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Judgment
KH. Nobin Singh, J
[1] Heard Shri H.S. Paonam, learned Senior Advocate appearing for the petitioners; Shri N. Ibotombi, learned Senior Advocate and Shri Th. Ibohal, learned Senior Advocate appearing for the respondent Nos.22 & 23 and Shri L. Shashibhushan, learned Advocate appearing for the IOC Limited.
[2] Since both the writ petitions have arisen out of a similar set of facts, the same are being disposed of by this common judgment and order.
[3.1] By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus or any other appropriate writ or direction to the respondents for considering its case for appointment as contractor for bulk supply of LPG by road transportation for the State of Manipur and also for issuing a letter of intent accepting L-1 rate in view of the fact that the bidder who is L16, has been offered, while the same has been denied to it, although it being the L3.
[3.2] The respondent, IOC Limited issued a notice inviting e-tender in respect of four items of two categories being 12 MT Category of Bulk LPG TTs (Hilly); 12 MT category of Bulk LPG TTs (Plain); 7 MT category of Bulk LPG TTs (Hilly) and 7 MT category of Bulk LPG TTs (Plain) with identified lower band and high band for appointment of transporter/ contractor for bulk supply of LPG by road transportation for the State of Manipur. The petitioner who was eligible and qualified for participating in the e-tender, submitted its bid online in the prescribed form on 19-04-2018. 0n 04-07-2018, the petitioner was informed that its bid was technically qualified and accepted by the Tender Committee. When the financial bids were opened on 27-07-2018, the petitioner was declared as financially accepted and as per the final result thereof, the petitioner was declared to be L3.
[3.3] Thereafter, the petitioner found that the bidder who is ranked as L16, was offered by the IOC Limited for acceptance of his bid at L1 rate which is given as under:
For 12MT TT
FOR 7MT TT
Plain
(Rs/MT/RTKM)
Hill
(Rs/MT/RTKM)
Plain
(Rs/MT/RTKM)
Hill
(Rs/MT/RTKM)
Within
State
Outside state
Within
State
Outside state
Within
State
Outside state
Within
State
Outside state
6.0735
6.0735
6.9867
6.9867
7.5462
7.5462
9.3908
9.3908
The petitioner being L3, was not offered at all, although it ought to have given priority and such attitude of the IOC Limited had infringed the petitioner's fundamental right of freedom of trade and commerce. In other words, the non-issuance of an offer letter in favour of the petitioner was violative of the right to equality.
[4.1] An affidavit-in-opposition was filed on behalf of the respondent Nos.1 to 3 stating that a bidder was to quote rates in respect of eight items/ sectors, if he/ she/ it was offering TTs in two categories viz. 7 MT and 12 MT and four items/ sectors, if he/ she/ it was offering in just one category. In pursuance of the e-NIT, the petitioner who submitted its bid in respect of two categories i.e. 7 MT and 12 MT, was found technically qualified but in its price bid, the petitioner did not quote rate against four mandatory items/ sectors. In other words, the petitioner, though quoted rates for both 12 MT and 7 MT category of bulk TTs, did not quote rate against four items/ sectors in the price bid out the total of eight items/ sectors. Hence, as per Clause 5 of the NIT read with point No.3 mentioned in the format for the price bid, its price bid was found not qualified during evaluation and it was, accordingly, rejected. The bidders were also to quote rate for loading source outside the State and also for source within the State for both plain and hill sector. Although, in normal situation, the bulk loading is done from loading source in Assam like Guwahati Refinery, North Guwahati Bottling Plant etc, the provision of rate is kept for loading from Sekmai Bottling Plant for emergency requirement of some other bottling plant and also by taking into account plants to be commissioned during the tenure of the contract in the same State as stated in the NIT.
[4.2] The document, annexed as Annexure-A/5 to the petition, was an auto-generated report from the system which indicates disqualification of only technically disqualified bidders and whose price bid was not considered for evaluation. As the petitioner was qualified in the technical bid, its price bid in respect of two categories of TTs viz. 7 MT and 12 MT was opened and accepted for further evaluation. This did not qualify it for award of contract as the same was to be done only after the total evaluation of the tender. The total TTs offered in the tender by the bidders was much higher than the TTs mentioned in the NIT and hence, many of the bidders whose price bids were accepted for evaluation, were not included within the required numbers of TTs as per the NIT. The price bid of the petitioner was also accepted for further evaluation. However, during evaluation of its price bid, it was found that the petitioner had submitted incomplete price bid in as much as it had failed to quote rates in respect of four items/ sectors viz. (a) rates for loading source within the State in respect of 12 MT TTs both for Hills and Plain and (b) rates for loading source within the State in respect of 7 MT TTs both for Hills and Plain and hence, it was liable for rejection as per the terms of the tender.
[5] It has been stated by the petitioner in its rejoinder that its bid was declared to be technically and financially accepted and finally, the bid rank of the petitioner was given as L3. In such circumstances, the stand of the IOC that the bid of the petitioner was liable to be rejected and found to be not qualified at post evaluation of the already finalized tender process which is impermissible in the eyes of law and hence, such a stand which is conflicting and contrary, might not be encouraged in terms of the law laid down by the Apex Court in a catena of decisions. It has been reiterated that since the transporters who are ranked below the petitioner, were offered for accepting L1 rates for executing the transportation work, the petitioner was also entitled to for such offer as the IOC Limited is a public corporation being bound by the principle of right to equality. Further, the contention that the petitioner had quoted rate against four sectors out of the eight sectors which is irregular/ impermissible, was false as the computer system had not rejected the submission of bid as defective and it was notified to have completed the submission, otherwise the incomplete filling up of the fills are always notified with prompt notification such as "Please Enter the Basic for at least one item in the Sheet BOQ1.
[6] The stand taken by the respondent No.22 is similar to that of the IOC Limited, because of which the same is not repeated here for the sake of brevity. However, it has been stated by the respondent No.22 in her affidavit that the petitioner participated in the tender and its bid was accepted for evaluation. By accepting its bid, the petitioner could not claim for getting the offer of L-1 rate for acceptance of its bid. The tender was to be evaluated as per the pre-disclosed parameter of evaluation criteria in the tender and the offer of L-1 rate to other qualified bidders for acceptance was a part of the process of evaluation. The petitioner was not asked to match L-1 rate as its price bid was incomplete as stated hereinabove and could not fulfill the qualifying criteria under point No.3 of the price bid as well as the terms and conditions of the NIT and as such, no interim order was called for from the end of this Court.
[7.1] In their additional affidavit, it has been stated by the respondent No.1 to 4 that a secured and user friendly e-tendering system is developed through the National Informatics Center (NIC) for e-tendering of different types of contract works under the respondent No.1. All the e-tendering of the respondent No.1 are published on the website https://ioctenders.nic.in. and any bidder can search, view, download and submit bids online in a secured and transparent manner. For general information about the e-NIT, a notice is published in the Newspapers and before doing that, the tender is created in the system for generation of a Unique Tender ID which is 2018 NEISO 69155.
[7.2] The following are the procedure being followed in the finalization and award of the contract in respect of the aforesaid e-tender for transportation of bulk LPG from outside the State of Manipur to the bottling plant at Sekmai after the bids being submitted by the bidders:
i) After the technical bid is opened, the same is decrypted in the portal on the due date and time stipulated in the tender by a two member committee.
ii) After completion of opening process, the bid opening committee completes the following process:
a. Upload "Bid Opening Summary" as per standard format.
b. Assign the names of the Technical & Finance Evaluators in the portal.
Since the bid opening details can be viewed by all the bidders online, no physical presence of the bidders is necessary.
iii) The bids are then evaluated by Tender Consideration Committee. After evaluation, technical / commercial queries, if any, the individual bidders are parked in the system specifying a reasonable time frame for receipt of replies for further evaluation of the bids. After receipt of suitable reply from the bidders, final evaluation is carried out by the Techno commercial evaluators. Technical evaluator and financial evaluators completes the Techno-commercial evolution in the portal where reasons are recorded by the evaluators for disqualification of the bidder(s), if any, based on offline approval received from competent authority. Subsequently, after obtaining price bid opening approval from competent authority, the Tender Consideration Committee concludes the techno-commercial evaluation including uploading of Techno-Commercial Evaluation Summary as per standard format and scheduling price bid opening date and time.
iv) On completion of techno-commercial evaluation, an auto email alert is generated to all the bidders. Therefore, no separate communication is required to be sent at this stage. As per the current system requirements, a minimum time period of 24 hours is required between completion of Techno Commercial Evaluation and scheduled Price Bid opening date & time.
v) The price bids of the technically qualified bidders are then decrypted in the system. After decryption, "Price Bid Opening Summary" as per standard format is uploaded in the portal along with BOQ Chart generated automatically in the portal. Since the Price quoted by the bidders are made available in the system, no physical presence of the bidders is necessary.
vi) Scrutiny & Financial evaluation is then carried out by the tender Consideration Committee and bids are ranked as L-1, L-2, 1-3 etc. based on the financial outgo for the tender. However, negotiations at times are carried out with only with L-1 rate to cover the required number of bidders as per Tender requirement.
vii) Approval is obtained from the competent authority for awarding Letter of Intent (LOI) to the required number of qualified bidders after conclusion of the tender.
viii) Finally, details of award of Contract are to be uploaded as per Standard format and thereafter the entire tender process is concluded.
In the instant case, after the Techno Commercial Evaluation, the list of technically qualified bidders was upload in the web portal of the respondent No.1 and thereafter, the price bids of the technically qualified bidders were then decrypted in the system. After decryption, "Price Bid Opening Summary" as per standard format was uploaded in the portal along with BOQ Chart generated automatically in the portal. The aforesaid procedure was done prior to Scrutiny & financial evaluation of the bids as per the parameters laid down in the tender by the Tender Consideration Committee. The petitioner did not submit the price bid as per requirement for which its bid was disqualified. It did not quote rate against four mandatory parameters in the price bid. The price bid of the tender was a single page document where it was mentioned in bold and red letter under point No.3 of the price schedule that "bidder has to quote in each line item (including special sector) for a particular category of bulk
TT. In case the bidder not quoting for one / more sector for the chosen category/ categories, then their bid will be rejected. The petitioner, though it quoted rates for both the 12 MT and 7 MT category of bulk TTs, did not quote rate against four items in the price bid out the total of eight items. Hence, as per the clause of price bid under point No.3 mentioned above, its price bid was found not qualified during evaluation.
[8] In WP(C) No.745 of 2018, this Court passed an interim order dated 28-08-2019 directing that two 7MT & one 12MT Bullet Trucks be kept reserved and in spite of that, according to the petitioner, the respondent, IOC Limited had chosen to issue the work order dated 08-01-2021 allotting two 7MTs to the private respondent which is under challenge in this writ petition.
[9.1] The petitioner being aggrieved by non-allotment of transportation work despite being declared as L3, approached this Court by way of writ petition being WP(C) No.745 of 2018 for a direction to the respondents for considering its case for appointment as contractor for bulk supply of LPG by road transportation for the State of Manipur. On 10-8-2018, this Court passed an interim order not to finalize the tender process in respect of the said NIT. Further, on 28-8-2018, this Court modified the said interim order to the extent that the IOC Limited might continue with the process of tender and that three TTs should be kept unfilled until further orders.
[9.2] According to the petitioner, despite the existence of the interim order dated 28-8-2018 being passed in WP(C) No.745 of 2018 and during the pendency thereof as part heard, the respondent, IOC Limited issued a letter of intent dated 22-12-2020, followed by a work order dated 08-01-2021 in respect of two 7MTs which were being issued in a complete arbitrary exercise of power and in violation of the order passed by this Court and were liable to be quashed and set aside for the ends of justice. The impugned orders had the effect of circumventing the order passed by this Court which were against constitutional mandate and therefore, this Court might be pleased to quash and set aside them for the ends of justice. They were issued in complete arbitrary exercise of power thereby warranting immediate interference by this Court for the ends of justice and for protecting the right and interest of the petitioner. Since the impugned orders were issued in violation of the order passed by this Court, the same would cause an irreparable lose to the petitioner as it would render WP(C) No.745 of 2018 infructuous.
[10.1] In the affidavit of the respondent No.1 to 3, it has been stated that two 7 MT & one 12 MT Bullet Trucks were still being kept reserved as per the direction of this Court and the issue of work order to the private respondents was out of the 58 additional TTs requirement besides the 230 Nos. of 7MT TTs stipulated in the NIT and as such, the averment that the work order issued to the private respondent was against the interim order of this Court and that the same be quashed for protecting the right and interest of the present petitioner and for the ends of justice was incorrect and hence, denied. It has further been stated that they had kept and would continue keeping two 7 MT TTs and one 12 MT TT unfilled in compliance with the order dated 24-08-2018 passed in MC (WP(C)) No.228 of 2018 till the disposal of WP(C) No.745 of 2018 and as such, no infraction of the said order was committed by them.
[10.2] It has been admitted by the respondent No.22 in her affidavit that the respondent, IOC Limited issued the work order dated 08-01 2021 allotting three 7 MTs to her. But it has been denied by her that the said work order dated 08-01-2021 was issued to her against the interim order passed by this Court. The allotment of three 7 MTs was not covered by the interim order because these three 7 MTs were newly inducted trucks. During the pendency of the writ petition being WP(C) No.745 of 2018, the respondent, IOC Limited sent a letter of intent dated 22-12-2020 requiring her to keep three tank trucks, having 7 MT capacity, ready namely, (i) MN04P0418; (ii) MN04P0420 and (iii) MN04P0421 for utilization by the IOC Limited after physical verification at their bottling plants within 30 days therefrom. It was responded and complied with by her within mandatory requirement and started the work with immediate effect after the provisional work order dated 08.01.2021 for Additional TT(s) being issued subject to the conditions mentioned therein. But in its rejoinder, it has been stated by the petitioner that while allotting the additional 58 TTs, the IOC Limited, respondent failed to notify about it to all concerned which was against the established principle of law.
[11] The subject matter in issue relates to the question as to whether, having regard to the fact that the petitioner's bid was declared to be L3, the rejection of its bid by the respondent, IOC Limited during evaluation on the ground that the petitioner failed to quote rates in respect of all items, was legally valid or not ?
[12.1] It has been submitted by Shri H.S Paonam, Senior Advocate appearing for the petitioner that in view of Clause 2 & 3 of the Price Schedule, a bidder can quote in only one category and also in only one sector in a particular category and therefore, the petitioner had quoted only for the loading sources outside the State items/ sector in respect of the four categories. The stand of the IOC Limited that quoting of all items of the two categories is mandatory in view of the terms and condition as laid down therein, was not correct. It has further been submitted that since the petitioner was technically qualified and financially accepted and it being declared as L3, the requirement of their further evaluation seemed to be quite against the established norms. The question of re-evaluation of the already finalized tender was for bringing contradiction to their own decision which is impermissible in the eyes of law. The petitioner was entitled to be considered for award of contract, when the IOC Limited had chosen the contractor who was declared to be L16 for the award of the contract for bulk transportation of LPG. In support of his contention, he has relied upon the decisions endered by the Hon'ble Supreme Court in Vidarbha Irrgation Development Corporatio Ltd Vs.Anoj Kumar Garwala, 2019 SCC Online 89; Chief Information Commissioner Vs. The State of Manipur, (2011) 15 SCC 1; Naseem Bano (Smt) Vs. the State of UP, 1993 Supp(4) SCC 46 and Suzuki Parasrampuria Suitings Private Ltd, (2018) 10 SCC 707.
[12.2] Combating the above submissions, it has been submitted by Shri L. Shashibhusan, learned Advocate that the language of the clauses in the price bid format being clear and unambiguous, a bidder has to quote rates for each of the items/ sector for the category for which he/she has applied for and that non-filing/ quoting of the rate or rates for the items/ sector for the particular category or categories will entail the rejection of the tender. The documents filed by the petitioners as annexure-A/5 and 6 are auto generated report from the system prior to evaluation in terms of Clause 5 of the NIT. The acceptance of a bidder price does not mean that his price has been found qualified in as much as scrutiny and evaluation has to be based on the parameters given in Clause 5 of the NIT and the actual ranking of the bidders is done only after manual evaluation of the bids in terms thereof. The petitioner did not quote rates for four items/ sectors out of eight items/ sectors which it was obliged to quote/fill up and therefore, its bid was rejected for which the petitioner was informed vide letter dated 19-11-2018. Reliance has been placed on the decisions rendered in (2016) 15 SCC 272; (2017) 4 SCC 170; (2020) 16 SCC 489 and (2007) 14 SCC 517.
[12.3] The submissions of Shri Th. Ibohal Singh and Shri N. Ibotombi, learned Senior Advocates appearing for the respondent No.22 and 23 respectively are similar to that of Shri L. Shashibhushan and therefore, the same are not repeated here for the sake of brevity.
[13.1] Admittedly, the NIT was issued by the IOC Limited inviting bids from bonafide bidders under two-bid system for bulk LPG Transportation contract by the road for the State of Manipur. The bids were to be submitted by 12-03-2018, while the technical bids of which were to be opened on 14-03-2018. The date of opening of price-bid was to be intimated to the qualified bidders in technical bid. The expected date of contract was 01-09-2018. Clause-1.VI provides for rates to be quoted which reads as under:
"Bidders will have to quote their rates in the price bid, only within the rate band mentioned. Any bidders quoting rates outside the band, their bids will be summarily rejected. Bidders found not quoting in any of the item for a particular category of tank truck in the BOQ will be rejected.
e.g. Bidders need to quote for all the items for a 7 MT TT or 12 MT TT etc.
Floor Price: Lowest rate of the price band.
Ceiling Price: Highest rate of price band."
[13.2] Clause 5 of the bidding documents provides for the criteria of tender evaluation. Sub-clause 1 to 5 read a under:
" 5- TENDER EVALUATION CRITERIA:
This e-Tender is floated in two-bid system i.e. technical bid & price bid. Technical bid will be first opened on scheduled date and will be evaluated as per the terms and conditions of the Tender. Price bids of the bidders, who have qualified in technical bid based on above evaluation by the Corporation, will be opened on a notified date.
Separate ranking, evaluation and induction will be maintained for 7MT & 12MT for North Eastern States for IOC and for 12 MT/ 15 MT TTS for HPC/BPC for Jammu & Kashmir. For other States including North-Eastern States of IOC, separate evaluation will be made for TTS having capacity 18 MT or less and TTS having 21 MT capacity or more.
For each bidder, if ratio of quoted attached to owned trucks exceeds 1:1, then the highest model attached trucks will only be considered and balance old attached trucks will be rejected to bring the ratio down to 1:1.
State Registered TTS would be given preference over other State registered TTS subject to their quoting bids at floor rates. This preferential induction of State registered TTS would, however, be limited to the requirement of particular State for only those transporters whose bids are received at floor rates.
Ranking Procedure: L1, L2, L3 etc. shall be decided on Net landed cost to IOC/BPC/HPC quoted in the Price Bid and shall be tabulated in ascending order to determine ranking of each bidder.
a. In case, same rates are quoted by more than one bidder, then for each rate, such bidders shall be considered for further ranking (L1/A, L1/B, L1/C etc.) on the basis of ascending order of average age of the qualified owned trucks quoted by them in terms of number of days. For this purpose, the data given by the bidder in the excel file shall be verified against the documents uploaded by the bidder to establish the manufacturing date of each truck. This verified data shall form the basis for establishing the age of each truck and will be e used for further ranking. Para 2 under Pre-Qualification Criteria to be read to arrive at the age of the qualified truck.
b. In case average age of the qualified owned trucks is same for multiple bidders, then further ranking in ascending order will be based on the average age of number of qualified total trucks, i.e. owned and attached trucks considered together by each such bidders.
c. In case average age of the qualified total trucks is same then further ranking in ascending order will be based on total number of trucks quoted by the bidders followed by total number of own trucks in that order, in case to break the tie and arrive at ranking of bidders. Such further ranking based on total number of trucks will be done in descending order, i.e. the party having more number of total trucks will rank higher.
d. In case of NIL response/ offers for Proposed trucks only are received tender then lowest of the price band shall be offered to the bidders of Proposed trucks followed by bidders from the cluster of states.
The above ranking of bidders will be utilized for further Tender evaluation."
[13.3] From the perusal of the above clauses, it is evident that the e-NIT is floated in two-bid system ie., technical bid & price bid. The technical will be first opened on scheduled date and will be evaluated as per the terms and conditions of the tender. Price bids of the bidders, who have qualified in technical bid based on above evaluation by the Corporation, will be opened on a notified date. Separate ranking, evaluation and induction will be maintained for 7MT & 12MT. Ranking namely L1, L2, L3 etc. shall be decided on Net landed cost to IOC/ BPC/ HPC quoted in the Price Bid and shall be tabulated in ascending order to determine ranking of each bidder. The ranking of bidders will be utilised for further tender evaluation.
[14] In the instant writ petition, the case of the petitioner is that its bid was technically qualified and was declared as financially accepted with the result that the petitioner was declared to be L3. But when the bidder who is ranked L16, was offered by the IOC Limited for acceptance of his bid at the L1 rate for 7MT and 12MT, the petitioner being L3, was not given any such an offer. Such an act of the IOC Limited had infringed the petitioner's fundamental right of freedom of trade and commerce and in other words, the non-issuance of such an offer letter in favour of the petitioner was violative of the right to equality. The contention of the petitioner that it was technically qualified; its price bid was accepted and was declared as L3, was not denied by the IOC Limited, the respondent Nos.1 to 4 but its stand was that when the evaluation was done, the petitioner was found to have not quoted rates for both 12 MT and 7 MT category of bulk TTs, in the sense that it did not quote rate against four items/ sectors out of the total eight items/ sectors and therefore, its bid was rejected being violative of Clause-1.VI of the bidding documents. The document relied upon by the petitioner, annexed as Annexure-A/5 to the petition, was an auto-generated report from the system which indicates disqualification of only technically disqualified bidders and whose price bid was not considered for evaluation. As the petitioner was qualified in the technical bid, its price bid was opened and accepted for further evaluation. This did not qualify the petitioner for award of contract as the same was to be done only after the total evaluation of the tender. However, it has been stated by the petitioner in its rejoinder that the stand of the IOC Limited that the bid of the petitioner was liable to be rejected during evaluation after the tender process being finalized, was impermissible in the eyes of law and such a stand being conflicting and contrary, might not be encouraged in terms of the law laid down by the Apex Court in a catena of decisions. It has further been reiterated by the petitioner that since the transporters who are ranked below the petitioner, were offered for accepting L1 rates for executing the transportation work, the petitioner was also entitled to for such offer as the IOC Limited is a public Corporation being bound by the principle of right to equality. Further, the contention of the IOC Limited that the petitioner had quoted against four items/ sectors out of the eight items/ sector, was false as the computer system had not rejected the submission of bid as defective and it was notified to have completed the submission, otherwise the incomplete filling up of the fills are always notified with such prompt notification such as "Please Enter the Basic for at least one item in the Sheet BOQ1.
[15] But the allegation of the respondents that the petitioner did not quote rate in respect of all eight items/ sectors of 7MT and 12MT, was not denied by the petitioner and all that the petitioner had submitted, was that the computer system did not reject the submission of bids by the petitioner. The fact that the petitioner did not quote rate for all items, would amount to violation of the provisions as contained in Clause-1.VI of the bidding documents which specifically provides that all bidders need to quote for all the items for a 7 MT TT or 12 MT TT. If that be the case, there was nothing wrong on the part of the respondents, when they rejected the bid of the petitioner. Another point which the petitioner had emphasised, was that since the petitioner was declared to be L3, it ought to have been offered L1 rate for acceptance of its bid because a bidder declared to be L16 was given the offer of acceptance at L1 rate. In this regard, it may be noted that Clause 5(5) specifically provides that the ranking of bidders will be utilized for further Tender evaluation. In other words, the ranking of bidders is not the only basis on which the contract is to be awarded to a bidder. The award of contract depends upon the outcome of further evaluation. Therefore, even though the petitioner was found to be L3, there was no guarantee that the petitioner should be awarded the contract without evaluation. In this regard, it may further be noted that in a tender, the bid submitted by a bidder, is nothing but an offer which may or may not be accepted by the authority depending upon the terms and conditions as contained in the bidding documents. The only safeguard available with the bidder is that the authority being an institution, ought to act fairly and reasonably. The petitioner's bid was rejected during evaluation, as it did not fulfill the terms and condition mentioned in the NIT as shown hereinabove. Since the petitioner's bid having been found unqualified and rejected during evaluation, there is no point of considering WP(C) No.114 of 2021 on merit and moreover, the stand of the IOC Limited was that the private respondents were awarded contract against the additional TTs and that TTs were still being kept reserved in terms of the interim order passed by this Court. In other words, the interim order of this Court was not violated at all while awarding contracts to the private respondents.
[16] In view of the above and for the reasons stated hereinabove, the instant writ petitions are devoid of any merit and are accordingly dismissed with no order as to costs.