M. StalIn Arockiaraj, Correspondent, Sahayamatha and St. Michael Teacher Training Institute Vs. the District Collector and the Special Tahsildar, (Adi Dravidar Welfare) - Court Judgment

SooperKanoon Citationsooperkanoon.com/821464
SubjectProperty
CourtChennai High Court
Decided OnApr-01-2009
Case NumberW.A. No. 903 of 2005
JudgeD. Murugesan and ;S. Nagamuthu, JJ.
Reported in(2009)5MLJ1504
ActsTamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 - Sections 3, 4, 4(1), 4(2), 6 and 7; Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 - Rule 3
AppellantM. StalIn Arockiaraj, Correspondent, Sahayamatha and St. Michael Teacher Training Institute
RespondentThe District Collector and the Special Tahsildar, (Adi Dravidar Welfare)
Appellant AdvocateR. Krishnamoorthi, Sr. Counsel for T.P. Kathiravan, Adv.
Respondent AdvocateR. Thirugnanam, Special Government Pleader
Cases ReferredSee Sundarlal v. Paramsukhdas
Excerpt:
- d. murugesan, j.1. an extent of 0.92.0 hectares of punja land in village survey no. 46/4c in somanathamangalam village, sivagangai taluk was notified under sub-section (1) of section 4 of the tamil nadu acquisition of land for harijan welfare schemes act, 1978 (hereinafter called as 'the act') in form-ii read with rule 3(ii) of the tamil nadu acquisition of land for harijan welfare schemes rules, 1979 by the district collector, pasumpon muthuramalinga thevar district in the district gazette dated 17.9.96. in the notification one tmt. janaki ammal, w/o velayutham was shown as the land owner. an award dated 10.1.97 was passed quantifying the amount of compensation for the land to be paid to the said janaki ammal. the acquisition proceedings were questioned by one er. v. michael, correspondent, sahayamatha & st. michael teacher training institute, sivagangai on the ground that the land in question was purchased by him through a registered sale deed dated 28.4.84 from one savarimuthu and he had obtained patta on 30.3.85. from the date of the said purchase, he was in possession and thereafter he executed a settlement deed dated 20.5.91 in favour of the institute, namely, sahayamatha & st.michael teacher training institute.2. though he had obtained patta as early as on 30.3.85, the revenue authorities, by mistake and without proper verification of the records, granted patta to one tmt. janaki ammal. a suit in o.s. no. 469 of 1994 was also filed by him on the file of the district munsif court, sivagangai and he obtained an order of injunction on 7.7.94 and the order of injunction was also served on the tahsildar and village administrative officer on the very same day. in spite of the service of the order of injunction and the tahsildar and the village administrative officer were aware of the order of injunction granted in favour of him, section 4(1) notification was issued and an order under section 6 of the act was also passed. thereafter, the special tahsildar, adi dravidar welfare, sivagangai taluk passed an order dated 23.1.97 granting patta in favour of 52 persons. the entire acquisition proceedings are vitiated, as he was not put on notice either under section 4(2) or under section 4(1) or for the receipt of compensation as determined in terms of sections 6 & 7 of the act. he also alleged that the land has been settled in favour of the educational institute and it is situate just in front of the main buildings preventing the access to the institute as such. the said writ petition came to be dismissed by the impugned order under appeal.3. mr. r. krishnamoorthi, learned senior counsel appearing for the appellant raised the following contentions:(i) the institute in question is a 'person interested' and in terms of sub-section (2) of section 4 of the act, a show cause notice should have been issued calling for objections before issuance of notification under section 4(1) of the act. in the absence of such opportunity, which is mandatory in nature, the acquisition proceedings are vitiated.(ii) in terms of sub-section (2) of section 4, the district collector is empowered to issue such notice and hold enquiry. in case if he does not hold any enquiry by issue of such notice, he could authorise an officer in that behalf. inasmuch as the district collector had not authorised any officer, particularly the special tahsildar, adi dravida welfare, sivagangai to issue notice under sub-section (2) of section 4 and to hold an enquiry on the objections received from the owner or any other person who may be interested in such land, the acquisition proceedings are vitiated.(iii) sub-section (1) of section 4 mandates that the district collector must satisfy himself that it is necessary to acquire the land and only on such satisfaction, he could direct the publication of the notice in the district gazette as to his decision to acquire the land. a perusal of the notification under sub-section (1) of section 4 shows that it was the satisfaction of the government to acquire the land and the said notification does not indicate of any such satisfaction by the district collector himself. in the absence of such satisfaction by the district collector, the notification is vitiated.(iv) in any case, in view of the judgment and decree in a.s. no. 191 of 1999 dated 17.7.2001, which arose out of the judgment and decree in o.s. no. 469 of 1994 dated 12.11.97, the appellant is the lawful owner of the land in survey no. 46/4c and therefore the acquisition is bad.4. as against the above challenge, mr. r. thirugnanam, learned special government pleader would submit as follows:(i) the writ petition by the appellant is not maintainable, as the appellant is not either the owner or a person interested in the land. consequently, in the absence of either the ownership or the interest over the land, the appellant cannot be considered to be a person aggrieved over the acquisition proceedings.(ii) in any case, the award in question was passed on 10.1.97 and this court cannot entertain the writ petition filed after the award was passed and possession was taken and in fact by order dated 23.1.97, the beneficiaries were granted pattas.(iii) insofar as the challenge to the failure on the part of the district collector to satisfy himself, he would submit that the gazette notification dated 17.9.96 under section 4(1) was published in tamil and the said notification clearly indicates the satisfaction of the district collector and therefore the contention of the learned senior counsel for the appellant that there was no satisfaction by the district collector is factually incorrect.5. in reply, the learned senior counsel appearing for the appellant would submit that inasmuch as the issue relating to the locus standi was not raised in the counter affidavit, it cannot be allowed to be raised at the appellate stage. to meet out the above, the learned special government pleader would submit that in the counter affidavit at paragraphs 4, 7 & 8, the issue relating to the maintainability is raised and the writ petition was opposed.6. we have carefully considered the above submissions. before the challenge to the acquisition proceedings on other grounds as to whether the acquisition proceedings are vitiated for want of notice to the institute under sub-section (2) of section 4 or whether the district collector had authorised the special tahsildar to issue notice and to hold an enquiry under sub-section (2) of section 4 and as to whether the district collector himself satisfied the acquisition before issue of 4(1) notification, the issue relating to the maintainability of the writ petition must be considered.7. by the 4(1) notification dated 17.9.96, an extent of 0.92.0 hectares of punja land in village survey no. 46/4c in somanathamangalam village, sivagangai taluk belonging to one janaki ammal was notified. before considering the issue as to the maintainability, it would be relevant to point out that initially the writ petition was filed by one er. v. michael claiming himself to be the correspondent of sahayamatha & st. michael teacher training institute. after the order in the writ petition and the writ appeal was filed and the same was pending, the said er.v.michael passed away on 4.9.2006. hence his son m. stalin arockiaraj filed a petition to implead himself and the said petition was ordered by this court.8. section 4 of the act reads as under:4. power to acquire land.-(1) where the district collector is satisfied that, for the purpose of any harijan welfare scheme, it is necessary to acquire any land, he may acquire the land by publication in the district gazette a notice to the effect that he has decided to acquire the land in pursuance of this section.(2) before publishing a notice under sub-section (1), the district collector or any officer authorised by the district collector in this behalf, shall call upon the owner or any other person, who, in the opinion of the district collector or the officer so authorised may be interested in such land, to show cause why it should not be acquired.(3)(a) & (b)....a perusal of sub-section (2) would show that both the owner of the land or any other person who in the opinion of the district collector or the officer so authorised may be interested in such land is entitled to the notice. the word 'person interested' is defined in section 3(i) as follows:(i) 'person interested' in relation to any land or building includes any person claiming, or entitled to claim, an interest in the amount payable on account of the acquisition of that land or building under this act.9. a person interested under the act must be a person claiming or entitled to claim an interest in the amount payable on account of the acquisition of the land or building. the relevant test to find out as to a person interested would be that such person would be entitled to claim compensation either in the capacity of owner or otherwise. the word 'compensation' is attached to the land and therefore the right to compensation is traceable to either the 'owner' or the 'person interested' in such land. there is no obligation cast upon the authorities to issue notice to persons who are not either 'the owners' or 'persons interested' under section 4(2) of the act. anybody who has no legal interest cannot question the acquisition proceedings. see sundarlal v. paramsukhdas : [1968]1scr362 .10. the scheme of the act and the express provisions thereof establish that a right to be heard over such acquisition is conferred only on the 'owner' or the 'person interested'. unless the owner of the land who is entitled to claim compensation in lieu of acquisition of his land or the person interested in lieu of the acquisition of the land on which he is interested, a writ petition cannot be maintained by any other person or persons.11. keeping the above principles in mind, the facts of the case on hand must be considered. the writ petition came to be filed by er. v. michael, the father of the appellant, claiming himself to be the correspondent of sahayamatha & st. michael teacher training institute. in the affidavit, he has stated that he purchased an extent of 0.92.0 hectares of punja land in survey no. 46/4c, somanathamangalam village from one v. savarimuthu by a registered sale deed dated 28.4.84 and he also obtained patta on 30.3.85. he also claimed that he executed a settlement deed dated 20.5.91 in favour of the 'petitioner institute' namely, the appellant-institute, necessarily meaning thereby that the writ petition was filed on behalf of the institute claiming that the institute is the owner of the said land. a perusal of the settlement deed shows that the land in question is factually not included. a perusal of the settlement deed shows that the lands in survey nos. 47/4b, 48, 43/1, 2, 3, 44/1, 2, 3, 4, 45/1c, 6c, 2c, 46/1c & 46/3c were alone gifted. therefore, sahayamatha & st. michael teacher training institute is not the owner of the land in question. the writ petition came to be filed by the said michael claiming himself to be the correspondent of sahayamatha & st.michael teacher training institute. having claimed that the land in question was settled in favour of the institute, it must be reasonably presumed that the writ petition was filed not in his individual capacity but on behalf of the institute only. in the affidavit filed in support of the writ petition sworn to by the said michael, it is stated that by settlement deed dated 20.5.91 the land in question was settled in favour of the said institute i.e., the writ petitioner institute, necessarily meaning thereby that the acquisition proceedings were questioned by the institute as such. inasmuch as the institute is not the owner of the land, it cannot either claim to be the 'owner' or the 'person interested' within the meaning of sub-section (2) of section 4 of the act to claim a notice and to make objections as to the proposed acquisition. after the demise of the said michael, during the pendency of the writ appeal, his son filed a petition to implead himself, which was ordered by this court on 20.4.2007. in the affidavit filed in support of the said petition, it is stated that his father er. v. michael was the correspondent of sahayamatha & st. michael teacher training institute and after his death, he took charge of the institute and became the correspondent of the institute. hence the appeal is being prosecuted by the son of the said michael only in the capacity of correspondent of the educational institute, thereby claiming that the institute is the owner of the property.12. there is one more aspect as to the disentitlement of the appellant to sustain the writ petition. the said michael was issued with the patta in respect of an extent of 0.92.0 hectares in survey no. 46/4c on 30.3.85. it appears that the revenue authorities granted patta in favour of one tmt. janaki ammal on 6.6.94. therefore, a suit in o.s. no. 469 of 1994 was filed seeking for a declaration that the said michael is the owner of the property and for a consequential injunction that the said janaki ammal or her men should not interfere with the possession and enjoyment of the property. the plaintiff is the said michael and the institute. the schedule of property in the said suit, of course, includes the survey no. 46/4c as well. the injunction obtained by the said michael in his individual capacity on 7.7.94 in respect of the acquired land in question goes to show that even when the suit was filed in the year 1994, the said michael had claimed the land in question as belonging to him and not to the institute. interestingly in the plaint dated 6.7.94, though he referred to a gift deed in favour of the institute, he has not mentioned the land in survey no. 46/4c, apparently meaning thereby that the said land was never gifted in favour of the institute at any point of time and was kept by himself. in such circumstance, a writ petition by the institute claiming to be the owner of the acquired land is certainly not maintainable.13. in view of our conclusion that the writ petition itself is not maintainable, as the writ petitioner/appellant is not either the owner or a person interested in the property, and consequently cannot be considered to be a person aggrieved over the land acquisition proceedings in order to challenge the same before this court. in view of our above finding, we are not inclined to go into the other contentions raised by the learned senior counsel for the appellant in challenging the impugned land acquisition proceedings. as the writ petition itself is not maintainable, the same is liable to be dismissed on that ground alone. accordingly, both the writ appeal and the writ petition are dismissed. consequently, interim injunction is vacated and the w.a.m.p. no. 1676 of 2005 is also dismissed. no costs.
Judgment:

D. Murugesan, J.

1. An extent of 0.92.0 hectares of punja land in village Survey No. 46/4C in Somanathamangalam village, Sivagangai Taluk was notified under Sub-section (1) of Section 4 of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (hereinafter called as 'the Act') in Form-II read with Rule 3(ii) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 by the District Collector, Pasumpon Muthuramalinga Thevar District in the District Gazette dated 17.9.96. In the notification one Tmt. Janaki Ammal, W/o Velayutham was shown as the land owner. An award dated 10.1.97 was passed quantifying the amount of compensation for the land to be paid to the said Janaki Ammal. The acquisition proceedings were questioned by one Er. V. Michael, Correspondent, Sahayamatha & St. Michael Teacher Training Institute, Sivagangai on the ground that the land in question was purchased by him through a registered sale deed dated 28.4.84 from one Savarimuthu and he had obtained patta on 30.3.85. From the date of the said purchase, he was in possession and thereafter he executed a settlement deed dated 20.5.91 in favour of the institute, namely, Sahayamatha & St.Michael Teacher Training Institute.

2. Though he had obtained patta as early as on 30.3.85, the revenue authorities, by mistake and without proper verification of the records, granted patta to one Tmt. Janaki Ammal. A suit in O.S. No. 469 of 1994 was also filed by him on the file of the District Munsif Court, Sivagangai and he obtained an order of injunction on 7.7.94 and the order of injunction was also served on the Tahsildar and Village Administrative Officer on the very same day. In spite of the service of the order of injunction and the Tahsildar and the Village Administrative Officer were aware of the order of injunction granted in favour of him, Section 4(1) notification was issued and an order under Section 6 of the Act was also passed. Thereafter, the Special Tahsildar, Adi Dravidar Welfare, Sivagangai Taluk passed an order dated 23.1.97 granting patta in favour of 52 persons. The entire acquisition proceedings are vitiated, as he was not put on notice either under Section 4(2) or under Section 4(1) or for the receipt of compensation as determined in terms of Sections 6 & 7 of the Act. He also alleged that the land has been settled in favour of the educational institute and it is situate just in front of the main buildings preventing the access to the institute as such. The said writ petition came to be dismissed by the impugned order under appeal.

3. Mr. R. Krishnamoorthi, learned senior Counsel appearing for the appellant raised the following contentions:

(i) The institute in question is a 'person interested' and in terms of Sub-section (2) of Section 4 of the Act, a show cause notice should have been issued calling for objections before issuance of notification under Section 4(1) of the Act. In the absence of such opportunity, which is mandatory in nature, the acquisition proceedings are vitiated.

(ii) In terms of Sub-section (2) of Section 4, the District Collector is empowered to issue such notice and hold enquiry. In case if he does not hold any enquiry by issue of such notice, he could authorise an officer in that behalf. Inasmuch as the District Collector had not authorised any officer, particularly the Special Tahsildar, Adi Dravida Welfare, Sivagangai to issue notice under Sub-section (2) of Section 4 and to hold an enquiry on the objections received from the owner or any other person who may be interested in such land, the acquisition proceedings are vitiated.

(iii) Sub-section (1) of Section 4 mandates that the District Collector must satisfy himself that it is necessary to acquire the land and only on such satisfaction, he could direct the publication of the notice in the District Gazette as to his decision to acquire the land. A perusal of the notification under Sub-section (1) of Section 4 shows that it was the satisfaction of the Government to acquire the land and the said notification does not indicate of any such satisfaction by the District Collector himself. In the absence of such satisfaction by the District Collector, the notification is vitiated.

(iv) In any case, in view of the judgment and decree in A.S. No. 191 of 1999 dated 17.7.2001, which arose out of the judgment and decree in O.S. No. 469 of 1994 dated 12.11.97, the appellant is the lawful owner of the land in Survey No. 46/4C and therefore the acquisition is bad.

4. As against the above challenge, Mr. R. Thirugnanam, learned Special Government Pleader would submit as follows:

(i) The writ petition by the appellant is not maintainable, as the appellant is not either the owner or a person interested in the land. Consequently, in the absence of either the ownership or the interest over the land, the appellant cannot be considered to be a person aggrieved over the acquisition proceedings.

(ii) In any case, the award in question was passed on 10.1.97 and this Court cannot entertain the writ petition filed after the award was passed and possession was taken and in fact by order dated 23.1.97, the beneficiaries were granted pattas.

(iii) Insofar as the challenge to the failure on the part of the District Collector to satisfy himself, he would submit that the Gazette notification dated 17.9.96 under Section 4(1) was published in Tamil and the said notification clearly indicates the satisfaction of the District Collector and therefore the contention of the learned senior Counsel for the appellant that there was no satisfaction by the District Collector is factually incorrect.

5. In reply, the learned senior Counsel appearing for the appellant would submit that inasmuch as the issue relating to the locus standi was not raised in the counter affidavit, it cannot be allowed to be raised at the appellate stage. To meet out the above, the learned Special Government Pleader would submit that in the counter affidavit at paragraphs 4, 7 & 8, the issue relating to the maintainability is raised and the writ petition was opposed.

6. We have carefully considered the above submissions. Before the challenge to the acquisition proceedings on other grounds as to whether the acquisition proceedings are vitiated for want of notice to the institute under Sub-section (2) of Section 4 or whether the District Collector had authorised the Special Tahsildar to issue notice and to hold an enquiry under Sub-section (2) of Section 4 and as to whether the District Collector himself satisfied the acquisition before issue of 4(1) notification, the issue relating to the maintainability of the writ petition must be considered.

7. By the 4(1) notification dated 17.9.96, an extent of 0.92.0 hectares of punja land in village Survey No. 46/4C in Somanathamangalam village, Sivagangai Taluk belonging to one Janaki Ammal was notified. Before considering the issue as to the maintainability, it would be relevant to point out that initially the writ petition was filed by one Er. V. Michael claiming himself to be the Correspondent of Sahayamatha & St. Michael Teacher Training Institute. After the order in the writ petition and the writ appeal was filed and the same was pending, the said Er.V.Michael passed away on 4.9.2006. Hence his son M. Stalin Arockiaraj filed a petition to implead himself and the said petition was ordered by this Court.

8. Section 4 of the Act reads as under:

4. Power to acquire land.-(1) Where the District Collector is satisfied that, for the purpose of any Harijan Welfare Scheme, it is necessary to acquire any land, he may acquire the land by publication in the District Gazette a notice to the effect that he has decided to acquire the land in pursuance of this Section.

(2) Before publishing a notice under Sub-section (1), the District Collector or any officer authorised by the District Collector in this behalf, shall call upon the owner or any other person, who, in the opinion of the District Collector or the officer so authorised may be interested in such land, to show cause why it should not be acquired.

(3)(a) & (b)....

A perusal of Sub-section (2) would show that both the owner of the land or any other person who in the opinion of the District Collector or the officer so authorised may be interested in such land is entitled to the notice. The word 'person interested' is defined in Section 3(i) as follows:

(i) 'person interested' in relation to any land or building includes any person claiming, or entitled to claim, an interest in the amount payable on account of the acquisition of that land or building under this Act.

9. A person interested under the Act must be a person claiming or entitled to claim an interest in the amount payable on account of the acquisition of the land or building. The relevant test to find out as to a person interested would be that such person would be entitled to claim compensation either in the capacity of owner or otherwise. The word 'compensation' is attached to the land and therefore the right to compensation is traceable to either the 'owner' or the 'person interested' in such land. There is no obligation cast upon the authorities to issue notice to persons who are not either 'the owners' or 'persons interested' under Section 4(2) of the Act. Anybody who has no legal interest cannot question the acquisition proceedings. See Sundarlal v. Paramsukhdas : [1968]1SCR362 .

10. The scheme of the Act and the express provisions thereof establish that a right to be heard over such acquisition is conferred only on the 'owner' or the 'person interested'. Unless the owner of the land who is entitled to claim compensation in lieu of acquisition of his land or the person interested in lieu of the acquisition of the land on which he is interested, a writ petition cannot be maintained by any other person or persons.

11. Keeping the above principles in mind, the facts of the case on hand must be considered. The writ petition came to be filed by Er. V. Michael, the father of the appellant, claiming himself to be the Correspondent of Sahayamatha & St. Michael Teacher Training Institute. In the affidavit, he has stated that he purchased an extent of 0.92.0 hectares of punja land in Survey No. 46/4C, Somanathamangalam village from one V. Savarimuthu by a registered sale deed dated 28.4.84 and he also obtained patta on 30.3.85. He also claimed that he executed a settlement deed dated 20.5.91 in favour of the 'petitioner institute' namely, the appellant-institute, necessarily meaning thereby that the writ petition was filed on behalf of the institute claiming that the institute is the owner of the said land. A perusal of the settlement deed shows that the land in question is factually not included. A perusal of the settlement deed shows that the lands in Survey Nos. 47/4B, 48, 43/1, 2, 3, 44/1, 2, 3, 4, 45/1C, 6C, 2C, 46/1C & 46/3C were alone gifted. Therefore, Sahayamatha & St. Michael Teacher Training Institute is not the owner of the land in question. The writ petition came to be filed by the said Michael claiming himself to be the Correspondent of Sahayamatha & St.Michael Teacher Training Institute. Having claimed that the land in question was settled in favour of the institute, it must be reasonably presumed that the writ petition was filed not in his individual capacity but on behalf of the institute only. In the affidavit filed in support of the writ petition sworn to by the said Michael, it is stated that by settlement deed dated 20.5.91 the land in question was settled in favour of the said institute i.e., the writ petitioner institute, necessarily meaning thereby that the acquisition proceedings were questioned by the institute as such. Inasmuch as the institute is not the owner of the land, it cannot either claim to be the 'owner' or the 'person interested' within the meaning of Sub-section (2) of Section 4 of the Act to claim a notice and to make objections as to the proposed acquisition. After the demise of the said Michael, during the pendency of the writ appeal, his son filed a petition to implead himself, which was ordered by this Court on 20.4.2007. In the affidavit filed in support of the said petition, it is stated that his father Er. V. Michael was the Correspondent of Sahayamatha & St. Michael Teacher Training Institute and after his death, he took charge of the institute and became the Correspondent of the institute. Hence the appeal is being prosecuted by the son of the said Michael only in the capacity of Correspondent of the educational institute, thereby claiming that the institute is the owner of the property.

12. There is one more aspect as to the disentitlement of the appellant to sustain the writ petition. The said Michael was issued with the patta in respect of an extent of 0.92.0 hectares in Survey No. 46/4C on 30.3.85. It appears that the revenue authorities granted patta in favour of one Tmt. Janaki Ammal on 6.6.94. Therefore, a suit in O.S. No. 469 of 1994 was filed seeking for a declaration that the said Michael is the owner of the property and for a consequential injunction that the said Janaki Ammal or her men should not interfere with the possession and enjoyment of the property. The plaintiff is the said Michael and the institute. The schedule of property in the said suit, of course, includes the Survey No. 46/4C as well. The injunction obtained by the said Michael in his individual capacity on 7.7.94 in respect of the acquired land in question goes to show that even when the suit was filed in the year 1994, the said Michael had claimed the land in question as belonging to him and not to the institute. Interestingly in the plaint dated 6.7.94, though he referred to a gift deed in favour of the institute, he has not mentioned the land in Survey No. 46/4C, apparently meaning thereby that the said land was never gifted in favour of the institute at any point of time and was kept by himself. In such circumstance, a writ petition by the institute claiming to be the owner of the acquired land is certainly not maintainable.

13. In view of our conclusion that the writ petition itself is not maintainable, as the writ petitioner/appellant is not either the owner or a person interested in the property, and consequently cannot be considered to be a person aggrieved over the land acquisition proceedings in order to challenge the same before this Court. In view of our above finding, we are not inclined to go into the other contentions raised by the learned senior Counsel for the appellant in challenging the impugned land acquisition proceedings. As the writ petition itself is not maintainable, the same is liable to be dismissed on that ground alone. Accordingly, both the writ appeal and the writ petition are dismissed. Consequently, interim injunction is vacated and the W.A.M.P. No. 1676 of 2005 is also dismissed. No costs.