Judgment : Ranjit More, J. 1. Heard Mr. A. N. S. Nadkarni, learned Senior Counsel appearing for the petitioner, Mr. Sudesh Usgaonkar, learned Counsel appearing for respondents No.1 and 3 and Mr. Gaurish Agni, learned Counsel appearing for respondent No.2. 2. Rule. Rule made returnable forthwith. Heard by consent. 3. By this writ petition, filed under Article 226 of the Constitution of India, the petitioner has, inter alia, sought for the following reliefs: “(i) That this Hon'ble Court be pleased to issue an appropriate Writ or Order quashing and setting aside the new tender process dated 04/09/2013; (ii) That this Hon'ble Court be pleased to issue an appropriate Writ or Order quashing and setting aside the illegal and arbitrary process of terminating the first tender dated 22/05/2013 by the communication dated 30/11/2013; (iii) That this Hon'ble Court be pleased to issue an appropriate Writ or Order directing Respondent No.1 to forthwith consider the quotation of the Petitioner relying upon the first Tender” 4. By amendment to the petition, the petitioner sought for the following reliefs: “(vii)-(c) That this Hon'ble Court be pleased to issue appropriate Writ or Order quashing and setting aside the disqualification of the Petitioner for being technically ineligible as held by the Technical Evaluation Committee of Respondent No.1 and communicated to the Petitioner vide SMS dated 02/12/2013. (vii)-(d) That this Hon'ble Court be pleased to issue an appropriate Writ or Order quashing and setting aside the decision taken by the Technical Evaluation Committee on 28/11/2013 disqualifying the Petitioner under the Technical Evaluation Process without stating any reasons whatsoever;” 5. A few facts giving rise to filing of the present petition, are as follows: The petitioner is a maintenance contractor, engaged in the work of labour, housekeeping and mechanised cleaning services. The petitioner has been providing maintenance services to respondent No.1 for last 11 years. Respondent No.1, Goa Shipyard Limited is a Public Sector Undertaking under the administrative control of the Ministry of Defence, Government of India and, therefore, “State” within the meaning of Article 12 of the Constitution of India. Respondent No.1 is engaged in the business of building ships for defence purposes, ship repairs and engineering. Respondent No.1, Goa Shipyard Limited is a Public Sector Undertaking under the administrative control of the Ministry of Defence, Government of India and, therefore, “State” within the meaning of Article 12 of the Constitution of India. Respondent No.1 is engaged in the business of building ships for defence purposes, ship repairs and engineering. Respondent No.2 floated a tender on 22nd May, 2013 for a Biennial Rate Contract for maintenance and supervision of services, inter alia, of sweeping (mechanised wherever feasible) cleaning and maintenance of buildings, roads, gardens, clearing of scraps, rubbles, grass and dirt at Goa Shipyard Limited premises at Vasco, Goa. On 17th June, 2013, the petitioner bid for the tender. Respondent No. 2 also bid for the said tender. It is the case of the petitioner that it has been continuously providing the maintenance services to respondent No.1 for last 11 years and it possesses all necessary qualifications and meets with all the necessary requirements of eligibility criteria. It is also the case of the petitioner that there was another contractor which also bid for the same tender, but was disqualified due to non-fulfillment of eligibility criteria and, therefore, the petitioner was confident about favourable response from respondent No.1. Respondent No.1, however, by a communication dated 30th August, 2013 informed the petitioner that its bid has been technically rejected and that it has decided to retender the Biennial Rate Contract. The petitioner, thereafter, on 21st September, 2013 requested respondent No.1 for information as to rejection of its technical bid. Respondent no.1, however, by a communication dated 18th October, 2013 refused to give any information to the petitioner. In the meantime, respondent No.1 floated a new tender on 4th September, 2013. In this new tender, respondent No.1 deleted certain item of works. Respondent no.1, however, by a communication dated 18th October, 2013 refused to give any information to the petitioner. In the meantime, respondent No.1 floated a new tender on 4th September, 2013. In this new tender, respondent No.1 deleted certain item of works. In the old tender, name of the work was described as “Biennial Rate Contract for Managing and Supervision of Services which interalia Means Sweeping (Mechanised wherever Feasible), Cleaning and Maintenance of Buildings, Roads, Gardens, Lawn including Planting New Sapling, Pruning Plants/Manuring, Segregation and Clearing of Scraps, Rubbles, Garbages, Grass & Dirt at GSL Premises at Vasco.” And in the new tender, the name of the work was described as “Biennial Rate Contract for Managing and Supervision of Services which interalia Means Sweeping (Mechanised), Cleaning and Maintenance of Buildings, Roads, Segregation and Clearing of Scraps, Rubbles, Garbages, at GSL Premises at Vasco.” On 5th October, 2013, the petitioner bid for the new tender. On 21st November, 2013, the petitioner communicated to respondent no.1 its objection with regard to the qualification of respondent No.2. On 21st November, 2013 itself, respondent no.1 made a request to the petitioner to submit additional documents. On 25th November, 2013, the petitioner submitted its additional documents. It is the case of the petitioner that respondent No.1 held technical bid discussion and took a decision to disqualify the petitioner, however, the petitioner was not invited for the discussion. Respondents No.2 and 4 were held to be qualified for the technical bid. The financial bids of respondents No.2 and 4 accordingly, were opened on 2nd December, 2013 and respondent No.1 decided to award the contract to respondent No.2. Thus, the petitioner is challenging the actions on the part of respondent No.1 terminating the process of first tender dated 22nd May, 2013 and awarding the contract to respondent No.2 in pursuance of the tender floated on 4th September, 2013. 6. Mr. A. N. S. Nadkarni, learned Senior Counsel for the petitioner submitted that the petitioner was the only bidder which is eligible or has complied with the eligibility criteria for the first tender floated by respondent No.1. Respondent No.2 did not comply with the eligibility criteria and, therefore, the petitioner ought to have been awarded the work under the first tender. Respondent No.1, however, with mala fide intention and for ulterior reasons rejected the technical bid of the petitioner. Respondent No.2 did not comply with the eligibility criteria and, therefore, the petitioner ought to have been awarded the work under the first tender. Respondent No.1, however, with mala fide intention and for ulterior reasons rejected the technical bid of the petitioner. This, according to learned Senior Counsel was done as respondent No.1 wanted to give the tender to respondent No.2. Despite repeated requests of the petitioner for providing reasons for rejection of the technical bid, respondent No.1 failed to provide the information. Learned Counsel contended that respondent No.1, thereafter, floated new tender. In the new tender, the nature of work is changed, just to suit respondent No.2. It is contended that the affidavit-in-rely of respondent No.1 reveals that the technical bid of respondent No.2 in the first tender was rejected on the ground that it had no gardening experience. The petitioner, thereafter, realised that in the second tender gardening work is deleted and the same is done in order to favour respondent No.2. The Counsel submitted that in the first tender, the sweeping work was to be done in a mechanised manner wherever feasible. However, in the second tender, the sweeping work was to be done by mechanised method only. Mr. Nadkarni submitted that this change in the nature of work was effected in order to non-suit the petitioner, as respondent No.1 was under impression that the petitioner cannot carry out the work of sweeping by mechanised method. Learned Senior Counsel submitted that the petitioner, however, has also experience in mechanised sweeping in other organizations. In these circumstances, Mr. Nadkarni submitted that the termination process of the first tender, as well as the entire process of the new tender and the decision to award contract to respondent No.2 is wholly illegal, arbitrary and actuated by malice. Mr. Nadkarni also submitted, without prejudice to the submissions made herein above, that the petitioner complied with the eligibility conditions of the notice inviting tender, but, the respondent No.2 did not comply with these conditions. Despite this, the petitioner's technical bid was rejected and respondent No.1 decided to accept the technical bids of respondents No.2 and 4. Thus, the decision of respondent No.1 in this regard is discriminatory and deserves to be quashed and set aside. In support of his submissions, Mr. Despite this, the petitioner's technical bid was rejected and respondent No.1 decided to accept the technical bids of respondents No.2 and 4. Thus, the decision of respondent No.1 in this regard is discriminatory and deserves to be quashed and set aside. In support of his submissions, Mr. Nadkarni, learned Senior Counsel relied upon the following judgments: (1) M/s. Star Enterprises and others vs. City and Industrial Development Corporation of Maharashtra Ltd. and others, reported in (1990) 3 SCC 280 ; and (2) Ramana Dayaram Shetty vs. International Airport Authority of India and others, reported in (1979) 3 SCC 489 . 7. Mr. Usgaonkar, learned Counsel for respondent No.1 vehemently opposed the petition. At the outset, he submitted that the petitioner having participated in the second tender, it is not now open for it to challenge the rejection of bid pertaining to the first tender issued on 22nd May, 2013. Mr. Usgaonkar submitted that the petitioner's technical bid for the second tender has been rejected for non-fulfillment of the tender condition, namely requirement of cost/value of contract/orders completed, required period of tender in terms of the eligibility criteria given in the notice inviting tender. He submitted that in support of eligibility qualification, the petitioner has relied upon 5 contracts. However, none of them complies with the eligibility criteria given in the notice inviting tender. He submitted that respondents No.2 and 4 have complied with these criterion and, therefore, their technical bids were accepted. Upon compliance of technical bids, the financial bids of these two tenderers were opened on 2nd December, 2013 and the Tender Evaluation Committee decided to award contract to respondent No.2. Mr. Usgaonkar further submitted that the petitioner cannot question the change in nature of work in the second tender as the same is the prerogative of respondent No.1. He submitted that the scope of judicial review being very limited, this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India is not expected to interfere in the impugned decision, unless it is shown to be arbitrary or unreasonable. He also submitted that the petitioner's technical bid was rightly rejected as it did not comply with the eligibility criteria and if that be so, then the petitioner cannot challenge the award of contract to respondent No.2. He also submitted that the petitioner's technical bid was rightly rejected as it did not comply with the eligibility criteria and if that be so, then the petitioner cannot challenge the award of contract to respondent No.2. Learned Counsel relied upon the decisions of the Apex Court in the case of M/s. Michigan Rubber (India) Ltd. v. State of Karnataka & ors. AIR 2012 SC 2915 and of this Court in the case of Sharad Keshao Ghonge vs. State of Maharashtra & others, 2006(1) Bom.C.R. 428 . 8. Mr. G. Agni, learned Counsel for respondent No.2 adopted the submissions of Mr. Usgaonkar for respondent No.1 and in addition, submitted that the eligibility criteria was complied with by respondent No. 2. However, the petitioner failed to comply with the same and, therefore, the subject contract was rightly awarded to respondent No.2. 9. Having considered the rival submissions and having gone through the compilation of the writ petition, along with the ratio of the decisions of the Apex Court and of this Court, we find merit in the petition. There is no dispute that for the last 11 years, the petitioner is rendering services to respondent No.1 similar to the one enumerated in the first tender. On 22nd May, 2013, the first respondent floated the tender for Biennial Rate Contract for Managing and Supervision of Services which, inter alia means, Sweeping (Mechanised wherever Feasible), Cleaning and Maintenance of Buildings, Roads, Gardens, Lawn including Planting New Saplings, Pruning Plants/Manuring, Segregation and Clearing of Scraps, Rubbles, Garbages, Grass & Dirt at GSL Premises at Vasco. The instructions to the tenderer are annexed at Annexure “A” to the tender notice. Clause 1 of these instructions speaks about Scope of Work, more particularly described in Annexure “B”. Clause 2 of the instructions is about eligibility/qualification, which reads thus: “2. ELIGIBILITY/QUALIFICATION:- Tenderers fulfilling following eligibility and qualification criteria should only quote for this tender. (i) The Firm should have undertaken in the individual capacity and completed the similar type of jobs during 01.04.2007 to 31.03.2012. However, the similar type of jobs undertaken by the firm before 01.04.2007 but completed before 31.03.2012 and the jobs undertaken after 01.04.2007 but completed before 31.03.2012 the proportionate period of job executed from 01.04.2007 to 31.03.2012 will be considered. (i) The Firm should have undertaken in the individual capacity and completed the similar type of jobs during 01.04.2007 to 31.03.2012. However, the similar type of jobs undertaken by the firm before 01.04.2007 but completed before 31.03.2012 and the jobs undertaken after 01.04.2007 but completed before 31.03.2012 the proportionate period of job executed from 01.04.2007 to 31.03.2012 will be considered. (ii) Cost of Contract Order/Orders Completed: Experience of having successfully completed above specified contract, during last 5 years, ending last day of month previous to the one in which tender applications are invited should be either of the following .. a) The cost of one successfully completed contract as shown above should not be less than Rs.4,30,46,000. b) The cost of two successfully completed contract as shown above should not be less than Rs. 2,69,03,000 each. c) The cost of three successfully completed contract as shown above should not be less than Rs.2,15,23,000 each.” The petitioner submitted its bid on 17th June, 2013. The petitioner was, thereafter, asked to submit additional documents by respondent No.1's communications dated 21/06/2013 and 04/07/2013. On 23rd August, 2013, the petitioner requested for information regarding decision of the Tender Negotiation Committee (TNC) under the Right to Information Act. By the communication dated 30th August, 2013, the First Respondent informed the petitioner that it has decided to retender the Biennial Rate Contract and the petitioner's bid has been technically rejected. It is the petitioner's case that it complied with the eligibility criteria inasmuch as it has been doing the similar type of work of respondent No.1 since last 11 years and its technical bid could not have been rejected. The petitioner time and again requested respondent No.1 to provide information for rejection of its technical bid. The petitioner even made an application under the Right to Information Act. However, respondent No.1 did not disclose the information as to why technical bid of the petitioner was rejected and it was not given any information regarding the TNC meeting. 10. The Three Judge Bench of the Apex Court in M/s Star Enterprises and others, (supra) has held that the State or the instrumentality of the State in its dealing with the citizens would be required to act within the ambit of Rule of Law and would not be permitted to conduct its activities arbitrarily. 10. The Three Judge Bench of the Apex Court in M/s Star Enterprises and others, (supra) has held that the State or the instrumentality of the State in its dealing with the citizens would be required to act within the ambit of Rule of Law and would not be permitted to conduct its activities arbitrarily. It was further held that while dealing with the tenders, the State is entitled to look for the best deal with regard to its properties and for that purpose it can refuse to accept even the highest bid. But while rejecting the highest offer in the tender, it must record reasons for such action and communicate the same to the concerned party. The observations of the Apex Court in para 10 of the Judgment in this regard are relevant, which read thus: “10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there by any specific justification not to do so.” 11. Respondent No.1 floated second tender on 4th September, 2013. Respondent No.1 floated second tender on 4th September, 2013. In this tender, the nature of the work as given in clause 4 of the Tender Notice is “Biennial Rate Contract for Managing and Supervision of Services which interalia Means Sweeping (Mechanised), Cleaning and Maintenance of Buildings, Roads, Segregation and Clearing of Scraps, Rubbles, Garbages, at GSL Premises at Vasco”. A comparison of the nature of the works in both the tenders would reveal that in the first tender sweeping work was to be done by mechanised method wherever feasible, however, in the second tender, the work of sweeping was to be done by mechanized method only. Items regarding gardening were deleted from the second tender. The eligibility criterion are more or less same in both the tenders, except a condition regarding ISO Certification was put in the second tender. However, it is nobody's case that the petitioner did not comply with this condition. 12. Having perused the nature of works in both the Notice Inviting Tenders, we find substance in the submission of Mr. Nadkarni, learned Senior Counsel that the process of first tender was terminated and second tender was floated in order to favour respondent No.2. This contention of Mr. Nadkarni is supported by the averments made in para 41 of the affidavit-in-reply filed on behalf of respondent No.1, wherein it has been stated that so far as first tender is concerned, respondent No.2 was found ineligible as the work in which it claimed experience was not in tune with the scope of work under the first tender inasmuch as no gardening work was cited. That apart, the deletion of the items regarding work of gardening was done in the second tender, in the first page only. Annexure “B” to the second tender notice is about the scope of the work and clause 5 of the scope of work talks about Sweeping (Mechanized) Cleaning & Maintenance of lawns, hedges, plantation, watering on daily basis (water, manure and new plants will be provided by GSL). Thus, the scope of work in Annexure B to the second tender notice remains the same. The change was made with regard to gardening items, in the name of work, in first page only. In our considered opinion, this was done only for the convenience of respondent No.2. We also find substance in Mr. Thus, the scope of work in Annexure B to the second tender notice remains the same. The change was made with regard to gardening items, in the name of work, in first page only. In our considered opinion, this was done only for the convenience of respondent No.2. We also find substance in Mr. Nadkarni's submission that in the second tender notice the fact that the work of sweeping is required to be done by mechanised method, was inserted only to non-suit the petitioner, inasmuch as the petitioner was admittedly doing similar work, including sweeping by mechanized method, wherever feasible, for last 11 years. 13. Mr. Usgaonkar, learned Counsel appearing for respondent No.1 contended that it is a prerogative of respondent No.1 to prescribe conditions or specify the nature of work and the petitioner can neither object nor this Court, in its extraordinary jurisdiction under Article 226 of the Constitution of India, can interfere with the discretion of respondent No.1. Mr. Usgaonkar's proposition cannot be disputed and we are not disputing the same. It is settled principle of law that the terms and conditions of tender are in the realm of contract and cannot be open to judicial scrutiny. A useful reference in this regard can be made to the decision of the Apex Court in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 wherein it has been held that the terms of the invitation to tender cannot be open to judicial scrutiny unless the same are wholly arbitrary, discriminatory or actuated by malice. However, in the present case, we are required to see whether the change made in the work is arbitrary, discriminatory or actuated by malice. 14. Respondent No.1, despite repeated requests, did not furnish to the petitioner the reasons as to why its technical bid for the first tender was rejected. As stated above, from the affidavit-in-reply of respondent No.1, it is clear that the technical bid of the respondent No.2 was rejected as it was not having experience in gardening. Respondent No.1, thereafter, floated a fresh tender and changed the nature of work on the first page of the tender notice. However, the scope of work given in Annexure “B” of the tender notice remains the same. Respondent No.1, thereafter, floated a fresh tender and changed the nature of work on the first page of the tender notice. However, the scope of work given in Annexure “B” of the tender notice remains the same. These facts lead to the only conclusion that the nature of work was changed in the IInd tender notice only to non-suit the petitioner and to favour respondent No.2 in getting the tender. In that view of the matter, we are of the considered opinion that the entire process of second tender is arbitrary and actuated by malice. 15 This takes us to consider whether the petitioner and respondent No.2 complied with the eligibility criteria given in Annexure “A” of the tender notice. We have already reproduced the eligibility criteria/qualification in para 10 hereinabove. In support of the eligibility criteria, the petitioner has relied upon 5 contracts, namely, (i) Goa Shipyard Ltd., (ii) Cadila Zaddus Ltd. (German Remedies) Kundaim, (iii) Indoco Remedies Ltd., Pharmaceutical Factory at Verna; (iv) Knoll Pharmaceuticals Ltd. Verna/Abbot Ltd., and (v) Mormugao Port Trust (MPT). 16. So far as respondent No.2 is concerned, it has relied upon two contracts, the first one being with the Goa Medical College and Hospital at Bambolim and the second one is with the Directorate of Health Services in respect of Hospicio Hospital, Asilo Hospital and Health Centre at Canacona. Mr. Nadkarni has heavily relied upon the petitioner's contract with Indoco Remedies Ltd., in support of his contention that the petitioner fulfills the eligibility criteria. Respondent No.1 allegedly considered all the five contracts on which the petitioner has placed reliance and concluded that it did not comply with the eligibility criteria. However, the contracts relied upon by the respondent No.2 are accepted by respondent No.1 and it is concluded that the respondent No.2 is eligible. Mr. Nadkarni submits that the petitioner's contract with Indoco Remedies Ltd. is sufficient enough to comply with the eligibility criteria. So far as the petitioner's contract with Indoco Remedies Ltd. is concerned, Mr. Nadkarni submits that the Ledger Report for the period 01/04/2007 to 31/03/2012 indicates that the payment of Rs.5,36,80,597-00 was released to the petitioner. However, this report was rejected by respondent No.1 on the ground that the same does not indicate the exact amount paid towards housekeeping as claimed by the petitioner in the job completion certificate issued by the company. Nadkarni submits that the Ledger Report for the period 01/04/2007 to 31/03/2012 indicates that the payment of Rs.5,36,80,597-00 was released to the petitioner. However, this report was rejected by respondent No.1 on the ground that the same does not indicate the exact amount paid towards housekeeping as claimed by the petitioner in the job completion certificate issued by the company. In our view, respondent No.1 could not have refused to rely on this contract, in the light of the certificate issued by Indoco Remedies Ltd. to the petitioner, which is annexed at Exhibit-1 to the petitioner's affidavit-in-rejoinder at page 295. This certificate was issued on 25th November, 2013. It is specific case of the petitioner that this was submitted on the same day to respondent No.1. However, the same was not taken into consideration at all. Perusal of the said certificate shows that Indoco Remedies Ltd. Had paid an amount of Rs.5.48 crores (approximately) to the petitioner for providing housekeeping services, which includes sweeping/cleaning, within the factory premises located at Verna for last more than 5 years, between the period 01/04/2007 to 31/03/2012. This certificate shows that the petitioner falls under clause 2(iii)(a) of the Eligibility/Qualification criteria. Had this certificate been properly considered by respondent No.1, the petitioner's tender bid could not have been rejected. 17. So far as respondent No.2 is concerned, it relies upon two contracts, namely (i) with the Goa Medical College and Hospital at Bambolim and (ii) with the Directorate of Health Services in respect of Hospicio Hospital, Asilo Hospital and Health Centre at Canacona and claims that it has complied with clause 2(iii)(b) of the Eligibility/Qualification criteria. Mr. Nadkarni submits that the contract of respondent No.2 with Directorate of Health Services does not fall within clause 2(iii)(b) of the Eligibility/Qualification criteria. We find substance in his submission. The work executed by respondent No.2 with the Public Health Department is considered as one contract by respondent No.1. The petitioner, at pages 428, 436 and 441 has annexed the Agreements executed by respondent No.2 with the Public Health Department. The first contract was executed on 14th August, 2007 and other two contracts were executed on 3rd January, 2008. Thus, though respondent No.2 claims that the contract with the Directorate of Health Services is one contract, the agreements disclose that they are different contracts and for different periods. The first contract was executed on 14th August, 2007 and other two contracts were executed on 3rd January, 2008. Thus, though respondent No.2 claims that the contract with the Directorate of Health Services is one contract, the agreements disclose that they are different contracts and for different periods. In these circumstances, the submission that the respondent No.2's second contract with the Directorate of Health Services in order to contend that it has complied with the eligibility criteria, cannot be accepted. Thus, we find that the petitioner in fact did comply with the eligibility criteria and respondent No.2 did not. The decision of respondent No.1 to reject the technical bid of the petitioner and to accept that of respondent No.2 is, therefore, discriminatory and deserves to be quashed and set aside. 18. Mr. Usgaonkar, learned Counsel for respondent No.1, relying upon the decision of Sharad Keshao Ghonge (supra), submitted that the petitioner was held to be ineligible and, therefore, he cannot challenge the respondent No.1's decision to award contract to respondent No.2. We find no merit in the submission. The Division Bench decision in Sharad Keshao Ghonge (supra) is not applicable to the facts and circumstances of the present case inasmuch as we find that the petitioner has complied with the eligibility criteria and its technical bid has been rejected arbitrarily, and with malafide intention. The objection of respondent No.1 cannot be entertained in view of the decision of the Apex Court in Ramana Dayaram Shetty (supra). In this case, the Apex Court rejected contention of the respondents that the appellant had no locus standi to maintain the writ petition as no tender was submitted by him and he was mere stranger. 19. In the aforesaid facts and circumstances of the case, the writ petition is partly allowed. The tender process initiated by respondent No.1 is quashed and set aside. Respondent No.1 is at liberty to initiate a fresh process of floating tender. In the facts and circumstances of the case, there shall be no order as to costs.