State Of Uttaranchal & Anr vs Sunil Kumar Vaish & Ors

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.