Case: Jaipur Development Authority  Vs. Vijay Kumar Data

clearly erroneous. The letter written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur cannot, by any stretch of imagination, be treated as a policy decision taken by the State Government. No document was produced before the High Court and none has been produced before us to show that the recommendations made by the Committee of Ministers had been approved by the State Government culminating in issuance of a policy circular. It is trite to say 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 such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that: “The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.” Likewise, Article 166(3) lays down that: “The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” Article 166 was interpreted in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34 and it was observed: “Now, the functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article:`166. Conduct of business of the Government of a State. –(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).” 33. It is thus clear that 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 made on behalf of the Government. A reading of letter dated 6.12.2001 shows that it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.34. We are further of the view that even if the instructions contained in letter dated 6.12.2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyams case and Daulat Mal Jains case and was a crude attempt by the concerned political functionaries of the State to legalise what had already been declared illegal by this Court.35. Although, we are prima facie satisfied that execution of lease deeds by the appellant in favour of some persons in 2002 and 2003 is a clear indication of deep rooted malaise in the functioning of the appellant and is also indicative of sheer favouritism and nepotism, we refrain from pronouncing upon the legality of those transactions because the beneficiaries are not parties to these appeals.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]29. In our view, the Division Bench of the High Court committed serious error by entertaining an altogether new case set up on behalf of the respondents, who had not even prayed for amendment of the pleadings and granted relief to them by declaring that they are entitled to get benefit of the policy of regularization contained in letter dated 6.12.2001. It is difficult, if not impossible, to comprehend as to how the Division Bench could rely upon the so called policy decision taken by the Government in flagrant violation of the two judgments of this Court wherein it was categorically held that the transactions involving transfer of land after the issue of notification under Section 4 were nullity and the Land Acquisition Officer did not have the jurisdiction to direct allotment of land to the awardees/sub awardees, their nominees/sub-nominees. The basics of judicial discipline required that the Division Bench of the High Court should have followed the law laid down by this Court in Radhey Shyams case and Daulat Mal Jains case and refused relief to the respondents.30. Another grave error committed by the Division Bench of the High Court is that it ignored the unchallenged findings recorded by the Tribunal and the trial Court that the transferor of the respondents, namely, Shri Ganesh Narayan Gupta did not have valid title over the land and he had no right to secure allotment of 1500 sq. yds. land in the Lal Kothi Scheme and that the order passed by the Executing Court for delivery of possession was liable to be ignored in view of the law laid down in Radhey Shyams case and Daulat Mal Jains case.31. At this juncture, we may notice order dated 9.1.2002 passed by the Division Bench of the Rajasthan High Court in D.B. Civil Writ Petition No.5776/2001 (Suo Motu) titled Rajasthan High Court v. State of Rajasthan and others. The preface of that order shows that a learned Single Judge of the High Court had suo motu taken cognizance of three different news items dated 8.12.2001, 10.12.2001 and 11.12.2001 published in the daily newspaper - Rajasthan Patrika, Jaipur edition. The first news item highlighted the grievance of one Lali Devi against the construction of road through her land. The second news item related to regularization of the Lal Kothi Scheme and the third news item related to the alleged irregularities committed in the construction of high rise buildings. When the matter was listed before the Bench, which had the roster to hear such matters, it was felt that the issue raised in the order passed by the learned Single Judge who, in our considered opinion, was not at all justified in suo motu taking cognizance of the newspaper reports and the order made by him could appropriately be termed as coram non judis, directed that the matter be placed before the Division Bench. On behalf of the State Government and the appellant, affidavits were filed to justify the so called policy contained in letter dated 6.12.2001. 15 villagers of village Herver and some residents of Everest Colony, Lal Kothi also appeared before the Division Bench through their advocates. While dealing with the second news item, the Division Bench did take cognizance of the fact that people having connection in the power corridors and those who were economically affluent had illegally taken possession of the acquired land and raised construction, but approved the so called policy decision taken by the State Government to regularize the illegal transfers. The reasons recorded by the Division Bench of the High Court for adopting this course are extractedsecond item with regard to the regularisation of Lal Kothi Scheme is concerned, declaration has been taken as a part of the policy by the Government and there is ample authority o f law to support the contention that such policy decisions cannot be made the subject matter of the judicial review. No doubt in the cases where any policy decision is taken for any reasons which are against the public interest, the judicial review is possible, but in case of this nature, it cannot be said in the facts and circumstances of this case which have been established before us with support of documents Including documentary evidence of contemporaneous nature that public interest has not suffered in any manner by the decision of regu1arisation. To bring an end to a 40 years prolonged agony of litigation without any avail to the State, realising the ground realities that demolition of hundreds of constructed houses of the members of public belonging to middle/lower middle class is a tough task coupled with other considerations which are germane, if the popular (elected) Government has taken a policy decision in tune with the pulse of masses, it is difficult for this Court to say that it is contrary to public interest. Public interest litigation is of-course meant to protect the rights and to take care of the problems of those who cannot take care of themselves in want of awareness of their own rights or to espouse a common cause and in such cases, the cognizance can certainly be taken by the Court even by way of suo-motu action in a given case on the basis of the news item or otherwise, but the public interest is neither an unbridled nor an unruly horse, which can enter any arena in an aimless race. In view of the reply public interest is transparent in the State action and we are satisfied and convinced that had there been a correct and complete disclosure of full facts perhaps the cognizance may not have been taken by the Court suo-motu. Be that as it may, now that the full facts have come on record and we have heard all the parties which are present, we have no hesitation in holding that in the instant case, there is no scope of any judicial review and to sit over the wisdom of the state functionaries and therefore, no interference is warranted by this Court with the decision which has been taken by the Government, as a part of public policy. In larger public interest even if the Government has to pay a little price, it is a small price in deed, which has to be paid, if at all we want the object of a welfare State to prevail. It may also be observed in all fairness to the State that after the suo-motu action had been taken by this Court and the notices had been issued, the Government has shown due regard for Courts cognizance by, staying its own order as it is stated before us that the State Government honoured the pendency of the matter in Court by directing the J.D.A. vide order dated 31st December, 2001 not to act upon the decision dated 6th December, 2001 and not to proceed further with the process of regu1arisation and has directed the J.D.A. to produce all the relevant records before the Court. It is, therefore, clear that the decision as had been taken on 6th December, 2001 had been stayed by the Government itself, showing due regard for the action initiated by the Court. Having heard all the parties, we find that the policy decision hardly warrants any interference by this Court. The Government and all concerned are free to proceed on the basis of the order dated 6th December, 2001 as had been passed by the Government.In our opinion, the High Court had undertaken a wholly unwarranted and unjustified exercise for putting the seal of approval on the so called policy contained in letter dated 6.12.2001 and, that too, by ignoring the law laid down by this Court in Radhey Shyams case and Daulat Mal Jains case. What the High Court has done is to legitimised the transactions, which were declared illegal by this Court and this was clearly impermissible. The High Courts understanding of the so called policy framed by the Government was clearly erroneous. The letter written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur cannot, by any stretch of imagination, be treated as a policy decision taken by the State Government. No document was produced before the High Court and none has been produced before us to show that the recommendations made by the Committee of Ministers had been approved by the State Government culminating in issuance of a policy circular. It is trite to say 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 such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that:President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the saidLikewise, Article 166(3) lays downGovernor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in hisArticle 166 was interpreted in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34  and it wasthe functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article:`166. Conduct of business of the Government of a State. –(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.(3) TheGovernor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in hisdiscretion.Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).It is thus clear that 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 made on behalf of the Government. A reading of letter dated 6.12.2001 shows that it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.34. We are further of the view that even if the instructions contained in letter dated 6.12.2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyams case and Daulat Mal Jains case and was a crude attempt by the concerned political functionaries of the State to legalise what had already been declared illegal by this Court.35. Although, we are prima facie satisfied that execution of lease deeds by the appellant in favour of some persons in 2002 and 2003 is a clear indication of deep rooted malaise in the functioning of the appellant and is also indicative of sheer favouritism and nepotism, we refrain from pronouncing upon the legality of those transactions because the beneficiaries are not parties to these appeals.