B. Govinda Reddy And Ors. v. Revenue Divisional Officer-Cum-Land Acquisition Officer, Kurnool

ORDER B. Sudershan Reddy, J.

1. These two writ petitions can be disposed of by this common order as common questions of fact and law arise for consideration. I have elaborately heard the learned counsel for the petitioners and the learned Government Pleader for Land Acquisition, though the matters are listed for admission only.

FACTS IN BRIEF

2. The first respondent herein acquired a total extent of Ac.23.15 cents of land situated in Peapully village for the purpose of construction of perculating tank by name 'Ramannacheruvu'. The petitioners in these two writ petitions are the owners/claimants of the said land. It is stated in the affidavit filed in support of the writ petition that advance possession of the land was taken over by the first respondent for the aforesaid public purpose on 1-12-1981. The requisition department did not deposit the amount for payment of compensation to the owners of the said land for several years. Ultimately, notification Under Section 4(1) of the Land Acquisition Act, 1894 (for short 'the Act') was published on 5-3-1992. Thereafter the first respondent passed Award No. 3/93 on 30-9-1993 awarding an amount of Rs. 12,000/- per acre for the dry land; Rs. 20,000-00 per acre for the wet land; and Rs. 18,000-00 per acre for irrigable dry land.

3. The petitioners herein, however, sought for reference Under Section 18 of the Act and at their instance, the award was referred to the Principal Subordinate Judge, Kurnool in O.P.Nos. 16,10, 7,13,19, 94,11, 6, 5, 8, 9,17, 14, 4, 15 and 41/94 and 374, 93, 307/97, 385/93; 384/93; 376/93; 31/94; 377/93; 32/94; 1/94; 2/94; 3/94; 375/93; 378/93; 379/93; 380/93; 12/94 and 18/94 respectively. These Original petitions were disposed of on 29-1-1996 enhancing compensation over and above what has been awarded by the Land Acquisition Officer from Rs. 12,000 to Rs. 20,000 per acre for dry land; Rs. 20,000/- to Rs. 30,000-00 per acre for wet land; and Rs. 18,000/- to Rs. 30,000-00 per acre for irrigable dry land.

4. It is stated in the affidavit filed in support of the writ petition that the respondents herein have not preferred any appeals against the said Order and Decree passed by the learned Prl. Subordinate Judge, Kurnool and they have become final. The petitioners are stated to have preferred execution petitions on the file of the learned Subordinate Judge for realisation of the amounts due to them. The court is also stated to have already passed orders directing attachment of movable properties of the first respondent, as early as in the month of April, 1997. In spite of attachment of movables, the respondents have not, so far, deposited the amounts.

5. It is urged by the learned counsel for the petitioners, Sri T. Niranjan Reddy that the action of respondents herein in refusing to deposit the amounts pursuant to the Orders and decrees passed by the learned Subordinate Judge is arbitrary and unfair. It is submitted that the respondents are duty bound to pay the amounts of compensation to the petitioners, in terms of the Award and decrees and failure to do so would amount to depriving the petitioners of their properties without payment of compensation. The action, according to the learned counsel for the petitioners, on the part of the respondents in refusing to deposit the amount is not only illegal, but also un-constitutional. According to the learned counsel, the inaction on the part of the respondents is arbitrary and thus violative of Article 14 of the Constitution of India. It is also violative of Article 300-A of the Constitution of India. It is submitted that the petitioners are entitled for a Writ of Mandamus directing the respondents herein to deposit the amounts into the Court and to the satisfaction of the execution petitions already filed by the petitioners.

6. There cannot be any dispute that the petitioners are entitled for the amount of compensation already awarded in their favour by competent Court of Civil jurisdiction on a reference made by the Land Acquisition Officer Under Section 18 of the Act. There is no doubt that the respondents herein are duty bound to deposit the amounts to the satisfaction of the execution petitions already filed by the petitioners. The casual attitude adopted by the State Government in most of these matters and its failure to deposit the amounts even after passing of Award and Decree has given rise to unnecessary litigation driving the petitioners/claimants to this Court by invoking its extraordinary jurisdiction under Article 226 of the Constitution of India seeking appropriate directions for depositing of the compensation amount. This Court is virtually converted into a Court of execution. It is a disturbing factor and the reason for giving rise to the cause for filing these writ petitions squarely lies on the Government and its various departments. The State in exercise of its power of eminent domain and having compulsorily taken over the landed property of the citizens cannot ignore the legitimate claim of such citizens whose lands are taken away and refuse to pay compensation. The experience of the Court in these matters would suggest that the Land Acquisition Officers and the departments of the Government do not show any interest whatsoever for making necessary deposits of compensation amount. There are cases where the claimants/land owners having lost their lands are made to go from pillar-to-post. The instances are galore, where the claimants are waiting for a quarter century for receiving the compensation amounts for which they are legitimately entitled. Supine indifference shown by the State and its various departments cannot be countenanced by this Court.

7. Huge extents of lands covering various villages have been acquired by the State for Major and Minor Irrigation projects and millions of people are affected by such acquisition. May be such lands were acquired for a public purpose and with a laudable object. Most of them having lost their lands, houses and cattle, wells etc., are up-rooted from the villages. They are reduced to the level of nomadics. They are away from their environment. They are culturally up-rooted. They are yet to settle down. Settlement of claims through Lok Adalat, Courts and various other schemes evolved by the State mean nothing for the claimants and even the decision of Lok Adalat, Court and other Governmental orders remain only on paper. The Government's action and attitude in this regard is akin to that of an unscrupulous Judgment-Debtor.

8. This Court in Kasani Subbamma v. The Government of A.P., observed that:

".. no person can be deprived of his property, save by authority of law and the authority of law being the Land Acquisition Act, there is a duty cast on the land acquisition authorities to pay the compensation speedily so that the party aggrieved should be able to recompensate his loss of property by proper means, but he will be deprived of the same, if the compensation is paid after a prolonged time by which certainly, there is a deprivation of property unjustly, thus, violating the very object and intendment of the Land Acquisition Act which aims at not only acquiring the property of a person for public purpose, but also compensating the deprived person in a very reasonable time. By not doing so, the authorities in the instant case have certainly violated the fundamental right of the petitioner under Article 31 of the Constitution which is available to her in the instant case as her land was acquired when the fundamental right was in the book of Constitution at the relevant point of time. Even if it is Article 330-A of the Constitution, then also the same measure is applicable. As such, this Court is not debarred from issuing appropriate writ or direction for payment of the compensation which the petitioner has fought for and got determined and which determination attained finality."

9. This Court in Billa Linga Reddy v. The Revenue Divisional Officer, again observed :

"The object and intendment of the Land Acquisition Act, 1894, which is a law empowering the authorities to divest a person of his property for public purpose by compensating him in terms of money, is to see that the person depriving of his property for public purpose should be paid money at the earliest possible time so as to rehabilitate him by enabling him to purchase alternative property or invest otherwise. It is not done, certainly the due process of law is violated. The due process of law is not to be taken just as a technical observance of the rules of procedure, but should be taken to effectively compensate the person. It can be done by determining and paying the compensation amount at the earliest possible time, more so in this country where the prices had been rising by leaps and bounds.."

10. The Apex Court in Mangat Ram Tanwar v. Union of India, expressed its serious concern with regard to the attitude of the Governments in the matter of non-payment of compensation to the eligible claimants even in respect of acquisitions of long standing and observed:

"Exercise of the right of eminent domain is not in dispute. Petitioners have assumed themselves to be representatives of that group of land owners whose lands are acquired in the exercise of right of eminent domain but compensation is not paid for years together following the publication of the preliminary notification Under Section 4(1) of the Act or even after dispossession. It has been indicated that even in respect of acquisitions of 1957 and 1962 litigation has still been pending in the reference Court.

We would like to point out to the Union of India and the various States and the Union Territories which under the Land Acquisition Act have the powers to acquire properties of citizens in this country either for themselves or on behalf of others that under the Amending Act of 1984 the liability for compensation has been substantially enhanced and the same has to be paid out of ultimately the State coffers or the funds of the acquiring authority. Inaction and delay lead to increase of the said liability. It is, therefore, of paramount importance that public money should not be wasted by sitting over applications made by dissatisfied claimants asking for reference to the Court.

Serious view should be taken of the fact that applications for reference are withheld by the Land Acquisition Officer without disposal for time beyond any explanation. Similarly, references when made under Sec. 18 of the Act to the Court are treated as ordinary litigation and put into the pipe line for disposal in due course which sometimes means 12 to 15 years. The Court is also socially accountable and delayed disposal of a reference which ultimately costs the States heavily has to be taken into account in planning disposal of Court proceedings.

We, therefore, direct that the States should ensure disposal of applications for references to the Court when moved before the Land Acquisition Collector and though the statute has not given a period for disposing of such applications, these applications should be disposed of within three months of being made and the outer limit should not exceed six months. The Land Acquisition Officers should owe explanation to the superiors in the event of delay beyond three months and States should take appropriate care to issue clean and strict orders to the Land Acquisition Officers inviting their attention to the liability that might arise due to delay in disposal of such applications and State should occasionally even consider sharing of liability with the Land Acquisition Officers personally either so that the responsibility of the Land Acquisition Officers in the matter may be appropriately realised."

In spite of such positive directions issued by the Apex Court, the situation, even after lapse of six years remains and continues to be the same.

11. I am of the considered opinion, that the matter requires serious attention and consideration at the higher level of the State Government. It is necessary that the State should consider the desirability of constituting a High Level Committee to lay guidelines and issue suitable instructions to the Land Acquisition Officers and all others concerned to take effective steps for depositing the amount of compensation awarded to the claimants whose lands are taken away under compulsory acquisition by the State Government. As observed by this Court such guidelines would avoid the intervention and role of 'Pyravikars' and 'meddlesome interlopers'. It is not as if the Government is free to ignore the legitimate demand of claimants for receiving the compensation amount awarded to them by the Land Acquisition Officer/ competent court of Civil Jurisdiction on reference. Lack of uniform policy and guidelines in the matter has led to a situation where there is scramble for getting compensation amount deposited. Unscrupulous elements have the field day. Can such indifference and inaction on the part of the State and its departments in complying with the lawful directions and decrees of the Court could be said to be in accordance with the Rule of Law? Rule of law requires and ensures equality before law. Could it be said that the land owners, who have lost their lands are not entitled for equal and fair treatment at the hands of the State and its administration? Would it really sub-serve any definite public purpose by depriving the land owners of their legitimate right to get the compensation amount? What public purpose would it serve by utilising the lands for a public purpose such as irrigation projects etc., on the one hand and depriving the multitude of people of their right to get their compensation for the lands taken over and utilised for such public purpose. It is common knowledge that the land owners whose lands were acquired for Srisailam Project, Sriram Sagar Project and Priyadarshini Jurala Project and even Nagarjuna Sagar have to get their compensation amounts and in some cases no amount is paid even after a quarter century. Citizen would not be wrong in expecting the State to act in the matter and discharge its constitutional obligations.

12. But, can this Court be converted into an execution Court to implement and execute the Awards and Decrees passed by civil courts under the Act. It is true that this Court can always issue appropriate writs and directions compelling the State and its instrumentalities to act in accordance with law. The Court can always issue such directions whenever and wherever interests of Justice require issuance of such directions. The fact that the petitioners have already availed the remedy available to them in law by initiating execution petitions may not affect the jurisdiction of this Court under Article 226 of the Constitution of India to issue directions to the respondents to deposit the amount of compensation payable to the petitioners. This court in Kasani Subbamma's case (1 supra) observed:

"There are no constitutional fetters placed on the High Court in exercise of jurisdiction under Article 226 of the Constitution of India that merely because an alternative remedy exists, the writ jurisdiction should not be exercised. The exercise of writ jurisdiction is a constituent power conferred under the Constitution to a constitutional Court like High Court to issue Writs or directions under Article 226 of the Constitution of India. There cannot be any hard and fast rule that in each and every case where there is an alternative remedy, that the Writ petition should not be entertained. In appropriate cases, the High Court, being the constitutional Court should rise to the occasion to provide effective and speedy remedy, more so, in cases of deprivation of property of a person."

"Coming to execution proceedings, even the same are pending for more than three years and could not be executed. The reasons are obvious. The executing courts are very lenient in executing the decrees against the Government. This is often the experience and in fact this is the general trend while there may be very few exceptions. When the execution is carried out, what is available are rickety furniture in the office of the Land Acquisition Officer like chairs, tables, almyrahs which will already be subjected for several attachments in several executions. What useful purpose will be served, if the execution proceedings go on like that and the executing Court is not able to realise the decretal amount and pay it over to the decree holder thereby frustrating the very effect of the decree. More often, the decrees pertaining to the land acquisition proceedings have to be found to be not efficacious because of the prolonged process and lenient view taken by the Court depending upon the mercy of the Judgment-debtor to deposit the amounts for which again, there will be a scramble by pairavikars to get the priority from the Government in depositing the decretal amounts. I do not think that the Constitution makers have visualised this situation. As such, I hold that as and when it is brought to the notice of this Court that any decree passed against the Government or governmental authorities or any authority which is a State under Article 12 of the Constitution is not honoured and if it is found that execution under Civil Procedure Code is inefficacious because of the delay involved, nothing prohibits this Court to exercise its jurisdiction under Article 226 of the Constitution of India for enforcement of the decree to be in consonance of the fundamental right or the constitutional guarantee as the case may be."

13. In this very context, this Court in Billa Linga Reddy's case (2 supra) Observed:

"A preliminary objection is projected by the learned Government Pleader on the ground that when a judgment and Decree has been rendered by the Civil Court, the same has to be executed in the Civil Court as provided by several Rules under Order 21 CPC, and that this writ petition is not maintainable. May be the said objection is tenable so far as the ordinary suits are concerned. But, in a case concerning deprivation of a person's property, it can be done only by due process of law and not otherwise." ............................."If there is either failure to pay compensation or if there is an abnormal delay in payment of compensation, there will be violation of fundamental right, which was hitherto available under Article 31 of the Indian Constitution and constitutional guarantee, which is now available under Article 300-A, of the Constitution of India, and whenever such a violation is pointed out, a Constitutional Court like this, cannot be silent spectator and has to step in to issue a Writ to set the things right and to remedy the situation so that the Constitutional obligation of the Government is duly discharged. No fetters can be placed on the powers of this Court to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. The mere fact that remedy is available by way of execution petition under the provisions of the Code of Civil Procedure, shall not prevent a constitutional Court, if a situation of this nature arises to exercise the powers of writ jurisdiction. By the by, what is available in execution in a decree against the Government? It is only rickety chairs and tables, which cannot satisfy even a fraction of the decree and in fact several such decrees will be pending so also attachments after attachments. That will not serve the real purpose and effectual justice is not done by following that technical procedure. Courts are not sitting for doing technical justice in just following the procedure. Steps have to be taken to do effectual justice. In execution proceedings for failure to discharge the decree, a power vests in the Civil Court to detain the Judgment debtor in a civil prison till the decree is discharged. But, in the instant case, against a governmental decree, who is to be put in prison? It cannot be an Officer, who is presently holding the post of Land Acquisition Officer. It is certainly impossible to trace a person in a case like this to put him in civil prison."

14. But does it mean that in every case, even under the Land Acquisition Act, the court would entertain a writ petition and act as an execution Court? The Court in Kasani Subbamma case (1 supra) and Billa Linga Reddy's case (2 supra) had issued necessary directions and entertained the writ petitions in view of the peculiar facts and circumstances. In Kasani Subbamma's case (1 supra), the draft notification Under Section 4(1) of the Act was published on 23-2-1978 and possession was immediately taken over and meagre amount of compensation at the rate of Rs. 2,000/per acre was paid to the petitioner on 31-3-1979. On reference Under Section 18 of the Act, the Court of the Subordinate Judge, Kovvur in O.P.No. 45/80 enhanced the compensation amount by its Order and Decree dated:l-7-1982. The said decree passed by a competent Court of Jurisdiction was not honoured by the respondents for a period of more than eleven years.

15. In Billa Linga Reddy's case (2 supra), lands were acquired for the purpose of reconstructing F.T.I, tank-bed pursuant to the requisition of the Executive Engineer, PWD ID Division, Karimnager dated:25-3-1977 and Award was passed on 15-1-1979 awarding meagre amount of compensation. On reference, the learned Subordinate Judge, Karimnagar in O.P.No. 280/80 enhanced compensation and passed an Order and decree on 24-12-1983. The petitioners therein could not realise the amount of compensation even after lapse of more than twelve years of the Order and Decree of the Civil Court. The court expressed its anguish and observed:

"See the plight of the petitioner and the other land holders, who have been deprived of their possession way back in the year 1979 and a meagre compensation was awarded and on reference Under Section 18 of the Act, a decree was passed by the competent Civil Court on 24-12-1983 and even after a lapse of more than 11 years, the said decree still stands undischarged."

16. It is, thus, clear that this court was faced with a situation where the claimants were not paid compensation pursuant to the decree and Award passed in the year 1982 and 1983 respectively. Preliminary notification itself was issued in the years 1978 and 1977 respectively. Therefore, the directions issued by the court and the law laid-down has to be understood in the context and background of the facts and circumstances. This Court in such circumstances relaxed the self-imposed fetter upon its jurisdiction under Article 226 of the Constitution of India and issued necessary directions, though the petitioners therein had an alternative and efficacious remedy of executing the decree and Award passed by the Civil Court.

17. In my considered view, this Court cannot be allowed to be converted into an execution Court to implement the Award and Decrees passed by reference Court under the Act. The jurisdiction and power conferred upon this Court under Article 226 is required to be exercised only where the interest of Justice requires. It is not as if this Court would entertain writ petition to implement and execute any and every order and Decree passed by Court of competent civil jurisdiction. The decree holders have to necessarily resort to execution proceedings and get the decrees executed in accordance with law and the Court would normally insist the decree holders to adopt the alternative efficacious remedy available under the Code of Civil Procedure and the Act.

18. In Ghan Shyam Das v. Anat Kumar Sinha, , the Apex Court observed:

"The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases. The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a Civil Court or to deny defences legitimately open in such actions. As was observed in State of A.P. v. Chitra Cenkata Rao the jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like an appellate Court. In Thansingh Nathma v. A. Mazid a case dealing with liability to pay sales tax, the appellants without following the statutory remedy under the Sales Tax Act, moved the High Court under Article 226 on the ground that the Act was ultra vires. The challenge was rejected. Another contention, namely, that the finding of the Commissioner that the goods were actually within the State at the time of the contract was based on no evidence and was purely speculative, was also raised. This ground also failed before the High Court and the writ petition was dismissed. Approving the decision, this Court observed that if the appellants had pursued the statutory remedy under the Act and the question had been referred appropriately advised the Commissioner, but not having done so, the High Court could not be. asked to assume the role of the Commissioner either on question of fact or even law. Again when a learned single Judge of the High Court and on appeal a Division Bench proceeded to examine the correctness of an order in relation to grant of a permit to ply a vehicle under the Motor Vehicles Act, it was observed by this court in M. Naina Mohammed v. K.A. Natarajan , that the power under Article 226 is supervisory in nature and the Judges at both the tiers had unwittingly slipped into the subtle but, fatal, error of exercising a kind of appellate review. So far the question of executability of a decree is concerned, the Civil Procedure contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of order xxi of the code take care of different situations, providing effective remedies not only to Judgment-debtors and decree holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the Civil Court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under the statutes, with administration of Justice, is expected to do better. It will be. therefore, difficult to find a case where interference in writ jurisdiction for granting (relief) to a judgment debtor or a claimant-objector can be justified, The Rules 97 to 106 of Order XXI envisage questions as in the present appeal to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree. The High Court, in the present case, therefore, ought not to have embarked upon a decision of the writ petition on merits, and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the Civil Court."

19. In S.H. Javeri v. Covt. of A. P., . this Court observed:

"The higher Court in India have repeatedly held that exercise of jurisdiction under Article 226 of the Constitution of India is discretionary in nature and the Court would decline to interfere (i) if there is an alternative remedy, (ii) if the conduct of the party disentitled him from the relief, (iii) if the petition involves disputed questions of fact. It is no doubt true that these limitations are imposed upon the Courts by themselves and for good reasons. Pragmatic considerations weighed with courts in imposing fetters upon itself. Great Judges endowed with wisdom and foresight laid down the laws as to in what manner the discretion should be used in exercising the great Constitutional power of issuing writs.

20. It is therefore clear that this Court in exercise of its judicial review jurisdiction under Article 226 does not issue writs as a matter of course. Existence of alternative and efficacious remedy is one of the consideration that would always be taken into consideration by this Court. But, it is settled law that existence of alternative and effective remedy does not operate as a bar in whatsoever manner and affect the jurisdiction of this Court in the matter of exercising its power under Article 226 of the Constitution of India.

21. For the afore said reasons, I am of the considered view that the decree holders/claimants under the Land Acquisition Act have to avail the normal remedy provided by the Act and Code of Civil Procedure for getting the decrees executed. This Court as in Subbamma and Lingareddy's cases (1 and 2 supra) would interfere in appropriate cases and issue directions, particularly in cases where the proceedings are pending for very long time pursuant to the notification issued in the year 1978 and 1977 and prior thereto, particularly in cases where large extents of lands were acquired for the purpose of Major and Minor Irrigation projects affecting the large number of land owners. This court would also interfere and issue necessary directions in exercise of its power under Article 226, in cases where it comes to the conclusion that the action on the part of the Government and its departments could be characterised as unfair and oppressive by their refusal to deposit the compensation amount even after a long period, as such long delays would practically amount to depriving the land owners of their legitimate right to receive the compensation, as observed by this Court in the cases of Subbamma and Linga Reddy (1 and 2 supra).

22. Further, this Court in A. V. Krishna Reddy v. The Special Deputy Collector, Land Acquisition, Rajampet, W.P.No. 4919/97, dt. 11-8-1997, while referring to Linga Reddy case (2 supra) held:

"This Court finds no reason to pass any order as pleaded. Billa Linga Reddy's case (1 supra) was on different facts where the award itself was passed eleven years prior to the date of writ petition without there being any execution petition. In this case, the award was passed less than two years back regarding which the petitioners can always file execution petition for executing the award where it is possible for the executing Court to examine all the controversies. Although the powers of this Court under Article 226 of the Constitution of India are unlimited to do absolute justice to the parties, it is a question of propriety where the court should do it in a particular case. In the nature of the facts and circumstances of this case, this Court finds no reason to exercise such discretion. However, the learned Government Pleader for Land Acquisition assures that the Government will take all the interest in the matter to deposit the amount. However, the petitioner may also execute the award in the meanwhile. The writ petition is disposed of accordingly directing the respondent to expedite the matter regarding the deposit of the money with liberty to the petitioner to file execution petition for executing the Award."

23. But, the necessity of this court to interfere even in such matters under Article 226 could be avoided, provided the Government issues directions in the matter by framing guidelines in the matter of depositing the compensation amount, as observed supra.

WHETHER THE PETITIONERS ARE ENTITLED FOR ANY RELIEF?

24. Notifications are stated to have been issued under the Act and published only on 5-3-1992, though possession is alleged to have been taken by the respondents on 1-12-1981 about which there is no evidence on record. The original petitions were disposed of only on 29-1-1996. Execution proceedings were initiated in the year 1996 and attachment of movable properties is already ordered by the Civil Court in the month of April, 1997. The ratio and principle laid down and (sic. in) Sttbbamma and Linga Keddy cases (1 & 2 supra) and in this very case would not come to the aid of the petitioners. The petitioners shall have to continue the execution proceedings already initiated. However, if the petitioners fail to realise the fruits of the decrees and Awards, they are always entitled to avail the Constitutional remedies.

25. In such view of the matter, no relief as such and as prayed for by the petitioners could be granted in these writ petitions. I hope and trust that necessary initiative would be taken by the State Government and issue necessary directions and guidelines to its various departments to ensure that the compensation amounts are deposited without undue delay. Such guidelines may contain necessary directions to its various departments with a view to ensure uniform method in depositing the compensation amounts in the Courts pursuant to the Awards and Decrees.

26. The writ petitions are accordingly disposed of. No order as to costs.