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CASE NO.: Appeal (civil)  8015 of 2002

PETITIONER: SARASWAT CO-OP. BANK LTD. & ANR

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT: 17/08/2006

BENCH: B.P. Singh & Altamas Kabir

JUDGMENT: J U D G M E N T WITH C.A.Nos.8016/2002, 6017/2004, 7594/2004, 1825/2005, 6016/2004, 4830-4831/2005, 4828/2005 AND W.P. ) No. 164/2003.

ALTAMAS KABIR, J.         Having regard to the existence of different  rent  control laws  in the State  of Maharashtra, The  Maharashtra Rent Control Act, 1999, (hereinafter  referred to as "the  1999 Act")  was enacted  to unify,  consolidate and amend  the law relating to the  control of  rents and repairs of certain premises and of  eviction and  for encouraging the construction of new houses by  assuring a fair  return on the investment by landlords  and to  provide for   matters connected with the said  purposes.  The said Act came into force on 31st March,  2000, and repealed the existing Bombay Rents, Hotel and  Lodging  House Rates Control Act, 1947,  the Central  Provinces and Berar Regulation of Letting of  Accommodation Act, 1946, including the Central  Provinces and Berar Letting of Houses and Rent Control  Order, 1949; and the Hyderabad Houses (Rent, Eviction  and Lease) Control Act, 1954.  With a view to achieving   the objects for which the  Act was enacted, certain  premises, as indicated  in Section 3 thereof, were  exempted  from the provisions of the Act.         The exclusion of certain premises from the  protection provided under the Act gave rise to litigation in  which  challenge was thrown by different litigants to the  vires of the new Act as also Section 3 (1) (b)  thereof as  being arbitrary and discriminatory and without having  any nexus with the object sought to be achieved  by the  Act.         Of the several writ petitions filed in the Bombay  High Court, the Writ Petition  of M/s. Crompton Greaves  Ltd.  was taken up for decision  and it was held that the  classification made  in Section 3 with regard  to  different  types of tenants was on the basis of  an intelligible  differentia having nexus with the  object sought to be  achieved by the  Act.  It was held that the provisions of  the new  Act were intra vires and did not offend Article 14  of the Constitution.   Several writ petitions were thereafter decided on  the basis  of the decision arrived at in the aforesaid writ  petition filed by  M/s. Crompton Greaves Ltd. and some  of them have been carried to this Court by way of Special  Leave Petitions which are now being analogously heard  

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as civil appeals along with a writ petition  filed under  Article  32 of the Constitution, being No.164/2003,  wherein also the vires of Section 3 (1) (b) of the new Rent  Act has been challenged.             The common grievance  in all these appeals and in  the writ petition is with regard to the constitutionality of  Section  3 (1) (b) of the Maharashtra Rent Act, 1999  which inter alia replaced the Bombay Rents, Hotel and  Lodging House Rates Act, 1947.         Mr. Ranjit Kumar, learned senior advocate, who  appeared for the appellants in Civil Appeal No.  8015/2002, as also for the intervenors in one of the other  appeals, argued the matter extensively and his  submissions were generally adopted by the other  appellants and the writ petitioner with a few  variations.   In order to appreciate Mr. Kumar’s submissions, the  provisions    of Section 3 (1)(a) and (b) of the 1999 Act are  reproduced hereinbelow:-

       3. Exemption. (1      )       This Act shall not apply \026

(a) to any premises belonging to the  Government or a local authority or apply as  against the Government to any tenancy,  licence or other like relationship created by  a grant from or a licence given by the  Government in respect of premises  requisitioned  or taken on lease or on  licence by the Government, including any  premises taken on behalf of the  Government on the basis of tenancy or of  licence or other like relationship by, or in  the name of any officer subordinate to the  Government authorized in this behalf; but  it shall apply in respect of premises let, or  given on licence, to the Government or a  local authority or taken on behalf of the  Government on such basis by, or in the  name of, such officer;

(b) to any premises let or sub-let to banks,  or any Public Sector Undertakings or any  Corporation established by or under any  Central or State Act, or foreign missions,  international agencies, multinational  companies, and private limited companies  and public limited having a paid up share  capital of rupees one crore or more.

Explanation - For the purpose of this  clause  the   expression "bank" means, -

(i)     the State Bank of India constituted  under the State Bank of India Act,  1955;   (ii)    a subsidiary bank as defined in the  State Bank of India (Subsidiary  Banks) Act, 1959;

(iii)   A corresponding new bank  constituted under section 3 of the  Banking Companies (Acquisition and  Transfer of Undertakings) Act, 1970

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or under section 3 of the Banking  Companies (Acquisition and Transfer  of Undertaking) Act, 1980, or

(iv)    Any other bank, being a scheduled  bank as defined in clause (e) of  section 2 of the Reserve Bank of India  Act, 1934."   

       It was contended that the provisions of Section 3 (1)  (b) of the 1999 Act offend  the equality clause enshrined   in Article 14 of the  Constitution.  It was urged that the  aforesaid provisions sought to distinguish between  different types of tenants and in particular private limited  companies and public limited companies  having a paid  up share capital of rupees  one crore or more.  It was  urged that the worth of a company could not always be  assessed on the basis of  the  paid up share capital and  that a  more correct  assessment could   be arrived at  on  the basis  of  the net worth of the company.  While a  company having a paid up share  capital of rupees one  crore  or more, may not be making  large profits, a  company with a lesser  amount of paid up share capital,  may be making larger profits.  While the former was  denied the protection of the Act, the latter was protected  thereunder.  It was urged that the distinction sought to  be made was not on the basis of any intelligible  differentia  having a reasonable nexus with the object  sought  to be  achieved  by the new enactment.  It was  pointed out that the new Act created a divide   between  different categories of tenants, some of whom were  afforded the protection under the 1999 Act while some  were excluded.  It was contended that if the object of the   Act was to provide for better housing facilities in terms of  the  National Housing Policy then all landlords should  have been treated on an equal footing  without benefiting   only a certain affluent class of landlords.         The next contention which was advanced on behalf  of the appellants was that even  between  banks, a  discriminatory policy was adopted. While  excluding  banks and public sector undertakings  established by or  under  any State or Central Act, scheduled banks were   treated separately,  thereby creating a  privileged class of  landlords.  It   was contended that no rational basis had  been indicated  for making such classification.  It was  submitted that banks generally require large spaces for  their business activities and if they were excluded from  the protection of the Act, they would   become easy  targets  for eviction and in the event of their  eviction, it  would be difficult for them to acquire new premises of  equal or similar dimensions  in the same vicinity which  could even result in the banks having to  close down  their business.   Another submission advanced on behalf of the  appellants was that since the banks covered by clauses  (i) (ii) and (iii) of Section 3 (1) (b) of the 1999 Act, all come  within  the definition of  "State" within the meaning of  Article 12 of the Constitution, by invoking the rule of  ejusdem generis, the fourth  category  which referred to  scheduled banks as defined in clause (e) of  Section 2 of  the Reserve Bank of India Act, 1934,  should  also  answer the description of "State" within the meaning of  Article  12 of the Constitution.  In other words,  since  scheduled banks were not "State" within the meaning of

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Article  12 of   the Constitution, they had been wrongly  included with other  banks  and excluded from the  protection of the 1999 Act.  It was submitted that the  classification of banks under different categories  amounted to institutional classification and  discrimination  within the same class which would be hit  by the provisions of Article 14 of the Constitution.  It was  urged that a similar matter fell for consideration of this  Court in the case of Motor General Traders  and Anr. vs.  State of Andhra Pradesh and Ors. reported  in (1984) 1  SCC 222, wherein   a similar provision of  the Andhra  Pradesh Buildings (Lease, Rent and Eviction) Control Act,  1960 fell for consideration of this Court.  Section 32 of   the said Act contained a similar provision excluding  certain premises from the ambit of the Act.  The said  provision reads as follows:-

32.     Act not to apply  to certain buildings.\027The  provisions of this Act shall not apply :             

(a)     to any building owned by the Government;

(b)     to any building constructed on and after  August 26, 1957."

It was sought to be contended  that the distinction  made between buildings  constructed before and after the  cut-off date was wholly unreasonable  and was not  founded on any intelligible differentia having a rational  relation to the object  sought to be achieved   by the  statute in question.  It was pointed out that although  the  said provision had been held by the High Court in earlier  proceedings to be  intra vires, this Court after  considering the matter at length was of the view that  clause (b) of  Section 32 was violative of Article  14 of the  Constitution as it sought to create  a privileged class of  landlords  without any  rational basis, as the incentive  to  build  which provided a nexus for a reasonable  classification  of such class of landlords,  no longer  existed by lapse of time in the case of   the  majority of  such landlords.  It was observed that  while the  classification may be founded on different basis what is  necessary is that there must be a nexus between the  basis of classification and the object of the Act under  consideration.  Reliance was also placed on another decision of this  Court  in the case of Rattan Arya  and Ors. vs. State of  Tamil Nadu and Anr., (1986) 3 SCC 385, wherein   Section  30 (ii) of the Tamil Nadu Buildings (Lease and  Rent Control) Act, 1960 was under challenge.  The said  provision  exempted any residential building or part  thereof occupied by any tenant, if the monthly rent paid  by him exceeded Rs.250/-.   As was observed  in the said  decision, the intention  of the Legislature  clearly was  that the protection of the  beneficent provision of the Act  should be available  only to small tenants paying rent    exceeding Rs.250/- per month, as they belong to the  weaker sections of the  community and  needed  protection against exploitation by rapacious landlords.     Following its decision in  Motor General Traders case  (supra), this  Court struck down the said provision as  being violative of  Article 14 of the Constitution being   entirely  inconsistent with the protection given to tenants

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of non-residential buildings who were  in a position to  pay much higher rents than the  rents which were paid  by those who were in occupation of residential buildings.                 Mr. Ranjit Kumar in his usual fairness also referred  to the decision of this  Court in the  case of D.C. Bhatia  and Ors. vs. Union of India and Anr., (1995)  1 SCC  104,  in which the learned Judges were considering the   validity  of Section 3 (c) the Delhi  Rent Act, 1958, which  was introduced by the Delhi Rent  Control (Amendment )  Act, 1988, so as to  exclude from the  operation of the  Rent Act, premises  whose monthly rent exceeded  Rs.  3,500/-.  After considering  several decisions  of this  Court  in case  of  similar provisions in other State  enactments, this Court distinguished the view  that  had  earlier been taken in  Rattan Arya’s case (supra) and   held that tenants  who could afford to pay  a sum of Rs.  42,000/- per year could not be said to belong  at that  point of time  to the weaker sections of  the community  so as to get the protection under the Act.  However, it  was for the Legislature to decide as to which section of   people should be protected and what  should be the basis  of  classification namely, income, rent,  etc.  Mr. Ranjit  Kumar, however, pointed out that in D.C. Bhatia’s case  (supra),  the benefit of protection had been given to one  class of persons, namely, those whose monthly rents  were less than 3,500/- and a reasonable classification  had been made  in the context  of the economy prevalent  at the relevant time.         In respect of the case made out in the appeal  preferred by Hindustan  Petroleum Corporation Ltd., Mr.  Ranjit Kumar, who appeared  for the intervenors,   submitted that  a duty had been  cast on the State under  Article 39 (b) of the Constitution to direct its policy  towards securing  that the ownership and control of the  material resources of the community are so distributed  as  best to sub-serve the common good.  It was submitted   that along with  residential buildings, there was also  need for other establishments, such as the one being run  by the appellant, which also require the protection of the  Rent Control Act, but had been excluded by virtue  of  Section 3 (1) (b) thereof.         Mr. Jaspal Singh, learned senior counsel, who  appeared for the Bombay Mercantile Co-operative  Bank  Ltd., while adopting  Mr. Ranjit Kumar’s  submissions,  added a new dimension  to the said submissions on  certain facts which were peculiar to the said Bank alone.    He tried to persuade us that the Bank had been included  as a scheduled bank in the  Reserve Bank of India Act on  1st September, 1988 whereas the premises in question  had been let out to the Bank in 1979.  According to Mr.   Jaspal Singh, since the letting referred to in Section 3 (b)   was in respect of a scheduled bank, and in the instant  case, since the Bank was not a scheduled bank when the  premises had been let  out to it, the provisions of the  1999 Act could have no application to the  Bank.    He  also submitted that having regard to the  wording of  clause (b)  of Section 3 (1) of the Act, only those banks or  public sector undertakings or any  corporation  established by or under any Central or State Act could be  included  within its ambit.         Mr. Andhyarujina, learned senior advocate, adopted  a pragmatic approach to the problem.  While adopting  Mr. Ranjit Kumar’s submissions, he did seek  to urge  that in the definition of the expression "premises" a  major change from the 1947 Act had been introduced  in

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the 1999 Act in that the word "land" had been excluded  from the said definition.  He urged that the Legislature  had consciously omitted "land" from the  purview of the  1999 Act.  Mr. Andhyarujina submitted that in the event   the appeal preferred by the company was  dismissed,  suitable time may be given  to the company to vacate the  premises.  As  an interim arrangement, Mr. Andhyarujina  submitted that his client  was ready to pay mesne profits  to the landlord at the rate of Rs.60,000/- per month.         Mr. Shujaat Ullah Khan, learned advocate, who  appeared for the appellants in Civil Appeal No.  1825/2005,  submitted that the  credit society became a   co-operative society in 1941 and was subsequently  converted into  a multi-state co-operative society.  In  effect, the society was a co-operative bank, but following   the  doctrine of ejusdem generis only those banks which  were "State" within the meaning of Article 12 of the  Constitution  and had been included  in clauses (i) (ii)  and (iii) of Section 3 (1) (b)  of the 1999 Act stood  excluded from the provisions of the Act.         Relying  on a Full Bench   decision of the Bombay  High Court  in the case of  Shamrao Vithal Co-op. Bank  Ltd. and Anr. vs.  Padubidri Pattabhiram Bhat and Anr.,  AIR  1993 Bombay  91, Mr. Khan submitted that since  the appellant was not  "State"  within  the meaning of  Article 12 of the Constitution,  it could not be excluded  from the protection  afforded  by the 1999 Act.  Besides  his aforesaid submission, Mr. Khan also adopted all the  submissions advanced by Mr. Ranjit Kumar.         As indicated  hereinbefore,  along with the civil  appeals, a separate writ petition, being No.  164/2003,    had been filed by the  Central Bank of India also  challenging the vires of Section  3 (1) (b) of the 1999 Act.    Appearing for the Bank, Ms. J.S. Wad submitted that  since the Bank was a  nationalized bank, whatever  protection was made available to the government  establishments should also be made available  to the  appellant.         The submissions made on behalf of the appellants  as also the writ petitioner were strongly opposed by Mr.  Raju Ramachandran, learned senior advocate, appearing  for the respondents-landlords in Civil Appeal No.  7594/2004.  Referring to Mr. Jaspal Singh’s  submissions, he pointed out that there was a basic  fallacy in Mr. Singh’s contention since banking was a   Central subject  included  at Item No. 45 of the 1st List of  the Seventh  Schedule to the Constitution and it is only  public sector undertakings which could be established  under a State Act.           Also referring  to the preamble  of the 1999 Act, Mr.  Ramachandran  pointed out that Section 3 of  the Act  had been  enacted    in consonance thereof  with the  intention of  ensuring a fair return to the landlords who  were ready to invest in the construction of new buildings  to provide greater accommodation.  It was contended that  Section 3 of the Act was integral to the purpose of the Act  and  all premises  which the Legislature considered to be  appropriate had been afforded protection under the 1999  Act.  It was pointed out that the same would be available   from Section 2 (1) of the Act which indicates that the Act,  in the first instance, would apply  to premises  let for the  purpose of residence, education, business, trade or  storage in the area specified in Schedule 1 and Schedule  II.  No special reservation was made in respect of  premises set apart for residential purposes.   Even in the

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preamble, the expression "houses" has been used    generally and does not specify residential houses in  particular, as has been urged on behalf of the appellants.   There was, therefore, no discrimination between premises  of different types and only a reasonable classification has  been made with regard to companies where the paid up  capital share had been taken to be the yard stick for   excluding certain companies  from the protection  provided under  the Act. It was submitted that while  the net worth of   companies  fluctuate, the paid up  share capital was  stable and was more concrete for the purpose of  assessment of a company’s worth.  The Legislature had  to strike a balance  at a point which it considered to be  just and fair and accordingly  provided  for exclusion of  those companies which it felt  could afford  to either pay  higher rents or  procure alternate accommodation  in the  present scenario.   It was submitted that having regard to the  reasonable approach of the Legislature, it could not be  contended that the provisions of Section 3 (1) (b) of the  1999 Act were arbitrary and/or discriminatory and  violative of Article  14 of the Constitution.         Mr. Ramachandran  submitted that the arguments  now sought to be advanced  on behalf of the appellants  and   the  writ petitioner on Article 14 of the Constitution  on account of  the classification made between categories   of tenants  was no longer  available to the appellants  having regard to the views expressed by this Court  in   Delhi Cloth & General Mills Limited vs. S. Paramjit Singh  and Anr., (1990) 4 SCC 723 and in D.C. Bhatia’s case  (supra) in which it has been categorically indicated that it  is for the Legislature to decide whether or not any section  of tenants should be protected in any way by law.  For  the said purpose, the Legislature  could identify the  section of the people who needed protection and decide  how the classification was to be done or what would be  the cut off point for the purpose of making such  classification.    The Court could only  consider whether  the classification  had been done on   an understandable   basis having  regard to the object  of the statute.   The  Court would not question its validity on the ground  of  lack of legislative wisdom.         Mr. Ramachandran ended his submissions by  referring to  a Constitution Bench judgment of this Court                  in the case of Kedar Nath Bajoria vs.  State of West  Bengal, (1954) SCR 30, wherein it was stated as follows:-

       "Now, it is well settled that the equal protection of  the laws guaranteed by Article 14 of  the  Constitution does not mean that all laws must be  general in character and universal in application  and that the State is no longer to have the power of  distinguishing and classifying persons or things for  the purposes of legislation.  To put it simply, all that  is required in class or special legislation is that the  legislative classification must not be  arbitrary but  should be  based on an intelligible principle  having  a reasonable relation to the object which the  legislature seeks to attain.  If  the classification on  which the legislation  is founded fulfils this  requirement, then the differentiation which the   legislation makes between the class or persons or  things to which it applies and other persons or  things left  outside the purview of the legislation

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cannot be regarded as a denial of the equal  protection of the  law, ...................."

       Learned counsel appearing for the State adopted  Mr. Ramachandran’s submissions.         Mr.Soli J. Sorabjee, learned senior advocate,  who  appeared for the landlords-respondents in the appeal  filed by  Hindustan Petroleum Corporation Ltd. (Civil  Appeal Nos. 4830-4831/2005)  urged  that the  Legislature  was fully aware  of the  prevailing economic  conditions while including public sector undertakings   with those institutions which were kept out of the  protection of the 1999 Act. He urged that petrol pumps,  such as the one being run by the appellant, require a  good deal of  open space, which the landlord could better  utilize for getting higher returns.  The amount of rent  paid for the utilization  of such lands were  extremely  meagre in relation to the value of the property  and the  very object of the 1999 Act would be frustrated if such  lands  were not kept out of the  purview of the Act so that  the same could be utilized  by the landlords for  constructing new buildings which would ensure a fair  return to them. Mr. Sorabjee submitted that some of the petrol  pumps were of necessity, situated in prime areas within   metropolitan cities and the Legislature  had very correctly   excluded them from the protection of the 1999 Act.         Much the same views were expressed by Mr. Gaurav  Agarwal, who appeared for the respondent  No.2 in Civil  Appeal No. 4830-31of 2005.   It was pointed out that  1228 Sq.Ft. of a commercial premises in the Fort area in   Mumbai  had been let out initially  for a sum of  Rs.2732/- per month  and  the present valuation in  terms of the  Valuer’s report suggested that the rent  should be  Rs.2,45,600/- per month.         As will be evident from the  submissions made on  behalf of the appellants and the writ petitioner, the main  challenge is to the constitutionality of Section 3 (1) (b) of  the 1999 Act.  In view of the categorization of  different  premises, some of which have been excluded from  the  protection of the Act, an attempt has been made to  establish that the Legislature  had acted arbitrarily in  discriminating between the different sets of premises   and tenants and in prescribing  the standard  for the  purpose of excluding certain  companies  from the  protection  of the Act.         Although, earlier a view had been taken  by this  Court that   prescribing such a standard or  differentiating between categories  of tenancies was  violative of Article 14 of the  Constitution, the subsequent  view taken  by this Court is that so  long as the  classification sought to be made  was based on an  intelligible differentia  and had a nexus  with the object  sought to be achieved by the statute, the same would not   offend the equality clause contained in Article 14 of the  Constitution.         Resultingly, it  is quite clear that  it is within the  legislative competence  of the State to enact laws for the  protection of  certain sections of  society on  the basis  of  economic criteria and so long as it does not result in  unreasonable classification, it is for the Legislature to  decide whom it should include or exclude from the  application of such laws.         Although, the decision to exclude private limited  companies and public limited companies having a paid

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up share capital of Rs. One crore from the protection of  the Act  has been  questioned on the ground of  discrimination, we are unable to accept such contention,  since in our view, it is   in consonance with the object  sought to be achieved by the Act  as indicated in its  preamble.  In order to achieve such object, a cut-off point  has to be settled and the Legislature in its wisdom has   settled such cut-off point in excluding companies having  a paid up share  capital of Rs. One crore or more from  the protection of the Act.   We are also unable to accept the contention that the  paid up share capital of the company is not a fair  indicator of a company’s worth and that its net worth is a  better indicator.  As submitted by Mr. Ramachandran,   the net worth of a company may vary from time to time,  but its paid up share capital  is  more stable.  Which of  the two methods ought to have been adopted by the  Legislature is not for us to decide once we have taken a  view that the method as adopted   is not arbitrary or  violative of Article 14 of the Constitution.  Of the two  methods available, the Legislature has chosen the one  which appeared to it to be reasonable.         The other submission relating to the inclusion of   scheduled banks, along with other banks, which have  been excluded from the protection of the Act, is also  without substance since clause (iv) of Section 3 (1) (b)  is,  in our view,  of general application intended to cover  all  banks  forming part of the Schedule of the Reserve Bank  of India Act which may or may not overlap those banks  which have been indicated in clauses (i) (ii) and (iii).         The submission  of Mr. Jaspal Singh that the 1999  Act would not apply to the appellant-bank represented by  him, appears to be an argument of desperation and not  of conviction.  Once the Act of 1999 was enacted and  came into force, it would have equal application to all  premises let out either before or after the commencement  of the Act.           The issues raised before us have been elaborately  considered by the  High Court, and, in our view, no fault  can be found  with the findings  arrived at by the  High  Court.  The provisions of Section 3(1)(b) of the  Maharashtra Rent Control Act, 1999, are intra vires and  as has been held by the Bombay High Court, they do not  violate Article 14 of the Constitution.          In our  view, there is no merit in these appeals nor  in the  writ petition and the same are accordingly  dismissed.            In this context, we are required to take into  consideration Mr. Andhyarujina’s submission for  sufficient time to be  given to his client to vacate the  premises during which the interim arrangement as  proposed for  payment of higher rent could be continued.   Considering the fact that Mr.Andhyarujina’s client is  operating  a petrol pump, which will require some time to   acquire a new place and to construct the necessary  infrastructure therein, we grant time to Mr.  Andhyarujina’s client till 31st December, 2007, to vacate  the premises occupied by them.   The parties in Civil  Appeal Nos. 4830-4831/2005 will be at liberty to have  the question  of mesne profits  finally decided by the trial  court which is requested to dispose of the matter at an  early date.   Till final determination of the matter relating  to mesne  profits by the trial court, Mr. Andhyarujina’s  client shall pay to the landlords mesne profits at the rate  of Rs.60,000/- per month as agreed  from the date of the

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decree till the date of vacating the premises.  The amount  that may be found due  on the aforesaid basis from the  date of the decree till the date of this order shall be paid  by Mr. Andhyarujina’s client to the landlords in three  equal instalments within a period of three months from  the date of this judgment along with the mesne profits  payable each month under this judgment.  The first of  such  instalments is to be paid by the 7th day of  September, 2006  and  thereafter by the 7th day of  October, 2006 and 7th day of November, 2006,  respectively.  In case of default in payment of any of the  instalment/s or the current  mesne profits, the time  given to Mr. Andhyarujina’s client  to vacate the premises  shall stand revoked and the decree for possession will  become executable forthwith.   Mr. Andhyarujina’s client will file the  usual  undertaking in this Court in the above regard  within  four weeks from today.  These directions will not prevent  Mr. Andhyarujina’s client from negotiating with the   landlord for grant of  a fresh tenancy on fresh terms  and  conditions,  if so advised.         Having regard to the nature of the issues involved   in these appeals and the writ petition, the parties will  bear their own costs.