The Secretary Of State For India vs Bhaskar Krishnaji Samant

Bombay High Court

The Secretary Of State For India vs Bhaskar Krishnaji Samant on 7 April, 1925
Equivalent citations: (1925) 27 BOMLR 973
Author: Shah
Bench: N Macleod, Kt., Crump, Coyajee

JUDGMENT Shah, Ag. C.J.

1. It will be convenient in this case to state the few facts which have given rise to this appeal. The Divisional Forest
Officer, Western Division, Thana, by a proclamation dated June 25. 1920, invited tenders with reference to certain
forest coupes in the Thana District. The tenders were to be submitted on or before August 5, 1920, 1 P. M. The
plaintiff submitted a tender in the standard form for several coupes, including coupe No. 4 in Block No. XIX before
1 P. M. on August 5. He offered to take up that particular coupe for Rs. 12,299. Immediately after, however, he
discovered that he had committed a mistake in that the sum offered was not intended for that particular coupe but for
coupe No. 5, which was near coupe No. 4. At 4-30 on that day the plaintiff's son sent a petition requesting the officer
not to sanction the tender for coupe No. 4 as it was submitted under a mistake. The plaintiff 'and his son also sent a
telegram' which reached the Divisional Forest Officer at 5. 22 P. M. revoking the tender. At 7 p. M, the plaintiff's
tender with reference to this coupe was accepted, subject to confirmation by the Conservator of Forests, and such
acceptance was notified. On August 6, the Divisional Forest Officer made a report to the Conservator of Forests to
the same effect. The plaintiff submitted a petition to the Conservator of Forests explaining how he had committed a
mistake, and suggested that the tender should not be accepted. That Officer, however, confirmed the acceptance of
the tender by the Divisional Forest Officer. He, however, directed inquiry on the point arising on the plaintiff's
application. On September 3, 1920, the plaintiff was informed that his tender was accepted and he was called by a
notice of October 15, 1920, to pay one-fourth of the amount The plaintiff refused to accept the acceptance of the
tender, and he refused to pay. He was then informed on October 29, that there would be are-sale of that coupe. In fact
it was re-sold on November 18, and it fetched Rs. 2,246. Then the plaintiff was called upon to pay the deficiency,
and on December 14, 1920, his wood was attached. It was, however, released from attachment on April 19, 1921,
The plaintiff had already given the necessary notice for the present suit which was filed on April 21, 1921.

2. The plaintiff prayed for a declaration that the tender of August 5, 1920, did not mature into a contract enforceable
by law, the proposal contained in the tender having been revoked before its acceptance, and for an injunction
restraining the defendant from enforcing the so-called contract. He also claimed the return of the War-Bond for Rs.
1,000, and he claimed Rs. 500 as damages for illegal and improper attachment of his goods.

3. The defendant pleaded that the tender was irrevocable and binding as a contract upon the plaintiff in virtue of a
rule made by the Local Government under Section 75 (d) of the Indian Forest Act, 1878, and that the sum was liable
to forfeiture under the provisions of Section 74.

4. The plaintiff had based his claim on the allegation that even if it was to be treated as a contract, it was liable to be
set aside on the ground of mistake. With reference to that, the defendant pleaded that there was no such mistake, and
there was no misrepresentation on the part of the officers of the Forest Department which would enable the plaintiff
to avoid ' the contract. The plaintiff filed a written statement in reply in which he pleaded that the plea raised in
paragraph 6 of the written statement as to the rule framed under Section 75 (d) of the Indian Forest Act was not a
good plea, and that the rule relied upon was ultra vires and inoperative in law.

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5. On these pleadings the following issues were raised:-

1. Whether the plaintiff could legally revoke his tender after it was made and before it was accepted ?

2. Is. Is the conduct of the defendant referred to in paragraph 3 of the plaint proved ? If so, does it amount to a fresh
offer in supersession of the previous offer V 3 Did the plaintiff mistake new coupe No. 4 for new coupe No. 5.

4. If so, was the mistake duo to the act of the defendant's subordinates.

5. Whether the defendant was not justified in re-selling the coupel.

6. Whether the plaintiff's limber and fire-wood was illegally attached by the defendant and if so has the attachment
caused the plaintiff a loss of Rs. 600 as stated in paragraph 4 of the plaint ?

7. Is the plaintiff entitled to the return of the War-Bond of Rs. 1,0 00?

6. The learned trial Judge found that the plaintiff could legally withdraw his tender after it was made and before it
was accepted. He found on the second issue that the department was prepared to reduce the sum to Rs. 8,000, but
that it did not amount to a fresh offer in supersession of the previous offer As regards issue No. 3, the trial Court
found in the affirmative, but on issue No. 4 the Court held that the mistake was not due to the act of the defendant's
subordinates. No finding on issue No. 5 was considered necessary. As regards issue No. 6, the trial Court came to the
conclusion that the attachment was illegal, but no damages were proved. Accordingly the trial Court pasted a decree
in favour of the plaintiff declaring that the tender, Exhibit 24, did not amount to a contract enforceable by law, and
granted an injunction perpetually enjoining the defendant from enforcing the terms of the tender. He further ordered
delivery to the plaintiff of the War-Bond of Rs. 1,000. The rest of the plaintiff's claim was rejected. Each party was
ordered to bear his own costs.

7. The defendant has appealed, and the plaintiff has filed cross, objections. I may first dispose of the question of fact
which arises on the cross-objections of the plaintiff that thin tender was brought about by a misrepresentation on the
part of the officers of the Forest Department. In the lower Court the case made by the plaintiff was that the mistake
on his part as regards the coupe number was due to the action of the Forest Department, Before us the learned
pleader has relied upon the provisions of Section 18 of the Indian Contract Act, and particular reliance is placed on
Sub-section (3), which provides that misrepresentation would include causing, however innocently, a 1 party to an
agreement, to make a mistake as to the substance of the thing which is the subject of the agreement

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8. We have heard Mr. Desai on the evidence, and we intimated to him in the course of the argument our opinion that
the alleged misrepresentation was not proved. It is possible that there may be some room for a man going to the spot
to get the impression that tenders were invited for coupe No. 5 also. As a fact no tenders for coupe No. 5 were
invited, but for various coupes including coupe No. 4. It is very doubtful to my mind whether a person observing
carefully the marks there, could have confounded the two coupes Nos. 4 and 5. But that plea is hardly open to a party
who has not gone there to be misled in some manner by the apparent condition of the marked trees. The lower Court
has rightly found that the plaintiff was honestly under the impression that he was making an offer for coupe No. 5,
and not coupe No. 4. The value of coupe No. 4 is much below the sum offered in the tender, and that reasonably
speaking such a sum would not be offered for coupe No. 4. It may be that the plaintiff was under that mistaken
impression. But it does not follow that the Department contributed to that mistake in any sense or that they
represented to the plaintiff that coupe No. 5 was really coupe No. 4, On that point, therefore, the contention of the
plaintiff must be disallowed and the plea that even if the tender amounts to a con- tract otherwise enforceable, it is
liable to be set aside on the 1 ground of mistake or misrepresentation must fail.

9. The principal question in the case is as to whether the tender submitted by the plaintiff is revocable or not. The
material terras of the tender are these :-

In respect of (the coupes) mentioned in the accompanying schedule, out of (the coupes stated) therein tender for a
sum stated against each of them is submitted. If this tender is passed, then I shall perform all things which it will be
obligatory (on me) to perform agreeably to the terms of the contract attached to this tender or otherwise. If .1 fail to
do so, the penalty or the sums of moneys mentioned in the said terms may be forfeited and credited in the name of
the Secretary of State for India in Councilor his successor in office. I further agree that I will not. withdraw this
tender during the time that will be required for intimation of the acceptance or non-acceptance of the tender being
given to me and if I do so withdraw then 1 am liable to pay the whole sum of this tender or such amount on account
of deficiency as in the opinion of the Conservator or the Deputy Conservator of the Circle may be considered
necessary to make good the whole of the loss and damages that may be suffered by Government in consequence
thereof and I shall pay the same Along with this tender 1 have sent a War-Bond of Rs. 1,000 (in words) one thousand
in token of good faith. If this tender is passed and if I do not put my signature on the ' Kubulayat' which I will be
required to do as per Clause I of the conditions, or if I do not pay in full the one-fourth of the amount of the tender or
if 1 withdraw the tender during the time that will he required for intimation being given to me as regards the
acceptance or non-acceptance, then the whole of the amount sent with the tender in token of good faith as aforesaid
may be forfeited and (credited) to the Secretary of State or his successor in office.

10. According to these terms the tender is not revocable. It is clear that in spite of the express terms of the tender, it
would be revocable under Section 5 of the Indian Contract Act before acceptance, and the agreement not to revoke
would be without consideration and therefore void according to the ordinary law. This position is not contested by
the learned Advocate General and so far it is clear, because an agreement not to revoke a tender would be void under
Section 25 of the Indian Contract Act; and any tender before acceptance is revocable under Section 5 of the Act.

11. The learned Advocate General, however, relies upon a rule framed under Section 75 (d) of the Indian Forest Act
by the local Government. It is urged that according to that rule the condition that the tender cannot be revoked is
legal, that in spite of the provisions of us. 5 and 125 of the Indian Contract Act, the agreement not to revoke is
enforceable and that the revocation is invalid. The notification about this rule is in these terms :-

In exercise of the powers conferred by Section 75, Clause (d), of the Indian Forest Act, 1878, (VII of 1878), as
amended by the Indian Forest Act, V of 1890), and in supersession of Government Notification in the Revenue
Department No. '2799 dated the 31st March 18U6, the (Government - in-Council a pleased to make the following

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rule, with reference to Section 84 of the said Act amended us aforesaid, namely : -

Whoever enters into any contract with any Forest Officer acting on behalf of Government, shall, if so required by
such Forest Officer, bind himself by a written instrument to perform such contract.

Explanation :-A person who makes a written tender for a contract, or who signs the conditions of an auction sale at
which he is a bidder, such tender or conditions of sale being on or in a form furnished by a Forest Officer for that
purpose, whereby he

(a) binds himself to perform the contract for Which he tenders or bids, in the event of his tender or bid being
accepted, or

(b) hinds himself not to withdraw his tender or bid during the time that may elapse before its acceptance or refusal is
communicated to him, shall be deemed to have been required by such Forest Officer to bind himself as aforesaid,
and in ease (a) on the acceptance of his tender or bid, or in case (b) on the making of his tender or bid, to have bound
himself accordingly, within the meaning of this rule; and any such person need not enter into a separate written
instrument for the purpose, unless specially so required by the Forest Officer with whom he contracts.

12. This rule purports to have been made with reference to Section 84 of the Indian Forest Act under the powers
conferred upon the local Government by Section 75 (d). Its effect is to make a tender irrevocable before acceptance
in spite of Section 5 of the Indian Contract Act and to make an agreement not to withdraw a tender before acceptance
enforceable us a contract in spite of Section 25 of the Indian Contract Act and to bring a writing within the scope of
Section 84 of the Indian Forest Act which but for the rule would not be covered by it.

13. The lower Court has held that the general provisions of the Indian Contract Act are not abrogated by this rule so
far as persons submitting such tenders are concerned. It has applied the test that "where the language of the
legislature admits of two constructions and if construed in one way would lead to obvious injustice or absurdity the
Courts act upon the view that such a result could not have been intended unless the intention had been manifested in
express words." After comparing the language of the present rule with the rule as it was framed in 1896, the learned
trial Judge came to the conclusion that it did not abrogate the general law of contract. He did not consider it
necessary to examine the question whether the rule was ultra vires if it had the effect of abrogating the general law of
contract on the particular points. The learned Advocate General has argued that its effect is to make an offer
irrevocable before acceptance and to make an agreement binding as a contract, which would not be irrevocable and
binding according to the ordinary law of contract and to that extent abrogates or modifies the law of contract. I think
the contention of the Advocate General so far is sound; and I am unable to accept the view taken by the lower Court
on this point. It is quite true that the rule does not in terms say that inspite of anything contained in Sections 5 and 25
of the Indian Contract Act, the tender shall not be revocable before acceptance and that the agreement not to revoke
the tender before acceptance shall be enforceable as a contract, its effect is clear; I cannot say that the words of the
explanation are ambiguous in any sense. Further I cannot say that the agreement not to withdraw a tender before
acceptance or to pay a certain sum in case of breach as if it were a contract necessarily leads to obvious injustice or
absurdity. It is, therefore, necessary to examine the other objections to the validity of the rule raised in the argument
before us. The objection is that the rule or rather the explanation is in excess of the statutory power authorising it and
that it is repugnant to the statute and to the general principles of the law of contract,

14. In dealing with these objections it is necessary to bear in mind the scope of as 75 and 84. Under the Indian Forest
Act, the local Government has power to frame rules for various puposes under different sections. For instance under
Sections 15, 25 Clauses (a) and (i), 31, 85, 41 and 51 the local Government can frame rules for various purposes
connected with the Indian Forest Act. We then come to Chapter XIII relating to subsidiary rules which contain

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Sections 75 to 77. Section 75 provides as follows:-

The Local Government may from time to time make rules-

(a) to prescribe and limit the powers and duties of any Forest-officer under this Act;

(b) to regulate the rewards to be paid to officers and informers out of the proceeds of fines and confiscations under
this Act;

(c) for the preservation, reproduction and disposal of trees and timber belonging to Government, but grown on lands
belonging to or in the occupation of private persons; and

(d) generally, to carry out the provisions of this Act.

15. Section 77 provides that all rules made by local Government under this Act shall be published in the local official
Gazette and shall thereupon, so far as they are consistent with this Act, have the force of law. The extent of the
authority, so far as the particular rule is concerned, is defined by the words "generally to carry out the provision of
this Act " I may also refer to Section 84, as the rule is made expressly with reference to that section, It is in these
terms:-

When any person, in accordance with any provision of this .Act or in compliance with any rule made thereunder,
binds himself by any bond or instrument to perform any duty or act, or covenants by any bond or instrument that he,
or that he and his servants and agents, will abstain from any act, the whole sum mentioned in such bond or
instrument as the amount to be paid in case of a breach of the conditions thereof may, notwithstanding anything in
Section 74 of the Indian Contract Act, 1872, be recovered from him in case of such breach as if it were an arrear of
land-revenue.

16. It is clear from the words of the section that apart from this rule, an agreement in writing not to withdraw a tender
would not be within the scope of the section. In the first place the undertaking would not be in accordance with any
provisions of the Act or compliance with any rule made thereunder-I mean apart from the rule in question, Besides
the agreement would not be binding according to law : and there would be no enforceable covenant under the
section. In fact it is not contested by the learned Advocate General that apart from this rule the covenant not to
withdraw a tender before acceptance would not be binding and would not be within the scope of the section. The
section pre-supposes a binding contract or covenant.

17. The power to make subsidiary rules must be strictly circumscribed by the scope of the Act. The expression
"generally to carry out the provisions of the Act" should be construed ejusdem generis with the previous clauses. At
the same time I think it should be liberally construed so as to enable the local Government to make rules to do all
subsidiary things, with a view to facilitate the carrying out of the provisions of the Act. It is not easy to define the
exact scope of the expression nor is it necessary to attempt to do so. But I feel clear that it cannot be so construed as
to confer a general power upon the local Government to modify to any extent the existing provisions of law to serve
the ends of the Indian Forest Act. Such a wide power, if intended to be conferred, can be conferred, in my opinion,
only by express and appropriate words to that effect. I cannot hold that the legislature could intend to confer powers
to modify any existing law or statute for the purposes of the Indian Forest Act by the use of such a general
expression as is used in Clause (d) of Section 75. No authority is cited to show that a power to make rules generally
to carry out the provisions of an Act can include power to make rules in modification of the existing enactments
unless such modification is necessarily involved in or implied by any specific provisions of the Act. There can be no
necessary implication in this case, as there is no necessary conflict between the provisions of the Indian Forest Act

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and the Indian Contract Act on the points with which we are concerned, It cannot be said, for instance, that without
modifying the provisions of as. 5 and 25 in the sense indicated in the rule the provisions of the Indian Forest Act
cannot be carried out. The local Government may quite rightly consider such a modification desirable; but they
cannot enact a rule having the force of law under the powers conferred by these general words so as to modify the
ordinary law. For, if this were so, there would be no limit to the extent to which the rule-making authority can
modify the general law to suit the requirements (according to their view) of the Indian Forest Act. I am clearly of
opinion that under Clause (d) the local Government have no such general power to modify the ordinary law
governing contracts, unless it can be shown that it is necessarily implied by the provisions of any particular section
of the Act.

18. The learned Advocate General has argued that the only limit, action is that the rule should be consistent with the
provisions of the Indian Forest Act and that if it is not inconsistent the local Government may in their discretion
modify any provision of law to suit the requirements of the Act. Though the argument has not been put exactly in
these terms in substance that is the argument as I understand it. I am, however, unable to accept it. The legislature
could not be held to have conferred such wide powers in the absence of any clear words to indicate that meaning.
Assuming, therefore, that it is consistent with the provisions of the Act, I think that the authority is exceeded in so far
as the rule seeks to prohibit the withdrawal of a tender before acceptance in spite of the provisions of Section 5 of the
Indian Contract Act and to make the covenant not to withdraw a tender before acceptance enforceable as a contract
in spite of Section 25 of the Indian Contract Act.

19. The explanation to the rule which is in substance intended to modify the existing law that a tender is revocable
before acceptance and that an agreement not to withdraw the tender before acceptance is void as being without
consideration, is in excess of the authority conferred upon the local Government under Clause (d) of Section 75.

20. This view derives support from the circumstance that the legislature has carefully provided in terms where any
modification of the Indian Contract Act is desired. Section 84 of the Act contains an express reference to Section 74
of the Indian Contract Act. If the local Government had authority to modify the general law to carry out the
provisions of the Act, Section 84 would have been hardly necessary. The local Government could frame a rule to that
effect and according to the present contention of the learned Advocate General it would be valid. The cases referred
to by the Advocate General do not touch this point. The case of Rockett v. Clippingdale [1891] 2 Q.B. 293 does not
help us in any way. That was a case of repeal by implication of a certain Statute in virtue of a rule framed under
express powers conferred under another statute with reference to the specific question of costs. The decision was
based upon Garnett v. Bradley (1878) 3 App. Cas. 944, 969 and a reference to that case makes it clear that it cannot
help us in this case. There is no scope here for any inference as to necessary implication with reference to such
divergent Acts as the Indian Forest Act and' the Indian Contract Act.

21. It is argued by Mr. Desai that the rule is open to a further objection that it is net consistent with Section 84. I
have already pointed out that apart from the rule the agreement in writing not to withdraw a tender would not be
within the scope of the section. The effect of the rule is to bring a particular writing within the scope of the section,
which is not otherwise within its scope. In plain terms the rule seeks to make an addition to Section 84 I doubt
whether a tender with a covenant not to withdraw it before acceptance can be said to have been given in accordance
with the provisions of the Act or in compliance with any rule thereunder as contemplated by Section 84. The effect
of the rule in to declare that as binding and valid which but for the rule would not be binding and treated as valid for
the purposes of Section 84. On the whole I think that this rule is intended to add to the provisions of Section 84 by
declaring writings to be made under a rule under the Act, which in plain terms are writings not in accordance with
the provisions of the Act or compliance of any other rule under the Act, but independent writings containing offers
which, if and when accepted, would bring a person within the scope of the section. I find it difficult to hold that it is
consistent with Section 84 to add to the scope of the section in that way. In the result I am of opinion that the

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explanation of the rule, with which we are concerned, is ultra vires.

22. The next point relates to the attachment. The attachment would be illegal if the withdrawal of the tender was
legal. As I hold the withdrawal to be legal, I accept the finding of the lower Court that the attachment was illegal.

23. As regards damages the lower Court has held that the plaintiff has failed to prove any damages. I should have
been inclined to award some damages as an illegal attachment does ordinarily mean some inconvenience and loss :
but it is difficult to say on this record that any damages are proved or that the lower Court is wrong in holding that no
damages are proved. In any case I would not award more than Rs. 50 as damages, and for that small sum I do not
consider it proper under the circumstances to vary the decree, As regards costs the plaintiff should get his costs as
regards the claim for illegal attachment, even though he may fail to prove damages Though in the end he succeeded,
he raised questions of fact on which he failed. In apportioning the costs, the lower Court was entitled in the exercise
of its discretion to direct each party to bear his own costs. I would, therefore, confirm the decree of the lower Court
and dismiss the appeal and cross-objections with costs.

24. As we are both agreed that the cross-objections fail, they are dismissed with costs.

25. As regards the appeal, in view of the difference of opinion, the decree is confirmed under Section 98, Sub-section
(2), of the Code of Civil Procedure.

Kincaid, J.

26. The facts of the case have been fully stated in the careful judgment of the trial Court and are briefly as follows :-

By a proclamation dated June 25, 1920, the Divisional Forest Officer, Western Division, Thana, invited tenders for
certain coupes in the Bassein Range. The plaintiff Kriehnaji Bhikaji Samant made tenders for some of them
including coupe No. 4. For coupe No. 4 he tendered on August 5 about 1 p. M, Rs. 12,299 and with his tender sent,
as required by the proclamation, a War-bond for KB. 1,000 being five and a half per cent, of the tender.
Subsequently, according to his own story, he learnt that what he had thought was coupe No. 4 was really coupe No. 5
which was not for sale until 1921. He thereupon sent a letter and a telegram to the Divisional Forest Officer revoking
his tender. They reached the Divisional Forest Officer the same day, but as the tender was over Rs. 5,000 and beyond
the said officer's jurisdiction, he referred Samant to the Conservator of Forests. On August 6, Samant wrote to the
Conservator informing him that he had revoked his tender On August 10, Samant received a registered letter from
the Conservator informing him that his tender had been accepted.

27. Samant maintained that as he had revoked his tender before acceptance the Conservator could not afterwards
accept it. But the Forest Department thought otherwise and on November 18, 1920, sold coupe No. 4 by public
auction for Rs. 2,246 On November 27, the Forest Department served on Samant a notice calling on him to pay the
difference between Rs. 2,246 and Rs. 12,299. Samant declined to pay and on December 10 the Department attached
his wood worth Rs. 575 but on April 12, 1921, released it when Sarmant furnished security.

28. In November 1920, Samant had served a notice on the Secretary of State as required by Section 80, Civil
Procedure Code. On April 21, 1921, he filed the present suit asking for a declaration that the tender of August 5,
1920, did not mature into a contract enforceable by law and for an injunction restraining the defendant Secretary of
State from enforcing it. The plaintiff further asked for the return of the War-bond for Rs. 1,000 and Rs. 800 damages
for illegal attachment of his wood.

29. The learned trial Judge found that the plaintiff was entitled to the declaration and injunction sought and the return
of the Rs. 1,000. He did not award any damages for the attachment of the wood and ordered each party to bear his

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own costs.

30. Against thin finding and decree the Secretary of State has appealed.

31. The Advocate General and the Government Pleader appeared for the appellant. Mr. Desai appeared for the
respondent.

32. The learned Advocate General has fairly admitted that under the ordinary law of contract (a 5, Act IX of 1872)
the defendant could not hold the plaintiff to a tender revoked before acceptance. He has, however, relied on the
following rule to be found at p. 170, Vol. 11, Local Rules and Orders under enactments applying to Bombay :-

In exercise of the powers conferred by Section 75, Clause (d) of the Indian Forest Act, 1878 (VII of 1878) as
amended by the Indian Forest Act (V of 1890) and in supersession of Government Notification in the Revenue
Department No. 2790, dated March 31, 1896, the Governor-in Council is pleased to make the following rule, with
reference to Section 81 of the said Act amended as aforesaid, namely :-

Rule.

Whoever enters into any contract with any Forest Officer acting on behalf of Government, shall, if BO required by
such Forest Officer, bind himself by a written instrument to perform such contract.

Explanation. - A person, who makes a written tender for a contract, or who signs the conditions of ,an auction sale at
which he is a bidder, such tender or conditions of sale being on cr in a form furnished by ft Forest Officer for that
purpose, whereby he

(a) binds himself to perform the contract for which he tenders or bids, in the event of his tender or bid being
accepted, or

(b) binds himself not to withdraw his tender or bid during the time that may elapse before its acceptance or refusal is
communicated to him, shall be deemed to have been required by such Forest Officer to bind himself as aforesaid,
and in case (a) on the acceptance of his tender or bind, or in case (6) on the making of his tender or bid, to have
hound himself accordingly, within the meaning of this rule; and any such person need not enter into a separate
written instrument for the purpose, unless specially so required by the Forest Officer with whom he contracts.(The
italics are mine).

33. It is as well at this point to quote also Section 75 and Section 7 of the Indian Forest Act (VII of 1878) Section 75
runs as follows:-

The Local Government may from time to time make rules-

(a) to prescribe and limit the powers and duties of any Forest-Officer under this Act;

(b) to regulate the rewards to be paid to officers and informers out of the proceeds of fines and confiscations under
this Act;

(c) for the preservation, reproduction and disposal of trees and timber belonging to (government, but grown on lands
belonging to or in the occupation of private persons; and,

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(d) generally, to carry out the provisions of this Act.

34. Section 77 as amended runs as follows :-

All rules made by the Local Government under this Act shall be published in the local official Gazette, and shall
thereupon, so far as they are consistent with this Act, have the force of law.

35. Now, as the previously quoted rules have the force of law, so argued the learned Advocate General, Samant shall
be deemed to have bound himself irrevocably when he made his tender, although under Section 5 of the Indian
Contract Act he could ordinarily have revoked his tender before its acceptance. But the learned pleader for the
respondent has objected that Section 77 limits the powers of the local Government to make rules only so far as they
are consistent with the Indian Forest Act. Mr. Desai has argued that the rules are not consistent with the Act in that
there is nothing therein which adumbrates such a drastic measure. But the Act was passed to facilitate the profitable
exploitation of Indian forests and the rules now in question clearly do facilitate the sale of forest produce. Tenders
over Rs. 5,000 have to receive the sanction of the Conservator of Forests That sanction cannot be obtained without
some delay. If in the interval it was open to forest contractors to revoke their tenders the whole work of the forest
department to further the sale of their coupes would have to begin anew.

36. In this connection 1 would quote a pertinent passage from Richardson J.'s judgment in Goberdhone Das Deora v
Dooli chand Sethia (l921) I.L.R. 48 Cal. 955 (p. 982):-

The Courts will approach a rule purporting to he made by the Local Government or by one of its principal
administrative departments under Statutory powers with respect and with the desire so to construe it ut res magis
'waleat quam pereat.

37. Mr. Desai, however, has further contended that rules, to use Maxwell's words, " Interpretation of Statutes, p. 481
(5th ed.)" must. " on pain of invalidity be not unreasonable, nor in excess of the statutory power authorising them,
nor repugnant to that statute or to the general principles of law." The learned pleader has maintained that the rules are
unreasonable and opposed to the general principles of law. The learned Judge of the lower Court has also indicated
that in his view the rules are absurd and unjust. I find myself unable to accept either view It must be remembered
that, irrevocable tenders are called for every day in business circles. There they are known as " firm offers " They
may not be enforceable at law but if a business man resiled from a " firm offer ", lie would lose his reputation for
honesty-which would be much worse for him. I have already shown that unless tenders are irrevocable the work of
the Forest Department is greatly hindered. It is thus not, in my opinion, unreasonable, absurd or unjust that the
Department should issue rules which are conformable with every day business practice and help the administration to
collect revenue. The next question is whether the rules are in excess of the statutory power authorising them. The
words of Section 77 are of the widest character : Provided the rules are made by the local Government under the
Indian Forest Act, that they are published in the Local Official Gazette and are consistent with the Act they shall
have the force of law. It is not alleged that the rules have not been made by the local Government under the Indian
Forest Act nor that they have not been published in the Local Official Gazette. They are, as I have shown, consistent
with the Act. The only question that remains unconsidered is whether the rules are repugnant to the general
principles of law. They certainly are opposed to Section 5 of the Indian Contract Act. Section 5 of the Indian
Contract Act is based on the principle embodied in Section 25 that an agreement made without consideration is void.
A man can revoke a proposal before its acceptance because there is no consideration for the proposal. But Section 25
does not embody an unalterable principle. It contains no less than three exceptions. As it appears to me, at any rate,
there is no reason why a rule, which enables a department to collect Government revenue and has been in force for
twenty years without hind ranee should not add another exception to Section 25. It has been held in Rookett v.

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Clippingdale [1891] 2 Q.B. 293 that rules having the force of law, if promulgated later than a statute, can repeal the
provisions of a statute. In the same way they can, in my view, add to the provisions of a statute.

38. This brings me to a somewhat similar contention advanced by the learned pleader for the respondent. He has
urged that the rules are promulgated with reference to Section 84 of the Indian Forest Act and that Section 84 of the
Indian Forest Act contains no provision whatever regarding an irrevocable tender. To allow the executive to add to a
section of the statute is really to enable it to usurp the power that belongs to the legislature. But in advancing this
argument, as it seems to me, the learned pleader loses sight of Section 77. The legislature deliberately de legated
their full powers to the executive to make rules subject to certain provisions and further deliberately pronounced that
such rules should have the force of law. In other words, the executive have not usurped any power, but the legislature
have bestowed on the executive of their own free will that power. It will not be denied that the rules could legally
have been added to the statute by the legislature. I have shown that all the required provisions have been fulfilled. It,
therefore, follows that the executive have the power of adding by way of rules to the statute. In this connection I
would quote the weighty words of Lord Herschell in the case of Institute of Patent Agents v. Lackwood (p 357):
[1894] A.C. 347 : S.C. 27 T.L.R. 141 "It is said that this would be a very largepower for the Legislature to commit to
any other body; but it must be remembered that it is committed to a public department." Nor should I forget the
words of a hardly less eminent jurist Lord Alverstone in London County Council v. Bermondsey Bioscope Co.
(1910)89 L.J K.B. 141: " This case is an illustration of the well recognised principle that where there is a competent
authority to 'which an Act of Parliament entrusts the power of making regulations, it is for that authority to decide
what regulations are necessary; and any regulations which they may decide to make should be supported, unless they
are mainfestly unreasonable or unfair."

39. For the above reasons I am of opinion that these rules issued by the local Government under Section 75 of the
Indian Forest Act were intra vires, and that the plaintiff Samant having once made his tender could not revoke it even
before acceptance. In these circumstances the Government were justified in recovering the amount due from him as
an arrear of land revenue and committed no wrong in attaching his wood,

40. I would, therefore, allow the appeal with costs throughout. But few words are needed to dispose of the cross-
objection. The respondent's pleader has contended that the Forest Department misled Samant by putting marks on
Forest coupe No. 5 similar to those on Forest coupe No. 4. But the plaintiff has admitted that before making his
tender he did not himself go to the spot. He sent his son-in-law, who appears to have made some casual enquiries
from the neighbouring peasants. A plaintiff who has been so negligent cannot complain of being misled. I would
dismiss the cross-objection with costs. I would reverse the finding and decree of the lower Court and dismiss the
plaintiffs suit.

41. IN consequence of the above difference in opinion, the view of the senior Judge prevailed as provided in Section
98 of the Civil Procedure Code. The decree appealed from was, therefore, confirmed.

42. The Secretary of State for India appealed under the Letters Patent,

43. The appeal was heard by a bench consisting of Macleod C. J. and Crump and Coyajee JJ.

44. Kanga, Advocate General, with S.B. Patkar, Government Pleader, for the appellant. The question that arises for
consideration is whether the rule made by the local Government under Section 84 of the Indian Forest Act is ultra
vires. We submit that the rule is intra vires. Under Section 75 of the Act, the local Government is empowered to
make rules for certain purposes and under Clause (d) "generally, to carry out the provisions of the Act." By Section
77, the rules so made shall, so far as they are consistent with the Act, have the force of law. The rule in question,
therefore, must be read as part of Section 84. It provides that a party offering a tender is not permitted to withdraw it

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before acceptance, It is contended that under Section 5 of the Indian Contract Act, an offer could be revoked before
acceptance and if a party binds itself not to revoke the offer that is an agreement made without consideration, and is
void under the Indian Contract Act, and that the only exceptions where the contract could be made without
consideration were those falling under Section 25 of the Indian Contract Act. We submit that although under Section
5 of the Indian Contract Act, it may be permissible for a party to revoke an offer before acceptance, still if a rule is
made not permitting the withdrawal of the offer and if that rule is to have the force of law, it would not offend the
provisions of the Indian Contract Act. The only teat is that the rule made must carry out the provisions of the Act as
pointed out in Section 75 (d).

Crump, J.

45. The point is whether the rule carries out the provisions of the Act.]

46. We submit it does. One of the provisions of the Act is to enter into a contract in respect of the forest produce to
facilitate the profitable exploitation of the Indian forests and the rule in question does facilitate the sale of forest
produce. Tenders over Rs. 5,000 have to receive the sanction of the Conservator of Forests; that sanction cannot be
obtained without delay and if in the interval it was open to forest contractors to revoke their tenders, the whole work
of the forest department to further the sale of their coupes would have to begin anew. Secondly, if a contractor, is
guilty of breach of contract by not taking the produce and the produce is auctioned by Government, the surplus
money that remains after payment of the Government dues goes to the contractor; the same result does not follow
under the Indian Contract Act when the goods are re-sold under Section 107 of the Act.

Macleod, C.J.

47. If profitable exploitation of forest produce was the purpose for which the rule was made, it should have been
enacted under Clause (c) of Section 75 and not under Clause (d).]

48. Whether the rule was made under Clause (c) or Clause (d) of Section 75, Section 77 points out that rules made by
the local Government, so far as they are consistent with this Act, shall have the force of law.

Crump, J.

49. The rule is in effect an addition to Section 84,]

50. Even if it is taken as an addition it is quite consistent with the section. We submit, therefore, that the rule being
not in any way inconsistent with the provisions of the Act and being made generally to carry out the provisions of the
Act, it is intra vires.

51. Apart from the rule, we can argue that the plaintiff is liable for the deficiency because he had entered into a bond
and the bond could be enforced,

52. We rely on Institute of Patent Agents v. Lookwoad [1894] A.C. 347; London County Council v. Bermondsey
Bioscope Co. (1910) 27 T.L.R. 141 : S.C. 80 L.J. K.B. 141; Rockett v. Clipping dale [1891] 2 Q.B. 293 and Garnett
v. Bradley (1878) 3 App. Cas. 944, 969.

53. A. G. Desai, for the respondent. To decide whether the rule is ultra vires or intra vires it is desirable to inquire
when and why a 84 was added and note the changes subsequently effected therein. The section did not exist in Act
VII of 1878 as originally framed. It was added by Section 14 of Act V of 1890, based on Section 25 of the Opium
Act I of 1875. Vide the Report of the Proceedings in Council, Vol. XXIX, p. 43. Section 84, as originally drafted, ran

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: ' When any person...binds himself by any instrument to perform any duty." Before the word " instrument " the
words 'bond or" were added by amending Act I of 1918. The reason for the addition of the words "bond or" was, it is
submitted, to give a restricted meaning to the word "instrument" on the principle of ejusdem generis. A "bond"
connotes a collateral agreement enforceable by law. An "instrument" may not. The "instrument," e. g., the tender in
dispute, must reach the stage of an agreement as in the case of "a bond" before it can be held to be binding on the
party executing it. Section 84 thus presupposes the existence of a completed contract.

Macleod, C.J.

54. When we have to decide what penalty is to be imposed, we have to look to Section 84.]

55. True. But the penalty will be imposed in case there is a breach of "a contract." A tender revoked before
acceptance is not an agreement, much less a contract. An agreement not to revoke before acceptance is not
enforceable by law as it is void for want of consideration. Further, the power to impose the full penalty is given by
the section itself, specifically overriding Section 74 of the Indian Contract Act in that behalf, Section 84 is the only
section which refers to the Indian Contract Act and if the legislature had intended to give effect to an agreement
made without consideration, words like "or Section 25" would have been added immediately after the words "s. 74"
in Section 84 itself of the Act.

56. Under the Indian Forest Act, the local Government has no doubt been invested with power to frame rules under
the different sections of the Act: vide, e. g,, BB. 15, 25, Clauses (6) and (i), 31, 41,51 and 70 of the Act. But this rule-
making power is limited to the specific purposes as laid down therein Macleod, C.J.

57. [The local Government can make the rule in question under Section 75 (c).]

58. No. It is nobody's case that the rule has been made under Clause (o). If that had been the case we would have
cross-examined the forest official on this point, The rule is admittedly made under Section 75, Clause (d), and the
only question is whether it is intra vires.

59. If the legislature instead of itself modifying Section 5 or 25 of the Indian Contract Act intended to reserve this
power to the local Government, it would have specifically done so by the addition of a clause like "and subject to
such rules as the local Government may from time to time proscribe in this behalf" after the words " of the Indian
Contract Act (1872) " in Section 84: of Section 15. The legislature would not have relegated such a general and
important power to a section like Section 75. Clause (d), which empowers the local legislature to frame " subsidiary
rules " (vide the heading to Chapter XIII) and that too of the nature, it is submitted, as laid down in Clauses (a) to (c)
on the principle of ejusdem generis If that were not so, there would be no necessity for specific clauses empowering
the local legislature to frame rules, as, e. g , under Sections 15, 25, 31, 35, 41, 51 and 70 of the Act.

60. The rule in question is inconsistent with the general rule of contract and so also with Section 84 of the Act,
Section 84 respects the law of contract. It only limits the operation of a 74 of the Indian Contract Act while the rule
in question cuts at very root of the law of contract. Such a rule cannot have the force of law given to it. Vide
Maxwell on Interpretation of Statutes, 6th Edn., p. 523, and the title and preamble and Section 77 of the Act

61. One Act may modify another, see e. g , Section 70 which amends Section 12 of the Cattle Trespass Act; but
where a rule or a bye-law seeks to do so, the Courts ought to be vigilant to see whether such power is really given to
the local Government and the latter must not be allowed to take shelter under general clauses like Section 75 (d). A
similar attempt was made under the Motor Vehicles Act, but failed : Emperor v. Baker (1921) 24 Bom. L.R. 50, 53.

62. The cases referred to by Kincaid J. in his judgment have no bearing on the point under reference. The case of

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Garnett v. Bradley (1878) 3 App. Cas. 944, 969 S.C. 27 T.L.R. 141 e. g., refers to the question of costs. See,
however, the remarks at p. 969. The case of Roakett v. Clippingdale [1891)2 Q.B. 293 also relates to the question of
costs and follows Garnett v. Bradley. In London County Council v. Bermondsey Bioscope Co. (1910) 80 L.J. K.B.
141 there was no conflict between the bye law and the general law, viz., the Sunday Observances Act of 1780. In
fact the bye-law sought to give effect to the latter Act.

63. Kanga, in reply. Section 84 says that ' bond' shall be adhered to and the party bound by it must carry out the
provisions. This rule is consistent with the Act. It was enacted in 1903 and since that date acted upon. It is held that
rules which have the force of law can supersede the earlier statute: Roakett v. Clippingdale [1891] 2 Q.B. 293. On
the cross-objections urged by A. G. Desai, regarding the increase of damages, Kanga, raised a preliminary objection
that under Clause 15 of the Letters Patent the cross-objections could not be entertained. The appeal under that clause
was competent when there was a difference of opinion between the Judges. Here both the Judges had concurred in
dismissing the cross-objections.

Macleod, C.J.

64. [In an ordinary appeal the respondent can cross object.]

65. Yes, As against an original decree when an appeal is preferred, a respondent can put in cross-objections as they
are allowed. In a Letters Patent appeal the right to appeal comes in only on a difference of opinion but on a question
where two Judges have agreed the party cannot appeal. So in this case.

66. Dasai relied on Velji Bhimsay & Co. v. Bachoo Bhaidas (1924) 26 Bom. L.R. 349, 359 Cross-objections were
allowed to be urged.

Macleod, C.J.

67. On June 25, 1920, the Divisional Forest Officer, Western Division, Thana, by a proclamation, invited tenders
with reference to certain forest coupes in the Thana District. The tenders were to be submitted on or. before August
5, 1920, 1 p. M The plaintiff submitted a tender in the standard form for several coupes, including coupe No. 4 in
Block No. XIX before 1 p. M. on August 5. He offered to take up that particular coupe for Rs. 12,299. Immediately
after, however, he discovered that he had committed a mistake in that the sum offered was not intended for that
particular coupe, but for coupe No. 5, which was near coupe No. 4. He then sought to revoke his tender. At 4-30 on
that day the plaintiff's son sent a petition requesting the officer not to sanction the tender for coupe No. 4 as it was
submitted under a mistake. The plaintiff and his son also sent a telegram which reached the Divisional Forest Officer
at 5-22 p. M, revoking the tender. At 7 p. M. the plaintiff's tender with reference to this coupe was accepted, subject
to confirmation by the Conservator of forests, and such acceptance was notified, The Conservator of Forests
eventually accepted the tender and called upon the plaintiff by notice of October 15, 1920, to pay one-fourth of the
amount. The plaintiff refused to accept the acceptance of the tender, and refused to pay. He was then informed on
October 29, that there would be a re sale of that coupe, In fact it was re-sold on November 18, and it fetched Rs.
2,246. Then the plaintiff was called upon to pay the deficiency, and on December 14, 1920, his wood was attached. It
was, however, released from attachment on April 19, 1921.

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68. The plaintiff filed this suit after giving the necessary notice on April 21, 1921. He prayed for a declaration thatthe
tender of August 5, 1920, did not mature into a contract enforceable by law, the proposal contained in the tender
having been revoked before its acceptance, and for an injunction restraining the defendant from enforcing the so-
called contract. He also claimed the return of the War-Bond for Rs. 1,000, and he claimed Rs. £00 as damages for
illegal and improper attachment of his goods.

69. The defendant pleaded that the tender was irrevocable and binding as a contract upon the plaintiff in virtue of a
rule made by the local Government under Section 75 (d) of the Indian Forest Act, 1878, and that the sum was liable
to forfeiture under the provisions of Section 84.

70. The trial Judge found that the plaintiff could legally withdraw his tender after it was made and before it was
accepted, and passed a decree in favour of the plaintiff granting a declaration and injunction as prayed and also
directing delivery to the plaintiff of the War-Bond of Rs. 1,00;. The rest of the plaintiff's claim was rejected.

71. The defendant appealed to the High Court, The learned Judges of the High Court differed, Mr. Justice Shah held
that the rule on which the defendant relied was ultra vires, while Mr. Justice Kincaid held to the contrary. As the
opinion of the senior Judge prevailed, under Section 98, Civil Procedure Code, the decision of the Court below was
confirmed.

72. The defendant has now filed this Letters Patent appeal, and the question whether the rule on which the defendant
relies is altra or intra vires has been fully argued before us.

73. Section 75 of the Indian Forest Act gives the local Government power from time to time to make rules inter alia,
under heading "(d), generally, to carry out the provisions of this Act."

74. Section 77 provides that, all rules made by the local Government shall be published in the local official Gazette,
and shall thereupon, so far as they are consistent with the Act, have the force of law.

75. Section 84 is in the these terms :-

When any person, in accordance with any provision of this Act or in compliance with any rule made thereunder,
binds himself by any bond or instrument to perform any duty or act, or covenants by any bond or instrument that he,
or that he and his servants and agents, will abstain from any act, the whole sum mentioned in such bond or
instrument as the amount to be paid in care of a breach of the conditions thereof may, notwithstanding anything in
Section 74 of the Indian Contract Act, 1872, be recovered from him in case of such breach as if it were an arrear of
land-revenue.

76. That section was added by Act V of 1890, and was amended slightly by Act I of 1918. In 1908 the local
Government notified an follows " in exercise of the power conferred by Section 75 (d) of the Indian Forest Act.
1878, as amended by Act V of 1890, and in supersession of the Government Notification in the revenue Department
No. 2799, dated March 31, 1896, the Governor in Council is pleased to make the following rule with reference to
Section 84 of the said Act amended as aforesaid :-

Whoever enters into any contract with any Forest officer acting on behalf of (Government, shall, if so required by
such Forest Officer, bind himself by a written instrument to perform such contract.

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77. It is quite clear that that sale was a rule framed for the purpose of carrying out the provisions of the Act To the
rule was added an explanation as follows:-

Explanation : -A person, who makes a written tender for a contract, or who signs the conditions of an auction sale at
which he is a bidder, such tender or conditions of sale being on or in a form furnished by a forest Officer for that
purpose, whereby he

(a) binds himself to perform the contract for which ho tenders or bids, in the event of his tender or bid being
accepted, or

(b) binds himself not to withdraw his tender or bid during the time that may elapse before its acceptance or refusal is
communicated to him, shall be deemed to have been required by such forest Officer to bind himself as aforesaid, and
in case (a) on the acceptance of his tender or bid, or in case (A) on the making of his tender or bid, to have bound
himself accordingly, within the meaning of this rule; and any such person need not enter into a separate written
instrument for the purpose' unless specially so required by the Forest Officer with whom he contracts.

78. The tender which the plaintiff signed contained these words:-

I further agree that I will not withdraw this tender during the time that will be required for intimation of the
acceptance or non-acceptance of the tender being given to no and if I do so withdraw (the tender) then I am liable to
pay the whole sum of this fonder or such amount on account of deficiency as in the opinion of the Conservator or the
Deputy Conservator of the Circle may be considered necessary be make Rood the whole of the the and damages that
may be suffered by Government in consequence thereof and 1 shall pay the same.

79. It is admitted on both sides that that agreement under a 20 of the Indian Contract Act is an agreement without
consideration, and therefore, was void. Further that under Section 5 of the Indian Contract Act, a person who makes
a proposal is '. entitled to withdraw it before it is accepted.

80. Now, according to the explanation to the rule which I have just read, when the plaintiff signed the tender, he
must be deemed to have been required by the Forest Officer to bind himself to perform the contract, and further to
have bound himself not to withdraw his tender or bid during the time that might elapse before its acceptance or
refusal was communicated to him.

81. Then turning to Section 84 of the Indian Forest Act, the plaintiff in compliance with that rule had bound himself
by an instrument to perform a duty or act, or covenanted by such instrument to abstain from a certain act, and the
penalty for failure to observe that covenant would be the penalty mentioned in Section 84, I may point out here that
the words " in compliance with any rule made thereunder " were not exactly the right words that should have bean
used, and it would have been plainer if the legislature had used the words " by virtue of any rule made under the
provisions of the Act" But we do not think that that slight error in drafting the section would affect the question
whether the rule was intra or ultra vires. It was contemplated that rules might be made whereby persona should bind
themselves or covenant to perform a duty or act or abstain from any act. Consequently we think that the rule was
made not only to carry out the provisions of the Act, but also in order to amplify the provisions of Section 84, We
see no reason do think, therefore, that the rule can be said to be ultra vires of the local Government.

82. It was contended that the local Government would have no power to promulgate any rule which made an
alteration in the ordinary law of contract unless express power to do so had been given in the Act. We cannot agree
with that argument. Reliance was then placed on a passage in Maxwell on Interpretation of Statutes, 6th Ed., p. 523 :-

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Rules and bye laws made under the statutory powers enforceable by penalties are construed like other' provisions
encroaching on the ordinary rights of persons. They must, on pain of invalidity, be not unreasonable, nor in excess of
the statutory power authorising them, nor repugnant to that statute or to the general principles of law.

83. It cannot be said that this rule we are now considering is in excess of the statutory power authorising it, nor is it
repugnant to the statute. It only remains to be considered whether it is repugnant to the general principles of law.
That phrase is a somewhat wide one, and we do not think that it excludes the power to make a rule which is
repugnant to a particular statute in force at the time. As pointed out by the Advocate ' General, it is neither
unreasonable nor unfair, and there was a distinct object in passing that rule, namely, to facilitate the operations of the
Forest Officer for disposal of the forest produce. An offer or tender for a certain amount had to be submitted to the
Divisional Forest Officer; and the tender in this case being for more than Rs. 5,000 that officer had no authority to
finally accept it, but had to submit it for approval to the Conservator of Forests; consequently there must necessarily
have been some delay before that tender could be accepted and the acceptance notified to the tenderer and if it was
open to a tenderer to revoke his tender before the acceptance of it was notified to him, it would be extremely difficult
for the Forest Officers to conduct sales of forest produce.

84. It has, therefore, not been shown to us that the local Government had no power to promulgate a rule which was
contrary to the provisions of Sections 5 and 25 of the Indian Contract Act; as the local Government had special
power to make rules, so far as they were consistent with the Indian Forest Act, and as such rules, when made, have
the force of law, the result must be that this rule being made in order to carry out the provisions of the Act, and not
being inconsistent with the Act, must be considered as taking its place within the Act.

85. We think the appeal must succeed and the plaintiff's suit dismissed. The appellant will get his costs in this Court
and in the lower appellate Court, but we do not disturb the order of costs in the trial Court. The cross-objections are
dismissed with costs.

86. With regard to the claim made to us, after judgment was delivered, by the respondent that he deposited Us. 200
for each of the five coupes for which he tendered, making Us. 1,000 for all, so that he would be entitled to a refund
of Rs. 800 in any event, we can only say that there are no materials before us on which we can decide whether the
plaintiff' is entitled to such a refund. He never mentioned that claim in the proceedings in the trial Court, and there
was no issue raised thereon. It would be impossible for us, sitting as we are in appeal under the Letters Patent, to
decide a question of fact on which there is no evidence. If, however, as a matter of fact the plaintiff tendered for five
coupes and made a deposit of Rs. 200, as he now says, against each separate tender, then if the tender was 1 not
accepted for four coupes, ordinarily speaking he would be entitled to the return of his deposit pro tanto, and we
presume he is still entitled to ask for that return, as the period of limitation would run from the date of demand of
such deposit and its refusal.

Crump, J.

87. I concur.

Coyajee, J.

88. I concur.

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