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1997 Supreme(All) 522
HIGH COURT OF ALLAHABAD
R.A.Sharma, S.K.Verma
RAM JIYAWAN
Versus
STATE OF U P
Decided On : 12 May 1997
C. M. W. P. Nos. 25420 of 1992, 23645 of 1992, 23646 of 1992, 23647 of 1992, 23648 of 1992
V.K.Jaiswal,
Article 166 (1) of the Constitution of India, which requires all executive actions of the State Government to be expressed in the name of the Governor, is not mandatory.
Headnote:
GOVERNMENT LAND LEASE - ARTICLE 166 (1) OF THE CONSTITUTION OF INDIA - GOVERNMENT ORDER NOT EXPRESSED IN THE NAME OF THE GOVERNOR - VALIDITY - PREFERENCE FOR ALLOTMENT OF GOVERNMENT LAND FOR AGRICULTURAL PURPOSES - CONSTITUTIONALITY.
Fact of the Case:
Petitioners, claiming to be in cultivation possession of various plots for the last about 30 years on the basis of the lease executed from time to time in their favor by the Irrigation Department, challenged the Government order dated 10-3-1992, which refused to grant them a lease. They argued that the order was illegal as it was not expressed in the name of the Governor and that the policy contained in the order was arbitrary, unreasonable, and violative of Article 14 of the Constitution.
Finding of the Court:
The court held that Article 166 (1) of the Constitution of India, which requires all executive actions of the State Government to be expressed in the name of the Governor, is not mandatory. The court also held that the Government order dated 10-3-1992, which was a departmental correspondence from the Secretariat to the Chief Engineer, was not required to be formally expressed in the name of the Governor. The court further held that the policy contained in the order, which gave preference for allotment of Government land to landless persons, members of Scheduled Castes and Scheduled Tribes, and those whose land had been acquired, was not arbitrary, unreasonable, or unfair.
Issues: 1. Whether the Government order dated 10-3-1992 was illegal as it was not expressed in the name of the Governor? 2. Whether the policy contained in the Government order dated 10-3-1992 was arbitrary, unreasonable, and violative of Article 14 of the Constitution?
Ratio Decidendi: 1. Article 166 (1) of the Constitution of India is not mandatory and if the Government order has not been formally expressed, it is open to the State to prove before the Court that the order has been passed by the Government. 2. The Government order dated 10-3-1992 was a departmental correspondence from the Secretariat to the Chief Engineer and was not required to be formally expressed in the name of the Governor. 3. The policy contained in the Government order dated 10-3-1992, which gave preference for allotment of Government land to landless persons, members of Scheduled Castes and Scheduled Tribes, and those whose land had been acquired, was not arbitrary, unreasonable, or unfair.
Final Decision: The court dismissed the writ petitions, holding that the Government order dated 10-3-1992 was not illegal and that the policy contained in the order was not arbitrary, unreasonable, or unfair.
All these writ peti tions involve the same controversy and are, therefore, being disposed of by a common judgment. On the request of the learned counsel for the parties writ petition No. 25420 of 1992, (Ram Jiyawan and others v. State of U. P. and others) has been made the leading case, from which the relevant facts, which are necessary for resolving the dispute, will be stated. Learned counsel for the parties have also agreed that counter af fidavit filed in the leading case shall be treated as the counter affidavit in all other cases.
2. In 1913-14 land of various villages including Pratap Pur in the then district Mirzapur was acquired by the Government for construction of Dhanraul Dam. After construction of the Dam vast areas of land remained unused, with the result, Govern ment started letting out the said land on periodical contracts/lease to various per sons for agricultural purpose. Petitioners claim to be in cultivation possession of various plots for the last about 30 years on the basis of the lease executed from time to time in their favour by the Irrigation Department. After the Government order dated 10-3-1992 the Department has refused to give lease to the petitioners. The petitioners, therefore, filed these writ peti tions, praying for quashing of the aforemen tioned Government order dated 10-3-1992. Writ of mandamus, commanding the respondents to grant lease in their favour, has also been claimed.
3. The learned counsel for the petitioners has made two submissions in support of these writ petitions, namely, (i) the Government order dated 10-3-1992, not having been expressed in the name of the Governor, is illegal and, therefore, cannot be acted upon; and (ii) the policy contained in the said Government order is arbitrary, unreasonable and is violative of Article 14 of the Constitution of India.
The learned Standing counsel has disputed the said sub missions and has further contended that even the order dated 29-4-1988 (Annexure I to the Writ Petition), on which the reliance is placed by the petitioners in support of their cases, has also not been expressed in the name of the Governor.
4. Article 166 (1) of the Constitution of India requires that all executive actions of the State Government shall be expressed to be taken in the name of the Governor. Supreme Court in Dattatraya v. State of Bombay AIR 1952 SC 181, has held that Article 116 (1) is not mandatory and if the Government order has not been formally expressed, it is open to the State to prove before the Court that the order has been passed by the Government. It was also laid down that:
"every executive decision need not be for mally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an outsider or is required to be officially notified or to be com municated it should formally be expressed in the form mentioned in Article 166 (1), i. e. , in the name of the Governor. "
It was further held "that Article 166 (1) of the Constitution is confined to cases where the executive action requires to be expressed in the shape of a formal order or notification or any other instrument. " Therefore, departmental and inter departmental correspondence need not be formally expressed.
5. In the instant case, in his letter dated 29-4-1988, the Executive Engineer, Irriga tion Department (Canal), Mirzapur has stated that the Government has laid down the following preferences for allotment of the Government land for agricultural pur poses:
(i) persons whose land has been acquired after 22-2-1967,
(ii) local landless persons especially mem bers of Scheduled Castes and Scheduled Tribes,
(iii) persons, who had already taken the land on lease atleast for five years,
(iv) local defence personnel, and
(v) settlement by auction, if the persons of the aforesaid categories are not available.
The said letter also contains a note in which it has bee
