Sree Raghuthilakathirtha Sreepadangalavaru
Swamiji Vs. The State of Mysore & Ors  INSC 153 (18 April 1962)
18/04/1962 GAJENDRAGADKAR, P.B.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1966 AIR 1172 1963 SCR (2) 226
Landlord and Tenant-Rent-Enactment providing
for fixation of maximum rent-Constitutional validity-Notification sixing
standard rent-Validity-Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. 67
of 1948), s. 6-Mysore Tenancy Act, 1952 (Mysore 13 of 1952), ss. 6(1) (2),
12-Constitution of India, Art. 14,19(1) (f), 26,31,31A.
The Mysore Tenancy Act, 1952, was enacted,
inter alia, for the purpose of regulating the law which governed the relations
of landlords and tenants of agricultural lands. Subsection (1) of s. 6 of the
Act provided :
"Notwithstanding any agreement, usage,
decree or order of a court or any law, the maximum rent payable in respect of
any period...... by a tenant for the lease of any land shall not exceed
one-half of the crop or crops raised on such land or its value as determined in
the prescribed manner". "The Government may, by notification in the
Mysore Gazette, fix a lower rate of the maximum rent payable by the tenants of lands
situate in any particular area or may fix such rate on any other suitable basis
as they think fit". In exercise of the powers conferred by s.6(2), the
Government of Mysore issued a notification purporting to fix the standard rent
for land 227 specified in Sch. I which dealt with Maidan areas i.e., lands on
the plains at one third of the produce, and for those specified in Sch.II which
dealt with Malnad areas i.e., lands on hilly tracts at one fourth.
The appellant who owned garden land in the
district of Shimoga in Mysore State and who had leased out the land to a
tenant, challenged the validity or s 6(2) of the Act as well as the
notification on the rounds that they contravened Arts. 14, 19(1) (f), 26, 31
and 31 A of the Constitution of India, and that, in any case, the notification
was inconsistent with s. 6(1) inasmuch as it was based on s.
6(2) which being an exception to S. 6(1)
could not be allowed to swallow up the general rule and that was precisely what
the notification purported to do. The Mysore Tenancy Act was modelled on the
pattern of the Bombay Tenancy and Agricultural Lands Act, 1948, and the
provisions of s.6 of the Mysore Act were. similar to s.6 of the Bombay Act. In
Vasantlal Maganbhai Sanjanwala v. The State of Bombay,  1. S. C. R. 341 ;
it was held that s. 6 of the Bombay Act was vaild.The appellant contended that
the aforesaid decision was not applicable because there were difference,;
between the two Acts inasmuch as (1) in the preamble to the Bombay Act it was
stated that it was passed inter alia for the purpose of improving the economic
and social conditions of peasants and this was not mentioned in the Mysore Act,
(2) unlike the Mysore Act, the Bombay Act, made a distinction between the
irrigated and non-irrigated land (3) the Bombay Act while prescribing a maximum
took the precaution of also prescribing a minimum and the absence of the latter
provision in the Mysore Act made a I material difference.
Held, that : (1) the Mysore Tenancy Act,
1952, was substantially similar to Bombay Tenancy and Agricultural Lands Act,
1948, and that the question as to be whether s. 6 (2) of the Mysore Act was
valid must be held to be covered by the decision the Vasantlal Maganbhai
Sanjanwala v. The State of Bombay  1 S. C. R. 341. Accordingly, s.6(2) of
the Mysore Tenancy Act, 1952, was valid.
(2) on its true construction, s. 6(1) of the
Mysore Tenancy Act, 1952, wag intended to apply to all agricultural leases
until a notification was issued under s.6(2) in respect of the areas where the
leased lands might be situated ; s 6(2) could not, therefore, be considered as
an exception to s.6(1) Consequently, the notification in question was valid,
228 Macbeth v. Ashley, (1874) L.R. 2 Sc. App. 352, considered and held
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 537 of 1960.
Appeal from the judgment and order dated
December 23, 1959, of the Mysore High Court in Writ Petition No. 229 of 1955.
S. S. Shukla and E. Udayarathnam, for the
H. N. Sanyal, Additional Solicitor-General of
India, R. Gopalakrishnan and P. D. Menon, for the respondents Nos. 1 and 2.
R. Gopalakrishnan, for respondent No. 3 1962.
April 18. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This
appeal arises from a writ petition filed by the appellant, Raghutilaka Tirtha
Sripadangalavaru Swamiji, in the Mysore High Court challenging the validity of
s. 6 (2) of the Mysore Tenancy Act, 1952 (XIII of 1952) hereafter called the
Act, and the notification issued under the said section on March 31, 1952.
The appellant's case as set out in his writ
petition before the High Court was that the impugned section as well as the
notification issued under it infringed his fundamental rights guaranteed under
Arts. 14, 19 (1) (f), 26, 31 and 31A of the Constitution. This contention has
been rejected by the High Court and it has been hold that the section and the
notification under challenge are valid and constitutional.
The appellant then applied for a certificate
from the High Court, both under Art. 132 and Art. 133 of the Constitution.
The High Court granted him a certificate
under Art. 133, but refused to certify the, case under Art. 132. There 229
after the appellant applied to this Court for liberty to raise a question about
the interpretation of the Constitution and permission has been accorded to the
appellant accordingly. That is how the present appeal has come to this Court.
The appellant owns 6 acres and 30 ghuntas of
garden land in village Mulbagilu in Taluka Thirthahalli in the district of
Shimoga. Respondent No. 3, Ramappa, Gowda, is his tenant in respect of this
land. A registered lease deed was executed in favour of respondent No. 3 by the
appellant on March 11, 1943; under this document respondent No. 3 undertook to
pay 82-1/2 maunds of areca in addition to Rs. 17/12-in cash as rent per year.
In 1955 respondent No. 3 filed an application before respondent No. 2, the
Tehsildar of Thirthahalli, under section 12 of the Act and claimed that the
standard rent payable by him to the appellant should be fixed (Tenancy case 85
of 1955-56). Meanwhile respondent No. 1, the Government of Mysore, had, in
exercise of the powers conferred on it by s. 6 of the Act, issued a
notification No. R9. 10720/- L. S. 73-54.2 on March 28/29, 1955. This notification
purported to fix the standard rent for lands of the category to which the
appellants land belongs at one third of the produce. Feeling aggrieved by this
notification the appellant filed the present writ petition in the High Court on
December 16, 1955, His case was that s. 6 (2) as well 'as the notification
issued under it were ultra vires, invalid and inoperative.
Before dealing with the contentions raised
before us by Mr. Shukla on behalf of the appellant it would be necessary to
consider very briefly the scheme of the Act. The Act has been passed by the
Mysore Legislature because it was thought necessary to regulate the law which
governs the relations of landlords and tenants of agricultural lands and to
regulate and impose restrictions on the 230 transfer of agricultural lands,
dwelling houses, sites and lands appurtenant thereto belonging to or occupied
by agriculturists in the State of Mysore except Bellary District and to make
provisions for certain other purposes appearing in the Act. That is the recital
contained in the preamble to the Act. It would thus be seen that the primary
object of the Act is to afford much needed relief to the agricultural tenants
by regulating their relations with their landlords and in that respect the Act
bears a very close resemblance to the provisions of the Bombay Tenancy and
Agricultural Lands Act, LXVII of 1948. Indeed, the material provisions of the
Act with which we are concerned are substantially similar.
Chapter I of the Act deals with the
preliminary topic of defining the relevant terms used in the Act. Chapter II
contains general provisions regarding tenancies. Section 4 defines persons who
are deemed to be tenants. Section 5 provides that no tenancy would be for less
than five years.
Section 6 deals with the maximum rent payable
by the tenants. Section 8 provides for the calculation of rent payable in kind
in the manner indicated by cls. (i) and (ii) and prohibits the landlord from
recovering or receiving rent calculated in any other manner. Under a,. 9 receipt
of rent in terms of service or labour is prohibited. Section 11 abolishes all
'cases and s. 10 enables the tenants to claim a refund of rent which has been
recovered in contravention of the provisions of the Act. Section 12 then deals
with enquiries with regard to reasonable rent. Sub-section (3) of s. 12 lays
down five factors which have to be borne in mind by the authority dealing with
an application for the fixation of reasonable rent. Section 13 is a corollary
of s. 12 and authorises the reduction of rent after reasonable rent has been
determined under s. 12. Section 14 deals with suspensions or remission of rent.
Section 15 231 provides for termination of tenancy. Under s. 18 a statutory bar
is created against the eviction of a tenant from a dwelling house and under s.
19 the tenant has the first option of purchasing the site on which he has built
a dwelling house. Similarly, under s. 22 the tenant is given an option of
purchasing the land leased out to him. section 24 deals with some cases where
relief can be granted against termination of tenancy and s. 25 with relief
against termination of tenancy for non-payment of rent. Section 30 provides for
the procedure to recover rent and s. 31 protects the tenants' rights under any
other law. Chapter III deals with the procedure and jurisdiction of Amildar and
provides for appeals against the decisions of the Amildar.
Chapter IV deals with offences and prescribes
penalties for them and Chapter V contains miscelaneous provisions. That, in its
broad outlines, is the nature of the provisions made by the Act in order to
give relief to the agricultural tenants.
Section 6 with which we are directly
concerned in the present appeal reads thus:- "6. (1) Notwithstanding any
agreement, usage, decree or order of a court or any law, the maximum rent
payable in respect of any period after the date of coming into force of this
Act by, a tenant for the lease of any land shall not exceed one-half of the
crop or crops raised on such land or its value as determined in the prescribed
Provided that where the tenant does not
cultivate the land the rent payable shall be the reasonable rent to be fixed by
(2) The Government may, by notification in
the Mysore Gazette, fix a lower rate of the maximum rent payable by the tenants
of lands 232 situate in any particular area or may fix such rate on any other
suitable basis as they think fit." As we have already indicated, the
provisions of the two sub- clauses of a. 6 are substantially similar to the
provisions of s. 6 ( 1) and (2) of the corresponding Bombay Act.
Indeed, it would be correct to say that Act
with which we are concerned has been modelled on the pattern of the Bombay Act
and has adopted most of its important provisions. The validity of s. 6 of the
Bombay Act was challenged before this Court in "Vasantal Maganbhai
Sanjanwala v. The State of Bombay (1)" and it has been held that the said
section is valid. The reasons given by this Court in upholding the validity of
is. 6 of the Bombay Act apply with equal force in support of the validity of s.
6 of the Mysore Act and so the point raised by the appellant in challenging the
validity of the impugned section is really covered by the earlier decision of
Mr. Shukla, however, contends that the
preamble to the Act differs from the preamble of the Bombay Act inasmuch as the
latter preamble refers to the fact that that Act was passed inter alia for the
purpose of improving the economic and social conditions of peasants and
ensuring the full and efficient use of land for agriculture and so
considerations of social justice on which the validity of the corresponding
provision of the Bombay Act was sought to be sustained cannot be invoked in
dealing with the present appeal., We are not impressed by this argument. It is
true that the preamble to the Act merely says that the Act was passed because
it was though necessary to regulate the law which governs the relations of
landlords and tenants of agricultural lands and it does not refer to the
requirement of social justice or does not specifically mention the object of
ensuring the full and efficient (1)  1 S.C.R. 341.
233 use of land for agriculture. But in
dealing with a law which has been passed for the purpose of effecting an
agrarian reform it would be pedantic to ignore the essential basis of its
material provisions merely on the ground that the concept of social justice on
which the said provisions are based has not been expressly stated to be one of
the objects of the Act in the preamble. We have already examined briefly the
broad scheme of the Act and it is obvious that the important provisions of the
Act are intended to improve the economic and social conditions of the
agricultural tenants and so the policy of social justice can be safely said to
be writ large on the face of the Act.
Therefore, we do not think that the argument
based upon the fact that the preamble does not refer to social justice
distinguishes s. 6 of the Act from the corresponding section of the Bombay Act.
Then it is urged that unlike the Mysore Act,
the Bombay Act has distinguished between irrigated land and non-irrigated land
and has provided by s. 6(1) that the maximum rent payable in the case of
irrigated land shall not exceed one- forth and in the case of other lands shall
not exceed one- third of the crop of such land or its value as determined in
the prescribed manner. It is true that s. 6(1) of the Act makes no such
distinction between irrigated and non- irrigated lands. But that, in our
opinion, is not a matter of essential importance. Like s. 6(1) of the Bombay
Act s. 6(1) of the Act also intends to provide for a maximum ceiling beyond
which agricultural rent will not be allowed to soar and so far as the fixation
of a maximum ceiling of rent is concerned it is not essential that a
distinction must necessarily be made between. irrigated lands and non-
irrigated lands. It must be borne in mind that what the section does is to
prescribe the maximum and not to provide for a minimum In prescribing a maximum
it may be open to the Legislature to provide for a maximum which would be 234
common to all lands whether irrigated or not, That is why we are not inclined
to attach any importance to the point that in the absence of classification of
land, while prescribing a maximum s. 6(1) suffers from any infirmity.
Then it is argued that the Bombay Act while
prescribing a maximum has taken the precaution of also prescribing a minimum
and the absence of the latter provision makes a material difference. This
argument is clearly misconceived.
It is true that s. 8 of the Bombay Act which
had been inserted by the Bombay Legislature in 1956 did provide for the maximum
and the minimum rent, but as the decision of this Court in the case of
Sanjanwala (1) shows in upholding the validity of the impugned provision of the
Bombay Act no reliance was placed upon the fixation of the minimum rent.
Indeed, the minimum rent was fixed subsequent
to the decision of the High Court which was under appeal before this Court in
that case and the fact that a minimum had been prescribed subsequently has been
only incidentally mentioned in the judgment. Therefore the absence of a
provision fixing the minimum rent does not introduce any infirmity in the
impugned provision. We are, therefore, satisfied that the case of the impugned
section is substantially similar to the case of s. 6 of the Bombay Act with
which this Court was concerned in the case of Sanjanwala (1) and the challenge
to the validity of section in the present appeal must, therefore, be held to be
covered by the said decision.
That takes us to the question as to whether
the impugned notification is invalid. This notification has been issued in
exercise of the powers conferred on the State Government by s. 6(2) and it
provides that the rate of maximum rent payable by the tenants of lands situated
in the areas specified in Schedule I and Schedule If to the notification 235
shall be one-third and one-fourth respectively of the crop or crops raised on
such lands with effect from the year commencing on April 1, 1955. Schedule I
deals with Maidan areas in which the maximum rent or rents shall be one-third
of the, crop or crops and Schedule If deals with Malanad areas in which the
maximum rate of rent shall be one-fourth of the crop or crops raised.
It appears that the classification of lands
between Maidan a Malanad lands is well known in Mysore. Maidan lands are lands
on the plains, whereas Malanad are lands on hilly tracts. The distinction
between the two categories of lands takes into account the different conditions
of rain fall, the different nature of the cultivation, the difference' in the
living conditions and the availability of labour and the difference in the
quantity and the quality of the produce.
It is true that the notification does not
prescribe the lower rate of the maximum rent area by area in the sense of
district by district, but it purports to prescribe the said maximum by
classifying the land in the whole of the State in the two well-known categories
of Maidan and Malanad lands.
It is urged by Mr. Shukla that the impugned
notification is invalid, because it is inconsistent with the provisions of s.
6(1). The argument is that s. 6(1) lays down a general rule and s. 6(2)
provides for an exception to the said general rule. On that assumption it is
contended that an exception cannot be allowed to swallow up the general rule
and that is precisely what the notification purports to do.
This argument is based on the decision of the
House of Lords in Macbeth v. Ashley It would be noticed that this argument
raises the question about the construction of the two sub- clauses of s.6.
Before addressing ourselves to that question, (1)  L.R. 2 SC. App. 352.
236 however, we may refer to the decision of
the House of Lords on which the argument is based.
It appears that II o'clock at night was the
hour appointed for closing public-houres in Scotland, although in special
cases, and for well considered reasons, a deviation was allowed with reference
to any particular locality really requiring it. The Magistrates of Rothesay had
ordered for closing at 10 instead of 11 and the effect of the order was that it
embraced every public-house in the burgh. The House of Lords held that the
Magistrates order .was ultra vires.
The statutory provision with which the House
of Lords was concerned was contained in the Act of Parliament, 25 and 26 Vict.
c. 35. As a result of these provisions 11 o'clock at night was appointed to be
the hour for closing public houses. There was however, a proviso which said
inter alia that in any particular locality requiring other hours for opening
and closing inns, hotels, and public houses it shall be lawful for such
justices and Magistrates respectively to insert in the schedule such other
hours, not being earlier than six or later than eight o'clock in the morning
for opening,, or earlier than nine o'clock or later than eleven o'clock in the
evening for closing the same as they shall think fit. It is in pursuance of the
authority conferred on them by the said proviso that the Magistrates of
Rothesay passed an order embracing every public-house in the burge by which a
deviation from the statutorily fixed hour was effected.
In dealing with the validity of the order
issued by the Magistrates Lord Chancellor Lord Cairns expressed his opinion that
if the exception is to swallow up the rule it ceases, of course, to be an
exception at all and that which might fairly have been an exercise of
discretion becomes no exercise of the kind of discretion mentioned in the Act
of Parliament. It was for this reason that the order 237 issued by the
Magistrates was declared to be ultra vires.
It was conceded that the Magistrates had discretion,
but the Lord Chancellor observed that the words "conferring
discretion" expressly bear with reference to a particular locality and not
with the whole burgh. What should be true about the whole burgh had been
treated as a matter reserved for and determined by the consideration of the
Imperial Parliament. The Lord Chancellor did not express any opinion on
the-question as to whether the discretion vested in the Magistrates can be
exercised by them more than once but without deciding that point he held that
the order of the Magistrates really amounted to evading an Act of Parliament.
In substance, the Magistrates had once for
all attempted with regard to all the public-houses in their district to change
the rule laid down by the Act of Parliament. Lord Chelmsford, who concurred
with the opinion expressed by the Lord Chancellor, rested his conclusion on the
ground that it was impossible to say that the limits which the Magistrates had
defined could be called a particular locality within burgh and so it appeared
that what the Magistrates had done was something very like an attempt to evade
the Act of Parliament. According to Lord Selborne, the participle
"requiring" is connected with the substantive "locality"
and therefore it must be a requirement arising out of the particular
circumstances of the place. That is why Lord Selborne thought that the
Magistrates must in exercise of an honest and bona fide judgment, be of opinion
that the particular locality which they ex(opt from the ordinary rule is one
which, from its own special circumstances, requires that difference to be made.
It would thus be seen that though the general
basis of the decision, as it has been expressed by Lord Cairne, appears to be
that the exception cannot swallow up the rule one of the reasons which 238
ultimately influenced the decision was that the discretion had to be exercised
bona fide and after due deliberation in respect of a particular locality and
that the manner in which the order was issued indicated that the requirements
of the particular localities had not been duly examined by the Magistrates. It
is significant that though Lord Cairns posed the question as to whether the
discretion in question can be exercised more than once, he did not choose to
answer it; but the trend of the opinions expressed by the Law Lords during the
course of their speeches may seem to suggest that the discretion cannot be
exercised more than once and in any case, it must be exercised by special
reference to the particular locality as indicated by the proviso. If an order
is made in respect of the whole of the burgh, it cannot be said that it has
been passed after exercising due discretion in respect of the requirements of
each particular locality. With respect, if the discretion is given to the
Magistrates to provide for a departure from the rule prescribed by the general
provision by reference to particular localities, it is not easy to see why the
said discretion cannot be exercised more than once. Indeed, situations may
arise when the Magistrates may have to consider the matter from time to time in
respect of different localities and if it appears to the Magistrates considering
the cases of different localities that in regard to each one of them a
departure from the general rule should be made, it is not easy to follow why
the proviso does not justify different orders being passed by the Magistrates
in respect of different but particular localities. On the other hand, if the
main provision is construed to mean that the time prescribed by it was to apply
generally only with certain exceptions contemplated by the proviso, that would
be a different matter. However, it is not necessary for us to pursue this point
further and to express a definite 239 opinion on the general proposition that
an exception cannot swallow the general rule because, as we will presently
show, this rule cannot be applied to the provisions of s. 6 at all. In this
connection we may, however, point out that both in Max- a well and in Craies,
the decision in Macbeth's case (1) appears to have been treated as an authority
for the proposition that an order like the one passed by the Magistrates in
that case amounted to an evasion of the Parliamentary statute, because it was
not in honest and bona fide exercise of the discretion vested in them. (Maxwell
on Interpretation of Statutes, 11th Edn., p. 121, and Craies on Statute Law,
5th Edn., p. 75.) But assuming that the proposition for which Mr. Shukla
contends on the authority of the decision in Macbeth's case (1) is sound, does
it apply to s. 6 at all and the answer to this question will depend upon the
construction of the provisions contained in the two sub-clauses of s. 6. It
would be noticed that s. 6(1) declares a maximum beyond which no landlord can
recover rent from his tenant. In other words, as soon as the Act came into
force a ceiling was fixed beyond which the landlord cannot recover rent from
his tenant even though it may be justified by agreement, usage, decree or order
of a court or any other law, The provisions of this sub-section apply
individually and severally to all agricultural leases and govern the relations
of individual landlords and tenants in respect of payment of rent by the latter
to the former. The fixation of the maximum by sub-s. (1) is really not intended
to lay down a general rule as to what a landlord should recover from his tenant
and it is in that sense alone that its relation to the provisions of sub-s. (2)
must be judged. In that connection we may point out that there is one proviso
to (1) (1874) L. R. 2 S.C App 352.
240 cultivate the land and it lays down that
in their case the rent shall be reasonable rent to be fixed by the Amildar.
Sub-section (2) is so worded that in terms it
cannot be said to be a proviso to sub-s. (1) add in substance it is not such a
proviso nor is it an exception to sub-s. (1). Having prescribed the maximum
beyond which agricultural rent cannot go under a. 6(1) the legislature has
premitted the Government to fix a lower rate of the maximum rent in respect of
lands situated in particular areas. The Government has also been authorised to
fix the payment of rent on any other suitable basis as it thinks fit. In other
words, the authority conferred on the Government is either to fix a lower rate
or to fix any other basis on which the rent could be fixed. The provision is an
independent provision and so the two sub-sections must be read as different,
independent, though coordinate, provisions of the Statute. It would, we think,
be erroneous to treat sub-s. (2) as a proviso or exception to sub-s. (1).
Whereas sub.a. (1) deals with and applies to all leases individually and
prescribes a ceiling in that behalf, sub-s. (2) is intend to prescribe a
maximum by reference to different areas in the State. The object of both the
provisions is no doubt simi- lar but it is not the same and the relation
between them cannot legitimately be treated as the relation between the general
rule and the proviso or exception to it.
The argument that by issuing the notification
the Government has purported to amend a. 6(1) is, in our opinion, not well-
founded. As we have already seen, a. 6(1) is intended to apply to all the
agricultural leases until a notification is issued under a. 6(2) in respect of
the areas where the leased lands may be situated. It is not suggested that 241
under s. 6(2) it is necessary that the Government must fix the lower rates by
reference to individual lands and so there can be no doubt that even on the
appellant's argument it would be competent to the Government to fix lower
rents, say district wise. If instead of prescribing the lower rates
districtwise after classifying the lands into two categories which are well
recognised, the Government prescribed the rates by reference to the said
categories of lands throughout the State, we do not see how the said
notification can be said to be inconsistent with s. 6(2) or with s. 6( 1)
either. The scheme of s. 6 does not seem to postulate that after the
notifications are issued under s. 6(2) some area must inevitably be left to be
covered by s. 6(1). Such an assumption would be inconsistent with the object
underlying the said provision itself. What s. 6(1) has done is to fix a general
ceiling apart from the areas and without considering the special factors
appertaining to them. Having thus fixed a general ceiling the Legislature
realised that the ceiling may have to be changed from area to area and so power
was conferred on the Government to fix the ceiling at a lower rate, The
Government having examined the matter came to the conclusion that the more
equitable and reasonable course to adopt would be to divide the agricultural
lands into two well-known categories and fix the ceiling by reference to them.
Now in the very nature of things, the Legislature must have anticipated that
the exercise of the power under a. 6(2) might cover all the areas in the State
and that may mean that the general ceiling prescribed by s. 6(1) may not apply
to any land which is covered by the notification. If s. 6(1) is not a general
rule and s. 6(2) is not an exception to it, then the consequence flowing from
the issue of the impugned notification cannot be characterised as an exception
swallowing up the 242 general rule. That, in substance, is the view which the
Mysore High Court has taken in the matter and we think that the said view is
In the result., the appeal fails and is
dismissed with costs.