HARYANA STATE ELECTRICITY BOARD vs DINESH KUMAR

WHETHER the terminus a quo for determining the period of limitation prescribed by Sec. 15 of the Consumer Protection Act, 1986, beings from the date of the order itself or from the date of the receipt of a copy thereof communicated under Rule 4(10) of the Haryana Consumer Protection Rules, 1988? This is the significant threshold question in this set of three closely connected appeals (First Appeal Nos. 16, 17 and 18 of 1990), all preferred by the Haryana State Electricity Board. This order will govern all of them.

THE relevant facts giving rise to the issue aforesaid may be representatively noticed with relative brevity from First Appeal No. 16 of 1990 (Haryana State Electricity Board v. Dinesh Kumar). THE respondent along with his father had jointly preferred a complaint before District Forum, Hissar, with regard to the excessive demands raised against him for electricity charges. THE District Forum partly allowed the respondent''s claim and directed that the demand of Rs. 900/- be reduced with regard to the electricity consumed by two fans and the relevant bill amended accordingly. THE order of the District Forum is dated the 25th July, 1990. THE present appeal was filed before the Commission on the 21st September, 1990 and in the heading of the Grounds of Appeal it was mentioned that the order under appeal was received by the appellant on the 17th September, 1990. Notice of the appeal was served on the respondent and inter-alia, a legal objection about the maintainability thereof was raised on his behalf on the ground of limitation. It was reiterated that the order under appeal being clearly dated 25th July, 1990, the filing of the present appeal on the 21st September, 1990 was grossly beyond the prescribed period of 30 days under Section 15 of the Consumer Protection Act, 1986 (hereinafter called ''the Act''). It was further pointed out that no reason has been given by the appellant for filing the appeal beyond the said period.

Faced frontally by the bar of limitation, Mr. Bansal, learned Counsel for the appellant, forcefully took up the stand that the period of limitation is to run not from the date of the order, but from the date of its communication under Rule 4(10) of the Haryana Consumer Protection Rules, 1988 (hereinafter called ''the Rules''). It was contended that the said rule in terms requires that the orders of the, District Forum shall be communicated to the parties free of charge. On that premises, it was submitted that the time begins to run from the date of the communication of the order, and not from the date when it is pronounced or signed by the District Forum. In the present case, a copy of the order having been received by the appellant on the 17th September, 1990, the appeal was claimed to be wholly within the prescribed period.

ON the other hand, Mr. O.P. Sharma, learned Counsel for the respondent, firmly urged that Section 15 of the Act was categoric that the appeal has to be preferred within the period of 30 days from the date of the order, and this mandate cannot be overridden by the inference or implication of any subsidiary rule. This apart, firm reliance was placed on Rule 8 of the Rules, particularly prescribing for the procedure for hearing of appeals under Section 15 of the Act, and mandating vide sub-rule (3) thereof that each memorandum shall be accompanied by the certified copy of the order of the District Forum appealed against. Reference was further made to sub-rule (4), which prescribes that when the appeal is presented after the expiry of the period of limitation, the memorandum of appeal shall be accompanied by an application, supported by an affidavit, setting forth the facts on which the appellant relies to satisfy the State Commission that he has sufficient cause for not preferring the appeal within the prescribed period. Undoubtedly the core question raised by the frontally opposed stand of the parties herein is of considerable significance. We find that the Haryana Rules are broadly identical with the model rules, which have been adopted all over the country by the different States, with minor modifications. All of these sets of rules have the somewhat unique and beneficent provision prescribing the communication of the order of the District Forum to the parties free of any charge. Consequently, the answer to the question falling for adjudication herein is one which would raise national ramifications on the issue of limitation for appeals under Section 15 of the Act. Consequently, we allowed great latitude to the learned Counsel for the parties to address detailed arguments at considerable length.

INEVITABLY, the controversy here must revolve around statutory provisions and it is apt to notice the relevant parts of Section 15 of the Act, and Rules 4 and 5 of the Rules, for facility of reference at the very outset: Sec. 15. "Appeal. Any person aggrieved by any order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed."

Rule 4 (1) to (9) xxx xx xx xx xxx Rule 4(10): "Orders of the District Forum shall be signed and dated by the members of the District Forum constituting the Bench and shall be communicated to the parties free of charge." Rule 8. "(1) Memorandum shall be presented by the appellant or his authorised agent to the State Commission in person or sent by registered post addressed to the Commission. (2)xx xx xx xx xx (3)Each memorandum shall be accompanied by the certified copy of the order of the District Forum appealed against and such of the documents as may be required to support grounds of objection mentioned in the memorandum. (4) When the appeal is presented after the expiry of period of limitation as specified in the Act, memorandum shall be accompanied by an application supported by an affidavit setting forth the fact on which appellant rules to satisfy the State Commission that he has sufficient cause for not preferring the appeal within the period of limitation."

Now a true approach to the significant question before us nessitates to recall the basic premise that there is no inherent or generic right of appeal as such. By allowed judicial precedent it is well settled that an appeal is invariably a creature of the statute. The very conferment of the right, its scope, the manner of its presentation and the limitation therefore etc. are basically mandated by the legislature. Consequently, the answer to the issue before us is not to be rendered in abstract or in a vacuum. It is governed and circumscribed by the afore-quoted provisions and has to be decided squarely within the four corners thereof. Pride of place herein has obviously to be given to the concise and categoric language of Section 15 of the Act. It first confers right of appeal on a person aggrieved by the order of the District Forum and thereafter clearly prescribes the limitation for preferring the same. The language used by the legislature is precise and unambiguous. In no uncertain terms it mandates that the appeal is to be preferred within a period of 30 days from the date of the order. As is necessary and indeed inevitable in a limitation provision, the law intends to provide a certainty for the terminus a quo and the terminus ad quam. It is elementary mat unless these termini are fixed somewhat firmly, the period of limitation and its computation would remain in a state of flux or confusion. Section 15 unequivocally fixes these two termini beginning with the date of the order of the District Forum and ending within a period of 30 days there from. The very language of Section 15 is crystal clear on the point and it would be labouring the obvious to elaborate the same. It is somewhat patent that on the very face of it the basic statutory provision fixes the terminus a quo for purposes of limitation from the very date of the order and from no other.

IT would bear repetition that on a plain grammatical construction the date of the order means the actual date and pronouncement thereof and not any time subsequent thereto.

YET again, it would deserve highlighting that it is well settled beyond avail that betwixt the provisions of the Act of a legislature and the subordinate legislation of framing the rules under the same, the latter are always subservient thereto. Now the core of the argument on behalf of the appellant is that Rule 4(1), prescribing for the communication of the order to the parties free of charge, would vary or override the prescription of limitation in Section 15 of the Act itself. This stand has only to be noticed and rejected. No rule framed under an Act can possibly run counter to or supersede the parent statute itself. Even if the language of such a rule were to do so, the same would be void or ultra vires of the Act to that extent Consequently, it is futile to contend that any rule can deviate from the clear and inflexible terminus of the date of the order fixed by Section 15. If at all there is any conflict (though we are clearly of the view that there is none here, as would be manifest from the discussion hereinafter), even then Section 15 has to prevail unhesitatingly over any rule framed under the Act 11-A. It is equally a well settled canon of construction that in construing a statutory provision it is impermissible to add thereto or interpolate words into the language of a Section in the garb of interpretation. If the argument of the learned Counsel for the appellant were to be accepted, then Section 15 would, in fact, read as under: - "Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the receipt of the order by such person...."

It is plain from the above that the stand taken on behalf of the appellant would mean the insertion of the underlined words in Section 15. We do not think it is possible to insert or thrust these words into the statute by a strange process of construction, and, consequently, to refuse to give effect to the clear language thereof, mandating the date of the order as the terminus a quo for the prescribed limitation of thirty days. The matter may also be viewed from another refreshing angle as well. Assuming for a moment that no rules had been framed by the State Government under Section 30(2) of the Act, then could there by any doubt that the terminus for preferring an appeal would run according to Section 15 from the date of the order? Obviously not Merely because Haryana Consumer Protection Rules, 1988 were framed on the 25th of April, 1988, long after the promulgation of the Act itself, they cannot detract or deviate from the clear mandate of Section 15, when originally promulgated. The argument suggesting a modification of the parent statute by a subsequent subsidiary rule framed under the same has, therefore, to be rejected on plain principle.

However, authority is not lacking on the point either. Curiously, it appears in a judgment cited and relied upon by the learned Counsel for the appellant himself. In Sri Jagannath Bhatia v. Sales Tax Officer and Others, (1986) 17 S.T.C. 540, a similar issue had arisen in the light of Section 9 of the U.P. Sales Tax Act, 1948, and Rule 45 framed thereunder. Section 9 aforesaid prescribed a limitation of 30 days from the date of the service of the notice of assessment, whilst Rule 45 required that the notice of assessment was to be accompanied by a copy of the assessment order itself. It was sought to be argued before the Division Bench that limitation would run from the date when the copy of the assessment order was served under Rule 45 and not from the date of the service of the notice of assessment as prescribed in Section 9. Repelling such an argument that a rule could possibly vary the terminus of limitation prescribed by Section 9 of the U.P. Sales Tax Act, the Division Bench of the Allahabad High Court categorically observed as follows:- "...It was contended that the notice of assessment was not accompanied by a copy of the assessment order though it was to be accompanied by it under rule 45. Even if the notice of assessment was not accompanied by a copy of the assessment order, the period of limitation has still to be computed from the date of service of the notice. Section 9 is clear and does not permit the period to be computed from any other date in any circumstance. Section 9 does not speak of a copy of the assessment order being served upon the assessee and the period of limitation, which is prescribed by it, can never be computed from the date of service of a copy of the assessment order, which is nowhere referred to in it. Merely because by rule 45 the State Government requires the Sales Tax Officer to serve upon the assessee not only a notice of assessment but also a copy of the assessment order, it cannot be contended that so long as a copy of the assessment order is not served upon the assessee the period of limitation for an appeal does not commence at all. The State Government has no jurisdiction to alter the provisions of Section 9 in any manner. It may require that in addition to a notice of assessment a copy of the assessment order may be served upon the assessee but it cannot require that the period of limitation cannot commence unless a copy of the assessment order has been served. Therefore, the date, on which a copy of the assessment order is served, has absolutely no bearing on the date on which the period of limitation is to commence. It is to commence in every case on the date of service of a notice of assessment."

In the light of the above, we would not wish to multiply authorities on the point. Apart from precedent it seems to us somewhat elementary that the rules framed under the Act cannot override or run counter to its plain provisions.

WE are also firmly of the view that herein far from there being any conflict of the rules with the parent Act, the rule relevant to Section 15 is wholly consistent therewith. The primal supplementary provision is Rule 8, which as its heading clearly indicates, is the special provision laying down the procedure for hearing appeal under Section 15. To our mind this is the basic and the only rule in the context of the filing of appeals and the limitation therefore. Indeed a reference to sub-rule (4) of the rule quoted above is instructive. Therein it expressly mentions that when an appeal is presented after the expiry of the period of limitation as specified in the Act, then it has to be accompanied by an application supported by an affidavit etc. The significant language that deserves highlighting is that the rule reiterates that the period of limitation is one as specified in the Act and not by any other rule. It is thus plain that the relevant Rule 8 in general and Sub-rule (4) thereof in particular is a wholly consistent and clear pointer to the fact that the period of limitation is the one as specified in the Act itself and no other. Much ado was raised on behalf of the appellant by Mr. Bansal around Sub-rule (10) of Rule 4 of the Rules for the proposition canvassed by him. It is an elementary canon of construction that a statutory provision is not to be read in isolation. Consequently, the said Sub-rule, cannot be torn out of its context where it has been placed in the body of the said rule. It deserves highlighting that Rule 4 (unlike Rule 8) as its very heading indicates, has nothing to do with either the procedure or the period of limitation for preferring appeals. It pertains only to the place of sitting and other matters relating to the District Forum under Section 14(3) of the Act. The latter provision would also deserve notice in extenso: - "(3) Subject to the foregoing provisions, the procedure relating to the conduct of the members of the District Forum, its sitting and other matters shall be such as may be prescribed by the State Government."

It would be manifest from the above that Rule 4, expressly purporting to be in the context of aforesaid provision, pertains only to the sitting and other incidental matters of the District Forum, and has no relevance to appeals. Therefore, viewed in its proper context, Sub-rule (10), being the last one in Rule 4, is a mere beneficent provision, which is meant to be informative in nature, and directs that after the order of the District Forum has been signed and dated, it may be communicated to all the parties. To repeat and highlight, it is an ancillary provision, somewhat unique in the context of beneficent statutes, expressly barring any charge for the copy of the order and the despatch thereof to each of the parties. That it has not any reference, whatsoever, to the filing of appeals, would be evident from the fact that the same is not to be communciated only to the party aggrieved by the order, but even to other parties, who may have been successful before the District Forum in toto, and, consequently, would have no occasion at all to file any appeal. To our mind Sub-rule (10) is a beneficent provision, primarily informative in nature, having little or no relevance with either the substantive right to file an appeal or the prescription of any limitation therefor.

THE view we are inclined to take is further buttressed when Sub-rules 4(10) and 8(3) are considered with incisive depth. What calls for pointed notice is the fact that by virtue of Rule 8(3) the memorandum of appeal has to be accompanied by a certified copy of the order of the District Forum. This rule, therefore, expressly visualises that the aggrieved party if it goes up in appeal must procure an authentic certified copy of the order of the District Forum. On the other hand, Rule 4(10) does not talk of any certifed copy of the order to be communicated. Neither the nature of the copy, nor the made or manner of its communication to the party, has been specified in detail in the said provision. It is a well-known rule of interpretation that the legislature does not waste its words and everyone of them has to be given a meaning. THE significance of mandating a certified copy to be attached to the memorandum of appeal and the non-employment of any such word for the communication of the order under Rule 4(10) is, thus, not without a purpose. It would, thus, appear that this copy for the purpose of appeal has to be certified and authenticated and is a thing apart from any mode or manner which the District Forum may adopt for communicating its order to all the parties. Having examined the matter on the statutory provisions and principle, one may now advert to precedent as well. The primal reliance of Mr. Bansal had been on Raja Harish Chandra Raj Singh v. The Deputy Land Acquistion Officer and Another, AIR 1961 Supreme Court 1500, and its elaboration in State of Punjab v. Mst. Qaiser Jehan Begum and Another, AIR 1963 Supreme Court 1604, and some reiteration of the same principle in Dara Singh v. The State through Director of Enforcement, New Delhi, AIR 1981 Supreme Court 427. On the basis of observations in these judgments. It was submitted with some vehemence that the date of the order should be read as the date of its communication to the aggrieved party in Section 15 of the Act. We regret our inability to agree because a closer look at the judgments relied upon would show that they have little or no relevance to the question of the prescription of limitation under Section 15 of the Act. As has been mentioned earlier, the answer to the question posed at the outset is not being rendered in abstract or in a vacuum but on the particular language of the relevant Section and the rules. The basic case of Raja Harish Chandra Raj Singh (Supra), relied upon by Mr. Bansal is hardly attracted and, in any case, is plainly distinguishable. That was a case pertaining to the award of a Collector under the Land Acquisition Act, and a reference made against it under Section 18 thereof. On the particular provisions of the Land Acquisition Act, their Lordships of the Supreme Court came to the firm conclusion (para 5 of the report) that legally the award cannot be treated as a decision and in the eye of law it is merely an offer or a tender of compensation determined by the Collector to the owner of the property under acquisition. It is on that premise that it was further held that such an offer or tender has to be communicated and its date would only be the one when it reaches the person to whom the offer is made. Only thereafter the question either of acceptance of this offer or the rejection thereof, by claiming a reference under Section 18 of the said Act can arise. Even in such a situation, their Lordships held that the knowledge of the award need not be actual and may well be constructive. It is somewhat manifest that none of these considerations arise in appeals under Section 15 of the present Act. The order of the District Forum is plainly a decision and its nature is basically quasi judicial, if not judicial in strict to sensu. The peculiar considerations of an award of the Collector under the Land Acquisiton Act have, thus, no relevance herein. Again State of Punjab v. Mst. Qaisar Jehan Begum'' s case (Supra) is only an elaboration of the principle in Raja Harish Chandra''s case (Supra) to the effect that the constructive knowledge of the Collector''s award must be of the essential contents thereof and not merely as regards the fact of the same having been rendered. Dara Singh''s case (Supra) is even somewhat more wide of the mark because therein the crucial question was the maintainability of the criminal conviction of the appellant therein. The peculiar considerations under the Foreign Exchange Regulations Act and the rules framed thereunder, which were in issue in the said case, have no parity or similarity with what falls for consideration under Section 15 of the Act and the rules framed thereunder. It is well settled in the realm of precedent that the meaningful thing therein is the ratio decidendi of a case and not every passing observation therein. Dara Singh''s case, therefore, does not in any way advance the submissions of the learned Counsel for the appellant. 18-A. In the larger prospect we must notice that the learned Counsel for the appellant seems to be oblivious of the true nature of the proceedings before the Redressal Forums under the Act. In our view, there is no doubt that, if not strictly judicial, the proceedings before the Redressal Forums and the orders thereon are plainly quasi-judicial in nature. It is unnecessary to run through the whole gamut of the statute and the rules which point to this inescapable conclusion. It would perhaps suffice to mention that Sub-section (4) of Section 13 expressly confers upon the Redressal Forums certain powers vested in a Civil Court under the Code of Civil Procedure. Again Sub-section (5) thereof lays down that proceedings before the District Forum shall be deemed to be judicial proceedings within the meaning of certain Sections of the Indian Penal Code and the District Forums shall be deemed to be a Civil Court for the purposes of Section 195 of the Code of Criminal Procedure, 1973. The creation of the Redressal Agencies under the Act, the personnel manning them, the procedure prescribed for the trial disputes and hearing of appeals etc. before them and the prescription that the final order would be in accordance with the majority view in the event of any difference of opinion betwixt the members of the Bench, are clear pointers to the strictly quasi-judicial nature of the proceedings and the orders therein. To use a familiar expression, it can in truth be said that the Redressal Forums have all the trappings of a Court of law. The orders and decisions of these Forums have, thus, to be distinguished from and have a qualitative difference from the ones made by purely administrative and executive bodies. What deserves particular notice is the relevant part of Sub-rule (8) of Rule 4 of the Rules, which is in the following terms: - "(8) If during the proceedings conducted under Section 13, District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorised agent to appear before the District Forum on such date of hearing or any other date to which hearing could be adjourned..."

It would be manifest from the above that there is, thus, a statutory provision obliging the presence of the parties and a hearing and decision either before them or their authorised agents. To go back to Dara Singh''s case (Supra), it deserves recalling that one of the reasons which influenced their Lordships was the absence of a provision requiring the presence of the parties and the pronouncement of orders etc. under the Foreign Exchange Regulation Act and the rules framed thereunder. Here in the light of the afore-quoted Sub-rule (8) of Rule 4, the situation is obviously in the reverse and the case is distinguishable on this additional ground as well.

IN fairness to Mr. Bansal, we may in passing refer to his reliance on Kashiram Bhajan Lal v. Commissioner of INcome Tax, U.P. (1962) 45 I.T.R. 1, and Gopi Lal v. Commissioner of INcome-Tax, (1967) 65 I.T.R. 477, holding that the right of appeal should be liberally construed. There possibly can be no doubt with that proposition. However, these authorities are no warrant for the proposition that the right of appeal is not to be governed by limitation or the mode or manner of determining its prescribed period.

IN the ultima-ratio one cannot lose sight of the end result of a construction even where two views may perhaps be possible. As has been pointed out earlier, it is the hall-mark of the limitation statutes that the two termini for the prescription of time should be fixed and firm. If the construction advocated on behalf of the appellant were to be accepted, men the terminus a quo far from being fixed would remain in a constant and debatable flux. IN every case it will have to be determined whether the order of the District Forum was despatched at all to the aggrieved party or was received at all by him at the other end, and, if so, the precise date on which it came to his notice. Rule 4(10) does not prescribe either for the authenticity or certification of the order or the time or the method of communicating the same to the parties with any exactitude. To test the strength of an argument, it is sometimes necessary to carry it to its logical length. Assuing a case where the District Forum or its employees due to an administrative lapse fail to forward or communicate the order to the party concerned, would it then follow that the period of limitation will not run at all and remain perennially open to the patent detriment of the successful party. Yet again, if for one reason or another the copy of the order is despatched but lost in transit, would it again follow that the period of limitation would continue to remain in an unending flux. It calls for pointed notice that under the Act and the rules the Redressal Forums are not provided with any elaborate process serving machinery at all. How is the communication of the order to be made, the manner of its actual service and a concrete and unimpeachable proof thereof to be retained? INvariably such a communication has as yet to be through the post. IN such a situation, the actual receipt and the date thereof by the party concerned may and can always be put under a cloud. It is significant that the whole purpose of the Act and the Rules is the expeditious decision of the consumer disputes, obviously including the appeals thereunder. It is with that object in view that Section 15 prescribes the shortest period of 30 days for preferring appeals from the date of the order. If the view canvassed by the learned Counsel for the appellant is accepted, then that basic purpose may well be defeated and limitation for appeals, far from being fixed, would remain in a constant flux of disputes and debate. A construction which tends to lead to such startling and sometimes mischievous results, is, therefore, to be avoided on the larger principle as well. To conclude, in the light of the afore- mentioned discussion, we are of the view that the terminus a quo for determining the period of limitation prescribed under Section 15 of the Act is firmly fixed like a pole star on the date of the order of the District Forum itself. It cannot possibly be so on the shifting stands of the receipt of a copy thereof by the aggrieved party, dependent as it may well be on the idiosyncrasy of an inefficient post or the innumerable factors which might intervene betwixt the pronouncement of the order and the actual proof of its communication to the aggrieved party. The answer to the question posed at the outset is rendered in the terms that the period for determining the limitation prescribed by Section 15 of the Act runs from the date of the order under appeal, and not from any alleged date of the receipt of the copy thereof forwarded under Rule 4(10) of the Rules.

In view of the aforesaid finding, it must be held that in strictitude all the three appeals filed herein are beyond the prescribed time. Though this finding goes in favour of the respondents, yet their''s is but a pyrrhic victory. On behalf of the appellant-Board an application for condonation of delay, supported by as many as three affidavits, has been placed on the record. Despite opportunity given to the respondents, no reply to the application or any counter affidavits in rebuttal have been filed. In the said application it has been averred that on the 25th July, 1990 the District Forum heard arguments and reserved the judgment. Apparently, no date for the pronouncement of the judgment was given and it is the appellant''s case that they came to know of the order against them only on the 12th September, 1990 when the complainant wrote a letter to the S.D.O. Hissar, intimating the decision of the said Forum. The copy of the order was not received in the office of the appellant till the 14th September, 1990. The concerned S.D.O. also sent an official to the District Forum at Hissar for obtaining a copy of the order and an uncertified copy was obtained by Balwant Singh, U.D.C., on the 14th September, 1990. The averments in the application are supported by the categoric affidavits of Sh. Jaspal Singh, Law Officer of the appellant at Hissar; Sh. S.R. Singla, Assistant Executive Engineer in the office of the Chief Engineer (Operations), Hissar; and Sh. Balwant Singh, Upper Division Clerk in the office of the appellant at Hissar.

THE stand taken in the unrebutted application and the affidavits receives corroboration from the copy of the order attached to the memorandum of appeal. Though it is not a mandatory or statutory requirement, the copy does not say that the order was pronounced in open Court. THEre seems to be no rebuttal of the firm stand of the appellant-Board that on 25th July, 1990 what was done was the hearing of arguments and the reserving of the order, and apparently, no fixed date for its pronouncement was given. THEre is yet another factor indicative of support to the appellant. THE order bears an endorsement of as late as 21st August, 1990, and thereafter it mentions that a copy of the above has been forwarded to the parties free of cost. On the above unrebutted factors, Mr. Bansal had forcefully submitted that it stands virtually established that the appellant-Board could not possibly have any actual nor constructive knowledge of the order till the 14th September, 1990. In any case, the law being somewhat in doubt as to the terminus from which the limitation was to run, the appellants were under a bona fide mistake in presenting the appeal from the date of the receipt of the order by them.

WE are of the view that taking the totality of factors into consideration, the appellant-Board has been able to establish that there was a sufficient cause for the non-filing of these appeals within the prescribed period. The matter being res Integra, the precise manner of computation of the period of limitation was somewhat under a cloud, which now stands cleared. The delay, therefore, was patently bonafide and has to be and is hereby condoned. The three appeals (First Appeal Nos. 16, 17 and 18 of 1990) will now come up for hearing on merits. Appeal allowed.