S.N. Deshmukh and ors. Vs. the Medical Council of India and ors. - Court Judgment

Excerpt:
- - more material need not be culled out from the minutes, for the aforementioned instances suffice to indicate that the cause of medical education in the state had exercised the minds of the members of the council it is natural that the members of the medical profession, like the petitioners, have an interest in such matters.order1. this petition under article 226 of the constitution impugns the competence of respondents 2 to 5 to occupy offices in the first respondent council and exercise powers and privileges vested in the office-bearers of the said council.2. respondent 1 is the medical council of india (council) and its composition, functions and powers have been codified into the indian medical council act, 1956 (act 102 of 1956). respondents 2 to 5 were elected to the council by the senate/syndicate of the universities of patna, bihar, mithila and magadh. the patna university is governed by an enactment known as the patna university act of 1976 (bihar act 24 of 1976). the other three universities viz. bihar, mithila and magadh universities are governed by the bihar state universities act, 1976 (bihar.....

Judgment:
ORDER

1. This petition under Article 226 of the Constitution impugns the competence of respondents 2 to 5 to occupy offices in the first respondent Council and exercise powers and privileges vested in the office-bearers of the said Council.

2. Respondent 1 is the Medical Council of India (Council) and its composition, functions and powers have been codified into the Indian Medical Council Act, 1956 (Act 102 of 1956). Respondents 2 to 5 were elected to the Council by the Senate/Syndicate of the Universities of Patna, Bihar, Mithila and Magadh. The Patna University is governed by an enactment known as the Patna University Act of 1976 (Bihar Act 24 of 1976). The other three Universities viz. Bihar, Mithila and Magadh Universities are governed by the Bihar State Universities Act, 1976 (Bihar Act 23 of 1976). Respondents 2 to 5 came to the Council vide Section 3(1)(b) of the Indian Medical Council Act, which section reads as follows: --

'3(1)(b). The Central Government shall cause to be constituted a Council consisting of the following members, namely : -- One member from each University, to be elected from amongst the members of the medical faculty of the University by members of the Senate of the University or in case the University has no Senate, by members of the Court.'

Respondent 2 is the President of the Council and Section 3(2) of the Indian Medical Council Ac t provides that the President of the Council shall be elected by the members of the Council from amongst themselves. Section 7 of the Indian Medical Council Act which has a large bearing on the questions arising in this petition requires to be set out to the extent material and it runs thus : --

'7. Term of office of President, Vice-President and members.

(1) The President or Vice-President of the Council shall hold office for a term not exceeding five years and not extending beyond the expiry of his term as member of the Council.

(2) Subject to the provisions of this section, a member shall hold office for a term of five years from the date of his nomination or election or until his successor shall have been duly nominated or elected, whichever is longer.

(3) An elected or nominated member shall be deemed to have vacated his seat if he is absent without excuse, sufficient in the opinion of the Council from three consecutive ordinary meetings of the Council, or in the case of a member elected under Clause (b) of Sub-section (1) of Section 3, if he ceases to be a member of the medical faculty of the University concerned...........'

The Patna and Bihar State Universities Acts of 1976 prescribed a term of office of members of their Senates. The prescription was commonly worded and Section 19 of the Bihar State Universities Act, 1976 need alone be reproduced. It is worded thus : --

'19. Term of office of members of the Senate -- The term of office of members of the Senate, other than the ex-officio members, the members whose term has been specified under this Act and the Life members, shall be three years from the date of their election or nomination, as the case may be, and shall include any further period which may elapse between the expiration of the said three years and the date of the next succeeding election or nomination not being an election or nomination to fill up any casual vacancy under Section 64 :

Provided that a member elected, or nominated as a representative of any body shall be deemed to have vacated office with effect from the date on which he ceases to be a member of the body which elected or nominated him.'

Respondents 2 to 5 came to the faculty of Medicine and represented-

'such members of the Senate as are not teachers, their number in any faculty not exceeding one-fifth of the total number of members of that faculty, other than the Faculty of Agriculture, Engineering, Law, Medicine, Commerce or Veterinary Science and as may be elected from amongst and by Senate in the manner prescribed by the Statutes:

Provided that in the case of the Faculty of Agriculture, Engineering, Law, Medicine, Commerce or Veterinary Science, the number of members of the Senate who are not teachers shall be such as may be prescribed by the Statutes.'

(see Section 26(4)(b) of the Bihar State Universities Act, 1976)

In December 1986, the Governor of Bihar promulgated two Ordinances being the Patna University (3rd Amendment) Ordinance, 1986 and a similar Ordinance for the purpose of amending the Bihar State University Act. These Ordinances were later replaced by Patna University (Amendment), Ordinance, 1987 and the Bihar State Universities (Amendment) Ordinance, 1987. The object of these two Ordinances, amongst other things, was to proclaim that the existing Senates of the Universities had ceased to exist and that the powers and duties of the Senates were to be discharged by the Vice-Chancellor, so long as new Senate were not constituted.

3. Petitioners claim to be members of the Medical Profession at Bombay. It is averred that the respondent 1-Council is incharge and control of medical education all over India. This control includes the curriculum, examinations, recognition of qualifications of various Universities, maintenance of standards of medical education and professional conduct and various other important tasks and functions. Respondents 2 to 5 came to the Council only by virtue of their membership of the Senates of their respective Universities. Section 7(3) of the Indian Medical Council Act provides that an elected member shall be deemed to have vacated his seat as soon as he ceases to be a member of the Medical faculty of the University concerned. Having regard to the Ordinances aforementioned, and as from17-12-1986, respondents 2 to 5 had ceased to be members of the Medical faculty of their respective Universities. Therefore, their membership of the Council stood automatically terminated. Respondent 2 also ceased to be the President of the Council inasmuch as his membership of the Council lapsed with the abolition of Senate under the Ordinance amending the Patna University and Bihar State Universities Acts. Despite this clear position in law, respondents 2 to 5 continued to style themselves and exercise the powers and privileges attached to the membership of the Council. Petitioners had a vital right to see that the membership of the Council vested in the proper persons and that the functions of the Council were discharged by those duly competent to represent it. They claimed a declaration that respondents 2 to 5 had ceased to be members of the Council and a direction to the Council to forthwith prohibit respondents 2 to 5 from acting as members of the Council. As to the jurisdiction of this Court to entertain and give relief upon the petition, it was averred that the Council was entrusted the task of maintaining the Indian Medical Register and such registration conferred the privilege of practise throughout India. Petitioners were members of the Medical Profession enlisted in the said Register. Each and every decision of the Council would affect the interests of the Medical Profession, existing and future, in the State of Maharashtra. Petitioners represented such Medical Practitioners in Maharashtra and the perpetration in office by respondents 2 to 5 would affect the vital rights of the petitioners and their constituents in this State.

4. The returns filed on behalf of respondents 1 to 5 deny the correctness of the inference drawn by petitioners vis-a-vis the continuance of respondents 2 to 5 membership of the Council. Respondent 2in addition contends that even if the inference of the petitioners based upon the Ordinances be correct, his membership as also President ship of the Council is not affected. This is because in August, 1987 he had been elected for a further period of five years to the Council from another constituency. No part of the cause of action to question the membership of respondents 2 to 5 has arisen within the territory over which this Court has the jurisdiction. Therefore, on this ground also the petition is liable to be dismissed.

5. The first issue to which I have to address myself is in regard to the jurisdiction of this Court to entertain and decide the petition. Article 226(2) of the Constitution confers power one High Court to issue certain writs : --

'in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.'

Para 18 of the petition enumerates the grounds on which this Court has jurisdiction to try the petit ion. It is said that the Council is the sole statutory body in charge and control of medical education inclusive of the curriculum, examinations, recognition of qualifications, standards of professional conduct etc. etc. in the whole of the country. Under Section 21 of the Indian Medical Council Act, it is the Council which Js entrusted with the work of maintaining the Indian Medical Register. Section 27 of the Act entitles members enrolled in the Register to practise throughout India. Any and every decision taken by the Council vitally affects the interests of the members of the Medical Profession. Petitioners are members of the Profession working in the State of Maharashtra and representative of various interests of that Profession in the State. I have been referred to Sections 11 to 14, 16 to 21 and 33 of the Indian Medical Council Act in support of the above submission. As against this, Counsel for the respondents point out that no part of the cause of action has arisen within the territorial jurisdiction of this Court. The Council's headquarters are at Delhi. Respondents 2 to 5 were declared elected to the Council in an election held at Delhi. They allegedly lost their membership of the Council by virtue of ordinances promulgated in the State of Bihar. To appraise the rival submissions, it will be necessary to make a quick survey of the different provisions of the Indian Medical Council Act as also authorities having a bearing on the subject.

6. The Indian Medical Council Act isdesigned to 'provide for the reconstitution of the Medical Council of India and the maintenance of a Medical Register for India and for matters connected therewith'. The Act extends to the whole of India. Section 6 provides that the Council shall be a body corporate, having perpetual succession and a common seal, with powers to acquire and hold property and to contract and the capacity to sue and also to be sued. Section 8 lays it down that the Council shall meet at least once in each year at such time and place as may be appointed by the Council. Section 11 provides for mandatory consultation with the Council by the Central Government upon the latter receiving a request from a University of Medical Institution in India for recognition of a medical qualification not included in the First Schedule. Section 12 mandates a consultation with the Council by the Central Government in the matter of recognition of medical qualifications in countries with which there is a scheme of reciprocity. Section 13 makes it incumbent upon the Central Government to consult the Council when it proposes to amend Part II of the Third Schedule which deals with qualifications granted by a Medical Institution outside India which is not included in the Second Schedule. In relation to medical qualifications granted by medical institution from countries with which there is no scheme of reciprocity, the provision governing is Section 14. Recognition of such qualifications though given by the Central Government, is to be so given after consultation with the Council. Section 16 empowers the Council to call for such information as it may require from every University or medical institution in the country which grants a recognised medical qualification. Medical institutions, colleges, hospitals or other institutions where medical education is given can be inspected by medical inspectors appointed by the Executive Committee of the Council. This is provided by Section 17, while Section 18 provides for visitors at examinations conducted by medical institutions, colleges and hospitals etc. Section 19 confers upon the Council the power to recommend withdrawal of recognition. Section 19A enacts that the Council may prescribe the minimum standards of medical education required for granting recognised medical qualification byUniversities or medical institutions in India. The Post-graduate Medical Education Committee to advise the Central Government in regard to Post-graduate medical education, is to consist of members of the Council. Section 20-A empowers the Council to prescribe standards of professional conduct and etiquette. Section 21 authorises the Council to maintain the Indian Medical Register. Enrolment in the Indian Medical Register is dealt with by Section 23. Section 24 deals with the removal of names from the Indian Medical Register. A person aggrieved by the removal of his name from the State Medical Register has a right of appeal to the -Central Government; but the Central Government in turn is bound to consult the Council before giving its decision on the appeal. Section 33 empowers the Council, of course with the previous sanction of the Central Government to make regulations to carry out the purposes of the Act. The submission that the Council has no more than a consultative status may sound technically correct; but the right to be consulted, and a statutory right at that, is no trifling matter. In matters relating to the practise of medicine, the Council's jurisdiction is country wise and all pervasive. The mere fact that in all matters it is the Central Government which decides what action to take, does not mean that the Council is a toothless body. Representing the medical profession of India as it does, it is not difficult to conceive the criticism to which the Central Government would be subjected, were it to ignore the provisions of the Act calling for consultation or the recommendations made by the Council upon being consulted, by the Central Government. Having regard to the width of the power, I will now turn to some of the instances quoted by the petitioners in support of the contention that the Council's decisions in regard to Maharashtra have an intense impact in the territory over which this court has jurisdiction.

7. Minutes of the Council's meetings held on different dates have been placed on record A cursory survey shows that on 6-3-1986, the Executive Committee discussed at least two matters arising out of problems of medical education in Bombay. The first pertained to cases of students from various MedicalColleges under the Bombay Municipal Corporation wanting to migrate to Topiwala National Medical College. Bombay. This discussion was occasioned by a decision of this High Court. Next was a request of the Dean. T. N. Medical College to permit the filling up of a vacant seat allotted to students of Patilputra Medical College, Dhanbad. On Nov. 20, 1986, the subjects discussed included the request of a Medical College established at Amravali for affiliation to the Amravati University. Next was a similar request made by Krishna Institute of Medical Sciences at Karad for affiliation to the Shivaji University. The third was a request on the same lines by the Medical College of Pravara Medical Trust seeking affiliation to Pune University. At its meeting held on Sept. 30, 1985, the agenda had for deliberation a decision of the Executive Committee to go in appeal against a judgment of this Court in the case of Dr. Arun H. Bakle. More material need not be culled out from the minutes, for the aforementioned instances suffice to indicate that the cause of medical education in the State had exercised the minds of the members of the Council It is natural that the members of the medical profession, like the petitioners, have an interest in such matters. The profession in the country is one and the Council's deliberations on topics of general interest are not of less importance to members of the profession from the different States. As 'said earlier, the statute i.e. the Indian Medical Council Act, requires mandatory consultation with the Council on matters of importance. The advice which the Council tenders has an important bearing on the profession -- its past, present and future.

8. The argument of Mr. Singhvi representing respondents 2 to 5 is that the issue of jurisdiction arising in the present petition will have to be decided with reference to not what the Council can do, but what it has done to be hauled up by the petitioners. For deciding this question, so argues the Counsel, nothing more than the cause of action has to be ascertained. The cause of action according to Mulla's definition in his book on the Code of Civil Procedure means, 'every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court'. Here, petitioners' grievance is in respect of the alleged illegal occupation of the membership of the Council by respondents 2 to 5. The office has an inextricable nexus with Delhi where the headquarters of the Council are situated. The alleged disqualification was incurred by respondents 2 to 5 in Bihar pursuant to the Ordinances. It is the alleged illegal continuance in office at Delhi despite the loss thereof in Bihar which petitioners are required to prove. That constitutes the cause of action, and so appraised, it cannot be said that any part of the cause of action has arisen within the territory of Maharashtra. To support this contention, Mr. Singhvi relies upon the Purtabpore Co. Ltd.'s case, : AIR1969All105 and M/s. Swaika Properties' case, : [1985]3SCR598 . In the first case, the applicability of Sub-articled (1A) of Article 226 (now substituted by Sub-article (2)) came up for consideration vis-a-vis an order of the Cane Commissioner reducing the area for sugarcane purchase reserved for petitioner's sugar factory situated in U.P. Another order impugned was that allotting the excluded area for respondent's sugar factory situated in Bihar. The petition under Article 226 to challenge the above orders met with the preliminary objection that no part of the cause of action for the reliefs claimed, arose within the territory of U.P. for which reason the Allahabad High Court had no jurisdiction to entertain the said petition. The petitioner countered with the plea that the order had been communicated to it as its address in U.P. and that that communication constituted part of the cause of action. The learned single Judge ruled that the only fact of communication by a method other than that prescribed by the statute could not constitute the cause of action whether wholly or in part. The entire cause of action had arisen outside the jurisdiction of the Allahabad High Court. In the Swaika Properties' case, the subject-matter of the petition under Article 226 before the Calcutta High Court was a notification issued under Section 52(2) of the Rajasthan Urban Improvement Act, 1959 relating to land belonging to the petitioners situated in Rajasthan. Service of notice was effected on the petitioners' address at Calcutta and that service was made the occasion for the filing of the petition in the Calcutta High Court.

The Calcutta High Court entertained the petition by issuing a Rule Nisi and also an ad interim order restraining the State of Rajasthan from taking any steps under Section 52(5) of the aforementioned Act. The order of the Calcutta High Court was impugned in an appeal to the Supreme Court. Mr. Justice A. P. Sen speaking for the Court observed: --

'The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52( 1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dt. Feb. 8, 1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52( 1) of the Act.'

On a parity of reasoning, Mr. Singhvi submits that the amplitude of the Council's power is not germane to the limited questions which arises in the present lis. This argument is countered by Ms. Iyer on behalf of the petitioners by pointing out that the declaratory and injunctive reliefs claimed in the petition embrace not only illegal occupation of office by respondents 2 to 5, but also their being in position to influence decisions which have ramifications all over the country including the State of Maharashtra. Some of the observations made by Mr. Justice Subba Rao(as he then was) in Khajoor Singh's case, : [1961]2SCR828 and the Methodist Church's case are pressed into service by Ms. Iyer. In Khajoor Singh's case Subba Rao, J. dissented on the scope of Article 226 as it then stood, and, one of the propositions formulated by the learned Judge was : --

'When by exercise of its powers the Union Government makes an order infringing the legal right or interest of a person residing within the territories in relation to which a particular High Court exercises jurisdiction, that High Court can issue a writ to the Union Government, for the law it must be deemed to be 'within' that State also.'

To go back a bit, the Indian Medical Council Act, 1956 shows that the Council does not have a fixed habitation or abode. Section 8 authorises it to meet at any place selected by it. That the office of the Council is presently at Delhi, does not mean that that city is its abode. Latent in the statutory freedom to meet where it likes is the implication that its secretariat also is a mobile one, the present location at Delhi being neither permanent nor the only place where it can be situated This would therefore not confine the writ power exercisable against the Council to the territorial limits of Article 226(1). Let it be remembered that Sub-clause (2) of Article 226 was introduced into the basic document to surmount the majority opinion in Khajoor Singh's case (supra). In this background, the proposition reproduced above seems to be directly attracted to the facts of the present case. The Council is not confined by territory to any particular State. Therefore, wherever it meets, five places in the membership of the Council will be occupied by persons allegedly incompetent to occupy it. Does it therefore mean that the petitioners should wait for the Council to fix the place where it is next going to meet and then approach the High Court of the territory concerned to assail the competence of respondents 2 to 5 to attend the meet That would be subjecting persons seeking redress to avoidable uncertainty and expense. When the Council has all India jurisdiction and when it can meet anywhere, not excluding the territory of Maharashtra, I would say that petitioners can approach any High Court in India including the BombayHigh Court for redress. More particularly, the cause of action in this petition is not restricted to the occupancy of the membership of the Council by respondents 2 to 5. It also includes the relief of injunction to prohibit respondents 2 to 5 from participating in the deliberations of the Council the deliberations will cover topics arising and relating to medical education and the practice of medicine in the State of Maharashtra. For the grant of injunctive relief, it is not necessary that the person seeking the same should wait until the wrong act has been done. That the wrongdoer is in a position to do the wrong, is enough to entitle the claimant to move the Court for an injunction. The decisions relied upon by Mr. Singhvi do not apply to the instant case. In the said decisions, the High Courts concerned were asked to exercise jurisdiction on the wrong premise that the cause of action had arisen within the territory over which they had jurisdiction. In both cases, it was a non-essential if not non-statutory mode of communication, which led the petitioners to approach the wrong Courts. In this case the position is different. The Council is an all India body, it can meet where it likes and its decisions have an impact all over the country not excluding Maharashtra, Therefore, the fact that petitioners have chosen to sue in their home-ground is not sufficient to throw out this petition. There is the additional fact that the cause of action, at least partially in the sense of respondents being in a position to take decisions which will have am impact in Maharashtra, bring the petitioners within the ambit of Sub-clause (2) of Article 226 of the Constitution. The objection of the jurisdiction of this Court is hereby overruled and I now turn to the merits.

9. Counsel for the respondents went at great length into a 'medical faculty' being different from the 'Senate' under the Patna and Bihar State Universities Acts. It was contended that even if the Senates had ceased to exist, the medical faculties had not. Respondents 2 to 5 represented the Universities which continued to exist and the extinction of the Senates did not deprive them of the right to represent the Universities concerned. The short answer to this contention is that the life of the medical faculty is coeval with that of the Senate. When theSenate ceased to exist -- and undeniably the Ordinances have that effect -- the medical faculties also disappeared. The statutes framed by the Patna University in so far as they relate to faculties contain the following clauses:--

''1.2. The total number of members of the Senate as are non-teachers to be elected from and by the Senate to the Faculties shall be as provided hereunder :--

(c) Medicine 4

5. The term of office of non-teacher-members of the Faculty shall commence from the date of their election and shall terminate on the date on which they cease to be members of the Senate.'

Statutes framed under the Bihar State Universities Act have not been placed on record. But having regard to the close resemblance between the two Acts and the Ordinances, it can be inferred that the statutes framed under the Bihar State Universities Act must be identical to those framed under the Patna University Act. This means that cesser of membership of the Senate has the automatic effect of weeding out the member from the medical faculty. Therefore, Section 7(3) of the Indian Medical Council Act is attracted, unless of course Sub-section (2) of that section applies or the membership continues because of the alleged document existence of the Senate and medical faculty by virtue of the Ordinances transferring their powers to the Vice-Chancellor.

10. Sub-section (2) of Section 7 of the Indian Medical Council Act cannot come to the aid of respondents 2 to5 because the very opening words of the sub-section make it clear that the provision made therein is 'subject to the provisions of this section.' Sub-section (3) therefore will have to be read as overriding the continuance provided for by Sub-section (2). There remains the submission that the Senates of the two Universities have been placed under suspended animation and, their powers vested in the Vice-Chancellors of the two Universities. The argument is that the representative capacity of respondents 2 to 5 remains unaffected, with this change that whereas formerly they were part of the Senates, they now represent the Vice-Chancellors embodying the powers and dutiesof the Senates. The words used in the Ordinances indicate something very different. The Senates which had elected respondents 2 to 5 are extinguished by the use of the words 'shall cease to exist.' The existing Senates are abolished and their powers and duties are to be discharged by the Vice-Chancellor. The Vice-Chancellor is to exercise the powers and duties not during any period of suspended animation. He shall exercise those powers and duties, so long as a new Senate is not constituted. This shows that there is going to be no revival of the old Senates. Those Senates have been extinguished and the expectation is that new Senates will be constituted, till which event the powers and duties of the Senate under the enactments will be discharged by Vice-Chancellor. The words used in the Ordinance are incompatible with the theory of suspended animation propounded for respondents.

11. The last question to which I have to address myself is as to the right of the respondent 2 to function as the President of the Council. It was argued that his membership of the Council continues, and therefore, his right to continue as a President remains unaffected. Ms. Iyer questions this contention contending that when elected as the President, respondent No. 2 represented a constituency other than that which has enabled him to come afresh to the Council. The President ship secured as a member of the medical faculty of the Patna University will disappear and unless respondent 2 offers himself for a fresh election to the post of a President, he cannot continue to function as the President. Section 3(2) of the Indian Medical Council Act provides for the Council electing from amongst its -members, the President and the Vice-president. Section 7(1) lays it down that the President or the Vice-President of the Council shall hold office for a term not exceeding five years and not extending beyond the expiry of his term as member of the Council. Now when respondent 2 was elected as the President, he was a member of the Council having been elected from the constituency contemplated by Section 3(1)(b) of the Act. That constituency has been abolished and the natural effect is that respondent 2's membership of the Council qua the abolished constituency hasexpired. Having come in from a fresh constituency, he cannot cling on to an elective office secured by him when he represented a different constituency. This is the combined effect of Sections 3( i)(b), 3(2), 7(1) and 7(2) of the Act. Any other construction would be violative not only of the language of the enactment, but also of the spirit underlying representative democracy.

12. To sum up, the petition succeeds. Declared that respondents 2 to 5 have ceased to be members of the Council as representing the Patna, Bihar, Mithila and Magadh Universities. This declaration will not affect the membership of the Council acquired by respondent No. 2 vide the certificate of election dt. 29-8-1987 being Ex. A to his return dt. 19-9-1987. Declared further that respondent 2 cannot retain the President ship of the Council acquired when he was representing the Patna University on the said Council. The Council shall forthwith prohibit respondents 2 to 5 from acting in contravention of the declaration given above, Rule in these terms is made absolute, with parties being left to bear their own costs.