MUNI. CORPN. OF KALYAN AND DOMBIVALI 585
Respondent No. 1 invited tenders for supply of various materials and, A
on receipt thereof, forwarded summary of three such tenders for approval of
the Standing Committee of the Municipal Corporation. The Standing
Committee felt that the proposal did not contain material to arrive at a decision
on merits, and resolved that the administration of the Corporation should
submit all the files and documents as required under the rules, and further
observed that in future briefs of each proposal should be submitted alongwith B
profile for its perusal. Respondent No. 1 raised a doubt as to under which
provision the Standing Committee could give the direction. The State
Government clarified that necessary documents should be made available to
the Standing Committee. But before Government's communication could
reach respondent No.1, he invoked his power under the proviso to clause (c) C
ofs. 73 of the Mumbai Provincial Municipal Corporation Act, 1949. Appellant,
the Chairman of the Standing Committee, challenged the order ofrespondent
No. 1 in a writ petition before the High Court which dismissed the same on
an interpretation of clause (c) ofs.73 of the Act as also on locus of the writ
petitioner.
i . D
In the present appeal filed by the writ petitioner, it was contended that
the documents sought for by the Standing Committee were essential for
assessing merits of the tenders and, in the circumstances, proviso to clause '
(c) ofs.73 of the Act, could not have been invoked.

Allowing the appeal, the Court E
HELD: 1.1. A statutory Committee should not be denied access to the
documents to which it is entitled. In the instant case, the Standing Committee
is required to perform its functions in terms of the provisions of the Mumbai
Provincial Municipal Corporation Act, 1949. It has a duty to act in public
interest as also fairly and in a reasonable manner. Approval of a contract and p
that too with previous approval by the Standing Committee cannot be said to
be an empty formality. If the Standing Committee is unable to approve any
proposal on the basis of the material supplied to it, it is entitled to ask for the
relevant documents and the Commissioner is bound to comply with the said
request unless there exist strong and cogent reasons for not doing so. Clause
(c) of Section 73 is couched in the negative language and, therefore, is G
imperative in character. The State Government had also opined that the
documents required by the Standing Committee should be made available to
it Rule 24 of the Rule Book of the Corporation also indicates that each member
of the Committee was entitled to have access to the documents.
(593-G; 592-E-F; 592-D, G) H
586 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A Canba.nk Financial Services Ltd v. The Custodian and Ors., (2004) 7
S~ALE 495 and P.S. Sathappan (Dead) by Lrs. v. Andhra Bank Ltd and Ors.,
(CA Nos. 689of1998 etc. decided by Supreme Court on 7.10.2004), referred
to.

1.2. No privilege had been claimed nor can be claimed in law in the
B matter of disclosure of the documents required by the Standing Committee.
Respondent No.I did not say, as contended later h1 the counter affidavit, that
such document should not be disclosed. A statutory authority, when acts in
terms of a statute, is bound by its action. It cannot supplement or supplant the
reason later on by way of affidavit. Furthermore, Respondent No. 1, despite
C referring the ma_tter to the State Goyernment did not wait for its opinion, and
invoked the proviso to clause (c) of Section 73. A discretion conferred on a
statutory authority must be exercised in public interest and judiciously.
1594-A-D)

Clariant International Ltd. and Anr. v. Securities and Exchange Board
D ofIndia, (2004) 7 SCALE 180, relied on.

2. The proviso appended to clause (c) ofs.73 carves out an exception to
the general rule which evidently has been enacted for the purpose of avoiding
any delay and would apply in a situation where despite meeting, the Standing
Committee deliberately or otherwise refuses or fails to take any decision. No
E doubt a legal fiction has been created but the same cannot be given effect to
in vacuum. It is to be applied having regard to the legislative intent and a
restricted meaning is to be attributed thereto in a situation of this nature. A
statute must be read in such a manner whereby it is made workable - Ut res
~ .
mag1s valeat quam pereat. 1592-H; 593-A-B)

F Andhra Bank v. B. Satyanarayana and Ors., (2004) 2 SCC 657; Indian
Handicrafts Emporium and Ors. v. Union of India and Ors., [2003) 7 SCC
589 and Swedish Match AB and Anr. v. Securities and Exchange Board India
and Anr., (2004) 7 SCALE 158, referred to.

3. In view of the fact that the appellant was the Chairman of the Standing
G Committee and although the Standing Committee itself was not the writ
petitioner, it cannot be said that he has no locus standi to maintain the writ
petition. A question involving proper interpretation as regards the statutory
provisions conferring a statutory right on a statutory authority vis-a-vis a
statutory duty on the part of the Commissioner could be gone into by the High
H Court even in a public interest litigation. It can also not be said that s.451 of
N.G. JOSHI v. COMMR., MUNI. CORPN. OF KALYAN AND DOMBIVALI [S.B. SINHA, J.] 587

the Act provides for an alternative remedy. Besides, no such question was A
raised before the High Court (594-D-E; F)

4. Respondent No. 1 is directed to place before the Standing Committee
all materials sought for in terms or its resolution. [595-A)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6793 of 2004. B
From the Judgment and Order dated 17 .1.2002 of the Bombay High
Court in W.P. No. 3493 of2001.

Chinmoy Khaladkar and S.K. Nandy for the Appellant.

K. Radhakrishnan, Sameer Parekh, Lalit Chauhan, Sumit Goel and Mukesh
c
K. Giri with him for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted. D
INTRODUCTION:

The Appellant herein, Chairman of the Standing Committee of the Second
Respondent-Municipal Corporation of City ofKalyan and Dombivali (hereinafter
referred to as 'the Corporation') had filed a writ petition before the Bombay E
High Court praying for issuance of a writ of or in the nature of mandamus
directing the respondents to ensure that whenever a proposal for grant of
approval of the contract in terms of Section 73 of the Mumbai Provincial
Municipal Corporation Act, 1949 (hereinafter referred to as 'the Act) is placed
before the Standing Committee, the same should contain the tender forms and
other documents submitted by the contractor as well as other documents, if F
any, containing the records of negotiations made by the Commissioner of the
Corporation after the tenders are opened or placed before it. The said writ
petition was dismissed by the High Court on an interpretation of clause (c)
of Section 73 of the Act as also the locus of the Appellant.

THE ACT VIS-A-VIS THE PARTIES: G

The Respondent-Corporation has been constituted under the provisions
of the said Act. The First Respondent herein is the Commissioner of the said
Corporation appointed in terms of Section 36 of the Act. The State is also a
statutory authority under the Act and may in a given situation exercise its H
588 SUPREME COURT REP.ORTS [2004] SUPP. 5 S.C.R.

A revisional jurisdiction in tenns of Section 451 thereof. A Standing Committee
is constituted under Section 20 of the said Act. The Chainnan of the Standing
Committee is elected in tenns of Section 21 thereof. The Standing Committee
exercises various powers with which we are not concerned at present. Section
73 empowers the Commissioner to execute contracts on behalf of the
B Corporation but clause (c) thereof restricts the said p~wer in the following
tenns:

"(c) no contract which will involve an expenditure (ten lakh rupees)
or such higher amount as the Corporation may, with the approval of
the (State) Government, from time to time prescribe, shall be made by
the Commissioner unless the same is previously_ approved by the
c Standing Committee:

Provided that, where the previous approval of the Standing
. Committee is sought by the Commissioner for any contract the
Standing Committee shall consider and dispose of the proposal made
by the Commissioner in that behalf within fifteen days from the date
D
on which the item is first included in the agenda of any meeting of
that Committee, failing which, the approval to such contract shall be
deemed to have been given by the Committee, and a report to that
effect shall be made by the Commissioner to the Corporation."

E BACKGROUND FACTS:

In exercise of the said power the First Respondent issued notices
inviting tender for supply of various materials, pursuant whereto or in
furtherance whereof, contractors submitted their tenders. He forwarded
summaries of three separate tenders, which according to the Standing
F Committee of the Corporation did not disclose any material whereby it could
assess the merits or demerits thereof. The· matter was placed before the
Standing Committee on 26.4.2001 whence the following resolution was passed.

"Considering the administrative proposal of supplying Bleaching
Powder Grade-2 and Hydrated Lime to Twelfth Water Treatment Plant,
G it is essential to obtain relevant documents to provide detailed
information to the members of the Standing Committee. Therefore, this
Standing Committee resolves that, as per rules the administration
should submit brief of the said case in office of the Secretary for the
information of the Standing Committee. Similarly, in future briefs of
each proposal from administration, which is placed before the Standing
H
N.G. JOSHI v. COMMR., MUNI. CORPN. OF KALYAN AND OOMBIVALI [S.B. SINHA,J.] 589

Committee should be submitted in Secretary's office along with profile A
from time to time for the perusal of the Standing Committee."

Curiously the First Respondent did not respond thereto directly to the
Standing Committee; but by a letter dated 9.5.2001 addressed to the Secretary
of the Corporation posed a question as to under which rule it had asked for
the said documents. It was contended : B
"The administration has decided to ask the Government for ice.
As soon as the ice is obtained from the Government a decision shall
be taken in respect of the demand referred to above."

The Government of Maharashtra by its letter dated 18.5.2001 quoting C
Rule 24 of the Rule Book of the Corporation, General Meetings, Standing
Committee and Transport Committee Working Rules, opined :

"Therefore before approving any work or resolution the Standing
Committee shall examine these documents. Therefore it is essential to D
make available such documents in the office of the Secretary or in the
presence of their representative for the perusal of the speaker or
member of the Standing Committee."

Rule 24 of the Rules, however, does not appear to have been correctly
quoted in the said letter, which ·is as under : E
"24. Papers laid on the Table.-

Papers which are intended to be placed before the Corporation or
any committee for its information shall be kept in the office of the
Municipal Secretary and intimation thereof shall be given to every F
councillor. Such paper shall be open for inspection by any councillor
during office hours."

The Standing Committee of the Corporation by its letter dated 22.4.2001
brought the aforementioned direction of the State Government to the notice
of the First Respondent and requested him to make available all the files in G
the office of the Municipal Secretary. The said issue was again raised in a
meeting dated 6.6.2001 wherein it was pointed out that all the documents and
the files had not been made available for inspection of the members and
despite the directions given by the State Government, the Commissioner has
approved the contracts treating the ~ame to have been sanctioned in terms H
590 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A of the proviso appended to Section 73(c) of the Act.
It is evident that before the State's reply reached the hands of the First
Respondent, he invoked his power in tenns of the proviso appended to clause
(c) of Section 73 of the Act holding such approval of the Standing Committee
would be deemed to have been granted as it did not dispose of the said
B proposal within 15 days from the date on which the item is first included in.
the agenda of the meeting of the Standing Committee. The said order was
questioned by the Appellant herein which as noticed hereinbefore was
dismissed by the High Court.

C SUBMISSIONS OF THE COUNSEL :

Mr. C.A. Kaladkar, the learned counsel appearing on behalf of the
Appellant would submit that the High Court committed a manifest error in
interpreting clause (c) of Section 73 of the Act and. the proviso appended
thereto. The contention of the learned counsel is that the documents sought
D for by the Standing Committee of the Second Respondent were essential for
the purpose of assessing the viability, merits and demerits of the tender so
as to enable it to consider the question as to whether the recommendations
of the First Respondent should be approved or not.

The learned counsel would urge that the reason for the Standing
E Committee to ask the First Respondent to supply the said recommendations
arose in view of the fact that the rates at which Bleaching Powder, Hydrated
Lime and Liquid Chlorine were sought to be purchased were much above the
market rates thereof. A statement to the said effect was made in paragraph
17 of the Rejoinder Affidavit filed by the Appellant herein but the same had
F not been traversed. The learned counsel, therefore, would argue that in the
aforementioned situation, the High Court ought to have held that the proviso
appended to clause (c) of Section 73 of the Act could not have been invoked.

Mr. K. Radhakrishnan, the learned senior counsel appearing on behalf
First Respondent, on the other hand, would submit that all the infonnations
G in tenns of the fonn prescribed by the Standing Committee under Chapter V
of the Schedule of the Act having been disclosed, it was not necessary to
supply any further documents. The reasons for non-supply of such documents,
according to the learned counsel, as contained in paragraph 4 of the Counter
Affidavit are :

H
N.G.JOSHiv. COMMR.,MUNI.CORPN.OFKALYANANDOOMBIVALI [S.B.SINHA,J.] 591
"That there are several other reason also for not submitting the A
papers, correspondence etc. before the Standing Committee namely :
(i) important papers from the tenderers/files containing important
information may be removed or the files may be misplaced; (ii) that the
Officers of the Corporation normally give their remarks about the
responsibility of the rates quoted, ability and integrity of the tenderer.
In case of some adverse remarks against a particular tenderer, which B
if made known, the life of the officer making such remark, may be
endangered; (iii) in case, the remarks etc. made in the file are revealed
to the tenderers, the tenderers may use force to ensure that other
tenderers do not submit their tenders etc. (iv) the forms and the tender
documents are open to the public and the rates quoted by each and C
every tenderer are mentioned in the summary/proposal sent by the
Commissioner to the Standing Committee."

The learned senior counsel would further submit that the Appellant
herein has no locus standi to maintain the writ petition and in any event, the
matter is still pending with the Government as the same had been referred to D
it by the First Respondent himself.

The learned counsel would further urge that the Appellant herein did
not approach the High Court with clean hands and in that behalf our attention
has been drawn to paragraph 18 of the Affidavit filed in reply affirmed by
Ramnath K. Sonawao, Deputy Secretary (Legal) of the Respondent-Corporation, E
which is as under :

"I say that the Petitioner has since oblique motives in asking for
the custody of the documents. As stated earlier except in particular
cases i.e. about 5 cases in the remaining contract proposal, which F
were placed, the same have been approved without calling for the
files. In relation to the supply of chemicals for purification of water
the Petitioner appears to have some vested interest and is intended
to support the case of the contractors who Jost their tenders ....."

Further contention of Mr. Radhakrishnan is that even in Jaw, there was G

- no necessity to supply any document having regard to the form which was
prescribed by the Municipal Corporation and our attention in this behalf has
been drawn to the informations sent in the format by the First Respondent
to the Standing Committee on 26.4.2001. In any event, the learned counse\
would urge that as the Standing Committee had an alternative remedy to
H
592 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A approach the State Government in terms of Section 451 of the Act, the writ
petition was not maintainable.

ANALYSIS OF THE STATUTORY PROVISIONS:

A statute, as is well-known, must be construed in such a manner
B whereby the intent and object of the Act can be given effect to. A literal
meaning should also be avoided if it results· in absurdity. Indisputably, the
First Respondent holds a statutory position. A discretion conferred on a
statutory authority, it is well-settled, must be exercised in public interest and
judiciously. There is no place of any whim or caprice in exercise of such
C discretionary power. [See Clariant International ltd. and Anr. v. Securities
and Exchange Board of India, (2004) 7 SCALE 180].

Although the Commissioner is entitled to execute contracts on behalf
of the Corporation but a statutory embargo is placed thereupon by reason of
Clause (c) of Section 73 of the Act. A contract which may be entered into
D by the Commissioner requires prior approval of the Standing Committee. It is,
thus, not a case where an action taken by a statutory authority requires
approval which may be granted at a later stage. The approval of the Standing
Committee, a bare perusal of Clause (c) would show, is required to be granted
before any contract is entered into. The approval of a contract and that too
with previous approval by the Standing Committee cannot, thus, said to be
E an empty formality. [See Canbank Financial Services ltd. v. The Custodian
and Ors.,:.. (2004) 7 SCALE 495 PARA 35]. The Standing Committee is required
to perform its functions in terms of the provisions of the said Act. A statutory
authority has also a duty to act in public interest as also fairly and in a
reasonable manner.
F
With a view to bona fide performing its statutory functions, if the
Standing Committee is unable to approve such proposal on the basis of the
documents supplied to it, it is entitled to ask for the relevant documents from
the Commissioner. Clause (c) of Section 73 is couched in the negative language
and, therefore, is imperative in character. [See P.S. Sathappan (Dead) by lrs.
G v. Andhra Bank ltd. and Ors., Civil Appeal Nos. 689 of 1998 etc. decided on
7th October, 2004].

The proviso appended to Section 73 carves out an exception to the
general rule which evidently has been enacted for the purpose of avoiding
H any delay and would apply in a situation where despite meeting, the Standing
N.G. JOSHI v. COMMR., MUNI. CORPN. OF KAL YAN AND DOMBIVALI [S.B. SINHA, J.] 593

Committee deliberately or otherwise refuses or fails to take any decision. No A
doubt a legal fiction has been created but the same cannot be given effect
to in vacuum. It is to be applied having regard to the legislative intent and
a restricted meaning is to be attributed thereto in a situation of this nature.
A statute, it is also well-known, must be read in such a manner whereby it
is made workable - Ut res magis valeat quam pereat. (See Andhra Bank v. B
B. Satyanarayana and Ors., (2004] 2 SCC 657 and Indian Handicrafts
Emporium and Ors. v. Union of India and Ors., (2003] 7 SCC 589]. In any
event, where a difficulty arises in a given situation to construe the statute
upon applying a plain meaning thereof, it is well-settled, the rule of purpose
construction should be applied. [See Swedish Match AB and Anr. v. Securities
and Exchange Board, India and Anr., (2004] 7 SCALE 158]. C
APPLICATION OF RULE:

We have noticed hereinbefore that the functions of the Standing
Committee must be exercised in public interest and, thus, cannot be said to
be a fonnal ones. The members of the Standing Committee must apply their D
mind to the proposal of the Commissioner wherefor they must have before
them the relevant records.

The Commissioner who is a statutory authority is bound to comply with
the said request unless there exist strong and cogent reasons for not doing
so. It is relevant to notice that the First Respondent in his Jetter dated 9.5.2001 E
which incidentally was issued 14 days after the resolution adopted by the
Standing Committee i.e. a day j1:1st prior to the expiry of 15 days did not raise
any contention that the relevant records were not required nor did he say that
the purpose of such approval, the infonnations disclosed in the prescribed
form would subserve the purpose. He further did not say that for one reason F
or the other, which has now been contended in the Counter Affidavit, that
such documents should not be disclosed. A statutory authority, as is well
known, when acts in terms of a statute, is bound by his action. He cannot
supplement or supplant the reason later on by way of Affidavit. Furthermore,
we find that apart from the fact that no such question had been raised by the
Commissioner in his letter dated 9.5.2001, the reasons sought to be assigned G
.. in the Counter Affidavit either are unjustified or irrelevant. A Statutory
Committee should not be denied access to the documents to which it is
entitled to, even according to the State Government. Rule 24 whereupon
reliance has been placed by the State Government in its letter dated 18.5 .200 I
(although may not be a verbatim copy of the extant rules) would also go to H
594 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A show that each member of the Committee is entitled to have access to the r
documents. No privilege had been claimed nor can be claimed in law in the ..
matter of disclosure of such documents. Furthermore, the apprehension
expressed by the Commissioner in his Affidavit as regard the consequences
which may ensue by disclosure of such documents is not correct, having
regard to the fact that the tender had reached the final stage. The contention
B of the Respondent that all informations had been supplied in the proforma in
the light of Chapter V of the Act also appears to be incorrect as in sub-
paragraph (E) of paragraph 5 of the Counter Affidavit, the Respondent himself
stated that Chapter V of the Schedule of the Act relates to execution of the
contract and evidently, thus, would not be applicable for the purpose of grant ~·
C of approval at the threshold. In any event, the information given in a form
is merely a matter of procedure and what matters in a situation of this nature
is the substance thereof. The Commissioner, furthermore, despite referring the
matter to the State Government did not wait for its opinion on the subject.
He invoked the proviso to Section 73(c) much before the opinion of the State
as contained in its letter dated 18.5.2001 reached his hands. Submission of Mr.
D Radhakrishnan that the Appellant has no locus standi to maintain the writ
petition cannot be accepted keeping in view the fact that he was the Chairman
of the Standing Committee and although the Standing Committee itself was
not the writ petitioner. A question involving proper interpretation as regard
the statutory provisions conferring a statutory right on a statutory authority
E vis-a-vis a statutory duty on the part of the Commissioner could be gone into
by the High Court even in a public interest litigation.

We are also not in agreement with the submission of the learned counsel
that Section 451 of the Act provides for an alternative remedy. Even such a
question had not been raised before the High Court. Another submission of
·F Mr. Radhakrishnan to the effect that the matter is still pending before the
State Government having regard to the letter dated 18.5.200 l again does not
appear to have been raised before the High Court, nor such a contention can
be accepted as the State by its letter dated 18.5.2001 had already directed the
Commissioner to disclose the documents before the Standing Committee
G which had asserted its right in terms of its resolution dated 26.4.2001.

We fail to understand as to how the matter can be said to be pending
before the State Government.

For the foregoing reasons, we are of the considered view that the
H impugned judgment of the. High Court cannot be sustained, which is set aside
! • .J
N.G.JOSHiv. COMMR.,MUNl.CORPN.OFKALYANANDDOMBIVALI [S.B.SINHA,J.] 595
accordingly. The First Respondent is hereby directed to place before the A
Standing Committee of the Second Respondent all materials sought for from
the Appellant in terms of its resolution dated 26.4.2001.

The appeal is allowed with the aforementioned directions. In the facts
and circumstances of the case, there shall be no order as to costs.
B
RP. Appeal allowed.

<,

-