State Of Uttarakhand & Another vs Mahendra Kumar Das & Others

Lok Pal Singh, J

1) Since common questions of law and facts are involved in the aforementioned writ petitions, therefore, the same are taken up together and are being decided by this common judgment for the sake of brevity and convenience.

2) By means of WPMS no. 93 of 2016, the petitioner-State is seeking a writ of certiorari quashing the judgment and order dated 23.08.2014, passed by the Board of Revenue in Revision no. 42 of 2012-13 (Annexure no. 1), as well as the order dated 12.05.2015, passed by Board of Revenue in Review Application no. 83/2013-14 (Annexure no. 2). A further prayer has been sought for quashing the impugned judgment and order dated 07.02.2011 (Annexure no. 5) passed by Addl. Commissioner, Kumaon in Revision no. 8/26(2010-11).

3) WPMS no. 2946 of 2015, WPMS no. 2948 of 2015, WPMS no. 2620 of 2015 and WPMS no. 2949 of 2015 have been filed by the petitioner-State seeking writ of certiorari quashing the judgment and order dated 23.08.2014, passed by Board of Revenue in Revision nos. 38 of 2012-13; 37 of 2012-13; 34 of 2012-13; 36 of 2012-13, respectively. A further prayer has been made for quashing the impugned order dated 20.12.2012, passed by Appellate Authority.

4) Writ Petition no. 93 (M/S) of 2016 will be the leading case.

5) Brief facts of the case are that the first respondent filed an application under Section 33 / 39 of the U.P. Land Revenue Act, 1901 (as applicable in the State of Uttarakhand) seeking correction of entries in the revenue record, stating therein, that the subject land was recorded in the name of fathers of the applicants namely, Brijendra Kumar Das and Jeevan Lal. At any point of time, without there being any order of the competent authority, the names of their father were deleted from the revenue records and the name of Keshar Sugar Mills, Baheri was entered in the revenue records. The application filed by the applicants, which was registered as Revenue Suit no. 25 / 01 of 2010-2011, has been dismissed by the Asstt. Collector, I Class, Haldwani, vide order dated 27.12.2010, holding that long standing entries cannot be corrected in exercise of jurisdiction under Section 33/39 of the U.P. Land Revenue Act, 1901 (hereinafter referred to as 'the Act'). Feeling aggrieved, the first and second respondents preferred revenue revision no. 8/26(2010-11), Mahendra Kumar Das and another vs State of Uttarakhand. The Addl. Commissioner, Kumaon Division, Nainital having considered the fact that in the revenue records of the year 1949, the names of father of the applicants, namely, Brijendra Kumar Das and Jeevan Lal were recorded in the revenue records, but without their being any order, the same entries in the settlement year 1958-59, the name of Keshar Sugar Mills, Baheri through its representative was added stating that the name of Brijendra Kumar Das and Jeevan Lal is that of the representative of Keshar Sugar Mills, Baheri. In the meantime Brijendra Kumar Das and Jeevan Lal (father of the applicants) passed away and at their place, the land khata no. 1, measuring 32.033 Hectare was recorded in the names of legal heirs of original tenure holders. The Addl. Commissioner having considered the fact of the case arrived to the conclusion that since forged entries have been made in the revenue records without there being any order, therefore, irrespective of the fact that the entries are old, these entries may be old, but would not stand as the same are void ab initio and could be corrected under the provisions of Section 33/39 of the Act. Reliance was placed upon the judgment of Board of Revenue, Lucknow, passed in revision no. 1531 (L.R.) Sidheshwar Gupta vs Nijamuddin, R.D. 2008 wherein it was held that the forged entries in the 1361 and 1363 Fasli was rejected on the basis of Section 33/39 of the Act. Hon'ble Allahabad High Court in Antyoday Sewa Samiti through Mantri Shanker Pal Singh vs District Dy. Director Consolidation / Collector, Etah, [2010 (110) R.D. 794], has held that entry not backed by any order has been rightly expunged and no interference is warranted. In Virender Kumar Gupta vs State of U.P., J.R.I. 2004 pg 120 it has been held that fraud and collusion vitiates every proceedings. Orders obtained by playing fraud on the court or authority is a nullity and non-est. It also amounts to abuse of process of the court. The court has inherent power to set aside an order obtained by fraud. Reliance was also placed upon the judgment of Allahabad High Court in Dipa vs Jugal Kishor, R.D. 1941 pg 164, wherein it has been held that where the High Court found that the entires are not in accordance with the possession, the entry could be corrected. Also placing reliance on a judgment rendered by Board of Revenue in the case of Mithu vs Gram Sabha, R.J. 2001 pg 461 emphasis was placed that if any court came to know about the forged entry made in revenue records, it can be cancelled either suo moto or n any proceedings of a suit because it comes under the jurisdiction of the Court.

6) Having considered the ratio laid down in judgments (supra), the Addl. Commissioner has recorded the findings that the entries were changed without there being any order passed by the competent authority, without granting opportunity of hearing to the recorded tenure holder, being the forged entries in the revenue records, the same are liable to be corrected. The Addl. Commissioner, Kumaon Division set aside the order impugned in revision dated 27.12.2010 and allowed the revision vide judgment and order dated 07.02.2011.

7) Feeling aggrieved, State of Uttarakhand preferred Revision no. 42/2012-13, State vs Mahendra Kumar Das and another under Section 219 of the Act before the Board of Revenue, Uttarakhand. Board of Revenue, Uttarakhand having considered the submissions of counsel for the parties and after perusal of record has recorded the categorical findings that the name of Brijendra Kumar Das and Jeevan Lal were recorded till the year 1949, but during the settlement proceedings without there being any order of the competent authority or court in a fraudulent manner, their names were added as representative of Keshar Sugar Mills, Baheri. Such adding of the name of Keshar Sugar Mills, Baheri is without any order passed by the competent authority or court. It is observed that since the entry has been made without there being any order of the competent authority or court, the same is void ab initio and could be corrected under Section 33/39 of the Act. Tehsildar concerned submitted a report that the entries have been changed. The entries of Keshar Sugar Mills has wrongly been added without there being any order of the competent authority or court. The report further suggests that the applicants are in possession and cultivating the land. The possession of Keshar Sugar Mills was never found. Tehsildar, in its report, has admitted the fact that the entires of Keshar Sugar Mills are without any order of the competent authority, the same fact is considered to be true by the Assistant Collector. The report of the Tehsildar was also considered that the entries in the name of Keshar Sugar Mills has been entered without their being any order of the competent authority and the applicants are continuing the possession.

8) Having considered the report of the Tehsildar and the documents placed on record, the Board of Revenue vide judgment and order dated 23.08.2014 dismissed the revision filed by the State of Uttarakhand. On dismissal of said revision, the State of Uttarakhand preferred a review application seeking review of the order dated 23.08.2014. The review application filed by the State of Uttarakhand was rejected by order dated 12.05.2015. Board of Revenue has recorded the findings on the basis of documentary evidence available on record and the judgment and order sought to be reviewed has been passed in accordance with law and there is no error apparent on the face of record and dismissed the review application. Hence, aforementioned writ petitions.

9) Heard Mr. Yogesh Pandey, learned Addl. Chief Standing Counsel for the petitioner-State and Mr. Sarvesh Agarwal, learned counsel for respondent nos. 1 and 2.

10) Upon hearing Mr. Pandey and on perusal of the material available on record, this Court would like to render few relevant paragraphs of the writ petition. The same are excerpted hereunder:

"7. In the meantime on 22.10.2012, the District Magistrate, Bareilly has informed that the writ petition no. 3223 / 1977 filed by Keshar Sugar Mills Ltd. has been dismissed vide judgment and order dated 23.03.2012 and the interim order granted has also been vacated.

In pursuance of the said decision of the Hon'ble Allahabad High Court, the SDM, Haldwani on 08.11.2012 has taken the possession of the land declared surplus by the ceiling court and, accordingly, the revenue record was also corrected and the name of State Government has been recorded in the revenue record on 12.12.2012.

Feeling aggrieved by the judgment and order dated 07.02.2011, the State Government preferred a revision before the Board of Revenue on 21.01.2013 and the Board of Revenue vide its interim order dated 23.01.2013 stayed the order dated 07.02.2011.

The revision filed against the order dated 07.02.2011 before the Board of Revenue has been decided vide impugned judgment and order dated 23.08.2014. Against said order review petition filed before the Board of Revenue was also rejected vide order dated 12.05.2015."

11) It is contended that the proceedings were initiated against Keshar Sugar Mills, Baheri, under the provisions of Ceiling on Land Holdings Act, 1972, in regard to the subject land being Ceiling Suit no. 216 of 1974. The ceiling proceedings were decided by judgment and order dated 15.11.1977, by the Prescribed Authority, Baheri, District Bareilly. Out of the total land situated at village Bhawanipur Harsingh, Tehsil Lalkuan, District Nainital, except Abadi plots, land measuring 417 Bigha 12 Bishwa was declared as agricultural land and 72 Bigha as non-agricultural land and total 489 Bigha 12 Bishwa land was declared as land covered by ceiling. An appeal was preferred against said judgment and order dated 15.11.1977 before the District Judge, Bareilly. The appeal was dismissed by order dated 03.08.1977. Feeling aggrieved, Writ Petition no. 3223 of 1977 was filed. In the meantime, application for correction moved under Section 33/39 of the Act was filed. It is contended that the writ petition was dismissed vide judgment and order dated 23.03.2012 and interim order was vacated. In pursuance of judgment passed by Hon'ble Allahabad High Court in the said writ petition the possession was taken over the subject land by the Sub Divisional Magistrate, Haldwani on 08.11.2012. It is contended that the question of title is involved, therefore, the same could not be decided on an application filed under Section 33/39 of the Act. It is contended that the title cannot be decided in summary proceedings.

12) Mr. Pandey would submit that the possession has already been taken pursuant to the proceedings initiated in ceiling proceedings and the courts below have committed illegality in allowing the application of correction filed by the respondent no. 1 and 2. On the other hand, learned counsel for respondent nos. 1 and 2 would submit that the name of the father of respondent nos. 1 and 2 were recorded as original tenure holders in the revenue records, but with the connivance of the Revenue Authorities, their names were shown as a representative of Keshar Sugar Mills, Baheri. It is contended that when this fact came into the knowledge of applicants they moved said correction application as per the procedure prescribed under the Act; report was called from the Tehsildar; Tehsildar submitted a specific report that the name of Brijendra Kumar Das and Jeewan Lal were recorded till the year 1949, but at subsequent point of time without their being any order of the competent authority, their names continued as a representative of Keshar Sugar Mills, whereof the name of Keshar Sugar Mills never remained in the revenue records. Since forged entries were made in the revenue record and subsequently the names of father of the applicants were deleted, therefore, an entry made in the revenue record without there being an order of the competent authority or court is void ab initio. It is contended that the Tehsildar's report had been considered by the Assistant Collector, but having considered the long standing entries, the application was illegally rejected by the Assistant Collector. The Addl. Commissioner, Kumaon Mandal, having considered the report and the entries in the names of father of the applicants, rightly directed to correct the entries. It is contended that the Addl. Commissioner had rightly allowed the revision.

13) The following points are necessary to be determined by this Court for the proper adjudications of the case:

i) Whether a revision is maintainable against an order of the Addl. Commisisoner, or not?

ii) Whether long standing entries made in the revenue records, could be corrected?

iii) Whether, the revenue entries confer or extinguish any title over the land in dispute?

Answer to point of determination no. (i):

14) Though a revision under Section 219 of the Act before the Board of Revenue was not maintainable in view of the fact that a revision could be filed against the order of Subordinate Court before the Board of Revenue or the Addl. Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be. It is contended that the revision against revisional authority does not lie. It is contended that in exercise of jurisdiction under Article 227 of the Constitution of India, this Court cannot act like an Appellate Court. The submission of learned counsel for respondent nos. 1 and 2 that against an order passed by the Addl. Commissioner in exercise of its jurisdiction under Section 219 of the Act, a revision before the Board of Revenue is not maintainable is misconceived and it is held that against an order passed by Addl. Commissioner in exercise of its revisional jurisdiction, a revision by the same party is not maintainable, but a revision before the Board of Revenue against an order passed by Addl. Commissioner at the behest of the party against whom the revision has been allowed is maintainable.

Answer to point of determination no. (ii):

15) I am of the considered view that the long standing entries if made under an order of the competent authority or court should not have been corrected on an application under Section 33/39 of the Act. But, there is a caveat to it that if such an entries are without any order of the competent authority or court, irrespective of their length, the same should not have continued and if the court is satisfied that the long standing entries are continuing without there being any authority or law or the same are a result of any mistake on the part of the Revenue Authorities or have been made for ulterior motive to disturb the recorded tenure holder from the right over the property, the same should not be continued to remain intact. Thus, the Court, in the facts and circumstances of the each case, has jurisdiction to correct the entries if found without authority of law. Thus, this Court is of the view that since the Tehsildar submitted the report in favour of respondent nos. 1 and 2 that the names of their father namely, Brijendra Kumar Das and Jeevan Das were continuing in revenue record and at some point of time without there being any order of competent court or authority, the entries were changed showing that the name of the father of the respondents were there in a capacity of the representative of Keshar Sugar Mills, does not appear to be correct and the Addl. Commissioner rightly allowed the revision, setting aside the order of the Assistant Collector dated 27.12.2010. The Second Revisional Court, i.e., Board of Revenue having considered the judgment and order passed by the Addl. Commissioner and placing reliance upon the material available on record dismissed the revision filed by the petitioner-State.

Answer to point of determination no. (iii):

16) Mr. Pandey, learned Addl. Chief Standing Counsel would submit that title cannot be decided in a summary proceedings under Sections 33/39 of the Act. Revenue entries does not confer or extinguish the title. The Hon'ble Supreme Court in Bhimabai Mahadeo Kambekar vs Arthur Import and Export Company ((2019) 3 SCC 191, while adjudication a dispute which has arisen out of and relates to the entries made in the revenue records in relation to the disputed land has held that mutation of a land in the revenue records does not create or extinguish the title over such land nor has it any presumptive value on the title.

17) It is an admitted case of the petitioner-State that over the suit property the possession has already been taken by the State of Uttarakhand pursuant to the proceedings initiated under the Ceiling of Land Holdings Act, passed by Allahabad High Court vide judgment and order dated 22.03.2012. Thus, the submission of Mr. Pandey is misconceived. In view of the fact that the stand taken by the Tehsildar, Lalkuan was itself erroneous, inasmuch as the revenue entry itself stood corrected vide order dated 07.02.2011, by the Addl. Commissioner on the premise that the answering respondent had no concern with Keshar Sugar Mills, Baheri and the entry made, if any, was illegal. It is contended that the said orders stands confirmed up till the Board of Revenue. The Addl. Commissioner while deciding the revision had given a categorical finding that the revenue entry was made without the order of a competent court and, therefore, such revenue entry could be corrected under Sections 33/39 of the Land Revenue Act. Such finding of the Addl. Commissioner were affirmed till the Board of Revenue, as such, the petitioner-State cannot seek modification of concurrent findings of fact recorded by the revenue authority under a writ jurisdiction. It is prayed that the concurrent findings of fact recorded by the courts below be affirmed and the illegal entry dated 12.12.2012 made in the Khatauni be declared as null and void. It is also prayed that the Revenue Authorities be directed to record respondent nos. 1 and 2 as tenure holder of the land is dispute and their bona fide possession be confirmed as legal.

18) Revision under Section 219 of the Act before the Addl. Commissioner is not akin to the revisional powers as assigned in Section 115 of CPC. The concurrent findings recorded by the Board of Revenue as well as Addl. Commissioner appear to be correct and no interference is called for in the same.

19) Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. vs Dilbahar Singh (2014) 9 SCC 78, has held that where both expressions "appeal" and "revision" are employed in a statute, obviously, the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression "appeal". The use of two expressions "appeal" and "revision" when used in one statute conferring appellate power and revisional power, is not without purpose and significance. Ordinarily, appellate jurisdiction involves a rehearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an "appeal" and so also of a "revision". If that were so, the revisional power would become coextensive with that of the trial court or the subordinate tribunal which is never the case.

20) The jurisdiction under Article 227 of the Constitution of India is a limited jurisdiction. In Radhey Shyam vs Chhabi Nath (2015) 5 SCC 423, it has been held by Hon'ble Apex Court that proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.

21) A Division Bench of this Court while deciding Review Application MCC No. 1276 /2018, arising out of Writ Petition No. 438 (S/B) of 2016, Tara Nath Pandey vs.Union of India & others, decided on 17.06.2019, has relied upon the principle of law laid down by Hon'ble Apex Court in Syed Yakoob vs. K.S. Radhakrishnan and others, AIR 1964 SC 1344) and observed that the scope of interference in certiorari proceedings is extremely limited. The relevant paragraphs of said judgment are excepted hereunder:

"3. A writ of certiorari can be issued for correcting errors of jurisdiction such as in cases where the order is passed without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction or where, in exercise of the jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly. The jurisdiction to issue a writ of certiorari is supervisory and not appellate. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The adequacy or sufficiency of evidence, and the inference of fact to be drawn therefrom, cannot be agitated in certiorari proceedings (Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344) as it is in the province of a court of appeal.

If the tribunal has erroneously refused to admit admissible and material evidence, or has erroneously admitted inadmissible evidence, or if a finding of fact is based on no evidence, it would be an error of law which can be corrected by a writ of certiorari. Where the conclusion of law by the Tribunal is based on an obvious mis-interpretation of the relevant statutory provisions, or in ignorance of it or even in disregard of it or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Whether or not an error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case, and upon the nature and scope of the legal provisions which is alleged to have been misconstrued or contravened. (Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344).

Unlike an appellate authority which can re-appreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not substitute its views for that of the Tribunal, nor would it re-appreciate the evidence on record to arrive at a conclusion different from that of the Tribunal whose order is impugned before it. Even if two views are possible, and the Tribunal has taken one of the possible views, the High Court would not interfere, in the exercise of its certiorari jurisdiction, even if it were to be satisfied that the other possible view, canvassed before it, is more attractive. A finding of fact reached, on the appreciation of evidence, cannot be reopened or questioned in writ proceedings save a finding of fact which is either perverse or is based on no evidence. If a provision is reasonably capable of two constructions, and one construction has been adopted by the authority, its conclusion may not always be open to correction in writ proceedings. (Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344).

A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior tribunals. A writ can similarly be issued where, in exercise of the jurisdiction conferred on it, the tribunal acts illegally or improperly, as, for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. (Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171 ; Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344). A writ of certiorari can be issued in the case of illegal exercise of jurisdiction, and also to correct errors of law apparent on the face of the record, even though they do not go to jurisdiction. It is only errors of law apparent on the face of the record, and not errors of fact though they may be apparent on the face of the record, which can be corrected, (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Ors : AIR 1961 SC 970 ; Rex vs Northumberland Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bora and Ors. Vs. The Commissioner of Hills Division and Appeals, Assam and Ors : AIR 1958 SC 398), and not every error either of law or fact which can be corrected by a Court of appeal or revision. (T. Prem Sagar Vs. The Standard Vacuum Oil Company Madras and Ors.: AIR 1965 SC 111; Bachan Singh and Ors. Vs. Gauri Shankar Agarwal and Ors : (1972) 4 SCC 257 ; Nagendra Nath Bora and Ors. Vs. The Commissioner of Hills Division and Appeals, Assam and Ors : AIR 1958 SC 398).

Further an error of law, which can be corrected by a writ of certiorari, must be self-evident. It should not need an elaborate examination of the record (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Ors : AIR 1961 SC 970), or require a detailed examination or an elaborate argument to establish it (Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Hari Vishnu Kamath Vs. Respondent:Syed Ahmad Ishaque and Ors. : AIR 1955 SC 233 ; Batuk K.Vyas Vs. Surat Borough Municipality and Ors : AIR 1953 Bom. 133). An error cannot be said to be apparent if one has to travel beyond the record to see whether the judgment is correct or not. It is an error which strikes on the mere looking, and does not need a long-drawn out process of reasoning on points where there may conceivably be two opinions. Such an error would not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. (Assistant Commissioner, Income Tax, Rajkot Vs.Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171 ; Sant Lal Gupta and Ors. Vs. Modern Co-operative Group Housing Society Ltd. and Ors. : (2010) 13 SCC 336).

22) A perusal of the impugned orders would reveal that it is not a case of the parties to keep the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power should be exercised in cases where grave injustice or failure of justice has occasioned and should be exercised sparingly and cautiously when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.

23) In the present case, the petitioner-State has utterly failed to convince the Court firstly, that the subordinate courts have passed the impugned orders, which may lead to grave injustice or failure of justice with the petitioner-State. Secondly, that the subordinate court has assumed a jurisdiction which it does not have; and thirdly, the jurisdiction available is being exercised in a manner which tantamounts to exceeding the jurisdiction.

24) The petitioner-State could not bring its case showing that the subordinate courts have exercised such a jurisdiction, which was not vested in them and the order passed by the courts below has occasioned into grave injustice or failure of justice; or that the subordinate courts have exercised the jurisdiction not vested in them; or that the subordinate courts has exercised a jurisdiction in a manner which tantamounts to over stepping the limits of jurisdiction.

25) Since the petitioner-State has failed to convince this Court in regard to applicability of any of the principle of law laid down by the Hon'ble Apex Court in Radhey Shyam's case (supra) in respect to exercise of jurisdiction under Article 227 of the Court so as to compel this Court to exercise such jurisdiction to differ with the reasons and the conclusion arrived at by the courts below, in the opinion of this Court, it is just and proper calling for no interference in the same.

26) In view of the findings recorded above, I am of the considered view that in exercise of jurisdiction under Article 227 of the Constitution of India, this court cannot act as an Appellate Court.

27) In view of the above, the aforementioned writ petitions are devoid of merit and are liable to be dismissed. The same are hereby dismissed. No order as to costs.