JUDGMENT V.K. Mehrotra, J. - At Pachpokhri in district Basti there is an educational institution known as Kisan Higher Secondary School established by a Society called the Kisan Educational Society, Pachpokhri. The Society was formed on September 10, 1967 and was registered under the Societies Registration Act. The Institution has a duly approved scheme of administration framed under S. 16-A of the U.P. Intermediate Education Act, 1921. 2. It is said that on October 3, 1979, an election took place in which the General Council of the Society elected 10 persons as members of the Managing Committee. Sankatha Prasad Srivastava, the first petitioner is said to have been elected as Secretary. Abdul Qadir Noori was elected as the President and Trijugi Pandey, the third respondent in this case was elected as one of the Vice Presidents. One Mohammad sayeed Khan was to be the Manager of the Institution. It is said that he resigned on May 31, 1981 when Abdul Qadir Noori was asked to carry on the functions of the Manager till such time that fresh elections were held for that office. It is averred by the present petitioners that a meeting was convened for August 16, 1981 by Sankatha Prasad Srivastava at the instance of Abdul Qadir Noori and on that date the General Council elected Abdul Sattar, the third petitioner as the Manager. Intimation about his election was sent by Sankatha Prasad Srivastava to the District Inspector of Schools, Basti. The same day Abdul Qadir Noori claimed to have held a meeting in which he was elected as the Manager and intimation to that effect was sent by him to the District Inspector of Schools, Basti. On the report made by the District Inspector of Schools, the Deputy Director of Education, Gorakhpur called upon Abdul Qadir Noori and Abdul Sattar by an order dated January 30, 1982 to present their respective cases within 10 days and on April 12, 1982, the Deputy Director of Education held that Abdul Qadir Noori had been elected as Manager. This order was challenged by the present petitioners in this Court in Writ Petition No. 4766 of 1982. The petition was admitted to a fuller hearing and on May 27, 1982 an interim order was passed staying the operation of the Deputy Director's order of April 12, 1982. 3. This order was challenged by the present petitioners in this Court in Writ Petition No. 4766 of 1982. The petition was admitted to a fuller hearing and on May 27, 1982 an interim order was passed staying the operation of the Deputy Director's order of April 12, 1982. 3. According to the present petitioners, three years' term of the Managing Committee expired on October 2, 1982 as it has been earlier elected on October 2, 1979. The writ petition assailing the order of April 12, 1982 was consequently dismissed by this Court as having become infructuous by an order of October 6, 1982. Prior to it, an election had been held on October 3, 1982 in a meeting of the General Council by the petitioners in which it is said that Sankatha Prasad Srivastava had been reelected as Secretary while Shabbir Ahmad (petitioner No. 2) was elected as Manager. Abdul Sattar was elected as President of the Committee. The case of the petitioners is that inasmuch as this Court had directed on October 6, 1982, while dismissing the writ petition, that fresh elections may be held within three weeks, a meeting of the General Council was held on October 24, 1982 in which the proceedings of the meeting dated October 3, 1982 were confirmed and the aforesaid persons were reelected to the offices to which they had been elected earlier. Intimation about it was given to the District Inspector of Schools. Basti on October 25, 1982. 4. Abdul Qadir Noori is also said to have convened a meeting on October 24, 1982 in which a different set of persons constituting the Managing Committee and the office- bearers are said to have been elected. A list of these elected persons was sent by Abdul Qadir Noori also to the District Inspector of Schools. 5. 4. Abdul Qadir Noori is also said to have convened a meeting on October 24, 1982 in which a different set of persons constituting the Managing Committee and the office- bearers are said to have been elected. A list of these elected persons was sent by Abdul Qadir Noori also to the District Inspector of Schools. 5. The case of the petitioners further is that on the basis of a communication by the District Inspector of Schools the Deputy Director of Education allegedly went into the matter as to who were to be treated to be the duly elected members and office-bearers of the Managing Committee, under section 16- A(7) of the aforesaid Act, without any notice to the petitioners and by communication dated February 9, 1983, the Deputy Director of Education intimated the District Inspector of Schools that persons elected in the meeting said to have been held by Abdul Qadir Noori were to be recognised. This order was then assailed by the present petitioners before this Court in Writ Petition No. 3125 of 1983. That petition was admitted to fuller hearing on March 10, 1983 and an ad interim order was passed staying the operation of the order of February 9, 1983. Trijugi Pandey, and through him the fourth respondent, filed counter affidavit in this petition and sought vacation of the interim order dated March 10, 1983. That order was, however, confirmed by this Court on February 6, 1984. An application was, however, moved on February 10, 1984 by these respondents for recalling the order of February 6, 1984 on the ground that their counsel was not present when the order was passed. This matter was disposed of on February 21, 1984. The order passed that day was in these terms : "The allegation in the writ petition that the order was passed by Deputy Director of Education without hearing remains uncontroverted. It is, therefore, prima facie, against mandatory provision of S. 16-A(7) of Intermediate Education Act. It is clarified that it shall remain open to Deputy Director of Education to decide the dispute between the parties afresh after issuing notice and affording opportunity of hearing to both parties." 6. The Deputy Director of Education, Gorakhpur then issued notice dated March 12, 1984 to both the parties. Written reply and documentary evidence are said to have been filed by the petitioners before him. The Deputy Director of Education, Gorakhpur then issued notice dated March 12, 1984 to both the parties. Written reply and documentary evidence are said to have been filed by the petitioners before him. The case of the petitioners is that the Deputy Director of Education was showing an attitude of partiality towards the respondents and did not, in spite of repeated applications, afford proper opportunity to the petitioners to put forward their case before him and eventually passed an order on November 16, 1984 which was received by the second petitioner on November 26, 1984 holding that the Committee of which Trijugi Pandey was the Manager was the duly elected Committee of Management. This order was invalid as it was passed without taking into consideration the voluminous evidence filed on behalf of the petitioners and without affording any opportunity of hearing to the petitioners and further that it did not conform to the requirements of S. 16-A(7) of the Act. The order of November 16, 1984 has been challenged in the present petition on various grounds. 7. On December. 18, 1984 when this petition was presented before this Court, the petitioners were directed to serve the third and fourth respondents with notice of the petition and the stay application and the petition was ordered to be put up in the week commencing January 28, 1985 for admission. On the application for an interim order which accompanied the writ petition, this Court directed that unless the order of November 16, 1984 had already been implemented, it shall not be implemented and the District Inspector of Schools would continue to manage the Institution, as before. This direction was given in view of the averments made in the writ petition that since June 26, 1982, the salary of the teachers and other employees was being paid under the signatures of the Accounts Officers in the office of the District Inspector of Schools in consequence of an order passed by the District Inspector of Schools, Basti under S. 5(1) of the U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971 directing single operation of the accounts of the Institution. That order had been endorsed by this Court in its order of February 6, 1984 in Writ Petition No. 4766 of 1982. 8. That order had been endorsed by this Court in its order of February 6, 1984 in Writ Petition No. 4766 of 1982. 8. In a supplementary affidavit sworn by Shabbir Ahmad in the present writ petition on December 18, 1984, it was reasserted that the said arrangement was continuing. 9. Trijugi Pandey filed a counter affidavit after putting in appearance in this writ petition and Sankatha Prasad Srivastava has sworn a rejoinder affidavit in reply to this counter affidavit. On April 16, 1985. a supplementary counter affidavit sworn by Trijugi Pandey on March 26, 1985 was filed by the contesting respondents while the hearing in the matter was continuing. 10. Counsel for the parties have prayed that the matter be disposed of finally at the admission stage itself and at their request we heard the matter at some length and are proceeding to dispose it of finally. 11. The main submission of Sri G. P. Mathur, appearing for the petitioners, is that even after being required to decide the matter afresh in accordance with law, the Deputy Director of Education has, while passing the impugned order, not only failed to give adequate opportunity to the petitioners to present their point of view and also failed to take into account the material on record but proceeded to dispose of the matter in a manner inconsistent with the provisions of S. 16-A(7) of the Act. He invited our attention to the impugned order and pointed out that after narrating the antecedent history, the Deputy Director noticed the cases of the two parties and thereafter took the view, without giving any cogent reasons, that the list of members furnished by Abdul Qadir Noori which had been accepted as correct by the Deputy Director of Education in his decision of April 12, 1982, was to be treated as the correct list. Further, that the members enrolled by Abdul Sattar between April 10 and June 28, 1982 could not be treated to be validly inducted members nor could they participate in any election or hold any office in the institution. Further, that the members enrolled by Abdul Sattar between April 10 and June 28, 1982 could not be treated to be validly inducted members nor could they participate in any election or hold any office in the institution. It was also submitted that on the aforesaid view, the Deputy Director of Education abruptly came to the conclusion that the members who were recognised to have been elected by order dated April 12, 1982 were the validly elected members and, therefore, the office-bearers who were elected on October 24, 1982 according to the third and fourth respondents. were entitled to be accorded recognition by the Department. The Deputy Director of Education did not direct his attention at all to the mandatory requirement of going into the question as to who was in effective control of the institution in terms of S. 16-A(7) of the Act. All this rendered the order untenable in law. 12. In Committee of Management of Subhash Uchchatar Madhyamik Vidyalaya, Bajapura (Mowana) Meerut v. Dy. Director of Education, Meerut, 1985 UPLBEC 241 : 1985 All LJ 1005 a Division Bench, of which one of us was a member, said that : "..........except incidentally the question about the correctness or otherwise of the election said to have been held, cannot be gone into by the Deputy Director of Education even when he is examining the position under S. 16-A(7) of the Intermediate Education Act. In the present case the Deputy Director of Education has not adverted at all to the question as to which of the rival claimant was in effective control of the management in accordance with the requirement of S. 16-A(7) of the said Act. We feel that the question whether a particular election was held in accordance with the legal provisions in that regard cannot be gone into by the Deputy Director of Education while dealing with the matter under Cl. 7 of the Scheme of Administration or while considering it under S. 16-A(7) of the Intermediate Education Act, except incidentally in the latter case with a view to decide the question of effective control". 13. In Maharshi Sukhdeo Vidyalaya v. Regional Deputy Director of Education, Ist Region, Meerut, Writ Petn. 7 of the Scheme of Administration or while considering it under S. 16-A(7) of the Intermediate Education Act, except incidentally in the latter case with a view to decide the question of effective control". 13. In Maharshi Sukhdeo Vidyalaya v. Regional Deputy Director of Education, Ist Region, Meerut, Writ Petn. No. 4770 of 1984, decided on January 24, 1985 (reported in 1985 All LJ 471) (Para 9) another Division Bench said that : "We find that there is a lot of confusion in the minds of the Deputy Directors of Education regarding the scope of the enquiry to be made under the said provision (i.e. S. 16-A(7)). The Deputy Director has to decide as to which of the two rival Management Committees is in actual control over the affairs of an institution. The Deputy Director has to satisfy himself that the Management Committee recognised by him to be in actual control has been duly elected. The scope of enquiry regarding the validity of the election of a Management Committee is, however, limited. The Deputy Director is not expected to make a detailed inquiry and function like an election tribunal. He has only to prima facie satisfy himself about the validity of the election.......... For determining as to whether a Management Committee is in actual control of the affairs of an institution, the Deputy Director has to consider control over the funds, control over day to day administration. disbursement of salaries, receipt of income from property of the institution, receipt of Government aid and other matters which throw light on actual control. We reject the contention that the Deputy Director has no jurisdiction to go into the validity of the election of the rival Management Committee. We hold that he can go into the matter incidentally as explained above." 14. Sri M. P. Singh who has appeared for the contesting respondents urged that the view that the question of election can only be gone into incidentally, is not correct in law and that some earlier decisions of this Court about the scope of powers of the Deputy Director of Education were not brought to the notice of the Benches which decided the aforesaid two cases. The matter, according to Sri Singh, deserves consideration by a larger Bench. 15. The matter, according to Sri Singh, deserves consideration by a larger Bench. 15. The earliest decision upon which reliance was placed by Sri Singh was rendered by a Division Bench in Committee of Management v. District Inspector of Schools, Meerut, 1978 All WC 124 : AIR 1978 NOC 90. The Bench, speaking through N. D. Ojha, J. held in a judgment dated December 14, 1977 that the District Inspector of Schools could not refuse to go into the question as to who were validly elected office-bearers for the Committee of Management in the meeting said to have been held on August 7, 1977 and continue to recognise the old office-bearers who had been elected in the year 1974 on the ground that the dispute was to be decided by a competent Court or by the parties amicably. Relying upon an earlier judgment of the Court, the Bench held that where fresh elections are said to have taken place, the District Inspector of Schools could not continue to recognise the erstwhile Committee of Management and was under a statutory obligation in terms of S. 19-A of the U.P. General Clauses Act to find out as to which was the management, as defined in S. 2(d) of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 with which he would deal in connection with the affairs of the institution. This decision does not afford any guidance in regard to the powers of the Deputy Director of Education under S. 16-A(7) of the Act. 16. The next case to which our attention was invited was of a Division Bench in Committee of Management of Maharana Pratap Inter College, Jaunpur v. Dist. Inspector of Schools, Jaunpur, 1981 UPLBEC 375. In that case the Committee of Management and its office-bearers were said to have been elected in a meeting of the general body of the society on July 7, 1980. A representation was made by one of the members of the society that neither he nor some other members had been served with the notice of the meeting. On this the District Inspector of Schools called upon the President of the institution to produce material to establish that the notice had been issued to all the members regarding the meeting held on July 27, 1980. On this the District Inspector of Schools called upon the President of the institution to produce material to establish that the notice had been issued to all the members regarding the meeting held on July 27, 1980. The Deputy Director of Education also suspended his earlier order according approval to the Committee of Management said to have been elected at the meeting dated July 27,1980. The order calling upon the President to furnish requisite information and suspending the earlier order of approval was assailed in this Court in a petition under Article 226 of the Constitution on the ground that it was invalid as it had been passed without any notice to the elected persons. Negativing this submission, the Bench, speaking through Yashodananda, J. said : "In our opinion, there is no force in this contention. It has been held repeatedly by this Court that in the event of a dispute arising regarding the constitution of a Committee of Management of an educational institution governed by the provisions of the U.P. Intermediate Education Act, it is open to the District Inspector of Schools to decide at an administrative level as to which of the two rival Committees of Management is the duly 'elected Committee of Management. It follows, therefore, that if the constitution of a particular Committee of Management is challenged the District Inspector of Schools at an administrative level is competent to decide as to whether it has been duly elected or not......." We wonder how these observations can be pressed into aid in the instant case, where the matter was to be gone into with reference to ,the provisions of S. 16-A(7) of the Act which was not in existence when the case was decided on September, 23, 1980 as it had only been added by an Amending Act in the year 1981. 17. The question in Committee of Management of Sarvodaya Inter College, Adhawar v. Dy. Director of Education, 1982 UPLBEC 31 : 1981 All LJ 1325 upon which also reliance was placed by Sri Singh, was entirely different. There, the District Inspector of Schools had found on two earlier occasions that the second petitioner was the Manager and had directed the third respondent to file a suit for vindication of his right if he liked. Director of Education, 1982 UPLBEC 31 : 1981 All LJ 1325 upon which also reliance was placed by Sri Singh, was entirely different. There, the District Inspector of Schools had found on two earlier occasions that the second petitioner was the Manager and had directed the third respondent to file a suit for vindication of his right if he liked. The Bench while noticing that by insertion of S. 16-A(7), the Deputy Director of Education was conferred with the power to decide the question as to who was to be treated as Manager which had to be decided earlier by the District Inspector of Schools, observed that (at P. 1329 of All LJ): "S. 16-A(7) is not a substitute for the civil court. The decision given by the Deputy Director of Education would also be of a summary nature, subject to the decision of the civil court. In our opinion, therefore, the matters which had been adjudicated upon by the District Inspector of Schools before the insertion of S. 16-A(7) could not be reopened and brought before the Deputy Director of Education on the pretext of a new forum having been provided for the said purpose." 18. The decision upon which greater emphasis was placed by Sri Singh was in the case of Committee of Management, Janta Inter College, Thekma v. Dy. Director of Education, Gorakhpur, 1982 UPLBEC 38. The Division Bench speaking through K. C. Agarwal, J. observed (in para 5 of the report) thus : "Before the Deputy Director of Education, (as) the question required to be decided was (as) to who was in control of management. This question was linked with the decision 'about the validity of the election pleaded by the petitioner as well as by the respondent No. 3. For this purpose the Deputy Director of Education should have examined the evidence of the parties and given a finding on the same. He did not address himself to this controversy and was led away by irrelevant consideration for deciding the dispute referred to him. As the finding given by him is based on irrelevant grounds, the order cannot be sustained." Relying upon these observations, Sri Singh urged that the view expressed in the case of Subhash Uchchatar Madhyamik Vidyalaya, 1985 All LJ 1005 (supra) that the matter of election can only be gone into by the Deputy Director of Education incidentally, requires ,reconsideration. As the finding given by him is based on irrelevant grounds, the order cannot be sustained." Relying upon these observations, Sri Singh urged that the view expressed in the case of Subhash Uchchatar Madhyamik Vidyalaya, 1985 All LJ 1005 (supra) that the matter of election can only be gone into by the Deputy Director of Education incidentally, requires ,reconsideration. We may, before examining whether there is any conflict as urged, notice the facts in the case of Janta Inter College, Thekma, Azamgarh. The petition had been (filed by the Committee through one Sri Ram Sewak Rai, claiming himself to be the Manager. Rajendra Rai was impleaded as the third respondent. The case set up was that an election had been held on April 16, 1978 in which Ram Sewak Rai was elected as the Manager who continued to manage the institution but under political pressure the officers of the Education Department made repeated efforts to interfere with the management which resulted in proceedings before this court and the civil court. Fresh elections were held on April 12, 1981 in which again Ram Sewak Rai was elected as the Manager. Intimation of this election was given to the District Inspector of Schools, Rajendra Rai, who was not even a member of the society, was nowhere in the picture. There was no dispute about the election of the petitioner and the Committee of Management headed by him yet the District Inspector of Schools referred the matter to the Deputy Director of Education who arbitrarily took the view that Rajendra Rai was duly elected as the Manager in the meeting of the General Body held on March 1, 1981 as intimated by him in his written representation dated May 30, 1981. This was by an order dated July 14, 1981 which also said that Ram Sewak Rai had not held the election in accordance with the approved Scheme of Administration nor was he in the control of the affairs of the institution. Rajendra Rai, who was trying to conduct the affairs of the institution and the Committee of Management elected in the meeting of March 1, 1981 was to be given recognition according to the order of the Deputy Director of Education. The order of the Deputy Director of Education was quashed by this Court and a direction was issued to the Deputy Director to decide the matter afresh. 19. The order of the Deputy Director of Education was quashed by this Court and a direction was issued to the Deputy Director to decide the matter afresh. 19. The observations contained in para 5 have to be read in the context of the circumstances of the case in which they were made. We have examined the order dated July 14, 1981 (annexure 8' to the writ petition of Janta Inter College, Thekma, Azamgarh) and find that the Deputy Director had not adverted at all to the question of effective control in accordance with S. 16-A(7) of the Act. Even the question in regard to the holding of the election was not gone into by the Deputy Director with reference to the evidence on record. 20. Quite apart from the aforesaid background, we find that there is really no conflict between what has been said in the case of Subhash Uchchtar Madhyamik Vidyalaya and the observations made in Janta Inter College case. While examining the question of effective control, the question as to who were elected as office-bearers certainly has relevance but its examination is only incidental in the sense that the Deputy Director of Education cannot act as a substitute for the civil court for determining the validity or otherwise of the election but can find out as to who was prima facie entitled to be in effective control. The rationale of this inquiry is obvious because the law does not contemplate a rank outsider to middle with the management of the institution. Whether one party or the other was the validly elected Committee in accordance with law is a question for ultimate decision by the appropriate civil court. The Deputy Director of Education is to examine this aspect only in a summary manner. He has, however, to determine the question of effective control in accordance with the statutory guidelines provided in S. 16-A(7) of the Act itself and cannot, only on the basis of his opinion about the validity of the election, without anything more, take the view as to who was entitled to manage the institution. 21. In Committee of Management, Janta Intermediate College, Piluwa, Etah v. Dy. Director of Education, Agra Region, Agra, Writ Petn. 21. In Committee of Management, Janta Intermediate College, Piluwa, Etah v. Dy. Director of Education, Agra Region, Agra, Writ Petn. No. 1222 of 1984, decided on April 1, 1985 also it was observed by a Division Bench, speaking through J. N. Dubey, J. that : "If the election of the Committee of Management headed by opposite party No. 4 was illegal his claim for being recognised as new Manager of the College should not be legally considered. Under S. 16-A(7) of the Act it is the rival claim of the Committee of Management which has to be decided by the Deputy Director of Education and therefore, a Committee, of Management seeking recognition as new Committee of Management, should prima facie satisfy that it was elected as such under the approved scheme of administration." In this case the Deputy Director of Education did not go into the question as to which of the elections which rival claimants were putting forward, as entitling them to be treated as a duly elected Committee of Management, was acceptable even in a prima facie manner. He refused to consider this aspect at all by saying that it can only be gone into by the civil Court. He proceeded to hold that in view of the actual control of the allegedly newly elected Committee of Management of which Sri Ram Rakshapal Sharma, respondent 4, was the Manager since January 24, 1983 that Committee was to be recognised by the Department subject to the decision of a competent civil court. 22. In Committee of Management, Gandhi Uchchatar Madhyamik Vidyayala, Ambehta Peer v. Regional Dy. Director of Education, Meerut Region, Meerut, Writ Petn. No. 4623 of 1984, decided on March 15, 1984, a Division Bench of this Court said that: "In our opinion, for deciding who is in actual control, the Regional Deputy Director will have to find the nature of such control and the background in which such control is claimed by the rival factions and though an exhaustive enquiry is not postulated regarding the validity of the election, still a consideration of the nature of the election held and its background may be taken into consideration by the Deputy Director for deciding the controversy. Undoubtedly the final verdict regarding the validity of the Committee of Management and its constitution has to be pronounced by a Court of competent jurisdiction and S. 16A(7) was inserted with a view to make an interim arrangement which may last till such time as the competent Court finally pronounces its verdict. However, we do not think that it was the legislative intent that the Regional Deputy Director, while deciding the controversy with a view to make an interim arrangement for the institution, should allow persons who can be treated to have no claim whatsoever and to use an expression from a different context, who may be treated a rank trespassers to function in the management during the interim arrangement......... We have consciously put the aforesaid interpretation on S. 16-A(7) as we feel that any other interpretation may embolden the person completely devoid of any claim whatsoever to set up a claim on the (basis of their mere control however obtained and whatsoever be its nature." 23. These observations, in our opinion, do not run counter to what we have said earlier. 24. Alternatively, Sri Singh attempted to convince us that the contesting respondent Nos. 3 and 4 were in actual control and that the impugned order of the Deputy Director of Education did not merit interference by us. We are not inclined to go into this question for we feel that, in the first instance, it is the Deputy Director of Education who should go into it with reference to the statutory guide- lines on the basis of the material made available to him by the parties and this Court should not be invited to do so on the basis of the material brought before it in these proceedings. After all, the statute casts an obligation upon the Deputy Director of Education and it is the Deputy Director of Education who may be required to perform the statutory duty in accordance with law. 25. We are also not impressed by the submission that, inasmuch as, the respondents assumed control in pursuance of the impugned order of the Deputy Director of Education before this Court passed the ad interim order, the management of the institution should be permitted to be carried on by them till fresh selections are held in October, 1985. 25. We are also not impressed by the submission that, inasmuch as, the respondents assumed control in pursuance of the impugned order of the Deputy Director of Education before this Court passed the ad interim order, the management of the institution should be permitted to be carried on by them till fresh selections are held in October, 1985. The petitioners have asserted that the Deputy Director of Education circumvented the orders of this Court and as it were, managed that the contesting respondents assume charge of the affairs of the institution even though they were not entitled to do so, when the matter was pending in this Court. We are not entering .into the charges and counter charges in this respect contained in the affidavits for we feel that interest of justice would be better served by requiring the Deputy Director of Education to go into the matter expeditiously in accordance with the provisions contained in S. 16-A(7) of the Act with reference to which he has completely omitted to consider it. We are of opinion that the impugned order of the Deputy Director of Education deserves to be quashed. 26. The petition succeeds and is allowed. The impugned order of the Deputy Director of Education dated November 16, 1984 (Annexure 14' to the writ petition) is quashed. The Deputy Director of Education, Gorakhpur is directed to decide the matter afresh in accordance with law, in the light of the observations made earlier, within a month of, a copy of this order being placed before him by any of the parties, after notice to both the parties and after affording them opportunity of presenting their point of view on the basis of the material already available on the record of the case. 27. The petitioners shall be entitled to their costs.