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CASE NO.: Appeal (civil)  940 of 2006

PETITIONER: Milk Producers Association, Orissa & Ors.

RESPONDENT: State of Orissa & Ors.

DATE OF JUDGMENT: 02/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [@ Special Leave Petition (Civil) Nos. 16362-16363 of 2004]

S.B. SINHA, J :

       Leave granted in all the SLPs.

       The Appellants herein carry on business in milk.  They have  admittedly encroached upon government lands in the town of Bhubaneswar.   The State of Orissa intended to evict them.  The Chief Minister of the State  of Orissa evolved a scheme allegedly for their rehabilitation.  The villages  selected for carrying out such rehabilitation job were not found to be suitable  therefor.  As they are sought to be evicted without offering them alternative  plots, the Appellants filed writ petitions before the Orissa High Court.  In the  writ petitions it was inter alia averred: "4. That since most of these Petitioners belong to the  poorer strata of the society, their rehabilitation have  engaged attention of the authorities at the highest level  since the year 1987.  In a meeting held on 1.6.87 under  the Chairmanship of the Chief Secretary, it was decided  that sites for such rehabilitation of Gowalas operating  within Bhubaneswar city shall be selected by a  committee consisting of Director of Veterinary Services;  representatives of OMFED; A.D.M., Bhubaneswar;  S.D.O., Bhubaneswar and representative of Bhubaneswar  Development Authority.  The minutes of the meeting  held on 1.6.87 was sent to Chief Secretary, Secretary,  Finance Department, Special Secretary, General  Administration Department, Secretary, Forest and  Animal Husbandary Department, Secretary, Revenue  Department, Secretary, Housing and Urban Development  Department, Vice-Chairman, Bhubaneswar Development  Authority etc; vide letter no. 9838/CA, dated 14.7.87 by  the Joint Secretary to Government in the Department of  General Administration, Govt. of Orissa and Ex-officio  Director of Estates.

5. That as per the decision of the High Power Committee,  the site selection committee met on 11.6.87 and  recommended that the milkmen/ private milk producers  like Petitioners No. 2 to 240 be settled at Pratap Sasan,  Tulsadeipur and Jamukoli.

6. That during 1989, the Government gave press  statements to the effect that the Government had  formulated scheme of rehabilitation, which is as follows: (a)     Allotment of Govt. land measuring 40 x 30 free of  premium.

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(b)     Payment of disturbance allowance of Rs. 500/-.

(c)     Payment of construction assistance of Rs. 3,000/-  in two instalments for construction of dwelling house at  the new site. (d)     Free Transportation of personal belonging of each  Gowalla family.

(e)     Provision of drinking water at the new site.

(f)     Opening of fair price shop at the new site for sale  of essential commodities.

(g)     Opening of a fodder sale centre.

(h)     Collection of milk by OMFED form the Goallas  who want to sell milk to it at the new site.

(i)     Medical and Educational facilities at the new  site\005

7.      That despite all these exercise nothing has been  done in the matter.  Later on the Petitioners understand  that vide letter No. Misc-BP-126/93 2240/BP/BDA  Bhubaneswar, 7.4.94, the Advisor-cum-Planning  Member wrote to Director of Estates that the site at  Pandara seems to be the best suited for the purpose of  rehabilitation because of the availability of water near by  and open spaces for cattle movement.  In return the  Director of Estates vide letter dated 3.9.94 intimated to  Vice-Chairman, Bhubaneswar Development Authority  that Government have already decided to rehabilitate the  Gowallas in Mouza Pandara, Gakana, Patrapada, and  Jokalandi.  The Director of Estates requested the  Bhubaneswar Development Authority to carve out plots  in the above area for the purpose of rehabilitation of  Gowalas.  Thus, though the Government unilaterally  changed the sites selected for rehabilitation, the  Petitioners welcomed such action of the Government\005

8.      That pursuant to request under Annexure-2, the  Advisor cum Planning member of Bhubaneswar  Development Authority vide letter No.  5615/B/BDA/Misc-BP-176/93 Bhubaneswar, the 5.10.94  intimated the Director of Estates that as desired the  layout plans of the concerned land in mouza Gadakana,  Pandara, Patrapada and Joklandi have been prepared after  determination of the optimum plot size required for a  Gowala family.  The plot size determined was 30’ x 60’.   The said letter also made it clear that each plot would  accommodate a shed of 11 to 12 cows, a residential unit  with a plinth area of 484 sq. ft. and space for cow dung  dumping and Gobar Gas Plant.  Copy of the letter dated  5.10.94 is in the custody of Director of Estates.   Ultimately, 432 plots have been carved out during 195  for allotment to the Gowalas at villages, Garkana,  Pandara, Patrapanda and Jokalandi\005

9.      That the Petitioners understand that on 2.9.95, the  director of Estates held further meeting in the presence of  planning member of Bhubaneswar Development  Authority, officer of Bhubaneswar Municipal  Corporation, Orissa State Housing Board for immediate  rehabilitation of Gowalas.  Though in the said meeting a

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decision was taken to rehabilitate the Gowalas of  Bhubaneswar immediately at Pandara, Gadakana,  Jokalandi and Patrapada, till date nothing has been done  in the matter."

       The said statements were not denied and disputed in the counter  affidavit, as would appear from paragraph 7 thereof which is as follows:

"That with regard to the averments made in para \026 4 to 9,  it is submitted that rehabilitation scheme has received for  active consideration of Gowallas, it is submitted that  present Milk Producers Association and Utkal Jadev  Mahasangha have prayed for their rehabilitation.  In the  meeting held on 2.9.1995, the Members of Milk  Producers Association have expressed that if they are  rehabilitated in Village Pandaras, they will have no  objection.  In the meantime, Government have taken a  decision to rehabilitate the Petitioners in Pandara Mouza  and accordingly land measuring an area of AC. 28.180  dec. has been identified for the said purpose.   Accordingly, B.D.A. has prepared a plan and  Government have decided to allot 25X40’ size plots to  the Petitioners/ Gowallas and they shall have to pay  premium on the prevailing rate fixed by the Government.   If these lands in village Pandara is not found to be  sufficient few plots can be allotted in village Patrapada,  Jamukoli and Jokalandi for their rehabilitation."

       The Appellants before us raised a contention that they are not averse  in moving out of the town of Bhubaneswar but they should be provided with  alternative accommodation in terms of the rehabilitation scheme wherefor  they are ready and willing to pay the market value for the plot which may be  allotted.  The contention of the Respondent, on the other hand, is that having  regard to the provisions contained in the Orissa Municipal Corporation Act,  2003 and in view of the Master Plan, the Appellants must vacate the lands  possessed by them.  Further contention of the State is that keeping in view of  the changed situation, a policy decision had been taken that for hygienic and  other reasons, it is not possible to rehabilitate them in the villages which  come within the purview of the planned area of Bhubaneswar.  It was stated  that the members of the Appellant No. 1 Association are not poor and in  view of the averments made by them in the petition for special leave that  they produce and supply about 10,000 litres of milk to the residents of  Bhubaneswar, their average family income would be about Rs. 1,85,950/-  after deducting 50% of the total income towards establishment and  maintenance charges and some of them have their own lands and houses in  the town of Bhubaneswar.

       Mr. B.A. Mohanti, learned senior counsel appearing on behalf of the  Appellants would submit that keeping in view the fact that the State of  Orissa had come out with a policy decision that on their eviction the  Appellants would be rehabilitated, there is absolutely no reason as to why  such policy decision should not be adhered to.  It was submitted that before  the High Court, even it was not contended by the State that the said policy  decision had become unworkable and it is in that view of the matter, the  High Court made the following observation:

"\005Let the State Government take appropriate steps for  rehabilitation of the gowallas of Bhubaneswar City.  It is  open for the Government to take up rehabilitation but that  cannot be a condition precedent for the eviction of the  Petitioners.  It is also open for the Government to  proceed with eviction of the gowallas in accordance with  law."

       According to the learned counsel, it is against only that portion of the

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judgment of the High Court, the Appellants are before us.

       Mr. Janaranjan Das, learned counsel appearing on behalf of the  Respondents, on the other hand, argued that if the Chief Minister was the  author of the earlier policy decision, he  has resiled therefrom as would  appear from a notesheet dated 18.10.2005.

       Mr. Das would contend that as the members of the Appellant No. 1  Association are not poor people, they do not deserve any sympathy.

       Furthermore, it was urged that in view of the amendments in the  Orissa Municipal Corporation Act, it is now impermissible to keep cattle  within the town of Bhubaneswar.  It is no doubt true that the Chief Minister  of the State of Orissa in view of the representations made before him took a  policy decision that the members of the Appellant No. 1 Association would  be rehabilitated in certain villages and in particular, villages of Pandara,  Patrapada, Gadakana and Jokalandi; but it was later on detected that all the  aforementioned villages are within the Master Plan since 1982.  Before the  Chief Minister, admittedly a notesheet was produced wherein it was inter  alia stated:

"(c) In the area identified in Mouza-Pandara measuring  Ac. 16.120 dec., there have been many encroachments  besides as mentioned at Para 4(e) of P. 25/N an area of  Ac. 4,084 dec. out of this area is subjudice vide OJC No.  13516 of 2001 (Laxmidhar Bhoi and others Vs. State of  Orissa).

(d) Orissa Municipal Corporation Act, 2003 has been  enacted which prohibits keeping of animals in the  premises so as to be nuisance or danger to any persons  besides having other stringent conditions with regard to  keeping the cows and buffalos within the city limits of  Bhubaneswar."

       Mr. Das submitted that in view of the fact that these plots were not  free from encroachment and other litigations, rehabilitation of Gowallas  according to the said notesheet became an impractical proposition for the  reasons stated therein.  

       Before, we advert to the rival contentions raised by the parties, we  may state that a xerox copy of the said notesheet was directed to be handed  over to the learned counsel for the petitioner and the entire records were  allowed to be inspected.  The Appellants upon inspection of the said record  have filed an affidavit contending that no decision had been taken by the  State as yet to resile from the earlier policy decision and merely a decision  had been taken to affirm an affidavit before this Court to the effect that it is  not possible to rehabilitate the members of the Appellant No. 1 Association.   

       Paragraphs 8 (a), 8(d), 8(e), 8(f), 9 and 10 of the said notesheet read as  under: "(a) Bhubaneswar is rapidly growing city with the BDA  projection of a population of 8.5 lakhs in the year 2005.   The health and traffic hazards caused by Gowallas needs  to be stopped.  The new Orissa Municipal Corporation  Act, 2003 has specific and stringent provisions in this  regard.

(d) Rehabilitation of Gowallas within the master plan of  Bhubaneswar will be against the spirit of the Orissa  Municipal Corporation Act, 2003 as well as other  environmental laws.

(e) No villages outside the Master Plan area have been  located or identified nor feasibility of the same has been

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conducted keeping in view the availability of  Government land.

(f) There is also an issue of providing a non- discriminatory treatment in the matter of rehabilitation.   At no stage, the Government has prepared the full plan  for rehabilitation of all Gowallas nor has it been found to  be feasible.  On the other hand, encroachments in the  name of "Gowallas" have been growing in the  Bhubaneswar city as is evident from the SLP itself.  For  instance, the petitioner has mentioned in the SLP that  there are 1000 families who will be affected.  While it is  not possible to confirm these numbers without a survey,  it is clear that the problem of Gowallas in the  Bhubaneswar city has further grown as in 1994, 686 such  ’Gowallas’ were identified.  There have been many  decisions by Hon’ble High Court as well as by the  Supreme Court, where it has been held that there should  not be on any premium on encroachment.  For instance,  in OJC 2312/89 of High Court of Orissa have passed an  order in which the Hon’ble Court clearly ordered "the  rehabilitation scheme is neither requirement of law nor a  mandatory condition precedent for eviction of  encroachers or unauthorized occupations of Government  land".

9. In view of the above reasons, it may be appropriate if  the Government reviews its earlier decision with regard  to rehabilitation of Gowallas in Village \026 Pandara, which  is within the Bhubaneswar Municipal Corporation area in  view of the difficulties involved not only in practical  implementation but also because of with new stringent  requirements which have come up under Orissa  Municipal Corporation Act 2003 subsequent to the earlier  decision of the Government in 2002.

10. The occupation of cattle-rearing and is best served in  rural areas, as it requires availability of land, water  ponds, free movement space and other linkages with  agriculture.  In urban areas the density of population is  growing and the traffic problems are acute, this  occupation becomes a public nuisance and health and  traffic hazard.  The supply of milk to Bhubaneswar is  adequate.  People in urban areas buy milk in hygienic  conditions, Government has separately promoted big  dairying activity in rural areas with adequate investment  on chilling and pasteurization plants from where city gets  its supply of milk easily without any difficulties.  The  Gowallas, who wish to carry out their occupation move  to the rural areas and supply milk through linkages  already established.  The Department of Animal  Husbandry is of the similar view which is reflected in  their affidavit."

       Indisputably, the said proposal found favour with the Chief Minister  and pursuant to or in furtherance thereof, an affidavit has been filed before  us on behalf of the State of Orissa wherein it has been stated:

"5. A rehabilitation programme for Gowallas under the  present circumstances is not found to be feasible.  The  earlier Government attempt to carve out plots for only a  few of the petitioners could not succeed due to reasons  mentioned at Para 3 above.  On the other hand,  encroachments in the name of "Gowallas" have been  growing in Bhubaneswar city as is evident from the

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Special Leave Petition itself.  For instance, the petitioners  have mentioned in the Special Leave Petition that there  are 1000 milkmen families who will be affected.   Although it is not possible to confirm or rebut these  numbers without a survey, it is clear that the problem of  encroachments by Gowallas in the Bhubaneswar city has  only grown.  In 1994, for instance, only 686 such  ’Gowalla families’ were identified in a survey.

7.      That occupation of cattle rearing will be best suited  for rural areas, as it requires availability of land, water  ponds, free movement space and other linkages with  agriculture.  In urban areas, where the density of  population is high and traffic problems are acute, this  occupation becomes a public nuisance and health and  traffic hazard.  The supply of milk to Bhubaneswar is  adequate.  People in urban areas buy milk in hygienic  conditions, Government has separately promoted big  dairying activity in rural areas with adequate investment  on chilling and pasteurization plants from where city gets  its supply of milk easily without any difficulties.  The  Gowallas, who wish to carry out their occupation, should  make their own arrangements to shift to rural areas on  their own and supply milk through linkages already  established.  Due to the fact and circumstances submitted in the  foregoing paragraphs, the Government does not intend to  rehabilitate Gowallas who have been encroaching Public  land."

       It has further been contended that encroachments by Gowallas also  pose health and traffic hazards for the residents of Bhubaneswar and in view  of the fact that other encroachers had also started seeking for rehabilitation  package, the State cannot have special programme for rehabilitation for one  class of encroachers and not for others.  From the records, it further  transpires that the Orissa State Cooperative Milk Producers’ Federation  Limited (OMFED) had come into being.  It is also in a position to satisfy the  need of milk to the residents of town of Bhubanewsar.  OMFED is prepared  to collect milk from Gowallas if they become member of the nearest Milk  Producing Society / District Milk Producers Union affiliated to it and if they  move out of the town of Bhubaneswar, there cannot be any problem to  provide feed and fodder along with medical facility for the cattle through the  existing infrastructure available in the close proximity of the area.  It has  further been brought on record that all milkmen are economically sound  stating:

"\005As admitted by the petitioners in the present Special  Leave Petition, per day milk production is about 50000  litres and as per survey of General Administration  Department, Government of Orissa about 687 nos. of  Gowallas families are residing in Bhubaneswar City.  So  income per annum of each family comes out to about Rs.  3,71,910.00 (50,000 Lts./687 families x 365 x Rs. 14.00  per litre).  Deducting 50% out of the total income  towards establishment & maintenance charges, net  annual income per family comes to around 1,85,950.00.   So it cannot be admitted that all Gowallas are  economically poor.  On the other hand, it is brought to  the kind notice of this Hon’ble Court that about 30  Gowalla families are quite rich and now own their own  land and building in Bhubaneswar city."

       The State has enacted Orissa Municipal Corporation Act in the year  2003, the relevant provisions whereof are as under:

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"409. (1) No person shall tether any animal in any public  street.

(2) Any animal tethered as aforesaid may be removed by  the Commissioner, or by any Corporation Officer or  employees and made over to a police officer or may be  removed by a police officer, who shall deal therewith as  with an animal found straying."

"543. (1) No person shall \026  

(a)     without the written permission of the  Commissioner or otherwise than in conformity with the  terms of such permission, keep any swine in any part of  the city;

(b)     keep any animal on his premises so as to be a  nuisance or danger to any person; and  

(c)     feed any animals, or suffer or permit any animal,  to be fed, or to feed with or upon excrementitious matter,  dung, stable refuse or other filthy matter."

"548. No person shall \026  

(a)     steep in any tank, reservoir, steam, well or ditch,  any animal, vegetable or mineral matter which will likely  to render the water thereof offensive or dangerous to  health;

(b)     while suffering from any contagious, infectious or  loath some disease, bathe on, in or near any bathing  platform, lake tank, reservoir, fountain, duct, standpipe,  stream or well."

       The said Act also contains a penal provision in the following terms:

"652. Whoever, in any case in which a penalty is not  expressly provided by this Act, fails to comply with any  notice or order or requisition issued under any provisions  thereof, or otherwise contravenes any of the provisions of  this Act, shall be punishable with fine which may extend  to one thousand rupees, and in the case of a continuing  failure or contravention, with an additional fine which  may extend to one hundred rupees for every day after the  first during which he has persisted in such failure or  contravention."

       Bhubaneswar is the capital of the State of Orissa.  As stated in the  affidavits filed on behalf of the State, several steps had been undertaken for  for attracting more tourists.  The statute also prohibits maintenance of  cowsheds or dairies in or around the town of Bhubanewsar.  The Master  Plan of Bhubanewsar prepared as far back in 1982 is in force.  Within its  ambit not only the town of Bhubanewsar, but several other villages come.  In  civic society, Town planning indisputably plays an important role.   Unauthorised occupation by the encroachers in the areas which are meant for  planned development goes a long way in thwarting the goals sought to be  achieved by such town planning.   

       The question came up for consideration, in Friends Colony  Development Committee v. State of Orissa and Others [(2004) 8 SCC 733]  wherein this Court observed:

"In all developed and developing countries there is  emphasis on planned development of cities which is

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sought to be achieved by zoning, planning and regulating  building construction activity. Such planning, though  highly complex, is a matter based on scientific research,  study and experience leading to rationalisation of laws by  way of legislative enactments and rules and regulations  framed thereunder. Zoning and planning do result in  hardship to individual property owners as their freedom  to use their property in the way they like, is subjected to  regulation and control. The private owners are to some  extent prevented from making the most profitable use of  their property. But for this reason alone the controlling  regulations cannot be termed as arbitrary or  unreasonable. The private interest stands subordinated to  the public good. It can be stated in a way that power to  plan development of city and to regulate the building  activity therein flows from the police power of the State.  The exercise of such governmental power is justified on  account of it being reasonably necessary for the public  health, safety, morals or general welfare and ecological  considerations; though an unnecessary or unreasonable  intermeddling with the private ownership of the property  may not be justified.         The municipal laws regulating the building  construction activity may provide for regulations as to  floor area, the number of floors, the extent of height rise  and the nature of use to which a built-up property may be  subjected in any particular area. The individuals as  property owners have to pay some price for securing  peace, good order, dignity, protection and comfort and  safety of the community. Not only filth, stench and  unhealthy places have to be eliminated, but the layout  helps in achieving family values, youth values, seclusion  and clean air to make the locality a better place to live.  Building regulations also help in reduction or elimination  of fire hazards, the avoidance of traffic dangers and the  lessening of prevention of traffic congestion in the streets  and roads. Zoning and building regulations are also  legitimised from the point of view of the control of  community development, the prevention of overcrowding  of land, the furnishing of recreational facilities like parks  and playgrounds and the availability of adequate water,  sewerage and other governmental or utility services."

       Yet again in N.D. Jayal and Another v. Union of India and Others  [(2004) 9 SCC 362], a 3-Judge Bench of this Court noticed that several  factors including flora and fauna, water quality maintenance and impact on  health and rehabilitation are relevant factors for the purpose of maintenance  of ecology.  Emphasising the need of adherence to sustainable development  principle for the maintenance of the symbiotic balance between the rights to  environment and development, it was observed:

"Right to environment is a fundamental right. On the  other hand, right to development is also one. Here the  right to "sustainable development" cannot be singled out.  Therefore, the concept of "sustainable development" is to  be treated as an integral part of "life" under Article 21.  Weighty concepts like intergenerational equity (State of  H.P. v. Ganesh Wood Products), public trust doctrine  (M.C. Mehta v. Kamal Nath) and precautionary principle  (Vellore Citizens), which we declared as inseparable  ingredients of our environmental jurisprudence, could  only be nurtured by ensuring sustainable development."

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       This Court highlighted the necessity of strict compliance of the  provisions of the Environmental Protection Act, 1986 stating:

"Thus the power under the Act cannot be treated as a  power simpliciter, but it is a power coupled with duty. It  is the duty of the State to make sure the fulfilment of  conditions or direction under the Act. Without strict  compliance, right to environment under Article 21 could  not be guaranteed and the purpose of the Act will also be  defeated. The commitment to the conditions thereof is an  obligation both under Article 21 and under the Act."

       We have noticed hereinbefore that the provisions of the Orissa  Municipal Corporation Act also aim at maintenance of health and hygienic  amongst the residents of the town of Bhubaneswar.

       In Sushanta Tagore and Others v. Union of India and Others  [(2005)  3 SCC 16], this Court was concerned with interpretation of the provisions of  Visva-Bharati Act, 1951 which was enacted to preserve and protect the  uniqueness, tradition and special features of Visva-Bharati University.   Therein, this Court opined: "It may be true that the development of a town is the job  of the Town Planning Authority but the same should  conform to the requirements of law. Development must  be sustainable in nature. A land use plan should be  prepared not only having regard to the provisions  contained in the 1979 Act and the Rules and Regulations  framed thereunder but also the provisions of other  statutes enacted therefor and in particular those for  protection and preservation of ecology and environment.  

As Visva-Bharati has the unique distinction of  being not only a university of national importance but  also a unitary one, SSDA should be well advised to keep  in mind the provisions of the Act, the object and purpose  for which it has been enacted as also the report of the  West Bengal Pollution Control Board. It is sui generis."

       Mr. Mohanti may be right in his contention that by reason of such  notesheet dated 18.10.2005 alone no policy decision was laid down but  evidently thereby earlier policy decision was resiled from.  Mr. Das has  placed before us the entire records.  As indicated hereinbefore, the said  records were made available to the Appellants for inspection.  It is neither in  doubt nor in dispute that it was the Chief Minister himself who thought of  rehabilitating the members of the Appellant No. 1 Association in the year  1994-95.

       Rightly or wrongly, the same has not been given effect to.  The State,  furthermore, proceeded on a mistaken notion that the villages named therein  are outside the Master Plan and that the rehabilitation programme could be  carried out in the said villages.  The said villages, apart from being subjected  to encroachments and other litigations being within the Master Plan of  Bhubaneswar, no rehabilitation programme could be carried out.  No policy  decision has been brought to our notice as such which could give rise to a  legal right in the Appellants.  No notification in terms of Article 162 of the  Constitution of India had been issued.  The assurance on behalf of the  Government came from the notesheet approved by the Chief Minister and on  the basis whereof the State took a stand in its affidavit before the High  Court.  Evidently, the matter has been considered afresh and the same had  been brought to the notice of the Chief Minister.  He having agreed thereto,  must be held to have expressly resiled from the earlier promise, if any.   Furthermore, even an executive action on the part of the State must give way  to the statutory scheme.  As by reason of the Orissa Municipal Corporation  Act, within the periphery of the town, dairies or cowsheds cannot be

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maintained, the State would not be entitled to adhere to its earlier plan of  rehabilitating them in the villages mentioned therein.

       It may be true that the members of the Appellant No. 1 Association  were to pay for the plot.  But, only because they are aggreable to pay for the  plot which may be allotted to them, that by itself in our considered view  would not clothe them with the legal right to be rehabilitated.  There does  not exist any legal concept which confers a legal right upon an encroacher to  be rehabilitated.  The matter may be different where the State comes out  with a policy decision which meets the constitutional scheme as envisaged  under Article 162 of the Constitution of India.  In the instant case, we have  noticed that the Appellants have failed to show the existence of any such  scheme, which can be said to be irretrievable in nature.  In view of the 2003  Act, even the doctrine of Promissory Estoppel will have no application.   

       For the reasons aforementioned, we are of the opinion that the High  Court has not committed any illegality in passing the impugned judgment  warranting interference by us with the directions of the High Court that the  State would be entitled to proceed to evict the Appellants in accordance with  law.  The appeals, for the forgoing reasons, are dismissed.  However, in the  facts and circumstances of this case, there shall be no order as to costs.