JUDGMENT : The instant writ petition under Article 226 of the Constitution of India have been instituted by the writ petitioner seeking a writ in the nature of certiorari/mandamus for setting aside and quashing of an order dated 06.12.2022 passed by the learned District Judge, Nalbari in the capacity of the Panchayat Election Tribunal in Election [P] Case no. 2/2019. 2. The relevant facts which are not in dispute, can be briefly stated as follows :- In the General Panchayat Election held in the year 2018, the petitioner submitted her nomination to contest for the post of President in 59 no. Mukalmua Narayanpur Gaon Panchayat from a recognized political party. The respondent no. 6 had also submitted her nomination to contest for the same post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat from another recognized political party. Another candidate, Smti Sofran Begum was also in the fray as an independent candidate. The election was held on 09.12.2018 and the counting of votes was scheduled to take place on 12.12.2018. After the election was over, the Deputy Commissioner, Nalbari accordingly arranged for counting for votes on 12.12.2018. The counting of votes in respect of the election to the post of President to 59 no. Mukalmua Narayanpur Gaon Panchayat was accordingly completed. After completion of counting of votes, the Deputy Commissioner declared the results of the same after preparing the result sheets. As per the Return of Election, published under Rule 44[7] of the Assam Panchayat [Constitution] Rules, 1995, the total ballot papers [including postal ballots] received were 8688 and 283 nos. of ballot papers [including postal ballots] out of those 8688 ballot papers were declared as rejected. Thus, the total no. of valid votes cast were 8405. The petitioner was declared elected to the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat on the strength of her securing 4075 nos. of valid votes. As per the result sheets, the respondent no. 5 secured 4072 nos. of valid votes whereas the independent candidate, Smti Sofran Begum secured 258 nos. of valid votes. 2.1. Aggrieved by and dissatisfied with the results so declared on 13.12.2018, the respondent no. 5 has preferred an election petition under Clause [b] of Section 129 of the Assam Panchayat Act, 1994, as amended [‘the Panchayat Act’, for short], before the Election Tribunal of the learned District Judge, Nalbari, constituted under Section 127 of the Panchayat Act. 2.1. Aggrieved by and dissatisfied with the results so declared on 13.12.2018, the respondent no. 5 has preferred an election petition under Clause [b] of Section 129 of the Assam Panchayat Act, 1994, as amended [‘the Panchayat Act’, for short], before the Election Tribunal of the learned District Judge, Nalbari, constituted under Section 127 of the Panchayat Act. The said election petition has been registered and numbered as Election [P] Case no. 2/2019. In the election petition, the petitioner herein has been impleaded as respondent no. 1. For the sake of easy reference, the parties are being referred hereinafter as per the nomenclatures in the instant writ petition, that is, the petitioner herein i.e. the respondent no. 1 in the election petition would be referred as the petitioner and the election petitioner in Election [P] Case no. 2/2019 i.e. the respondent no. 5 herein would be referred to as the respondent no. 5. 3. In the election petition, the respondent no. 5 as the election petitioner had pleaded that after completion of counting, the counting staff declared that she secured highest nos. of 4082 nos. of votes whereas the petitioner herein i.e. the respondent no. 1 therein had secured 4050 nos. of votes with the independent candidate securing 258 nos. of votes. After so informing, the Returning Officer told the respondent no. 5 to leave the counting hall without giving any result sheets and winning sheets and the respondent no. 5 had accordingly left the counting hall with her counting agent. When the respondent no. 5 met the Returning Officer on the next date [13.12.2018] the Returning Officer gave her the result sheets wherein it was shown that she lost the election by a margin of three votes, with the petitioner securing 4075 nos. of votes and the respondent no. 5 securing 4072 nos. of votes. 3.1. It has been pleaded that the Election Officer and the Assistant Election Officer for counting in the counting hall, wrongly made entry of 4072 votes out of 8405 nos. of valid votes in favour of the respondent no. 5 i.e. the Election petitioner and wrongly made entry of 4075 votes in favour of the petitioner herein i.e. the respondent no. 1 therein while preparing the result sheets. It has been pleaded that the respondent no. 5 had actually secured 4082 nos. of votes against 4050 nos. of votes secured by the petitioner. 5 i.e. the Election petitioner and wrongly made entry of 4075 votes in favour of the petitioner herein i.e. the respondent no. 1 therein while preparing the result sheets. It has been pleaded that the respondent no. 5 had actually secured 4082 nos. of votes against 4050 nos. of votes secured by the petitioner. It is the case of the respondent no. 5 in the election petition that after receipt of the result sheets on 13.12.2018, she came to know that the Election Officer for counting in due course of casting, did not explain as to how many postal ballots were received by him and for whose favour those postal ballot votes were cast. 3.2. It has been specifically pleaded that at Booth no. 10, the respondent no. 5 had secured 267 votes and the petitioner had secured 601 votes while 225 nos. of votes were doubtful votes. But the Supervisor at the counting hall without verifying the validity of the votes treated the entire 25 nos. of doubtful votes as valid votes and added those 25 nos. of votes in favour of the petitioner, which caused injustice to the respondent no. 5. In reality, the counting officials had shown those 25 nos. of votes as rejected votes to the counting agent of the respondent no. 5, but the Supervisor of the counting hall added those votes in favour of the petitioner. Though the respondent no. 5 had objected about the same before the Returning Officer but the Returning Officer declined to take any action. 3.3. It has been pleaded in the election petition that the counting staff at the counting hall rejected some valid votes cast in favour of the respondent no. 5 and added some rejected votes in favour of the petitioner. Further, some valid votes secured by the respondent no. 5 were treated as rejected. 3.4. By preferring the election petition, the respondent no. 5 has inter alia sought for reliefs in the form of [i] a declaration that the election of the returned candidate for the post of President in 59 no. Further, some valid votes secured by the respondent no. 5 were treated as rejected. 3.4. By preferring the election petition, the respondent no. 5 has inter alia sought for reliefs in the form of [i] a declaration that the election of the returned candidate for the post of President in 59 no. Mukalmua Narayanpur Gaon Panchayat had been materially affected by irregularities and illegalities committed at the time of counting of votes; [ii] a declaration that the result sheets issued in favour of the petitioner on 13.12.2018 is null and void; [iii] to pass an order directing the District Returning Officer-cum-Deputy Commissioner, Nalbari to produce the relevant records and ballot papers in respect of the election held for the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat; [iv] a decree for re-counting of votes cast for the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat in presence of the parties and an order for issuance of fresh result sheets after such re-counting; and [v] a declaration declaring the respondent no. 5 as the elected candidate for the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat. 3.5. On receipt of notice on the election petition, the petitioner as the respondent no. 1 in Election [P] Case no. 2/2019, entered appearance and submitted a written statement. The Election Tribunal after hearing the parties, had framed following 5 nos. of issues on 11.06.2019 :- “1. Whether there is cause of action for the suit under the law and facts ? 2. Whether the suit is maintainable under the law and facts ? 3. Whether there is irregularity and illegality in counting of votes that affected declaration of the result materially ? 4. Whether the Returning Officer avoided counting of ballots and under the influence of political party thus resulted the petitioner’s defeat ? 5. Whether the petitioner is entitled to the reliefs as prayed for in the suit ?” 4. During the course of the proceedings of Election [P] Case no. 2/2019, the learned Tribunal had passed an order on 25.08.2022 whereby the learned Election Tribunal ordered for recounting of the votes cast for the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat. The said order dated 25.08.2022 was put to challenge by the petitioner herein in a writ petition, W.P. [C] no. 5710/2022. 2/2019, the learned Tribunal had passed an order on 25.08.2022 whereby the learned Election Tribunal ordered for recounting of the votes cast for the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat. The said order dated 25.08.2022 was put to challenge by the petitioner herein in a writ petition, W.P. [C] no. 5710/2022. The said writ petition came up for consideration on 07.09.2022 and the Court after hearing the learned counsel for the parties and upon perusal of the materials on record, interfered with the order dated 25.08.2022, impugned therein. After setting aside the impugned order dated 25.08.2022, the Court by order dated 07.09.2022, remanded the matter back to the learned Election Tribunal with a request to conduct the hearing the election petition expeditiously and to make an attempt to conclude the same, preferably within a period of 2 months from the date of receipt of a certified copy of the order dated 07.09.2022. 5. After being so remanded back, the learned Election Tribunal proceeded with Election [P] Case no. 2/2019 with the recording of evidence. The learned Election Tribunal by an order dated 06.12.2022, impugned herein, had once again ordered for recounting of ballots/votes cast in the election for the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat. 6. Heard Mr. A.C. Sharma, learned Senior Counsel assisted by Mr. G. Bharadwaj, learned counsel for the petitioner; Mr. C.K.S. Baruah, learned Government Advocate, Assam for the respondent nos. 1, 3, 4 & 5; Mr. R. Dubey, learned Standing Counsel, Assam State Election Commission for the respondent no. 2; and Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. G.H. Hazarika, learned counsel for the respondent no. 6. 7. When the writ petition was moved on 12.12.2022 assailing the impugned order dated 06.12.2022 passed by the learned Election Tribunal, the Court taking note of the fact of interference of the order dated 25.08.2022 [supra] in the previous writ petition, W.P.[C] no. 5710/2022 and the fact that the election petition was not then finally heard, was of the considered view that recounting of votes would be a premature exercise. With such prima facie observation, the operation of the impugned order dated 06.12.2022 was stayed till further orders. 8. After passing of the afore-mentioned interim order on 12.12.2022, the respondent no. 5 herein has preferred an interlocutory application seeking vacation/modification/alteration and/or cancellation of the interim order dated 12.12.2022. With such prima facie observation, the operation of the impugned order dated 06.12.2022 was stayed till further orders. 8. After passing of the afore-mentioned interim order on 12.12.2022, the respondent no. 5 herein has preferred an interlocutory application seeking vacation/modification/alteration and/or cancellation of the interim order dated 12.12.2022. The said interlocutory application has been registered and numbered as Interlocutory Application [C] no. 105/2023. 9. When the matter is listed today, the learned Senior Counsel appearing for the petitioner as well as the respondent no. 5 has submitted that considering the issue involved, that is, the order of recounting, both the writ petition and the interlocutory application can be taken up for final consideration. In view of such agreement expressed by the learned Senior Counsel for the contesting parties, both the writ petition and the interlocutory application are taken up together. 10. Mr. Sharma, learned Senior Counsel appearing for the petitioner has submitted that the order of recounting given by the impugned order dated 15.12.2022 is ex facie unsustainable in law. According to him, the learned Election Tribunal has repeated the same mistake as was done on an earlier occasion on 25.08.2022. The earlier order dated 25.08.2022 passed by the learned Election Tribunal passed in the same election petition, had already been interfered with by this Court by order dated 07.09.2022 passed by the learned Election Tribunal passed in the same election petition, passed in the writ petition, W.P.[C] no. 5710/2022. The Court in the order dated 07.09.2022 had already expressed the view that an order for recounting of ballots could be in the nature of final relief in the election petition. Having found from the order dated 25.08.2022 impugned therein that the learned Election Tribunal on the previous occasion, did not reach at a finding based on discussion of evidence available on record, to conclude that the election petitioner i.e. the respondent no. 5 had succeeded in making out a case to convince that the results of the election stood vitiated due to improper counting of ballots. By referring to the order dated 06.12.2022, impugned herein, the learned Senior Counsel for the petitioner has contended that the learned Election Tribunal has ordered for recounting of ballots/votes after going through photocopies and finding rewritings on them. By referring to the order dated 06.12.2022, impugned herein, the learned Senior Counsel for the petitioner has contended that the learned Election Tribunal has ordered for recounting of ballots/votes after going through photocopies and finding rewritings on them. Stating that the learned Election Officer had failed to produce the original documents, the learned Election Tribunal expressed a doubt on the genuineness on the counting process. In the impugned order, there is no discussion on the evidence led by the Election petitioner in the proceedings of Election [P] Case no. 2/2019 and as to whether the election petitioner has been able to establish a prima facie case for the learned Election Tribunal to arrive at a belief that there had been mistake in counting. 11. Mr. Choudhury, learned Senior Counsel appearing for the respondent no. 5 has submitted that in the writ petition, the petitioner has not projected the actual picture about the stage of the proceedings of Election [P] Case no. 2/2019. From the order dated 15.12.2022 passed by the learned Election Tribunal subsequent to the interim order passed on 12.12.2022 passed by this Court in the present writ proceedings, it clearly emerges that in the proceedings of Election [P] Case no. 2/2019, the parties have already led their evidence on the issues framed and on completion of recording of evidence, the arguments of both the parties are also heard. It is submitted by him that on a perusal of Ballot Paper Account issued in Form no. XXII, annexed as Annexure-4 to the interlocutory application, it prima facie appears that there were anomalies/irregularities in the process of counting the ballot papers. It was in such premises, the learned Election Tribunal had expressed doubt on the genuineness on the counting process and had, therefore, ordered for recounting of ballots/votes cast in respect of the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat. Having regard to the settled position of law in the matter of recounting, Mr. Choudhury has fairly advanced, without prejudice, contention that the term of the Gaon Panchayat is of 5 [five] years under the Assam Panchayat Act, 1994, as amended, and the election process challenged in Election [P] Case no. 2/2019 was of the year 2018. With less than a year left to expire, it is just and proper that the proceedings of Election [P] Case no. 2/2019 was of the year 2018. With less than a year left to expire, it is just and proper that the proceedings of Election [P] Case no. 2/2019 comes to a logical conclusion at the earliest so as to enable the respondent no. 5 to hold the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat in the event of her success in the election petition. 12. I have duly considered the submissions of the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. 13. The case pleaded by the respondent no. 5 in the election petition has already been mentioned above. One of the prayers is for recounting of votes cast for the election to the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat. 14. The State Government in exercise of the powers conferred by subsection [1] of Section 141 of the Assam Panchayat Act, 1994 has framed a set of rules, ‘the Assam Panchayat [Constitution] Rules, 1995’ [hereinafter referred to as ‘the Rules, 1995’ or ‘the 1995 Rules’, for the sake of easy reference]. Rule 44 of the 1995 Rules has provided for the detail procedure of counting of votes and declaration of results of the Election. Sub-rule [1] of Rule 44 has prescribed that the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, shall arrange counting of votes on such day and at such hours and place as he may consider necessary for the purpose in respect of an Election. He has to authorize one officer for counting the votes in respect of the Election of Gaon Panchayat President separately and such officer is to be assisted by such other officers as may be appointed by the Deputy Commissioner or the Sub-Divisional Officer, as the case may be. As per Rule 44[2], on the date, hours and place fixed under Rule 44[1], the officer authorized for counting of votes in respect of a Gaon Panchayat collect the ballot box or boxes as per the procedure prescribed therein and thereafter, has to open the ballot boxes, take out the ballot papers, sort them out against each candidate and count the same in presence of the candidate or their agents, duly appointed by the candidates for the purpose. The conditions for rejection of a ballot paper have been outlined in sub-rule [3] of Rule 44 and before such rejection, the authorized officer has to allow inspection of such ballot papers by the candidates or by their agents in terms of Rule 44[4]. The authorized officer, as per Rule 44[5], after counting each ballot paper not rejected by him, has to keep a record of the valid votes polled to each candidate in the Election against every polling station. As per Rule 44[6], the authorized officer has to deliver the record, prepared under Rule 44[5], for the Election of the Gaon Panchayat President to the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, immediately after the counting is over and such record is required to be retained in the safe custody of the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, for a year and is required to destroy the same thereafter, unless otherwise directed by the State Election Commission. Rule 44[7] has provided that the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, on receipt of the record under Rule 44[6] is required to declare the candidate who has received the highest number of votes in the particular Election and also to declare him as the elected candidate. It is also mandatory to publish a notice in the office of the said authority stating the name of the person so declared, as the Goan Panchayat President. Rule 54 of the Rules, 1995 has provided that other matters not provided in the Assam Panchayat Act, 1994 shall be guided by the relevant Rules under the Representation of the Peoples Act, 1951. 15. From the afore-mentioned provisions, it can be clearly seen that an elaborate procedure has been laid down in respect of Panchayat Election and counting of votes in the Assam Panchayat Act, 1994 and the Assam Panchayat [Constitution] Rules, 1995. By Rule 54 of 1995 Rules, it has provided that the matters which are not provided in the Assam Panchayat Act, 1994 and the Assam Panchayat [Constitution] Rules, 1995, shall be guided by the relevant Rules under the Representation of the Peoples Act, 1951. 16. The law regarding counting of votes is well settled. By Rule 54 of 1995 Rules, it has provided that the matters which are not provided in the Assam Panchayat Act, 1994 and the Assam Panchayat [Constitution] Rules, 1995, shall be guided by the relevant Rules under the Representation of the Peoples Act, 1951. 16. The law regarding counting of votes is well settled. It has been consistently held that recount of votes could be ordered very rarely as secrecy of ballots has always been considered sacrosanct in a democratic process of election. It is not to be disturbed lightly on bare allegation of illegality or irregularity. It is only when it is proved that sanctity of election has been tarnished and it has materially affected the result of an election whereby the defeated candidate has been seriously prejudiced, the Court can resort to the process of recounting of votes to do justice between the parties. It has been held by the Hon’ble Supreme Court of India in Udey Chand vs. Surat Singh and another, reported in [2009] 10 SCC 170, to the effect that before an Election Tribunal can permit scrutiny of ballot papers and order of recount two basic requirements which viz. :- [i] the election petition seeking recount of the ballot papers must contain an adequate statement of all the materials facts on which the allegations of irregularity or illegality in counting are founded, and [ii] on the basis of the evidence adduced in support of the allegations, the Election Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. 17. In P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen, which was rendered in an election petition in respect of the post of President of a Panchayat, the Hon’ble Supreme Court of India has observed that the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided from materials placed by an election petitioner on the threshold before an order for recount of votes is actually made. On the contrary, the justification for an order of recount of votes should be provided from materials placed by an election petitioner on the threshold before an order for recount of votes is actually made. Unless the affected candidate is able to allege and substantiate in acceptable manner by means of evidence that a prima facie case of a high degree of probability existed for a recount of votes being ordered by the Election Tribunal in the interest of justice, an Election Tribunal or a Court should not order the recount of votes. 18. In Suresh Prasad Yadav v. Jai Prakash Mishra, reported in [1975] 4 SCC 822, the Hon’ble Supreme Court while dealing with the principles of granting prayer for inspection of ballot papers and/or re-counting, has observed as under :- “5…. this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of the course. The reason is twofold. Firstly, such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof. Although no hard-and-fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus. 6. The court would be justified in ordering a re-count of the ballot papers only where : [1] the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; [2] on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and [3] the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.” 19. Having regard to the settled principles of law as regards passing of an order of recounting and the elaborate procedure laid down for counting of ballot papers in the Assam Panchayat Constitution Rules, 1995, when the order dated 06.12.2022 is looked at, it is found lacking with any finding arrived at on the basis of the evidence already adduced by the parties. From the order dated 15.12.2022 passed by the learned Election Tribunal, it stands reflected that in the proceedings of Election [P] Case no. 2/2019, both the parties had already led their evidence and on completion of recording of evidence, the learned Election Tribunal had already heard the argument from both the parties and the judgment was to be delivered. But in an impugned order dated 06.12.2022, there is no reflection of the facts that the parties had already led their evidence and the final arguments of the parties were also heard by the learned Election Tribunal. The learned Election Tribunal upon perusal of the copy of the documents available in the record, found over-writings and addition of votes, specially in counting table no. 59/10 and 7 and anomalies in Exhibit 4 [1] of the result sheets. Taking note of the fact that the election petitioner i.e. the respondent no. 5 had lost the election by a margin of three votes and had alleged that 25 nos. of doubtful votes counted in booth/table no. 10 were added in favour of the petitioner herein i.e. the respondent no. 1 therein; alleging failure on the part of the Election Officer to produce the original documents and finding re-writings and adding of ballot papers in the photocopies of Form no. XXVIII [B] in respect of the election of Gaon Panchayat President in question, the learned Election Tribunal ordered for re-counting of the votes. It was on the aforesaid premises, the learned Election Tribunal had expressed clear doubt. Thus, it has emerged that without appreciating the evidence on record, already led by the contesting parties before it, and without examining admissibility or otherwise of the evidence on record and their evidenciary value, etc., the learned Tribunal had expressed doubt on the basis of the photocopies on the genuineness of the counting process. Thus, it has emerged that without appreciating the evidence on record, already led by the contesting parties before it, and without examining admissibility or otherwise of the evidence on record and their evidenciary value, etc., the learned Tribunal had expressed doubt on the basis of the photocopies on the genuineness of the counting process. From the impugned order, it does not appear that the learned Election Tribunal before passing directing re-counting of votes, did not reach at findings on the basis of the evidence led before it by the parties that the election petitioner has been able to establish prima facie a belief that there had been irregularities/illegalities in counting and got itself prima facie satisfied that the making of an order of re-counting is unavoidable and of utmost necessity to decide the dispute. An order of re-counting cannot be made as a matter of force on the basis of mere allegations made in the election petition. Making photocopies of certain documents without any observation about reception of such evidence preceded by laying of proper foundation for their acceptance, has made the order vulnerable. For the aforesaid reasons and in the absence of any discussion on contemporaneous evidence showing irregularity or illegality, this Court finds the order dated 06.12.2022, impugned herein, unsustainable in law and liable to be set aside and quashed. It is accordingly set aside and quashed. 20. Considering the facts that the term of a President of a Gaon Panchayat is ordinarily 5 [five] years, unless removed by due procedure of law, and that the Panchayat General Election for the post of President, 59 no. Mukalmua Narayanpur Gaon Panchayat was held in the year 2018 with less than one year left to expire the term, it is observed that the learned Election Tribunal shall proceed with the election petition, Election [P] Case no. 2/2019 from the stage it is interfered with. In other words, as the evidence have already been led by the parties and the final arguments from the parties are also heard, it prima facie appears that the learned Election Tribunal is only left with to deliver the final order in Election [P] Case no. 2/2019, unless it decides to obtain the original records indicated in the impugned order dated 06.12.2022, which process should also be completed with utmost expedition. 21. 2/2019, unless it decides to obtain the original records indicated in the impugned order dated 06.12.2022, which process should also be completed with utmost expedition. 21. To facilitate an expeditious consideration of the election petition, the contesting parties are directed to appear before the learned Election Tribunal on 20.02.2023 so as to enable the learned Election Tribunal to proceed further with the election petition, Election [P] Case no. 2/2019 to bring the lis to its logical conclusion expeditiously. 22. With the observations made and the directions given above, the writ petition stands allowed to the extent indicated. As a corollary, the interlocutory application, I.A.[Civil] No. 105/2023 stands dismissed. There shall, however, be no order as to cost.