Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 755 (GAU)

Thanglianzauva v. State of Mizoram

2020-11-10

NELSON SAILO

body2020
JUDGMENT : 1. This order will dispose of all the five writ petitions since the issues involved are similar and identical. 2. Heard Mr. A.R. Malhotra, the learned counsel for the petitioners and Mr. C. Zoramchhana, the learned Additional Advocate General, Mizoram for the respondent Nos. 1, 2 and 3. Also heard Ms. Zairemsangpuii, learned CGC appearing for the respondent No. 4. None appears for the respondent No. 5. Brief particulars of each of the writ petition is being mentioned in the table below:- Sl. No. WP(C) No. Name of Petitioner Name of Road Bid% below SOR Bid amount 1. 1/2020 Thanglianzauva E. Phaileng to Suangpuilawn Road Group E 15.20 7,29,66,689.48 Khawzawl to Biate Road Group G 10.99 7,88,78,601.98 2. 2/2020 R. Liantluanga & Anr. Khawzawl to Biate Road Group J 8.17 9,38,02,937.39 3. 3/2020 Lalfamkima Sairang Lengte Nghalchawm Road 4.99 8,42,17,523.83 4. 4/2020 P. Lalbiaka E. Phaileng to Suangpuilawn Road Group D 12.17 7,90,93,190.12 Khawzawl to Biate Road Group A 8.14 7,41,54,638.40 Khawzawl to Biate Road Group B 10.37 7,22,87,150.39 Haulawng to Dawn Road Group B 16.50 6,05,77,355.86 Haulawng to Dawn Road Group C 17.51 6,07,55,882.93 Haulawng to Dawn Road Group D 13.02 7,43,95,948.53 Haulawng to Dawn Road Group E 7.92 8,40,58,322.50 5. 5/2020 Malsawmsangz ela & Anr. Nalkawn to Rulkual Road Group A 11.00 10,78,79,119.86 3. For the sake of brevity and convenience, the facts projected by the petitioner in WP(C) No. 1/2020 may be narrated. According to the petitioner, the respondent No. 3 on 9.3.2019 (Annexure 1) floated a Notice Re-Inviting Tenders (NIT) inviting item-rate bids in electronic tendering system for construction of roads under Pradhan Mantri Gram Sadak Yojana (PMGSY) from eligible contractors for as many as 11 packages. The last date and time for receipt of bids through e-tendering was fixed as 27.9.2019 at 1800 hrs. However, vide Corrigendum-I dated 9.9.2019 (Annexure 2), the NIT dated 9.3.2019 was cancelled by the respondent No. 3 and the reason given was for repackaging of the works. 4. A fresh NIT was then issued on 9.9.2019 (Annexure 3) incorporating as many as 28 packages of works. The last date and time for receipt of bids through e-tendering was fixed as 11.10.2019 at 1800 hrs. and the technical qualification part of the bid was to be opened online at 1100 hrs. on 14.10.2019 by the authorized officers. 4. A fresh NIT was then issued on 9.9.2019 (Annexure 3) incorporating as many as 28 packages of works. The last date and time for receipt of bids through e-tendering was fixed as 11.10.2019 at 1800 hrs. and the technical qualification part of the bid was to be opened online at 1100 hrs. on 14.10.2019 by the authorized officers. Thereafter, vide Corrigendum-II dated 9.9.2019 (Annexure 4), issued by the respondent No. 3, the deadline for submission of the NIT was extended to 18.10.2019 and the date for opening of the technical bid postponed to 21.10.2019. Subsequently, the deadline for submission of the NIT was further extended to 31.10.2019 and the date for opening of the technical bid postponed to 4.11.2019, vide Corrigendum-III dated 17.10.2019 (Annexure 5). Again by Corrigendum-IV dated 17.10.2019 (Annexure 6), the respondent No. 3 for the information of all intending bidders and in the exercise of Clause 26.3 of the Instruction to Bidders of the Standard Bidding Documents (SBD) for PMGSY, notified that all rates quoted lower than the current market rate would be treated as seriously unbalanced and all such successful bidders who quoted rates lower than the current market rates will have to deposit an Additional Performance Security upto one-third of the bid amount. The said Corrigendum-IV may be abstracted hereunder for ready perusal:- “GOVERNMENT OF MIZORAM OFFICE OF THE ENGINEER-IN-CHIEF, PWD & CHIEF EXECUTIVE OFFICER, MIZORAM RURAL ROADS DEVELOPMENT AGENCY CORRIGENDUM – IV No. B.15028/257/2019-2020/EC/PWD/PMGSY/12: This is for information of all intending bidders of this office NIT No. 1/MIRRDA/PMGSY-II/2019-2020 that in exercise of clause 26.3 of the Instruction to Bidders of the Standard Bidding Documents for PMGSY it is hereby notified that all rates quoted lower than the current market rate/SoR 2016 shall be treated as seriously unbalanced and all such successful bidders who quoted rates lower than the current market rate shall have to deposit an Additional Performance Security upto one-third of the Bid Amount. Sd/- K. LALSAWMVELA Chief Executive Officer Mizoram Rural Road Development Agency Mizoram, Aizawl. Memo No. B. 15028/257/2019-2020/EC/PWD/PMGSY/14 Dated Aizawl, the 12th October, 2019.” 5. Sd/- K. LALSAWMVELA Chief Executive Officer Mizoram Rural Road Development Agency Mizoram, Aizawl. Memo No. B. 15028/257/2019-2020/EC/PWD/PMGSY/14 Dated Aizawl, the 12th October, 2019.” 5. The petitioner participated in the tendering process by submitting his bid and vide the Letter of Acceptance dated 19.12.2019 (Annexure 7), the respondent No. 3 informed him that his bid in respect of Construction of East Phaileng to Suangpuilawn Road Group E, Package No. MZ 01 P2 01 E and Routine Maintenance of the works for five years for the Contract Price of Rs. 7,29,66,689.48 which is 15.20% below the estimated amount was accepted. He was, therefore, requested to furnish Performance Security amounting to Rs. 18,24,167.24 and also Additional Security for Unbalanced Bids amounting to Rs. 2,43,22,229.83 only in the form detailed in clause 30 of ITB within 10 days of the receipt of the communication failing which action as stated in clause 30.3 of ITB will be taken. The petitioner was also asked to indicate his nominee as required under clause 55.2 of the GCC. A similar Letter of Acceptance was also issued to the petitioner by the respondent No. 3 on 19.12.2019 (Annexure 8) in respect of his bid for Package No. MZ 02 P2 01 G. 6. The grievance of all the writ petitioners is that while being selected for the construction works concerned, they have been asked to deposit Additional Performance Security for Unbalanced Bids purportedly in terms of the provisions provided under clause 26.3 of the Instruction to Bidders (ITB). However, the procedure laid down in clause 26.3 of the ITB has not been followed by the respondent-authority concerned and they have been unilaterally asked to deposit one-third of the bid amount as Additional Performance Security without assigning any reason. Therefore, they have challenged the Corrigendum-IV and the Letter of Acceptance issued to them in so far as the direction to deposit Additional Performance Security for Unbalanced Bids is concerned. 7. Mr. Therefore, they have challenged the Corrigendum-IV and the Letter of Acceptance issued to them in so far as the direction to deposit Additional Performance Security for Unbalanced Bids is concerned. 7. Mr. A.R. Malhotra, the learned counsel submits that as per the Circular dated 30.3.2017 (Annexure 9) issued by the Principal Secretary to the Government of Mizoram, Public Works Department, bids for PMGSY works in Mizoram with a variation of more than 5% below the estimated/tendered amount shall be treated as unbalanced bids and the Additional Performance Security to be deposited by the successful bidder for unbalanced bids shall be the difference between 5% below the estimated/tendered amount and the contractor's quoted amount. The circular was issued in exercise of the powers conferred by clause 26.3 of ITB read with clause 30 of ITB and clause 46, Part-I, GCC of SBD for PMGSY. The learned counsel submits that the respondent No. 3, however, vide the impugned Corrigendum-IV, without assigning any reason has unilaterally fixed one-third of the bid amount as Additional Performance Security to be deposited by the contractors who have quoted rates lower than the current market rates/Schedule of Rates (SoR), 2016. 8. Mr. A.R. Malhotra, the learned counsel further submits that the above direction to deposit Additional Performance Security has been issued by the respondent No. 3 purportedly on the basis of the decision taken in the meeting of General Body of Mizoram Rural Roads Development Agency (‘MiRRDA’) on 15.10.2019 under the Chairmanship of the hon'ble Chief Minister, Mizoram. Referring to the Minutes of the Meeting of the General Body of MiRRDA enclosed to the counter-affidavit of the State respondents at Annexure A, the learned counsel submits that apparently, it was as per the advice given by the Advisor to the Chief Minister that the designated Employer was asked to take necessary action as per clause 26.3 of the ITB requiring all successful bidders, who quoted rates below current market rates to deposit Additional Performance Security up to one-third of the bid amount. The learned counsel submits that no reason has been assigned as to why the Additional Performance Security to be deposited was quantified to one-third of the bid amount. The learned counsel submits that no reason has been assigned as to why the Additional Performance Security to be deposited was quantified to one-third of the bid amount. He submits that as per clause 26.3 of the ITB of the SBD for PMGSY works, it is for the Employer to examine the bid of a successful bidder in relation to the Engineer's estimate of the cost of work to be performed under the contract. If the Employer finds the bid of the successful bidder to be seriously unbalanced, he may require the bidder to produce detailed price analysis for any or all items of the Bill of Quantities (‘BOQ’) to demonstrate the internal consistency of those prices. After such evaluation, the Employer may require that the amount of Performance Security set forth in clause 30 of the ITB be increased at the expense of the successful bidder to a level sufficient to protect the Employer against financial loss in the event of a default by the successful bidders under the contract. The amount of the increased Performance Security is to be decided at the sole discretion of the Employer, which shall be final, binding and conclusive to the bidders. However, in the instant case, the impugned decision was not taken by the Employer but by the General Body of MiRRDA, which is only in violation of the PMGSY guidelines. Drawing the attention of the court to the impugned Corrigendum-IV dated 17.10.2019, the learned counsel submits that the same was purportedly issued in exercise of clause 26.3 of the ITB of the SBD for PMGSY without actually following the procedure provided by the said clause and, therefore, the petitioners being aggrieved have approached this court. 9. The learned counsel also submits that by insisting the deposit of one-third of the bid amount towards Additional Performance Security, the contractors have been imposed with a heavy financial burden and which is bound to create an adverse impact for smooth execution of the works. He also submits that the impugned action of the respondent-authority concerned is without any assigned reason and in violation of the procedure prescribed by clause 26.3 of the ITB of SBD for PMGSY works. He also submits that the impugned action of the respondent-authority concerned is without any assigned reason and in violation of the procedure prescribed by clause 26.3 of the ITB of SBD for PMGSY works. Therefore, the impugned Corrigendum-IV as well as the requirement to deposit one-third of the value of the works as Additional Performance Security as mentioned in the Letter of Acceptance issued to the petitioners may be interfered with by this court. In support of his submission, Mr. A.R. Malhotra, the learned counsel relies upon the following authorities (1) Pune Municipal Corporation v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 . (2) T.P. Senkumar, IPS v. Union of India, (2017) 6 SCC 801 . (3) J. Ashoka v. University of Agricultural Sciences, (2017) 2 SCC 609 . 10. Mr. C. Zoramchhana, the learned Addl. Advocate General, on the other hand, submits that the petitioners have not challenged the Meeting Minutes dated 15.10.2019 by which the General Body of MiRRDA under PMGSY took the decision to invoke clause 26.3 of the ITB of the SBD for PMGSY works. The petitioners have only challenged the Corrigendum-IV dated 17.10.2019, which is only the outcome of the decision taken in the General Body meeting. Therefore, he submits that in absence of a challenge to the Meeting Minutes, there is no cause of action against the respondents he represents. The learned Addl. Advocate General also submits that the impugned Corrigendum-IV dated 17.10.2019 was issued much before the petitioners submitted their respective bids and the petitioners being fully conscious of the same, submitted their respective bids and participated in the bidding process. Therefore, they cannot be allowed to turn around at a later stage to challenge the bidding process and the criteria laid down. In other words, the learned counsel submits that the petitioners cannot be allowed to approbate and reprobate. 11. The learned Addl. Advocate General further submits that none of the Fundamental Rights of the petitioners including those provided under article 14 of the Constitution of India has been violated. In fact, all the bidders have been treated equally. He also submits that the terms and conditions are laid down at the sole discretion of the Employer and that none of the contractors have been forced to participate in the tendering process. In fact, all the bidders have been treated equally. He also submits that the terms and conditions are laid down at the sole discretion of the Employer and that none of the contractors have been forced to participate in the tendering process. He submits that the court's role in administrative action which is taken in public interest is very limited and the Employer reserves the right to accept or reject the lowest or highest bid. 12. The learned Addl. Advocate General also submits that amongst the successful tenderers, two contractors have deposited the required Additional Performance Security in terms of the Corrigendum-IV and after signing an agreement with the Employer, they have started executing the works. In this connection, he submits that initially there was an interim order passed by this court, but the same was modified to allow the contractors who were willing to deposit Additional Performance Security in terms of the impugned Corrigendum-IV. He, therefore, submits that when no grievance is expressed by some of the contractors, the petitioners in declining to accept the impugned Corrigendum-IV, are only trying to impose their own terms and the same cannot be permitted. That the action of the respondent-authority on the other hand is in public interest. He further submits that the decision taken in the General Body Meeting of MiRRDA held on 15.10.2019 is a collective decision where the Employer also participated and, therefore, the same may not be disturbed. 13. Mr. C. Zoramchhana, the learned Addl. Advocate General lastly submits that the selection of contractors to perform the contract works being a commercial transaction, the principles of equity and natural justice will not come into play to invoke the power of judicial review particularly when the decision is taken in public interest. He, therefore, submits that under the facts and circumstances, the writ petitions are without any merit and, therefore, they should be dismissed. In support of his submissions, he relies upon the following authorities:- (1) State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144 . (2) Air Commodore Naveen Jain v. Union of India, (2019) 10 SCC 34 . (3) Edukanti Kistamma v. S. Venkatareddy, (2010) 1 SCC 756 . (4) Delhi Development Authority v. UEE Electricals Engg. (P) Ltd., (2004) 11 SCC 213. (5) Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 . (2) Air Commodore Naveen Jain v. Union of India, (2019) 10 SCC 34 . (3) Edukanti Kistamma v. S. Venkatareddy, (2010) 1 SCC 756 . (4) Delhi Development Authority v. UEE Electricals Engg. (P) Ltd., (2004) 11 SCC 213. (5) Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 . (6) Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 . 14. Ms. Zairemsangpuii, the learned CGC appearing for the respondent No. 4 submits that although the respondent No. 4 has not filed affidavit-in-opposition, she is instructed by the said respondent through Communication dated 14.9.2020 to submit before the court that the decision to ask for depositing Additional Performance Security as provided under clause 26.3 of the ITB of SBD for PMGSY is the sole discretion of the Employer. The Employer is to exercise his discretion after having an evaluation of the price analysis and his decision is binding and conclusive on all bidders. The respondent No. 4, therefore, do not have a say in the matter. As such, she submits that court may consider the issue raised in the given background and pass necessary orders as may be deemed fit. 15. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the authorities relied upon by the parties. 16. From the projection made by the petitioners and the respondents, the issue to be decided is as to whether the impugned Corrigendum-IV, dated 17.10.2019 requiring the successful bidders, who quoted rates lower than the current market rates to deposit Additional Performance Security upto one-third of the bid amount was issued by adhering to clause 26.3 of the ITB of the SBD for PMGSY works. In order to appreciate the issue, clause 26.3 of the ITB, may be abstracted as below:- “Clause 26.3. If the Bid of the successful Bidder is seriously unbalanced in relation to the Engineer's estimate of the cost of work to be performed under the contract, the Employer may require the Bidder to produce detailed price analysis for any or all items of the Bill of Quantities, to demonstrate the internal consistency of those prices. If the Bid of the successful Bidder is seriously unbalanced in relation to the Engineer's estimate of the cost of work to be performed under the contract, the Employer may require the Bidder to produce detailed price analysis for any or all items of the Bill of Quantities, to demonstrate the internal consistency of those prices. After evaluation of the price analysis, the Employer may require that the amount of the Performance Security set forth in clause 30 of the ITB be increased at the expense of the successful Bidder to a level sufficient to protect the Employer against financial loss in the event of default of the successful Bidder under the Contract. The amount of the increased Performance Security shall be decided at the sole discretion of the Employer, which shall be final, binding and conclusive on the bidder.” 17. What can be understood from the above abstract is that when the Employer finds the bid of a successful bidder to be seriously unbalanced, in relation to the Engineer's estimate of the cost of work to be performed under the contract, he may require the bidder to produce detail price analysis for any or all items or the BOQ, to demonstrate the internal consistency of those prices. After the Employer evaluates the price analysis, he may require the amount of Performance Security set forth in clause 30 of the ITB to be increased at the expense of successful bidder to a level considered sufficient to protect the Employer against financial loss in the event of default. The amount to be increased is to be decided at the sole discretion of the Employer. 18. A perusal of the impugned Corrigendum-IV would go to show that the successful bidders who had quoted rates lower than the current market rates/SoR 2016 will be treated as seriously unbalanced rates/bids and, therefore, they are to deposit Additional Performance Security up to one-third of the bid amount. The decision made is said to be in exercise of clause 26.3 of the ITB. However, clause 26.3 of the ITB prescribes for a process requiring the bidder to produce the details of the price analysis for all or any of the BOQ to demonstrate the internal consistency of those prices by the Employer. The decision made is said to be in exercise of clause 26.3 of the ITB. However, clause 26.3 of the ITB prescribes for a process requiring the bidder to produce the details of the price analysis for all or any of the BOQ to demonstrate the internal consistency of those prices by the Employer. This exercise admittedly has not been done which can be plainly seen from the Corrigendum-IV and also from the contents of the Meeting Minutes dated 15.10.2019 of the General Body of MiRRDA. 19. The Apex Court in T.P. Senkumar, IPS (supra) has held that the law is well settled that when an order is passed in exercise of a statutory power on certain grounds, its validity must be judged by the reasons mentioned in the order. Those reasons cannot be supplemented by other reasons through an affidavit or otherwise. Were this not so, an order otherwise bad in law at the very outset may get validated through additional grounds later brought out in the form of an affidavit. 20. In the case of Pune Municipal Corporation (supra), the Apex Court on the given facts of that case held that the compensation amount awarded in a land acquisition proceeding deposited in the Government Treasury cannot be equated to the amount of compensation being paid to the land owners/persons interested and the same will be against the prescribed provisions provided under sections 31 to 34 of the Land Acquisition Act, 1894. The Apex Court, therefore, while rejecting the case of the appellant, appreciated the settled proposition of law laid down in Nazir Ahmed v. King Emperor, (1935-36) 63 IA 372 : AIR 1936 PC 253 (2), where it was held that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. Applying the settled law to the instant case, it may be seen that clause 26.3 of the ITB has prescribed for a procedure for invoking the same but a perusal of the impugned Corrigendum-IV would go to show that the same has not been prepared and issued after due exercise of the procedure stipulated in clause 26.3 of the ITB. No specific reasons or otherwise has been assigned on the quantification of one-third of the Bid Amount as Additional Performance Security deposit. 21. No specific reasons or otherwise has been assigned on the quantification of one-third of the Bid Amount as Additional Performance Security deposit. 21. The Apex Court in J. Ashoka (supra) held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether, it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way, can opinions or decisions recorded be shown to be manifestly just and reasonable. 22. Now coming to the authorities relied upon by the learned Addl. Advocate General, it may be seen that in the case of Dhanjit Singh Sandhu (supra), the Apex Court held that the doctrine of “approbate and reprobate” is only a species of estoppel, it implies only to the conduct of the parties. As in the case of estoppel, it cannot operate against the provisions of a statute. It is a settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. Similarly, in the case of Air Commodore Naveen Jain (supra), the Apex Court reiterated that the proposition of law that once a party participates in a selection process consciously, he cannot later turn around and question the method of selection and its outcome. There cannot be an argument with the above proposition of law but the facts involved in the present case are distinguishable inasmuch as unless the petitioners are found to be successful bidders in the tendering process, they cannot be said to be in a position to raise their grievance against the stipulation to deposit Additional Performance Security. Further, the respondent-authority concerned by issuing the Corrigendum-IV has claimed that clause 26.3 of the ITB has been invoked. The said clause as already noticed herein above, otherwise prescribes for a process to be undertaken by the Employer before demanding Additional Performance Security deposit. That such process is not discernible from the impugned Corrigendum-IV and under the circumstance, the principles of estoppel in my considered view cannot be attracted. 23. The said clause as already noticed herein above, otherwise prescribes for a process to be undertaken by the Employer before demanding Additional Performance Security deposit. That such process is not discernible from the impugned Corrigendum-IV and under the circumstance, the principles of estoppel in my considered view cannot be attracted. 23. The ratio laid down by the Apex Court in Edukanti Kistamma (supra) was that mere challenging a consequential order but not the original decision would be of no consequence. However, the said principle in my considered view cannot be applied to the present case in view of the fact that the impugned Corrigendum-IV, nowhere mentions that the same was issued pursuant to the decision taken in the meeting of the General Body of MiRRDA on 15.10.2019 and rather, it says that the same was issued in exercise of clause 26.3 of the ITB. 24. The proposition of law laid down by the Apex Court in Delhi Development Authority (supra), also appears to be only in favour of the petitioners inasmuch as no decision making process is discernible in the impugned Corrigendum-IV. No reasons are assigned for fixing one-third of the bid amount as Additional Performance Security deposit. One of the test for determining the exercise of judicial review in contractual matters as laid down by the Apex Court in Jagdish Mandal (supra), is that when the process adopted or decision made is so arbitrary and irrational that the court can say ‘the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached’, judicial review would be justified. Applying the test to the instant case, it may be seen that without exercising the process as provided by clause 26.3 of the ITB, the impugned Corrigendum-IV has asked all the successful bidders who quoted rates below the current market rates/SOR 2016 to deposit Additional Performance Security to the extent of one-third of the Bid Amount. There appears to be no evaluation whatsoever and, therefore, the decision relied upon by the State counsel cannot render assistance to the State respondents. The case of Central Coalfields Ltd. (supra), also cannot render any assistance to the State respondents, inasmuch as already stated herein below, the process required as stipulated at clause 26.3 of the ITB has not been followed. 25. The case of Central Coalfields Ltd. (supra), also cannot render any assistance to the State respondents, inasmuch as already stated herein below, the process required as stipulated at clause 26.3 of the ITB has not been followed. 25. As may be noticed from the discussions made hereinabove, clause 26.3 of the ITB of the SBD for PMGSY works provides that the Employer has the power to insist on Additional Security Deposit but the same can be done only after due process given in the said clause is followed and not in the manner notified in the impugned Corrigendum-IV. Fixation of one-third of the bid amount as the deposit towards additional performance security has to be justified by assigning reasons and by showing the nexus with the object sought to be achieved. The same admittedly has not been followed before arriving at such a decision. As such, I find substance in the grievance projected by the petitioners. 26. Having taken the view as aforesaid, I find the impugned Corrigendum-IV, dated 17.10.2019 and the Letter of Acceptance issued to the petitioners in so far as the insisting of Additional Performance Security deposit concerned not to be sustainable. Therefore, they are accordingly set aside and interfered with. While allowing the writ petitions, it is also made clear that the respondents are not precluded from invoking clause 26.3 of the ITB but, however, the same should be strictly in accordance with the procedure provided therein and importantly, by giving due opportunity to the petitioners to justify their quoted rates/bids. It is further provided herein that this order will not cover the case of those bidders who have already signed an agreement with the respondent-authority concerned and have started the works. 27. With the above observations and directions, all the writ petitions are disposed of. Under the facts and circumstances, the parties are directed to bear their own cost.