Surjitsing S/O. Jeevansing ... vs The Commissioner, Nanded Waghala ...
2007 Latest Caselaw 132 Bom

JUDGMENT

B.R. Gavai, J.

1. All these four petitions challenge the orders passed by the Commissioner of Nanded-Waghala Municipal Corporation (hereinafter referred to as "Corporation" for the sake of brevity), thereby declaring the petitioners to be disqualified under Section 10(1D) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "BPMC Act" for the sake of brevity, as Councillor of the said Corporation.

2. Since the issue involved in all these four petitions is common, the petitions were heard together and are being decided by this common judgment.

3. The petitioners were elected as Municipal Councillors from different wards of the said Corporation in the elections held in the year 2002. In so far as petitioner in Writ Petition No. 2773/2006 is concerned, the petitioner was served with a show cause notice on 28th December 2005, that he had obstructed in the work of removal of encroachment in respect of Community Centre and, therefore, why he should not be removed from the post of Municipal Corporation under Section 10(1D) of the BPMC Act. It is the contention of the petitioner, that on 2nd January 2006, he had demanded copies of certain documents. However, they were not supplied to him. On 3rd January 2006, he submitted reply to the show cause notice denying the allegations made against him. It was also urged that the Commissioner had no jurisdiction to decide the issue. However, vide order dated 29th March 2006, the impugned order came to be passed thereby declaring the petitioner to be disqualified to continue as a Corporator. Hence, he approached this Court.

4. The petitioner in Writ Petition No. 4353/2006 was served with a show cause notice dated 29th December 2005 alleging therein that the petitioner had made unauthorized construction on House No. 1-12-120 and as such, incurred disqualification under Section 10(1D) of the BPMC Act. The petitioner submitted his reply and thereby denied the allegations. The petitioner submitted that the construction was made after obtaining prior permission of the Municipal Corporation. In the said matter also, an objection was taken to the jurisdiction of the Commissioner to decide the same. However, vide order dated 31st May 2006, the petitioner was declared disqualified to continue as a Corporator. Hence, he approached this Court.

5. The petitioner in Writ Petition No. 4354/2006 was issued a show cause notice on 29th December 2005. She had made unauthorized construction on House No. 1-12-154 situated at Town Market, and also obstructed in the removal of construction. By filing reply, the petitioner denied the allegations. However, by order dated 31st May 2006, the petitioner was declared disqualified under Section 10(1D) of the BPMC Act to continue as a Corporator. Hence, she approached this Court.

6. The petitioner in Writ Petition No. 4709/2006 was served with a show cause notice dated 25th January 2006 alleging therein that the petitioner had made encroachment on two blocks adjacent to Block No. 13 and made unauthorized construction on an open plot admeasuring 10 feet x 30 feet by making encroachment. The petitioner by his application dated 1st February 2006 demanded certain documents on the basis of which allegations were made. Vide communication dated 4th February 2006, the request for the said documents was denied on the ground that the report was based on panchanama which was carried out by an officer of the Corporation. The matter was heard on 20th March 2006. It appears that thereafter spot panchanama was conducted by the officer of the respondent / Corporation on 27th March 2006 and video recording was also done, without notice to the petitioner. Thereafter, the impugned order dated 17th June 2006 came to be passed thereby declaring the petitioner to be disqualified under Section 10(1D) of the BPMC Act to continue as a Corporation. Hence, the petitioner approached this Court.

7. Heard Mr. P.V. Mandlik, learned Senior Counsel, and Smt. A.N. Ansari, learned Counsel, appearing on behalf of the respective petitioners; and Mr. M.V. Deshpande and Mr. S.V. Kurundkar, learned Counsel appearing on behalf of the respondent, and Mr. S.D. Kaldate, learned Assistant Government Pleader, appearing on behalf of the respondent / State.

8. The learned Counsel appearing on behalf of the petitioners submitted that the Commissioner has no jurisdiction to declare the petitioners as disqualified under Section 10(1D) of the BPMC Act. Relying on Section 12 of the BPMC Act, it is submitted that it is only the Judge, as defined under the said Act, who has jurisdiction to decide the question as to whether the Councillor in question has incurred disqualification or not. It is submitted that the impugned orders suffer from the vice of jurisdiction and are liable to be quashed and set aside.

9. The learned Counsel appearing on behalf of the petitioners relied on the judgment of learned Single Judge of this Court in the case of Madhukar Deoman Patil and Ors. v. State of Maharashtra and Ors. , in the case of Sajeda Nihal Ahmed v. Malegaon Municipal Corporation, Malegaon and Ors. , and the judgment of Division Bench of this Court in the case of Noorjahan M. Aslam Ansari v. State of Maharashtra and Ors. .

10. As against this, the learned Counsel appearing on behalf of the respondent submitted that the disqualification under Section 10(1D) is automatic. It is submitted that once the concerned authority declares the structure in question to be illegal or unauthorized or declares commission of the act of interference or obstruction by the concerned Councillor, the disqualification would be automatic. Relying on the provisions of Section 267 of the BPMC Act, he submits that the authority to declare an unauthorized or illegal construction is the Commissioner and, therefore, it is only the Commissioner who is empowered to declare a candidate to be disqualified under Section 10(1D) of the BPMC Act. It is submitted that the disqualification under Section 10(1)(ai) and (a-ii) stand on a different footing than the disqualification under Section 10(1A) to (1D). He submits that whereas the jurisdiction to decide an issue of disqualification under the former provisions would be with the Judge under Section 12, the jurisdiction to declare a Councillor to be disqualified under the later provisions would be with the authorities stated in the said Sections themselves.

11. The learned Counsel for the respondent relies on the judgment of Division Bench of this Court in the case of Dattatraya Ramrao Thorat v. State of Maharashtra and Ors. 2003(5) Mh.L.J. 539, and the judgment of Full Bench of this Court in the case of Sunjit Vasant Patil v. State of Maharashtra and Ors. . He has also relied upon judgment of Full Bench of this Court in the case of Ramesh Suresh Kamble v. State of Maharashtra and Ors. , wherein it has been held that the disqualification of the nature as contemplated under Section 10(1C) of the BPMC Act would be automatic on the declaration of the concerned authority, that the caste claim was invalidated. He submits that the provisions of Section 10(1A), (1B), (1C) and (1D) are almost identical and, therefore, relying on the aforesaid judgments, it is submitted that once the authority mentioned in those Sub-sections declares a person to have incurred disqualification, the disqualification operates automatic. He also relies on the judgment of learned Single Judge of this Court in the case of Edwin Francis Britto v. Municipal Corporation of Greater Mumbai and Ors. in support of the proposition, that it is the Commissioner who has authority to declare a person disqualified under Section 10(1D) of the BPMC Act.

12. In view of the rival submissions of the parties, the question that arises for consideration is whether the Commissioner has jurisdiction to declare a Councillor to be disqualified under the provisions of Section 10(1D) or not. To appreciate the rival submissions, it would be necessary to refer certain provisions of the BPMC Act.

Section 10 of the BPMC Act reads thus:

(10) Disqualification for being a councillor -(1) Subject to the provisions of Sections 13 and 404, a person shall be disqualified for being elected and for being a councillor, if such person

(ai) ...

(aii) ...

(1A) A person shall be disqualified for being a councillor, if such person has, at any time during the term of his office, become disqualified, under the Maharashtra Local Authority Member's Disqualification Act, 1986 [Mah. XX of 1987] for being a councillor.

(1B) (a) A person shall be disqualified for being a Councillor or for contesting an election for being elected as a Councillor, for a period of six years, if, an order is passed by the concerned authority, under Section 12 or as the case may be, Section 16, holding that such person was elected as a Councillor to a seat which was reserved for a member belonging to a Scheduled Caste, Scheduled Tribe or a Backward Class of citizens (hereinafter referred to as "a reserved category"), on the basis of a false claim or a false Caste Certificate declaring that such person belonged to such reserved category.

(b) Such period of disqualification shall be computed with effect from the date of passing of such order by the concerned authority.

(1C) (a) Notwithstanding anything contained in Sub-section (1B), a Councillor who has been elected to a reserved seat as mentioned in Sub-section (1B), shall be disqualified for being such Councillor consequent upon the Caste Certificate Verification Committee or any other Competent Authority specified by the State Government for the purpose of scrutiny of the Caste Certificates, declaring the Caste Certificate of such Councillor to be invalid and cancelling the same, on the ground of the same having been based on a false claim or declaration made by such person claiming to be belonging to the reserved category, and thereupon the Councillor shall be deemed to have vacated his office on and from the date of declaration of such Certificate to be invalid and cancellation of the same by the said Committee or the Competent Authority.

(b) On any person having been disqualified for being a Councillor and consequently, his seat as such Councillor having become vacant under Clause (a) the State Government shall, by notification in the Official Gazette, disqualify such person for being elected or being a Councillor for a period of six years from the date of such Order.

(1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or

constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal or unauthorised construction or has by written communication or physically obstructed or tried to obstruct, any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority.

Sections 11 and 12 of the BPMC Act read thus:

11. Disabilities from continuing as councillor -A councillor shall cease to hold office as such if at any time during his term of office he,

(a) becomes disqualified for being a councillor by reason of the provisions of Section 10.

(b) Absents himself during three successive months from the meetings of the Corporation, except from temporary illness or other cause to be approved by the Corporation;

(c) absents himself from, or is unable to attend, the meetings of the Corporation during six successive months from any cause whatever, whether approved by the Corporation or not; or

(d) acts as a councillor or as a member of any committee of the Corporation by voting on, or taking part in the discussion of, or asking any question concerning, any matter in which he has directly or indirectly by himself or his partner any such share or interest as is described in Clause (b) of Sub-section (2) of Section 10 or in which he is professionally interested on behalf of a client, principal or other person.

12. Questions as to disqualification to be determined by the Judge -

(1) If any doubt or dispute arises whether a councillor has ceased to hold office as such under Section 11, such councillor or any other councillor may, and at the request of the Corporation, the Commissioner shall, refer the question to the Judge.

(2) On a reference being made to the Judge under Sub-section (1), such councillor shall not be deemed to be disqualified until the Judge after holding an inquiry in the manner provided by or under this Act determines that he has ceased to hold office.

13. A Division Bench of this Court, in the case of Dattatraya Ramrao Thorat (supra), was considering the validity of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2001 (hereinafter referred to as "2001 Act" for the purpose of brevity), and particularly the provisions of Section 10(4) of the Act. The validity of the Act was challenged on the ground that Section 10(4) of the Act was ultra virus Articles 14 and 15 of the Constitution of India. It was submitted that Section 10(4) of the 2001 Act is in conflict with Section 16(2A) and Section 12 of the BPMC Act. It was further argued that since Article 243ZG of the Constitution specifically provided that no election to any municipality shall be called in question except by an election petition presented to such authority in such manner, as is provided by or under any law made by the Legislature of a State, there cannot be a subsequent statute framed by the Legislature which would virtually result into taking away this guarantee provided by the Constitution.

Sub-section 4 of Section 10 of the 2001 Act reads thus:

(10) Benefits secured on the basis of false Caste Certificate to be withdrawn -

(1) ...

(2) ...

(3) ...

(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, Cooperative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively.

The contentions raised in those petitions were that an elected councillor can be unseated only by way of Election Petition even if his caste is invalidated by Verification Committee. The Division Bench, in para 37 of the judgment, observed thus:

Sub-section (4) of Section 10 of the Act is, in fact, nothing short of an additional disqualification provided by the Legislature within the meaning of Section 10(1)(a-ii)(ii) of the Corporations Act so that Section 11 of the Corporations Act operates and the councillor shall cease to hold office automatically. The disqualifications set out under Section 10 and their consequences, as set out under Section 11, are independent of the remedy of election petition under Section 16(1) of the Corporations Act so as to unseat the councillor/corporator. For example, if an elected councillor has sustained the disqualification within the meaning of Sections 10(1)(a), (b) and 10(1A) the provisions of Section 11 therein shall automatically apply and the councillor shall cease to hold office forthwith, it is not contemplated that such a disqualified Corporator is required to be unseated by filing an election petition. The same logic must be made applicable to a disqualification sustained under Section 10(1)(a-i) or (a-ii) of the Act.

...

Observing thus, the Division Bench upheld the validity of the provisions of 2001 Act and particularly Section 10(4) of the said Act.

14. A Full Bench of this Court, in the case of Sujit Vasant Patil (supra), held that the effect of cancellation of social status certificate is that the candidate automatically loses his seat. It was argued before the Full Bench, that the provisions of Section 10(4) of 2001 Act were ultra virus Article 243-V of the Constitution. Negativing this contention, the Full Bench observed in para 19 of the judgment, thus:

It is further to be seen here that even if it is assumed that Section 10(4) attaches disqualification for continuing as a member of Local Self Government, in our opinion, in view of the provisions of Article 243-V of the Constitution, competence of the State Legislature to enact such a law cannot be disputed. Article 243-V of the Constitution reads as under:

243-V. Disqualifications for membership-(1) A person shall be disqualified for being chosen as, and for being a member of a Municipality

(a) If he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned; Provided that; no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age, of twenty-one years;

(b) If he is so disqualified by or under any law made by the Legislature of the State.

(2) If any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. Article 243-V empowers the State Legislature to prescribe disqualification for a person to continue to be a member of the Local Self Government. Section 10(4) says that in case a person who has been elected to a seat reserved for backward class of citizens shall be disqualified to continue to occupy that seat if the caste certificate issued by the Competent Authority in his favour is held to be invalid by the Scrutiny Committee. Article 243-V also empowers the State Legislature to constitute an authority to decide this question. We find that the view that has been taken by the Division Bench of this Court in the case of Dattatraya Ramrao Thorat v. The State of Maharashtra and Ors. 2003(5) Mh.L.J. 539 : 2002(4) All MR 807 is correct.

The same view was taken by the Full Bench of this Court in the case of Ramesh Suresh Kamble (supra). Relying on these judgments, it is contended that the provisions of Section 10(1D) and Section 10(1C) are identical and since it has been held by the decisions of this Court by the Division Bench and two Full Benches, that the disqualification in case of a candidate who has contested from reserved category is automatic once his caste claim is invalidated, by similar analogy, it is required to be held that once a declaration is made that the councillor has made an illegal or unauthorized construction or interfered or obstructed in removal of such a construction, the disqualification should be automatic. It is argued by taking support from the case of Sujit Vasant (supra), that Article 243-V of the Constitution empowers the State Legislature to constitute an authority to decide this question and it is submitted that it is the Commissioner who is the authority who has been constituted to decide this question regarding disqualification under Section 10(1D) by virtue of Article 243-V of the Constitution. In this respect, reliance is also placed on Section 267 of the BPMC Act.

15. The question that would be required to be considered is as to whether ratio of the aforesaid judgments of this Court which hold that once caste claim of a councillor is invalidated, he shall be automatically seized to be councillor, would also be applicable in case of a councillor who is sought to be disqualified on the ground that he is declared to have made an illegal or unauthorized construction or interfered or obstructed in removal of such construction. From the perusal of Sub-section 4 of Section 10 of 2001 Act, it can clearly be seen that there is an express provision in the said Act. A person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, Cooperative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, etc., by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively.

It can thus be seen that a person who has contested election on the basis of caste certificate from a reserved category, if found not to be belonging to that caste or tribe and his caste claim is invalidated, he will be liable to be disqualified automatically. It is to be seen that prior to arriving at such a declaration, a complete procedure is prescribed under the 2001 Act. Not only this, but the competent authority, appellate authority and Scrutiny Committee is empowered with all powers of the Civil Court while determining the issue. It can thus be seen that only after procedure prescribed under 2001 Act, after holding due enquiry, caste claim of a person can be invalidated and upon such invalidation, the disqualification would be invited.

16. Sub-sections 1B, 1C and 1D of Section 10 of the BPMC Act were brought into different enactments concerning Municipal Law vide Maharashtra Act 11 of 2002. It can be seen that the provisions of Section 10(4) of the 2001 Act are lifted into BPMC Act by virtue of Sub-section 1C of Section 10 of the said Act. It can be seen that the provisions are almost identical. It can further be seen that there is a clear indication in Section 10(1C) that upon finding of the competent authority and declaration that the caste certificate of such councillor is invalidated and on cancellation of the same, such a councillor is deemed to have vacated his office. Not only this, there is a mandate on the State Government to issue a notification in the official gazette disqualifying such person for being elected as councillor for a period of six years from the date of such order.

17 It can be seen from Sub-clause 2 of Article 243-V of the Constitution of India, that if any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. It can, therefore, be seen that in so far as the disqualification on the ground of invalidation of caste claim of a person is concerned, by 2001 Act, the authority so also, procedure has been prescribed.

18. In so far as present cases are concerned, it is the contention of the learned Counsel for the petitioners, that in view of Section 267 of the BPMC Act, it has to be construed that the concerned authority mentioned in Section 10(1D) would be the Commissioner. However, it is to be noted that the disqualification as provided under Section 10(1D) is twofold. The disqualification would be invited firstly if a councillor has directly or indirectly been responsible for, or helped in his capacity as such councillor in, carrying out such illegal or unauthorised construction. Secondly, the disqualification would be invited if such a councillor by written communication or physically obstructed or tried to obstruct, any competent authority from discharging its official duty in demolishing any illegal or unauthorised structure.

19. Perusal of Section 267 of the BPMC Act would reveal that the Commissioner is only empowered to come at a conclusion that the execution of any work is unlawfully commenced or is being unlawfully carried on upon any premises and thereafter he may require a person to stop the same forthwith. However, it can be seen from the perusal of Section 10(1D), that a councillor could be liable for disqualification not only if he directly or indirectly is responsible for carrying out unauthorized construction but also for helping the same in his capacity as a councillor. Not only this, but disqualification is also invited when a councillor is found to be obstructing any demolition of any illegal or unauthorized structure. I am unable to find out any power with the Commissioner to issue such a declaration. The power is restricted only to satisfy himself regarding any unlawful construction and to issue direction for removal of the same. It can be seen from Sub-clause 2 of Article 243-V of the Constitution, that the legislature is not only required to designate an authority to decide the question but is also required to prescribe the manner in which it is to be done. From the perusal of the BPMC Act, it cannot be seen that there is any procedure empowering the Commissioner to issue the declaration of the nature specified under Section 10(1D). If the contention of the learned Counsel for the respondent / Corporation is to be accepted, then it would mean that the Commissioner has unbridled, unguided and uncanalized powers to issue a declaration as is contemplated under Section 10(1D) of the BPMC Act. That cannot be intention of the legislature. If that is permitted, it would be permitting the exercise of arbitrary powers by the Commissioner. For instance, in one of the petitions viz. Writ Petition No. 4709/2006, it can be seen that the powers are exercised in totally arbitrary manner by giving goby to the principles of natural justice. It can be seen from the uncontroverted allegations, that though the matter was heard on 20th March 2006, the officers of the Corporation have executed spot panchanama without notice to the petitioner and have done video recording and on the basis of the said panchanama, the impugned order is passed. It is thus clear that at least in the said case, the procedure unknown to the principles of natural justice has been followed. I, therefore, find that the contention, that the Commissioner is empowered to issue a declaration under Section 10(1D) is not justified. I am fortified in taking this view by the judgment of learned Single Judge of this Court in the case of Madhukar Deoman Patil and Ors. (supra), and the judgment of Division Bench of this Court, in the case of Noorjahan M. Aslam Ansari (supra).

20. In so far as reliance placed on the judgment of learned Single of this Court in the case of Edwin Francis Britto (supra), is concerned, no doubt in the said case, the learned Single Judge has upheld the declaration of the Additional Commissioner, that the councillor concerned stood disqualified on declaration by the Additional Commissioner that his construction was unauthorised. However, from the perusal of the judgment, it is clear that the issue raised in the present petitions was not raised. I, therefore, find that the said judgment would not be of much assistance to the case of the petitioners.

21. I am, therefore, of the considered view that it is only the authority which is prescribed under Section 12 of the BPMC Act which would be empowered to decide the question as to whether the disqualification as contemplated under Section 10(1D) has been incurred by any councillor or not. It is to be noted that in so far as proceedings under Section 12 are concerned, a reference is required to be made to the Judge under Sub-section 1 of Section 405 of the said Act. It is to be further noted that the said reference will have to be decided in accordance with the rules as the State Government may from time to time makes after consultation with the High Court under Sub-section 2 of Section 434 of the BPMC Act. It is to be noted that the provisions of disqualification are penal in nature. An office of the elected councillor cannot be permitted to be vacated in a casual manner at the whims and caprices of the officer.

22 The Apex Court, in the case of Sadashiv H. Patil v. Vithal D. Teke and Ors. 2000(1) Mh.L.J. 312, had an occasion to deal with a provision analogous to Section 10(1A) of the BPMC Act, regarding disqualification under the provisions of Maharashtra Local Authority Members' Disqualification Act, 1987. The Apex Court has observed thus:

A finding as to disqualification under the Maharashtra Local Authority Members' Disqualification Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act.

23 For the aforesaid reasons, I am of the considered view that the Commissioner is not an authority prescribed by the State Legislature to determine the question as to whether a councillor has become subject to the disqualification under Section 10(1D) of the BPMC Act, as mandated by Article 243-V of the Constitution of India. It is, thus, only the Judge as defined under Section 12 of the BPMC Act who would be empowered to decide the said question after an enquiry which would be required to be held in the manner prescribed.

24. In the result, the Writ Petitions are allowed.

The impugned orders dated 29-3-2006 (in WP No. 2773/2006), 31-5-2006 (in WP 4353/2006), 31-5-2006 (in WP No. 4354/2006) and 17-6-2006 (in WP No. 4709/2006), passed by the Commissioner of Nanded-Waghala Municipal Corporation, disqualifying the petitioners to act as councillors under Section 10(1D) of the Bombay Provincial Municipal Corporations Act, 1949, are quashed and set aside.

However, it is made clear that if any of the parties including the petitioners and the respondents desire to refer the issue under Section 12 of the BPMC Act, nothing observed herein would be considered to have been observed on the merits of the matter.

25. Rule is made absolute in the above terms with no order as to costs.