State of Uttaranchal
& ANR. Vs Sunil Kumar Vaish & Ors.
J U D G M E N T
K.S. RADHAKRISHNAN,
J.
1.
We
are, in this appeal, concerned with the legality of the direction given by a
Division Bench of the High Court of Uttaranchal at Nainital to the State Government
to pay an amount of Rs.70,99,951.50 with interest to the respondents, placing reliance
on an inter-departmental communication sent by the District Magistrate, Haridwar
to the Secretary, Government of Uttar Pradesh.
2.
The
State of Uttaranchal (the State which has interest now) submits that the above
direction was given overlooking several important and vital documents which have
considerable bearing for a proper and just determination of the dispute. Further,
it was also pointed out that the High Court had failed to notice that even the inter-departmental
communication was found to be improper by the Government of Uttar Pradesh.
3.
Mr.
S.S.Shamshery, learned counsel appearing for the State of Uttaranchal referred to
the pleadings of the parties, documents produced and submitted those relevant
facts were not taken into consideration by the High Court while granting relief
to the respondents causing serious prejudice to the State.
4.
Mr.
Rakesh Khanna, learned counsel appearing for the respondents, submitted that there
is no legality in the order passed by the High Court warranting interference by
this Court and that no substantial questions of law arise for consideration and
the appeal deserves dismissal.
FACTS:
5.
Plot
No. 1008 measuring 7 Bighas, 14 Biswas situated at Rampur Colony, Roorkee, originally
belonged to the grand-father of the respondents Late Ram Rattan Lal, was acquired
for rehabilitation of refugee camp at Roorkee and the amount of compensation
for the acquisition was paid to Ram Rattan Lal on 13.3.1952. On 14.9.1962 Ram Rattan
Lal made a request to the Government to lease out the said land for
agricultural purposes. Request was considered favourably by the Government and
a grant/lease deed was executed on 14.9.1962 in favour of Ram Rattan Lal on certain
terms and conditions, which are extracted herein below:
a. In consideration of the
sum of Rs.2742.00 (two thousand and seven hundred and forty two only) paid by the
Grantee to Grantor, the receipt of which the Grantor hereby acknowledges, and of
the covenants on the part of the Grantee hereinafter contained, the Granter hereby
demises to the Grantee. All the land described in the Scheduled hereto to hold the
said land with only the rights and obligations akin to a Bhumidhar as defined in
the U.P. Zamindari Abolition and Land Reforms Act, 1950 or any statutory notification
thereof, subject to such conditions, restrictions and limitations as are
imposed under this deed.
b. The Grantee hereby
covenants with the Grantor as follows:-
i.
The
Grantee shall use the land granted to him only for the purposes of cultivation and
purposes incidental thereto, and for no other purpose whatsoever.
ii.
The
Grantee's rights in the said land shall be heritable but he shall not be entitled
to alienate the said land without the previous permission in writing of the
Grantor.
iii.
The
Grantee shall pay the rent in accordance with the hereditary rates applicable and
shall also pay taxes or cesses that may be imposed on the said land.
iv.
In
the event of any rent payable hereunder, whether lawfully demanded or not,
remaining in arrears for months or in the event of the Grantee not at any time cultivating
the said land for two successive years, or if there shall be any breach of any covenant
by the Grantee herein contained, the Grantor may notwithstanding the waiver of any
previous right or cause for re-entry, re-entry upon the said land or any part thereof
in the name of the whole and thereafter the whole of the said land shall remain
to the use of and be vested in the Grantor and this grant shall absolutely determine,
and the Grantee shall not be entitled to any compensation therefore or for any improvement
made on the said land. Provided always that should the State Government at any
time require the said land, or any part thereof for any public purpose, the Grantor
may determine the same in whole or part and may also take possession of the
whole or part, as the case may be, and in such a case the Grantee shall be entitled
to such compensation as the District Officer of Saharanpur may in his discretion
assess.
v.
Notwithstanding
anything herein before contained the Grantor shall be entitled to recover the arrears
of rent due as arrears of land revenue.(6) The stamp duty and registration charges
on this deed shall be borne by the Grantee."
6.
Apprehending
forcible dispossession, Ram Rattan Lal filed Civil Misc. Writ No. 1974 of 1967 before
the Allahabad High Court. The High Court allowed the writ petition on 26.8.1982
restraining the State Government from forcibly dispossessing him, though it was
found that the land in question was acquired by the Government under Section 9 of
the U.P. Land Acquisition (Rehabilitation of Refugees) Act, 1948.
7.
The
District Magistrate, Saharanpur accordingly vide his proceeding dated 24.12.1971
determined the lease as per Clause 4 of the lease deed dated 14.9.1962 stating that
the land was required by the Government for a public purpose i.e. for
construction of a building for the use of a Government Litho Press at Roorkee. Ram
Rattan Lal was, therefore, directed to vacate the premises within a period of thirty
days from the date of receipt of notice. Ram Rattan Lal did not vacate the premises
within the stipulated time and was found to be in unauthorised occupation of
the land since 27.1.1972. The State of Uttar Pradesh then initiated ejectment proceedings
under the U.P. Public Premises (Eviction of Unauthorised Occupants) act, 1972 [for
short U.P. Act XXII of 1972] before the Sub Divisional Magistrate (Prescribed authority)
by filing case No. 1227 of 1972 under Section 4 of the U.P. Act XXII of 1972. It
was pointed out that the State was entitled to possession since 27.1.1972 and
was suffering a loss of Rs.500/- per month from that date and that Ram Rattan
Lal was liable to pay damages of Rs.3,000/- and also the damages till the date
of delivery of possession.
8.
Ram
Rattan Lal filed a detailed written statement before the prescribed authority. Both
the parties also adduced oral as well as documentary evidence before the Prescribed
authority and, after detailed examination of the contentions, the prescribed authority
passed an order dated 13.9.1973, the operative portion of which reads as
follows: "As provided in grant-deed dated 14.9.1962 the O.P. was bound to give
possession to the granter in response to notice dated 24.12.71 which was served
upon him on 27.12.71 with in a period of 30 days but he did not do so any by violating
the condition of the grant deed he remained in unauthorised occupation over the
disputed land after 27.1.72 for which he is liable to pay the damages to the applicant.
The applicant has demanded Rs.500/- P.M. from the O.P. which seem to be excessive
and in my opinion the damages at the rate of Rs.150/- per month will be
reasonable and the opposite party is therefore, liable to pay Rs.150/- as damages
per month with effect from 27.1.72 upto the date of delivery of
possession."
9.
Aggrieved
by the above-mentioned order Ram Rattan Lal preferred Misc. Appeal No.335 of 1973
before the 1st Additional District and Sessions Judge, Saharanpur and the Court
held that the land was a public premises and Ram Rattan Lal was in unauthorised
occupation after the determination of grant and action for his eviction under the
U.P. Act No. XXII of 1972 was fully justified. However, the rate of damages fixed
by the prescribed authority was reduced to Rs.60/- per month. Aggrieved by the said
order Ram Rattan Lal filed Civil Misc. Writ No.12304 of 1975 before the High Court
of judicature at Allahabad. Before the High Court, the contention was raised that
Ram Rattan Lal should be treated as Bhumidar under the U.P. Zamindari Abolition
and Lad Reforms Act. High Court rejected all those contentions and held that Ram
Rattan Lal had not acquired the rights of a Bhumidar under any of the provisions
of the U.P. Zamindari Abolition and Land Reforms Act and was not a tenure holder
under any of the clauses mentioned in Section 129 of the aforesaid Act and held
that the step taken for eviction in respect of Ram Rattan Lal was fully
justified under U.P. Act XXII of 1972. The writ petition was accordingly dismissed
with costs.
10.
Aggrieved
by the said order of the High Court Ram Rattan Lal approached this Court and filed
SLP(C) No.6851 of 1979 and the same was also dismissed by this Court on
23.12.1981
11.
District
Magistrate, Haridwar, without referring to any of those facts, sent a communication
dated 17.9.1993 to the Secretary, Government of Uttar Pradesh stating as under:
"As per the conditions mentioned in the Patta, Pattedar was dispossessed from
the land under the provisions of Section 4 of the Public Premises Act, but whatever
payment as per allowance had to be made to the farmer was not made. Therefore the
Pattedar is entitled to receive the compensation of the land. But by not paying
the compensation amount under the Land Acquisition Act no policy for payment of
compensation to the Patta holder with regard to the said land is given in the Patta
and for determination of the same it would be proper to hold the stamp duty
prevailing for the year 1987 in the area in question as the basis of determination
of compensation amount. Hence the compensation towards the said land admeasuring
6-14-0 Bighas i.e. 15777.67 Sq.mts. @ Rs.450/- per sqm. As per the prescribed stamp
duty for the year 1987 comes to Rs.70,99,951.50, in which arrangement would
have to be made by the Government Photo Litho Press, Roorkee and the same could
be demanded from the concerned department."
12.
The
Government of Uttar Pradesh considered the communication received from the District
Magistrate, Haridwar and took the view that it was not proper on the part of the
District Magistrate in recommending payment of compensation for the following
reasons:
a. "The Hon'ble Courts
in its judgments under the cases in question, especially in the judgment dated 26.2.79
of the Hon'ble High Court, Patta holder has been declared in unauthorised
possession of the land in question from 27.1.72 and compensation amount of
Rs.60/- per month has been granted to the State Government. Therefore, payment of
compensation amount by the State Government to the persons in unauthorised possession
of the land is not proper.
b. Under the provisions of
Section 108(Q) of the Transfer of Property Act, within the prescribed period of
notice of completion of Patta i.e. upto 27.1.72, Patta holder had to hand over the
possession of land in question to the State Government, which was not given by them
upto 6.6.87 and during that period debarred the State Government from the use of
land in question and themselves took the benefit of the same. In this way this
rule has been violated and the condition mentioned in para 4 of the Patta dated
14.9.62 has also been violated and hence Patta Holder is not entitled to receive
the compensation amount.
c. As per the judgment
of the Hon'ble High Court the Patta holders have to pay compensation amount at the
rate of Rs.60/- per month to the State Government for the period they were in unauthorised
possession of the land. In such circumstances, payment of compensation amount
to them by the State Government, when conditions of Patta dated 14.9.62 has been
violated, is not proper.
d. Land in question was acquired
in the year 1948. Payment of compensation in regard to the land acquired was
made by the State Government at that time itself and this compensation was paid
to one of the members of Patta holder family as per the condition then was. Hence
for the second time payment of compensation amount pertaining to the same land on
the same basis is not as per the law.
e. Under the condition mentioned
in para 4 of the Patta deed dated 14.09.1962 payment of compensation amount had
to make upto 27.1.1972 then the Patta would be as per condition, but the Patta Holders
had to hand over the possession of land to the State Government upto 27.1.1972 but
the same was not given upto 6.6.87 and situation changed and responsibility of this
fault was on the patta holders and the guilty person could not take benefit of
its own wrong. Hence the payment of compensation amount as has been proposed by
you is not proper.
f. In the aforesaid circumstances
payment of compensation amount to the Patta holders is neither lawful not logical.
Therefore, it is requested to take action for recovery of compensation amount of
Rs.11,062/- which has to be paid by the Patta holdes @ 60/- per month for the period
from 27.1.1972 to 6.6.1987 to the State Government under the provision of point
No.1 of said para 1 and accordingly acknowledge the government with the action
taken."
13.
We
are surprised to note that the Division Bench of the High Court had overlooked the
above mentioned vital facts while deciding the lis between the parties. Non-application
of mind is writ large in the order of the High Court, not even an attempt or
effort has been made to refer to the pleadings of parties or examine the documents
produced, in spite of the fact that those materials were on record.
14.
Of
late, we have come across several orders which would indicate that some of the judges
are averse to decide the disputes when they are complex or complicated, and would
find out ways and means to pass on the burden to their brethren or remand the matters
to the lower courts not for good reasons. Few judges, for quick disposal, and for
statistical purposes, get rid of the cases, driving the parties to move representations
before some authority with a direction to that authority to decide the dispute,
which the judges should have done. Often, causes of action, which otherwise had
attained finality, resurrect, giving a fresh causes of action. Duty is cast on the
judges to give finality to the litigation so that the parties would know where
they stand.
15.
Judicial
determination has to be seen as an outcome of a reasoned process of adjudication
initiated and documented by a party based, on mainly events which happened in
the past. Courts' clear reasoning and analysis are basic requirements in a
judicial determination when parties demand it so that they can administer justice
justly and correctly, in relation to the findings on law and facts. Judicial
decision must be perceived by the parties and by the society at large, as being
the result of a correct and proper application of legal rules, proper evaluation
of the evidence adduced and application of legal procedure. The parties should be
convinced that their case has been properly considered and decided. Judicial decisions
must in principle be reasoned and the quality of a judicial decision depends
principally on the quality of its reasoning. Proper reasoning is an imperative necessity
which should not be sacrificed for expediency. The statement of reasons not
only makes the decision easier for the parties to understand and many a times
such decisions would be accepted with respect. The requirement of providing reasons
obliges the judge to respond to the parties' submissions and to specify the
points that justify the decision and make it lawful and it enables the society to
understand the functioning of the judicial system and it also enhances the faith
and confidence of the people in the judicial system.
16.
We
are sorry to say that the judgment in question does not satisfy the above standards
set for proper determination of disputes. Needless to say these types of orders
weaken our judicial system. Serious attention is called for to enhance the
quality of adjudication of our courts. Public trust and confidence in courts stem,
quite often, from the direct experience of citizens from the judicial
adjudication of their disputes.
CONCLUSION
17.
We
have gone through the writ petition filed before the High Court, counter affidavit
filed by the State Government and the oral and documentary evidence adduced by the
parties before the prescribed authority and before the higher forums. Facts would
clearly indicate that Ram Rattan Lal was an unauthorised occupant of the land since
27.11.1972 and that finding had attained finality and the Judges of the High
Court had failed to note the following relevant documents, apart from the
pleadings of the parties:
a. The order of the
Prescribed authority in case No. 12272 dated 13.9.1973, wherein there was a
clear finding that Ram Rattan Lal was an unauthorised occupant of the disputed land
from 27.11,1972.
b. Judgment of the Court
of 1st Additional and Sessions Judge, Saharanpur dated 8.11.1975 in Misc. Appeal
No. 335 of 1973 affirming the finding that Ram Rattan Lal was an unauthorised occupant
after determination of the grant and the action for his eviction was fully justified.
c. Judgment of the High Court
of Allahabad in Civil Misc. Writ No. 12304 of 1975 affirming the above mentioned
orders.
d. Order of this Court
in SLP ) No. 6851 of 1979 dated 22.3.1981.
e. Letter of the Special
Secretary, State of Uttar Pradesh bearing No. 1251 PS/18-8-21 (10) PS/93 dated
25.6.1994, stating that the reasons stated in inter-departmental communication
dated 17.9.1993 was improper.
18.
In
our view, the State Government had rightly rejected the recommendations made by
the District Magistrate for payment of Rs.70,99,951.50 because while doing so, the
concerned officer conveniently ignored the fact that Ram Rattan Lal had already
been declared as unauthorised occupant of the land in question. In the face of the
decision taken by the State Government, the High Court could not have relied upon
the recommendations made by the District Magistrate by treating the same as an order
of the State Government. It is settled law that all executive actions of the Government
of India and the Government of a State are required to be taken in the name of the
President or the Governor of the State concerned, as the case may be [Articles
77(1) and 166(1)]. Orders and other instruments made and executed in the name of
the president or the Governor of a State, as the case may be, are required to be
authenticated in the manner specified in rules made by the President or the Governor,
as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order
is expressed in the name of the President or the Governor and is authenticated in
the manner prescribed by the rules, the same cannot be treated as an order on
behalf of the Government.
19.
A
nothing recorded in the file is merely a noting simpliciter and nothing more. It
merely represents expression of opinion by the particular individual. By no stretch
of imagination, such noting can be treated as a decision of the Government. Even
if the competent authority records its opinion in the file on the merits of the
matter under consideration, the same cannot be termed as a decision of the
Government unless it is sanctified and acted upon by issuing an order in accordance
with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file
or even a decision gets culminated into an order affecting right of the parties
only when it is expressed in the name of the President or the Governor, as the case
may be, and authenticated in the manner provided in Article 77(2) or Article 166(2).
A noting or even a decision recorded in the file can always be
reviewed/reversed/overruled or overturned and the court cannot take cognizance
of the earlier noting or decision for exercise of the power of judicial review.
- State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh v. State
of Punjab AIR 1963 SC 395, State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan
Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA
(2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705.
20.
We,
therefore, set aside the judgment of the High Court in Writ Petition No. 401 of
2002 expressing our strong disapproval. Appeal is, therefore, allowed with
costs, which is quantified as Rs.10,000/- .
...................J.
(G.S. Singhvi)
...................J.
(K.S. Radhakrishnan)
New
Delhi
August
16, 2011.
Back
Pages: 1 2
