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Rajasthan High Court · body

2005 DIGILAW 1977 (RAJ)

Mohan Lal v. State

2005-07-29

DINESH MAHESHWARI

body2005
Honble MAHESHWARI, J.–The writ petition challenging the order dated 24.5.1995 passed by the Sub-Divisional Officer, Jalore (SDO) is in the sequel to the agricultural land ceiling proceeding against respondent No. 4. (2). The petitioners, Mohanlal, Chamna, Peera, Jagiya, Teja, Gunia and Kalia @ Kala Ram have submitted this writ petition with the averments that they were bonafide agriculturists being residents of village Kavarda in Tehsil Ahore of District Jalore, Certain lands were acquired by the State Government under Chapter III-B of the Rajasthan Tenancy Act, 1955 (the Act of 1955) from Ladhu Singh, the possession of surplus land was taken over and the land so taken over was allotted in the year 1980 to the landless persons under the Rajasthan Tenancy (Fixation of Ceiling of Land) (Government) Rules, 1963 (the Rules of 1963). The allotment in favour of the petitioners was on khatedari tenancy as per terms and conditions as provided in Rule 47. The acquired khatedari rights in the land in question and passbooks were issued to them. Particulars of the land allotted to each of the petitioners have been stated in the schedule appended to the writ petition. (3). According to the petitioners, the said assessee, Ladhu Singh, filed writ petition before this Court in which by the order dated 4.1.1984, he was allowed to give an option for surrendering surplus land of Khasra Nos. 86 and 108 in place of Khasra No. 226 and 56 but in pursuance to this order, an option was given by Ladhu Sing on 5.7.1989 and the SDO by his order dated 24.7.1989 accepted the option for acquiring the land of Khasra Nos. 530, 185, 525, 529, 86, 74 and 109. The SDO also passed an order on 24.5.1995 directing the Tehsildar to restore the earlier acquired land to Ladhu Singh. The petitioners have claimed that they and some other landless persons were handed over possession of the land acquired from Ladhu Singh prior to his option dated 5.7.1989 and the petitioners have acquired khatedari rights in the said lands but the SDO has passed an order directing the Tehsildar to restore the said lands to Ladhu Singh and to dispossess the allottees according to law. This order dated 24.5.1995 (Annexure-1) has been assailed in this writ petition insofar it directs the Tehsildar to dispossess the allottees, and to restore the lands in possession of the allottees to Shri Ladhu Singh. (4). This order dated 24.5.1995 (Annexure-1) has been assailed in this writ petition insofar it directs the Tehsildar to dispossess the allottees, and to restore the lands in possession of the allottees to Shri Ladhu Singh. (4). The petitioners have contended that they were asked by the Patwari to vacate the land and when they approached the SDO requesting him not to dispossess, the SDO informed that he was only implementing the orders passed by the High Court and he also informed the petitioners that they have to vacate he land because of the orders passed by the High Court. These averments have been made in Para 5 of the writ petition and in the reply to the writ petition filed by the State with the affidavit of Sub-Divisional Officer, Jalore as Officer-incharge, reply to this Para 5 of the writ petition has been stated thus-``Admitted. (5). It has also been averred by the petitioners that they submitted an application to the Collector requesting him to save the petitioners from eviction to which the State has replied that Collector could not have entertained an application against the orders passed judicially in pursuance to the orders of this Court. The contention of the petitioners have been that the order dated 24.5.1995 passed by the SDO was nullity as he should not have passed an order asking the Tehsildar to dispossess the petitioners for restoring the land of Ladhu Singh without allowing an opportunity of hearing to the petitioners who are recorded khatedar tenants of the land and were allotted the land in accordance with law. It has been contended that SDO has passed the order (Annexure-1), without setting aside the order of allotment in favour of the petitioners and the order for dispossession could not have been passed without setting aside the allotment orders. The allotment orders could not have been ignored while passing an order for evicting the petitioners in the garb of implementing the High Courts order. The petitioners have contended that there was nothing in the order passed by this Court which would authorise the SDO to pass an order ignoring the allotments made in favour of the petitioners. The allotment orders could not have been ignored while passing an order for evicting the petitioners in the garb of implementing the High Courts order. The petitioners have contended that there was nothing in the order passed by this Court which would authorise the SDO to pass an order ignoring the allotments made in favour of the petitioners. The relevant part of the order passed by this Court has been reproduced in Para 8 of the writ petition and it has been contended that the SDO had no jurisdiction to pass an order accepting the surrender of other Khasras except Khasra Nos. 86 and 106 and the other persons could not have been ordered to be evicted. The aforesaid averments in Para 8 in the writ petition to the effect that order (Annexure- 1), was passed without setting aside the order of allotment in favour of petitioners and the same could not have been done, have been replied by the State admitting that no independent order was passed against the petitioner. However, it has been stated that the order was passed as a consequence of and to carry out the orders of this Court. (6). The petitioners have further contended that they were not allotted the land out of Khasra Nos. 86 and 106 and these were only Khasras whose option was permitted by this Court and, therefore, the order passed by this Court does not affect the allotment made in favour of the petitioners. The petitioners have further contended that they were not parties to the order dated 1.4.1984 passed by this Court and they are entitled to establish their rights in the land allotted to them under Rule 41 of the Rules of 1963 in the year 1980. (7). It may be pointed out that the averments contained in Para 2 of the petition that petitioners were allotted the land out of surplus land acquired from Ladhu Singh have also been specifically admitted in the reply of the State Government before this Court. The entire burden of the reply of the State is that the SDO has proceeded only in compliance of the order dated 4.1.1984 passed by this Court in S.B. Civil Writ Petition No. 1107 of 1976. Para 11 in the reply reads thus,- ``11. The learned SDO has merely implemented the order dated 4.1.1984, of the High Court to the best his understanding and belief. Para 11 in the reply reads thus,- ``11. The learned SDO has merely implemented the order dated 4.1.1984, of the High Court to the best his understanding and belief. (8). The petitioners did not join Ladhu Singh as party to this writ petition but he moved an application for being impleaded a party and the same was granted by this Court on 24.4.1998 and he was joined as respondent No. 4 in this writ petition. (9). On behalf of the respondent No. 4 Ladhu Singh, khasra numbers stated by the petitioners in the schedule to the writ petition have been disputed with the submissions that the petitioners have given deliberately wrong old khasra numbers to support their case that land allotted to them was some other land than that of answering respondent No. 4 and with this intention, the petitioners deliberately did not implead him as party respondent. Acquisition of khatedari rights by the petitioners has been denied as the allotments were made to them during the pendency of the ceiling proceedings and as per law, the allotment was subject to final decision in the ceiling proceedings. (10). Averments in Para 5 of the writ petition where the petitioners alleged that they were asked by the Patwari to vacate the land as per order passed by the SDO and when they approached the SDO and requested him not to dispossess, the SDO informed that he was only implementing the orders passed by this Court and that the petitioners had to vacate the land because of the order passed by this Court, have already been noticed hereinbefore which have been admitted by the respondent-State. The respondent No. 4 in reply to this paragraph has stated that petitioners have not correctly placed the facts before this Court and have twisted the facts so as to confuse the matter. (11). Allegations of the petitioners of spending amount in making the land cultivable have been denied and it has been asserted that the order (Annexure-1) was perfectly in accordance with law and the respondent No. 4 has a right to have restored all his land on final adjudication of the ceiling proceedings and the petitioners have no right of hearing in the restoration proceedings. According to the respondent No. 4, the allotment orders during the pendency of the proceedings remain subject to final adjudication of the ceiling proceedings and such allotments have not statutory force, the moment the land reverts to respondent No. 4. (12). The respondent No. 4 has given a brief history of the matter pointing out that initially the SDO by the order dated 28.9.1970 decided to acquire 26.5 standard acres of excess land and without giving of any option by assessee ordered for resumption of the land of 164 bighas 4 biswas. The order was appealed against and the appellate authority directed the SDO to give option to respondent No. 4 to offer the land for acquisition. However, according to the respondent No. 4, the SDO misunderstood the order of remand and re-opened the entire matter and decided the case afresh this time holding that the respondent No. 4 was having 102.17 standard acres as excess land. Against this order, the respondent No. 4. approached the Appellate Authority and thereafter filed the aforesaid Writ Petition No. 1107/1976 before this Court. This Court quashed the order aforesaid holding that so far the ceiling matter was concerned, the order dated 28.9.1970 had already become final and the concerned authority was only to take option from him and acquire the land as per the option. It has been stated that in the meanwhile, the SDO by the order dated 1.7.1980 ordered for acquisition of the land measuring 102.17 standard acres without giving option to the respondent No. 4, although earlier his Counsel had given the option only regarding Khasra No. 86 measuring 13 bighas 10 biswas and Khasra No. 109 measuring 3 bighas. No other option was ever given by respondent No. 4. (13). According to the respondent No. 4 after finalisation of the ceiling proceedings, he was required to give option only for the land admeasuring 26.5 standard acres and he submitted such option before the SDO and also moved application for restoration to him of the other land acquired and thereupon the order dated 24.5.1995 (Annexure-1) was passed which was perfectly in accordance with law and the present writ petition was misconceived and the petitioners have no locus standi in the ceiling proceedings as the allotment made was always subject to the final result of ceiling proceedings. (14). (14). Learned Counsel for the petitioner while assailing the order (Annexure-1) has referred to the reply submitted by the State admitting the essential facts stated by the petitioners and has submitted that in the name of these restitution proceedings, the petitioners who had been allotted the land by the State itself could not be ordered to be dispossessed in this summary manner, without even a notice to them permitting them to explain their status and objecting against the course sought to be adopted at the instance of respondent No. 4. The learned Counsel also made a request that record be requisitioned for clarification of facts involved in this case. (15). Learned Counsel for the respondent No. 4 has asserted that there was nothing wrong in the order (Annexure-1) wherein it has been directed that the land was to be restored to him in accordance with law and the persons concerned were to be dispossessed in accordance with law. The answering respondent was intentionally not impleaded a party to the writ petition in which the petitioners seek a fishing enquiry without even disclosing as to which land was allotted to them and when and the entire particulars given by them are incorrect and contrary to the record. Learned Counsel contended that petitioners have no legal right to retain possession of that land which belongs to respondent No. 4 and which is required to be restituted. The petitioners are not entitled to challenge the proceedings between Ladhu Singh and the State. The Learned Counsel opposed the prayer for summoning of record with the submission that the petitioners are not entitled to seek a fishing enquiry without stating complete facts. (16). Learned Counsel for the State has referred to the order dated 4.1.1984 passed by this Court in Writ Petition No. 1107/1976 and submitted that the said order is required to be implemented. However, according to the learned Counsel, the writ petition fails to state as to how petitioners land was affected by implementing this order and, therefore, the writ petition deserves no consideration. (17). However, according to the learned Counsel, the writ petition fails to state as to how petitioners land was affected by implementing this order and, therefore, the writ petition deserves no consideration. (17). Learned Counsel for the petitioner has rejoined with the submissions that he was not challenging Ladhu Singhs rights under the orders of this Court but with reference to Rule 17(4) of the Rajasthan imposition of Ceiling on Agricultural Holdings Rules, 1973 (`Rules of 1973) submitted that allottees of the land already acquired were required to be given hearing before proceeding to dispossess them. The SDO has not carried out his duties required under the Act and so also the order passed by this Court, as at best under the order passed by this Court, the land of Khasra No. 226 and 56were to be left out of acquisition. The restoration of the land to respondent No. 4 is not the matter in issue but the question is as to what option is to be accepted and which land is to be restituted ? The SDO has not considered these questions objectively and, therefore, the order (Annexure- 1) deserves to be quashed. (18). Having given a thoughtful consideration to the rival submissions and having examined the record, this Court is clearly of option that the impugned order dated 24.5.1995 (Annexure-1) cannot be sustained. (19). Part-IV of the Constitution of India contains Directive Principles of State Policy (which though not as such enforceable in the Courts, but are nevertheless, fundamental to the governance of the country) and it has been declared to be the duty of the State to apply these principles in making laws. Articles 39 contained in this Part-IV lays down certain principles of policy to be followed by the State. Clauses (b) and (c) thereof declare that the State shall, in particular direct its policy towards securing :– ``(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. (20). (20). These principles of distribution of the ownership and control of the material resources of the community to subserve the common good and to make the operation of the economic system meaningful and not resulting in concentration of wealth and means of production to common detriment have been sought to be implemented by providing for a ceiling limit for agricultural holdings in the State of Rajasthan. Chapter III-B was added to the Rajasthan Tenancy Act, 1955 (`the Act of 1955) by the Amendment Act of 1960 which came into force from 15.12.1963 and the provisions were made applicable with effect from 1.4.1966 to the whole of the State of Rajasthan except Rajasthan Canal Project Area. These provisions in Chapter III-B or the act of 1955 provided for maximum land that can be held by a person and the extent of ceiling area for a family and the ancillary provisions. Rules of 1963 were framed for giving effect to and operate the said ceiling provisions, now commonly known as old ceiling law. (21). The said provisions came to be known as old ceiling law because of the enactment of Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973 (`the Act of 1973 for short). The preamble of this Act of 1973 inter alia, specifically states about the requirement upon the State under Clauses (b) and (c) of Article 39 of the Constitution; and as the area of agricultural land available for cultivation in the State is limited and there is great disparity in holding of the agricultural land in excess of the ceiling area and to distribute such land to the landless and other persons among the rural population, it was expedient to provide for these and other matters. The Act of 1973 is provided with an over-riding effect over other general laws, contracts etc. (vide Section 3). Section 41 of this Act makes a specific declaration that this enactment was for giving effect to policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 of the Constitution of India. By Section 40 of the Act of 1973 barring certain provisions, Chapter III-B of Rajasthan Tenancy Act, 1955 is repealed and so also the ordinance which was the forerunner to this Act. By Section 40 of the Act of 1973 barring certain provisions, Chapter III-B of Rajasthan Tenancy Act, 1955 is repealed and so also the ordinance which was the forerunner to this Act. Section 38 provides for power to make rules for giving effect to the provisions of this Act and in exercise of the powers so conferred, the Rules of 1973 have been framed. (22). Despite the enactments and the operation thereof being to subserve the common good, on many as occasion, sheer apathy of the authorities concerned towards the goals sought to be achieved by the Act has given rise to more confusion and litigation than providing for the requisite solutions. The present writ petition is an apposite example of such an unfortunate scenario where the confusion created by the authorities dealing with the ceiling matter of respondent No. 4 Ladhu Singh (assessee) has led to quite a perplexing situation for the assessee, and so also for the allottees to whom the land was transferred after acquisition from him and so also for the allottees to whom the land was transferred after acquisition from him and so also for the allottees to whom the land was transferred after acquisition from him and so also for the State itself. It appears that the Sub- Divisional Officer entrusted with the task of implementing the provisions of law and the order passed by this Court, has proceeded in a wholly cursory manner away from the realities, and in the name of implementation of the order of this Court, beyond and contrary to that order, guilotine has been left to fall on the landless persons to whom the land was allotted by the State itself without even caring to took at the nature and purport of the order passed by this Court, and so also the requirements thereunder. To say the least, the order passed by the Sub- Divisional Officer which is impugned in the present case falls short of all principles of law. (23). It is evident from the undisputed facts stated by the parties that this entire litigation had its genesis in a basic misunderstanding of the SDO who passed the order 31.3.1972 (Annexure-R4/3) after the matter was remanded by the appellate authority by the order dated 10.12.1971. (23). It is evident from the undisputed facts stated by the parties that this entire litigation had its genesis in a basic misunderstanding of the SDO who passed the order 31.3.1972 (Annexure-R4/3) after the matter was remanded by the appellate authority by the order dated 10.12.1971. Prior to that, the ceiling proceedings had already been concluded by the order dated 28.9.1970 (Annexure-R4/1) in which the respondent No. 4 was found to be having 26.5 standard acres of land in excess of the ceiling and the land of Khasra Nos. 530, 25, 185, 529 and 266 were ordered to be resumed in all measuring 164 bighas and 5 biswas. It seems that the matter was remanded by the appellate authority when the assessee raised some objections about having not been given proper opportunity of extending his option but the learned SDO while passing the order dated 31.3.1972 assumed that the Revenue Appellate Authority by the order dated 10.12.1971 has set aside the entire order dated 28.9.1970 and, therefore, fresh proceedings were to be undertaken. The SDO proceeded to reject recognition of various alienations and transfers and thereby calculated out 147.77 standard acres of land with the respondent No. 4 and after leaving 45 acres with him, ordered resumption of 102.17 standard acres of land. It seems that the said order has been approved by the Board of Revenue also and, therefore, the matter was agitated in Writ Petition No. 1107/1976. The writ petition was decided on 4.1.1984 by this Court and the order dated 4.1.1984 may be reproduced in extenso for ready reference. It may be pointed out that copy of this order was not originally submitted by either of the parties with their pleadings. However, with reference to an order dated 10.8.2000, the petitioners have submitted photostat copy of the said order dated 4.1.1984 which reads as under:– ``In this rule, the petitioner has challenged the judgment and order passed by the Board of Revenue, Rajasthan, Ajmer in revision case No. 211/75 Ceiling/Jalore. The order under challenge in revision was order by the SDO decided by the Assistant Collector who passed an order of resumption of 102.17 standard acres found to be in excess of the ceiling limit. This case has a chequered career. The order under challenge in revision was order by the SDO decided by the Assistant Collector who passed an order of resumption of 102.17 standard acres found to be in excess of the ceiling limit. This case has a chequered career. Before this impugned order was passed, a proceeding was initiated and the petitioner exercised his option, but thereafter the authorities concerned allowed him to retain some land, whereas the petitioner wanted to retain some other, land. Being aggrieved by the said order of the competent authorities, an appeal was taken by the petitioner. In fact the appellate order, which is Exhibit-4 in the following terms:– ``The appeal, is therefore, accepted and the order of the learned Assistant Collector, Jalore dated 28.9.1970 is set aside and the case is remanded with the direction that the appellant may be given an opportunity to give the option for the land that he would like to surrender and the application may be disposed of in accordance with Sub-Rule (10) of Rule 21 of the ceiling rules. The final order was passed in a matter where only point raised was, the appellant was not given an opportunity for option. He stated that he wants to surrender Khasras Nos. 86 and 106 instead of Khasras Nos. 226 and 56. When it went to the SDO., however, they re-opened the whole matter and directed that by the appellate order, herein before mentioned, the whole order set aside and, therefore, the whole matter to be re-heard. In my opinion, this reading is without the context and cannot be accepted. There was no appeal taken by the State Government. It is only the appellant, petitioner herein, who preferred the appeal and only point which was urged before the appellate authority was that he may be allowed to surrender Khasra Nos. 86 and 106 instead of Khasras No. 226 and 56, but it appears, both the appellate authority as well as the trial authority were of the opinion that as the whole order was set aside, the decision must be afresh made. In my opinion, this is reading the judgment beyond its context. The judgment should have been read that the order dated September 28, 1970 is set aside to the extent the petitioner be allowed to give his option to is set aside to the extent the petitioner be allowed to give his option to surrender Khasras Nos. In my opinion, this is reading the judgment beyond its context. The judgment should have been read that the order dated September 28, 1970 is set aside to the extent the petitioner be allowed to give his option to is set aside to the extent the petitioner be allowed to give his option to surrender Khasras Nos. 86 and 106 instead of Khasras Nos. 226 and 56. I, therefore, set aside both the judgments by the appellate authority as well as by the trial authority as also the revisional order by the Board of Revenue and direct the trial authority to decide the matter in accordance with the judgment referred to in Exhibit-4 of this petition and decide the same in accordance with law. The rule is made absolute to the extent indicated above. There will be no order as to costs. (24). A bare reading of this order is sufficient to find that it was only the claim of respondent No. 4 of his intention to surrender Khasra Nos. 86 and 106 instead of Khasra Nos. 226 and 56 which was to be considered and this Court had specifically held that for the purpose of consideration of this option alone the matter was remanded by the appellate authority and rehearing of the whole matter after remand was found to be reading of the order of remand without context. There was no appeal by the State Government and, therefore, the order dated 28.9.1970 so far the ceiling proceedings and the question of extent of land to be acquired were concerned, had already become final. (25). This Court has specifically found that the only point which was urged before the appellate authority was that the petitioner may be allowed to surrender Khasra Nos. 86 and 106 instead of Khasra Nos. 226 and 56 and the remand order could be read so far the setting aside of the order dated 28.9.1970 was concerned only to the extent that the petitioner be allowed to give his option to surrender Khasra Nos. 86 and 106 instead of Khasra Nos. 226 and 56. The impugned orders were set aside and the trial authority was directed to decide the matter in accordance with the judgment referred to in Exhibit-4 of that writ petition and to decide the same in accordance with law. The rule was made absolute to that extent only. (26). 86 and 106 instead of Khasra Nos. 226 and 56. The impugned orders were set aside and the trial authority was directed to decide the matter in accordance with the judgment referred to in Exhibit-4 of that writ petition and to decide the same in accordance with law. The rule was made absolute to that extent only. (26). Obviously, the writ petition was allowed only in part and broadly two results emerge from the order dated 4.1.1984; one that the original order dated 28.9.1970 stands revived, but second that this revival was with the modification that the petitioner would be allowed to give option to surrender Khasra Nos. 86 and 106 instead of Khasra Nos. 226 and 56. It appears from the option now submitted and accepted by the SDO that from the original land ordered to be resumed under the order dated 28.9.1970, the respondent No. 4 has sought to take out Khasra No. 226 measuring 19 bighas and 19 biswas of land and instead has put forward the land of Khasra Nos. 86 and 74 and a part of Khasra No. 109. It appears that such kind of an option is not in strict conformity with the orders passed by this Court. The incongruity about Khasra Nos. 226 and 56 has not been clarified either by respondent No. 4 or by the State. The alternative option submitted of Khasra Nos. 74 and 109 also does not conform to the alternative option recognised by this Court. (27). The learned SDO seems not to have given any attention to the order passed by this Court and has mechanically accepted the option which was given by respondent No. 4 more than five years after passing of the order dated 4.1.1984 by this Court. Moreover, the learned SDO in a wholly cursory manner has ordered that the land which has not been taken possession of may be mutated in the revenue records and the acquired land be restored in accordance with law and if there be any possession on the land, the allottees be evicted in accordance with law. The learned SDO has not even paused to consider if there was any allotment made in the land which had already been acquired? And, if such an allotment had been made by the State, how the allottees are to be dealt with for this action of the State? The learned SDO has not even paused to consider if there was any allotment made in the land which had already been acquired? And, if such an allotment had been made by the State, how the allottees are to be dealt with for this action of the State? In fact learned SDO has not considered as to who those allottees were, how much of the land under allotment would be affected, who would be the persons affected and how such allottees are directly to be evicted? (28). The order dated 24.5.1995 (Annexure-1) has been passed in a wholly mechanical and rather casual manner as it it makes no difference if ultimately, some landless persons who had earlier been allotted the acquired land are again shunted out because the land is to be restituted to the respondent No. 4. Neither the validity of the option with reference to the orders passed by this Court has been considered nor the requirements of rules to deal with the allottees of the State nor even the responsibility of the State qua such allottees have been considered and straight away the Tehsildar has been ordered to dispossess the allottees. It is difficult to appreciate the procedure as adopted by the learned SDO which remains contrary to the fundamental principles of equity and justice. (29). The result of the discussion hereinabove is that the order dated 24.5.1995 (Annexure-1) cannot be sustained. Although the petitioners have not exactly stated as to which of their land was to be effected by this order, but, as noticed above, the fundamental fact that the petitioners are allottees in the land acquired from Ladhu Singh and further that they have been asked by Patwari and SDO to vacate the land have been admitted by the State in its reply. Before adopting any such course of asking to vacate the land, the petitioners deserve an opportunity of hearing. The option exercised by the respondent No. 4 after more than five years of passing of order by this Court also deserves to be considered over again by the SDO to see that only such option which is in accordance with law and which is in conformity with the order passed by this Court is accepted. The option exercised by the respondent No. 4 after more than five years of passing of order by this Court also deserves to be considered over again by the SDO to see that only such option which is in accordance with law and which is in conformity with the order passed by this Court is accepted. As the entire matter is to be considered over again by the SDO, the prayer of the learned Counsel for the petitioner to requisition the record for the purpose of this writ petition becomes redundant. (30). As a result of the aforesaid, this writ petition succeeds to the extent indicated above. The order dated 24.5.1995 (Annexure-1) is quashed and set aside and the matter stands remitted back to the Sub-Divisional Officer, Jalore who shall pass appropriate orders in conformity with the orders passed by this Court and so also adhering to the requirements of the law applicable to the case. There shall be no order as to costs.