T. Vaiphei, J.
1. The constitutional validity of the provisions of Khasi Hills Autonomous District Council (Prevention of Defection) Act, 2003 ('the Act' for short) and the rules made thereunder, namely, Khasi Hills Autonomous District Council (Prevention of Defection) Rules, 2005. ('the Rules') whereunder the writ petitioner has been disqualified as Member of the Khasi Hills Autonomous District Council ('the District Council' for short), is called into question in this writ petition.
2. The material facts of the case are not in dispute. The petitioner was elected as Member of the District Council form No. 13, Laitkroh District Council Constituency in the election held in the year 2004 for a term of five years. After holding the office of the Executive Member, Law and Elaka Administration Department in the District Council for sometime, he was ultimately appointed as the Chief Executive Member till he was removed on 5.2.2008 by a No-Confidence Motion moved against him. After his removal, three Members of the District Council, namely, Mr. M. Nongrem, Mr. H.L. Massar and Mr. Lambor Malngiang, separately submitted and moved the Chairman of the District Council under Section 3 of the Act for disqualifying the petitioner as Member of the District Council on the ground that he acted against the whip issued by the Congress party for his removal as leader of the Congress Parliamentary Party and for electing one C.B. Syiem as the leader in his place. Two other complaints were also filed by the respondent No. 5,6,7,8 and 9 jointly alleging that the petitioner, having violated the whip of his party to resign and having contested the Meghalaya Legislative Assembly election as an Independent candidate, has incurred disqualification as Member of the Council and contending that he was liable to be proceeded with in accordance with Section 3 of the Act. Many contentions have been made by the petitioner before the Chairman of the Council in contesting those complaints, which were reiterated before us, but they are not really necessary for us to deal with those contentions as the present controversy can be resolved in a narrow compass. It appears that those contentions did not find favour with the Chairman whereupon he, by the order dated 18.4.2008, declared that the petitioner stood disqualified as Member of the District Council under the provisions of the Act, and has ceased to be so with immediate effect.
3. It is contended by Mr. S.S. Dey, the learned Counsel for the petitioner that the entire action of the Chairman in passing the impugned order disqualifying him from the membership of the Council is ultra vires the provisions of paragraph 2 (6-A) of the Sixth Schedule to the Constitution, which cannot be made subservient to the Act passed by the Council and that the Council has no legislative competence to enact such a legislation. According to the learned Counsel, the powers of the Council to make laws are confined only to the legislative powers conferred under paragraphs 3, 8 and 10 of the Sixth Schedule, and the subjects and fields of its legislative domain, being specific as well as exhaustive, cannot be stretched, added or altered by the Council on its own. The power of the Parliament to legislate the Tenth Schedule to the Constitution under Articles 102(2) and 191(2) of the Constitution for disqualifying members of Parliament and members of legislative assembly respectively can, in no way, be equated with the limited law making power of the Council, which undoubtedly has no plenary power of legislation. The Act is the creature of the Sixth Schedule to the Constitution, and the creature cannot destroy or change its creator. It is thus contended by the learned Counsel for petitioner that the entire proceedings before the Chairman culminating in the disqualification of the petitioner as Member of the Council in exercise of his purported power under Section 3 of the impugned the Act, which is ex facie ultra vires the provisions of the Constitution, cannot be sustained in law, and is liable to be quashed forthwith. The learned Counsel, therefore, submits that the entire provisions of the Act and the rules made thereunder cannot be sustained in law and should be declared unconstitutional, null and void and inoperative. On the other hand, it is the contention of Mr. K.S. Kynjing, the learned senior counsel for the Council, that the Council has been constituted under the Sixth Schedule for the purpose, among others, of protecting and preserving the social customs of the tribals residing in the autonomous district council areas, and the power to make anti-defection law to subserve such purpose is clearly referable to, and is authorized by, paragraph 3(j) to the Sixth Schedule under the head 'social customs'. The Council, bearing in mind the contemptible and loathsome habit of changing political party by Members at the drop of a hat by exhibiting naked opportunism, which is striking at the very root of social customs, passed the impugned Act so as to facilitate clean and stable government in the Council. The Act has been enacted for a noble cause, namely, to prevent and curb the growing menace of unethical and unprincipled changes of political affiliations by elected Members of the Council. According to the learned senior counsel, the very fact that the Governor of Meghalaya gave his assent to the Bill shows that the Council has the legislative competence to pass the impugned Act. As the erstwhile Executive Member in charge of Law, the petitioner himself was actively involved in framing the Rules, and was thereafter instrumental in bringing out the amended Rules in 2005 in his capacity as the Chief Executive Member of the Council. It is, therefore, strenuously urged by the learned senior counsel that there is absolutely no infirmity in the impugned Act or the Rules, which ought to be upheld by this Court. Mr. G.S. Massar, the learned Advocate General, who was asked to assist this Court, is of the view that the impugned Act and Rules do not suffer from any constitutional infirmity and broadly supports the line of arguments adopted by the learned Counsel for the District Council.
4. We have given our thoughtful consideration to the various submissions advanced by the learned Counsel appearing for the rival parties. We have also taken into account the submissions made by the Ld. Advocate General. Before proceeding further, it will be necessary to have a bird's eye view of the provisions of the impugned Act. The preamble to the Act explains that the Act is to provide for prevention of defection by the elected Members of the Khasi Hills Autonomous District Council, during their term as Members of the Council, for the purpose of curbing and preventing the growing practice of shifting from one political party to another political party by the elected Members, which strikes at the very root of social customs and also to provide stability in the governance and administration. Section 2(b) defines 'District Council' to mean the Khasi Hills Autonomous District Council. Then, Section 2(d) defines the term 'House' as the Council of the Khasi Hills Autonomous District Council whereas the term 'Member' is defined by Section 2(e) to mean a member of the Khasi Hills Autonomous District Council. Section 2(g) defines the term 'political party' as the party to which a Member belongs at a time when the question of defection arises. Section 3(1) of the Act is the meat of the matter, and the same is reproduced below:
3. Disqualification of Members on ground of defection: (1) Any Member irrespective of his political affiliation shall be disqualified from such membership of the House on the following grounds:
a) That a Member has voluntarily given up, resigned, renounced, relinquished or otherwise acted against the Whip of a political party to which he is a Member during such period.
b) That during any voting inside the House, such Member violates the directive or Whip issued by his political party and that such action has not been condoned by the said political party within 15 (fifteen) days from the date of such violation of Party directive.
5. The remaining sub-sections dealing with the disqualification of an independent Member and a nominated Member with which we are not currently concerned, are accordingly not reproduced. Then, Section 4 deals with exemption during split while Section 5 pertains to exemption during merger. Section 6 relates to exemption for Chairman and Deputy Chairman from disqualification in the contingencies specified therein. Section 7 provides for the authority to decide on disqualification of a Member or Deputy Chairman, which says that if any question arises as to whether or not the Deputy Chairman or a Member of the House is subjected to disqualification under the Act, such question shall be referred to the Chairman of the District Council who shall consider the case impartially and judiciously and his decision shall be final. Needless to say, once a Member is disqualified from the membership of the House, he ceases to be a Member of the House forthwith. Paragraph 2 (6-A) of the Sixth Schedule to the Constitution deals with the term of a Member of the Council, which is in the following terms:
(6-A) The elected members of the District Council shall hold office for a term of five years from the date appointed for the first meeting of the Council after the general elections to the Council, unless the District Council is sooner dissolved under paragraph 16 and a nominated member shall hold office at the pleasure of the Governor.:
Provided that the said period if five years may, while a Proclamation of Emergency is in operation or if circumstances exist which, in the opinion of the Governor, render the holding of elections impracticable, be extended by the Governor for a period not exceeding one year at a time and in any case where a Proclamation of Emergency is in operation not extending beyond a period of six months after the Proclamation has ceased to operate:
Provided further that a member elected to fill a casual vacancy shall hold office only for the remainder of the term of office of the member whom he replaces.
What is obvious from the provisions extracted above is that the elected Member of the Council has the right to hold the office for a tenure of five years with effect from the date appointed for the first meeting of the Council after the general elections to the Council unless the Council is sooner dissolved under paragraph 16. At this, we may refer to paragraph 16 which provides for dissolution of a District Council or Regional Council, as the case may be, the relevant provisions are as follows:
16. Dissolution of a District or a Regional Council.-- (1) The Governor may on the recommendation of a Commission appointed under paragraph 14 of this Schedule by public notification order the dissolution of a District or a Regional Council, and--
(a) direct that a fresh general election shall be held immediately for the reconstitution of the Council, or
(b) subject to the previous approval of the Legislature of the State assume the administration of the area under the authority of such Council himself or place the administration of such area under the Commission appointed under the said paragraph or any other body considered suitable by him for a period not exceeding twelve months:
Provided that when an order under Clause (a) of this paragraph has been
Made, the Governor may take the action referred to in Clause (b) of this paragraph with regard to the administration of the area in question pending reconstitution of the Council on fresh general election.
Provided further that no action shall be taken under Clause (b) of this paragraph without giving the District or Regional Council, as the case may be, an opportunity of placing its views before the Legislature of the State.
(2) ***** ***** *****
(3) ***** ***** *****
(deleted as irrelevant)
6. Reading paragraph 2(6-A) and paragraph 16 of the Sixth Schedule in juxtaposition amply makes it clear that the tenure of an elected Member of the Council is five years from the date appointed for the first meeting of the Council after the general elections to the Council unless the tenure is cut short by the dissolution of the Council in accordance with the provision of paragraph 16(1). However, in the case of a nominated Member, he holds office during the pleasure of the Governor, and the tenure of five years prescribed for an elected Member does not apply in the case of a nominated Member. These are constitutional provisions, and the right of the elected Members of the Council like the petitioner to remain in office for a period of five years, unless the Council is dissolved earlier under paragraph 16, is necessarily a constitutional right. However, the tenure of the petitioner as Member of the Council for a period of five years has now been shortened by the respondents by invoking Section 3 of the impugned Act. In other words, by disqualifying the petitioner from the membership of the Council under the provision of Section 3 of the impugned Act, he is deprived of his right to remain in office for five years guaranteed by paragraph 2(6-A) of the Sixth Schedule to the Constitution. There is thus repugnancy between the provisions of the impugned Act and paragraph 2(6-A) of the Sixth Schedule to the Constitution in view of the fact that the right conferred upon the petitioner to have a normal tenure of five years by paragraph 2(6-A) is sought to be curtailed by a law passed by the District Council. It is a well-settled proposition of law that in spite of the absence of any direct conflict between two enactments, they can be repugnant to each other. For example, where the two competing laws enact divergent provisions relating to the same matter, it can be said that they would be repugnant to each other. Where, therefore, the paramount law evinces an intention, expressly or by necessary implication, to cover a subject entirely, and the subordinate law contains any new provision relating to such subject, the subordinate law would be repugnant to the paramount law. The first question which then falls for consideration is whether the District Council has the legislative competence under paragraph 2(7) read with paragraph 2(6) to enact the impugned Act. In terms of paragraph 2(6), the Governor is empowered to make rules for the first constitution of the District Councils and Regional Council in consultation with the existing tribal Councils or other representative tribal organizations within the autonomous district or regions concerned on the following matters:
(a) the composition of the District Councils and Regional Councils and the allocation of seats therein;
(b) the delimitation of territorial constituencies for the purpose of elections to those Councils;
(c) the qualifications for voting at such elections and the preparation of electoral rolls therefore;
(d) the qualifications for being elected at such elections as members of such Councils;
(e) the term of office of members of Regional Councils;
(f) any other matter relating to or connected with elections or nominations to such Councils;
(g) the procedure and conduct of business including the power to act notwithstanding any vacancy in the District and Regional Councils;
(h) the appointment of officers and staff of the District and Regional Councils.
(underline mine)
7. As for the repository of the powers to make rules after the first constitution of the District Council, this is what paragraph 2 (7) says:
7. The District or Regional Council may after its first constitution make rules with the approval of the Governor with regards to the matters specified in sub-paragraph (6) of this paragraph and may also make rules with like approval regulating--
(a) the formation of subordinate local Councils or Boards and their procedure and the conduct of their business; and
(b) generally all matters relating the transaction of business pertaining to the administration of the district or region, as the case may be:
Provided that until rules are made by the District or the Regional Council under this subparagraph the rules made by the Governor under sub-paragraph (6) of this paragraph shall have effect in respect of elections to, the officers and staff of, and the procedure and the conduct of business in, each such Councils.
8. Undoubtedly, the stage for the first constitution of the District Council was over long ago, and it is now the District Council alone under paragraph 2(7), and not the Governor but with his approval, which has the competence to make rules not only on the subjects enumerated in sub-paragraph (6) of paragraph 2 but also on the formation of subordinate local Councils or Boards and their procedure and the conduct of their business and generally on all matters relating to the transaction of business pertaining to the administration of the district or region. A close look at sub-paragraph (6) will show that the District Council has the power under Sub-clause (e) to make rules on the term of office of members of Regional Councils. Therefore, in fairness, it can be said that under Sub-clause (e), the District Council does have the competence to make rules for prescribing the term of office of members of the Regional Council, which will necessarily include the power to extend or curtail the tenure already prescribed by it. But then there is no corresponding power under paragraph 2(6) to make rules in respect of the term of office for elected members of the District Council. In the instant case, we must remind ourselves that we are interpreting a constitutional provision and cannot read anything therein by implication. So understood, we have no hesitation to hold that the District Council has no legislative power under sub-paragraph (7) of paragraph 2 read with sub-paragraph (6) of paragraph 2 to enact the impugned legislation on disqualification of members of the District Councils. If there is any lingering doubt in this behalf, we may refer to the original provision of Clause (e) of sub-paragraph (6) of paragraph 2 as it stood prior to 2.4.1970 when the Assam Reorganization (Meghalaya) Act, 1969 came into force. Under this Act of 1969, for the words 'such Councils', the words 'Regional Council' stood substituted. It is also instructive to note that in the fields of rule making powers adumbrated in Sub-clause (a) to Sub-clause (h) of sub-paragraph 6 to paragraph 2 after 2.4.1970, it is only with respect to Sub-clause (e) that the term 'District Councils' is conspicuous by its absence, which incidentally was there prior to the amendment effected in the Assam Reorganization (Meghalaya) Act, 1969. On the contrary, paragraph 2(6-A), which prescribes the term of the elected members of the District Council for five years unless the District Council is sooner dissolved under paragraph 16, was inserted by this Act. This is clearly indicative of the intention of Parliament to reserve to itself the legislative power touching upon the term of the office of the elected members of the District Council and, conversely, to deprive the District Council of the rule making power originally enjoyed by it on the tenure of an elected Member of the District Council. As was observed by Lord Macmillan: 'When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately.' The net effect of this amendment is that the legislative power of the District Council to make law touching upon the term of office of members of the Council stood wiped out after the commencement of the Assam Reorganization (Meghalaya) Act, 1969. Therefore, the impugned Act is repugnant to, or is inconsistent with, and, at any rate, ultra vires paragraph 2(6-A) of the Sixth Schedule to the Constitution, which prescribes that the elected members of the District Council shall hold office for a term of five years unless the District Council is sooner dissolved under paragraph 16. In our opinion, the Parliament in deleting the term 'District Councils' from paragraph 2(6)(e) in the Assam Reorganization (Meghalaya) Act, 1969 has categorically and unambiguously evinced an intention, expressly, to deal with the subject of prescribing the term of the office of elected members of the District Council and also an intention, by necessary implication, to cover a subject touching upon curtailment the term of office of such elected members by disqualification or otherwise on any ground whatsoever. Consequently, we hold that the District Council has no power to enact the impugned Act under paragraph 2(7) read with paragraph 2(6) of the Sixth Schedule to the Constitution.
9. This leads us to examine the existence of some other provisions in the Sixth Schedule empowering the District Council to enact the impugned Act. Paragraph 3 is the other provision in the Sixth Schedule to enable the District Council to make laws, while paragraph 10 deals with the power of the District Council to make regulations for the control of money-lending and trading by non-tribals, with which we cannot be even remotely concerned. Since Mr. K.S. Kynjing, the learned senior counsel for the District Council, is relying on paragraph 3 as the source of the legislative power to enact the impugned Act, we may as well reproduce the same in extenso:
3. Powers of the District Councils and Regional Councils to make laws.- (1) The Regional Council for an autonomous region in respect of all areas within such region and the District Council for an autonomous district in respect of all areas within the district except those which are under the authority of Regional Councils, if any, within the district shall have power to make laws with respect to--
(a) the allotment, occupation or use, or the setting apart, of land, other than any land which is a reserved forest for the purpose of agriculture or grazing or for residential or other non-agricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town:
Provided that nothing in such laws shall prevent the compulsory acquisition of any land, whether occupied or unoccupied, for public purposes by the Government of the State concerned in accordance with the law for the time being in force authorizing such acquisition;
(b) the management of any forest not being a reserved forest;
(a) the use of any canal or water course for the purpose of agriculture;
(b) the regulation of the practice of jhum or other forms of shifting cultivation;
(c) the establishment of village or town committees or councils and their powers;
(d) any other matter relating to village or town administration including village or town police and public health and sanitation;
(e) the appointment or succession of Chiefs or Headmen;
(f) the inheritance of property;
(g) marriage and divorce;
(h) social customs.
(2) In this paragraph, a 'reserved forest' means any area which is a reserved forest under the Assam Forest Regulation, 1891, or under any other law for the time being in force in the area in question.
(3) All laws made under the paragraph shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect.
10. It is the contention of Mr. K.S. Kynjing, the learned senior counsel for the District Council that the impugned Act, as the preamble clearly shows, has been enacted to check the growing menace of defection by importing the abominable political culture of Aaya Ram and Gaya Ram from outside, which is against the social customs of tribals, and squarely falls within the ambit of legislation under the head of 'social customs' of paragraph 3(1)(j) the Sixth Schedule and, therefore, the District Council has the legislative competence to enact the impugned Act. According to the learned senior counsel, paragraph 3(1)(j) should be construed liberally and should not be given restricted meaning bearing in mind the legislative intent of conferring adequate autonomy upon the District Councils to protect tribal social customs, and any other construction to this provision will be destructive of the autonomy enjoyed by the Council. On the other hand, Mr. S.S. Dey, the learned Counsel for the petitioner contends that there is a distinction between plenary legislative power and ordinary legislative power, and plenary power of legislation is given only to Parliament and the State Legislatures on the subjects assigned to each of them, though Parliament has overriding powers with regard to subjects in the Concurrent List, but the power of legislation conferred upon the District Council cannot by any stretch of imagination be equated with plenary power of legislation. In support of his contention, the learned Counsel relies on the decision of the Apex Court in District Council of United Khasi & Jaintia Hills and Ors. v. Miss Sitimon Sawian, etc. reported in : [1972]1SCR398 . He strongly refutes the contention of the learned Counsel for the District Council that the impugned Act falls within the purview of 'social customs' enumerated in paragraph 3(1)(j) and contends that no social customs are involved in political defection.
11. It is true that in the case of legislatures such as Parliament and State Legislatures enjoying plenary powers of legislation, it is a settled law that the validity of an Act is not affected if it incidentally trenches on matters outside the authorized field, and therefore it is necessary to inquire in each case what is the true character of the Act impugned. If the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another legislature. In other words, the legislative competence of legislatures enjoying plenary legislative power can only be circumscribed by the express prohibition contained in the Constitution itself. Unless there is any provision expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which such legislatures enjoy to legislate on the enumerated topics in Lists 2 and 3 of the Seventh Schedule to the Constitution. However, in the instant case, the question is whether the District Council has a plenary power of legislation like the Parliament and the State Legislatures. The question is no longer res integra following the decision of the Apex Court in Miss Sitimon Sawian case (supra). In that case, it was held that the power of legislation conferred on bodies like the District Councils must be confined strictly within the limits prescribed by the plain language used and the doctrine of wide construction seems to be somewhat inept. The top court further observed that '(W)e are not concerned with the provisions conferring plenary nature of legislative power on the Parliament or State Legislature in which case the appellant's argument may be more appropriately accepted'. The Apex Court in para 16 of the same judgment held:
16. It is clear from this provision (paragraph 12 of the Sixth Schedule), read with Para 3(1)(a) already reproduced, that the District Councils unlike the Parliament and the State Legislatures are not intended to be clothed with plenary power of legislation. Their power to make laws is expressly limited by the provisions of the Sixth Schedule which has created them and they can do nothing beyond the limits which circumscribe their power. It is beyond the domain of the courts to enlarge constructively their power to make laws.
12. It can, therefore, now be taken to be the law that bodies such as District Councils constituted under the Sixth Schedule do not enjoy plenary power of legislation and that in construing the provisions conferring power upon the District Councils to legislate, the words use in paragraph 3(1) should not be broadly interpreted but must be confined strictly within the limits prescribed by the plain language used, and the doctrine of wide construction is plainly not applicable. The District Councils are the creatures of the Sixth Schedule, and cannot destroy their creator. The term 'social customs' employed in paragraph 3(1)(j) can only mean general rules and practices that have become generally adopted through unvarying habit and common use or practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws (see Black's Law Dictionary, 7th Edn.). These are the plain meaning of the term 'social custom', and have nothing to do whatsoever with political defection. Under the guise of making rule on social customs, the District Council cannot overreach itself and enact a law preventing or penalizing defection by members of the Council, howsoever immoral and unprincipled chameleon-like such conduct may be. In our judgment, the plain language of paragraph 3 (1) (j) does not admit of any ambiguity nor can it permit us to stretch the same so as to include within its ambit the power to make law for prevention or punishing a member of the Council for defecting from one political party to another party. On the other hand, it is our firm view that the direct and inevitable consequence of enacting the impugned Act is practically amending a constitutional provision like paragraph 2 (6-A) of the Sixth Schedule, which prescribes the tenure of an elected member of the Council to be five years; this incidentally or accidentally, if not deliberately, trenches on the legislative power expressly reserved for the Parliament, and is plainly impermissible. The constitutional position as it stands now is that an elected member of the District Council has the right to remain in office for a period of five years unless the District Council is sooner dissolved in accordance with the procedure laid down in paragraph 16.
13. Paragraph 21 of the Sixth Schedule deals with amendment of the Schedule, which is in the following terms:
21. Amendment of the Schedule.- (1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended , any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.
(2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to an amendment of this Constitution for the purposes of Article 368.
14. Paragraph 21 extracted above plainly indicates that it is the Parliament, and Parliament alone, which has the legislative power to amend by way of addition or variation or repeal the provisions of the Sixth Schedule. If the tenure of the elected Members of the Council is sought to be curtailed by disqualification or otherwise, that can be done only by the Parliament by amending the provision of paragraph 2(6-A) by taking recourse to paragraph 21. In other words, the constitutional right of elected Members of the Council to remain in office for five years, unless dissolved earlier in accordance with paragraph 16, cannot be abridged or curtailed by the impugned Act enacted by District Council. What cannot be done directly cannot be done indirectly. In the view that we have taken, we hold that the impugned Act and the rules made thereunder are ultra vires the Constitution, illegal and inoperative, and are liable to be struck down. Consequently, the impugned order dated 18.4.2008 (Annexure-6) and the proceedings initiated against the petitioner in connection therewith by invoking the impugned Act and the rules made thereunder are equally unsustainable, and are, therefore, liable to be quashed.
15. The off-shoot of the foregoing discussion is that this writ petition succeeds. The Khasi Hills Autonomous District Council (Prevention of Defection) Act, 2003 and the Khasi Hills Autonomous District Council (Prevention of Defection) Rules, 2005 are hereby declared invalid and null and void and are, accordingly, struck down. As a natural corollary to that, the order dated 18.4.2008 issued by the Chairman, Khasi Hills Autonomous District Council under Section 3 of the impugned Act disqualifying the petitioner from the membership of the Council also stands quashed. Consequently, the Chairman of the Council, namely, the respondents No. 2, is directed to reinstate the petitioner to the office of Member of the District Council with all the rights, privileges and facilities enjoyed by him heretofore within fifteen days of the receipt of this judgment and shall also pay his back wages within a period of one month next thereafter
16. However, on the peculiar facts and circumstances of the case, we pass no order as to costs.