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Shri Niwas Vs. Kesri Chand and ors. - Court Judgment

LegalCrystal Citation
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 4 of 1983
Reported inAIR1985Raj86; 1984()WLN670
ActsRajasthan Municipalities Act, 1959 - Sections 65; Rajasthan Municipalities (Election of Chairman) Vice-Chairman, President and Vice-President) Rules, 1959 - Rule 10 and 10(8)
AppellantShri Niwas
RespondentKesri Chand and ors.
Appellant Advocate M.M. Singhvi, Adv.
Respondent Advocate B.R. Mehta, Adv.
DispositionAppeal dismissed
Cases ReferredBaxiram v. Ashwani Kumar
rajasthan municipalities (election of chairman, vice-chairman, president and vice president) rules, 1959 - rule 10--election of chairman--expression 'lowest vote'--meaning of--candidate nominated in published list has to be considered for purpose of elimination--zero is 'lowest vote' and it cannot be ignored--automatic elimination is foreign to election law--only one candidate can be eliminated at a time--held, appellant having secured minority votes cannot be declared as elected chairman.;once, the name of the candidate finds place in the list published in the rule 7 he has duly been nominated candidate for the purpose of the purpose of the election of the chairman and his name will have to be considered for the purposes of elimination or in election irrespective of the fact, how many.....g.m. lodha, j.1. 'zero' is the pivot of prolonged legal debate in this appeal which belongs to the branch of election law. the appellant who could not be elected as chairman of the municipal board, nokha by the elective process of votes, is having third inning in this appeal, now, with consistent and persistent effort to become 'chairman' by legal process at the alter of elective process, 'zero' which plays an important role in arithmetical, mathematical and algebraical science and of which an international history was made in eloquence and oratory by the great scholarly saint, vivekanand' when he delivered his unprecedented speech in world conference, making the audience spell bound and wondering, is now engaging our attention in jurists field when shri m.m. sanghvi, the learned counsel.....

G.M. Lodha, J.

1. 'Zero' is the pivot of prolonged legal debate in this appeal which belongs to the branch of Election Law. The appellant who could not be elected as Chairman of the Municipal Board, Nokha by the elective process of votes, is having third inning in this appeal, now, with consistent and persistent effort to become 'Chairman' by legal process at the alter of elective process, 'Zero' which plays an important role in arithmetical, mathematical and algebraical science and of which an international history was made in eloquence and oratory by the Great Scholarly saint, Vivekanand' when he delivered his unprecedented speech in world conference, making the audience spell bound and wondering, is now engaging our attention in jurists field when Shri M.M. Sanghvi, the learned counsel for the appellant, wants us to hold that 'Zero' is equivalent to 'nothing' and, should be ignored outrightly without application of any further mind.

2. The pivot of the controversy is the process of elimination in the process of voting for Chairman of the Municipal Board under the Rajasthan Municipalities Act and Rules which requires elimination of one who obtains 'lowest vote'.

3. Before we proceed for adjudication of the interesting legal controversy raised, we would now like to give the traditional facts so that the legal debate and legal adjudication can be appreciated. The occasion of this genesis of the controversy was the election of the Chairman of Municipal Board, Nokha (Bikaner). Four persons were declared nominated as candidates and the voting revealed the following results in the successive rounds of the votes : --





1. Kesri chand




2. ShriNiwas




3. Gangadutt




4. DevKishan




('E'stands for elimination)('E' stands for elimination)

The principal tie of adorning as Chairman was between Kesri Chand and Shri Niwas. Interesting enough, Shri Niwas secured 7 votes in first round, 8 in 2nd round, 7 in 3rd round but Kesari Chand in 3rd round secured 8 votes, and it became water-loo for Shri Niwas as he could secure only 7 in comparison to 8 in 3rd round. Shri Niwas now contended in the election petition as well as in first appeal and also before this Court that elimination process was wrong and since Kesri Chand, the respondent, secured highest votes in the 3rd final round as there were four candidates and the last two have already been eliminated, Kesari Chand was wrongly declared as elected Chairman.

4. Curiously enough Shri Niwas has picked up the straw of 'Zero' and wants to have fresh innings by re-election of the Chairman but that too by using weapon of 'Zero' for onslaught of 'Zero hour' on the result declared against the express desire of the eight members of the Board and wants to convert the majority into minority by fresh effort of horsetrading.

5. The main pillar of this entire juristic debate pitched by Shri Singhvi is that the obtaining 'Zero' vote is not having obtained at all any vote and, therefore, in the process of elimination, Gangadutt who secured three votes should be treated as the one person who secured 'lowest vote' in the first round and he should have been eliminated so that there would have been no occasion for the third round. The fallacious prayer was made for declaring Shri Niwas elected on the ground that he secured 8 votes in the second round in comparison to 5 votes secured by Kesari Chand and, Dev Kishan having received no vote in the 1st round, he should not have been considered at all to have been a candidate at the election and Ganga Dutt should have been eliminated in the 1st round on the basis of receiving the lowest number of votes and thus there should have been only two rounds and not three rounds. The basic infirmity is that two votes were secured by Ganga Dutt and unless after elimination of Ganga Dutt, the voters are clearly asked to make choice between Shri Niwas and Kesri Chand, no presumption can be drawn on the basis of the votes given in 2nd round that Gangadutt is contesting candidate without elimination of Devkishan only. We regret that such a fallacious approach is made in Election Law after the Election Law has developed to all maturity and prayer is made for declaring Shri Niwas elected as Chairman even though 8 persons have voted against him and he secured only 7 votes in 3rd round. Further, this controversy did not detain us any more because in our view this is meaningless unless we accept that Devkishan at 'Zero' vote could not be treated as lowest vote and Gangadutt would have also been eliminated in the 1st round.

6. Before we now proceed further to discuss the provisions of the relevant rules, we may mention that the elections of the office of Chairman of Municipal Board in Rajasthan are conducted under the provisions of the Rajasthan Municipalities (Election of Chairman, Vice-Chairman, President and Vice-President) Rules, 1959 (hereinafter referred to as the 'Election Rules').

7. To be short and precise, we are now concerned with Rule 10 of the Election Rules which reads as under : --

10. Voting and result of election : --

(1) The Returning Officer shall cause such arrangement to be made as will ensure the secrecy of the ballot.

xxxx xxxx xxxx(8) The Returning Officer shall after the voting is over,

(a) open the ballot box and count the votes in the presence of such members as may be present and declare the result in the following manner, --

(i) If there are only two candidates, the one who secures the larger number of votes shall be declared to have been elected.

(ii) If there are more than two candidates the one who obtains the lowest votes shall be eliminated and the votes taken again. If there is an equality of votes among all the candidates or if two or more candidates lowest on the list have obtained an equal number of votes the Returning Officer shall ascertain by lots in the presence of the members as to which of them shall be eliminated. The elimination shall be repeated until two candidates only are left, when votes shall be taken for the last time and candidate who secures the largest number of valid votes shall be declared to have been duly elected. In the event of there being an equality of votes at the final stage between the two remaining candidates, the Returning Officer shall draw lots in the presence of the members and the candidate whose name is first drawn shall be declared to have been duly elected'.

8. To be more precise and exact, we are to have telescopic critical examination of the following words,

'the one who obtains the lowest votes'

which is used in Sub-clause (ii) of Rule 10(8)(a) which enjoins the duty on the Returning Officer to conduct election as per the procedure mentioned in it. Shri M.M. Singhvi argued that a person who obtains 'Zero' vote, fails to obtain any vote. It is a case of 'no vote' and, therefore, the Election Tribunal and the learned single Judge were in error in treating it as 'lowest vote' and further treating it as 'one' having obtained any vote.

9. Shri Singhvi emphasized that 'Zero' vote means, 'no vote' and a person who obtains, 'no vote' by drawing 'blank', cannot be said to have obtained 'lowest vote' because 'Zero' vote is not 'any vote'.

10. Shri Singhvi reiterated the submissions made before the learned single Judge and then pointed out to us the meaning of word, 'Zero' from various dictionaries, which we would discuss a little later.

11. While interpreting the expression, 'lowest votes' used in Rule 10(8)(1)(ii), we are conscious of the principles of Interpretation of statutes. In his treatise on Interpretation of statutes (12th Edition), Maxwell has described the doctrine of Harmony or what may be termed as construction in the following manner at p. 76 :--

'The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject, or in the occasion on which they are used, and the object to be attained.'

12. The Apex Court in State of Uttar Pradesh v. C. Tobit AIR 1958 SC 414 quoted the aforesaid passae. In New India Sugar Mills v. Commr of Sales Tax, Bihar AIR 1963 SC 1207 their Lordships of the Supreme Court observed as under (at p. 1213) ; --

'It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonize with the object of the Statute, and which effectuate the object of the legislature.'

The emphasis, on 'harmonise' construction laid down by Maxwell was approved by their Lordships of the Supreme Court in Workman of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate AIR 1958 SC 353. We are, therefore, required to harmonise the phraseology of the above sub-rule in order to give due meaning to the connotations 'lowest votes' 'obtain', and 'one'.

13. While doing go, we have to be mindful of the connotations and expression and every word is to be given due meaning because there is presumption that the legislature never uses the surplusages. We should further remain conscious that the interpretation should be reasonable and sensible and should avoid giving the word or expression a meaning which may lead to a manifest contradiction or to some inconvenience or absurdity, hardship or injustice, and do violence to the purpose of the legislation, which is presumably not intended by the legislature. The Rules commencing from Rule 5 to Rule 10 would show that for the purpose of election of the Chairman of the Municipal Board first step is to scrutinize the candidature on receipt of the nomination paper in the prescribed form. The Returning Officer publishes the list of persons who is filing nomination and then scrutinising them on an appointed date, decide all the objections. He then publishes a list of the validly nominated candidates to withdraw within a particular time and then the poll taken place only in respect of those duly nominated candidates, whose names find place in the list which is published under Rule 7 and who have not withdrawn their candidature.

14. Once, the name of the candidate finds place in the list published under the Rule 7, he has duly been nominated candidate for the purpose of the election of the Chairman and his name will have to be considered for the purposes of nomination or in election irrespective of the fact, how many votes, he obtained. A validly nominated candidate will have to be considered by the Returning Officer for elimination, if he fails to be elected at once, he is in the list of the validly nominated candidates, no rule permits automatic rejection of his name or dropping of his name or elimination without applying yardstick or touch stone of Rule 10(8)(a)(ii) by which elimination can be done of a candidate who is 'one' who gets 'lowest votes'.

15. In our opinion, the getting of the 'lowest votes' is sine qua non, bedrock, or foundation for elimination from the list of candidates, who are to be elected and for whom the next round of voting would take place if there are more than two.

16. We also find that the term, 'lowest votes' or, 'low', means 'less than normally.'

17. The origin of 'zero' ('o') relates back to 598 Ad. in the times of Brahamputra. The Arabians then took it from India and in 719 Ad. it was introduced in Spain and other European countries. In the 12th Century, the Great Mathematician, Shri Aryabhatt gave eight interpretation rules for understanding and interpreting 'Zero'. According to him, when every denominator is 'zero' ('o') and numerator is some other figure, it would be infinity.

18. The Arabians who introduced 'o' (zero) after taking it from India, called it 'cipher' and then translated Latin 'o' 'zero' into English language. In the history of knowledge and learning 'o' and figure 'zero' has got important role in the invention of other figures. It has been described by Canter in the History of Mathematics; Dickson in the History of the Theory of Numbers; V. Dutt and A.N. Singh in the History of Hindu Mathematics (1925 Ad.); J. F. Scout in A History of Mathematics (1958 Ad.). According to Webster's third New International Dictionary. The term, 'zero' denotes mathematical value, intermediate between negative and positive values and it is normally 'lowest point' or 'lowest in order', though in terms of temperature when it goes below freezing point, the 'zero' is not 'lowest number' but it goes up to minus. .001, .002, .003, .004, etc. up to .010., as the case may be. 1. Hindi Vishva Kaush, Vol. 11 p. 294 published by Nagari Mudran Varanshi.

19. Now coming to the discussion about the word, or numerical 'zero', it is to be noticed that 'zero' has not been given any meaning by Words and Phrases Permanent Edition (West Publishing Co.) but, 'Zero disability' has been mentioned to mean as under : --

'Zero % Disability :

The term 'O disability' is a technical term employed by the Veterans Administration and defines veterans who have sustained a war service connected disability, whose present rating, so far as the impairment of earnings is concerned, is anything from less than 10 per cent, to actual mathematical zero, and such a rating does not necessarily mean that a war incurred disability does not continue to exist so as to preclude a civil service preference.

A 'Zero disability' rating given a disabled war veteran by Veterans administration, and appearing in certificate of disability furnished to state civil service commission, refers exclusively to a non-compensable disability rating with respect to payment of benefits by the federal government for impaired earning capacity, and does not mean complete absence of disability and has no reference to question of civil service preferences under State Constitution civil service law.'

20. The Random House Dictionary of the English Language Random House/New York (P. 1660) (The unabridged Edition) has given the meaning of various phrases preceded by 'zero'-divisor, zerohour, zerogravity, zerolgear, zero-point energy, zeroth law of thermodynamics, zero vector, zero zero etc. and in details given the meaning of 'zero' which reads as under : --

'Zero-1, the figure or symbol 0, which stands for the absence of quantity in the Arabic ' notation for numbers; a cipher. 2. the origin of any kind of measurement; line or point from which all divisions of a scale, as a thermosoter, are Edazared in either a positive or a negative direction. 3. a mathematical value intermediate between positive and negative values. 4. naught; nothing. 5. the lowest point or degree etc....'

21. The Encyclopaedia Britannica (Hiorepaedia) (Vol. X) 15th Edition at page 876 described 'zero' as under : --

'Zero', the unique number that, when added to any other number, equals this second number, Mere (sic) generally, the unique element of a set that has an addition, the sum of which with any other element in either order, is called a zero.

'Zero, formally MITYAFIAMI ACM, probably the ment (sic) famous Japaness airplane, a single great fighter extensively used by the Japaness Navy in World War II,'

22. In the Oxford English Dictionary, Vol. HI at p. 91 'Zero' has been defined to mean as under :--

Zero, 1. The arithmetical figure O which denotes 'nought' 1 cipher; 2. The point or line worked O on a graduated scale, from which the reckoning begins; cap. in a thermometer or other measuring instrument; 3. The temperature corresponding to the zero of thermometer; that degree of heat (or cold) which is reckoned as O ; in the Centigrade and Ressumer's scaled, the freezing point of Water; 4. In abstract cease; Nought or nothing reckoned as a number a denoted by the figure O, and constituting the starting point of the series of natural numbers; the total absence of quantity considered as a quantity.'

23. The Webster's third New International Dictionary (Unabridged) and Seven Language Dictionary (Vo. III G & C Narriam Co. p. 2657) has devoted much more space in comparison to the above to give meaning of 'zero' in orders and forms and apart from detailed discussion under the caption of 'zero' it has also separately described meaning of 'zero-beat', 'zero-drift', 'zerograde', 'zerohour', 'zeroize', zero-lift angle' 'zero oil', 'zero order reaction1, 'zero-point energy', 'zero potential, 'zero-sum gave', 'zerovalent', 'zero-sero'. According to it, 'zero' simplicitor means as under : --

'Zero-empty, cipher; 1. the arithmetical symbol O or O denoting the absence of all magnitude or quantity; CIPHER, NAUGHT, a number or element that leaves unchanged and number or element to which it is added; the number between the set of all negative numbers and the set of all positive numbers; 2. the point of departure-in reckoning; the point from which the graduation of a scale (as of a thermometer) commences; the temperature represented by the zero mark on a thermometer. 3: a person or thing that has no important influence, or independent existence; NONENTITY, NOBODY, NOTHING, CIPHER 4: a stage of condition of total absence or neutrality between opposites: NOTHING, NAUGHT. 5; something arbitrarily or conveniently designated zero: as a : the lowest in order or class; B; the space numbered O on a roulettewheel.'

24. Interestingly enough, the above would reveal that 'Zero' is not that insignificant. Cipher as in common parlance is an arithmetical symbol.

25. Webster's dictionary in terms, mentions that 'Zero' is 'the lowest in the order' and 'lowest point'.

26. We have, therefore, no doubt in holding, in terms, that in pure mathematical or arithmatical or algebraic connotation 'zero', is the lowest and it would be fallacious to say that it is not to be read or ignored or treated different from the 'lowest'.

27. Shri Singhvi emphasized repeatedly that when a person secured 'zero votes' it means that he has not voted for himself also and the candidate who fails to vote himself, cannot be said to have obtained 'any vote'. The submission though attractive and plausible to a common man and even in Court, on a superficial approach belies and lacks conviction when it is probed by knowledge and intelligence with precision of mathematics, arithmetic and algebraic on the one hand, the Law on the other hand. In our considered opinion, as long as 'Zero' figure forms one of the figures in mathematics or arithmetic of figures, it will have to be given its own value and the value some times assnmes magnetic proportions when 'zero' is added by some other figure like one or two and, it varies and goes to million or billion. It may not have that magnetic proportions when it is simpliciter zero without any prefixing or suffixing of other figures. Insignificant atom, magnifies in 'Atom Bomb' and 'Zero Hour' witnesses unprecedented pendemanium in Legislature.

28. We would be diverting our debate to avoidable horizons and discussions if we discuss facts of 'zero' used in the above dictionaries like 'more plane' of Japan which had a great historical value in world war or other words having Zero prefixing or suffixing. For precision, exactness and to avoid avoidable length of judgment, we would like to rest content by confining our debate to the juristic issue involved in interpreting sub-rule of Rule 10.

29. We have got no hesitation in holding that 'Zero' cannot be ignored or brushed aside or avoided from consideration without considering it as lowest numbers. To illustrate, if out of five students, one gets 5 marks; out of five another three, the third one half only and fourth 1/4 and fifth 'zero', it cannot be said that the student who got % is the lowest because he can safely be said to be higher than the person who got 'zero' marks. We feel that this point is so patent that when we talk of figures, 'zero' is the lowest unless there is further one who gets lower than other than it can be minus zero one, or minus .02. to illustrate, we talk of the temperature and suppose the temperature goes below freezing point when it will have to be counted that it is minus zero one (-01) or minus zero ten (- 010) so forth and so on.

30. Shri Singhvi's contention taken to its legal and logical end would mean that it would be ignored and if we do so, we would be ignoring a very important mathematical calculating phenomenon on which the entire science, technology, even astronomy, algebra and various other technologies of the world are based.

31. Being convinced that 'zero' cannot be ignored and in the new dimensions of the discussion which we have just now concluded, though it may not have importance in some cases, we have got no hesitation in holding that 'zero' vote should be treated 'lowest vote' in matters of elections for the purpose of Rule 10, also.

32. In our considered opinion, it is immaterial whether one votes for himself, or not, as that would not decide the rule of Interpretation, or interpreting the meaning of 'zero' for the purpose of Rule 10. It is common knowledge in Election law that persons who are conversant with the election process and are sober and many persons of high-thinking sometimes do not vote for themselves, thinking it to be a matter of high values in life but, would that mean that they disentitled to get any vote or to be elected? That being so, the submission of Shri Singhvi that one who fails to vote for himself, and could not secure any other vote, is automatically to be ignored without having the process' of elimination; fails to Carry any conviction with us, and is only to be mentioned to be rejected.

33. We would now consider whether the word, 'obtain' used in the above rule means 'obtaining something more than zero' only, as argued by Shri Singhvi and would tantamount 'nor obtaining zero'. Here again, it may not assume importance to common man but in preferential voting system one candidate is eliminated and the other one is allowed to remain in round and the votes of the candidates eliminated are transferred to him then, sometimes the tables are turned and he may be got elected ultimately.

34. Since the preferential voting system is slightly complicated one, and it is not necessary to explain it, in details, here, we would not enter into it in details. It would be sufficient to mention that this securing of 'zero' vote seemingly appears to be securing 'no votes', can also be significant in some situations, discussed above.

35. We, therefore, cannot hold that it is obtaining of 'no votes' as argued by Shri Singhvi. The additional reason for our above finding is that above Rule 10 nowhere contemplates that a candidate for the election of the Chairman of the Municipal Board should not be eliminated by express and specific order but would be deemed to be eliminated by ignoring him if he secures 'no vote' and comes into category of 'zero vote'. In the absence of such a mandate in the Rules we cannot legislate by interpreting it to mean that one category of 'zero' vote should be eliminated or dropped by ignoring him and later on, one who secures higher vote to him but is the 'lowest', according to the concept of Shri Singhvi, having secured only one vote, should be eliminated by a written order. The doctrine of ignoring or dropping and treating, without an order and automatically dropping or automatically eliminating, is foreign to Election law because the Election Law is special law where the Apex Court has repeatedly observed that technical interpretation is to be given and no one can be allowed to ignore any part of it. In Jagannath v. Jaswant Singh AIR 1954 SC 210, their Lordships of the Supreme Court observed as under (at p. 212) : --

'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceedings unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should, not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of law.'

36. We would, therefore, not like to legislate importing the automatic elimination theory so ingeniously as introduced by Shri Singhvi in his arguments. In Election Law, there is no automatic elimination, no automatic voter, no automatic defeat and even no automatic nomination papers, neither automatic acceptance nor the automatic rejection so also, no automatic withdrawal by the candidates. The term, 'automatic' is foreign to election law and, all are governed by the statute where express acts are to be made and omissions are to be taken note of by express orders only.

37. We have, therefore, no hesitation in rejecting the contention of Shri Singhvi that a candidate for the election of the Chairman of the Municipal Board who secures 'no vote' and, therefore, his elimination in the round in which he fails is automatic and the next above him should be eliminated by express orders as having secured 'lowest vote'.

38. We are also not prepared to accept the contention of Shri Singhvi 'that General Clauses Act lays down that more than one candidate can be eliminated in one round for the voting during the election of the Chairman of the Municipal Board. In our opinion, the provisions of the General Clauses Act are to be applied when there is some anomaly or room for two different views but we do not find any such situation in the present case. We are, therefore, of the opinion that the General Clauses Act cannot be applied to mean that more than one person can be eliminated under Rule 10. In our considered opinion, one and only one can be eliminated in one round and the use of the word, 'one' under Rule 10 is of great concern, significance and importance and, cannot be undersigned (sic.)

39. Shri Singhvi then pointed out that the process of election contemplates some positive voting, and since the person who had zero vote, has no positive vote in his favour, he should not be considered, at all This argument is clearly untenable. The process of election contemplates all positive voting, negative voting and vote remains neutral and it would be doing violence to Rule 10 if we ignore the object of elimination of 'lowest' and having the next round.

40. It is not without significance that Rule 10 further contemplates that if there are more than one who secures 'lowest votes' then, there would be drawing of lots and then only one can be eliminated. It has further strengthened our view that one and one can only be eliminated and not more than one.

41. The learned single Judge has taken support from the judgment of this Court in Baxiram v. Ashwani Kumar 1965 Raj LW p. 111 in respect of discussion about not filing a list of witnesses. We do not intend to take support from this judgment because, in our opinion, that decision need not be confirmed by us while discussing the question of election law and, we feel that it is hot of such relevance for our purpose. We are mentioning it to make it clear that we should never be presumed to have confirmed the view taken by the Single Bench in Baxiram's case (supra) in the matter of list of witnesses not filed.

42. In other respects, the reasons given by the learned single Judge call for no interference and we, for precision and brevity, would not repeat them.

43. In view of the above, we are of the opinion that the great pyramid which the appellant wanted to make by making capital out of 'zero', fails to carry any conviction with us. We feel that he has minority votes at the election of the office of Chairman of the Municipal Board, having failed to secure majority of the members of the Board and he should fail, here also, on a proper interpretation of Rule 10. We regret that by process of interpretation, the appellant cannot be allowed to succeed and be declared Chairman having minority votes in the election as we are not persuaded to find any infirmity for rejecting the election petition which has been confirmed by the learned single Judge by a detailed and comprehensive judgment with which we agree, by and large, as mentioned above.

44. For the additional reasons given in our above judgment, we have got no hesitation in dismissing the appeal of the appellant which is dismissed. We would have allowed costs to the respondents as in our opinion, the prolonged litigation after losing at the poll by the appellant is not justified, but since we have not called upon the counsel for the respondents to assist us, we would direct the parties to bear their own costs.

45. Consequently, this appeal is dismissed without any order as to costs.

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