Gujarat High Court
Hansadevi Ghanshyamsinh Jadeja vs State Of Gujarat on 27 November, 2003
Equivalent citations: 2004 A I H C 717, (2004) 1 GUJ LH 467
Author: K.A. Puj
Bench: K.A. Puj
JUDGMENT K.A. Puj, J.
1. This petition is filed under Article 226 of the Constitution of India praying for issuance of writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus, directing the respondents, more particularly, the respondent No.1 State of Gujarat and the Collector, Rajkot to implement the decision of the State Government contained in the order dtd. 13.07.1970 and in the order dtd. 15.09.2001 and to allot and physically hand over the possession of land bearing Survey Nos. 180, 69, 94, 96, 109 and 139 totally admeasuring about 51 acres situated at village Mota Mauva, Tal. & Dist. Rajkot. The petitioner has also prayed for issuance of an appropriate writ, direction or order, quashing and setting aside the decision of the State Government as taken by the then Chief Minister on 22.09.2001 or thereabout keeping in abeyance the order dtd. 15.09.2001 and quashing and setting aside the decision taken by the respondent No.4 i.e. the Minister of State for Revenue Department on or about 12.11.2001 which was taken on 13.12.2001.
2. Civil Application No. 1241/2003 was filed by Shri Mota Mauva Gram Panchayat through its Sarpanch seeking permission to be joined as respondent in S.C.A. No. 12432/2001.
3. Civil Application No. 4321/2002 was filed by Shri Samasta Saurashtra Leuva Patel Pragati Samaj through its Treasurer Shri Nagjibhai D. Khunt seeking permission to be joined as party - respondent in S.C.A. No. 12432/2001.
4. Civil Application No. 3068/2002 was filed by Shri Kapilbhai Tansukhlal Sameja seeking permissions to be joined as party - respondent in S.C.A. No. 12432/2001.
5. So far as the main petition i.e. S.C.A. No. 12432/2001 is concerned, the brief facts giving rise to the said petition are that the petitioner's late husband, namely, Ghanshyamsinhji Umedsinhji Jadeja was the erstwhile ruler of princely state of Khijadiya-Dhrol situated in Paddhari Tal. in Rajkot District in erstwhile region known as Saurashtra State. The said Shri Ghanshyamsinhji Umedsinhji Jadeja was the holder of approximately 2600 Acres of land which was his personal property. On formation of State of Saurashtra, the State of Saurashtra had effected and implemented the land Reforms under the Saurashtra Land Reforms Act, 1951 and 2600 Acres of land belonging to the said Shri Ghanshyamsinhji Umedsinhji Jadeja, husband of the petitioner herein, were acquired under the said Land Reforms Act. As per the provisions contained in the said Act, the said Shri Ghanshyamsinhji Umedsinhji Jadeja was entitled to be an allottee of Gharkhed land and hence, he had applied for grant of land as Gharkhed land under the provisions of the said Act. Pursuant to the said application moved by the said Shri Ghanshyamsinhji Umedsinhji Jadeja and his three brothers, the proceedings were initiated under the said Act.
6. By virtue of an order dtd. 30.03.1954, the Special Mamlatdar, Gharkhed, interalia had taken the view that the said Shri Ghanshyamsinhji and his three brothers were entitled to be granted totally 120 Acres of land and necessary certificate in this behalf was issued under Section 39 read with Section 2 of the said Act. Since the petitioner's husband and his three brothers were not satisfied with the said order, they preferred Revision application before the Saurashtra Revenue Tribunal and the said revision application was rejected by the Tribunal vide its order dtd. 11.12.1954. The petitioner's husband's brother, namely, Shri Pravinsinhji Umedsinhji Jadeja, being aggrieved and dissatisfied with the order of the Tribunal, made representation and applied to the Government of Gujarat for considering the case under Section 26 of the said Act. However, the said representation was also rejected by the Government of Gujarat. The matter was also taken up before this Court by way of an appeal and the said appeal was also dismissed by this Court.
7. The petitioner's late husband Shri Ghanshyamsinhji and his brother Pravinsinhji, had thereafter, made a representation on humanitarian ground to the Government of Gujarat, interalia, pointing out that 2600 Acres of land were lost and that the Government should consider grant of more land to them. On the basis of the said representation, the Deputy Secretary, Revenue Department, vide his communication dtd. 13.07.1970 informed the petitioner's late husband that the Government had considered the matter and had decided to allot 60 Acres of land to each of the four brothers totalling 240 Acres of Govt. wasteland as old tenure land in Kheda district or any other District either together or in parts. Based on this order, the Collector Ahmedabad on 13.07.1970 itself granted allotment of 36 Acres per each of four units totalling 144 Acres to the petitioner's late husband and his three brothers, out of land bearing Survey No. 355 of village Lavad, Tal. Dehgam, Dist. Ahmedabad. After having considered Collector's decision, the Government under its Yadi dtd.25.01.1978 approved the grant of land to the petitioner's late husband and his three brothers and on receipt of the said order dtd. 25.01.1978, the petitioner made a request to the Collector, Ahmedabad on 21.08.1978 stating that as the native place of the petitioner was Paddhari taluka, Dist. Rajkot and her husband had expired, the petitioner may be allotted land to Paddhari Taluka instead of at village Lavad in Ahmedabad District. One of the brothers of the petitioner's late husband, namely, Shri Ranjitsinhji also simultaneously approached the Govt. for allotment of land at village Paddhari in place of land at village Lavad and in response to the said representation, the Collector prepared a proposal of grant of land in Khijadiya for 51 Acres in case of the brother of the petitioner's late husband. Pursuant to the said proposal, the Government of Gujarat had amended its decision and decided to allot 51 Acres of land to the brother of the petitioner's late husband at village Khijadiya, Tal. Paddhari instead of land at village Lavad and accordingly, the land admeasuring 51 Acres out of Survey No. 286 at village Khijadiya, Tal. Paddhari was allotted in favour of the brother of the petitioner's late husband. However, despite the fact that the case of the present petitioner was very material, no decision was taken nor the land was allotted to the petitioner. In view of non-allotment of land to the petitioner, several representations were made by the petitioner to the State Government. It was also found that the land allotted at village Lavad was allotted to the person belonging to backward classes and that the Gram Panchayat has also passed Resolution opposing grant of land to the petitioner and hence, a request was made for allotment of land at village Kudasan, Tal. and Dist. Gandhinagar. The Collector, Gandhinagar vide his communication dtd. 30.04.1999 informed that the land was vested in the Gram Panchayat and was not the Govt. wasteland at village Kudasan. It was further communicated that there was opposition and panchayat was not willing to the allotment of land.
8. Since the land at village Kudasan was not available for allotment, the petitioner made another representation on 03.05.2000 pointing out that the land was available at Rajkot district and, therefore, request was made for allotment of land at village Mavdi, Tal. and Dist. Rajkot out of Govt. wasteland. The State Government vide its communication dtd. 30.06.2001 informed the petitioner that as the land of village Mavdi which was demanded to be allotted was situated within the Rajkot city limits, it was not possible to allot the said land and, therefore, the petitioner was called upon to select another land in Rajkot / Jamnagar or other districts of Saurashtra. The Revenue Department has also called for the detailed report from the Collector, Rajkot to find out the land which is away from city. A detailed report was submitted by the Collector, Rajkot to the Deputy Secretary, Revenue Department on 24.08.2001 pointing out that the land of Survey No.180 admeasuring about 24 Acres and 30 Gunthas as well as land situated at Survey Nos.69, 94, 96, 109 and 139 admeasuring about 26 Acres and 10 Gunthas were available for allotment. It was pointed out in the said report that there was demand of Patel Seva Samaj Trust for educational purposes which was earlier rejected. Other application was also rejected. Applications moved by Smt. Kiranben and Hemalben were pending. It was further pointed out that the land was in agricultural zone and it was outside Municipal Corporation area and within the area of Rajkot Urban Development Authority. It was submitted in the said report that according to the Govt. Resolution the decision for allotment to be taken only by the Govt. and hence, the order from the Govt. was sought for.
9. Based on the said report of the Collector, an order was passed on 15.09.2001 by Shri A.S. Gamit, Deputy Secretary, Revenue Department, Govt. of Gujarat in the name of the Governor of Gujarat and the said order was despatched by Regd. A.D. Post to the Collector, Rajkot. The land allotted to the petitioner is at village Mota Mauva. However, the said order was kept in abeyance at the instance of the then Chief Minister on 22.09.2001. The Chief Minister thereafter on 27.10.2001 took a decision, asking the revenue department to process file further in accordance with the existing policy. Thereafter, on 12.11.2001, the then Minister of State for Revenue took a decision that in view of the fact that earlier order dtd. 15.09.2001 allotting the land to the petitioner was kept in abeyance on 22.09.2001 and as the land which was ordered to be allotted at village Mota Mauva is within the area of Rajkot Urban Development Authority and as the petitioner was entitled to get land for agricultural purposes and as the land in question was having potential for non-agricultural purposes, it was not proper to grant the said land for agricultural purposes. The decision was therefore taken to cancel the earlier allotment and it was decided to inform the Collector to reject the proposal for grant of land at village Mota Mauva. The Chief Minister concurred with the decision of the Revenue Minister on 13.12.2001 and taken the decision on the file.
10. It is in the above background, the present petition is filed under Article 226 of the Constitution of India.
11. Mr. Harin P. Rawal, learned advocate appearing for the petitioner submitted that there is no power to review the decision taken by the Govt. in the name of the Governor of Gujarat since no such power of review is expressly conferred under the Provisions of the statute. In this connection, he has relied on the decision of this Court in the case of BHAGWANJI BAWANJI PATEL V/S. STATE OF GUJARAT AND ANOTHER, (12) G.L.R. 156 wherein it is held that "there is no provision in the Bombay Land Revenue Code whereby the State Government can review its own order already passed in exercise of its powers under Section 211 of the Code. It may, if permissible in law, have recourse to a remedy by filing a suit in a Civil Court. But it cannot review its own order." Mr. Rawal has further relied on the decision of this Court in the case of T.R. ASSOCIATES V/S. STATE OF GUJARAT AND OTHERS, 41(4) G.L.R. 2969 wherein, after referring to the decision of the Hon'ble Supreme Court in the case of PATEL NARSHI THAKERSHI V/S. PRADYUMANSINGHJI, A.I.R. 1970 S.C. 1273 laying down the proposition that "the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It was held that since there is no provision in the Bombay Land Revenue Code empowering the State Government to review its own order the impugned order which practically amounts to reviewing the earlier order of the Govt. dtd. 11.03.1991 is apparently illegal and without jurisdiction. It cannot be said that the revisional authority has done substantial justice by passing the impugned order." Mr. Rawal has also relied on the decision of the Hon'ble Supreme Court in the case of MAJOR CHANDRA BHAN SINGH V/S. LATAFAT ULLAH KHAN AND OTHERS, 1979(1) S.C.C. 321 wherein it is held that "it is well settled that review is a creature of statute and cannot be entertained in the absence of provisions thereof." Mr. Rawal has further relied on the decision of the Hon'ble Supreme Court in the case of DR. (SMT.) KUNTESH GUPTA V/S. MANAGEMENT OF HINDU KANYA MAHAVIDYALAYA, SITAPUR AND OTHERS, 1987(4) S.C.C. 525 wherein it is held that "a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction."
12. Mr. Rawal has further pointed out that the grounds on which the decision was reversed were that the land is within the Rajkot Urban Development Authority area, it is having N.A. potential and the petitioner was entitled to get the land for agricultural purpose only. All these grounds were present while taking decision to allot the land in question and yet the allotment order was passed on 15.09.2001. He has further submitted that while allotting the land under order dtd. 15.09.2001, the Revenue department has also taken into consideration para 20 of the Circular of the Govt. dtd. 28.03.1989 which empowers the Govt. to allot land for agricultural purpose, if such land is situated within the urban area. He has further submitted that the Revenue Minister has taken the decision for extraneous purpose and on irrelevant and extraneous ground, so as to deprive the petitioner widow lady of an original claim of land to be allotted according to the decision taken by the Govt. in the year 1970 which decision was not being implemented for one or another reason for about 31 years, causing irreparable loss and prejudice to the petitioner. He has further submitted that the petitioner is 76 years old lady and is denied her rightful claim without any rhyme or reason for extraneous considerations which are not germane to the exercise of powers.
13. Mr. Rawal has further submitted that the decision to concern the allotment is violative of principles of natural justice, in as much as, once an order dtd. 15.09.2001 was passed allotting land, vested right is created in favour of the petitioner which could not have been taken away without complying with principles of natural justice, even assuming without admitting that the Govt. has power of review. In this connection, he relies on the decision of this Court in the case of HASMUKHBHAI DHANJIBHAI ZAVERI V/S. R. PARTHASARTHY, 12 G.L.R. 128 wherein it is held that "the vice that attaches to an order passed in contravention of principles of natural justice cannot be cured ex post facto by affording to the person affected thereby an opportunity to represent his case after the order is passed. An order made in breach of principles of natural justice is void and an opportunity given to the affected person to represent his case after such an order is made cannot have the effect of resuscitating a still-born order. The fatal defect in the proceedings may be cured only if the authority passing the order, realising that it had acted hastily and arbitrarily, annuls its decision, proceeds to reconsider the whole matter afresh after affording to the person affected a reasonable opportunity to represent his case and arrives at a fresh decision. The Court has further held that the consideration whether miscarriage of justice has, in fact, resulted or not is wholly irrelevant in judging the validity of an order passed in violation of the rules of natural justice. The breach of natural justice is itself miscarriage of justice which entitles the applicants to succeed."
14. Mr. Rawal has lastly submitted that the facts and grounds stated in the affidavit-in-reply amounts to adding to the reasons contained on the file for taking the impugned decision with a view to justify the same such course is not permissible in law. For this purpose, he relies on the decision of the Hon'ble Supreme Court in the case of MOHINDER SINGH GILL AND ANOTHER V/S. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS, A.I.R. 1978 S.C. 851 wherein it is held that "when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out." On the basis of the aforesaid grounds and submissions, Mr. Rawal has strongly contended that the decision to cancel the allotment is absolutely unjust, illegal, bad in law and beyond the powers of the State Government. He has, therefore, prayed before this Court that the State Government be directed to implement the order dtd. 15.09.2001 forthwith.
15. Mr. K.B. Trivedi, learned Addi. Adv. General appearing for the respondent State while opposing the petition, has invited my attention to the relevant provisions contained in the Saurashtra Land Reforms Act, 1951. Section 2(12) of the Act defines 'economic holding' in relation to any region specified in column 1 of the First Schedule, means a holding of land of an area shown in the corresponding entry in column 2 thereof". Section 2(13) of the Act defines 'estate' which means all land of whatever description or an undivided share thereof held by a Girasdar and includes uncultivable waste, whether such land is used for the purposes of agriculture or not". Section 2(14) defines 'Gharkhed' which means any land reserved by, or allotted to a Girasdar before 20th May, 1950 for being cultivated personally, and in his personal cultivation. Section 19(1) states that any Girasdar at any time within four months from the date of the commencement of the Saurashtra Land Reforms (Second Amendment) Ordinance, 1952 apply to the Mamlatdar for the allotment to him of land for personal cultivation. Section 20(1) of the Act states that on receipt of an application under Section 19, the Mamlatdar shall issue notice to the tenant or tenants concerned and, after giving the parties an opportunity of being heard, shall make an inquiry in the prescribed manner. Sub-section 2 thereof states that after making such inquiry as may be deemed necessary, the Mamlatdar may, having due regard to the provisions of this Chapter, pass an order making an allotment to the Girasdar of such land as may be specified in the order. Section 21 of the Act states that subject to the provisions of this Chapter, a Girasdar of A class or B class shall be allotted land for personal cultivation to such an extent as, when added to the area of Gharkhed in his estate and of Khalsa land, if any, in his possession, would make up the total area as shown below:
(a) in the case of A class Girasdars, 3 economic holdings.
Section 22 of the Act states that in making an allotment of land to any Girasdars of A class or B class, the Mamlatdar shall have due regard to the following provisions, namely, (a) firstly such of the bid land or cultivable waste of the estate as the Girasdars wishes to utilize for personal cultivation shall be allotted to him.
16. On the basis of the above statutory provisions, Mr. Trivedi has contended that the allotment of land to Girasdar for personal cultivation shall be out of the original estate and that no allotment can ever be effected for the purpose other than personal cultivation and in the areas other than the original estate. Mr. Trivedi has further submitted that if at all any right came to be accrued in favour of the petitioner then in that case the same was pursuant to the order dtd. 30.03.1954 passed by the Special Mamlatdar (Gharkhed) directing allotment of in all 120 acres of land at village Mota Khijadia to the late husband of the petitioner and his three brothers. However, it was the petitioner's husband who waived the said right to have land at village Mota Khijadia on the ground that they may not like to displease the tillers who were in occupation of the said land. He has, therefore, contended that in view of this waiver, it is not legally permissible to the petitioner to allege the conferment of any further right and that too on the basis of a communication dtd. 13.07.1970. The said communication was rather a reaction of magnanimity on the part of the State Government whereby the petitioner was merely desired to select land and to inform the Government accordingly. He has further submitted that even today, after lapse of more than three decades, the State Government does not want to back out from the said reaction in principle, so long as the land to be selected by the petitioner falls within the estate of the petitioner's family as defined under Section 20 of the Saurashtra Land Reforms Act, 1951.
17. Mr. Trivedi has further submitted that inter-departmental communication/proposal dtd. 15.09.2001 addressed by the Secretary, Revenue Department to the Collector, Rajkot cannot, by any stretch of imagination, be considered to be an order which can be pressed for execution, unless the following conditions are complied with :
i) It should be expressly stated "by and in the name of the Governor" and authenticated as provided in Article 166(2) of the Constitution;
ii) The same should be in accordance with the Business Rules of the Government as specified in Article 166(3) of the Constitution; and
iii) The same must be communicated to the party concerned.
He has further submitted that even if one of the aforesaid three conditions is not complied with, the communication and/or proposal in question remains to be a mere noting on the file which cannot partake the character of an executable order. He has therefore submitted that merely, because an order is made by and in the name of the Governor, in the manner prescribed in Art. 166(2), it cannot be contended that such an order becomes immune and that the validity thereof cannot be questioned on any other ground including the ground to the effect that the said order does not correctly reflect the decision taken by the State Government. The only challenge against the said order which is excluded is to the effect that it is not an order made by the Governor. In this connection, he relied on the decision of the Hon'ble Supreme Court in the case of E.P. ROYAPPA V/S. STATE OF TAMIL NADU, A.I.R. 1974 S.C.C. 555 wherein it is held that "it is now well settled law that when an order is authenticated, the only challenge that is excluded by the authentication is that it is not an order made by the Governor. The validity of such an order can be questioned on other grounds. The authentication does not, therefore, preclude the contention that the order though made by the Governor suffers from some other infirmity. The authenticated order is merely an expression of the actual order which precedes it and which is made by the appropriate authority entitled to act on behalf of the State Government. The process of making an order precedes and is different from the expression of it. It should, therefore, be axiomatic that if the authenticated order does not correctly reflect the actual order made, or to put the same thing differently, the actual decision taken by the State Government, it must be open to correction. The formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made and override it. That would not be consonant with reason or principle. It would be an artificial rule calculated to obstruct the cause of truth and justice. In the case before the Hon'ble Supreme Court, it was the citizen who contended that the authenticated order does not correctly reproduce the actual order made by the State Government. But there may conceivably be cases where the Government may also find that there is a mistake in the authenticated order and it requires to be rectified. The Hon'ble Supreme Court has, therefore, held that it was competent to the petitioner to contend, by reference to the draft order which contains the original decision of the State Government where the authenticated order did not correctly reflect such decision and suffer from an error."
18. Mr. Trivedi has further contended that in exercise of the powers conferred by clauses (2) and (3) of Art. 166 of the Constitution and in supersession of Gujarat Government Rules of Business, 1988, the Governor of Gujarat has made Rules for more convenient transaction of the business of the Government of Gujarat known as Gujarat Government Rules of Business, 1990. In view of the provisions contained under Rule 10(2), Rule 9(2) and Rule 11(1)(a)(i) of the said Rules as well as item 22 of Second Schedule to the said Rules, such a case like the present one is required to be placed before the Chief Minister for taking the decision in the matter as well as the Finance Department is required to be consulted in respect of all proposals affecting the finance of the State and particularly involving the grant of land, before issuing the orders. He has therefore submitted that any decision taken in violation of the aforesaid Provisions of the Business Rules is irregular and not capable of being pressed in service. In this connection, he relied on the decision of this Court (Coram :- D.A. Mehta, J.) dtd. 22/23.07.2003 in S.C.A. No. 4137/2002 wherein it is held that "a decision communicated by the Government to the Collector cannot assume form of an order as required by Art. 166 of the Constitution of India, and if that be so, it would not be open to the petitioners to rely upon such a decision and seek relief on basis of such decision. The Court has further observed that in absence of any order, which is valid in law, the petitioners cannot seek compliance of communication. This is apart from the fact that the petitioners could not have been officially in possession of the inter-departmental communication. The Court has, therefore, held that in light of the settled legal position, the petitioners cannot successfully assail either the earlier decision dtd. 03.09.1997 or seek relief on the basis of subsequent communication of October, 1997 and 04.10.1999."
19. Mr. Trivedi has further relied on the Division Bench judgment of this Court (Coram :- J.M. Panchal and A.M. Kapadia, JJ) dtd. 09.09.2003 in LPA No. 832 of 2003 in S.C.A. No. 4137 of 2002 wherein it is held that "it is not necessary to decide on the basis of Art. 166 of the Constitution of India because the contention must fail in view of non-compliance of Rule 11(1) of the Gujarat Govt. Rules of Business, 1990. The Court has come to the conclusion that there is no manner of doubt that the decision taken by the concerned Minister of the respondent No.1 was contrary to the Gujarat Govt. Rules of Business, 1990 and, therefore, it cannot be directed to be implemented by issuing a writ of mandamus. The Court has further observed that it is well settled that writ will not be issued if effect of issuing writ would be to revive an illegal order."
20. Mr. Trivedi has further submitted that notings in a notes file do not have behind them the sanction of law as an effective order and are merely an expression of views preceding the order. An opinion becomes a decision of the Government only when it is communicated to the person concerned and then and then only any right can be said to have been accrued in favour of the person. In this connection, he relied on the decision in the case of KEDARNATH V/S. STATE OF PUNJAB REPORTED IN AIR 1979 S.C. 220 wherein it is held that "an order of the Chief Minister confirming a public servant does not create any right in favour of the servant concerned when it is not expressed in the name of the Governor and is not communicated to the employee. Consequently, the employee cannot challenge his reversion to his substantive post on the basis of such order when the order is subsequently rescinded and the temporary post on which the employee has been appointed, is abolished."
21. Mr. Trivedi has further relied on the decision in the case of STATE OF BIHAR AND OTHERS V/S. KRIPALU SHANKAR AND OTEHRS, (1987) 3 S.C.C. 34 wherein the Hon'ble Supreme Court has observed in para 17,18 of the judgment which are quoted as under :-
17. In the case of BHCHHITTAR SINGH V/S. STATE OF PUNJAB, a Constitution Bench of this Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. This Court, relying upon article 166(1) of the Constitution, held that the order of the Revenue Minister, PEPSU could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the said article and was then communicated to the party concerned. This is how the Court dealt with the effect of the noting by a Minister on the file :
The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
18. This Court observed in this judgment that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before action is taken by the authority concerned in the name of the Rajpramukh which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities on third parties. It is possible, observed this Court, that after expressing one opinion about a particular matter at a particular stage a Minister or Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the order of the State Government? It was held that an opinion becomes a decision of the government only when it must be communicated to the person concerned and that this is the essence of the matter. We seek support from these observations for our purpose that notings in a notes file, not only of officers but even that of a Minister will not constitute an order to affect others unless it is done in accordance with Article 166(1) and (2) and communicated to the person concerned.
22. Mr. Trivedi has lastly submitted that unless an intimation and/or proposal exchanged between the two functionaries of the Government becomes an order, then only a question may arise to find out as to whether or not there are any express or implied powers under any law providing for the review of the same. In the present case, since inter-departmental communication / proposal dtd. 15.09.2001 had not seen the light of the day, it can never said to be an order as contemplated and hence, the State Government cannot be regarded as bound by the same and that the same can always be reconsidered.
23. In the above view of the matter and submissions made by Mr. Trivedi, it is contended that none of the provisions of the Bombay Land Revenue Code can be made applicable to the facts and circumstances of the present case and the subsequent decision taken by the State Government cannot be said to be a review of the earlier decision as there was no decision taken by the State Government earlier which would be said to be reviewed subsequently by the Govt. He has, therefore, submitted that the writ of mandamus prayed for by the petitioner cannot be granted and the petition may be dismissed with cost.
24. Mr. P.M. Thakkar, learned senior counsel along with Mr. Harin P. Rawal, learned advocate appearing for the petitioner, in rejoinder, submits that with regard to the first contention raised by the State that there is no enforceable right or a legal right on the basis of which the petitioner can pray for enforcement of order dtd. 15.09.2001, does not stand to the legal scrutiny as the allotment of land is not in charity or on other compassionate ground, but is in lieu of the petitioner's right to have land for personal cultivation. Therefore, the arguments of the State are misconceived that there is no legally enforceable right, which can be enforced in a writ of mandamus under Article 226 of the Constitution of India. Mr. Thakkar has further submitted that on 11.09.2001, a conscious decision was taken by the Govt. which was further culminated into an order in exercise of powers under the Saurashtra Land Reforms Act, 1951, by issuing order dtd. 15.09.2001. The said order accepts the choice of land expressed by the petitioner. The order was in the name of Governor of Gujarat and was one contemplated under Art. 166 of the Constitution of India.
25. With regard to the second contention of the State that there is no valid order contemplated under Art. 166 of the Constitution of India and that order dtd. 15.09.2001 is merely an inter-departmental communication from the revenue department to the Collector, Rajkot, it is submitted that the order dtd. 15.09.2001 itself states it to be an order in the name of Governor of Gujarat. Therefore, having regard to Art. 166(2) since it was an order executed in the name of the Governor and was authenticated by the Under Secretary of the revenue department, who was authorised, the validity thereof cannot be called in question even by the State on the ground that it was not an order or instrument made or executed by the Governor. It was further submitted that no such defence and/or plea was raised in the Affidavit-in-reply in the present proceedings and that such plea was sought to be orally taken in the arguments, which is also factually incorrect apart from the fact that such a plea does not lie in the mouth of the Govt. In this connection, Mr. Thakkar has relied on the judgment of the Hon'ble Supreme Court in the case of DATTATRAYA MORESHWAR V/S. THE STATE OF BOMBAY AND OTHERS reported in A.I.R. 1952 S.C. 181 where it is held that "Art. 166 directs all executive action to be expressed and authenticated in the manner laid down therein. But any omission to apply with those proceedings does not render the executive action a nullity." Mr. Thakkar has further relied on the decision of the Hon'ble Supreme Court in the case of STATE OF BOMBAY V/S. PURUSHOTTAM JOG NAIK reported in A.I.R. 1952 S.C. 317 wherein while dealing with the expression 'expressed', it is held that "one of the meanings of 'expressed' is to make known the opinion or feelings to a particular person and when a Secretary to the Govt. apprehending a man and tells him in the order that it is being done under the order of the Govt., he is in substance telling that he is acting in the name of Governor and on his behalf." Mr. Thakkar has also relied on the decision of the Hon'ble Supreme Court in the case of P. JOSEPH JOHN V/S. STATE OF TRAVANCORE COCHIN reported in A.I.R. 1955 S.C. 160 wherein it is held that "Clauses 1 and 2 of Art. 166 of the Constitution of India are directory only and noncompliance with them does not result in the order being invalid and in order to determine whether there is compliance with these provisions of all that is necessary to be seen is whether there has been substantial compliance with those requirements. Even in the decision in the case of R. CHITRALEKHA V/S. STATE OF MYSORE AND OTHERS reported in A.I.R. 1964 S.C. 1823, the Hon'ble Supreme Court has held that it was settled law that provisions of Art. 166(3) only directory and not mandatory in character and if they were not complied with, it could still be established as a question of fact, that the impugned order was issued in fact by the State Government or by the Governor." Relying on the decision of the Hon'ble Supreme Court in the case of ISHWARLAL GIRDHARILAL JOSHI V/S. STATE OF GUJARAT AND ANOTHER reported in A.I.R. 1968 S.C. 870, Mr. Thakkar has submitted that there is presumption of regulatory of official acts. The Under Secretary is competent as an Officer duly authorised by virtue of the Rules of Business to authenticate the order in the name of Governor of Gujarat. The validity of the order could not be called in question on the ground that it was not an order made by the Government. The Hon'ble Supreme Court has observed in this decision that it was open to the Govt. to shelter itself behind Constitutional protection provided by Art. 166(2) and the barrier could not be pierced by the appellant by merely stating that the Govt. had not passed the order or made necessary determination without alleging definite facts in addition to the Constitutional protection, there was also presumption of regulatory of official acts.
26. With regard to the third contention of the State that the order is not in confirmity with the rules of business since there is no consultation with the Finance Ministry, in as much as the order involves grant of land, Mr. Thakkar has submitted that this contention was only raised in the pleadings and, therefore, the Govt. is estopped from raising even it on the ground that it is question of law, since necessary ingredients in form of pleadings are absent. It is further submitted that cancellation of the order dtd. 15.09.2001 is not resorted to by the Govt. as per its own Affidavit on the said ground. Therefore, such a ground cannot be pressed into service. In this behalf, even if it were alleged in the Affidavit that it was a reason for the cancellation of order dtd. 15.09.2001, since it was not a reason contained on the file while taking impugned decision, such a reason cannot be pressed into service to justify the cancellation, in as much as according to the judgment of the Hon'ble Supreme Court reported in A.I.R. 1978 S.C. 851 such course is not permissible in law. It is further submitted that the order dtd. 15.09.2001 is not an order of grant of land which will effect the finance of the State, but it is an order of land qua the crystalised right for which decision is taken as far back in the year 1970. The order dtd. 15.09.2001 is only consequential order of the initial right conferred upon the petitioner under the order dtd.13.07.1970 and, therefore, no such consultation is envisaged. It is further submitted that even factually this is not correct since both the Ministries, namely, Revenue as well as Finance, were under one and the same Minister incharge of the Department, and, therefore, also concurrence has to be presumed since official acts are presumed to be done in official manner.
27. With regard to the fourth contention of the State that an opinion becomes decision of the Government only when it is communicated to the person concerned and till communication, no right can be said to be accrued in favour of the person concerned, it is submitted by Mr. Thakkar that this is also misconception of law, in as much as once a decision is taken, it partakes character of decision. It is transformed into an executable order once it is expressed in the name of the Governor of Gujarat, which, in fact, in the present case, it is so expressed and on the same being authenticated in the manner prescribed. He has further submitted that the communication to the person concerned is a ministerial act and cannot determine the legal character of the right of the person concerned to have the same implemented.
28. With regard to the fifth contention of the State that the Provisions of the Bombay Land Revenue Code are not applicable and, therefore, the decisions rendered therein holding that the Government has no power to review its own order are inapplicable, Mr. Thakkar has submitted that the ratio of the judgments need to be appreciated where though the Government is conferred with wide power under Section 211 of the Code, catana of decisions show that there is no power to review once an order is passed. It is further submitted that evenif it be assumed for the sake of argument that the provisions of the Bombay Land Revenue Code do not apply, then present order can be said to be passed by the Government in exercise of its quasi-judicial power with respect to allotment of land under the Provisions of Saurashtra Land Reforms Act and more particularly, being power exercised under Section 63, where the Government in all matters connected under the Saurashtra Land Reforms Act, 1951, shall have same authority and control over the Mamlatdar and Collector acting under the Act as they have to exercise over them in general and revenue administration. Therefore, evenif it be held that it is Mamlatdar alone who has authority to pass order under Section 23 considering Section 63(1), the State Government is denuded of its power to pass an order for allotment of land which could be passed by the Government. The present order is therefore treated as an order passed under Section 63(1) of the Act.
29. With regard to the next contention of the State that in any matter pending before the Minister In-charge of the Department can be placed before the Chief Minister on his direction, Mr. Thakkar has submitted that evenif it be assumed that the Chief Minister has the power to call for any file and pass orders thereon, firstly such an assumption is contrary to the expressed provisions contained in the Government Rules of Business, inasmuch as once there is a decision of the Minister In-charge of the department, such a decision can be annulled or reversed or rescinded only by decision taken by the Cabinet of Ministers. Secondly on 22.09.2001, the noting shows that the Chief Minister only directed discussion to be held by him by the Revenue Minister, Chief Minister and the Secretary In-charge of the Revenue Department and till such time directed suspension of the order. Thereafter, there was change in the Ministry including the Chief Minister and instead of consultation, the Revenue Minister on his own passed the order and took a decision, interalia, to the effect that on the very grounds which were present and considered by the Govt. while passing the order of which implementation is sought, dated 15.09.2001, the same should be reviewed and rescinded. This decision is concurred by the Chief Minister and, therefore, there is no independent decision of the Chief Minister pursuant to the noting dtd. 22.09.2001. It is further submitted that since pursuant to the noting dtd. 22.09.2003, there was no independent decision by the Chief Minister, the decision of the Revenue Minister on the basis whereof the present order dtd. 15.09.2001 is sought to be reviewed and rescinded cannot be permitted to be argued in law on the same analogous argument of the respondent that there is no order rescinding earlier order as contemplated under Art. 166 and it is merely a noting on the file. It is further submitted that the discussion which was contemplated under the noting dtd.22.09.2001 has never taken place and there is no record therefore to justify the reliance of the noting dtd.22.09.2001. In the above view of the matter, Mr. Thakkar has reiterated that the petitioner deserves for the relief prayed for in this petition and the same is, therefore, required to be granted.
30. Before the Court proceeds to deal with the rival contentions raised by the parties, it is necessary to take note of the fact that this petition was earlier heard and the order was dictated in the open Court and as observed in the order dtd. 10.05.2002 (Coram :- M.S. Shah, J.), the Court deferred signing the said order and permitted the Government Pleader to tender Affidavit-in-reply. The same was accordingly filed on 15.06.2002 interalia, stating that order dtd. 15.09.2001 was kept in abeyance and the file was once again submitted for reconsideration and the decision was taken on the file not to accept the proposal with respect to the allotment of land in Mota Mauva and the said decision was taken by the Government at the highest level including the Secretary, Revenue Department, Chief Secretary, Revenue Minister and the Chief Minister and then it was decided to inform the Collector accordingly and in the meanwhile, the order passed by this Court was communicated and hence follow up action could not be taken in the matter. The Court, therefore, observed in its order dtd. 29.06.2002 that when the Court heard the present petition on 07.05.2002, all the relevant facts were not brought to the notice of the Court with the result that the Court was led to believe that the earlier allotment order dtd. 15.09.2001 was kept in abeyance only because of the objection raised by one Mr. Kapil Tanshkhlal Sameja regarding lands bearing Revenue Survey Nos. 109 and 139. Since the petitioner filed the affidavit dtd. 06.05.2002 that the petitioner was not interested in the land bearing Survey Nos.109 and 139 in which the said Mr. Kapil Tansukhlal Sameja was interested on account of his claim on the basis of the previous ownership, the Court pronounced the order on 07.05.2002 directing the respondents i.e. the State Government and the Collector to put the petitioner in possession of the lands in village Mota Mauva covered by the allotment order dtd. 15.09.2001 excluding lands bearing Survey Nos. 109 and 139, within one month from the date of receipt of the writ. However, when the relevant facts were brought to the Court's notice, the Court did not sign the order which was pronounced on 07.05.2002 and recalled the said order by an order dtd. 29.06.2002 (Coram :- M.S. Shah, J.).
31. The real controversy involved in this petition is with regard to the implementation of the impugned order dtd. 15.09.2001. By virtue of the fact that the said order was kept in abeyance on 22.09.2001 by putting note on the file, the petitioner was deprived of her legitimate right of allotment of land which was recognised on 30.03.1954, reconsidered and again conferred on 13.07.1970 and finally determined on 15.09.2001. The moot question still remains as to whether the order dtd. 15.09.2001 is really an order or it is merely a proposal or communication, which is never reached to the petitioner. By virtue of this order, whether any enforceable right is created in favour of the petitioner. The submission of Mr. P.M. Thakkar, learned Senior Counsel and Mr. Harin P. Rawal, learned advocate appearing for the petitioner before this Court are that it is an order duly issued for and on behalf of the Governor under Article 166(1) and (2) of the Constitution of India and already despatched to the Collector, Rajkot by Regd. A.D. Post, for its implementation. Once having passed this order, the State Government has no power to review the said order as no such powers either expressly or by necessary implication are conferred on the State Government. It is also their submission that even if such power of review is assumed, the exercise thereof is in violation of the principles of natural justice as before keeping the order dtd. 15.09.2001 in abeyance or alleged cancellation thereof, the petitioner was not heard in the matter. It is also their submission that grounds enumerated in the affidavit filed subsequently for reviewing the decision taken on 15.09.2001 are not true and correct and that the decision was sought to be reviewed for some extraneous considerations.
32. As against the above submissions of the learned advocates appearing for the petitioners, Mr. K.B. Trivedi, the learned Additional Advocate General appearing for the State has strongly and emphatically submitted that there was no vested right in favour of the petitioner and what was offered was nothing but the magnanimity shown by the Government. Moreover, the Communication dtd. 15.09.2001 cannot be termed as an order which can be enforced against the State as it was not communicated to the petitioner. The initial abeyance and subsequent cancellation thereof cannot be assailed on the ground that the State has no power to review the said decision and even on the alternative ground that the said action was violative of the principles of natural justice. Even if the Communication dtd. 15.09.2001 was issued for and on behalf of the Governor, the other conditions laid down under Art. 166(2) of the Constitution of India were not satisfied and hence, it cannot be enforced against the State Government.
33. Looking to the pleadings and arguments of the respective sides, the Court is not much impressed about the argument that the petitioner is not entitled to any land in lieu of the land originally acquired under the Land Reforms Act. Even if it is assumed that the State Government has shown magnanimity in offering the land to the petitioner, it is a commitment made by the State to the citizen, which can not be allowed to be given go by on any pretext. The sole question therefore, remains for the decision of this Court is the enforceability or implementation of the order of Communication dtd. 15.09.2001. As stated earlier, for seeking execution or implementation of this order, the requisite conditions which are to be satisfied are that such order should be expressly stated, "by and in the name of the Governor" and authenticated as provided in Art. 166(2) of the Constitution and that the same should be in accordance with the Business Rules of the Government as specified in Art. 166(3) of the Constitution and that the same must be communicated to the party concerned.
34. There is no dispute about the fact that order dtd. 15.09.2001 is expressly stated "by and in the name of the Governor" and authenticated as provided in Article 166(2) of the Constitution. However, with regard to the remaining two conditions, it is difficult to hold that the same are satisfied in the present case. The Court finds sufficient substance in the submission of Mr. Trivedi that as per the provisions contained in Rule 10(2), Rule 9(2) and Rule 11(1)(a)(i) of the Gujarat Government Rules of Business, 1990 and Item No.22 of the Second Schedule to the said Rules, the present matter was required to be placed before the Chief Minister for taking the decision in the matter and also before the Finance Minister for his consultation as it was affecting the Finance of the State and was involving the grant of land. Simply because the Revenue Minister and the Chief Minister was one and the same persons, the requisite procedure or requirement should not be dispensed with. There is nothing on record to indicate that the concerned Revenue Minister has taken into account the fact that the said proposal affects the Finance of the State. The said action is, therefore, in violation of above provisions of Business Rules of the Government and as observed by this Court (Coram :- D.A. Mehta, J.) in the order dtd. 22/23.07.2003 in S.C.A. No. 4137 of 2002 that a decision communicated by the Government to the Collector can not assume form of an order as required by Art. 166 of the Constitution of India, and if that be so, it would not be open to the petitioners to rely upon such a decision and seek relief on the basis of such decision. Since this Court has come to the conclusion that the order dtd. 15.09.2001 is in violation of the Gujarat Government Rules of Business, 1990 as held by the Division Bench of this Court (Coram :- J.M. Panchal and A.M. Kapadia, JJ.) in an order dtd. 09.09.2003 in L.P.A. No. 832 of 2003 in S.C.A. No. 4137 of 2002, such a decision cannot be directed to be implemented by issuing a writ of mandamus.
35. The Court further finds force in the argument of Mr. Trivedi that an opinion becomes a decision of the Government only when it is communicated to the person concerned and then and then only any right can be said to have been accrued in favour of such person. Here in the present case, admittedly, order dtd. 15.09.2001 has not been communicated to the petitioner. It is not even the case of the petitioner. Simply because the order is despatched by the Deputy Secretary, Land Revenue Department to the Collector, Rajkot, it can not be said that it is communicated to the petitioner. Before such communication takes place, the said order was initially put into abeyance and thereafter, it was cancelled by putting note in the file and before such cancellation order is passed, an interim order was passed by this Court granting ad-interim relief in terms of para 52. DD of this petition. The fact, however, remains that the order dtd. 15.09.2001 was kept in abeyance on 22.09.2001 and subsequently cancelled on file on 13.12.2001. Thus, the order dtd. 15.09.2001 was never communicated to the petitioner and till its communication to the concerned person, it merely remains a proposal which can as well be reviewed or reconsidered and for that purpose, no opportunity of hearing is required. Hence, subsequent notings on the file cannot be said to be in violation of the principles of natural justice.
36. It is settled position in law by now that any order validly made and expressed under Art. 166(2) of the Constitution of India to become binding upon the Government and public, it must be communicated to the persons to be affected by it. Until that is done, it is of a provisional character and may be changed by the ministers, who are free to consider the matter even again. The Hon'ble Supreme Court has made it clear in the case of KEDARNATH V/S. STATE OF PUNJAB (SUPRA) that an order of the Chief Minister confirming a public servant does not create any right in favour of the servant concerned when it is not expressed in the name of the Governor and is not communicated to the employee. As per this decision, both the conditions are to be satisfied. In the present case, order is passed in the name of the Governor but it is not communicated to the petitioner. When such order is subsequently rescinded, the earlier order because of its inherent defect can not be enforced or implemented. The Hon'ble Supreme Court has made it further clear in the case of STATE OF BIHAR and Others V/s. KRIPALU SHANKER AND OTHERS (SUPRA) that an opinion becomes a decision of the Government only when it must be communicated to the person concerned and that this is the essence of the matter.
37. Considering the entire facts and circumstances of the case and applying the law laid down by this Court as well as by the Hon'ble Supreme Court, this Court holds that the petitioner is not entitled to the allotment and physical possession of the land in question on the basis of order/communication dtd. 15.09.2001. Petition fails qua that relief. However, this would not absolve the State Government from discharging its obligation or fulfilling its commitment of allotting land to the petitioner. It is expected that the State Government will undertake that exercise as soon as possible, keeping in mind the communication dtd. 13.07.1970 and the statement made by Mr. Trivedi that the State Government does not want to back out from the said reaction in principle, so long as the land to be selected by the petitioner falls within the estate of the petitioner's family as defined under Section 20 of the Saurashtra Land Reforms Act, 1951.
38. Subject to the above observation, the petition fails. Rule discharged with no order as to costs.
39. Since the petition is dismissed, all the above Civil Applications would not survive and hence, the same are treated as disposed of accordingly.
40. After the pronouncement of the above judgment, Mr. Amar D. Mithani, learned advocate appearing for Mr. Harin P. Rawal for the petitioner submits that interim relief which is operative since December, 2002 should be continued for a period of two seeks so as to enable the petitioner to take legal recourse in the matter. Mr. Kamal B. Trivedi, learned Addl. Adv. General appearing for the respondent-State has submitted that interim relief should not be extended as it would frustrate the whole object of giving such direction by this Court. After having heared learned advocates appearing for the respective parties and considering the fact that interim relief is in operation since December, 2002, the same is continued for a further period of two weeks from today.