Allowed

M/S Klm Royal Dutch Airlines v. Director General of Investigation & Registration

Supreme Court3 Oct 20082008 INSC 1129 · [2008] 14 S.C.R. 2452008 INSC 1129

Case brief

AI extract

What is this about?

Airline's misplacement and delayed delivery of a booked consignment was held by the MRTP Commission to be an unfair trade practice. The Supreme Court held that unfair trade practice requires false or misleading representation, which was neither alleged nor proved; mere deficiency in service is insufficient. Appeals allowed and Commission's order set aside.

What did the court decide?

Appeals allowed; MRTP Commission's cease-and-desist order against the appellant set aside; no costs.

What the court decided

M/S Klm Royal Dutch Airlines versus Director General… — Consumer Protection | Supreme Court (2008)

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[2008) 14 S.C.R. 245

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M/S. KLM ROYAL DUTCH AIRLINES v.

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DIRECTOR GENERAL OF INVESTIGATION & REGISTRATION

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(Civil Appeal Nos. 815-816 of 2002)

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OCTOBER 3, 2008

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[TARUN CHATTERJEE AND DR. MUKUNDAKAM SHARMA, JJ.]

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Monopolies and Restrictive Trade Practices Act, 1969 - s. 36A (1)(ii), (iv) and (vi) - Deficiency in service - Held by MRTP Commission to be unfair trade practice - On appeal, held: In order to term an act amounting to unfair trade practice under the sub-clauses of the provision, it is necessary to prove that the service provider makes false and misleading representation regarding the service - Deficiency in service does not amount to unfair trade practice - Element of unfair trade practice stands on higher and onerous platform than the deficient service - In the facts of the case, the service provider cannot be said to have committed unfair trade practice, as false and misleading representation has not been alleged.

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A complaint was filed before the respondent-Authority, against the appellant-Airlines alleging that the complainant had booked a consignment which was required to be delivered to the customer by a particular date, that appellant was not able to deliver the consignment to the customer, before or on the required date as the consignment was misplaced by the appellant; and the same amounted to deficiency in service. Complainant also filed separate petition before Consumer Forum claiming compensation for the loss.

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Respondent-Authority concluded that the trade practice by the appellant constituted unfair trade practice under Clauses (ii), (iv) and (vi) of Section 36A(1) of Monopo- 245

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A lies and Restrictive Trade Practices Act, 1969. The respondent filed a complaint/application for registration and investigation, before MRTP Commission. The Commission found the appellant guilty of adoption and indulgence in unfair trade practices to the extent that there was defiB^{ciencyin service. Hence the appeals.}

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Allowing the appeals, the Court

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HELD: 1.1 For making out a case of unfair trade practice an element is involved to the extent of making false c^{and misleadingstatement and representation and inor-} der to make a case of unfair trade practice such ingredients, which are part and parcel of the concept of unfair trade practice have to be alleged and must be proved and established. Before it can be said that an act amounts to D^{anunfair tradepracticethecomplainantisrequiredto} show that the trade practice was employed for the purpose of promoting the sale, use or supply of any goods or the provision of any services and also that the statementor advertisement is a false representation of the kind E^{specifiedin Sub-clausesof clause. (1)of Section 36-A of} Monopolies and Restrictive Trade Practices Act, 1969. [Paras 14 and 16] [259,D-E; 257,C-D]

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Man Roland Druckimachinen Ag v. Multicolour Offset Ltd. 2004 (7) sec 447 - referred to.

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F 1.2 Whether a statement constitutes a false or misleading representation will depend upon the facts and circumstances of each case. It is not possible to provide an exclusive list of the statements which may constitute false or misleading representation, nor can there be any straitG jacket formula evolved thereof for the said purpose. How.ever the statements of the nature, which are willfully made knowingly false, or made recklessly without honest belief in its truth, and made with the purpose to mislead or deceive, will definitely constitute a false or misleading repH^{resentation. In addition, a failure to disclose a material fact}

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M/S. KLM ROYAL DUTCH AIRLINES v. DIR GEN. OF 247 INVESTITN. & REGISTRATION

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when a duty to disclose that fact has arisen will also constitute a false or misleading representation. [Para 14] [257,H; 258,A-C]

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1.3 There could be no finding by the MRTP Commission that the appellant is guilty of unfair trade practice. What is sought to be done by the MRTP Commission is to hold that the appellant is guilty of unfair trade practice which is not equal to holding a person guilty of providing deficient service. Element of unfair trade practice definitely stands at a higher and onerous platform than the deficient service. The deficiency in service, as in the present case, cannot be said to mount to an unfair trade practice as envisaged u/s. 36 A(i), (ii), (iv) and (vi). [Para 11 and 16] [259,C-D; 255,C]

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Lakhanpa/ National Ltd. v. M. R. T P Commission 1989 (3) sec 251 ;,Rajasthan Housing Board v. Parvati Devi 2000 (6) SCC 10; Colgate Palmolive (India) Ltd. v. MRTP Com- mission 2003 (1) sec 129 - relied on.

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1.4 In the instant case, neither in the complaint filed by the complainant nor in the complaint filed by the Director General filed before the MRTP Commission, is there any allegation of any false or. misleading representation. Unless any such allegation is made in the complaint, the MRTP Commission could not have come to a conclusion that the appellant has committed an unfair trade practice. In the findings recorded by the MRTP Commission, there is not even a single finding that there is any such false representation or mis-statement by the appellant Airlines regarding their services. In view of Section 48C of the Act, which is a stringent provision providing for punishment, the Commission is required to examine the allegations with due care and caution and also the essential ingredients as contained in the provisions of Section 36A and while passing the order u/s. 36 D, it must be fully satisfied that there is, in fact, contravention of any of the clauses of Section 36A. [Paras 11 and 15] [258,D-H; 259,A]

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CASE LAW REFERENCE

1989 (3) sec 2s1 Relied on. Para 13 2000 (6) sec 1 o Relied on. Para 13 2003 (1) sec 129 Relied on. ·Para 14 2004 (7) sec 447 Referred to. Para 14

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CIVILAPPELLATE JURISDICTION: Civil Appeal No. 815816 of 2002

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From the final Judgmentand Order dated 11.10.2001 and c 12.11.2001 of the MRTP Commission, New Delhi in UTPE NO. 163 of 1996 and MA No. 20 of 2001 in UTPE No. 163 of 1996 respectively.

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A.K. Ganguly, S.C. Ghosh and Atishi Dipankar for the ApD^pellant.

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V. Shekhar, Shalini Kumar, B.K. Prasad and.Shreekant N. Terdal for the Respondent.

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The Judgment of the Court was delivered by

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E DR. MUKUNDAKAM SHARMA, J. 1. Challenge is made in the present appeals under Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (for short "MRTP Act"), whereby the final judgment and orders dated 11.10.2001 and 12.11.2001 passed by the Monopolies and Restrictive Trade F Practices Commission, New Delhi (for short 'MRTP Commission') are being questioned. The appellant is aggrieved by the order and direction issued against them by the MRTP Commission and also by dismissal of the miscellaneous application filed by them holding that there is no apparent error G^{on the face of the record.}

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The appellant is a worldwide airlines company with its headquarters at Amsterdam, Netherlands. A complaint was filed by M/s. Maharajah & Co. (hereinafter also referred to as 'Complainant') contending inter alia that they booked a consignment H with the appellant airlines vide Airway Bill dated 21.09.1995.

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M/S. KLM ROYAL DUTCH AIRLINES v. DIR. GEN. OF 249 lNVESTITN. & REGISTRATION [DR..MUKUNDAKAM SHARMA, J.]

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The said consignment comprised three parcels containing A Badges and Crests, which were to be used on very specific tournaments/meetings/conference dates. The consignment was booked for carriage from New Delhi to New Orleans, USA. It was stated in the said complaint that on 26.09.1995 the complainant received a message from the appellant airlines that B two out of the three parcels were missing. This message of 26.09.1995 was followed by another message of 03.10.1995 informing the complainant that in spite of efforts made by the appellant, the baggage could not be found and therefore it was suggested to the complainant that a claim could be filed with c the underwriters if the aforesaid shipment was covered by insurance. The appellant airlines also asked the complainant to furnish necessary documents to process the claim. Near about the same time, the appellant airlines traced out the said two missing parcels and informed the complainant through its letter D dated 24.10.1995, contending inter alia that the aforesaid two parcels have been traced out and the same have since been forwarded to the destination on 20.10.1995.

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A stand was, however, taken on behalf of the complainant that the aforesaid delivery of the two parcels after the event was E over was of no use to the customer in USA. The complainant also took up a plea that it had already lost goodwill due to delay in the delivery of goods to the buyer. The complainant, therefore, made a claim of Rs. 6 lakh from the appellant on account of its negligence and deficiency in service. It may be stated here F that the complainant has also filed a separate complaint before the Delhi State Consumer Redressal Forum for payment of compensation in terms of the Consumer Protection Act, 1986, which is pending for disposal till date.

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On receipt of the aforesaid complaint filed by Mis. Maharajah & Co. the respondent issued a notice to the appellant on 22.01.1996 calling for its comments on the complaint along with other information and documents .• The appellant furnished its reply contending inter alia that the rules relating to loss, damage or delay to cargo and compensation for the same in inter-

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A national air transportation is governed by the Carriage by Air Act, 1972 and the Schedule attached thereto and in terms of the said Act the liability of the carrier is subject to the rules re lating to liability established by Warsaw Convention, 1929. After receiving the aforesaid reply the respondent, which is a statuB tory authority, came to the prima facie conclusion that the appellant failed to render services which were expected from it and that the trade practice carried on by the appellant thus constitutes an unfair trade practice falling under clauses (ii), (iv) and (vi) of Section 36A (1) of the MRTP Act. Consequently, the c^{respondent filed an application for registration and investiga-} tion before the MRTP Commission, New Delhi, in terms of the provisions of Section 36 (B) of the MRTP'Act.

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The Commission after receipt of the aforesaid application took up the same for consideration and issued notice and thereafter heard the aforesaid application. By the impugned judgment and orders the MRTP Commission found the appellant guilty of adoption of and indulgence in unfair trade practices to the extent that there was deficiency in service. Having held thus, the Commission issued a direction to the appellant to cease the aforesaid trade practice and also file an affidavit stating that the appellant would desist from the same in future. Being aggrieved by the aforesaid order passed by the MRTP Commission, the present appeals have been preferred as statutory appeals in terms of the provisions of Section 55 of the MRTP Act.

Mr. A.K. Ganguly, learned senior counsel appearing for the appellant brought to our notice various provisions of the MRTP Act and drew our attention to the correspondence between the parties, which is a part of the record and on the basis G thereof submitted that the order passed by the MRTP Comm ission is illegal and without jurisdiction as there was no allegation anywhere by the respondent before the MRTP Commission that there was any fraudulent representation on the part of the appellant. He also submitted that none of the sub-clauses of SecH tion 36 A is applicable in the present case, and therefore, the

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M/S. KLM ROYAL DUTCH AIRLINES v. DIR. GEN. OF 251 INVESTITN. & REGISTRATION [DR. MUKUNDAKAM SHARMA, J.]

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impugned order holding the appellant to be guilty of the said A provision is illegal and unjustified.

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Mr. V. Shekhar, learned senior counsel appearing for the Director General of Investigation and Registration, vehemently supported the order passed by the MRTP Commission on the basis of the complaint. He drew our attention to the contents of the complaint filed by the Director General before the MRTP Commission to bring home his point that the appellant is guilty of unfair trade practices.

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In the light of the aforesaid submissions we proceed to c deal with the contentions raised before us. The Director General in his application filed before the MRTP Commission alleged violation of clauses (ii), (iv) and (vi) of Section 36A (1) of the MRTP Act. In that view of the matter, we would like to extract the said provisions along with other relevant provisions for better appreciation of the issues arising for our consideration. The D said provisions read as under:-

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Section 36A - Definition of unfair trade practice - In this Part, unless the context otherwise requires, "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any good or for the^E provision of any services, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-

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( 1) the practice of making any statement, whether orally or in writing or by visible representa~ion which,-

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(i) xxxxxxxxx

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(ii) falsely represents that the services are of a particular standard, qu~lity or grade;

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(iii) xxxxxxx

(iv) represents that. the goods or services have sponsorship, approval, p.erformance, characteristics, accessories, uses or benipfits which such goods or services do not have;

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A· (v) xxxxxxxx

(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

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368. Inquiry into unfair trade practices by Commission.- B The Commission may inquire into any unfair trade practice,'

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360. Powers which may be exercised by the Commission inquiring into an unfair trade practice.-

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(1) The Commission may -inquire into any unfair trade practice which may come before it for inquiry and, if, after such inquiry, it is of opinion that the practice is prejudicial to the public interest, or to the interest of any consumer or cons_umers generally, it may, by order direct that-

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(a) the practtce shall be discontinued or shall not be repeated;

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(b) any agreement reliant to such unfair trade practice shall be void or shall stand modified in respect thereof in such manner as may be specified in the order;

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(c) any information, statement or advertisement relating to such unfair trade practice shall be disclosed, issued or published, as the case may be, in such manner as may be_ specified in the order.

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(2) )()()()()(

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(3) )()()()()(

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48C. Penalty for contravention of order made by Commission relating to unfair trade practices. -

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M/S. KLM ROYAL DUTCH AIRLINES v. DIR GEN. OF 253 INVESTITN. & REGISTRATION [DR MUKUNDAKAM SHARMA, J.]

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If any person contravenes any order made by the A Commission under section 36D, he shall be punishable with imprisonment for a term which shall. not be less than six months but which may extend to three years and with fine which may extend to ten lakh rupees;

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Provided thatthe court may, for reasons to be recorded in writing, impose a sentence .of imprisonment for a term lesser than the minimum term spe.cified in this section."

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There is no dispute with regard to the fact that the con. signn]ent of three pace1$ were booked for carriage by the origic .nal complainant, nam.ely, Mis. Maharajah & Co .. ,. out of which two parGels were missing and coi;tld not be delivered to the. addressee immediately. The said missing parcels were; however, ·traced o'ut and were forwarded. t6 destination on 20.10.1995. Allegations have bn:made.that due to.the missing of the afore· D said two p·arcels in the cc;mrse qf trans.mission t,he complainant ·suffered a loss. In the aforesaid pplication,whic:;h was filed by the Director-General before. the MRTP .qommission, complaint is only about .the deficiency· of service and whether or not any compensation is to. be ·paid for the aforea·id loss suffered, is a subjectmatter ";Vhich is being .enquired i_mp by the Delhi State E Consumer Redre$sal Forum. In the aforesaid application, the MRTP Commission directed the appellant to cease and. desist from unfair trade practice in terms of the prayer made in the application, wherein it was prayed that a direction be issued against the appellant airlines directing. it to cease and desist F from indulgence in the unfair traae practice and not to repeat the same in future. The aforesaid application was filed by the Director General giving the factual position. In paragraph 4 of the said application, sum and substance of the allegation and accusations has been made out by the Director General against G the appellant in the fo.llowing manner:

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"4. It would b~ observed from the aforesaid information collected during the course of investigation that the respondent has admitted its liability caused to the

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A complainant due to loss, damage 'or delay in transportation of the goods booked by the complainant. The-services of the respondent have not been found to be of the standard and quality,bf an int.ernational transporter. Its services not' ' hav~ -....:: Ufies ,, or beneJits for the customers. . ) There is an do . B implied'repesentation that the services of the respondent would be usefu1 to the 6ustomers and the respondent would transport the good booked by the customers within a reasonable time without causing any damage to the goods. It is cle9r that the respondent has failed to render services c which were expected of it. It has admitted its liability in causing;l9ss to the complainant. The trade practice carried on by the respondent thus constitutes an unfair trade practice falling under clauses (ii), (iv) and (vi) of Section 36A (1).ofA,he MRTP Act, 1969."

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D 9. In terms of the allegations and accusation in paragraph · 4 of the appliction the Director General has submitted that the unfafr tra-de practice carried on by the appellant is prejdicial to

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) the public interest, and therefore, a direction should be issued to the appellant airlines to cease and desist from indulging in

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E the unfair trade practice and not to repeat the same in future.

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We have already extracted the definition of "unfair trade practice" and also other relevant provisions. There is no definition of "deficiency of service" or "deficiency" provided in the MRTP Act but expression "service" has been defined in SecF tion 2(r). In term of such definition, "service" means which is made available to potential users and includes the provision of facilities in connection with banki·ng, .financing, insurance, chit fun, real estate, transport, prOf,es~ir,ig, upply of. electrical or other energy, board or lodging qroth, entertainment, amuseG mentor the purveying'of news or other information, bl.it does not include the rendering .of any service'free of charge or under a contract of personal service.

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1 The appellant herein . is engaged in the business of H. transportation of goods by airlines, and therefore, there could

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M/S. KLM ROYAL DUTCH AIRLINES v. DIR. GEN OF 255 INVESTITN. & REGISTRATION [DR MUKUNDAKAM SHARMA, J.]

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I be no dispute with regard to the fact that they were providing service when they accept baggages to bffd~r.rled by air. A representation is also made that the cargo would be delivered at the destination with all promptness; If there is a failure in carrying out the said representation therf1 would be a case of deficiency in their service. Negligence in providing prompt service or service as expected may also be presumed if they fail to deliver the said goods within a reasonable time at the destination. But the issue in the present case is as to whether any such deficiency in service could be said to amount an unfair trade practice as envisaged under the provisions of the aforesaid MRTP Act.

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The Act, particularly, the provisions of Section 36A envisage that in order to be a case of unfair trade practice there has to be unfair method or deceptive practice indulging in false representation of the kinds mentioned in various clauses of Section 36A of the MRTP Act. What is sought to be attracted in D .: the present case by the Director General are clauses (ii), (iv) and (vi) of Section 36A ( 1) of the M RTP Act, clauses (ii) and (vi) deal with cases of false representation and also a false and misleading representation whereas clause (iv) envisages of making a representation that the goods or services have sponE sorship, approval, performance, charactertics, accessories, uses or benefits which such goods or services do not have. The aforesaid provisions cannot be said to be attracted in the present case for there is no allegation either by Mis Maharajah and Co. 1 or by the Director General that any such representation was F made by the appellant airlines regarding their performance, uses or benefits which their services do not have. So far as other two clauses are concerned and in order to make out a case for attracting the said provision, there has to be a case of false statement and a case of misleading representation made by the G service provider. We have carefully perused the entire contents __,, of the application filed by the Director General and on such perusal, we find that there is no allegation that there was any false representation or misleading representation by the appellant airlines regarding their services.

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· A · 13. In Lakhanpal National Ltd. v. M.R. "f.P Commission reported in [(1989) 3 SCC 251 J, a Bench of try is Court held that the obj~-ct of Section 36'.-A of.the MRTP Act is to bring honesty and trutb in the relationship between the manufacturer and the consumer and that when a problem arises as towhether a pars ticular act can be condemned .as an unfair trade practice or not, the key to the solution w(?uld be to examin¢ whether it contains a false· statemnt and is misleading and further what is the et feet of such a representation made by the manufacturer on the common man. Thjs Court.also stated that there could be anC other question posed as to whether an act leads a reasonable person in the position of a buyer to a wrong conclusion. This Court finally held that the issue cannot be resolved by merely examining whether the representation is correct or incom~ct in the literal sense. The same ratio came to be reiterated in a subD sequent decision of this Court in Rajasthan Housing Board v. Parvati Devi reported in [(2000) 6 sec 10] In the said case this Court has held that to decide whether or not there is unfair trade practice the Commission has to find out whether a particular act can be condemned as an unfair trade practice; . whether representation contained a false statement and was E misleading and also what was the effect of such a representation made to the common man.

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In the case of Colgate Palmolive (India) Ltd. v. MRTP Commission, reported in [(2003) 1 SCC 129] this Court laid F down five ingredients which have to be established before a trade practice can be said to be an unfair trade practice, the Court laid the ingredients in following manner:

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"16. A bare perusal of the aforementioned provision would clearly indicate that the following five ingredients are G necessary to constitute an unfair trade practice:

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There must be a trade practice within the meaning of Section 2(u) of the Monopolies and Restrictive Trade Practices Act.

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The trade practice must be employed for the purpose

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M/S. KLM ROYAL DUTCH AIRLINES v. DIR. GEN. OF 257 INVESTITN. & REGISTRATION [DR. MUKUNDAKAM SHARMA, J.]

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of promoting the sale, use or supply of any goods or A the provision of any services.

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1. The trade practice should fall within the ambit of one or more of the categories enumerated in clauses (1) to (5) of Section- 36-A. B

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1. Tl:Je trade practice should cause loss.or injury to the

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_____. consumers of goods or services. . 5. The trade practice under clause (t) should involve making a "statement" whether ora'fiy or rn writing or by visible representation." · , C

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Before it can be said that the act amount to an unfair trade practice the complainant is required to show that the trade practice was employed for the purpose of promoting the sale, use or supply_ of any goods or the provision of any services and also 0 that which is the statement or advertisementwhich is the false representation of the kind specified in Sub-clauses of clause (1) of Section 36-A. In this regard reference may also be made to the observations made by this Court in the case of Man Roland Druckimachinen Ag v. Multicolour Offset Ltd., reported E in [(2004) 7 sec 447]:

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"12. In the case of an unfair trade practice as invoked by Respondent 1 the object of inquiry is ,a statement which is. a false representation of the kind specified in sub-clauses (t), (it) or (Ht) of clause (1) of Section· 36-A or is an · F advertisement of the kind specified in sub-clauses (vit) dr (viit) thereof. The statement or advertisement is the trade. practice. The further requirement under the section is that the trade practice complained, 6f must be for the purpose of promoting the sale, use or supply of goods or for G promoting the provision of any service. The sale, use or supply need not, for the purposes of the section, actually have taken place although it may be relied upon by the complainant to establish the falsity of the representation."

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Whether a statement constitute a false or misleading repH

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A resentation will depend upon the facts and circumstances of each case. It is not possible to provide an exclusive list of the statements which may constitute false or misleading representation, nor: can there be any strait-jacket formula evolved thereof for the said purpose. However the statements of the nature which B are willfully_made knowingly false, or made recklessly without· honest belief in its truth, and made with the purpose to mislead or deceive will definitely constitute a false or misleading representation. In addition a failure to disclose a material fact when a duty to disclose that fact ·has arisen will also constitute a false c or misleading representation.

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In the backdrop of the aforesaid legal position propounded· by this Court, we may now examine the facts of the present case. Neither in the complaint filed. by Mis Maharajah and Co. before the Director General nor in the complaint filed D by the. Director General filed before the MRTP Commission there is any allegation of any false or misleading representation. None of the complaints aforesaid, in fact contains any of the aforesaid ingredients as mentioned. Unless any such allegation is made in such complaints, theMRTP Commission could E not have come to a conclusion that the appellant has committed an unfair trade practice. We have carefully perused the impugned order passed by the MRTP Commission. In the findings recorded by the MRTP Commission there is not even a · single finding that there is any such false representation or misF statement by the appellant airlines regarding their services. The MRTP Act also contains provisions regarding penalties relating to unfair trade practices. Section 48C of the MRTP Act provides that if any person contravenes any order made by the MRTP Commission under section 360, he shall be punishable G with impris.onment for a term which shall not be less than six months butwhich may extend to three years and with fine which may extend to ten lakh rupees. The aforesaid provision is a stringent provision which provides for punishment upto three years and also fine up to ten lakh rupees. Therefore, the Commission is required to examine the allegations with due care

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MIS. KLM ROYAL DUTCH AIRLINES v. DIR. GEN. OF 259 INVESTITN. & REGISTRATION [DR. MUKUNDAKAM SHARMA, J.]

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and caution and also the essential ingredients as contained in the provisions of Section 36A of the MRTP Act and while passing the order under Section 36 D it must be fully satisfied that there is in fact contravention of any of the clauses of Section 36A. '

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It was sought to be submitted by Mr. V. Shekhar, Senior Counsel appearing 'tor the respondent that the order which is passed by the MRTP Commission is in respect of deficiency in service and not about the compensation and the said order is passed directjng the air career that they will in future cease and desist from the aforesaid practice of providing deficient C service. The aforesaid contention, however, cannot be accepted for what is sought to be done by the MRTP Commission is to hold that the appellant is guilty of unfair trade practice which is not equal to holding a person guilty of providing deficient service. Element of unfair trade practice definitely stands at a higher D and onerous platform than the deficient service. For making out a case of unfair trade practice an element is involved to the extent of making false and misleading statement and representation and in order to make a case of unfair trade practice such ingredients, which are part and parcel of the concept of unfair E trade practice has to be alleged and must be proved and established. In the present case there is neither such allegation of any such false and misleading representation nor is there any proof provided by way of evidence, which also we have perused. Therefore there could be no finding by the MRTP Commission F that the appellant is guilty of unfair trade practice. That being so, the order of the Commission cannot be upheld and the same is set aside.

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