Karnataka High Court
Prakash Dal Mill And Ors. vs The Government Of Karnataka, By Its ... on 18 February, 2003
Equivalent citations: ILR2003KAR1622, 2003 AIR - KANT. H. C. R. 1027, (2003) 2 KCCR 1241
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT Nayak, J.
1. The appellants in these writ appeals are the petitioners in Writ Petition No. 23578 to 23617 of 1999. The Appellants feeling aggrieved by the order of the learned Single Judge dated 7.12.1999 in W.P.Nos. 23578 to 23617 of 1999 dismissing the Writ Petitions, have preferred these Writ Appeals.
2. The background facts leading to the filing of the Writ Petitions be noted briefly in the first instance and they are as follows:-
3. The Karnataka Industrial Areas Development Board (hereinafter referred to as 'the Board'), the second respondent herein, formed an industrial layout at Tarihal village in the year 1983, pursuant to which, it invited applications from intending purchasers for allotment of industrial sites. In response to the same, the petitioners-Appellants who were desirous of owning industrial sites and putting up their respective industries, applied for the allotment of the sites. It is seen that the petitioners-Appellants applied for the allotment of the sites at different points of time. Pursuant to the said applications made by the Appellants, the Board issued letters of intent indicating that the Board had resolved to allot them the sites shown in the cause title to the Petitioners at Tarihal Industrial Estate. Further, the said letters also indicated the tentative price at which the land was sought to be allotted. In response to the letter of intent, the Appellants who were desirous of allotment of industrial sites, taking into account the tentative price and depending upon their financial capacity, indicated their willingness for the sites being allotted in order to enable them to abide by the allotment. Thereafter, the letters of allotment were issued in favour of the Appellants incorporating terms and conditions of allotment. Subsequent thereto, lease-cum-sale agreements were executed in favour of the Appellants on their complying with conditions of allotment.
4. One of the conditions mentioned in the Lease-cum-sale agreement reads thus:-
"7 (b) As soon as it may be convenient the Lessor will fix the priced of the demised premises at which it will be sold to the Lessee and communicate it to the Lessee and the decision of the Lessor in this regard will be final and binding on the Lessee. The Lessee shall pay the balance of the value of the property, if any after adjusting the premium and the total amount of rent paid by the Lessee and earnest money deposit within one month from the date of receipt of communication signed by the Executive Member of the Board. On the other hand, if any sum, is determined as payable by the Lessor to the Lessee after the adjustment as aforesaid, such sum shall be refunded to the Lessee before the date of execution of the sale deed."
5. The Lease-cum-sale agreement entered into between the Board and the Appellants contain covenants that the Appellant shall pay 99% of the allotment price immediately and remaining 1% in 10 equal yearly instalments plus lease premium along with the interest at 12.5%. The Appellants have complied with all the stipulations and the conditions incorporated in the lease-cum-sale agreements. The Board after the expiry of the lease period of 11 years, did not execute regular sale deeds in favour of the Appellants. On the other hand, the Board after a lapse of about 6 months from the date of expiry of the lease period, issued letters to the Appellants raising demands with regard to final allotment price and directing that the appellants allottees should pay the balance of final allotment price within a specified time. On receipt of the demand notices from the Board, the Appellants have filed their objections individually putting forth their grievances to the effect that the increase is unreasonable, arbitrary, unjust and contrary to what was legitimately expected and assured by the Board, i.e., only the marginal increase, if at all there had to be increase in the cost of the acquisition of the land in question. Pursuant to the objections filed by the Appellants, the Board invited them to Bangalore for discussion in that regard. According to the Appellants, during the course of the discussion, they had sought for the detailed break up, based on which the enhanced claim was made and the Board furnished a statement showing the basis for enhancement of the price. The Appellants have produced a copy of the said statement as Annexure G. The Appellants having perused Annexure G, noticed that the enhanced cost includes a sum of Rs. 34.17 lakhs towards the cost of future development and feeling that even otherwise the demand raised by the Board towards escalated cost of the industrial sites is arbitrary and totally unreasonable, submitted a joint representation to the Board contending that the proposed enhancement is unjust and arbitrary. The Board on consideration of the joint representation of the Appellants reduced the final allotment price only marginally and issued demand notices to the Appellants. Copies of the demand notices issued to the Appellants are produced and marked as ANNEXURE H1 to H40.
6. The Appellants feeling aggrieved by the above action of the Board, filed Writ Petition Nos. 23578 to 23617 of 1999 and WA No. 1492 of 2000 in this Court. In the Writ Petitions, the petitioners raised several grounds to attack the impugned demand notices issued by the Board pursuant to Annexures H1 to H 40. It was contended that what is contemplated under the Lease-Cum-Sale agreement is an increase in price which is legitimately expected to be marginal; the exercise of increasing the price should have been completed by the Board as soon as possible; increase in the price is not marginal as the same is more than double the amount initially indicated; increase in price was sought to be enforced after a lapse of nearly 13 years. It was also contended that the breakup which has been furnished to the Appellants by the Board is not based on statutory procedure contemplated for enhancement of cost of sites. It was also contended that not only the final demands raised pursuant to Annexure H 1 to H 40 are arbitrary and whimsical but the decision-making process adopted by Board was not transparent. It was also contended that the Board has been exploiting the predicament situation in which the Appellants have left with no option as they have set up their industries by putting up the constructions and spending huge sums of money at which stage, they are not in a position to retrace their steps. It was also contended that the Board by raising the impugned demands is seeking to recover much more than what it spent actually and that the Board being a statutory authority which is required to function on 'no loss no profit basis' cannot be permitted to make unlawful gain in the guise of exercising the power conferred on it under Clause 7(b) of Lease-Cum-Sale Agreement.
7. The Writ Petitions were opposed by the Board by filing Statement of Objections. In the Statement of Objections, it was mainly contended by the Board that the price at which the lands were allotted to the appellants, were tentative since the price of acquisition of the land had not yet been finally determined and therefore, considering the present market value at Tarihal Industrial Area, the fluctuation of the final price of the land as per the impugned demands is only marginal. It was also contended that the price of the land has been fixed in accordance with the terms and conditions of the Lease-cum-sale agreements entered into between the parties and the Board. The Board also claimed that the final price fixed by it is based on the actual expenses incurred by it.
8. Learned Single Judge on consideration of the pleading of the parties as well as the documents placed before him came to the conclusion that in terms of Clause 7(b) of the lease-cum-sale agreement, the Board could fix final price of the industrial sites allotted to the Appellants. Learned Single Judge did not find any arbitrariness or irrationality in fixing the final price of the sites and in issuing the impugned demand notices. In that view of the matter, learned Single Judge dismissed the Writ Petitions.
9. We have heard Sri Basava Prabhu Patil, learned Counsel for the Appellants, Sri Ashok B. Hinchigeri, learned Standing Counsel for the Board and Sri G. Nagarajulu Naidu, learned Government Advocate.
10. Sri Basava Prabhu Patil, contended that learned Single Judge in passing the order under appeal, has failed to consider the key issues which were raised in the Writ Petitions, i.e., firstly, whether, in the absence of the manner not having been fixed either by the statute or under the agreement, i.e., in the absence of indication as to what are the factors that should be taken into account for fixing the final price, the Board could have unilaterally proceeded to do the same; secondly, presuming that even if is permissible, without conceding, whether the demand can be so drastically different from what was indicated to be the tentative price; thirdly, whether, though the agreement indicates that the final value of the property is to be crystalised as soon as it is convenient to the Board, can it be said that the said wordings "as soon as it may be" extended by a period of 11 years from the date of execution of the agreement; fourthly, as is noticeable from the break-up provided by the Board to justify the demand in the statement of objections, the cost incurred towards development of land not in relation to the lands allotted to the petitioner-appellants, but in relation to a subsequent phase of the layout, can be thrust upon the earlier allottees, who were allotted the developed sites; and finally, where there could be any imposition under the head "future development cost". Therefore, learned Counsel for the Appellants would maintain that the order of learned Single Judge on that count itself could not be sustained. Sri Patil contended that neither the statute nor the lease-cum-sale agreement provide for the manner and method in which the final price of the allotted sites has to be computed and therefore, in the absence of the same, the Board could not have unilaterally fixed the final price, that too, arbitrarily and unreasonably and thrust the same upon the appellants. Learned Counsel would contend that the demands now made in the impugned Annexures H1 to H 40 are totally arbitrary, unreasonable and by raising the impugned demands, the Board wants to make unlawful gain. Sri Basava Prabhu Patil also contended that the breakup of the costs provided by the Board is not applicable to the case of the Appellants because the sites were allotted to the Appellants after providing water, electricity, sanitary and drainage facilities etc., and the Board had determined the tentative price of the sites taking into account the cost of those facilities and therefore, the action of the Board in again raising the demands which are inclusive of the costs alleged to have been incurred by the Board in providing road, building works, electricity, sanitary, drainage, stock materials etc.,-is ex facie illegal and arbitrary. Sri Basava Prabhu Patil contended that imposition of the costs for future developments is unheard besides being not envisaged under the statute or under the lease-cum-sale agreements. Sri patil also contended that this sort of imposition of the cost which includes the interest on investment, future development cost, cost of development of several phases undertaken by the Board subsequent to allotment of sites in favour of the petitioners-appellants, unilaterally living the petitioners-appellants with no option on account of they having invested huge amount of money in putting up industries, having established the business, would violate Article 14 postulates, In sum and substance, the contention of Mr. Patil is that the impugned demand is not only unauthorised, illegal but also totally arbitrary and unreasonable.
11. Sri Ashok B. Hinchigeri, learned Counsel for the Board, on the other hand supported the judgment of learned Single Judge and denied the allegation that the impugned demands do not reflect the actual cost incurred by the Board. Learned Standing Counsel for the Board would maintain that the power of fix final price of the sites allotted to the Appellants is traceable to Clause 7(b) of the Lease-cum-sale agreement and that the break-ups given by the Board vide Annexure G would clearly show that what has been demanded in the impugned annexures, is nothing but the actual cost of the land, development effected by the Board and the infrastructure facilities to be provided by the Board. Learned Standing Counsel would conclude by contending that the Appellants have utterly failed to make out any grounds warranting interference by the Division Bench.
12. Learned Government Advocate, Sri G. Nagarajulu Naidu also supported the impugned actions of the Board and the order of the learned Single Judge.
13. Having heard learned Counsel for the parties, mainly two questions arise for decision of the Court: (a) Whether the Board had no power to revise the sital value in terms of power reserved to it under Clause 7(b) of the Lease-cum-sale agreement and (b) whether the action of the Board in escalating the sital value is hit by Article 14 postulates.
14. The Board being a 'State' within the meaning of Article 12 of the Constitution of India is required to act fairly, reasonably, not arbitrarily nor whimsically. Since the guarantee of equal protection enshrined in Article 14 of the Constitution of India embraces the entire realm of 'State Action', it would extend not only when an individual is discriminated against in the matter of exercise of his rights or in the matter of imposing liabilities upon him, but also in the matter of granting privileges, benefits etc.
15. In order to appreciate the contentions of the parties pressed into service before us, it will be beneficial to first notice the relevant statutory regulations and Clauses of lease-cum-sale agreement. The Board in exercise of powers conferred by Section 41(2)(b) of the Karnataka Industrial Areas Development Act, 1966 (Karnataka Act No. 18 of 1966) and with previous approval of the State Government has framed the regulations called "Regulations governing the disposal of the lands by the Karnataka Industrial Areas Development Board, 1969" (hereinafter referred to as "Regulations"). Regulations 7,8, and 10 read as follows;-
"7. Inviting applications. - The Board shall notify the availability of land, the manner of disposal, the last date for submission of applications and such other particulars as the Board may consider necessary in each case by giving wide publicity through newspapers having circulation in and outside Karnataka State, and invite applications from industrialists or persons intending to start industries.
8. Deposit.- (a) The Board may prescribe the quantum of money that should be paid as initial deposit towards the cost of the land and the development charges on allotment and such sum shall be paid by the applicant within one month from the date of receipt of the communication from the Board;
(b) The Board may also receive deposits from the applicants pending allotment of land up to the probable cost of the land applied for, including the development and administrative charges and the Board may give preference to those who have made such deposits with the Board;
(c) The deposit shall be adjusted towards the cost of land, lease amount, rent, interest or any other sums due from the allottee of the land.
10. Allotment.- (a) The Board, on being satisfied that the person, firm or company who has made an application is likely to start production within a reasonable period, and is not one which is declared obnoxious under Regulation 14 may make an allotment in his/their favour;
(b) The Board may constitute sub-committees for considering allotment of plots and also delegate its power to the Executive Member, if necessary;
(c) The Executive Member shall notify such applicant to whom an allotment is made to execute the agreement in Form 3 or 4 or 5 as the case may be with such modification as may be necessary in each case on such date, time and place as may be fixed by the Executive Member and to pay the consideration for the occupancy of the land as fixed by the Board within the time fixed by the Board;
(d) Failure to execute the agreement or to pay the sums demanded by the Executive Member as per the notice given under Regulation 10(c) with or without payment of interest at nine per cent on the sums payable in terms of the said notice for the extended period.
16. Form 4 prescribed under Regulation 10 (c) is a format of lease-cum-sale agreement. In terms of Form 4, lease-cum sale agreements were entered into between the Appellants and the Board. One of the lease-cum-sale agreement executed between the Board and one of the Appellants is produced as Annexure "C" at pages 71 to 87 of the Writ Papers. As per this document, the lease is for a period of 11 years. Clause (2) (p) (iii) of the lease-cum-sale agreement requires the lessee to complete civil construction works and erection of factory within twelve months from the date of confirmatory letter of allotment. Clauses 7 and 8 of the lease-cum-sale agreement read thus:
"7. a) At the end of Eleven years referred to in Clause 1 or the extended period, if any of the total amount of rent paid by the lessee for the period of the Lease and earnest money deposit shall be adjusted towards the balance of the value of the property (as fixed in the manner hereinafter appearing).
b) As soon as it may be convenient the Lessor will fix the price of the demised premises at which it will be sold to the lessee and communicate it to the Lessee and the decision of the Lessor in this regard will be final and binding on the Lessee. The lessee shall pay the balance of the value of the property, if any after adjusting the premium and the total amount of rent paid by the Lessee, and earnest money deposit within one month from the date of receipt of communication signed by the Executive member of the Board. On the other hand, if any sum if determined as payable by the lessor to the Lessee to the Lessee after the adjustment as aforesaid, such sum shall be refunded to the Lessee before the date of execution of the sale deed.
8. If the Lessee has performed all the conditions mentioned herein and committed no breach there of the lessor shall at the end of Eleven years referred to in Clause 1 of the extended period, if any, sell the demised premises to the Lessee and all attendant expenses in connection with such sale such as stamp duty, registration charges etc., shall be borne by the Lessee.
17. For our purpose, Sub-clause (b) of Clause 7 is relevant. Sub Clause (b) of Clause 7 mandates that the power to fix final price of site should be exercised by the Board 'as soon as it may be convenient' and that the Board should communicate the same to the Lessee and on such communication, the Lessee should pay balance of the sital value. It is specifically pleaded by the Appellants-petitioners that when the sites were handed over to them, after allotments and execution of the lease-cum-sale agreements, they were fully developed sites. It is specifically stated by the appellants that the cost of development of road, water, building works, electricity, sanitary, drainage, stock materials etc., were included in the tentative price of the sites. This factual plea of the Appellants is not seriously disputed by the Board. It is true that Clause 7(b) reserves the right to the Board to fix final price of the demised premises as soon as it may be convenient to it and communicate the same to the concerned Lessee. Clause 7(b) further mandates that on such communication, the lessee shall pay balance of the value of the site and the determination made by the Board shall bind the lessee. Although that is the term of Clause 7(b), it cannot be said that even in a case where the Board arbitrarily or irrationally fixes the final price of the site without any basis, such fixation of the price could bind the lessee and it is not permissible for the Court to step in and set at naught such irrational action of the Board. The Board being a 'State' within the meaning of Article 12 of the Constitution is expected, any, obliged to function in accordance with the postulates of Article 14 ie., reasonableness, fairness and non-arbitrariness. In otherwards, in a given case, if the Court finds that the fixation of the price done by the Board violates postulates of Article 14, certainly, the Court would be under an obligation to step in and nullify the complained action of the Board. It also needs to be noticed at this stage itself that though Clause 7(b) permits the Board to fix final price of the demised premises, it does not specify as to what are the components of final price. Clause 7(b) does not speak about the power of the Board to revise or alter the tentative price fixed at the time of allotment of the site. In other wards, Clause 7(b) does not contain any guidelines which would guide the power of the Board in fixing final price of the demised premises. Be that as it may, in the present case, we were not called upon to decide validity of Clause 7(b), However, it is necessary that the postulates of Article 14 should be read into the provisions of Clause 7(b). In other words, while exercising the power to fix final price of the demised site, the Board is required to act reasonably, fairly and not arbitrarily nor whimsically. Article 14 postulates also mandate that the Board in the garb of exercising the power reserved to it under Clause 7(b) cannot fix the price of the demised premises in such a way as to make unlawful gain. In otherwords, the price that may be fixed by the Board should reflect the actual cost of the demised premise.
18. In appreciating the contention of Sri Basava Prabhu Patil, that the impugned action of the respondent-Board in revising the sital value, is one without authority and jurisdiction, at the out set, it needs to be emphasized that the scheme initiated by the respondent-Board in revising the sital value, is one without authority and jurisdiction, at the out set, it needs to be emphasized that the scheme initiated by the respondent-Board for allotting the industrial sites is undoubtedly a welfare scheme and it cannot be used to the disadvantage of the allotteess. At the same time, it cannot be said that the Board has no right to fix the final cost of the demised premises in the event of it incurring extra expenditure after the. allotment of the site and before registration of the site on completion of the lease period. But in the garb of exercising the power of fixing the final price, the Board cannot be permitted to saddle the liability of sharing the burden of expenditure incurred by the Board in developing some other sites subsequent to allotment of sites on the appellants and if that is permitted, it is trite, it would tentamount to the Board practicing an invidious discrimination. The Board cannot treat unequals as equals. It is specifically pleaded by the Appellants and is reflected from the materials placed before the Court, that acquisition of the land and the development of the land is not in one-go but in different phases. All the allottees of the sites under all phases of development cannot be regarded as the persons belonging to the same class for the purpose of Article 14 of the Constitution.
19. Even assuming that the Board has power to alter or change the sital value according to its convenience, it is under an obligation to explain and satisfy the Court that its action of enhancing the price is reasonable and fair. In that regard, what the Division Bench of this Court observed in the case of E.R. MANJAIAH AND ORS. v. BANGALORE DEVELOPMENT AUTHORITY AND ORS., is quite apposite and it reads;-
"The escalation of the prices of the land, the enhancement of compensation, the payment of development charges and other expenses incurred by the authority may justify the alteration/ revision of the sital value. The schemes initiated by the respondent-authority are welfare schemes and cannot be used to their disadvantage. This does not however mean that the authority has right to alter the sital value according to its convenience or whims without furnishing any explanation. The authority is under an obligation to explain and to satisfy the Court regarding its action of enhancing the prices. This Court can examine whether the decision making process for enhancing the sital value was reasonable or rational and not arbitrary being violative of Article 14. Once it is prima facie established that the procedure adopted by the authority was against the mandate of Article 14, the Court has authority to intervene and protect the rights of the affected allotees."
20. In determining the final price of the demised premises, no doubt, the price determinants such as, price of the land, building material, labour charges, cost of transport, quality and availability of land, supervision, layout and construction charges or any other variable factors will enter. The cost also may vary depending upon time and place of allotment.
21. In the pleadings of the Board, 'market price' is pleaded as one of the determinant in fixing the final price. This method adopted by the Board is totally illegal and cannot be sustained. It seems that the Board was obsessed with the market price prevailing after the expiry of the lease period rather than the actual cost of the demised premises at the time of allotment. It is trite that the Appellants are not concerned with the market price prevailing at the time of registration of the sale deed but they are concerned only with the actual cost of the demised premises at the time of allotment and actual cost of subsequent development of the site, if there is any. In that regard the following observations of a learned Single Judge of this Court in VUENDRA KAMATH v. THE STATE OF KARNATAKA, while reviewing the action of the Bangalore Development Authority demanding the increase in the cost of flats, houses allotted to the petitioners therein are quite apt. It reads;-
"Even this escalated cost of the Building charged by BDA i.e., Rs. 3,75,000/- for MIG Ground Floor Flat is substantially less than the market value of similar flat".
The allottees are not concerned with the market price prevailing in 1989 or in 1994. They obtained allotment under the Scheme and paid the allotment price. Where escalation is permissible, the allottees are liable to pay the escalation based on actual cost and BDA is not entitled to introduce the elements of market price by adding percentages over actual cost or by otherwise bloating the cost. Hence the increased final prices fixed on 3.9.1994 are liable to be struck down as arbitrary.
22. Two factors were weighed with us to condemn the impugned action of the Board in enhancing the cost of the sital value. The first factor is the unreasonable time-gap between the date of allotment of sites and the date of final price fixation. Although Clause 7(b) speaks about the price fixation, at the convenience of the Board, the words 'as soon as' occurring in Clause 7(b) would clearly indicate that Board is required to fix price of the site and inform the allottee within a reasonable time unless it is shown that fixation of the price, having regard to the facts and circumstances of a given case, could not be done within a reasonable time. That is not at all the case of the Board in this case. It becomes imperative for the Court to insist that the statutory authority like the Board should act with diligence and promptitude. In taking this view, we are fortified by what the Apex Court was pleased to observe in INDORE DEVELOPMENT AUTHORITY v. SADHANA AGARWAL (SMT) AND ORS., which are as follows:-
"Although this Court has from time to time, taking the special facts and circumstances of Cases in question, has upheld the excess charged by the development authorities over the cost initially announced as estimated cost, but it should not be understood that this Court has held that such development authorities have absolute right to hike the cost of flats, initially announced as approximate or estimated cost for such flats. It is well known that persons belonging to middle and lower income groups, before registering themselves for such flats, have to take their financial capacity into consideration and in some cases it results in great hardship when the development authorities announce an estimated cost mentioned in the offers or agreements. With the high rate of inflation, escalation of prices of construction materials and labour charges, if the scheme is not ready within the time-frame, then it is not possible to deliver the flats or houses in question at the cost so announced. It will be advisable that before offering the flats to the public such development authorities should fix the estimated cost of the flats taking into consideration the escalation of the cost during the period the scheme is to be completed. In the instant case the estimated cost for the LIG flat was given out at Rs. 45,000. But by the impugned communication, the appellant informed the respondents that the actual cost of the flat shall be Rs. 1,16,000 i.e. the escalation is more than 100%. The High Court was justified in saying that in such circumstances, the Authority owed a duty to explain and to satisfy the Court, the reasons for such high escalation. We may add that this does not mean that the High Court in such disputes, while exercising the writ jurisdiction, has to examine every detail of the construction with reference to the cost incurred. The High Court has to be satisfied on the materials on record that the Authority has not acted in an arbitrary or erratic manner".
23. Secondly, the materials placed before the Court would clearly go to show that neither the entire land was acquired in one go nor the entire land was developed at one go. In other words, it is a matter of record that the acquisition of the land as well as the development of the land have been in different phases and therefore, the allottees of the sites in different phases, cannot be regarded as the persons belonging to the same class. It is trite that in terms of place, time and consequent escalation in the cost of the land and cost of development, all the allottees cannot be regarded as persons similarly circumstanced.
24. Furthermore, the power exercised by a statutory authority like the respondent-Board should be traceable to an authority granted by law. In the instant case, we are of the considered opinion that Clause 7(b) of the lease-cum-sale agreement does not confer power on the Board to revise or alter the tentative price fixed by it at the time of allotment whole hog. It is true that it is very much inherent in the power reserved under Clause 7(b) to include only actual cost incurred by the Board in regard to the site concerned subsequent to the allotment of that site. It is true that even expenditure incurred by the Board could form part of the final price that may be fixed by the Board under Clause 7(b) provided such expenditure was incurred by the Board in performance of an obligation or obligations incurred by it under the terms of contract. That is not the case of the Board in this case.
25. In conclusion, we find force in the contention of Sri Basava Prabhu Patil that the impugned escalation in the price of the demised premises is one without authority of law and that escalation is arbitrary and unreasonable and violative of Article 14 postulates. In the result, with respect, we cannot sustain the order of the learned Single Judge. The writ appeals are allowed and the order of the learned Single Judge is set aside, Writ Petitions are allowed and the impugned demands pursuant to Annexure H1 to H40 are quashed. The Respondent-Board is directed to execute sale "deeds in favour of the appellants subject to the appellants performing any other formalities within a period of one month from the date of receipt of a copy of this order. However, we clarify that the Respondent-Board is entitled to demand and recover from the appellants- allottees the actual enhanced cost in acquiring the land proportionately from each of the Appellants. In the facts and circumstances of the case, the parties are directed to bear their own costs.