JUDGMENT : K.M. Joseph, J. Appellant is the writ petitioner in both the Appeals. Special Appeal No.273 of 2018 is directed against the judgment of the learned Single Judge passed in Writ Petition (MS) No.2954 of 2017. Special Appeal No.274 of 2018 is directed against the judgment of the learned Single Judge passed in Writ Petition (MS) No.810 of 2015. Both the writ petitions were decided by the learned Single Judge by judgment dated 20.02.2018 and the same were disposed of with the direction to the competent authorities to reconsider the grant of Certificates based on the judgment in Ajay Kumar vs. State of Uttarakhand and another reported in 2012(2) U.D. 320 (hereinafter referred to as the Ajay Kumar’s case). This judgment was sought to be reviewed by the writ petitioner/appellant herein by filing review applications, which were allowed. The learned Single Judge by the impugned judgment under challenge in Appeals has dismissed the writ petitions. 2. Relief sought in the first writ petition, which is Writ Petition (MS) No. 810 of 2015, is to quash order dated 28.02.2015, which is issued by respondent no. 3, who is the Sub Divisional Magistrate. By the said order, respondent no. 3 has cancelled the permanent residence certificate, which was issued to the petitioner. Petitioner has also sought a writ of mandamus in respect of Clause 2 of the Government Order dated 20.11.2001 insofar as it relates to the requirement of 15 years for grant of permanent residence certificate. 3. In Writ Petition (MS) No. 2954 of 2017, from which Special Appeal No. 273 of 2018 arises, the very same appellant/writ petitioner seeks to quash order dated 23.10.2017 (Annexure-2), as also, the order passed by the Scrutiny Committee, whereby the caste certificate issued in favour of the appellant has been cancelled. The appellant also sought to challenge the earlier order (Annexure-3) dated 19.05.2016, which is also related to cancellation of the caste certificate on an earlier occasion. 4. Since we treat Writ Petition (MS) No. 810 of 2015 as the leading case, in brief, the case of the appellant is as follows : Appellant was born in Badaun and is a resident of Village Yaadpur, Tehsil Visholi, District Badaun, where his ancestral house is lying, but since 1989, he is residing permanently or bonafidely in city Rudrapur, District Udham Singh Nagar.
In the year 1988, the appellant did his graduation and thereafter, in search of a private job, he came to Rudrapur. It is his case that he was given a job as a Clerk. Annexure-4 is alleged to be a photocopy of the rent agreement dated 06.12.1993. The same has been produced, apparently, to establish that the appellant was residing in Rudrapur. In the year 1992, he got married to a woman, who also belonged to Scheduled Caste community, to which the appellant belongs. After marriage, he left this job as a Clerk and he served as a teacher, for which Annexure-5 is produced. He left his rental accommodation in the year 1994 and started to live in his in-laws’ house as Ghar Jamai where he lived since 1998. In the year 1995, the names of the petitioner and his wife were also included in the voter list of 1995 of Rudrapur Municipal Elections. The wife of the petitioner did her BTC from DIET Bhimtal, Nainital and she got a government job. Annexure-8 is produced to show that the petitioner had participated for getting dealership of petrol pump of Indian Oil Corporation. This has been produced to show that the petitioner was permanently residing in Rudrapur city since 1989 without any break. Annexure-9 purports to be a caste certificate issued by the Tehsildar, Kichha. A child was born, for which Annexure-10 is produced as the birth certificate. He purchased, according to him, a residential plot in the name of his wife at Rudrapur on 30.04.2001 vide Annexure-11. He secured a permanent residence certificate vide Annexure-12 dated 30.05.2001. Election Commission of India gave identity cards dated 12.02.2002 in favour of the petitioner and his wife vide Annexure-13. He purchased another plot, it is alleged, vide Annexure-14 dated 22.05.2007 in Rudrapur, on which he is presently residing with his family. Petitioner also secured B.Ed. Degree in the year 1996 from Ruhelkhand University, Bareilly. In the meantime, the State of Uttarakhand was carved out on 09.11.2000 and Rudrapur became a part of the State of Uttarakhand and as such the petitioner and his wife, who were residing permanently in Rudrapur city, are deemed to be permanent residents of the State of Uttarakhand and the petitioner and his wife were living in the territory of newly created State.
Petitioner underwent a Special B.T.C. course in the year 2004 and Annexure-17 is the appointment letter of the petitioner as Assistant Teacher dated 15.03.2005. According to him, at the time of undergoing Special B.T.C., apart from other eligibility conditions, only those candidates who were bonafide residents of the State of Uttarakhand were eligible to get the said Special B.T.C. and for that purpose, a candidate had to submit his / her latest ‘permanent residence certificate’. Petitioner, accordingly, secured Annexure-18 dated 27.04.2004 permanent residence certificate. Annexure-19 is a photo copy of the G.O. dated 20th November, 2001, which lays down the procedure and also certain conditions for issuance of a permanent residence certificate. Paragraph-2 of the said G.O. lays down that a person shall be considered as a bona fide resident of Uttarakhand whose permanent home is in the State and it further lays down that a permanent residence certificate can be given to such bonafide residents also, who have been residing in Uttarakhand for at least 15 years in the past. There was a confusion in relation to Para-2 of the G.O. and the petitioner also refers to the decision of this High Court in Jyoti Bala vs. State of Uttarakhand and another reported in 2009 (1) U.D. 1 . 5. In the other writ petition, almost similar allegations are raised and the challenge, as we have noted, is to the decision relating to cancellation of the caste certificate. Apparently, the petitioner had approached this Court earlier, and the matter was referred to the Scrutiny Committee and the Scrutiny Committee also rejected his claim. 6. The learned Single Judge dismissed the writ petitions of the petitioner and hence, the Appeals. 7. We heard Mr. A.S. Rawat, learned Senior Counsel assisted by Mr. M.K. Ray, learned counsel for the appellant and Mr. Pradeep Joshi, learned Standing Counsel on behalf of the State. 8. We have noticed the case of the appellant. The case is built around his shifting to Rudrapur in the year 1989, getting married to a lady, who belonged to the same community as him in the year 1992, purchasing property, having a child from the marriage, continuing to reside there, undergoing a B.T.C., getting selected as a teacher.
8. We have noticed the case of the appellant. The case is built around his shifting to Rudrapur in the year 1989, getting married to a lady, who belonged to the same community as him in the year 1992, purchasing property, having a child from the marriage, continuing to reside there, undergoing a B.T.C., getting selected as a teacher. In fact, in respect of termination of his employment, there is a separate writ petition filed by the petitioner as Writ Petition (S/S) No.2525 of 2015 Sriram vs. State of Uttarakhand and others, which is pending consideration before this Court. 9. Mr. A.S. Rawat, learned Senior Counsel would submit that much emphasis has been given to the fact that the appellant was elected as a Pradhan at Badaun in between 1995-2000. He would submit that the issue is, whether merely because he got elected as Pradhan in Badaun, which was a part of the undivided State of Uttar Pradesh and after reorganization also continued to be within the State of Uttar Pradsh will take way his right to get permanent residence certificate? He would contend that his intention was to reside within the territory of the State of Uttarakhand as is evident from the fact that he got married to a lady, who was from Rudrapur and resided in Rudrapur, and his intention to reside in Rudrapur cannot be disputed. He would, also, point out that there are views taken by this Court in decisions rendered by this Court wherein the rigor of 15 years rule in the order dated 20.11.2001 had not been adhered to. In this regard, he placed reliance on the judgment of this Court in Jyoti Bala vs. State of Uttarakhand and another reported in 2009 (1) U.D. 1 . He would submit that it will cause great injustice and he would be deprived of his livelihood at the fag-end of his career. He would submit that even going by the G.O. dated 20.11.2001, it cannot be a requirement of law that a person should have resided within the territory of the newly created State of Uttarakhand for a period of 15 years backwards from the date of the order; the requirement is that it should be on the date of the Application. In this regard, he would enlist the order dated 02.04.2013. 10. Mr.
In this regard, he would enlist the order dated 02.04.2013. 10. Mr. A.S. Rawat, learned Senior Counsel also sought to draw support from the judgment of this Court in the case of Ajay Kumar’s case. 11. Per contra, Mr. Pradeep Joshi, learned Standing Counsel would submit that quite clearly, the appellant was not entitled to obtain the permanent residence certificate. In this regard, he points out that the matter is concluded by the terms of the Government Order dated 20.11.2001. As per the said order, the requirement is that a person can be treated and can secure a permanent residence certificate only if he completes 15 years backwards from the date of the said order. He would submit that this issue is concluded by the judgment of the Division Bench of this Court in an Appeal (Special Appeal No. 296 of 2012, decided on 28.05.2013) carried from the judgment of the learned Single Judge in Ajay Kumar’s case. The following is the order, which had been passed: “Leave granted. 2. Heard learned counsel for the parties. 3. Considering the judgment under Appeal, we are of the view that, in fact, the judgment does not create any confusion at all. Each clause of the judgment must be read in harmony and with each other. No clause, contained in Paragraph 75 of the judgment, stands alone. In the event, they are read together, there is no confusion, but, however, in order to avoid all future controversies, we replace the words “a permanent capacity” in Clause (vii) of Paragraph 75 of the judgment by the words “the capacity of a permanent resident”. For the selfsame purpose, we also insert the words “in terms of the Government Order dated 20.11.2001” after the words “upon the creation of the State of Uttarakhand” and before the words “and would also be entitled to” in Clause (x) of Paragraph 75 of the judgment. 4. With the aforesaid clarification, the Appeal stands disposed of.” 12. In regard to the order dated 02.04.2013, which is relied on by the learned Senior Counsel, Mr. Pradeep Joshi, learned Standing Counsel would respond by pointing out that it is only a reiteration of the order dated 20.11.2001 and the appellant does not satisfy the requirements. 13. We noticed the facts. Appellant obtained the permanent residence certificate (Annexure-18) on 27.04.2004.
In regard to the order dated 02.04.2013, which is relied on by the learned Senior Counsel, Mr. Pradeep Joshi, learned Standing Counsel would respond by pointing out that it is only a reiteration of the order dated 20.11.2001 and the appellant does not satisfy the requirements. 13. We noticed the facts. Appellant obtained the permanent residence certificate (Annexure-18) on 27.04.2004. The State of Uttarakhand is a creation of the State Reorganisation Act, 2000, which is carved out with effect from 09.11.2000, which is treated as the appointed day. Undoubtedly, it was a part of the undivided State of Uttar Pradesh prior to that. It is important to notice, how this controversy actually arises. In order to understand, it is relevant to notice the questions, which fell for consideration before this Court in Ajay Kumar’s case. A batch of writ petitions came to be filed aggrieved by the actions of the respondents therein rejecting the application for grant of the caste certificates, or the cancellation of the caste certificates or refusing to grant caste certificate on the ground that the petitioners are not original residents (Mool Niwasi) of the State of Uttarakhand. The facts in various writ petitions were set out by the learned Single Judge. The learned Single Judge exhaustively referred to various decisions of various Courts, including that of the Supreme Court, and noted certain contentions, which we think, are relevant to understand the scope of the controversy, which was settled. This is besides, referring to various Government Orders, which were issued, apart from G.O. dated 20.11.2001. 14. Paragraphs 48, 49 and 51 are relevant to understand the contentions of the State. We extract the same as under : “48. In the light of the aforesaid Government Orders, the Advocate General urged that the combined effect of all the Government Orders is, that those who are residing in the State of Uttarakhand upon its creation or even before the creation of the State of Uttarakhand for the purpose of their employment or education and even if their caste is notified in the State of Uttarakhand, can only get the benefit of their caste from the State of their origin or their parental State and not from the State where they have come as a migrant.
It was also contended that even by living for 15 years in the State of Uttarakhand, a person would only be entitled to a permanent resident certificate, but, would not be entitled for a caste certificate on the basis that he has stayed for 15 years. It was contended that in order to claim the status of an original resident, the person must indicate that he has been residing in that area on or before the date of the issuance of the Presidential Order of 1950, otherwise, he would not be treated as an original resident of the State of Uttarakhand. 49. The impugned orders indicate that the petitioners are being denied a caste certificate basically on the ground that either the petitioner or the father were not the original resident (Mool Niwasi) of the State of Uttarakhand and that they are the original resident of another State, namely, Uttar Pradesh. The court finds that the words “original resident” (Mool Niwasi) has not been defined or clarified by the State Government. The learned Advocate General has appealed to the court that this position may be clarified by the court itself as it would help the State authorities in streamlining the procedure with regard to the issuance of the caste certificate. 50. ….. 51. The court finds that the words “bonafide resident”, “resides”, “ordinarily resides”, “original resident”, “residing permanently” and “permanent resident / home” have been used loosely by the State Government. In some of the impugned orders, the word “domicile” has been used and has also been argued to that effect by the learned Advocate General. Quite obviously, the various Government Orders using different words relating to residence indicates some misconceived notions in the minds of the State Government. What the State Government intends is that a person must be a “permanent resident” of Uttarakhand.” 15. Thereafter, the learned Single Judge referred to the Government Order dated 29.03.2003, which was first issued by the State of Uttarakhand for issuance of the caste certificate. The learned Single Judge, thereafter, referred to the meaning of the words “ordinarily residing” in Section 20 of the Representation of the People Act, 1950.
Thereafter, the learned Single Judge referred to the Government Order dated 29.03.2003, which was first issued by the State of Uttarakhand for issuance of the caste certificate. The learned Single Judge, thereafter, referred to the meaning of the words “ordinarily residing” in Section 20 of the Representation of the People Act, 1950. Therein, we may, incidentally, notice that Section 20 (6) provides that the wife of any such person as is referred to in Sub-section (3) or Sub-section (4) shall, if she be ordinarily residing with such person be deemed to be ordinarily resident in the constituency specified by such person under Sub-section (5). Still later, we notice the following statements contained in Paragraphs 59 and 60 : “59. In the light of the aforesaid, the court is of the opinion that the words “ordinarily resides”, “resides” or “permanent residence”, “permanent home” or “original resident” are words, which in the present context for issuance of a caste certificate relates to a permanent residence. In Dudh Nath Prasad (supra), the Supreme Court held that the “permanent resident” means that where a person is staying for all practical purposes in a permanent capacity for a long period of time. The words “original resident” (Mool Niwasi) also connotes the same meaning of a “permanent resident” i.e. a person staying in a place for a considerable long period of time. In Action Committee’s case (supra), the Supreme Court, after considering the Circulars of the Central Government dated 22.03.1977 and 12.02.1981 also found that the term “resident” connotes “permanent resident” of a person. 60. In the light of the aforesaid, the State Government in its Government Order dated 20.11.2001 has indicated as to when a person can be issued a permanent resident certificate. In this Government Order, the State Government has clarified that a person is a permanent resident of the State of Uttarakhand if (i) he is a bonafide resident of Uttarakhand (ii) he has stayed in the State of Uttarakhand for 15 years (iii) he has a parental house in the State of Uttarakhand (iv) the person is appointed on a regular post in government / semi-government, institution of the State or established under the State Government. (v) the employees of the Central or of public sector undertakings of Central Government are working on regular post in Uttarakhand.” 16.
(v) the employees of the Central or of public sector undertakings of Central Government are working on regular post in Uttarakhand.” 16. Finally, the learned Single Judge set out the salient points, which were to be read in the Government Order issued by the State Government, while issuing the caste certificate: “(i) The words “resides”, “residence”, “ordinarily resides”, “original resident” (mool niwasi) and “domicile” in relation to the issuance of a caste certificate means “permanent residence” where a person is staying for all practical purposes in a permanent capacity for a considerable long period of time. (ii) “Permanent residence” means and qualifies such persons as per the parameters laid down in the Government Order dated 20.11.2001. (iii) “Permanent resident” would also include a person born in Uttarakhand as per the Government Order dated 29.03.2003. (iv) If after marriage, the wife adopts the permanent residence of her husband which is in the State of Uttarakhand she becomes a bonafide resident of the State of Uttarakhand and is entitled for issuance of a caste certificate in view of the decision of the court in Jyoti Bala (supra). (v) If a person is permanently allocated the State of Uttarakhand pursuant to the U.P. Reorganization Act, 2000, he is treated to be a bonafide resident as well as a permanent resident in view of the decision in Mrs. Jyotsana (supra). (vi) … (vii) Persons belongs to Scheduled Caste, Scheduled Tribe or OBC residing in a permanent capacity on or before 09.11.2000 in any part of the State of Uttarakhand would be entitled, the benefits and privileges given by the State of Uttarakhand provided the caste of such persons is notified in the State of Uttarakhand. (x) Any person who has migrated from one part of Uttar Pradesh to another part of Uttar Pradesh and was living permanently for a considerable period of time and was enjoying the privileges of that particular caste in the State of Uttar Pradesh and that part has now become a part of Uttarakhand would be treated as a permanent resident of Uttarakhand upon the creation of the State of Uttarakhand and would also be entitled to all the benefits and privileges of that caste provided that caste was also notified in the State of Uttarakhand. 17. We have noticed the judgment in the Appeal. The effect of the judgment in Division Bench in Appeal in regard to paragraph no.
17. We have noticed the judgment in the Appeal. The effect of the judgment in Division Bench in Appeal in regard to paragraph no. (x) may be noticed and it would be as follows: (x) Any person who has migrated from one part of Uttar Pradesh to another part of Uttar Pradesh and was living permanently for a considerable period of time and was enjoying the privileges of that particular caste in the State of Uttar Pradesh and that part has now become a part of Uttarakhand would be treated as a permanent resident of Uttarakhand upon the creation of the State of Uttarakhand in terms of the Government Order dated 20.11.2001 and would also be entitled to all the benefits and privileges of that caste provided that caste was also notified in the State of Uttarakhand. Therefore, the effect would be that in order to be treated as a permanent resident of Uttarakhand, the conditions in order dated 20.11.2001, inter alia, namely, that person should have been residing for 15 years would also have to be complied with. 18. We may, at once, notice that there was no dispute that there is a requirement of 15 years’ residence within the territories, which later on became the State of Uttarakhand in the Government Order. If the appellant/writ petitioner is assumed to have come to Rudrapur and started residing there in the year 1989 and the period of 15 years is to be counted from the date of the Government Order dated 20.11.2001, quite clearly, the appellant/writ petitioner does not fulfill the requirement to be treated as a permanent resident of the State of Uttarakhand. The appellant/writ petitioner has a case that the period of 15 years, as on the date of the Order, is not to be found in the Government Order dated 20.11.2001. Therefore, his case would appear to be that even if he completes it as on the date when the certificate was granted in the year 2004, he should be entitled to get it. 19. It is, in the context of this argument, that we should understand the purpose, for which the Government Order was issued. There is no dispute that Caste Certificate is given only to persons, who are permanently residing within the State of Uttarakhand.
19. It is, in the context of this argument, that we should understand the purpose, for which the Government Order was issued. There is no dispute that Caste Certificate is given only to persons, who are permanently residing within the State of Uttarakhand. The contention of the State before the learned Single Judge in the Ajay Kumar’s case (supra), as we have noted, was that even 15 years’ residence by a party would not suffice for the purpose of grant of Caste Certificate. What is relevant is that his/her forefathers must have been residing within the territory, which is now the State of Uttarakhand as on the date of issuance of the Presidential Orders. This argument of the learned Advocate General did not find favour with the learned Single Judge. The learned Single Judge noted that Uttarakhand was once a part of the State of Uttar Pradesh. What is relevant, however, was that the learned Single Judge has reiterated the parameters to be found in the Government Order dated 20.11.2001. Therefore, the cut-off date would appear to be the date not in 1950 but 20.11.2001. The State of Uttarakhand had evolved a criterion, which is determination of permanent residency with reference to the length of residence counted backwards from the date of the said order. 20. A question may arise, whether in the context of Article 19(1) of the Constitution of India does not a citizen have a right to reside in any part of India? Though such a question is not raised, we only venture to observe that prima facie it appears to us that the Permanent Residence Certificate being a sine qua non for acquiring a Caste Certificate, it may not have anything to do with the fundamental right to settle in any part of India. A Caste Certificate is granted in respect of persons, who are notified as Caste for the State. Therefore, for the purpose of determining, whether he is a person belonging to the State, the question of permanent residency also arises. It is in the context of this, that, apparently, the State has brought out the order providing that a person should be residing continuously for a period of 15 years and the criteria must necessarily, therefore, be assessed from the date of the order.
It is in the context of this, that, apparently, the State has brought out the order providing that a person should be residing continuously for a period of 15 years and the criteria must necessarily, therefore, be assessed from the date of the order. Even the order dated 02.04.2013 relied on by the learned Senior Counsel for the appellant/writ petitioner does not, in our view, on a proper understanding of the order, militate against the said view. It is true that the said order, after reiterating that matter is to be governed by order dated 20.11.2001, has culled out what the requirements are. In the said context, it is provided that either person must have the permanent place and residence or must have lived there for 15 years. In order to have a harmonious interpretation of both the Orders, we would think that it could not have been the intention that a person can complete 15 years at any point of time and get the benefit of Caste. In fact, the argument of the learned Advocate General for the State before the learned Single Judge in Ajay Kumar’s case (supra) was that even 15 years residence will not be sufficient. Therefore, the appellant/writ petitioner does not appear to have a case, which merits our acceptance. 21. There is yet another aspect to this whole controversy. Admittedly, in between 1995 and 2000, the appellant/writ petitioner stood for election to the post of Pradhan in Badaun, which fell within the State of Uttar Pradesh and continues to be a part of the State of Uttar Pradesh after reorganization also. This aspect has been noted by the authorities mainly. This means that during the period when the appellant/writ petitioner was elected as a Pradhan, in an area, which did not fall within the State of Uttarakhand, later on, quite clearly, he cannot be treated as residing within the State of Uttarakhand at the same time. In fact, the learned Senior Counsel for the appellant/writ petitioner would also rely on Annexure No. 4 in Writ Petition (M/S) No. 2954 of 2017, which appears to be a Certificate granted to indicate that after the year 2000, he has not availed the benefit of his caste in the State of Uttar Pradesh and stood for election. But this is besides the point.
But this is besides the point. During the period between 1995-2000, while on the one hand, he sets up his residence in Rudrapur, he also contested the election of Pradhan, on the basis of the voter list, which shows that he was a voter in Badaun. His name was included in the Parivar Register (Family Register) at Badaun. Therefore, this again will clearly militate against counting the period. His name, in fact, was also shown in the Voters List for the year 2003-05 at Badaun. This is clearly incompatible with his case. It is pointed out by the learned Standing Counsel that his name is also shown in the Parivar Register of the year 2010 at Badaun. These factors will clearly cut out the root of the appellant’s case that he was entitled to be treated as a permanent resident on the basis that having set up a residence in Rudrapur in the year 1989, and he continued there. 22. The contention of Mr. Avtar Singh Rawat, learned senior counsel for the appellant/writ petitioner is that in certain situations, this Court has countenanced grant of Permanent Residence Certificate even without completion of 15 years. We may notice that in Jyoti Bala’s case (supra), the question, which arose, was whether the petitioner therein, who had married a resident of the State of Uttarakhand could be denied the Certificate on the basis that she had not completed 15 years? The Court took the view that wife would follow the domicile of the husband and the Court took the view that a permanent resident of the State of Uttarakhand acquired husband’s domicile and from the date of her marriage became a bonafide resident of the State of Uttarakhand. Reference was also made to Section 15 of the Indian Succession Act, 1925 in this regard. In this case, the appellant/writ petitioner cannot claim that he will take the domicile of his wife. The facts are, therefore, distinguishable. 23. In the case of Mrs. Jyotsana Vs. State of Uttarakhand and others reported in 2010 (2) U.D. 539, the father of the petitioner therein belonged to the ‘Jatav’ Caste and he was finally allocated to the State of Uttarakhand.
The facts are, therefore, distinguishable. 23. In the case of Mrs. Jyotsana Vs. State of Uttarakhand and others reported in 2010 (2) U.D. 539, the father of the petitioner therein belonged to the ‘Jatav’ Caste and he was finally allocated to the State of Uttarakhand. The petitioner was married to a permanent resident of the State of Uttarakhand and the Court took the view that by virtue of the final allocation of the petitioner’s father to the State of Uttarakhand, he acquired the domicile of the State of Uttarakhand and it could not be said that he migrated to the State of Uttarakhand. Therefore, this judgment is also distinguishable. 24. We would think that the purpose, apparently, of the Government Order dated 20.11.2001, as also, the Government Order dated 02.04.2013 must be understood as permitting a person, who was resident of the undivided State of Uttar Pradesh or a migrant from another place to gain the benefit of the Caste status and he should comply with the requirement of the permanent residence for the period of 15 years backwards from the date of the order dated 20.11.2001. Since the appellant/writ petitioner does not fulfil the requirement, we do not find any illegality in the impugned orders against the appellant/writ petitioner. Cancellation of the permanent residence certificate, as also, the Caste Certificate cannot be faulted with. Resultantly, the Appeals fail; they are dismissed without any order as to costs.