PALGHAT JILA THANDAN SAMUDAYA SAMRAKSHA SAMITHI AND ANR.versusSTATE OF KERALA AND ANR.

A        PALGHAT JILA THANDAN SAMUDAYA SAMRAKSHA
                                                                                  ..
                       SAMITHI AND ANR.
I
                               v.
I
                  STATE OF KERALA AND ANR.

                              DECEMBER 3, 1993
B
      [R.M. SAHAI, S.P. BHARUCHA AND N. VENKATACHALA, JJ.]                        i

          Constitution of India-Arts. 341, 366(24Konstitution (Scheduled
    Castes) Order, 1950-Scheduled Castes and Scheduled Tribes (Amendment)
c   Act, 1976-0rder of Government of Kera/a-Order dated 24th November,
    1987-ldentification of Schedule Castes-Thandan Community in Malabar
    area of Kera/a-Whether entitled to be treated as a Scheduled Caste-Power
    of State government to issue the said Orde~Scheduled Castes Order to _be
    applied as it stands-State Government or Court not empowered to enquire
                                                                                  c::
    whether or not a particular community falls in it.
D
          These writ petitions and appeals have been filed in regard to the
    validity of the decision of the State of Kerala not to treat members of the
    Thandan community belonging to the erstwhile Malabar District, includ·
    ing the present Palghat District, as members or the Scheduled Castes. The
E   writ petitions pray that the State Government should continue to grant to
    members or this community all the benefits due to a caste included in the
    Schedule to the Constitution (Scheduled Castes) Order.

          On 17th May, 1979, the Government or Kerala issued an order which
    noted that upon the coming into force or the Scheduled Castes and
F   Scheduled Tribes (Amendment) Act, 1976, the Thandan community
    throughout the State or Kerala came to be included in the list of Scheduled
    Castes. On 15th October, 1984 the Government of Kerala issued a order
    cancelling the 1979 order. The 1984 order was modified by the order of the
    Government of Kerala by an order dated 24th November,1987, which is
G   under challenge before this Court.

          The petitioners submitted that once a group of persons known by a '
    caste name was specified· in the Scheduled Castes Order, the same was
    binding upon all. The State government was not empowered to modify the
    same in the manner in which it had purported to do by the issuance or the
H   1987 order.
                                       872

                                                                                  ~--
                          S. SAMITHI v. STATE                           873

       The State Government contended that persons named or called A
Thandan in the Malabar area were not intended to be covered by the
Scheduled Castes Order and the State Government was, therefore, entitled
to issue the 1987 order.

      Disposing of the Matter, this Court
                                                                               B
       HELD : 1.1 Article 341 of the Constitution empowers the President
to specify ·not only castes, races or tribes which shall be deemed to be
Scheduled Castes in relation to a State but also "parts of or groups within
castes, races or tribes" which shall be deemed to be Sheduled Castes in
relation to a State. By reason of Article 341 a part or group or section of a
caste, race or tribe, which, as a whole, is not specified as a Scheduled Caste, C
may be specified as a Scheduled Caste. Assuming, therefore, that there is
a section of the Ezhavesfl'hiyyas community (which is not specified as a
Scheduled Caste) which is called Thandan in some parts of Malabar area,
that section is also entitled to be treated as a Scheduled Caste, for Than-
dans throughout the State are deemed to be a Scheduled Caste by reason D
of the provisions of the Scheduled Castes Order as it now stands. Once .
Thandans throughout the State are entitled to be treated as a Scheduled
Caste by reason of the Scheduled Castes. Order as it now stands, it is not
open to the State Government to say otherwise, as it has purported to do
in the 1987 order. (880-D-F]
                                                                              E
      1.2. The Scheduled Castes Order has to be applied as it stands and
no enquiry can be held or evidence let in to determine whether or not some
particular community falls within it or outside it. No action to modify the
plain effect of the Scheduled Castes Order, except as contemplated by
Article 341, is valid. (881-B-C]                                               p
     Sirish Kumar Choudhary v. State of Tripura & Ors., (1990) Supp. SCC
220; B. Basavalingappa v. D.Munichinnappa, (1965] 1 SCR 316 and
Bhaiyalal v. Hari Ki.shan Singh & Ors. (1965] 2 SCR 877, relied on.

     Bhaiya Ram Munda v.Anirndh Patar, (1971] 1 SCR 804 and Dina v. G
Narayan Sinha, 38 FIR 212, distinguished.

      1.3. The Thandan community in the instant case having been listed
in the Scheduled Castes Order as it now stands, it is not open to the State
Government or to this Court to embark upon an enquiry to determine
whether a section of Ezhaveasfl'hiyas which was called Thandan in the         H
    874                    SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A Malabar area of the State was excluded from the benefits of the Scheduled
    Castes Order. [881-C-D]

          2. State Government is directed to grant to all members of the
    Thandan community, including those belonging to the erstwhile Malabar
    District and the present Palghat District, the benefits due to a Scheduled
B   Castes included in the Schedule to the Constitution Scheduled Castes
    Order as amended upto date and to issue to them community Certificates
    accordingly. The order of the State Government dated 24th November,
    1987 is quashed and set aside. [882-F-H]

C        CIVIL ORIGINAL APPELLATE JURISDICTION : Writ Petition
    (C) Nos. 12486-87of1984.

            (Under Ai-tide 32 of the Constitution of India.)

                                       WITH
D           CA. No. 4807/84, S.L.P. (C) No. 6457/90 and S.L.P. (C) No. 3746 of
    1992.                                                                 '

         C. Sitaramiah· and N. Sudhakaran for the Petitioners in W.P. 12486-
    87 and C.A No. 4807 of 1984.
E           IA.No. 1 Respondent-in-person.

         S. Sukumaran, N. Sudhakaran for the Respondent in S.L.P. 6457/90
    and 3746 of 1992.

F         A. Ahmed, Attional Solicitor General, (N.P.) G.V. Iyer, and M.A.
    Firoz for the Respondent.

            The Judgment of the Court was delivered by

          BHARUCHA, J. 1. Leave granted in the two special leave petitions,
G   S.L.P. (C) Nos. 6457/90 & 3746/92.

          2. The principal questiOn that arises in these writ petitions and
    appeals is in regard to the validity of the decision of the State of Kerala
    not to treat member of the Thandan community belonging to the erstwhile
    Malabar District, including the present Palghat District, of the State of
H   Kerala as members of the Scheduled Castes.
                S. SAMITHI v. STATE [BHARUCHA, J.)                   875

      3. The writ petitions pray that the State Government should continue A
to grant to members of the Thandan community belonging to the erstwhile
Malabar district, including the present Palghat district, all the benefits due
to a caste included in the Schedule to the Constitution (Scheduled Castes)
Order.

       4. The appeals arise out of a writ petition (OP 2421of1982) filed in
                                                                            B
the High Court of Kerala by Miss O.K. Lakshmikutty. She had, in an earlier
writ petition (OP 2000of1980), claimed that she belonged to the Thandan
community and, therefore, to a Scheduled Caste and sought a direction
that she be issued a Community Certificate accordingly. The High Court
allowed that writ petition. Miss Lakshmikutty had then to file the writ C
petition out of which the principal appeal arises because she was denied
admission to the first year M.B.B.S. course, 1981-82, in a seat reserved for
the Scheduled Castes on the ground that she was not a Thandan. In the
judgment and order under appea~ the High Court noted that Miss
Lakshmikutty had earlier obtained relief as aforesaid. It then noted the D
affidavit filed on behalf of the State Government in reply to the writ
petition before it wherein it was stated that there was no Thandan com-
munity in the Palghat district ex~pt in certain parts of Chittur Taluk which
were formerly part of the erstwhile Trevancore Chochin State. Th~ State
Government had, after the inclusion of Thandan in the Scheduled Castes
Order by reason of the Amendment Act, 1976, made enquiries which had E
revealed that a section of Ez)iavas(l'hiyyas of the Malabar area and certain
Taluks of Trichur district who were called Thandans had nothing in
common with the Scheduled Caste Thandans. Reference to authoritative
texts seemed· to indicate that there was a serious controversy. The High
Court, therefore, directed the state government to conduct a public en- p
quiry to determine whether there was as community called Thandan dis-
tinct from Ezhavas in Palghat District and in areas other than in the
erstwhile Chittur Taluk and also in any other place in the erstwhile M•bar
District. The enquiry was also required to determine whether Miss
Lakshmikutty belonged to the Thandan community. In the meantime Miss
Lakshmikutty was given provisional admission to the M.B.B.S. course in a G
reserved seat and it was made clear that if it was found that she was not a
member of the Thandan community entitled to the benefit of reservation,
she would forfeit her seat.

      5. Upon completion of the M.B.B.S. course Miss Lakshmikutty ap-      H
    876                  SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A plied for admission to a post-graduate course in a reserved seat and, upon
    being denied admission, filed another writ petition before the High Court
    (OP 2609/89). She was given admission subject to the result of these
    matters before us. The appeal arising out of SLP (C) No. 6457/90 is filed
    by the State of Kerala thereagainst.
                                                                                       )
B         6. One K. Swamidasan filed before the High Court a writ petition
    (OP No. 6780/87) in similar circumstances. He was also given admission by
    the High Court subject to the result of these matters before us. The appeal
    arising out of SLP (C) No. 3746/92 is filed by the State of Kerala there-
    against.
c         7. Article 366(24) defines for the purposes of the Constitution of
    India the expression "Scheduled Castes" to mean "such castes, races or
    tribes or parts of or groups within such castes, races or tribes as are
    deemed under Article 341 to be Scheduled Castes for the purposes of this
    Constitu~ion". ·Arti~~ 341 reads thus :
D
            341 (1) The President may with respect to any State or Union
            Territory, and where it is a state after consultation with the Gover-
            nor thereof, by public notification, specify the castes, races or tribes
            or parts of or groups within castes, races or tribes which shall for ~
            the purposes of this Constitution be deemed to be Scheduled
E
            Castes in relation to that State or Union territory, as the case may
            be.

            (2) Parliament may by law includ in or exclude from the list of
            Scheduled Castes specified in a notification issued under clause
F           (1) any caste, race or tribe or part of or group within any caste,
            race or tribe, but save as aforesaid a notification issued under the
            said clause shall not be varied by any subsequent notification.

          8. The Constitution (Scheduled Castes) Order, 1950, was promul-
G gated by the President in consultation with the Governors and Rajpramuk-
    has of the various States. Part XVI thereof related to the then State of
    Travancore Cochin. At item 22 of part XVI was specified the caste
    Thandan for the purposes of the entire State. The Constitution Scheduled
    Castes (Modification) Order, 1956, modified the Scheduled Castes Order.
    In the ~t in Part V, applicable to the State of Kerala (the successor to
H   the State of Travancore Cochin), at item 14, wa8 specified the caste
                 S. SAMITHiv. STATE [BHARUCHA,J.)                    877

Thandan for the purposes of eni:irety of the State except Malabar District. A
The Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976,
came into force on 27th July, 1977. In the First Schedule thereof, under
Part VII relative to the State of Kerala, Thandan was specified at item 61.
In Part VII only in respect of two castes, namely, Boyan and Malayan, were
specific areas of the State of Kerala designated. In other words, all other B
castes listed in Part VII, including Thandan, were Scheduled Castes for the
purposes of the entirely of the State.

      9. On 17th May, 1979 the Government of Kerala issued an order
which noted that upon the coming into force on 27th July, 1977, of the
Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, the. C
Thandan community throughout the State of Kerala came to be included
in the list of Scheduled Castes. Complaints were received and reports
showed "that there is a section of the Ezhavas(fhiyyas of Malabar area
and of certain Taluks of Trichur District who were called Thandans. These
Thandans have nothing in common with the Sch. Caste Thandans. In fact D
these two categories of Thandans are quite different and distinct form each
other". It was, therefore, ordered that "the applications for the issue of
Community Certificates to the Thandans of all the four Districts of
Malabar area and of the Taluks of Thalapilly, Vadakhancherry and
Chavakka in Trichur District may be enquired into in detail to ascertain
whether the applicant belongs to the Thandan Community of the Sch. E
Castes or the Thandan Section of the Ezhava!fhiyya Community and while
issuing Community Certificates to th...; Thandans who are Scheduled castes,
the authorities issuing the certificates in respect of the areas mentioned
above, viz., the four Districts of Palghat, Malappuram, Kozhikode and
Cannanore and the Taluks ofThalappilly, Wadakkancherry and Chavakkad F
in Trichur District should note the name of the Community in the certifi-
cates as Thandans other than Ezhava or Thiyya". On 15th October, 1984
the Government of Kerala issued an order which stated that having recon-
sidered the matter in all its aspects, the 1979 order was cancelled anc:l
"Thandans throughout Kerala would be treated as members of Scheduled
Caste as existing in the list of Scheduled Castes of this State as per G
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976
and Community Certificate issued accordingly". The 1984 order dated was
modified by the order of the Government of Kerala dated 24th November,
1987, which is under challenge before us. The operative portion of the 1987
order reads thus :                                                          H
    878                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R. .

A            "Government have again considered the matter in all its aspects
              and in partial modification of the Government order read above
              as second paper Government now order that persons belonging to
              the Thandan caste throughout Keral11 would be treated as members
            . of scheduled caste as existing iii the list of scheduled castes of this
           · state as per the Scheduled Castes and Scheduled Tribes Orders
B             (Amendment) Act, 1976. While issuing such caste certificate the
              revenue authorities should clarify after proper verification that the
              person concerned belongs to Thandan caste and not Ez-
              havaffhiyya."

C          10. Learned counsel for Miss Lakshmikutty aed for the petitioners
    in the writ petitions submitted that once a group of persons known by a
    caste name was specified in the Scheduled Castes Order, the same was
    binding upon all. The State Government was not empowered to modify the
    same in the manner in which it had purported to do by the issuance of the
D   1987 order. A modification of the Scheduled Castes Order could only be
    made by Parliament under the provisions of Article 341. The Thandans of
    the Malabar area were a distinct class from the Ezhavas(fhiyyas. In any
    event, even if it be assumed that there was a section of the Ezhavasffhiyyas
    community which was called Thandan in the Malabar area of the State,
    that section also fell within the scope of the Scheduled Castes Order by
E   ~tue of the Amendment Act, 1976, and the State Government was not
    entitled to order to the contrary.

          11. Learned counsel for the State Government contended that per-
    sons named or called Thandan in the Malabar area were not intended to
F   be covered by the Scheduled Castes Order and the State Government was,
    therefore, entitled to issue the 1987 order.

           12. In the first place, \Ve must notice that the contention of learned
    counsel for the State Government does not accord with the case of the
G   State Government put forward on its be~alf in the counter affidavit to the
    writ petition filed by R.B. Pathak, Secretary to the State Government in
    the Harijan Welfare Department, dated 4th September, 1984. In paragraph
    4 of the counter affidavit it is stated that after the Amendment Act, 1976,
    was passed by Parliament, "it has come to the notice of the Government
    that in the erstwhile Malabar area, particularly in Palghat Jilla, a section
H   of Ezhavaffhiyya community are called Thandans. These Thandans are
                 S. SAMTIHI v. STATE [BHARUCHA,J.)                    879

different from the recognised backward Scheduled Caste Thandans. Such A
a section of Thandans who are allied to Ezhav<!/fhiyya Community are not
entitled to the benefits meant for Scheduled Caste Thandans". In Para-
graph 6 it is stated that the High Court was satisfied "that the Thandan
community of the erstwhile Malabar area, Palghat Jilla is a controversial
community and that the position is not clear whether this community in B
these areas can be conclusively treated as a Scheduled Castes Thandan
community". In paragraph 7 the controven;y is state_d to be "about the status
of this community in the said Malabar area, by reason of which the High
Court had directed the State Government to conduct an enquiry". In
paragraph 11 it is stated, "Pending the proposed investigation into the.
status of the Thandan community in the Malabar area, the Thandans from C
all over Kerala will continue to be treated as a Scheduled Caste". In
paragraph 12 it is stated, "Based on the report of the proposed enquiry
Government will consider the issue and, if necessary, the Government will
submit necessary proposals to the Government of India, Parliament alone
is competent to make any change in the law on the subject". In paragraph ·n
14 (e) it is stated that a study by various authors shows "that there are
Thandans belonging to the Scheduled Caste as well in certain families
belonging to backward classes. Because of this position, it is all the more
necessary to identify the Thandans belonging to Scheduled Caste separat-
ing the other class of Thandans in the Malabar area". In Paragraph 14 (t)
it is stated, "The scope of the proposed enquiry is to find out whether there E
is a community called Thandan distinct· from Ezhava in Palghat District
and also in other places in erstwhile Malabar District".

      13.From the counter affidavit it is therefore, clear that the case of
the State Government is that there is a community called Thandan which F
is not entitled to the benefits available to Scheduled Castes under the
Scheduled Castes Order. This case is very different from the submission of
its counsel that persons named or called Thandan in the Malabar·area are
not intended to be covered by the Scheduled Castes Order and that the
1987 order is only intended to exclude such individuals named or called
Thandan. Patently, in the circumstances, we must base our decision upon · G
the case of the State Government put on oath in the counter affidavit filed
on its behalf.

     14. The State Government's counter affidavit is noteworthy also
because it states in paragraphs 11 that, pending the proposed enquiry into H
    880                   SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A the status of the Thandan community in the Malabar area, Thandans from
    all over Kerala would continue to be treated as a Scheduled Caste. Having
    regard to this statement on oath on its behalf before this Court the State
    Government ought not to have issued the 1987 order. Again, in paragraph
    12 of the affidavit it is stated that the State Government would, if necessary,
B   submit the necessary proposals to the Government .of India since "Parlia-
    ment alone is competent to make any change in the law on the subject".
    As we shall hereafter show, this is a correct statement of the law which the
    State Government recognised when the counter affidavit was filed but from
    which position it would appear to have resiled by issuing the 1987 order.

C          15. We now proceed upon the basis that the State Government is
    right. when it say that there is a section of the Ezavas!fhiyyas community
    which is called Thandan in the Malabar area of the State.

          16. Article 341 empowers the president to specify not only castes,
D races or tribes which shall be deemed to be scheduled castes in relation to
    a State but also "parts of or groups within castes, races tribes" which shall
    be deemed to be Scheduled Castes in relation to a State. By reason of
    Article 341 a part or group or section of a caste, race or tribe, which, as a
    whole, is not specified as a Scheduled Caste, may be specified as a
E   Scheduled Caste. Assuming, therefore, that there is a section of the Ez-
    havasffhiyyas community (which is not specified as a Scheduled Caste)
    which is called Thandan in· some parts of Malabar area, that section is also
    entitled to be treated as a Scheduled Caste, for Thandans throughout the
    State are deemed to be a Scheduled Caste by reason of the provisions of
    the. Scheduled Castes as it now stands. Once Thandans throughout the
F   State are entitled to be treated as a Scheduled Caste by reason of the
    Scheduled Castes Order as it now stands, it is not open to the State
    Government to say otherwise, as it has purported to do in the 1987 order.

          17. We may usefully draw attention to the judgment of a bench of
G three learned Judges of this Court in Sirish Kumar Chaudhury v. State of
  Tripura and ors., [1990) Supp. S.C.C. 220. This judgment considered the
  Constitution Bench Judgments in B. Basavalingappa v. D. Munichinnappa,
  (1%5] 1 S.C.R. 316, and Bhaiyalal v. Harikishan Singh and Others, [1%5] 2
  SCR 877, and certain other judgments. It held that the two Constitution
H Bench judgments indicated that any amendment to the Presidential Order
                  S. SAMl1HI v. STATE [BHARUCHA, J.]                     881

 could only be by legislation. The court could not assume jurisdiction and A
 order an enquiry to determine whether the terms of the Presidential Order
 included a particular community. A State Government was entitled to
 initiate appropriate proposals for modification in cases where it was satis-
 fied that modifications were necessary and, if after appropriate enquiry,
 the authorities were satisfied that a modification was required, an amend- B
 ment could be undertaken as provided by the Constitution.

     . 18. These judgments leave no doubt that the Scheduled Castes Order
 has to be applied J.S it stands and no enquiry can be held or evidence let
 in to determine whether or not some particular community falls within it
 or outside it. No action to modify the plain effect of the Scheduled Castes    C
 Order, except as contemplated by Article 341, is valid.

       19. The Thandan community in the instant case having been listed in
 the Scheduled Castes Order as it now stands, it is not open to the State
 Government or, indeed, to this Court to embark upon an enquiry to D
 determine whether a section of Ezhavas{fhiyyas which were called Than-
 dan in the Malabar area of the State was excluded from the benefits of the
 Scheduled Castes Order.

       20. Learned counsel for the State relied upon the decision in Bhaiya E
 Ram Munda v.Anirndh Patar, [1971) 1S.C.R.804, referred to in paragraph
 15 of 'the judgment in Sirish Kumar Choudhury's case, for the view taken'
  there was that evidence was admissible for the purpose of showing what
  an entry in the Presidential Order was intended to mean. In paragraphs 8,
  9, 10 and 11 of the judgment in Sirish Kumar Choudhury's case, the
  Constitution Bench judgments referred to above are discussed, as also two     F
  other judgments taking the same view. Then, in paragraph 14, the judg-
  ments of this Court in the case of Dina v. Narayan Singh, 38 FIR 212, and
  Bhaiya Ram Munda v. Anirudh Patar, [1971) 1 S.C.R. 804, are referred to
  and it is stated that both were rendered by the same bench of two learned
  Judges. Paragraph 14 goes on to set out the substance of the decision in      G
  Dina's case and paragraph 15 sets out the substance of the decision in
  Bhaiya Ram's case. In paragraph 16 it is said, "These authorities clearly
  indicate, therefore, that the entries in the Presidential Order have to· be
  taken as final and the scope of enquiry and admissibility of evidence is
· confined within the limitations indicated. It is, however, not open to the    H
    882                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A court to make any addition or subtraction from the Presidential Order".
    There is , therefore, no doubt that the Court is Sirish Kumar Choudhury's
    case accepted and followed, as it was bound to do, the Constitution bench
    judgments and not the two-Judge judgments in the Dina and Bhaiya Ram
    Munda case.
B         21. The enquiry that was ordered by the High Court in the order
   appeal to "find out whether there was a community called Thandan distinct
   from Ezhavas in Palghat District in areas other than in the erstwhile Chittur
   Taluk and 3.lso in any other place in erstwhile Malabar District" has
   proceeded to a conclusion on the basis of an interim order passed by this
C Court on 16th January, 1989. It is not for the.State Government or for this
   Court to enquire into the correctness of what is stated in the report that
 . has been made thereon or to utilise the report to, in effect, modify the
   Scheduled Castes Order. It is open to the State Government, if it so deems
   proper, to forward the report to the appropriate authority to c~nsider
D whether· the Scheduled Castes Order needs amendment by appropriate
   legislation. Until the Scheduled Castes Order is amended, it must be
   obeyed as it reads and the State Government must treat Thandans
   throughout Kerala as members or the Scheduled Castes and issue Com- ·
   munity Certificates accordingly.

E         22. K.V. Kumaran, who claims to be the Chairman of the Kerala
    Scheduled Castes Protection Council, sought impleadment to these mat-
    ters. We declined to implead him but we heard him in the character of an
    intervenor. His submission, in the main, was that in Malabar Ez-
    havas!I'hiyyas are known as Thandans but this did not mean that they
F   belonged to the Scheduled Castes. As we have indicated, it is not for this
    Court to go into the question. It is for the appropriate authority to do so
    and, if satisfied, initiate proceedings to amend the Scheduled Castes Order.

         23. In the result, the writ petitions are allowed and the State Govern-
   ment is ·directed to grant to all members of the Thandan community,
G including those belonging to the erstwhile Malabar District and the present
 , Palghat District, the benefits due to a Scheduled Caste included in the
   Schedule to the Constitution Scheduled Castes Order as amended upto
   date and to issue to them community certificates accordingly. The order of
   the State Government dated 24th November, 1987, is quashed and set
H aside. Civil Appeal No. 4807/84 is allowed to the extent that the High
                  S. SAMITIII v. STATE [BHARUCHA, J.)               883

Court's directions that Miss O.K. Lakshmikutty's admission to the M.B.B.S. ·A
course and to the postgraduate course were provisional are set aside.. The
appeals by the State of Kerala arising from SLP(C) No. 6457/90 and SLP
(C) No. 3746/92 are dismissed.

       There shall be no order as to costs.
                                                                           B
A.G.                                                 Matter disposed of.