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Gauhati High Court · body

2000 DIGILAW 19 (GAU)

Loney Tanveera Rahman v. State of Assam

2000-01-11

A.K.PATNAIK

body2000
In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the notice dated 1.8.1999 issued by the Officer-in-charge, B. Borooah, College Centre expelling the petitioner from the examination hall and the letter dated 9.8.1999 of the Controller of Examination, Assam Higher Secondary Education Council to the petitioner informing her that she has been expelled from the Biology Examination held on 1.8.1999 for adopting unfair means in the examination hall while appearing in the said examination. 2. The facts briefly are that by a notification dated 16.8.1996, a set of Executive Instructions known as Medical Colleges of Assam and Regional Dental College (Regulation of Admission of Under-Graduate Students) Rules, 1996 were notified. The said Rules were amended by notification dated 27.5.1999. As per the said Rules, as amended, a Common Entrance Examination is conducted by the Assam Higher Secondary Education Council for Admission into 1st Year MBBS/BDS Course in the three Medical Colleges of Assam and the Regional Dental College at Guwahati. The petitioner after having passed Higher Secondary Examination from Cotton College, Guwahati took the Common Entrance Examination for admission into 1st year MBBS/BDS Course in the three Medical Colleges of Assam and the Regional Dental College, Guwahati for the session 1999-2000. She appeared in Physics and Chemistry papers on 31.7.1999 in Room 8 No. 19 of B. Borooah College Examination Centre, Guwahati. She also appeared in Biology Examination which was held on 1.8.1999 between 9.00 AM to 12.00 noon. The petitioner's case is that at about 11.15 AM, when she had just completed the answers of Botany part of the question paper in Biology Examination and was busy in writing Zoology part and had completed almost 80% of the answers, the Invigilator, Sri Dhruba Choudhury, respondent No. 9, asked the petitioner to leave the examination hall and took away her answer scripts and did not allow the petitioner to complete the answers to the remaining questions. Thereafter, she wrote a letter dated 6.8.1999 to the Controller of Examination, Assam Higher Secondary Education Council, Guwahati, requesting him to let her know was, to why she was not allowed to complete the Biology paper as well as the fate of the examination. Thereafter, she wrote a letter dated 6.8.1999 to the Controller of Examination, Assam Higher Secondary Education Council, Guwahati, requesting him to let her know was, to why she was not allowed to complete the Biology paper as well as the fate of the examination. In reply to the said letter dated 6.8.1999, the Controller of Examination, Assam Higher Secondary Education Council, informed the petitioner that as per the impugned notice dated 1.8.1999, she was expelled from the Biology examination held on 1.8.1999 for adopting unfair means in the examination hall while appearing in the said examination. Aggrieved, the petitioner has moved this Court in the present writ petition for appropriate relief. 3. Mr. AK Bhattacharyya, learned senior counsel appearing for the petitioner, relying on the averments in paragraph 9 of the writ petition, submitted that on 1.8.1999, the petitioner before entering into the examination hall left a polythene carry bag containing some printed memory notes as well as a water bottle inside the car. But a few minutes before the examination commenced, the petitioner's father hurriedly brought the water bottle along with the polythene carry bag in which it was kept inside the examination hall without knowing that in the polythene bag memory notes and papers had also been left by the petitioner. The petitioner then took the examination, but suddenly at 11.15 AM the Invigilator, Sri Dhruba Choudhury, respondent No. 9, brought out some papers mostly memory notes from inside the polythene bag in which the petitioner's water bottle was kept and without saying anything asked the petitioner to leave the examination hall and took away the answer scripts of the petitioner. Mr. Bhattacharyya vehemently argued that the allegation of the said Invigilator, respondent No. 9, as would be clear from the endorsement of the said Invigilator on the answer script of the petitioner relating to Botany part of the Biology paper is that the petitioner while copying from the printed card was caught red-handed. The said endorsement has been made on the last page of the answer script of the petitioner relating to Botany part of the Biology paper and on the answer of the petitioner to the 2nd part of question No. 11 of the question paper relating; to Botany part of the Biology paper. The said endorsement has been made on the last page of the answer script of the petitioner relating to Botany part of the Biology paper and on the answer of the petitioner to the 2nd part of question No. 11 of the question paper relating; to Botany part of the Biology paper. A printed card amongst other papers alleged to have been seized at the time of examination were produced in Court for the purpose of showing that the answers to 2nd part of question No. 11 of Botany part of the Biology paper to a large extent tallied with the notes in the said printed card. Mr. Bhattacharyya vehemently argued .that it will be clear from a bare perusal of the answer script relating to Botany part of the Biology examination that the petitioner has completed answering all the question relating to Botany part of Biology examination and that she was in the midst of answering the Zoology part of Biology examination when she was prevented from completing the answers and this would be evident from a bare perusal of the answer script of the petitioner relating to Zoology part of the Biology paper which would show that the last sentence on question relating to Zoology part attempted by the petitioner has remained incomplete. According to Mr. Bhattacharyya, therefore, the case of the petitioner in paragraph 8 of the writ petition that she had already complete the Botany part of the question paper and was busy in writing Zoology part is tree and if this case of the petitioner is true, the allegation against the petitioner that she was copying from a printed card while answering 2nd part of question No. 11 of the Botany part of Biology examination is false and unfounded. Mr. Bhattacharyya further submitted that a the report of the Invigilator, respondent No. 9, a copy of which has been annexed to the affidavit-in-opposition of respondent Nos. 6 and 7 as Annexure 6, would show that the Roll No. of the girl candidate who is alleged to have copied was 036. In fact, the Roll No. of the petitioner was not 036 but 023. Mr. Bhattacharyya further submitted that the said report dated 1.8.1999 of the Invigilator also did not contain the name of the petitioner. According to Mr. In fact, the Roll No. of the petitioner was not 036 but 023. Mr. Bhattacharyya further submitted that the said report dated 1.8.1999 of the Invigilator also did not contain the name of the petitioner. According to Mr. Bhattacharyya, such a report of the Invigilator cannot possibly be relied on by the authorities for the purpose of passing an order of expulsion from the examination hall. Mr. Bhattacharyya vehemently contended that Regulation 36B of the Regulation for Conduct of Higher Secondary Examination, 1985 which are said to be followed by the Council also for Common Entrance Examination for Admission into MBBS/BDS Course in the State of Assam, contemplates that a candidate who is found guilty of an offence for which he/she is liable to expulsion under the rules shall only be expelled by the Officer-in-charge of the Examination and shall not be allowed to continue the examination. According to Mr. Bhattacharyya, before a candidate is expelled under the aforesaid provision of the Regulation a finding has to be recorded by the appropriate authority that the candidate was guilty of an offence under the Rules. But in this case, no such precise finding has been recorded by the authorities holding the petitioner guilty of a specific offence under the Rules. Mr. Bhattacharyya referred to the statement in the impugned notice dated 1.8.1999 issued by the Officer-in-charge of B. Borooah College Centre, Guwahati that the case of the petitioner would be finally decided by the Assam Higher Secondary Education Council. But the decision of the said Council has not been communicated to the petitioner. He argued that even where the answers in the answer script of a .candidate tally with a document, it cannot be held that the candidate has copied from the said document because a candidate is capable of memorizing the contents of the documents and reproducing the same in the answer script. He further submitted that the petitioner was sitting in the 2nd row of the examination hall and was, therefore, right under the nose of / the Invigilator and hence the question of copying by the petitioner from the memory notes/printed card does not arise. Mr. He further submitted that the petitioner was sitting in the 2nd row of the examination hall and was, therefore, right under the nose of / the Invigilator and hence the question of copying by the petitioner from the memory notes/printed card does not arise. Mr. Bhattacharyya cited the decision of the Supreme Court in Rajesh Kumar vs. Institute of Engineers (India), AIR 1998 SC 5 , in which the Supreme Court held, inter alia, that the text of a book as the common source for cramming established no connection and that per se could not be evidence of any conspiracy between the crammers to adopt unfair means in the examination unless there be material to show that there was copying of the answer books, descended from the answer book of one of the candidates, or directly from the book leading to the copying by others. According to Mr. Bhattacharyya, the mere fact that the answers of the petitioner to 2nd part of question No. 11 of Botany part of Biology paper to a larger extent tallied with the printed card alleged to have been seized form the petitioner per se would not establish the fact that the petitioner was copying from the said printed card unless there were reliable materials to show that the petitioner was in fact copying from the said printed card. Mr. Bhattacharyya. further submitted that the answers of the petitioner to 2nd part of question No. 11 of the Botany part of Biology paper if evaluated would have fetched the petitioner only 2 marks and considering the academic record of the petitioner and her performance in rest of the answer papers, the allegation that the petitioner copied for the said 2 marks is not believable. Relying on the decision of the Supreme Court in C. Tulsi Priya vs. AP State Council of Higher Education, AIR 1999 SC 199 , Mr. Bhattacharyya submitted that the authorities can always exclude evaluation of answers to 2nd part of question No. 11 of the Botany part of Biology paper and judge the petitioner on the basis of her performance in rest of the answer scripts in Biology, Physics and Chemistry, and an appropriate direction may be issued to the authorities accordingly. Alternatively, Mr. Bhattacharyya submitted that the authorities before recording a final finding against the petitioner ought to have given an opportunity consistent with the principles of natural justice. Alternatively, Mr. Bhattacharyya submitted that the authorities before recording a final finding against the petitioner ought to have given an opportunity consistent with the principles of natural justice. He cited the decision in the case of Nripendra Nath vs. Gauhati University, AIR 1967 Assam & Nagaland 5, and the decision of this Court in Civil Rule No.731 of 1998 (Manash Jyoti Mahanta vs. State of Assam & others) delivered on 25.9.1998 to the effect that principles of natural justice have to be followed before holding a candidate guilty of having adopted unfair means and imposing punishment on him. In this case, since no such opportunity was given to the petitioner and the principle of natural justice have been violated, the impugned notice expelling the petitioner from the examination hall and the impugned communication of the Controller of Examination confirming the said notice are liable to be quashed. 4. Dr. H. Das, learned senior counsel appearing for the respondents 6 and 7, on the other hand placed reliance on Regulation 36B of the Regulation for Conduct of Higher Secondary Examination, 1985 to show that possession of any paper or notes other than Admission Card and Registration Certificate is by itself an offence. According to Dr. Das, since the Invigilator found the petitioner in possession of some printed card and other materials placed between the answer script of the petitioner relating to Botany and the answer script of the petitioner relating to Zoology, the petitioner had committed the offence under Regulation 36B (a) and was liable to be expelled from the examination hall. He cited the decision of the Supreme Court in Central Board of Secondary Education vs. Vineeta Mahajan, (1994) 1 SCC 6 , wherein it was held that the very fact that the candidate took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the Invigilator in the examination hall was sufficient to prove the charge of using unfair means by her in the examination under the rule. Dr. Das further submitted that in the instant case, the Invigilator, respondent No. 9, has not only found the petitioner to be in possession of some materials but also found her copying from a printed card as would be clear form his endorsement on the answer script of the petitioner made on 1.8.1999. Dr. Das further submitted that in the instant case, the Invigilator, respondent No. 9, has not only found the petitioner to be in possession of some materials but also found her copying from a printed card as would be clear form his endorsement on the answer script of the petitioner made on 1.8.1999. Hence, the petitioner was even otherwise guilty of adopting unfair means and was liable to be expelled from the examination hall. In reply to the contention of Mr. Bhattacharyya that the principles of natural justice was required to be followed in this case before any action was taken against the petitioner, Dr. Das submitted that it is well settled that in emergent cases principles of natural justice need not be followed. In the instant case, since the Invigilator found the a petitioner copying form a printed card in the examination hall itself, immediate action was required and such immediate action had to be taken by the authorities by expelling the petitioner from the examination hall and for such immediate action principle of natural justice were not required to be followed. Dr. Das cited the decision of the Supreme Court in Karnataka Public Service Commission vs. BM Vyay Shankar, (1992) 2 SCC 206 , in which the Supreme Court held that b it was not necessary for the authorities to follow the principles of natural justice before taking a decision not to evaluate the answer scripts of the candidate who had written the roll number inside the answer scripts although under the instructions issued by the Public Service Commission no candidate was to write his roll number inside the answer scripts. Mr. AK Phukan, learned senior counsel appearing for the respondent Nos 8 and 9 placed reliance on the affidavit-in-opposition filed on behalf of the respondent Nos 8 and 9 and adopted the contentions and submissions advanced by Dr. H. Das, learned counsel for the respondent Nos 6 and 7. 5. Mr. AK Phukan, learned senior counsel appearing for the respondent Nos 8 and 9 placed reliance on the affidavit-in-opposition filed on behalf of the respondent Nos 8 and 9 and adopted the contentions and submissions advanced by Dr. H. Das, learned counsel for the respondent Nos 6 and 7. 5. On a perusal of the aforesaid decision of the Supreme Court in Karnataka Public Service Commission vs. BM Vijay Shankar, (supra) it will be clear that the Supreme Court held that the case before it did riot involve any misconduct or punishment and the principles of natural justice were not required to be followed before taking any action when no allegation of misconduct was sought to be made against the candidate or no punishment was sought to be imposed on him. In the said case before the Supreme Court the only action that was taken by the Karnataka Public Service Commission was that the answer scripts of the candidate were not evaluated as he had written his roll number inside his answer scripts. Hence, no finding as such was recorded against the candidate that he had adopted any unfair means and no punishment had been imposed on the candidate for having adopted any such unfair means. In the present case, on the other hand, in the impugned notice dated 1.8.1999 the Officer-in-charge, B. Borooah College Centre, Guwahati has clearly observed that the petitioner was expelled from the examination hall for adopting unfair means in Biology paper and for that reason was debarred from appearing in the remaining subjects of the examination. The Controller of Examination, Assam Higher Secondary Education Council in his impugned letter dated 9.8.1999 to the petitioner has also confirmed that the petitioner was expelled from the Biology examination held on 1.8.1999 for adopting unfair means in the examination flail while appearing in the said examination. This is, therefore, a case where the petitioner has been punished for misconduct & in course of the examination and not a case of the type in Karnataka Public Service Commission vs. BM Vyay Shankar (supra) in which no misconduct on the part of the candidate and no punishment for such misconduct on the part of the candidate was involved. 6. 6. The present case being one where the petitioner is sought to be punished for adopting unfair means, principles of natural justice were required to be followed by the authorities even though the Assam Higher Secondary Education Act, 1984 and the Regulation for Conduct of Higher Secondary Examination, 1985, did not provide for compliance with the principles of natural justice before the impugned decision to expel the petitioner was taken. In the case of Board of High School and Intermediate Education, UP vs. Ghanshyam Das Gupta, AIR 1962 SC 1110 , the Supreme Court has held that even though calling for an explanation and hearing the examinee may not have been made expressly obligatory by the Act or Regulation, it is obvious that the Committee when it proceeds to decide matters covered by Rule 1(1) will have to depend upon the materials placed before it in coming to its decision and before the Committee decides to award any penalty it has to come to an objective determination on certain facts and only when it comes to the conclusion that those facts are established that it can proceed to punish the examinee concerned. The aforesaid decision of the Supreme Court was followed by a Single Judge of this Court in the judgment dated 25.9.1998 in Civil Rule No.731 of 1998 (Manash Jyoti Mahanta vs. State of Assam & others) cited by Mr. AK Bhattacharyya, learned counsel for the petitioner and by the said judgment the Court issued a direction to the Council to consider all relevant materials and take a decision under Regulation 36A (ii) and 36B (iii) as to whether or not the petitioner in that case had resorted to unfair means or misconduct in the English examination. 7. Dr. Das, however, submitted that the case of Manash Jyoti Mahanta (supra) was not a case of expulsion from the examination hall itself but was a case where after the examination was held and the examiners had reported that the candidate had resorted to unfair means and in that case quite possibly the principles of natural justice could be followed before a final decision was taken by the authorities. But in the present case, the Officer-in-charge of the Examination Centre had to immediately take the action by way of expulsion of the petitioner for adopting unfair means and such immediate action could not await compliance with the principles of natural justice. But in the present case, the Officer-in-charge of the Examination Centre had to immediately take the action by way of expulsion of the petitioner for adopting unfair means and such immediate action could not await compliance with the principles of natural justice. Dr. Das further submitted that the averments in the counter-affidavit filed by the respondents 8 and 9 would show that although an opportunity was sought to be given to the petitioner to give a statement before the action was taken by way of expulsion from the examination hall, the petitioner was not available in the examination hall and as a result her statement could not be taken. These averments in the affidavit-in-opposition of the respondents 8 and 9 have been disputed by the petitioner. Dr. Das may be right in his submission that expulsion of a candidate from the examination hall is an emergent measure and it may not be possible for the authorities to comply with the principles of natural justice before passing an order of expulsion of a candidate from the examination hall. But even where a candidate is expelled from the examination hall for adopting unfair means alleged to have been committed by him, the decision to expel the candidate taken by the Officer-in-charge of the Examination Centre may not be confirmed by the Unfair Means Scrutiny Committee or the Council. A reading of Regulation 36B (ii) would show that the power to expel a candidate who is found guilty of an offence for which he is liable to expulsion under the Regulation is vested in the Officer-in-charge of the Examination Centre. But a reading of Regulation 36C would show that all cases of unfair means and misconduct of candidates have to be scrutinized and processed by an Unfair Means Scrutiny Committee constituted by the Council or the Examination Committee. Thus, even in a case where a candidate is expelled by the Officer-in-charge of the Examination Centre for having committed an offence under the Regulations, such case of the candidate expelled from the examination hall for unfair means or misconduct has to be scrutinized and processed by the Unfair Means Scrutiny Committee constituted by the Council or the Examination Committee. Thus, even in a case where a candidate is expelled by the Officer-in-charge of the Examination Centre for having committed an offence under the Regulations, such case of the candidate expelled from the examination hall for unfair means or misconduct has to be scrutinized and processed by the Unfair Means Scrutiny Committee constituted by the Council or the Examination Committee. In fact, in the present case the expulsion of four candidates from the examination hall including the petitioner for adopting unfair means in the Joint Entrance Examination, 1999 has been examined by the Examination Committee in its meeting held on 8.9.1999 though the decision to expel the said candidates taken by the Officer-in-charge of the Examination Centres has been confirmed by the said Examination Committee. Further, Regulation 36B (ii) indicates that the power to cancel the examination of a candidate expelled by the Officer-in-charge is vested in the Council. In a case therefore where a candidate is expelled form the examination hall, the Council may or may not cancel the examination of the candidate expelled by the Officer-in-charge. As indicated in the judgment in the case of Manash Jyoti Mahanta vs. State of Assam & others (supra) the ultimate power to take action against the candidate for adopting unfair means is vested in the Council and it is for this reason that Tall cases of expulsion of candidates by the Officer-in-charge of the Examination Centres are to be processed first by the Unfair Means Scrutiny Committee constituted by the Council or the Examination Committee and thereafter placed before the Council for final decision. On the basis of all such materials placed before the Council, the Council will have to objectively and fairly take a decision after giving due opportunity to the candidate, as has been held by this Court in the case of Manash Jyoti Mahanta (supra). It is quite possible that in a given case the Council may find that after expulsion of the candidate from the examination hall no relief can be granted to the candidate at all, but in such case the Council can at least observe, if the materials so warrant, that the candidate was not guilty of unfair means. Such finding of the Council will at least protect the reputation of the candidate though it may not give the candidate the remedy to pass through the examination concerned. Such finding of the Council will at least protect the reputation of the candidate though it may not give the candidate the remedy to pass through the examination concerned. Where, however, the Council find on the materials that the candidate was guilty of misconduct or unfair means in the examination hall and was rightly expelled from the examination hall, the Council will only confirm the action of the Officer-in-charge of the Examination Centre and cancel the examination of the candidate concerned. If this interpretation is made of the Regulation and if it is held that in all cases of expulsion of candidates from the examination hall by the Officer-in-charge for adopting unfair means or misconduct, the Council will have no option but only to confirm the action of the Officer-in-charge then the Council will be deprived of its power vested under the Assam Higher Secondary Education Act, 1984 and the Regulation for Conduct of Higher Secondary Examination, 1985 to take final decisions with regard to adoption of unfair means or misconduct by candidates in the examinations. 8. Although strenuous effort was made by Mr. AK Bhattacharyya, learned counsel for the petitioner to persuade this Court to record a finding on the peculiar facts of this case and the materials available that the petitioner was not guilty for adopting unfair means in the examination hall, I am afraid, by recording such a finding the Court will usurp the jurisdiction vested in the Council and not on the Court. As indicated above, the final decision as to whether or not a candidate is guilty of having adopted unfair means or of misconduct in the examination is vested in the Council and it is for this reason that I intend to remit the matter back to the Council to take a decision on the allegations against the petitioner for having copied from the printed card in the Biology examination held on 1.8.1999 after giving due opportunity to the petitioner to explain her case. 9. Possession of any paper or notes other than Admission Card and the Registration Certificate is no doubt an offence and is by itself an unfair means as has been held by the Supreme Court in Central Board of Secondary Education vs. Vineeta Mahajan, (supra). 9. Possession of any paper or notes other than Admission Card and the Registration Certificate is no doubt an offence and is by itself an unfair means as has been held by the Supreme Court in Central Board of Secondary Education vs. Vineeta Mahajan, (supra). But in the aforesaid case, the Supreme Court had found that the candidate herself had admitted having kept the written materials/ papers in the pencil box but had taken a stand that she had not used the same while answering the question paper. On those facts, the Supreme Court held that the very fact that the candidate took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the Invigilator in the examination hall was sufficient to prove the charge of using unfair means by her in the examination under the Rules. In the present case, on the other hand, the petitioner's case is that she had not taken the printed or other materials to the examination hall and that she had left the same along with the water bottle in a polythene carry bag inside the car and it was the petitioner's father who hurriedly brought the water bottle along with the polythene carry bag without any idea that the said polythene carry bag contained also the aforesaid materials left behind by the petitioner. The aforesaid case of the petitioner in paragraph 9 of the writ petition has not been expressly denied by the Invigilator and the Officer-in-charge, respondent Nos 8 and 9 respectively. They have however stated in para 3 of their affidavit-in-opposition that there was no polythene carry bag at all and that the loose sheets were spread between the two answer scripts relating to Botany and Zoology and that the candidate was copying from the same. On these facts, therefore, the petitioner cannot be held to be guilty for being in possession of the polythene carry bag containing the printed card and other materials in the examination hall. The Council will, therefore, only go into the allegation as to whether the petitioner was in possession of loose sheets kept between the two answer scripts and was copying from the said loose sheets. 10. The Council will, therefore, only go into the allegation as to whether the petitioner was in possession of loose sheets kept between the two answer scripts and was copying from the said loose sheets. 10. In the result, I quash the finding in the impugned notice dated 1.8.1999 and the impugned letter dated 9.8.1999 to the effect that the petitioner was guilty of having adopted unfair means in the examination hall while taking the Biology examination on 1.8.1999 and direct that the Council, respondent No.6 will take into consideration all relevant materials including the report of the Invigilators, the report of the Unfair Means "Scrutiny Committee and the explanation of the petitioner. The petitioner who has been furnished with the Xerox copies of the answer scripts and the materials alleged to Have been seized from her possession will furnish an explanation to the Controller of Examination within a period of 10 days from today on the aforesaid allegation against the petitioner by the Invigilator that loose sheet of papers were found to be in her possession in between her two answer scripts in Biology and that she was copying from the same. Thereafter, the Council will take a final decision on the allegation against the petitioner that she was found to be in possession of loose sheets in between her answer scripts in Botany and Zoology in Biology paper and/or was copying from the same at the time of the said examination in Biology on 1.8.1999. The aforesaid decision be taken by the Council within one month from today. In case the Council comes to the conclusion that the petitioner had not adopted unfair means, they will evaluate the answer scripts of the petitioner in Biology and award proportionate marks to her for her Zoology part which she had not completed on the basis of her perfor­mance in the part of the paper she had completed and published the result of the petitioner in Biology, Physics and Chemistry, and the result shall be published as soon as possible in any case not later than 15 days form the date of decision by the Council. Till final decision is taken by the Council as indicated above, the seat for MBBS Course which has been kept vacant pursuant to interim orders passed by this Court on 4.1.2000 in Misc Case No. 1393 of 1999 shall remain vacant. 11. Till final decision is taken by the Council as indicated above, the seat for MBBS Course which has been kept vacant pursuant to interim orders passed by this Court on 4.1.2000 in Misc Case No. 1393 of 1999 shall remain vacant. 11. With the aforesaid observations and directions, the writ petition stands disposed of. However, considering the entire facts and circumstances of the case, the parties shall bear their respective costs.