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[No powers to the Judiary to issue writs when there is nothing on record to show that the
decision of the Government was arbitrary or capricious or was one not reached in good faith
or actuated with improper considerations or influenced by extraneous considerations.]
Sen, J. – These appeals by special leave and the connected special leave petitions directed
against the various judgments and orders of the Andhra Pradesh High Court involve a
question of principle, and relate to location of Mandal Headquarters in the State of Andhra
Pradesh under s. 3(5) of the Andhra Pradesh Districts (Formation) Act, 1974. The main issue
involved is whether location of Mandal Headquarters was a purely governmental function and
therefore not amenable to the writ jurisdiction of the High Court under Art. 226 of the
Constitution. In the present cases we are concerned with the location of 12 Revenue Mandal
Headquarters.
The avowed object and purpose of the Andhra Pradesh District (Formation) Act, 1974, as
amended by the Andhra Pradesh District (Formation) Amendment Act, 1985 as reflected in
the long title, was to bring about a change in the Revenue Administration with a view to
‘bring the administration nearer to the people and to make all public services easily available
to them’. The change in the Revenue Administration was so achieved by the creation of
Revenue Mandals in place of taluks and firkas. The purpose of the legislation is brought out
in the Statement of Objects and Reasons, a relevant portion whereof is as under:
“On a careful review of the socio-economic development of the State for the last 20 years the
State Government felt it necessary to take the administration nearer to the people. It was of
the opinion that the only method to be adopted by the Government for a better Revenue
Administration and to serve the interests of the people in a more effective and suitable manner
was by formation of the Mandals in place of taluks and firkas. It was of the view that a
decentralisation of administration and reduction in its levels would be conducive to a more
efficient implementation of administration which brings the involvement of the people,
particularly in the implementation of several welfare measures of the Government, and
especially to uplift the conditions of the weaker sections of the society. It also felt that there
was urgent necessity to review its activities and services and welfare programmes and that
they should be extended to the interior regions and that the creation of Mandals with a
population ranging from 35,000 to 55,000 based upon density of population would be an
effective method for providing better facilities to the people at lesser cost and greater
convenience. The avowed object was therefore to ‘bring the administration nearer to the
people and to make all public services easily available to them’. This was achieved by the
creation of Revenue Mandals in place of taluks and firkas.”
To implement the decision of the Government, on 11th January, 1984 the Governor of Andhra
Pradesh accordingly promulgated Ordinance No. 22 of 1984. This Ordinance was later
replaced by Ordinance No. 5 of 1985 inasmuch as the earlier Ordinance could not be
reintroduced due to dissolution of the Legislative Assembly. The Ordinance was later
replaced by Act No. 14 of 1985. The change in administration was brought about by
amending s. 3 of the Act by introducing the word ‘mandals’ in place of taluks and firkas.
Pursuant to their powers under sub-s. (1) of s. 3 of the Andhra Pradesh Districts (Formation)
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Act, as amended by Act 14 of 1985, the State Government, by notification published in the
official gazette, after following the procedure laid down in sub-s.(5) thereof divided the State
for the purpose of revenue administration into 23 Revenue District with such limits as
specified therein. Each such district consisted of Revenue Divisions and each Revenue
Division consisted of Revenue Mandals. The 23 districts now comprise of 1104 Revenue
Mandals.
As many as 124 petitions under Art. 226 of the Constitution were filed in the High Court by
individuals and gram panchayat questioning the legality and propriety of the formation of
certain Revenue Mandals, and particularly location of Mandal Headquarters, abolition of
certain Mandals or shifting of Mandal Headquarters, as notified in the preliminary notification
issued under sub-s. (5) of s. 3, deletion and addition of villages to certain mandals. Some of
the writ petitions were heard by one Division Bench and the others by another, both the
Benches being presided over by Reghuvir, J. who has delivered all the judgments.
Incidentally, there is no statutory provision relating to location of Mandal Headquarters and
the matter is governed by GOMs dated 25th July, 1985 issued by the State Government laying
down the broad guidelines for the formation of Mandals and also for location of Mandal
Headquarters. The learned Judges upheld the validity of formation of Mandals as also the
aforesaid GOMs and in some cases they declined to interfere with the location of Mandal
Headquarters holding that the Government was the best judge of the situation or on the
ground that there was a breach of the guidelines, and directed the Government to reconsider
the question of location of Mandal Headquarters. However, in other cases the learned Judges
have gone a step further and quashed the final notification for location of Mandal
Headquarters at a particular place holding that there was a breach of the guidelines based on
the system of marking and also on the ground that there were no reasons disclosed for
deviating from the preliminary notification, and instead directed the Government to issue a
fresh notification for location of Mandal Headquarters at another place. One of the arguments
advanced before us in the cases where the High Court has declined to interfere is that both the
High Court and the State Government should have applied a uniform standard in dealing with
the question and generally it is said that the State Government should at any rate have adhered
to the guidelines in fixing the location of Mandal Headquarters without being guided by
extraneous considerations.
Myriad are the facts. It is not necessary for us to delve into the facts in any detail. It would
suffice for our purposes to touch upon the facts in some of the cases to present the rather
confusing picture emerging as a result of conflicting directions made by the High Court. It
appears that Raghuvir, J. relied upon the underlying principle emerging from his earlier
decision delivered on behalf of himself and Sriramulu, J. in the Gram Panchayat, Chinna
Madur & Ors. v. The Government of Andhra Pradesh, [1986] 1 Andhra Weekly Reporter 362
which he calls as the ‘Chandur principle’. In that case following the earlier decision of the
High Court where a place called Chandur was not shown in the preliminary notification for
formation of a taluk, but was chosen to be the place of location of the Taluk Headquarters in
the final notification, it was held that in such a case publication of the final notification could
not be sustained and it was for the Government to give reasons for such deviation. The
decision proceeded on the principle that where guidelines are issued regulating the manner in
which a discretionary power is to be exercised, the Government is equally bound by the
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guidelines. If the guidelines were violated, it was for the Government to offer explanation as
to why the guidelines were deviated from. We are afraid, there is no such inflexible rule of
universal application. The learned Judges failed to appreciate that the guidelines issued by the
State Government had no statutory force and they were merely in the nature of executive
instructions for the guidance of the Collectors. On the basis of such guidelines the Collectors
were asked to forward proposals for formation of Revenue Mandals and for location of
Mandal Headquarters. The proposals so forwarded by the Collectors were processed in the
Secretariat in the light of the suggestions and objections received in response to the
preliminary notification issued under s. 3(5) of the Act and then placed before a Cabinet Sub
Committee. The ultimate decision as to the place of location of Mandal Headquarters was for
the Government to take. It cannot be said that in any of the cases the action of the
Government for location of such Mandal Headquarters was mala fide or in bad faith or that it
proceeded on extraneous consideration. Nor can it be said that the impugned action would
result in arbitrariness or absence of fair play or discrimination.
We must next refer to the facts in a few illustrative cases. In the Gram Panchayat, Chinna
Madur’s case, although in the preliminary notification issued under s. 3(5) of the Act for
formation of Devaruppalla Mandal, Chinna Madur was proposed as the Mandal Headquarters,
the Revenue authorities in the final notification declared Devaruppalla as the Mandal
Headquarters. In the writ petition, the High Court produced the records and it showed that
both Devaruppalla and Chinna Madur provided equal facilities as to communication,
transport, veterinary hospital, bank, school, etc., and secured 15 marks each. The Government
preferred Devaruppalla as Chinna Madur was inaccessible in some seasons as that village was
divided by two rivers from rest of the villages. Devaruppalla besides is located on HyderabadSuryapet Highway which was considered to be a factor in its favour. After reiterating the
Chandur principle that it is for the Government to give reasons for such deviation, the learned
Judges declined to interfere, observing:
“In the instant case, the record produced shows the authorities considered the comparative
merits of Devaruppalla and Chinna Madur. The Revenue authorities applied the correct
indicia of accessibility in all seasons. Other facilities of the two villages were discussed at
length in the record. Having regard to the overwhelming features in favour of Devaruppalla
the village was declared as headquarters”
We have referred to the facts of this case because it highlights the approach of the High Court
and it has assumed to itself the function of the Government in weighing the comparative
merits and demerits in the matter of location of the Mandal Headquarters.
The same infirmity unfortunately permeates through some of the judgments where the High
Court has interfered….
It will serve no useful purpose to delineate the facts in all the cases which follow more or less
on the same lines. We are of the opinion that the High Court had no jurisdiction to sit in
appeal over the decision of the State Government to locate the Mandal Headquarters at a
particular place. The decision to locate such Headquarters at a particular village is dependent
upon various factors. The High Court obviously could not evaluate for itself the comparative
merits of a particular place as against the other for location of the Mandal Headquarters. In
some of the cases the High Court declined to interfere saying that the Government was the
best judge of the situation in the matter of location of Mandal Headquarters. However, in a
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few cases the High Court while quashing the impugned notifications for location of Mandal
Headquarters issued under sub-s. (5) of s. 3 of the Act on the ground that there was a breach
of the guidelines, directed the Government to reconsider the question after hearing the parties.
We have had the benefit of hearing learned counsel for the parties on various aspects of this
branch of administrative law as to the nature and scope of the guidelines and whether their
non-observance was justiciable. The learned counsel with their usual industry placed before
us a large number of authorities touching upon the subject. On the view that we take, it is not
necessary for us to refer to them all.
Shri T.V.S.N. Chari, learned counsel appearing on behalf of the State Government followed
by Dr. Y.S. Chitale, Shri U.R. Lalit and Shri C.S. Vaidyanathan, learned counsel appearing
for the appellants in cases where the High Court has interfered have, in substance, contended
that suitability as to the location of Mandal Headquarters is for the Government to decide and
not for the High Court. They contend that the High Court failed to view the case from a
proper perspective. According to them, the guidelines are executive instructions, pure and
simple, and have no statutory force. It was pointed out that there is no statutory provision
made either in the Act or the Rules framed thereunder laying down the manner in which the
location of the Headquarters of a Revenue Mandal was to be made. The Legislature has left
the matter of selection of a place to be the Mandal Headquarters to the discretion of the State
Government and it was purely a Governmental function based on administrative convenience.
The Government accordingly issued a White Paper laying down the broad guidelines as
contained in Appendix I thereto. The Collector were required to forward their proposals for
formation of Revenue Mandals indicating the place where the Headquarters should be located
in accordance with the principles laid down in the guidelines based on a system of marking.
Although the Collectors were required to propose the location of Mandal Headquarters at a
particular place on a system of marking, but that was not determinative of the question. If the
marks were to be the sole criterion, then there was no question of inviting objections and
suggestions. The ultimate decision therefore lay with the Government and in making the
selection the Government had the duty to ensure that the place located for location of Mandal
Headquarters promoted administrative convenience and further the object and purpose of the
legislation in bringing about a change in the Revenue administration viz., (i) to bring the
administration nearer to the people and (ii) to make all public services easily available to
them, the main criterion as laid down in the guidelines being suitability and accessibility.
Further, the learned counsel contended that the High Court was clearly in error in substituting
its judgment for that of the State Government. Non-observance of the guidelines which were
in the nature of executive instructions was not justiciable. In any event, the High Court could
not have issued a direction requiring the Government to shift the Headquarters of a Revenue
Mandal from a particular place to another place on its own evaluation of the comparative
merits and demerits merely on the basis of marking. The learned counsel relied upon G. L
Fernandez v. State of Mysore and others, [1967] 3 SCR 636 and other decisions taking the
same view.
We had an equally persuasive reply to these arguments. Shri Seetaramaiah, learned counsel
appearing for the respondents in cases where the High Court has interfered, advanced the
main argument on the legal aspect with much learning and resource and placed all the
authorities on this abstruse branch of administrative law, namely, the Courts have albeit the
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Governmental action which involves exercise of discretionary powers, control over the
exercise of such Governmental power by implying limits of reasonableness, relevance and
purpose. Judicial control over the executive, or over an administrative authority, must be
maintained. Such judicial control by necessary implication is reconciled with legislative
intent, on the premise that the legislature never intended that the Government should have
unfettered control over a certain area. He drew our attention to several recent English
decisions which manifest a definite shift in the attitude of the Courts to increase their control
over discretion. According to the learned counsel, the traditional position is that Courts will
control the existence and extent of prerogative power i.e., governmental power, but not the
manner of exercise thereof. What degree or standard of control would then be exercised
would depend upon the type of subject-matter in issue. He submits that there is increasing
willingness of the Courts to assert their power to scrutinise the factual bases upon which
discretionary powers have been exercised. It is said that the Court is not powerless to
intervene where the decision of the Government is reached by taking into account factors that
were legally irrelevant or by using its power in a way calculated to frustrate the policy of the
Act. It follows that the nature and object of the status had to be considered to determine the
area of power possessed. It is urged that the remedy of a writ of mandamus is available if a
decision is reached by the Government on the basis of irrelevant considerations or improper
purposes or for other misuse of power. Upon that premise, he does not accept that the High
Court had no jurisdiction to interfere with the orders passed by the State Government for the
location of the Headquarters of a Revenue Mandal under Art. 226 of the Constitution.
Substantially, the argument is that the guidelines framed by the State Government have a
statutory force inasmuch as the power to issue such administrative directions or instructions to
the Collectors is conferred by the provisions of the Act itself. Alternatively, he says that even
though a non-statutory rule, bye-law or instruction may be changed by the authority who
made it without any formality and it cannot ordinarily be enforced through a Court of law, the
party aggrieved by its non-enforcement may nevertheless get relief under Art. 226 of the
Constitution where the non-observance of the non-statutory rule or practice would result in
arbitrariness or absence of fairplay or discrimination, particularly where the authority making
such non-statutory rule – or the like – comes within the definition of ‘State’ under Art. 12. In
substance, the contention is that the principle laid down in the classical decision of the House
of Lords in Padfield v. Minister of Agriculture, Fisheries & Food, LR 1968 AC 997 that the
Courts will control the exercise of statutory powers by the Minister, still prevails over
exercise of discretionary powers by the Government. The general approach now is for the
Courts to require that the Government must produce reasonable grounds for its action, even
where the jurisdictional fact is subjectively framed. He drew our attention to the observations
of Lord Denning M.R. in Laker Airways Ltd. v. Department of Trade, LR 1977 QB 643 at p.
705 to the effect:
“The prerogative is a discretionary power exercisable by the executive government for the
public good, in certain spheres of governmental activity for which the law has made no
provision, such as the war prerogative (of requisitioning property for the defence of the
realm), or the treaty prerogative (of making treaties with foreign powers). The law does not
interfere with the proper exercise of the discretion by the executive in those situations; but it
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can set limits by defining the bounds of the activity and it can intervene if the discretion is
exercised improperly or mistakenly. That is a fundamental principle of our constitution.
“Seeing that the prerogative is a discretionary power to be exercised for the public good, it
follows that its exercise can be examined by the courts just as any other discretionary power
which is vested in the executive. At several times in our history, the executive have claimed
that a discretion given by the prerogative is unfettered; just as they have claimed that a
discretion given by statute or by regulation is unfettered … The two outstanding cases are
Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997 and Secertary of
State for Education and Science v. Tameside Metropolitan Borough Council, [1976] 3 WLR
641, where the House of Lords have shown that when discretionary powers are entrusted to
the executive by statute, the courts can examine the exercise of those powers to see that they
are used properly, and not improperly or mistakenly.”
In order to appreciate the contentions advanced, it is necessary to refer to the relevant
statutory provisions bearing on the questions involved. Sub-s. (1) of s. 3, as amended, is in
these terms:
“3(1) The Government may, by notification, from time to time, for the purposes of revenue
administration, divide the State into such disticts with such limits as may be specified therein;
and each district shall consist of such revenue divisions and each revenue division shall
consist of such mandals and each mandal shall consist of such villages as the Government
may, by notification from time to time, specify in this behalf.”
Sub-s. (2) thereof provides that the Government may, in the interests of better administration
and development of the areas, by notification from time to time on and with effect on and
from such date as may be specified therein, form a new district, revenue division or mandal or
increase or diminish or alter their name. Sub-s. (4) empowers the Board of Revenue in the
interests of better administration and development of the areas and subject to such rules as
may be prescribed, by notification, group or amalgamate, any two or more revenue villages or
portions thereof so as to form a single new revenue village or divide any revenue village into
two or more revenue villages, or increase or diminish the area of any revenue village, or alter
the boundaries or name of any revenue village. Sub-s. (5) provides that before issuing any
notification under the section, the Government or the Board of Revenue, as the case may be,
shall publish in such manner as may be prescribed, the proposals inviting objections or
suggestions thereon from the person residing within the district, revenue division, taluk. firka
or village who are likely to be affected thereby within such period as may be specified
therein, and shall take into consideration the objections or suggestions, if any, received. Subs. (1) of s. 4 enacts that the Government may, by notification, make rules for carrying out all
or any of the purposes of this Act. The rules so framed shall be laid before each House of the
State Legislature, etc. In exercise of the powers conferred by sub-s. (1) of s. 4 of the Act, the
State Government framed the Andhra Pradesh District (Formation) Rules, 1984. The term
‘Mandal’ as defined in r. 2(iv) means a part of the district within a revenue division under the
charge of a Tahsildar or Deputy Tahsildar. The expression ‘revenue division’ is defined in r.
2(v) to mean a part of the district comprising of one or more mandals under the charge of a
Revenue Divisional officer/Sub Collector/Assistant Collector or any other officer placed in
charge of a division. The word ‘village’ in r. 2(vi) means a settlement or locality or area
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consisting of cluster of habitations and the land belonging to their proprietory inhabitants and
includes, a town or city and a hamlet (Mazra). Rule 3 lays down the matters for consideration
in formation of districts, etc. Rules 4 and 5 provide for the publication of the preliminary and
final notifications in the official gazette. Rule 3 insofar as material reads:
“3(1) Where any action is proposed to be taken by the Government under sub-s. (1) or sub-s.
(2) of s. 3 of the Act … the Government …. shall take into consideration as far as may be the
following matters and the views of the Collectors of the districts and of such other authorities
as the Government may consider necessary:-
(i) Area, population, demand under the land revenue and other revenues in respect of areas
affected by the proposals;
(ii) Historical association, Geographical contiguity, Physical features common interests and
problems, Cultural and Educational requirements, Infrastructural facilities and economic
progress of the areas;
(iii) Development of the area or areas concerned, having regard to the various developments
and welfare schemes undertaken or contemplated by the Government in relation to those
areas;
(iv) Administrative convenience and better administration; and
(v) Interests of economy”
“3(3). In matters concerning sub-s. (1) or sub-s. (2) of s. 3 of the Act the Collector concerned
shall forward to the Government his report with his views together with the record of enquiry
if any for the consideration of the Government. If after such consideration the Government so
decides, a preliminary notification under sub-s. (5) of s. 3 of the Act inviting objections or
suggestions to the proposals from the persons residing in the area/areas which are likely to be
affected thereby, shall be issued.”
Sub-r. (1) of r. 4 provides for the manner of publication of the preliminary notification
referred to in sub-rr. (3) and (4) of r. 3 inviting objections or suggestions. The notification has
to be in Form I appended to the Rules. R. 4(2) provides that any person affected by the
proposal may within thirty days from the date of publication of the notification referred to in
sub-r. (1), communicate his objections or suggestions thereto to the Secretary to the
Government in the Revenue Department through the Collector of the district concerned, who
shall forward the same with his remarks to the Government, etc. R. 5 provides that the
Government shall having regard to the suggestions or objections referred to in r. 4 either
confirm the preliminary notification or issue it with such modification/modifications as may
be necessary and publish it in Form II of the Gazette. A preliminary notification under sub-s.
(5) of s. 3 of the Act which has to be in Form I has to notify to all concerned that the
Government in the interests of better administration and development of the area concerned,
proposed to form a new district/revenue division/mandal as set out in the schedule appended
thereto. All objections and suggestions have to be addressed to the Collector within whose
jurisdiction the area or areas fall. Likewise, Form II prescribes the form of the final
notification to the effect that the State Government having taken into consideration the
objections and suggestions received thereon, is pleased to notify that with effect from (date)
the State shall consist of the District/Revenue Division/Mandal specified in Schedule I
appended thereto. There are no statutory provisions formulating the governing principles for
formation of Revenue Mandals or for location of Mandal Headquarters. On 25th July, 1985
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the State Government published a White Paper on formation of Mandals. It was stated inter
alia that the Revenue Mandals would be formed covering urban as well as rural areas unlike
Panchayat Mandals which would cover only rural areas. A Revenue Mandal would be
demarcated for a population ranging from 35,000 to 55,000 in the case of rural mandals and
was expected to cover one-third to one-fourth the size of the existing taluks in areas and in
population. When a Municipality came within the area of a Revenue Mandal, the urban
population would be in addition. The ushering in of rural mandals would result in
introductions of a four-tier system by replacement of the then existing five-tier system. Such
reduction in the levels of tiers of administration the Government felt would be more
conducive to proper implementation of the policies and programmes of the Government.
Greater decentralisation was expected to lead to more intensive involvement of the people,
particularly in the implementation of programmes of economic development. According to
the scheme contemplated, each Revenue Mandal would be headed by a Revenue Officer of
the rank of a Tahsildar or a Deputy Tahsildar and it was stated that the intention of the
Government was to vest in such Revenue Officers, all the powers that were till then exercised
by the Tahsildars and Taluk Magistrate. Appendix I to the White Paper formulated the
principles for formation of Revenue Mandals and also laid down the broad guidelines for
location of Mandal Headquarters. The Collectors were accordingly asked to forward their
proposals for creation of Revenue Mandals and also for location of Mandal Headquarters in
conformity with the guidelines. The proposals were to be duly notified by publication of a
preliminary notification under sub-s. (5) of s. 3 of the Act inviting objections and suggestions
and the Government after consideration of the objections and suggestions so received would
publish the final notification. The broad guidelines for location of Mandal Headquarters are
set out below:
“(3) As a general principle, the present Taluk Headquarters, Samithi Headquarters,
Municipalities and Corporations will be retained as Headquarters of Revenue Mandals; if any
exception is called for on grounds of compelling reasons detailed reasons will have to be
given.
(4) Revenue Mandals whose headquarters will be the present Taluk Headquarters/Samithi
Headquarters/Municipalities/Corporations will generally have a number of much needed
infrastructural facilities already existing. A number of people from the neighbouring villages
will therefore be visiting these headquarters for both Governmental/non-Governmental
business. In the case of Revenue Mandals to be located exclusively within municipal
corporation areas, their requirements will be formulated according to their needs.
In cases of Mandal Headquarters located in urban centres which are not municipalities but
with a population of 15,000 or above the total population of the Mandal would be 55,000
irrespective of population density.
(6) In choosing the Headquarters of the Revenue Mandals in the rural areas, weightage may
be given to the availability of the following facilities and the future growth of the place.
(i) Banking facility;
(ii) Communication facility-either Railway Station or Bus Stand;
(iii) PHC or Sub-Centre or any Dispensary/Indian Medicine;
(iv) Veterinary Dispensary;
(v) Police Station;
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(vi) Post Office/Telephone Exchange;
(vii) High School.
(viii) Market Yard/Agricultural Godown;
(ix) Already a Firka Headquarters;
(x) Any other special qualification like availability of office accommodation, residential
quarters for the staff etc.
A centre having one or more of the above characteristics and more accessible to most of the
villages proposed for the Mandal in comparison to any other centre should be generally
selected as Headquarters. If in any mandal there is more than one centre having equal
accessibility/facilities then the centre which comes forward to donate land for office buildings
and to provide temporary office accommodation may be given preference. (8) In the selection
of villages for inclusion in the Mandal, the principal criterion shall be that the Mandal
Headquarters is most accessible to all the villages.”
It is quite obvious from the guidelines that the location of the Headquarters of a Revenue
Mandal is based on a system of marking, the principal criterion being ‘accessibility’ i.e., the
place located must be accessible to all the villages in the Revenue Mandal. In choosing the
Headquarters of the Revenue Mandals in the rural areas, weightage had to be given to the
availability of certain facilities and the future growth of the place as specified in items (i) to
(x) of paragraph 6 of the guidelines. A centre or a place having one or more of the
characteristics so set out and more accessible to most of the villages proposed for the Mandal
in comparison to any other place had to be generally selected as Mandal Headquarters. If in
any Mandal there was more than one place having equal accessibility/facilities then the place
which came forward to donate land for office buildings and to provide temporary office
accommodation had to be given preference. Location of Mandal Headquarters was therefore
based on a system of marking. Learned counsel for the parties have with infinite care taken us
minutely to the facts of each case in an endeavour to support their respective contentions, viz.,
as to whether location of the Mandal Headquarters by the Government at a particular place
was in breach of the guidelines or not.
We find it rather difficult to sustain the interference by the High Court in some of the cases
with location of Mandal Headquarters and quashing of the impugned notification on the
ground that the Government acted in breach of the guidelines in that one place or the other
was more centrally located or that location at the other place would promote general public
convenience or that the Headquarters should be fixed at a particular place with a view to
develop the areas surrounded by it or that merely because a particular person who was an
influential Member of Legislative Assembly belonging to the party in opposition had the right
of representation but failed to avail of it. The location of Headquarters by the Government by
the issue of the final notification under sub-s. (5) of s. 3 of the Act was on a consideration by
the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the
objections and suggestions received from the local authorities like Gram Panchayat and the
general public, keeping in view the relevant factors. Even assuming that any breach of the
guidelines was justiciable, the utmost that the High Court could have done was to quash the
impugned notification in a particular case and direct the Government to reconsider the
question. There was no warrant for the High Court to have gone further and directed the
shifting of the Mandal Headquarters at a particular place. Broadly speaking, the contention on
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behalf of the State Government is that relief under Art. 226 of the Constitution is not available
to enforce administrative rules, regulations or instructions which have no statutory force, in
the absence of exceptional circumstances. It is well settled that mandamus does not lie to
enforce departmental manuals or instructions not having any statutory force, which do not
give rise to any legal right in favour of the petitioner. The law on the subject is succinctly
stated in Durga Das Basu’s Administrative Law, 2nd edn. at p. 144:
“Administrative instructions, rules or manuals, which have no statutory force, are not
enforceable in a court of law. Though for breach of such instructions, the public servant may
be held liable by the State and disciplinary action may be taken against him, a member of the
public who is aggrieved by the breach of such instructions cannot seek any remedy in the
courts. The reason is, that not having the force of law, they cannot confer any legal right upon
any body, and cannot, therefore, be enforced even by writs under Art. 226.”
The learned author however rightly points out at p. 145:
“Even though a non-statutory rule, bye-law or instruction may be changed by the authority
who made it, without any formality and it cannot ordinarily be enforced through a Court of
law, the party aggrieved by its non-enforcement may, nevertheless, get relief under Art. 226
of the Constitution where the non-observance of the non- statutory rule or practice would
result in arbitrariness or absence of fairplay or discrimination,-particularly where the authority
making such non-statutory rule or the like comes within the definition of ‘State’ under Art.
12.”
In G.J. Fernandez’s case, the petitioner submitting the lowest tender assailed the action of the
Chief Engineer in addressing a communication to all the tenderers stating that even the lowest
tender was unduly high and enquired whether they were prepared to reduce their tenders. One
of them having reduced the amount of his tender lower than the lowest, the Chief Engineer
made a report to the Technical Sub-Committee which made its recommendations to the Major
Irrigation Projects Control Board, the final authority, which accepted the tender so offered.
The High Court dismissed the writ petition holding that there was no breach of the conditions
of tender contained in the Public Works Department Code and further that there was no
discrimination which attracted the application of Art. 14. The question that fell for
consideration before this Court was whether the Code consisted of statutory rules or not. The
so-called Rules contained in the Code were not framed under any statutory enactment or the
Constitution. Wanchoo, CJ speaking for the Court held that under Art. 162 the executive
power of the State enables the Government to issue administrative instructions to its servants
how to act in certain circumstances, but that would not make such instructions statutory rules
the breach of which is justiciable. It was further held that non-observance of such
administrative instructions did not give any right to a person like the appellant to come to
Court for any relief on the alleged breach of the instructions. That precisely is the position
here. The guidelines are merely in the nature of instructions issued by the State Government
to the Collectors regulating the manner in which they should formulate their proposals for
formation of a Revenue Mandal or for location of its Headquarters keeping in view the broad
guidelines laid down in Appendix I to the White Paper. It must be stated that the guidelines
had no statutory force and they had also not been published in the Official Gazette. The
guidelines were mere departmental instructions meant for the Collectors. The ultimate
decision as to formation of a Revenue Mandal or location of its Headquarters was with the
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Government. It was for that reason that the Government issued the preliminary notification
under sub-s. (5) of s. 3 of the Act inviting objections and suggestions. The objections and
suggestions were duly processed in the Secretariat and submitted to the Cabinet SubCommittee along with its comments. The note of the Collector appended to the proposal gave
reasons for deviating from the guidelines in some of the aspects. Such deviation was usually
for reasons of administrative convenience keeping in view the purpose and object of the Act
i.e. to bring the administration nearer to the people. The Cabinet Sub-Committee after
consideration of the objections and suggestions received from the Gram Panchayat and
members of the public and other organisations as well as the comments of the Secretariat and
the note of the Collector came to a decision applying the standards of reasonableness,
relevance and purpose while keeping in view the object and purpose of the legislation,
published a final notification under sub-s. (5) of s. 3 of the Act. There is nothing on record to
show that the decision of the State Government in any of these cases was arbitrary or
capricious or was one not reached in good faith or actuated with improper considerations or
influenced by extraneous considerations. In a matter like this, conferment of discretion upon
the Government in the matter of formation of a Revenue Mandal or location of its
Headquarters in the nature of things necessarily leaves the Government with a choice in the
use of the discretion conferred upon it. It would be convenient at this stage to deal with the
arguments of Shri Seetaramaiah that the action of the Government in the matter of location of
Mandal Headquarters amounted to misuse of power for political ends and therefore amenable
to the writ jurisdiction of the High Court under Art. 226 of the Constitution. The learned
counsel mainly relied upon certain English decisions starting from Padfield v. Minister of
Agricultural, Fisheries & Food, LR 1968 AC 997 down to Council of Civil Service Unions
and Others v. Minister for the Civil Service, [1984] 3 ALL. ER 935 (HL). What we call
‘purely governmental function’, it is said, is nothing but exercise of ‘discretion derived from
the royal prerogative’. The learned counsel contends that ever since the judgment of Lord
Denning in Laker Airways Ltd. v. Department of Trade, LR 1977 QB 643, the myth of
executive discretion in relation to prerogative power no longer exists. The learned counsel
equated prerogative and statutory powers for this purpose, saying that in both cases alike the
Courts will not review the proper exercise of discretion but will intervene to correct excess or
abuse. According to him, the prerogative powers of the Crown in England are akin to the
executive functions of the Union and the States under Art. 73 and 162 of the Constitution, on
which refrain from expressing any final opinion. Prima facie, it seems to us that the executive
powers of the Union and the States under Arts. 73 and 162 are much wider than the
prerogative powers in England. We would refer to a couple of English decisions from
amongst those to which we were referred to during the arguments.
At one time, the traditional view in England was that the executive was not answerable where
its action was attributable to the exercise of prerogative power. Professor De Smith in his
classical work Judicial Review of Administrative Action 4th Edn., at pp. 285-287 states the law
in his own terse language. The relevant principles formulated by the courts may be broadly
summarised as follows. The authority in which discretion is vested can be compelled to
exercise that discretion, but not to exercise it in any particular manner. In general, discretion
must be exercised only by the authority to which it is committed. That authority must
genuinely address itself to the matter before it: it must not act under the dictation of another
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body or disable itself from exercising discretion in each individual case. In the purported
exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it
has not been authorised to do. It must act in good faith, must have regard to all relevant
considerations and must not be swayed by irrelevant considerations, must not seek to promote
purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must
not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist
can discretion be validly exercised on the basis of an erroneous assumption about those facts.
These several principles can conveniently be grouped in two main categories: (i) failure to
exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not,
however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant
considerations have been taken into account; and where an authority hands over its discretion
to another body it acts ultra vires. The learned author then deals with the question whether the
principles outlined above are applicable to the alleged abuse of wide discretionary powers
vested in executive bodies and further states:
“We have already noted that the courts sometimes call a discretionary power executive or
administrative when they are unwilling to review the mode of its exercise by reference to
‘judicial’ standards. Does this mean that such discretionary powers are legally absolute,
totally immune from judicial review? To this question there is no short answer.
(1) Parliament (or, to put the matter more realistically, the Government) may purport to
exclude judicial review by means of special statutory formulae which, if construed literally,
would deprive the courts of jurisdiction.
(2) No discretionary power is reviewable unless somebody has locus standi in impugn the
validity of its exercise.
(3) If it is claimed that the authority for the exercise of discretion derives from the royal
prerogative, the courts have traditionally limited review to questions of vires in the narrowest
sense of the term. They can determine whether the prerogative power exists, what is its
extent, whether it has been exercised in the appropriate form and how far it has been
superseded by statute; they have not normally been prepared to examine the appropriateness
or adequacy of the grounds for exercising the power, or the fairness of the procedure followed
before the power is exercised, and they will not allow bad faith to be attributed to the Crown.”
Although the weight of authority in England favours only narrow grounds for judicial review
of the exercise of prerogative powers, there is not a total absence of support for the view that
in some circumstances at least the Court may apply somewhat broader standards of review.
See: De Smith’s Judicial Review of Administrative Action, 4th edn., pp. 285-287; H.W.R.
Wade’s Administrative Law, 5th edn. pp. 350 et. seq.; Foulkes’ Administrative Law, 6th edn.,
pp. 213-215, 219-225; Applications for Judicial Review, Law and Practice by Grahame
Aldous and John Alder, p. 105; and D.C.M. Yardley’s Principles of Administrative Law, 2nd
edn. pp. 65-67. In recent years, the concept of the rule of law in England has been undergoing
a radical change. The present trend of judicial opinion is to restrict the doctrine of immunity
of prerogative powers from judicial review where purely governmental functions are directly
attributable to the royal prerogative, such as whether a treaty should be concluded or the
armed forces deployed in a particular manner or Parliament dissolved on one day rather
another, etc. The shift in approach to judicial interpretation that has taken place during the last
few years is attributable in large part to the efforts of Lord Denning in Laker Airways’ case.
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The attempt was to project the principles laid down in Padfield’s case into the exercise of
discretionary powers by the executive derived from the prerogative, and to equate prerogative
and statutory powers for purposes of judicial review, subject to just exceptions. Thus, the
present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to
those classes of cases which relate to deployment of troops, entering into international
treaties, etc. The distinctive features of some of these recent cases signify the willingness of
the Courts to assert their power to scrutinise the factual bases upon which discretionary
powers have been exercised.
The decision of the House of Lords in Padfield’s case is an important landmark in the current
era of judicial activism in this area of administrative law. The Minister had refused to appoint
a committee, as he was statutorily empowered to do when he thought fit, to investigate
complaints made by members of the Milk Marketing Board that the majority of the Board had
fixed milk prices in a way that was unduly unfavourable to the complainants. The Minister’s
reason for refusing to accede to the complainants’ request inter alia was that ‘it would be
politically embarrassing for him if he decided not to implement the committee’s
recommendations’. The House of Lords held that the Minister’s discretion was not unfettered
and that the reasons that he had given for his refusal showed that he had acted ultra vires by
taking into account factors that were legally irrelevant and by using his power in a way
calculated to frustrate the policy of the Act. The view was also expressed by four of the Law
Lords that even if the Minister had given no reasons for his decision, it would have been open
to the Court to infer that the Minister had acted unlawfully if he had declined to supply any
justification at all for his decision: De Smith’s Administrative Law, 4th edn., p. 294. More
recently, in Laker Airways case and in Secretary of State for Education and Science v.
Tameside M.B.C., LR 1977 AC 1014 both the Court of Appeal and the House of Lords have
set aside as ultra vires the exercise of discretion that included a substantial subjective element.
In Padfield’s case the scarcely veiled allusion to fear of parliamentary trouble was, in
particular, a political reason which was quite extraneous and inadmissible. Lord Reid during
the course of his judgment emphatically and unequivocally rejected the contention that the
discretion of the Minister was absolute, in these words:
“Parliament must have conferred the discretion with the intention that it should be used to
promote the policy and objects of the Act; the policy and objects of the Act must be
determined by construing the Act as a whole and construction is always a matter of law for
the Court. In a matter of this kind it is not possible to draw a hard and fast line, but if the
Minister, by reason, so uses his discretion as to thwart or run counter to the policy and objects
of the Act, then our law would be very defective if persons aggrieved were not entitled to the
protection of the Court.”
Lord Upjohn said that the Minister’s stated reasons showed a complete misapprehension of
his duties, and were all bad in law. Lord Denning in another case observed that the decision in
Padfield marked the evolution of judicial opinion that the Court could intervene if the
Minister ‘plainly misdirects himself in fact or in law’. The importance of the decision of the
House of Lords in Padfield’s case was underlined by Lord Denning in Breen v. Amalgamated
Engineering Union, LR 19712 QB 175 at p. 190, in these words:
“The discretion of a statutory body is never unfettered. It is a discretion which is to be
exercised according to law. That means at least this; the statutory body must be guided by
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relevant considerations and not by irrelevant. If its decision is influenced by extraneous
considerations which it ought not to have taken into account, then the decision cannot stand.
No matter that the statutory body may have acted in good faith; nevertheless the decision will
be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food,
which is a landmark in modern administrative law.”
In Laker Airways’ case, the Court of Appeal was concerned with the power of Minister to
give directions to the Civil Aviation authorities overriding specific provisions in the statute in
time of war, in the interests of national security or international relations or protection of the
environment. In his judgment, Lord Denning M.R. held that the review of the prerogative is
assimilated to that of statutory power, so that its exercise may be impugned for ‘misdirection
in fact or in law’. Lord Denning M.R. discussed the nature of the prerogative and said;
“Seeing that the prerogative is a discretionary power to be exercised for the public good, it
follows that its exercise can be examined by the courts just as any other discretionary power
which is vested in the executive.”
He then went on to say that the prerogative powers were as much capable of abuse as any
other power and therefore subject to judicial review and observed:
“Likewise it seems to me that when discretionary powers are entrusted to the executive by the
prerogative – in pursuance of the treaty-making power – the courts can examine the exercise of
them so as to see that they are not used improperly or mistakenly.”
This observation has given rise to considerable debate. The majority, however, proceeded on
a narrower basis concluding that the Civil Aviation Act, 1971 had impliedly superseded the
Crown’s prerogative in foreign affairs, and that the holder of a licence under the statute could
not be deprived of its commercial value by a decision on the part of the Secretary to State or
revoke the licensee’s status as a designated carrier under the Bermuda Agreement. In other
respects, the majority accepted the orthodox position on the unreview ability of the exercise
of the prerogative, per Roskill and Lawton, L. JJ, Lord Denning however went further and
held that the Court could intervene if a Minister ‘plainly misdirects himself in fact or in law’.
Another important case in this context is R. v. Criminal Injuries Compensation Board, ex p.
Lain, [1967] 2 QB 864. The question in this case was whether payments made by the Board to
victims of crime were subject to judicial review. The difficulty was that Lord Reid’s phrase
‘power to make decisions affecting rights’ in Ridge v. Baldwin, [1964] AC 40 was taken to
refer to legal rights, whereas the Criminal Injuries Compensation Scheme was not said to be
by legislation but just as an administrative expedience by means of internal departmental
circulars. So payments made under the Scheme were not, strictly, a matter of legal right but
were ex gratia. On the other hand, the criterion on which payments were made were laid
down in some detail and were very much like any law rules for assessment of damages in tort.
So the Board, like the Courts, was meant to be focussing on the individuals before it, in
deciding whether to make an award and how much to award. It was strenuously argued that
the Board was not subject to the jurisdiction of the Courts since it did not have what was
described as legal authority in the sense of statutory authority. This argument was
emphatically and unanimously rejected. In his judgment Lord Parker, CJ. said:
“I can see no reason either in principle or in authority why a board, set up as this board were
set up, should not be a body of persons amenable to the jurisdiction of this Court. True the
board are not set up by statute but the fact that they are set up by executive government, i.e.,
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under the prerogative, does not render their acts any the less lawful. Indeed, the writ of
certiorari has been issued not only to courts set up by statute but to courts whose authority
was derived; inter alia, from the prerogative. Once the jurisdiction is extended, as it clearly
has been, to tribunals as opposed to courts, there is no reason why the remedy by way of
certiorari cannot be invoked to a body of persons set up under the prerogative.
“Moreover the board, though set up under the prerogative and not by statute, had in fact the
recognition of Parliament in debate and Parliament provided the money to satisfy the board’s
awards.”
See also the judgment of Lord Diplock, LJ. The ratio derived from Ex parte Lain’s decision
can best be stated in these words:
“Powers derived from the royal prerogative are public law powers.”
It therefore follows that a non-statutory inferior authority like the Board albeit constituted
under the prerogative powers, is just as well amenable to the jurisdiction of the Court as a
statutory body. It is clear that certiorari will lie where a decision has de facto effect upon the
individual and it is not necessary to show that the ‘right’ in question is legally enforceable. In
Council of Civil Service Unions & Ors. v. Minister for the Civil Service, [1984] 3 All E.R.
935 the House of Lords reiterated broader standards of review of the exercise of prerogative
powers. The principles deducible are clearly brought out in the head-note extracted below:
“(1) Powers exercised directly under the prerogative are not by virtue of their prerogative
source automatically immune from judicial review. If the subject matter of a prerogative
power is justiciable then the exercise of the power is open to judicial review in the same way
as a statutory power. However (per Lord Roskill), prerogative powers such as those relating
to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of
honours, the dissolution of Parliament and the appointment of ministers are not justiciable or
reviewable. (2) Administrative action is subject to control by judicial review under three
heads: (i) illegality, where the decision-making authority has been guilty of an error of law,
e.g., by purporting to exercise a power it does not possess; (ii) irrationality, where the
decision-making authority has acted so unreasonably that no reasonable authority would have
made the decision; (iii) procedural impropriety, where the decision-making authority has
failed in its duty to act fairly.”
Lord Diplock in his speech found no reason why simply because the decision-making power
is derived from a common law and not a statutory source, it should for that reason be immune
judicial review, and observed:
“Judicial review has I think developed to a stage today when, without reiterating any analysis
of the steps by which the development has come about, one can conveniently classify under
three heads the grounds on which administrative action are subject to control by judicial
review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third
‘procedural impropriety’.”
We should also refer to the illuminating judgment of Lord Roskill who found no logical
reason to see why the fact that the source of the power is the prerogative and not statute,
should today deprive the citizen of that right of challenge to the manner of its exercise which
he would possess were the source of the power statutory. In either case, the act in question is
the act of the executive. The learned Judge agreed with the conclusions reached by Lord
Scarman and Lord Diplock and observed: “To talk of that act as the act of the sovereign
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savours of the archaism of past centuries.” We may with advantage quote the following
passage from his judgment;
“Dicey’s classic statement in Law of the Constitution (10th edn., 1959) p. 424 that the
prerogative is the residue of discretionary or arbitrary authority, which at any given time is
legally left in the hands of the Crown, has the weight behind it not only of the author’s own
authority but also of the majority of this House in Burmah Oil Co. (Burma Trading) Ltd. v.
Lord Advocate, [1964] 2 All ER 348 at 353, per Lord Reid. But as Lord Reid himself pointed
out, this definition ‘does not take us very far’. On the other hand the attempt by Lord
Denning, MR in Laker Airways Ltd. v. Dept. of Trade, [1977] 2 All ER 182 at 192, (obiter)
since the other members of the Court of Appeal did not take so broad a view) to assert that the
prerogative ‘if … exercised improperly or mistakenly’ was reviewable is, with great respect,
far too wide. Lord Denning MR sought to support his view by a quotation from Blackstone’s
Commentaries (1 B1 Com (15th edn) 252). But unfortunately and no doubt inadvertently he
omitted the opening words of the paragraph: In the exercise therefore of those prerogatives,
which the law has given him, the King is irresistible and absolute, according to the forms of
the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or
dishonour of the kingdom, the parliament will call his advisers to a just and severe account.”
In short the orthodox view was at that time that the remedy for abuse of the prerogative lay in
the political and not in the judicial field.
But, fascinating as it is to explore this mainstream of our legal history, to do so in connection
with the present appeal have an air of reality. To speak today of the acts of the sovereign as
‘irresistible and absolute’ when modern constitutional convention requires that all such acts
are done by the sovereign on the advice of and will be carried out by the sovereign’s ministers
currently in power is surely to hamper the continual development of our administrative law by
harking back to what Lord Atkin once called, albeit in a different context, “the clanking of
medieval chains of the ghosts of the past.”
The effect of all these decisions is admirably summed up by Grahame Aldous and John Alder
in their Applications for Judicial Review, Law and Practice thus: “There is a general
presumption against ousting the jurisdiction of the courts, so that statutory provisions which
purport to exclude judicial review are construed restrictively. There are, however, certain
areas of governmental activity, national security being the paradigm, which the courts regard
themselves as incompetent to investigate, beyond an initial decision as to whether the
government’s claim is bona fide. In this kind of non-justiciable area judicial review is not
entirely excluded, but very limited. It has also been said that powers conferred by the Royal
Prerogative are inherently unreviewable but since the speeches of the House of Lords in
Council of Civil Service Union v. Minister for the Civil Service, this is doubtful. Lords
Diplock, Scarman and Roskill appeared to agree that there is no general distinction between
powers, based upon whether their source is statutory or prerogative but that judicial review
can be limited by the subject matter of a particular power, in that case national security. Many
prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example
foreign affairs, but some are reviewable in principle, including the prerogatives relating to the
civil service where national security is not involved. Another non- justiciable power is the
Attorney General’s prerogative to decide whether to institute legal proceedings on behalf of
the public interest.” Much of the above discussion is of little or academic interest as the
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jurisdiction of the High Court to grant an appropriate writ, direction or order under Art. 226
of the Constitution is not subject to the archaic constraints on which prerogative writs were
issued in England. Most of the cases in which the English courts had earlier enunciated their
limited power to pass on the legality of the exercise of the prerogative were decided at a time
when the Courts took a generally rather circumscribed view of their ability to review
Ministerial statutory discretion. The decision of the House of Lords in Padfield’s case marks
the emergence of the interventionist judicial attitude that has characterized many recent
judgments. In view of the recent decision of the House of Lords in Council of Civil Service
Unions, it would be premature to conclude that in no circumstances would the Court be
prepared to apply to the exercise by the Crown of some non-statutory powers the same
criterion for review as would be applicable were the discretion conferred by statute. In the
ultimate analysis, the present trend of judicial opinion in England on the question as to
whether a ‘prerogative’ power is reviewable or not depends on whether its subject-matter is
suitable for judicial control. All that we need is to end this part of the judgment by extracting
the cautionary note administered by H.W.R. Wade in his Administrative Law, 5th edn. at p.
352 in these words:
“On the one hand, where Parliament confers power upon some minister or other authority to
be used in discretion, it is obvious that the discretion ought to be that of the designated
authority and not that of the court. Whether the discretion is exercised prudently or
imprudently, the authority’s word is to be law and the remedy is to be political only. On the
other hand, Parliament cannot be supposed to have intended that the power should be open to
serious abuse. It must have assumed that the designated authority would act properly and
responsibly, with a view to doing what was best in the public interest and most consistent
with the policy of the statute. It is from this presumption that the courts take their warrant to
impose legal bounds on even the most extensive discretion.”
We find it rather difficult to sustain the judgment of the High Court in some of the cases
where it has interfered with the location of Mandal Headquarters and quashed the impugned
notifications on the ground that the Government acted in breach of the guidelines in that one
place or the other was more centrally located or that location at the other place would promote
general public convenience, or that the headquarters should be fixed at a particular place with
a view to develop the area surrounded by it. The location of headquarters by the Government
by the issue of the final notification under sub-s. (5) of s. 3 of the Act was on a consideration
by the Cabinet Sub-Committee of the proposals submitted by the Collectors concerned and
the objections and suggestions received from the local authorities like the gram panchayats
and the general public. Even assuming that the Government while accepting the
recommendations of the Cabinet Sub Committee directed that the Mandal Headquarters
should be at place ‘X’ rather than place ‘Y’ as recommended by the Collector concerned in a
particular case, the High Court would not have issued a writ in the nature of mandamus to
enforce the guidelines which were nothing more than administrative instructions not having
any statutory force, which did not give rise to any legal right in favour of the writ petitioners.
The result therefore is that Civil Appeals Nos. 1980, 1982, 1985 and 1987 of 1986 and all
other appeals and special leave petitions directed against the judgment of the High Court
where it has interfered with the location of the Mandal Headquarters, must succeed and are
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allowed. The petition filed by the appellants under Art. 226 of the Constitution before the
High Court are accordingly dismissed. There shall be no order as to costs.
