REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5374 OF 2005
State of Uttaranchal & Anr. ... Appellants
Vs
Sunil Kumar Vaish & Ors. ...Respondents
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 hereinbelow:
1. 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.
2. The Grantee hereby covenants with the Grantor
as follows:-
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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:
1. "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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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:
1. 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.
2. 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.
3. Judgment of the High Court of
Allahabad in Civil Misc. Writ No.
12304 of 1975 affirming the above
mentioned orders.
4. Order of this Court in SLP ) No. 6851
of 1979 dated 22.3.1981.
5. 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.
