Manish Choudhury, J.

1. Both the writ petitions are preferred by the same set of petitioners, 10 in nos., by stating that they are espousing common cause. In the writ petition, W.P.(C) no. 4388/2018, filed first in point of time, the writ petitioners have assailed an advertisement dated 12.06.2018 published by the respondent Indian Oil Corporation Ltd. [IOCL] for selection of Liquefied Petroleum Gas [LPG] distributorships for 66 nos. of locations in the entire State of Assam, more particularly, in respect of the LPG distributorship for Village-Alimur, Subansiri Gaon Panchayat under Ghilamara Development Block and Dhakuakhana Sub-Division, District - Lakhimpur. After the selection of successful candidate has been made pursuant to the advertisement dated 12.06.2018, the writ petition, W.P.(C) no. 6700/2018 has been filed assailing selection of the beneficiary by impleading the selected candidate as the respondent no. 5 at first but later on, by impleading as the respondent no. 6.

2. The relevant background facts leading to the institution of the two writ petitions may be exposited, in brief, as under:-

2.1 The 3 [three] public sector oil companies, namely, Indian Oil Corporation Ltd. [IOCL], Hindustan Petroleum Corporation Ltd. [HPCL] and Bharat Petroleum Corporation Ltd. [BPCL] published an advertisement jointly on 12.06.2018 inviting applications from candidates for LPG distributorships in respect of 66 nos. of locations. Amongst 66 nos. of locations, serial no. 50 was in respect of a location in village - Alimur, Gaon Panchayat - Subansiri, Sub-Division - Subansiri Part, Block-Ghilamara, District - Lakhimpurin the State of Assam. The type of LPG distributorship is Durgam Kshetriya Vitrak [DKV]. In the said advertisement, the said location has been reserved for Other Backward Classes [Physically Handicapped] [OBC (PH), for short] category.

2.2 The petitioners have stated that they belong to Scheduled Tribes [ST] community. It is their assertion that there are three sub-divisions in Lakhimpur district including Dhakuakhana. According to them, 80% of the population of Dhakuakhana Sub-Division belong to Scheduled Tribes [ST] while the remaining population belongs to mostly Scheduled Castes [SC] and OBC. One of the Gaon Panchayats under Ghilamara Development Block of Dhakuakhana Sub-Division is Subansiri Gaon Panchayat. As per the Population Census of 2011, more than 89% of the population within Subansiri Gaon Panchayat belongs to STs. It is their case that the Alimur village has 80% population from STs community. Thus, it is not open for the respondent IOCL authorities to reserve the LPG distributorship for Alimur village for a candidate belonging to OBC [PH] category.

3. As per the subject-matter of the two writ petitions are inter-related, the two writ petitions are taken up together at the request of the learned counsel for the parties.

4. Heard Mr. M.J. Quadir, learned counsel for the petitioners; Mr. P. Bharadwaj, learned counsel appearing for the respondent nos. 2 - 4; and Mr. B.J. Ghosh, learned counsel for the respondent no. 6 in W.P.(C) no. 6700/2018. None has appeared for the respondent no. 1 and the respondent no. 5.

5. Mr. Quadir has submitted that since almost 100% of the population in Alimur village belongs to ST category, the LPG distributorship should have been reserved for a candidate belonging to the ST category. He has submitted that if the entire Ghilamara Development Block is taken into consideration, then also 90% of the population belongs to the ST category. When almost the entire population belongs to the ST category and when there are large numbers of candidates available within the Block and/or Sub-Division from the category, the respondent authorities by reserving the location at Village - Alimur for OBC [PH] category have deprived the eligible persons from ST Category in the process of selection for LPG distributorship. Additionally, he has submitted that the selected person is not a resident of the district of Lakhimpur and as such, he is not eligible for selection as per the advertisement, even if the issue of reservation is kept aside.

6. Mr. Bharadwaj, learned counsel for the respondent nos. 2 - 4 IOCL has submitted that in case of selection of candidates for LPG distributorship, the Oil Marketing Companies [OMCs] including the IOCL, have to strictly follow the Unified Guidelines for Selection of LPG Distributors ['Unified Guidelines', for short] framed in the year 2017 for different categories including Durgam Kshetriya Vitrak [DKV]. The impugned advertisement dated 12.06.2018 was published by three Oil Marketing Companies [OMCs] jointly. The Unified Guidelines have provided for reservation as well as for roster of locations. The percentage-wise reservations are made on the basis of percentage-wise population of the State belonging to (a) Open Category, (b) SC/ST category, and (c) OBC category. As regards roster of locations, the Unified Guidelines have provided for "200 points Roster" prior to issuance of the impugned advertisement. The roster of locations were done for the entire locations as per DKV roster prepared. As a result of roster of locations, the location at Village - Alimur under Subansiri Gaon Panchayat should be reserved for OBC [PH] category. After the advertisement, the selection of the beneficiaries for all the locations including one at Alimur have been done strictly in terms of the procedure laid down in the Unified Guidelines. In the selection process, three candidates were selected in order of merit for the location at Alimur. When the first two candidates failed to comply with the requirements, the respondent no. 6 has been selected after rejection of the candidatures of the previous two candidates in the list. Accordingly, a contract agreement has already been executed. Contending as such, he has submitted that the petitioners have no locus standi to challenge either the advertisement or the selection of the successful candidate. In support of his submissions, Mr. Bharadwaj has placed a copy of the PSU Oil Marketing Companys' Manual for selection of LPG distributors under 'Unified Guidelines for selection of LPG distributorships', formulated in October, 2017.

7. Mr. Ghosh, learned counsel appearing for the respondent no. 6 has endorsed the submissions of Mr. Bharadwaj, learned counsel for the respondent nos. 2 - 4. He has further submitted that the respondent no. 6 belongs to OBC [PH] category. The respondent no. 6 has fulfilled all the norms as laid down in the advertisement and after a due selection process, he has been selected. On receipt of the Letter of Intent [LoI] on 11.01.2019, he had completed the requisite formalities. Thereafter, a Letter of Appointment [LoA] came to be issued on 11.02.2020 and an agreement between him and the respondent IOCL came to be executed on 27.02.2020. He has further submitted that the respondent no. 6 has been operating the LPG distributorship at Alimur as on date. To buttress his submissions, he has referred to the documents annexed to the affidavit-in-opposition filed on behalf of the respondent no. 6. Mr. Ghosh has submitted that it is not the pleaded case of the petitioners that the selection of the respondent no. 6 is bad as he is not a resident of Lakhimpur district but a resident of Dhemaji district. In any view of the matter, the Unified Guidelines do not lay down such a criteria, he submits.

8. I have duly considered the rival submissions of the learned counsel for the parties and also perused the materials brought on record by the parties through their pleadings. I have also gone through the provisions contained in the Unified Guidelines.

9. The Unified Guidelines for selection of LPG Distributors [Unified Guidelines] has provided for the procedure of selection of distributors of Liquefied Petroleum Gas [LPG] for all locations advertised for LPG distributorships. The Unified Guidelines have been made effective from June, 2017. LPG distributors are selected for four types of distributorship areas and they are (i) Sheheri Vitrak; (ii) Rurban Vitrak; (iii) Gramin Vitrak; and (iv) Durgam Kshetriya Vitrak [DKV]. The Durgam Kshetriya Vitrak [DKV] LPG distributorships are set up where setting up of Rurban Vitrak and Gramin Vitrak are not feasible and they are meant for Difficult and Special Areas like Hilly regions, Forests areas, Tribal inhabitant areas, sparsely populated areas, disturbed areas, islands, Left Wing Extremism [LWE] affected areas, etc.

10. The Unified Guidelines have provided for a uniform selection procedure for all the above four categories. As per the Unified Guidelines, "Village" means the basic unit for rural areas which is the revenue village with definite surveyed boundaries and "Location" means the area identified for setting up of new LPG distributor. It can be a locality/village/cluster of villages/town or city which is mentioned in the notice for appointment of LPG distributors. Clause 3 of the Unified Guidelines mentions about identification of locations. Locations for setting up of LPG distributorships are identified based on available refill sale potential, which can sustain economically viable operation of an LPG distributorship. It is the duty of the Oil Marketing Companies [OMCs] to aim at covering all the areas of the country so that every household in the country has access to LPG. The setting up of LPG distributorships at the identified locations is a business proposition that has reached by undertaking necessary study and it does not guarantee any assured returns or profits. The feasibility study for setting up of new LPG distributorships is to be based on refill sale potential and refill sale potential is based on the number of households, per capita consumption, LPG coverage and the existing/proposed PNG connections, if any.

11. Clause 4 of the Unified Guidelines has provided for reservations. It has prescribed for percentage reservations for various categories in all the States except Arunachal Pradesh, Meghalaya, Nagaland and Mizoram. The part relevant for the State of Assam are extracted herein below:-

In each of the above categories, there will be sub-categories as under:-

12. Clause 5 of the Unified Guidelines has provided for rostering of locations. In order to ensure that the percentage reservations (supra) are maintained, locations identified for setting up LPG distributorships under various categories are to be placed under different categories of reservation as per "200 point Roster" for each State for various categories on Industry basis [IOCL, BPCL and HPCL together] so as to ensure the percentage reservation as envisaged for each category is achieved. The "200 point Roster" means a set of serial numbers from 1 to 200, against each serial number reservation category is allocated such that when 200 numbers of distributors are planned in the Roster, the percentage reservation of each category is achieved. For each State [except Arunachal Pradesh, Meghalaya, Nagaland and Mizoram], three "200 point Roster" shall be prepared - one for Sheheri Vitrak and Rurban Vitrak, one for Gramin Vitrak and one for Durgam Kshetriya Vitrak [DKV]. It calls for maintenance of continuity in the "200 point Roster" and once the 200 Roster serial numbers are completed, a new Roster is required to be started from Roster serial number 1. The "200 point Roster" needs to be followed on rolling basis. Within a State, the distribution of location reserved for SC or ST is to be based on the ratio of population of SC and ST of the State.

13. As it appears from the advertisement dated 12.06.2018, applications were invited by the three OMCs together for 66 nos. of locations. The respondent IOCL in its affidavit has averred that the locations for setting up of LPG distributorships were finalized as per the Roster points in the "200 point Roster". In the said affidavit, a Record Note of Industry Meeting dated 08.06.2018 for Durgam Kshetriya Vitrak [DKV] in the State of Assam has been attached. From the said Record Note, it is discernible that the State Industry Members of Assam had initially identified 62 locations for setting up of LPG distributorships in the DKV category in Assam under the Industry Plan : 2018-2019. The Industry Members in their meeting, held on 08.06.2018, finalized the 62 nos. of locations and the same was forwarded to the State Level Committee [SLC], Assam on 08.06.2018. The SLC, Assam is a Committee consisting of Officers from the three OMCs responsible for LPG marketing in the State of Assam. The 62 nos. of DKV locations in Assam had been rostered by the Industry Working Group as per the "200 point Roster" approved in the Unified Guidelines under 2018-2019 marketing plan for the State of Assam and the roster points were from serial no. 1 to serial no. 62. On query, it has been stated that 4 (four) more locations were, later on, added making the total number of locations 66. It transpires that out of 62 locations, 31 nos. of locations were earmarked for the respondent IOCL. 16 nos. and 15 nos. of locations were earmarked for BPCL and HPCL respectively as per the roster of the "200 point Roster". Out of 66 locations, 34 nos. of locations were earmarked for Open category candidates whereas 17 nos. and 15 nos. of locations had been reserved for OBC category and SC/ST category respectively.

14. The stand of the respondent IOCL in the affidavit is that the locations advertised need to be fitted into the "200 point Roster" maintained on rolling basis. While doing so, efforts are always made to roster the locations with higher density of SC and ST population so that locations with higher percentage of SC or ST population can be reserved for these categories but it is not always possible to reserve all locations having such population. The required number of OBC locations also need to be accommodated in the locations in the advertisement.

15. From the provision for reservation in the Unified Guidelines, it is evident that the reservations are required to be made on the basis of the ratio of population of different categories in the State. The Unified Guidelines have provided for reservations of LPG distributorships for SC and ST categories together to the extent of 22.50% and for Other Backward Classes [OBC] to the extent of 27.00%. The rest 50.50% are meant for Open Category [OC].

16. The Unified Guidelines have laid down the common eligibility criteria. As per the common eligibility criteria, an applicant inter alia (i) should be an Indian citizen and a resident of India; (ii) should have passed Xth standard examination or equivalent from a recognized board; and (iii) should not be less than 21 years and not more than 60 years in age as on the date of publication of the advertisement/notification. The applicant should 'Own' a plot of land of capacity, minimum dimensions as specified therein for construction of LPG Godown or 'Own' a ready LPG Cylinder Storage Godown as on the last date for submission of application as specified either in the advertisement or Corrigendum, if any. The Durgam Kshetriya Vitrak [DKV] category candidate must have a storage Godown of minimum capacity of 3000 kg on a plot of land of minimum dimensions 15 meter x 16 meter in and within the village or cluster of villages limit as per the advertised location. The Unified Guidelines have also laid down specific eligibility criteria for different reservation categories. The applicants fulfilling common eligibility criteria can apply under 'Open' category. The applicants belonging to castes/tribes recognized as Scheduled Castes [SC]/Scheduled Tribes [ST] under the Constitution of India holding valid certificates, are eligible to apply for the SC/ST category. Similarly, the applicants belonging to 'Other Backward Classes [OBC]' recognized as 'OBC' by the Government of India [Central Government] under the Constitution of India only are eligible to apply for locations reserved for OBC category. Apart from the above, the Unified Guidelines have also laid down specific eligibility criteria for different sub-categories. An applicant fulfilling common eligibility criteria can apply against the OC category and, thus, there appears to be no bar for an applicant belonging to either OBC or SC or ST category to apply against a location advertised for OC category. It is not the case of the petitioner that the respondent IOCL and for that matter, the three OMCs have violated the percentage-wise reservation rule provided in the Unified Guidelines.

17. The petitioners have not been able to show any legal provision whereunder a location having majority population belonging to ST category must be reserved for that category only. Thus, from the eligibility criteria laid down in the Unified Guidelines, it is clear that a person belonging either to the SC/ST category or to the OBC category can also apply for locations under the Open category, apart from the locations earmarked for either SC/ST category or for the OBC category, as the case may be. The petitioners have asserted only to the effect that they are residents within the Dhakuakhana Sub-Division in the district of Lakhimpur, Assam with the further assertion that 80% population of Dhakuakhana Sub-Division are Scheduled Tribes [ST] while the remaining population comprises of Scheduled Castes [SC], Other Backward Classes [OBC] and others. The petitioners have not contended that they have aspired to apply for LPG distributorships. They have not also contended that they fulfill the common eligibility criteria and also the specific eligibility criteria laid down for SC/ST category and different sub-categories like Physically Handicapped [PH] category, etc. In the absence of such details, the plea regarding lack of locus standi raised against the petitioners by the respondents cannot be brushed aside as far fetched and irrelevant.

18. It may also be worthwhile to indicate that under the Unified Guidelines, it is open for the candidates belonging to the Scheduled Tribes [ST] category like the petitioners, to submit applications for 73% [=50.5%+22.5%] of locations categorized as DKV category under the "200 point Roster". In so far as the Advertisement dated 12.06.2018 is concerned whereby applications were invited, it was open for a candidate belonging to SC/ST category to apply for LPG distributorships for as many as 49 [=34+15] nos. of locations out of the total 66 nos. of locations which were reserved for Open category candidates and SC/ST category candidates combined together. In view of the above fact situation obtaining in the case in hand, any contention regarding denial of opportunity to apply and of level-playing field for LPG distributorships under the Advertisement dated 12.06.2018 cannot be countenanced.

19. The specific plea that has been raised by the petitioners is to the effect that the location at Alimur falls under Subansiri Gaon Panchayat and the area under the Subansiri Gaon Panchayat is inhabitated by people belonging mostly to Scheduled Tribes [ST]. According to the petitioners, the percentage of population belonging to ST category in Subansiri Gaon Panchayat is more than 89% and as such, the location at Alimur for LPG distributorship ought to have been reserved for an applicant belonging to the ST category. Other than the above ground regarding reservation on the basis of place of residence, no other ground has been raised by the petitioners in support of their contention to reserve the location at Alimur for LPG distributorship for the ST category.

20. The Advertisement dated 12.06.2018 indicated that an intending applicant could download the Unified Guidelines wherein the detailed guidelines on eligibility criteria for selection of LPG distributor, infrastructure requirements for land for LPG godown, land for showroom/ready build showroom, infrastructure for home delivery of cylinders, etc. along with the details of the selection process were given, from the concerned websites mentioned therein. The common eligibility criteria, the specific eligibility criteria for main reservation categories like Open/SC/ST/OBC and for different sub-categories like Physically Handicapped [PH], etc. about which discussions are made above, are included in the Unified Guidelines. As has been deliberated above, the Unified Guidelines have provided for reservation for OBC category and SC/ST category to the extent of 27% and 22.5% respectively. There is no provision in the Unified Guidelines for reserving a location for LPG distributorship only on the basis of percentage of population of a particular category in that location. But no challenge has been made by the petitioners to the Unified Guidelines in these two writ petitions. The only rationale contended by the petitioners in support of their plea for reservation of the location at Alimur is that five other locations advertised in the Advertisement dated 12.06.2018 where majority of the population belong to ST category, have been reserved for S.T. But, such contention is made without any statistical data and figures. The only statistical data and figures that have been provided by the petitioners, are in relation to Subansiri Gaon Panchayat under Ghilamara Development Block which has a total population of 16,608. In view of failure on the part of the petitioners to provide the requisite statistical data and figures for other locations it is not possible on the part of this Court, not to speak of about impermissibility or otherwise, to make any comment on it and not to make any comparison between such other locations vis-à-vis. Alimur to draw any inference, much less any conclusion.

21. The petitioners have not been able to indicate about the nature of violation with regard to any of their fundamental right or Constitutional right or statutory right or legal right and about failure on the part of the respondent IOCL authorities to discharge any corresponding legal duty or obligations imposed on them. The petitioners have sought to bring an analogy of the instant case by making a reference to Article 15 and Article 16 of the Constitution of India, but the same is found to be a specious one as Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(2) has prescribed that no citizen shall, on grounds only of religion, race, caste, sex, descent, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. The enabling provisions contained in Article 16 allowing the State to make any provision for reservation in favour of SCs, STs and any economically weaker sections of citizens are limited to posts in the services under the State. The petitioners have not also been able to show in what manner the case of the petitioners residing within Dhakuakhana Sub-Division or within Alimur location discriminated on the ground of residence, brings the case within the purview of Article 15 of the Constitution of India. It may be relevant to note that residence is not included in Article 15 which prohibits discrimination on specified grounds. The enabling provisions of Article 15 has allowed the State to make any special provision, by law, for advancement of any socially and educationally backward classes of citizens or for the SCs or the STs only in the matter of admission to educational institutions.

22. Even if a matter is not covered under Article 15 or Article 16, the same could be subject to challenge under Article 14 or under Article 19(1)(g) of the Constitution of India. The case in hand pertains to distribution of State largesses. The matter of distribution of State largesses is premised entirely on different factors. One relevant factor is economic. The OMCs have decided as a policy, with the approval of the Government of India, to provide reservation to the SCs, STs and OBCs in the matter of awarding LPG distributorships to the extents indicated above. The policy decision to provide such reservation is on the basis of State-wise percentage of population of these categories and thus, the matter of such reservation is on the broad-base of population of a particular State. The policy of such reservation for SCs, STs and OBCs in the matter of awarding LPG distributorships is not extended to the micro-level of village or locality. The petitioners have failed to indicate any rationale as to how the macro-level policy of reservation for SCs, STs and OBCs in the matter of awarding LPG distributorships, laid down in the Unified Guidelines, should be implemented and followed also at the micro-level of village or locality by reserving a location for a particular category i.e. either SC or ST or OBC where the percentage of population of that particular category is in the majority. The petitioners have not also pleaded that the Unified Guidelines have violated the fundamental right to carry on any trade or business when it is open for a candidate belonging to ST Category to apply for LPG distributorship for a substantial number of locations advertised. The procedure of selection set forth in the Unified Guidelines including the maintenance of "200 point Roster" and selection of locations for different roster points, has not been put to challenge by the petitioners on the ground of arbitrariness or unfairness or discrimination or denial of level-playing field on the touchstone of Article 14 of the Constitution of India. With no foundational facts being laid and no legal issues being raised in the writ petitions by the petitioners, it is not necessary for this Court to dilate any further on the said aspects.

23. It may be reiterated that in the Advertisement dated 12.06.2018, the location at village-Alimur was reserved for OBC [PH] category. The Unified Guidelines have stipulated that in case of more than one eligible applicant, selection of LPG distributor for an advertised location is to be done through computerized draw of lots from the eligible applicants for that location. The Unified Guidelines have also laid down the inter se priority criteria to be accorded in the draw of lots to the applicants for the Durgam Kshetriya Vitrak [DKV] locations wherein three priority lists are to be prepared as per the following order:-

List 1 : Eligible applicants, residing in the concerned Gram Panchayat of the advertised location.

List 2 : Eligible applicants, residing in the concerned Revenue sub division of the advertised location.

List 3 : Eligible applicants, not residing in the concerned Gram Panchayat or in the concerned Revenue sub division of the advertised location.

24. It has been stated in the affidavit-in-opposition of the respondent IOCL authorities that in response to the Advertisement dated 12.06.2018, 3 (three) nos. of applicants had applied for LPG distributorship at Alimur under OBC [PH] category. As per the inter se priority list, the selected candidates were placed as per the prescribed criteria. The respondent no. 5 viz. Sri Dipak Gogoi was placed at Priority List 1; one Sri Pranab Kumar Chutia was placed at Priority List 2; and the respondent no. 6 viz. Sri Mahendra Bora was placed at Priority List 3 based on their residential status. Pursuant to such selection, the candidature of the respondent no. 5 was cancelled on 09.08.2018 as he failed to deposit the requisite fee of 10% of the security deposit within the stipulated time period for carrying out the Field Verification of Credentials [FVC]. Further, after cancellation of the candidature of the respondent no. 5, Sri Pranab Kumar Chutia was selected from Priority List 2 and after deposit of 10% of the security deposit, the Field Verification of Credentials [FVC] was carried out. As Sri Pranab Kumar Chutia failed to show any document to prove ownership of the land offered by him during the FVC, his candidature was also cancelled on 11.10.2018. After rejection of the candidatures of the said two applicants, the respondent no. 6 was selected and after Field Verification of Credentials [FVC], the Letter of Intent [LoI] was issued in favour of the respondent no. 6 on 11.01.2019. Thereafter, the respondent IOCL appointed respondent no. 6 as LPG distributor for the location at Alimur by issuing the Letter of Appointment [LoA] dated 11.02.2020. A Memorandum of Agreement was also entered into between the respondent IOCL and the respondent no. 6 on 27.02.2020 laying down the terms and conditions for the LPG distributorship.

25. The petitioners while preferring the writ petition, W.P.(C) no. 6700/2018 had impleaded Sri Dipak Gogoi as party-respondent no. 5 initially and contentions were made in the writ petition against the selection of the respondent no. 5 only. No contentions were made against the respondent no. 6 in the writ petition. The fact of selection of the respondent no. 6 was disclosed in the affidavit-in-opposition filed on behalf of the respondent nos. 2 - 4 on 25.03.2019. Thereafter, the petitioners filed an interlocutory application, I.A.(C) no. 1197/2019 seeking impleadment of the respondent no. 6 as a party-respondent in the writ petition and the respondent no. 6 came to be added as the party-respondent no. 6 in the writ petition, W.P.(C) no. 6700/2018 pursuant to an order dated 10.05.2019 passed in I.A.(C) no. 1197/2019. The writ petition, W.P.(C) no. 6700/2018 has not been amended thereafter raising any ground of challenge with regard to selection of the respondent no. 6 as the LPG distributor for the location at Alimur, other than the ground with regard to reservation of the location for ST category alluded above. Thus, there is no pleading alleging anything regarding the selection process undertaken by the respondent IOCL authorities leading to the selection of the respondent no. 6 as the LPG distributor for the location at Alimur. Thus, this Court finds force in the submission of the respondents that the selection of the respondent no. 6 is not a pleaded case of the petitioners. In the absence of requisite foundational facts to seek disqualification or cancellation of the LPG distributorship awarded in favour of the respondent no. 6 it is not open for the petitioners to contend for cancellation of such LPG distributorship and also not necessary for the Court to deliberate on it.

26. In view of the discussions made above and finding no valid reason to make any interference in respect of the grounds of challenge contended by the petitioners in these two writ petitions, this Court is of the unhesitant view that both the writ petitions are devoid of merits and are liable to be dismissed. It is accordingly ordered. There shall be no order as to cost.