State of West Bengal and Ors. vs P.N. Talukdar and Ors. and Abdul Kadar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 13 August, 1964

Coram: A.K. Sarkar, K.N. Wanchoo, S.M. Sikri

State Of West Bengal And Ors. And... vs P.N. Talukdar And Ors. And Abdul Kadar... on 13 August, 1964 is the citation of the case that was heard by the Supreme Court of India. The judgment was authored by Justice K.N. Wanchoo and the bench was composed of Justices A.K. Sarkar, K.N. Wanchoo and S.M. Sikri. Justice K.N. Wanchoo recorded that there were four separate appeals which had each been granted a certificate of appeal by the High Court of Calcutta. All four appeals arose from the same land acquisition proceedings and each raised identical questions of law. Consequently the Court decided that it would consider the four appeals together. The record showed that two petitions had originally been filed in the High Court under Article 226 of the Constitution, each seeking to challenge the same acquisition proceedings. The learned Single Judge who first heard the petitions dismissed them. Both aggrieved parties then filed appeals to the Division Bench of the High Court, and the Division Bench allowed the appeals. After the Division Bench’s order, four applications for certificates of appeal to this Court were filed: two applications were made by the State of West Bengal and the remaining two were filed by the Ramakrishna Mission, hereinafter referred to as the Mission, which was the party in whose favour the acquisition proceedings had been initiated. Because the four appeals comprised two from the State and two from the Mission, the Court observed that they would be dealt with together in a single judgment.

The Mission is a society that was registered under the Societies Registration Act of 1860. Its objects, inter alia, include the imparting and promotion of the study of Vedanta as taught by Sri Ramakrishna, the development of comparative theology in its broadest sense, and the propagation of religious, social and educational teachings for the benefit of the public. To achieve these objectives, the Mission had, by private purchase or by acquisition under the Land Acquisition Act No. 1 of 1894 (referred to in the judgment as the Act), obtained a large tract of land at a place known as Narendrapur. The Society uses this land to establish, maintain and operate a wide range of institutions, including schools, colleges, orphanages, workshops, laboratories, hospitals, dispensaries, and residential facilities for the infirm, the invalid and the afflicted, as well as famine‑relief works and other charitable enterprises of a similar character. For these purposes the Mission is authorized to construct, maintain or modify any buildings or works that are necessary or convenient. In recent years the Mission inaugurated several public projects in Narendrapur. These projects comprise a residential degree college together with hostel accommodation and staff quarters; a residential multi‑purpose school; a residential senior basic school and a separate institution for the blind, each provided with comparable amenities; a students’ home that furnishes residence for university or college scholars and an institution that promotes adult and social education together with hostels; a school of shorthand and type‑writing; a dairy farm; a poultry farm and a fishery intended for training purposes; a centre that provides training in carpentry and book‑binding; and a fully equipped hospital. Each of these establishments serves the Mission’s broader educational, charitable and social welfare goals.

The Mission’s development plan also included a library, a gymnasium, workshops for male students of schools and colleges, and agricultural farms intended for use by the multi‑purpose schools. In October 1960 the Mission submitted an application to the Land Acquisition Collector at Alipore, seeking the acquisition of additional land because the parcel then available at Narendrapur was insufficient for its intended projects. The application asked the Collector to commence proceedings under Section 4 read with Section 38 of the Land Acquisition Act for the acquisition of approximately fourteen‑point‑eleven acres. The acreage identified consisted largely of small pockets of land either within the Mission’s existing holdings or immediately adjacent to them. The Mission communicated to the Collector that it was prepared to enter into any agreement required by the Act for the acquisition and that it would bear all reasonable costs associated with the process.

Subsequently, on 24 July 1961, a notification was issued under Section 4 of the Act stating that the land was likely required for a public purpose, specifically for the construction of staff quarters, a hostel building and a playground for the Mission, and that the total area required was about fourteen‑point‑eleven acres. The notification invited any person with an interest in the land to file objections within thirty days. Following this, proceedings were initiated under Section 5‑A of the Act, and a report was prepared for the Government. Because the land was needed for the Mission, which would bear the full expense, and because the Mission qualified as a “company” under Section 3(e) of the Act by being a society registered under the Societies Registration Act of 1860, the acquisition proceedings were conducted under Part VII of the Act.

Sections 39 and 40 of the Act provide that acquisition proceedings under Part VII may proceed only after the appropriate government gives prior consent. Such consent may be granted only if the government is satisfied, either on the basis of the Collector’s report under Section 5‑A or after an inquiry conducted pursuant to Section 40, that the acquisition is intended to obtain land for the erection of dwelling houses for workmen employed by the company or for related amenities, or that the acquisition is required for the construction of a work that is likely to be useful to the public. Section 41 stipulates that an agreement must be executed in favour of the State Government by the company, and that only after this agreement is executed and prior consent is obtained may a notification under Section 6 be issued, as provided by Section 39. The Court noted that an inquiry was held under Section 5‑A, a further inquiry was conducted under Section 40 at a later stage, and thereafter a notification under Section 6 was issued on 4 October.

In 1962 the Legislature enacted the Land Acquisition (Amendment) Act (No. XXXI of 1962). That amendment inserted a new clause labeled (aa) into Section 40 and added a new clause designated (4‑A) to Section 41. Because the notification issued under Section 6 was made after these amendments became effective, the Court observed that the altered provisions of Sections 40 and 41 must be taken into account when assessing the legality of the acquisition process. An issue was raised concerning the validity of the Section 6 notification, and the Court therefore reproduced the entire declaration for the record. The declaration read: “Whereas the Governor is satisfied that land is needed for a public purpose not being a purpose of the Union, namely for the construction of staff‑quarters, hostel building and playground of Ramakrishna Mission at Narendrapur in the village of Ukhila Paikpara, jurisdiction list No. 56, P.S. Sonarpur, parganas Maidanmal, Zilla 24 Parganas, it is hereby declared that a piece of land comprising portion of cadastral plot No. … and measuring more or less 14.05 acres, is needed for the aforesaid public purpose at the public expenses of the Ramakrishna Mission within the aforesaid village of Ukhila Paikpara. This declaration is made under the provisions of Section 6 of Act I of 1894, to all whom it may concern. A plan of the land may be inspected in the office of the Special Land Acquisition Officer, Alipore, 24 Parganas.”

Following the issuance of this notification, the Ramakrishna Mission took possession of most of the identified land in November 1962. Subsequently, two petitions were filed under Article 226 of the Constitution, one on 16 November and the other on 17 November 1962, challenging the validity of the acquisition. The petitions raised numerous points, but the Court noted that it was unnecessary to discuss each point in detail, especially those that had already been decided against the respondents. The principal contention before the learned Single Judge was that the acquisition was invalid because the agreement between the State and the Mission did not satisfy the conditions prescribed in Section 41; specifically, the agreement failed to set out the terms under which the public could use the structures to be erected on the acquired land, which, in the petitioners’ view, precluded the issuance of a notification under Section 39. The Single Judge held that the notification was permissible under Clause (b) of Section 40(1). Regarding the public‑use provision in the agreement, the Judge felt bound by a prior Division Bench decision of the same court, which had held that a similar provision fell within the fifth term of Section 41. Consequently, the Single Judge dismissed the petitions. The respondents then appealed to the Division Bench, raising again the argument that the agreement was defective for not complying with the requirements of Section 41.

The appeal court was confronted with the contention that the land acquisition process was defective because the agreement executed between the State and the Mission was invalid. The petitioners argued that the agreement failed to specify the terms under which the public could use the work to be erected on the acquired land, and that Clause 8 of the agreement did not satisfy the fifth term prescribed in Section 41 of the Act. In addition, the petitioners maintained that the State’s consent under Section 40(1) could be granted on any single one of the three grounds enumerated therein, and that the State was not authorized to give consent based on a combination of the grounds listed in Clauses (a), (aa) and (b) of that provision. Several other points were raised before the appeal bench, but those points were dismissed; the Court indicated that it would refer to those rejected arguments at appropriate stages while addressing matters raised before the present Court.

The division bench comprised two learned judges who each delivered separate opinions, yet both judges ultimately allowed the appeals. Justice Bose, sitting as Chief Justice, observed that while the construction of playgrounds and hostels could arguably be covered by Clause (b) of Section 40(1), the erection of staff quarters could not fall within that same clause. He rejected the submission that acquisition could not be effected for a combined purpose comprising Clauses (a), (aa) or (b). Nevertheless, he found no evidence that the State Government had considered Clauses (a) or (aa) when it gave its consent. Consequently, he concluded that the State’s consent was based solely on Clause (b) of Section 40(1). Because staff quarters were not encompassed by that clause and the acquisition notice did not distinguish which portion of the land was intended for staff quarters versus hostels and playgrounds, the entire acquisition was held to be invalid. Regarding compliance with the fifth term of Section 41, the Chief Justice relied on a view he had expressed in an earlier case and determined that the term had been satisfied, and thus he allowed the appeal. Justice Mitter, the other judge of the bench, also held that the State’s consent was limited to Clause (b) of Section 40(1). He further found that the fifth term of Section 41 had not been complied with, rendering the acquisition unlawful on that ground. He additionally observed that the notification under Section 6 described the acquisition as being for a public purpose, yet the entire compensation was to be paid by the Mission with no contribution from the State, making the notification defective. Sharing the Chief Justice’s conclusion, Justice Mitter also allowed the appeals. The present matter arose from four separate appeals concerning certificates issued by the High Court.

The Court noted that the law governing land acquisition, whether the acquisition is undertaken for a public purpose or for a company, has become firmly established by the decisions of this Court in Babu Barkya Thakur v. State of Bombay, Jhandu Lal v. State of Punjab, R.L. Arora v. State of U.P., and Smt. Somawanti v. State of Punjab. The Court indicated that the substance of those decisions can be summarised from the judgment in Arora’s case, particularly regarding the meaning of a notification under Section 6 of the Act. In that decision it was explained that a notification may either state that the acquisition is for a public purpose or that it is for a company. The proviso to Section 6(1) provides that when the acquisition is for a public purpose, the compensation must be paid wholly or partly from public revenues or from a fund that is controlled or managed by a local authority. Conversely, when the acquisition is for a company, the compensation is to be paid entirely by the company. The Court further clarified that although this distinction exists, it does not create a strict dichotomy. It is not necessary that every acquisition primarily intended for a company must be preceded by proceedings under Part VII nor that compensation must always be paid solely by the company. A third category of cases may arise where the acquisition is principally for a company but at the same time serves a public purpose, allowing the whole or part of the compensation to be drawn from public revenues or a locally controlled fund. In such situations, even though the acquisition appears mainly for a company, it falls within the portion of Section 6 that permits acquisition for a public purpose whenever the compensation is to be paid from public sources.

The first issue before the Court was to determine whether the acquisition in the present matter was for a public purpose, which would require that the whole or part of the compensation be sourced from public revenues or a local authority fund, or whether it was for a company, which would obligate the company to pay the entire compensation. Counsel for the respondents argued that a reading of the Section 6 notification issued in this case indicated that the acquisition was described as being for a public purpose rather than for a company. Consequently, they contended that for the notification to be valid, at least a portion of the compensation must have been payable from public revenues or a locally managed fund. The respondents maintained that the facts of the case clearly showed that the compensation was intended to be paid entirely by the Mission, implying that the notification, by stating a public purpose, should be held invalid.

The respondents argued that because the entire compensation was to be paid by the Ramakrishna Mission, the declaration that the acquisition was for a public purpose must be held invalid. They relied upon the Supreme Court decision in Shyam Behari v. State of Madhya Pradesh, Civil Appeal No. 177 of 1963 decided on 3 February 1964. That decision had quoted the legal principles set out in the R. L. Arora case, (1962) Supplement 2 S.C.R. 149, and then proceeded to interpret the specific notification that was challenged in the Shyam Behari matter. The Court noted that the reasoning in Shyam Behari was not applicable to the present case, where a fresh interpretation of the present notification was required. The current notification stated that the land was required for a public purpose, namely the construction of staff quarters, hostel buildings and a playground for the Ramakrishna Mission at Narendrapur. Although the opening words described the purpose as “public,” the notification also identified the precise objects for which the land was needed, and those objects were to be provided by the Mission, which was characterized in the judgment as a company. Consequently, the notification implicitly indicated that the land was required for a company, even though the words “public purpose” were used.

The Court observed that the notification further declared that the land was needed “for the aforesaid public purpose at the public expense of the Ramakrishna Mission.” This phrasing was described as curious because if the Mission were to pay the compensation, the expense could not be “public,” and the expression “public expenses of the Ramakrishna Mission” appeared contradictory. The reasonable construction, therefore, was that the acquisition would be at the expense of the Mission. This view was supported by the agreement executed under Section 41, which preceded the notification and, in accordance with Section 39, must have preceded it. Clause (1) of that agreement expressly provided that “all and every compensation in respect of the said land shall be paid by the Mission.” The Court acknowledged that the Section 6 notification was drafted in a clumsy manner and criticised the poor drafting, noting that the notification formed the basis of all subsequent proceedings. Nevertheless, on a fair and reasonable reading of the notification, the Court concluded that there was no doubt that the land was required for a company—the Mission—and that the acquisition was to be made at the Mission’s expense. Accordingly, the respondents’ contention that the notification was defective because it spoke of a public purpose without providing for compensation from public revenues or a fund managed by a local authority could not be sustained.

The Court observed that the Mission had put forward a contrary argument, claiming that no proceedings under Part VII of the Act were required because the notification under Section 6 was for a public purpose, as it stated, and not for a company. The Mission further asserted that, in this particular case, compensation—either wholly or partly—was to be paid out of public revenues. The Court noted that this contention had not been raised on behalf of the State of West Bengal; the State did not argue that any portion of the compensation was payable from public funds. The Mission’s counsel, however, relied on the presumption contained in Section 6(3) of the Act, which provides that a declaration is conclusive evidence that the land is needed for a public purpose or for a company, as the case may be. On that basis, the Mission argued that the notification itself proved that the land was required for a public purpose, because the opening part of the notification said so. The Court held, nevertheless, that this presumption did not prevent it from examining whether the notification was made in violation of the proviso to Section 6(1), which stipulates that such a notification cannot be issued unless part or the whole of the compensation comes from public revenues or from a fund managed or controlled by a local authority. The Court pointed to the wording of the notification, which expressly indicated that compensation was to be paid by the Mission and not from public revenues, a point already mentioned while considering the respondents’ claim that the notice was not for a company. Moreover, the Court emphasized the agreement that immediately preceded the notification, which likewise showed that the entire compensation amount was to be borne by the Mission. No evidence was presented to demonstrate that any part of the compensation would be drawn from public revenues, contrary to the Mission’s counsel’s claim. The Court further remarked that, had such evidence existed, the State’s counsel would have promptly endorsed the validity of the notification and the subsequent proceedings, relying on the decision in Jhandu Lal’s case. Consequently, the Court concluded that the poorly drafted notification was, in reality, a notice for acquiring land for a company, with the compensation to be wholly funded by that company. Accordingly, compliance with Part VII of the Act was necessary, and the Mission’s argument that such proceedings were unnecessary and therefore redundant was rejected.

The Court observed that the contention that proceedings under Part VII of the Act were unnecessary and that the actions taken under that Part were wholly redundant could not be accepted. The next issue that required examination was whether the acquisition of the land was lawful and whether the statutory requirements set out in Sections 40 and 41 of the Act had been satisfied. Section 40 permitted consent to be given for any one of three distinct purposes. The first purpose, identified as clause (a), allowed acquisition when the land was needed to erect dwelling houses for work‑men employed by a company or to provide amenities that were directly connected with such housing. The second purpose, labelled clause (aa), authorised acquisition when it was required for the construction of a building or other work for a company that was already engaged in, or was taking steps to engage in, an industry or activity that served a public purpose. The third purpose, expressed as clause (b), permitted acquisition when the land was necessary for the construction of any work that was likely to be useful to the public. The appellate court had held that, in the present matter, the State Government had considered only clause (b) when it granted its consent and had not given due thought to clauses (a) and (aa). Nevertheless, the appellate court rejected the argument that a consent could not be based on more than one of the three clauses. Generally, the Court noted, a competent government would not explicitly state which particular clause it was relying upon; instead, the determination of whether consent was given under one clause, more than one clause, or all three had to be inferred from the language of the agreement and the notification issued under Section 6. The Court affirmed that it was within the power of the appropriate government to grant consent after being satisfied with any single clause or with several clauses taken together. In the case before it, the State Government had placed reliance on all three clauses, especially on clauses (aa) and (b), to demonstrate that its consent was informed by the full spectrum of the purposes enumerated in Section 40(1). The Court stressed that identifying the specific clause or clauses that formed the basis of the Government’s consent was crucial because that identification dictated the structure of the agreement required under Section 41. If consent was anchored in clause (a), the resulting agreement needed to specify the time frame, the conditions, and the manner in which the dwelling houses or associated amenities would be erected or provided. If consent rested on clause (aa), the agreement was required to set out the period, the conditions, and the process for constructing or executing the designated building or work. Finally, where consent was based on clause (b), the agreement had to delineate the time limit, the conditions, and the manner in which the public‑use work would be carried out. The Court therefore concluded that a careful examination of the agreement and the notification was essential to ascertain under which clause or clauses the consent had been granted.

The Court observed that an agreement prepared under Section 41 must contain terms describing the nature of the work to be undertaken, the manner in which the work will be maintained, and the conditions under which the public may be entitled to use the work. Consequently, the Court noted that the specific terms to be incorporated in such an agreement will necessarily vary depending on the particular clause of Section 40(1) on which the State’s consent was based. For this reason, the Court emphasized that it was required to examine the agreement carefully in order to determine which clause of Section 40(1) had been relied upon for the consent. The Court further stated that, according to the view expressed by the appellate court, the consent had been granted solely under Clause (b) of Section 40(1). The notification issued under Section 6 specified three purposes for which the land was to be acquired: (i) construction of staff‑quarters, (ii) construction of hostel buildings, and (iii) construction of a playground. The appellate court, particularly its Chief Justice, held that the construction of hostel buildings and the playground fell within Clause (b) of Section 40(1), whereas the construction of staff‑quarters did not. The Court agreed with that assessment. It explained that hostel buildings and the playground are clearly intended for the students of the institution, and the students as a collective constitute a section of the public; therefore these facilities are directly useful to that section of the public and may, in certain situations, also be used by other members of the public such as parents or guardians. In contrast, staff‑quarters are designed to accommodate individual members of the staff. The Court rejected the proposition that an individual staff member could be treated as a section of the public, contending that doing so would distort the concept of what may be useful to a section of the public. The Court stressed that a “section of the public” must refer to more than a single person, and that something useful only to an individual cannot be said to be useful to a section of the public. Accordingly, the Court concurred with the High Court that the construction of staff‑quarters cannot be placed within the scope of Clause (b) of Section 40(1).

The Court then turned to the remaining issue of whether the construction of staff‑quarters might be covered by either Clause (a) or Clause (aa) of Section 40(1). Counsel argued that Clause (aa) was applicable because it permits acquisition for the construction of a building or work for a company that is either already engaged in, or is taking steps to engage in, any industry or work that serves a public purpose. It was contended that the Mission in question is a company and that staff‑quarters are undeniably buildings. The critical question, however, was whether the Mission was engaged in, or was taking steps to engage in, a work that qualifies as being for a public purpose. In support of this line of argument, it was submitted that the term “work” in Clause (aa) has a broader meaning than the term “industry” appearing in the same provision, and that if the Mission were involved in any such work of public purpose, the acquisition of land for staff‑quarters would fall within Clause (aa). The Court noted that the Mission had not provided any foundation for this argument in its reply, and therefore, without a clear explanation of the public‑purpose work contemplated, the question could not be resolved at this stage.

In analyzing the scope of Clause (aa) of Section 40(1), the Court observed that the term “work” appearing in that clause is considerably broader than the term “industry” that also occurs in the same provision. The Court noted that it was not necessary, for the purposes of the present adjudication, to determine whether the word “work” in the phrase “industry or work” must be confined to a particular type of productive activity that results in the manufacture of goods useful to the public. For the sake of argument the Court assumed that “work” carries a wider meaning than “industry”. Nevertheless, the Court pointed out that the Mission, which was relying on Clause (aa) to justify the acquisition of land for staff‑quarters, had not advanced any substantive foundation for that argument in its reply to the proceedings. The Court explained that, if the case were to be covered by Clause (aa) and if “work” indeed possessed this broader sense, the onus was on the Mission to specify precisely what work, within that expanded meaning, was being undertaken that required the construction of staff‑quarters. Such an explanation was essential so that the Court could assess whether the alleged work fell within the category of “any industry or work which is for a public purpose”. The Court further remarked that it had no knowledge of the particular work for which the staff‑quarters were required, and consequently could not accept the Mission’s contention that the acquisition fell within Clause (aa). The Court observed that the application filed on 5 October 1960 merely asserted that the Mission was in urgent need of land for constructing staff‑quarters, without describing the specific work that necessitated such construction. Likewise, the agreement related to the acquisition did not reveal that this aspect had been considered by the Government. In the absence of any material showing that the land was needed for the erection of buildings by a company engaged in any industry or work for a public purpose, the Court was not prepared to hold that Clause (aa) applied.

The Court then referred to its earlier decision in R. L. Arora v. State of Uttar Pradesh, W.P. No. 137 of 1962, dated 14 February 1964, wherein it had held that it is insufficient merely to demonstrate that a company is engaged in a work or industry for a public purpose; it is also necessary to show that the particular building or work proposed to be constructed on the land to be acquired serves the same public purpose. The Court emphasized that such a determination is impossible unless the specific work for which the land is required is known. The Court reiterated that the Mission was engaged in a multitude of activities, but it remained unclear which of those activities justified the need for staff‑quarters. Consequently, the Court concluded that, given the lack of a clear statement of the particular work involved, it could not accept the argument that the acquisition was justified under Clause (aa).

The Court observed that the preamble to the agreement explicitly stated that the land was required for the stated purpose of constructing staff‑quarters, hostel buildings and a playground, and that that work was likely to be useful to the public. This language, the Court held, demonstrated that the Government was acting under Clause (b) of Section 40(1) and not under Clause (aa), because if the latter had been considered the preamble would have contained wording appropriate to Clause (aa) as well as to Clause (b). The petitioners then argued that the matter fell within Clause (a) of Section 40(1) since that clause authorises the erection of dwelling houses for workmen employed by the company. They contended that the staff‑quarters were intended for employees of the Mission and therefore fell within the generic phrase “workmen employed by the company.” The Court noted that it could be conceded that the construction of staff‑quarters by the Mission might be included within Clause (a). However, the High Court had found no evidence that the State Government had taken this aspect into account when granting consent.

The Court further explained that it is not common for a government authority, when giving consent, to specify which particular clause of Section 40(1) it is relying upon. Consequently, the relevant clause must be inferred from the agreement itself and from the notification issued under Section 6 that followed the agreement. Upon examining the agreement that preceded the notification, the Court found that it specifically mentioned hostel buildings, a playground and staff‑quarters for the Ramakrishna Mission. Since the construction of staff‑quarters could plausibly be covered by Clause (a), the Court could not conclude definitively that the Government had considered only Clause (b) and had ignored Clause (a) entirely.

Nevertheless, the Court agreed with the High Court’s view after analysing the preamble. The preamble grouped all three purposes together without distinguishing among them, suggesting that the State Government treated the construction of staff‑quarters as being on the same footing as the construction of hostel buildings and a playground. The preamble further indicated that the State Government, satisfied by an enquiry conducted under Section 40 of the Act, was of the opinion that the proposed acquisition was necessary for the purpose of constructing staff‑quarters, hostel buildings and a playground, and that the said work was likely to be useful to the public. The Court pointed out that the language used by the State Government in the preamble—particularly the reference to the work being “likely to be useful to the public”—mirrored the wording of Clause (b). Therefore, if the State Government had been considering Clause (a), the preamble would have reflected language appropriate to that clause as well.

In this case the Court observed that the preamble of the governing statute does not contain any expression that could be read as falling within the parameters of Clause (a). Accordingly, the Court accepted the view expressed by the learned Chief Justice that the State Government had not taken Clause (a) into account at all when it gave its consent. The Court further concurred with the learned Chief Justice’s conclusion that, because Clause (a) was omitted, and because the land required for the construction of staff‑quarters could not be brought within the scope of Clause (b), and because the exact magnitude of the land needed was not known, the entire notification issued by the State Government could not stand and therefore had to be struck down in its entirety. The Court emphasized that a partial validation of the notification was impossible since the deficiency struck at the very basis of the statutory power to acquire land. On the basis of this reasoning the Court held that the appeals filed by the petitioners could not succeed and consequently there was no necessity to consider the other two points that had been raised before the Court. Accordingly, the Court dismissed the appeals and ordered that the appellants pay the costs, specifying that a single set of hearing fees should be awarded to the opposite party.