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CASE NO.: Appeal (civil)  7015 of 2005

PETITIONER: Competent Authority                                      

RESPONDENT: Barangore Jute Factory & Ors.                            

DATE OF JUDGMENT: 23/11/2005

BENCH: K.G. Balakrishnan & Arun Kumar

JUDGMENT: JUDGMENT (arising out of SLP ) 16820 OF 2004) With Civil Appeals No. 7016-17 of 2005 (arising out SLP(C ) Nos.17874-17875 of 2004)

AND WITH

Civil Appeal No. 7018 of 2005 (@ SLP (C ) No.18773 of 2004)

ARUN KUMAR, J.

       Leave granted.         These appeals arise from a common judgment of the High Court.  The  contesting parties before the High Court filed special leave petitions in this  Court against the judgment of the High Court dated 7th April, 2004.  The  special leave petitions filed by the Competent Authority are registered as  SLP (Civil) No. 16820 of 2004 while those filed by the National Highways  Authority of India are SLP (Civil) Nos.17874-75 of 2004. The Writ  Petitioners before the High Court have also filed a petition which is  numbered as SLP (Civil) 18773 of 2004.  Since all the petitions arise from a  common judgment, they were heard together and are being disposed of by  this judgment.  For sake of convenience the land owners are being referred  to as the writ petitioners in this judgment.  The other main parties are the  Competent Authority and the National Highways Authority of India (NHAI)  and they will be referred to as such in the judgment. The subject matter of these appeals is the compulsory acquisition of  certain lands belonging to the writ petitioners by the Central Government  vide Notification dated 11th June, 1998 under Section 3A of the National  Highways Act, 1956 (hereinafter referred to as the ’Act’).  The writ  petitioners challenged the acquisition of their lands on various grounds.  The  Division Bench of the High Court by its impugned judgment dated 7th April,  2004 disposed of the writ petition holding the impugned Notification  regarding compulsory acquisition of land to be bad in law.  However,  keeping in view the fact that possession of the acquired land had already  been taken by the authorities, the High Court felt that no useful purpose  would be served by quashing the Notification.  The High Court also took  note of the power of the acquiring authority to issue a fresh Notification for  acquisition of the land which could only lead to possible increase in the  amount of compensation payable to the owners. Keeping these aspects in  view it ordered that an additional amount of compensation be awarded to the   land owners.  Accordingly, an additional amount calculated at 30% over and  above the compensation already determined was ordered to be paid to the  writ petitioners.  The Competent authority is aggrieved of the order of the  High Court holding the Notification regarding the acquisition of the land to  be illegal, while the NHAI is aggrieved of the award of additional 30 per  cent amount as compensation to the Writ Petitioners.  The owners/writ  petitioners are aggrieved of the Notification not being quashed in spite of

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having been declared as illegal.         The acquisition of land in the present case is under the National  Highways Act, 1956.   The power to acquire land is contained in Section 3A  of the Act.  According to sub-section (1 ) where the Central Government is  satisfied that for a public purpose, any land is required for the building,  maintenance, management or operation of a national highway or part  thereof, it may, by notification in the Official Gazette, declare its intention to  acquire such land.  Sub-section (2) provides that every Notification under  sub-section (1) shall give a brief description of the land.  Under sub-section  (3) the Competent Authority is required to cause the substance of the  notification to be published in two local newspapers, one of which will be in  a vernacular language.  The impugned notification in this case is challenged  on the ground that it does not give a brief description of the land sought to  be compulsorily acquired.  There has been lot of argument on either side on  this aspect.  The Competent Authority and the NHAI have supported the  Notification urging that brief description of the land contained in the  Notification meets the requirement of the statute while according to the writ  petitioners it is not so.  A copy of the impugned Notification dated 11th June,  1993 has been placed on record.  As per the Notification, a brief description  of the land sought to be acquired is given in the Appendix to the  Notification.  In order to appreciate the rival contentions it is necessary to  reproduce some portions of the Appendix.    The GAZETTE OF INDIA EXTRAORDINARY ____________________________________________[PART II \026 SEC. 3 (iii]_ Brief description of land with or without  Structure falling within the proposed Right  of way in terms of Sub-Section (2) of  Section 3A of National Highways Laws  (Amendment) Act, 1997.                                                                         As per Appended \026  A

                                                       [No.RW/NH-15013/31/94-PL.]                                         A.D.NARAIN, Director General(Road Development                                                                                 & Addl. Secy .

APPENDIX \026 A to NOTIOFICATION No.                                     

BRIEF DESCRIPTION OF PRIVATE LAND WITH/WITHOUT STRUCTURE FALLING WITHIN PROPOSED RIGHT OF WAY OF SECOND VIVEKANANDA  BRIDGE & ITS APPROACHES IN NATIONAL HIGHWAY \026 2, WEST BENGAL. (Vide Sub-Section (2) of Section 3A of the NH Laws (Amendment) Act, 1997 Sl.     Dag No. Khaitan No.     Full Area       Land classification     Acquisition/Alienati on No.                    Old      New       (Acre)        as per BL & LR                       proposed_____                                                               Record              For        Area (Acre)   1          2           3              4               5                          6                             7           8                State \026 West Bengal, District \026 Howrah, Police Station \026 Bally, Mouza \026 Bally, J.L. - 14, Sheet \026 2.

1.      1020       1499          0      0.420               DANGA               Part         0.0150 2.      1021       1538          0      0.130               DANGA               Part         0.0900 3.      1448        7167         0      17.000              SUNA                Part         2.7500 4.      1449        7115         0      10.550              SUNA                Part         0.3800 5.      1659        3446         0      0.1800             DANGA                Part         0.1800 6.      1662        2162         0      0.070              BASTU                Part        

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0.0250 7.      1682        7167         0      6.250              SHALI                Part         4.0500                                                                                              0.4900 State \026 West Bengal, District \026 Howrah, Police Station \026 Bally, Mouza \026 Bally, J.L. \026 14, Sheet \026 4. _______________________________________________________________________________  1.      2920        7167         0      17.6500   SUNA          Part            0.1000 2.      2904        7167         0      0.4900            DANGA         Part            0.08 15 _______________________________________________________________________________                                                                                               8.6715 _______________________________________________________________________________  State \026 West Bengal, District \026 Howrah, Police Station \026 Bally, Mouza \026 Bally, J.L. \026 14, Sheet \026 10. _______________________________________________________________________________  1.      8602      1990           0      0.2790            BASTU         Part            0.00 10 2.      8603      1991           0      0.2080            BASTU         Part            0.16 20 3.      8604      1992           0      0.0670            UDBASTU               Part         0.0150 4.      8609      3532           0      0.0310            BASTU         Full            0.03 10 5.      8610      3532           0      0.5100            DANGA         Full            0.14 00 6.      8611      3532           0      0.0100            BASTU         Full            0.01 00 7.      8612      5373           0      0.0930          UDBASTU         Full            0.09 30 8.      8613      5373           0      0.1360            BASTU         Full            0.13 60 9,      8616      7113           0      0.1560            DANGA         Full            0.15 90 10.     8617      3579           0      0.0540            DANGA         Full            0.05 40 11.     8618      3579           0      0.0240            BASTU         Full            0.20 40 _______________________________________________________________________________                                                                                               9.4965

       The Appendix contains a long list of various portions of lands sought  to be acquired.  The list runs into more than 10 pages in the paper book.  We  have chosen to reproduce only a small portion of the Appendix in order to  appreciate the rival contentions of the learned counsel for the parties.  The  learned counsel for the writ petitioners submitted that the purpose of giving   a brief description of the land sought to be acquired is that the person whose  land is to be taken away, should at least know what he is being deprived of.   This becomes all the more necessary when only a part of the land out of a  bigger chunk of land is sought to be acquired.  A reference to the Tables  forming part of the Appendix, which according to the acquiring Authority  contain brief description of the land, will show that under various heads,  only part of bigger chunks of land is being acquired.  If the entire land  falling in a particular survey is acquired, there cannot be any problem of  identification of land.  But when only a part of land out of larger tract of land  is sought to be acquired, the question arises which part is going to be  acquired.  For instance in the first Table full area of land in Dag No.1448 at  Serial No.3 is 17 acres as per column 5.  Column 7 indicates that only a part  of the said 17 acres is being acquired and as per Column 8, the part which is  sought to be acquired is 2.7800 acres.  This means out of 17 acres only  2.7800 acres is being acquired.  The question will arise as to which side this

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part which is sought to be acquired is falling, it could be anywhere on the  northern, southern, western, eastern sides or in the centre.  How is one to  know which part is under acquisition?  Similar position emerges with  reference to other serial numbers where only part of larger chunks of land is  being acquired.   Such cases are several when we look at the entire Appendix  and the Tables forming part of it.  According to the learned counsel for the  writ petitioners, the absence of information as to which part of the land is  being acquired makes the description insufficient, rather vague.  The owners  are not in a position to identify the land under acquisition.  It also renders it  impossible to make claim regarding compensation for the land under  acquisition because it is a matter of common knowledge that in bigger tracts  of land, certain areas on a particular side are more valuable than the others.   The absence of proper description of land makes it impossible to file  objection against acquisition. For all these reasons it is argued on behalf of  the land owners that the statutory requirement of a brief description of land  is not fulfilled.  According to the Writ Petitioners non-compliance of sub- section (2) of Section 3A renders the Notification invalid and the same is  therefore, liable to be quashed.         The learned counsel appearing for the Competent Authority as also  the counsel for the NHAI have  tried to support the Notification.  According  to them, the requirement in sub-Section (2) of Section 3A of the Act is only  of giving a brief description of the land.  Brief description does not mean a  complete description. That would not be the intention of the statute.  An  acquisition Notification is only required to convey to the persons claiming  interest in the land about the intention of the Government to acquire a  particular land and the description given in the impugned Notification meets  that requirement.  The learned counsel appearing for the Competent  Authority had really no answer to the problem demonstrated above about  identification of land where only part of a larger chunk of land was being  acquired.  Faced with this difficulty and in an effort to ensure that the  impugned Notification is upheld, the learned counsel appearing for the  Competent Authority raised various subsidiary issues which according to  him are sufficient to non-suit the Writ Petitioners. They are : (1)     Delay on part of writ petitioners in challenging the Notification  under Section 3A(1); (2)     Failure to file objections under section 3C within twenty one days  as prescribed in sub-section (1); (3)     Applying for compensation for the acquired land giving full details  of the lands sought to be acquired which shows that land owners  knew all the details about the land under acquisition and the  objection regarding absence of proper description of land sought to  be acquired in the impugned Notification is not open to them; (4)     On failure of the land owners to file objections under Section 3C  (1), the Competent Authority submitted a report to the Central  Government and the Central Government  issued a declaration that  the land should be acquired for purposes mentioned in sub-section  (1).  On publication of this declaration the land vests absolutely in  the Central Government free from all encumbrances.  As per sub- section (2) of Section 3D, therefore, land having vested in the  Central Government the acquisition could not be challenged; (5)     The Competent Authority on vesting of the land in the Central  Government and on compensation amount being deposited by the  Competent Authority, has taken possession of the lands, therefore,  the acquisition could not be challenged; (6)     Lastly, it was submitted that these acquisitions were for very  important public purpose, i.e., construction of National Highway  and the court should not interfere with the acquisition on mere  technicalities. The land owners only have a right to compensation.   The quashing of the Notification would only lead to postponment  of the date of Notification thereby possibly resulting in increase in  amount of compensation payable to the land owners.  Therefore, at  best the land owners could be compensated by giving some  additional compensation for their acquired land.  The acquisition  need not be disturbed.

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So far as the question whether the impugned Notification meets the  requirement of Section 3A(1) of the Act regarding giving brief description of  land is concerned, we have already shown that even though plot numbers of   land in respect of each mouza are given, different pieces of land are acquired  either as  whole or in part.  Wherever the acquisition is of a portion of a  bigger piece of land, there is no description as to which portion was being  acquired.   Unless it is known as to which portion was to be acquired, the  petitioners would be unable to understand the impact of acquisition or to  raise any objection about user of the acquired land for the purposes specified  under the Act or to make a claim for compensation.  It is settled law that  where a statute requires a particular act to be done in a particular manner, the  act has to be done in that manner alone.  Every word of the statute has to be  given its due meaning.  In our view, the impugned notification fails to meet  the statutory mandate.  It is vague.  The least that is required in such cases is  that the acquisition notification should let the person whose land is sought to  be acquired know what he is going to lose.  The impugned notification in  this case is, therefore, not in accordance with the law. While dealing with the question of brief description of land in the  acquisition notifications, reference was made to some judgments of this  Court where acquisition Notifications under Section 4 of the Land  Acquisition Act had come up for consideration on account of challenge  being leveled on ground of vagueness of the Notifications.  In most of these  cases, Plan of the area under acquisition was made part of the notifications  to show that the requirement of description of land was met.  This lead us to  inquire whether there was any site plan forming part of the impugned  Notification. The availability of a Plan would have made all the difference. If there  is a Plan, the area under acquisition becomes identifiable immediately.  The  question  whether the impugned Notification meets the requirement of brief  description of land under Section 3A(2) goes to the root of the matter. The  High Court rightly observed : "\005.it is just not possible to proceed to  determine the necessity of acquisition of a particular plot of land without  preparation of a proper Plan."  The Appendix to the impugned Notification  shows that in many cases small parts of larger chunks of land have been  notified for acquisition.  This is not possible without preparing a Plan.  But  where is the Plan? The Notification in question makes no reference to any  Plan.  Our attention was drawn to averments in pleadings by Writ Petitioners  and replies thereto of the acquiring authority.  The Writ Petitioners have  pleaded that there was no Plan. Replies are vague and by way of rolled up  answers. There is no specific reply.  It is obvious that there was no Plan and  therefore none was referred to in pleadings nor any thing was produced  before Court at the hearing.  Learned counsel for the Competent Authority  tried to submit before us that there was a Plan at the time of issue of the  notification and the Writ Petitioners ought to have inspected it if they so  desired. He further submitted that the Plan was produced before the High  Court.  We find that both these submissions are not sustainable as they are  not correct.  A reference to the impugned Notification shows that there is no  mention of any Plan.  Without this how can anybody know that there was a  Plan which could be inspected and inspected where?  We are inclined to  accept that there was no Plan accompanying the impugned Notification.  During the course of hearing we were shown a Plan which we are unable to  link with the impugned Notification.  This was a 1996  P.W.D.Plan.  The  P.W.D. is a department of the State Government. The impugned Notification  is by the Central Government. The NHAI is established under a Central Act.  The Competent Authority under Section 3 of the Act is appointed by the  Central Government.  Therefore, this State Government Plan of 1996 (the  impugned Notification is of 1998) is of no assistance.  The impugned  judgment of the High Court emphasises the need for a Plan. It is clear from  the judgment of the High Court that no  Plan was produced before it. The  absence of any reference to a Plan in the impugned Notification and in fact  non-availability of any Plan linked to the Notification, fortifies the argument  that the description of the land under acquisition in the impugned  Notification fails to meet the legal requirement of a brief description of the  land which renders the Notification invalid.

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The absence of plan also renders the right to file objections under  Section 3C(1) nugatory.  In the absence of a Plan, it is impossible to  ascertain or know which part of acquired land was to be used and in what  manner.  Without this knowledge no objections regarding use of land could  be filed.  Since the objection regarding use of the land had been given up by  the writ petitioners, we need not go any further in this aspect.  We would,  however, like to add that unlike Section 5A of the Land Acquisition  Act,1894 which confers a general right to object to acquisition of land under  Section 4 of the said Act, Section 3C(1) of the National Highways Act gives  a very limited right to object.  The objection can be only to the use of the  land under acquisition for purposes other than those under sub-section  3A(1).  The Act confers no right to object to acquisition as such.  This  answers the argument advanced by the learned counsel for the NHAI that  failure to file objections disentitles Writ Petitioners to object to the  acquisition. The Act confers no general right to object, therefore, failure to  object becomes irrelevant.  The learned counsel relied on the judgment of  this court in Delhi Administration vs. Gurdip Singh Uban & Others          [(1999) 7 SCC 44].  In our view, this judgment has no application in the  facts of the present case where right to object is a very limited right. The  case cited is a case under the Land Acquisition Act, 1894 which confers a  general right to object to acquisition of land under Section 5A. Failure to  exercise that right could be said to be acquiescence.  The National Highways  Act confers no such right.  Under this Act there is no right to object to  acquisition of land except on the question of its user.  Therefore, the present  objection has to be decided independently of the right to file objections.  De  hors the right to file objection, the validity of the Notification has to be  considered.  Failure to file objection to the notification under Section 3C,  therefore, cannot non-suit the Writ Petitioners in this case.  The learned counsel supporting the acquisition submitted that the  delay in filing the Writ Petition is fatal to the case of land owners.  It is true  that 11th June, 1998 Notification was challenged only in September, 2001 by  filing the Writ Petition.  But if the Notification violates the very statute from  which it derives its force, will delay in challenging it clothe it with  legitimacy?  The Act requires the Notification to be issued in a particular  manner with brief particulars of land being acquired.   The Notification in  this case fails to meet this requirement.  We have held it to be bad in law.  It  has no legs to stand.  The conduct of the opposite party cannot be used to  make it stand. Moreover, the Writ Petitioners have explained the reasons for  the delay in filing the Writ Petition.  The Company which owns the lands  had been de-registered.  It is a Company registered in the U.K.  It had to be  revived.  Revival came in mid-2001 whereafter the action was taken.    Thus  we find no merit in the argument about delay in challenging the Notification  rendering the challenge liable to be rejected.        Coming to the point regarding filing of claim for compensation on  behalf of the Company by its General Manager with complete details of the  land under acquisition, we must note that at the relevant time in 1998 and  thereafter till 2001, the Writ Petitioner Company had no existence.  On  account of demands of workers of the factory and to meet other statutory  demands, a committee was appointed by the High Court in the winding up  proceedings pending before it to run the factory. The claim for compensation  was filed by somebody as the General Manager of the Company.  He had no  authority to do so.  The committee had to manage only the factory and had  nothing to do with ownership issues. So far as details of land under  acquisition contained in the claim is concerned, it is based on material  contained in the impugned Notification and the Appendix.  Filing of such a  claim by somebody who had no authority to do so, cannot deprive the  owners of their right to challenge the acquisition of the lands owned by the  Company.  Therefore, neither delay in filing the Writ Petition nor filing of  claim for compensation can stand in the way of the Writ Petitioners in  seeking relief in these proceedings.

About the argument based on vesting of the land in the Central  Government, it is to be seen that if the initial Notification is bad, all steps  taken in pursuance thereof will fall with it.  Vesting under Section 3D(2)  arises on a declaration by the Central Government under Section 3D(1).The

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declaration is the result of disposal of objections under Section 3C.  Each  step is a consequence of earlier step and in that sense all the steps are linked  to initial Notification for acquisition under Section 3A(1) and (2).  This  initial Notification has been held to be not in accordance with law.  When  the foundation goes rest of the edifice falls. The invalid Notification under  Section 3(A) renders all subsequent steps invalid.  Therefore, vesting of land  in the Central Government in the present case cannot be said to be lawful  and it does not advance the case of the Competent Authority or the NHAI.   Taking possession of the land is yet another step in the same sequence and is  again subject to the initial Notification being held valid.  The initial  Notification having been invalidated, there can be no legal or valid vesting  of land in the favour of the Central Government.  

The aspect of possession of land having been taken by the Competent  Authority, is an important issue for consideration in this case.  Vesting of  land in the Central Government has been held to be not in accordance with  the law.  The other statutory requirement which needs to be complied before  taking possession is deposit of compensation.  Under Section 3E(1)  possession can be taken only after the land vests in the Central Government  and the amount determined by the Competent Authority as compensation  under Section 3G has been deposited under sub-section (1) of Section 3H.   In the present case in view of an order dated 3rd April,2002 passed by the  High Court  final compensation could not be determined by the competent  Authority.  Therefore, there could not be a valid deposit of amount finally  determined as required under Section 3E(1) of the Act, which means the  possession could not have been taken. But the fact is that possession was  taken on 19th February, 2003 on deposit of provisional amount of  compensation.  The NHAI had in fact applied for permission of court to take  possession of the land under acquisition. But without any order being passed  on that application, it hastened to take possession after giving only one day’s  notice when the Act requires 60 days notice. Moreover, the possession is to  be taken through the Commissioner of Police or the Collector. This was not  done.  Neither of the three statutory requirements for taking possession were  fulfilled.  Thus taking of possession of the lands in the present case is in total  violation of the statutory provisions.  The learned counsel for the acquiring  authority submits that possession was taken on basis of oral observations of  the court.  This is a totally misconceived plea.  Court orders are always in  black and white.  Oral orders are never passed.  Moreover, this plea is wrong  because the Division Bench observed in its order dated 27th March,2003 that  it never dealt with question of possession.  The result is that taking  possession of the land sought to be acquired cannot be said to be in  accordance with law in this case and does not improve matters for the  NHAI. At this stage we would like to note that the learned counsel appearing  for the writ petitioners made reference to a publication in the nature of a  brochure issued by the West Bengal Government wherein it is mentioned  that motels/shops/petrol pumps etc. will also come up in the area where the  acquired land is situate.  On this basis it was sought to be argued that such  use of the acquired land would be contrary to the use mentioned in Section  3A of the Act and, therefore, is not permissible.  There was lot of  controversy on this aspect between the parties particularly, on the ground  that this plea was being taken at this belated stage when the respondents had  no opportunity to give a proper reply thereto.  We have mentioned this only  for the reason that the issue has come up during the course of hearing.  We  do not consider it necessary to go into this aspect, in view of the fact that we  have held in this judgment that the basic acquisition notification itself is not  in accordance with law.

Having held that the impugned notification regarding acquisition of  land is invalid because it fails to meet the statutory requirements and also  having found that  taking possession of the land of the writ petitioners in the  present case in pursuance of the said notification was not in accordance with  law, the question arises as to what relief can be granted to the petitioners.   The High Court rightly observed  that the acquisition of land in the present  case was for a project of great national importance, i.e. the construction of a

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national highway.   The construction of national highway on the acquired  land has already been completed as informed to us during the course of  hearing.  No useful purpose will be served by quashing the impugned  notification at this stage.  We cannot be unmindful of the legal position that  the acquiring authority can always issue a fresh notification for acquisition  of the land in the event of the impugned notification being quashed.  The  consequence of this will only be that keeping in view the rising trend in  prices of land, the amount of compensation payable to the land owners may  be more.  Therefore, the ultimate question will be about the quantum of  compensation payable to the land owners.  Quashing of the notification at  this stage will give rise to several difficulties and practical problems.   Balancing the rights of the petitioners as against the problems involved in  quashing the impugned notification, we are of the view that a better course  will be to compensate the land owners, that is, writ petitioners appropriately  for what they have been deprived of.  Interests of justice persuade us to  adopt this course of action.

Normally, compensation is determined as per the market price of land  on the date of issuance of the notification regarding acquisition of land.   There are precedents by way of judgments of this Court where in similar  situations instead of quashing the impugned notification, this Court shifted  the date of the notification so that the land owners are adequately  compensated.  Reference may be made to:

(a) Ujjain Vikas Pradhikaran v. Rajkumar Johri and others [1992 (1)SCC 328] (b) Gauri Shankar Gaur & Ors. v. State of UP & Ors.  [1994 (1) SCC 92] (c) Haji Saeed Khan & Ors. v. State of UP & Ors. [2001 (9) SCC 513]

In that direction the next step is what should be the crucial date in the facts  of the present case for determining the quantum of compensation.  We feel  that the relevant date in the present case ought to be the date when  possession of the land was taken by the respondents from the writ  petitioners.  This date admittedly is 19th February, 2003.  We, therefore,  direct that compensation payable to the writ petitioners be determined as on  19th February, 2003, the date on which they were deprived of possession of  their lands.  We do not quash the impugned notification in order not to  disturb what has already taken place by way of use of the acquired land for  construction of the national highway.  We direct that the compensation for  the acquired land be determined as on 19th February, 2003 expeditiously and  within ten weeks from today and the amount of compensation so  determined, be paid to the writ petitioners after adjusting the amount already  paid by way of compensation within eight weeks thereafter.  The claim of  interest on the amount of compensation so determined is to be decided in  accordance with law by the appropriate authority.  We express no opinion  about other statutory rights, if any, available to the parties in this behalf and  the parties will be free to exercise the same, if available.  The compensation  as determined by us under this order along with other benefits, which the  respondents give to parties whose lands are acquired under the Act should be  given to the Writ Petitioners along with what has been directed by us in this  judgment.

       Accordingly appeals filed by the Competent Authority (arising out of  SLP (C)No.16820 of 2004) and the National Highways Authority of India  (arising out of SLP (C) Nos.17874-17875 of 2004 are hereby dismissed  while the appeal filed by Ridh Karan Rakecha & Anr. (arising out of SLP(C)  No.18773 of 2004) is allowed in terms of the above judgment.  There shall  be no order as to costs.