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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."

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.

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.