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Judgment
D.A. Mehta, J.—This is a petition stated to have been filed under Article 226 of the Constitution of India. By this petition, the petitioners seek to challenge the order dated 24-8-2001 (Annexure-U) passed by the Collector, Rajkot and order dated 15-9-2001 (Annexure-V) passed by the State Government granting the disputed lands (stated to be of the petitioners) in favour of respondent No. 5-Hansadevi Ghanshyamsing Jadeja.
It appears that the father of the petitioners purchased land bearing Survey No. 109 admeasuring 6 Acres and 9 Gunthas and land bearing Survey No. 139 admeasuring 9 Acres and 23 Gunthas situated at village Mota Mava, Taluka Dist. Rajkot. The father of the petitioners was running a sole proprietorship business in the name and style of Mahalaxmi Trading Company since 1959. The said Mahalaxmi Trading Company incurred huge losses and by 1968-69, it had run up large dues towards sales tax. Ultimately, the said concern was closed down. It appears that in 1971-72, the father of the petitioners went to Madras for carrying on another business in Oil-seeds/Groundnut.
On 21-11-1994 the aforesaid lands bearing Survey Nos. 109 and 139 were directed to be vested in the Government for non-payment of sales tax dues by Mahalaxmi Trading Company by virtue of order of Collector, Rajkot passed under the provisions of Rule 129(4) of the Bombay Land Revenue Rules. The petitioners and their father are stated to have returned from Madras in 1980 and upon coming to know about the aforesaid order dated 21-11-1974 moved an application before the Collector, Rajkot on 7-6-1980, followed by various applications expressing their willingness to make necessary payments and seeking regrant of the disputed land which had vested in the Government.
In the meantime, in pursuance of order dated 21-11-1974 necessary mutation entry bearing Entry No. 228 came to be made mutating the lands in favour of the State Government. On 20-2-1991 the said mutation entry was challenged before the Deputy Collector, Rajkot. The appeal filed by the petitioners was rejected by Deputy Collector on 24-4-1991. Being aggrieved, the petitioners approached the Collector on 4-5-1991 but the Collector rejected the appeal on 30-11-1992/3-12-1992. The petitioners preferred Revision Application on 21-1-1993 before the Secretary, Revenue Department. During the pendency of the said Revision Application the petitioners moved another application for regrant of lands on 9-3-1993. The Revision Application came to be rejected on 3-7-1993 by the Secretary, Revenue Department.
It appears that on 14-7-1993 a public circular was issued by the office of the Commissioner of Sales Tax whereunder Amnesty Scheme came to be floated by the Sales Tax Department in relation to arrears of sales tax. It is the say of the petitioners that by letter dated 14-7-1993 the petitioners were also informed about this public circular and in pursuance of the same on 30-8-1993, the Sales Tax Department, Rajkot intimated the outstanding dues to the petitioners. The petitioners, thereupon, made payment of arrears of sales tax on 18-9-1993. It is pertinent to note that the payment was only in relation to sales tax without interest or penalty which formed the total outstanding dues. Thereafter, vide orders dated 31-1-1994 and 14-2-1994, it appears that the sales tax department specified that interest was waived by the department. On 18-2-1994, No Due Certificate came to be issued by the Sales Tax Officer, Rajkot. On 26-4-1994 the Sales Tax Department communicated to the Collector, Rajkot that as Mahalaxmi Trading Company had cleared its outstanding dues in relation to the land which was entered in the name of the State Government. Needful may be done.
Thereafter, it appears that there was correspondence between Collector, Rajkot on the one hand, and the State on the other hand in relation to the disputed lands, viz. as to whether the same could be ordered to be regranted in favour of the petitioners. The details in relation to this correspondence shall be reverted to a little later.
In the meantime, on 13-5-2000 respondent No. 5-Hansadevi Ghanshyamsing Jadeja moved an application seeking grant of some land at Rajkot in lieu of her land situated at Jamnagar which was taken over by the State Government under the Saurashtra Land Reforms Act. The Collector, Rajkot vide communication dated 24-8-2001 expressed an opinion in favour of the disputed land along with other lands being granted in favour of respondent No. 5 - Hansadevi and on 15-9-2001 the State Government passed an order granting the disputed lands along with other lands to respondent No. 5 - Hansadevi. It is the aforesaid order dated 15-9-2001 and the communication dated 24-8-2001 from Collector, Rajkot to the State Government which are challenged in the present petition.
In Para 8(A) the petitioners have made the following prayer seeking two-fold relief :
"8(A) The Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the communication of the Collector, Rajkot, dated the 24th August, 2001 (Annexure-U) and the order passed by the State Government dated the 15th September, 2001 (Annexure V), and be further pleased to direct the State Government and the Collector, Rajkot, to implement the order of the State Government dated the 7th October, 1997, which is at Annexure-S to the petition."
Thus, it can be seen that though the petition is primarily challenging the communication of the Collector, Rajkot dated 24-8-2001 (Annexure-U) and the consequential order of the State Government dated 15-9-2001 (Annexure-V) granting lands in favour of respondent No. 5 - Hansadevi, in the later portion of the prayer clause the petitioners have sought further direction to implement the order of State Government dated 7-10-1997 (Annexure-S). In light of this situation, at the time of hearing a clarification was sought from the petitioners and the learned Advocate Mr. Jal Unwala, appearing on behalf of the petitioners submitted that he is giving up the prayer for relief relating to grant of lands in favour of respondent No. 5-Hansadevi, because in another petition bearing S.C.A. No. 12432 of 2001 filed by said Hansadevi, the learned Advocate for the petitioner Mr. Harin P. Raval has filed an affidavit stating that the said petitioner viz. Hansadevi (respondent No. 5 herein) gives up her claim in relation to the disputed lands viz. land bearing Survey Nos. 109 and 139 situated in village Mota Mava, Taluka - District Rajkot. Therefore, in effect, the present petition is now limited to seeking direction to the State Government to implement order dated 7-10-1997 (Annexure-S).
Mr. Y.N. Oza, learned Senior Counsel appearing with Mr. Unwala on behalf of the petitioners has submitted that the State Government should be directed to return the disputed lands in light of the fact that the said lands had vested in the State Government in lieu of arrears of sales tax, which had subsequently been paid of by the petitioners, and thus the State Government had no right to retain the disputed lands. It was submitted that there was no other reason or basis which would entitle the State Government to retain the disputed lands, and in relation to the very same outstanding dues of sales-tax, it was not open to the State Government to recover the monies under the Amnesty Scheme, and simultaneously, retain the lands. Mr. Oza submitted that the case of the petitioners squarely fell within the terms of the public circular issued by the Sales Tax Department and in light of the same the petitioners had cleared the outstanding dues under the Amnesty Scheme and the Sales Tax Department had waived interest by passing specific orders in this regard. Therefore, according to Mr. Oza the stand adopted on behalf of the State Government was dishonest and the petitioners could not be deprived of their lands. That once the State Government had in principle agreed to regrant lands as per policy in Government Resolution dated 27-9-1979 the course of action adopted by Collector, Rajkot in corresponding with the State Government on the one hand and not returning the lands to the petitioners on the other hand was required to be deprecated. That the Collector, Rajkot was subordinate to the State Government and was bound to implement the decision taken by the State Government.
Ms. S.K. Vishen, learned Advocate appearing on behalf of Mr. K. B. Trivedi, learned Addl. Advocate-General contended that once the lands'' had vested in the State Government, no legal right remained with the petitioners on the basis of which the petitioners could lay their claim to the disputed lands. It was submitted that the Amnesty Scheme of the Sales Tax Department was floated with a particular object viz., recovery of arrears and could not be utilised by a person whose arrears had already been recovered by other mode of recovery viz., attachment of the disputed land and auction thereof. That the Amnesty Scheme could not be taken recourse to for divesting the State Government of the disputed lands. It was also submitted that the petitioners should not be heard on account of delay and latches because even assuming in favour of the petitioners that there was an order made in October, 1997 in favour of the petitioners, till 2001 the petitioners had not taken any steps to seek remedy, and it was only when the State Government passed the impugned order dated 15-9-2001 (Annexure-V) in favour of respondent No. 5 - Hansadevi that the petitioners have approached this Court. It was also submitted on behalf of the respondent-State Government that in fact, there was no order of regrant and Annexure-S dated 7-10-1997 was only an inter-departmental communication. She went on to add that even the date of the communication was disputed by the State Government and as could be seen from the affidavit-in-reply the said communication was addressed only on 9-10-1997 by the State Government to Collector, Rajkot, and therefore, the petitioners, by presenting the said communication as having been dated 7-10-1997, had committed a fraudulent act and no relief should be directed to be granted in favour of the petitioners in the circumstances. Ms. Vishen also referred to communication dated 3-5-1995 issued by the Commissioner of Sales Tax and addressed to Collector, Rajkot, whereunder Commissioner of Sales Tax had in no uncertain terms specified that the subject-matter of the disputed lands did not fall within the ambit of Amnesty Scheme and the lands could not be regranted to the petitioners. Lastly, it was submitted that even so-called communication dated 7-10-1997/9-10-1997 was pending in review before the State Government, and it was only because of the order of this Court dated 15-4-2002 directing maintenance of status quo that the State Government had not been able to undertake and conclude the exercise of review. In nutshell, it was, submitted on behalf of the respondent-State Government that the petitioners were not entitled to claim regrant of the disputed lands on any ground whatsoever and the petition deserved to be rejected.
Mr. P.J. Vyas, learned Advocate appearing on behalf of respondent Nos. 6 and 7 submitted that they had been constrained to move this Court by filing Civil Application No. 3549 of 2002 to be joined as necessary parties in light of the fact that the disputed lands in question did not belong to the petitioners at all because by virtue of a sale-deed dated 3-1-1969, the petitioners had sold the lands in favour of respondent Nos. 6 and 7. It was contended by Mr. Vyas that, in the circumstances, the disputed lands could not have been attached and auctioned by the State in 1974 towards recovery of sales tax dues for the simple reason that the sales tax dues were recoverable from the petitioners and in satisfaction of such dues the property of third party viz. respondent Nos. 6 and 7 could not be attached and sold. That respondent Nos. 6 and 7 have already moved the State Government in this regard by making appropriate representation. That as the said representation is not being decided, respondent Nos. 6 and 7 have moved a separate petition bearing S.C.A. No. 10452 of 2002 which is pending. It was, therefore, submitted by Mr. Vyas that no relief could be granted to the petitioners by way of directing the State Government to regrant the disputed lands in favour of, the petitioners, but as claimed in the independent petition, the State Government was required to be directed to return the, lands to the petitioners of S.C.A. No. 10452 of 2002, or in the alternative, decide upon the representation which is pending before the State Government.
In rejoinder, Mr. Y.N. Oza on behalf of the petitioners submitted that the State Government had not reviewed its order dated 7/9-10-1997 and even if the same was to be reviewed no notice had been issued to the petitioners, and without hearing the petitioners no such review could be undertaken. That it did not lie in mouth of the State Government to state that the public circular regarding Amnesty Scheme did not apply to the petitioners, once the Sales Tax Department having intimated the arrears, the petitioners having paid off the same and the Sales Tax Department having issued a No Due Certificate. It was submitted in this context that the total outstanding dues were Rs. 48,000/-approximately and as could be seen from the affidavit-in-reply, recovery by auctioning the disputed lands had been effected only to the extent of Rs. 18,000/-, and hence, the Sales Tax Department had correctly directed that there were outstanding dues on the date when the Amnesty Scheme came into existence. That in the circumstances, the order dated 7-10-1997 was effective and the State Government should be directed to regrant the disputed lands to the petitioners.
On 16-7-2003 when the matter was heard at length the learned Advocate for the State Government was directed to place on record the Government Resolution dated 27-9-1979 and produce the original file containing notings for perusal of the Court. The aforesaid resolution has been duly produced on record and the file placed for perusal. They have been taken into consideration.
23-7-2003
The case of the petitioners is primarily based on the fact of having made payment of sales tax under the Amnesty Scheme, and hence, according to the petitioners, the disputed lands which were attached and auctioned by the State Government should be regranted to the petitioners, because according to the petitioners, now there are no outstanding dues of sales tax which are required to be satisfied by virtue of other mode of recovery. To appreciate this contention, it is necessary to decide whether the case of the petitioners falls within the Amnesty Scheme laid down in the aforesaid public circular (Annexure-L) dated 14-7-1993. Preamble of the circular states that it is an Amnesty Scheme (Rahat Yojana) in respect of the recovery of dues in connection with transaction of sales tax upto 31-3-1990. Paragraph 1 of the Scheme refers to tax leviable on a trader relating to transactions for period upto 31-3-1985 and such tax should be outstanding, and if such tax is paid by the trader by 30-9-1993, the trader will be entitled to claim exemption from payment of accrued interest as well as penalty which might be leviable. Admittedly, Paragraphs 2, 3, 4, 5 and 6 of the said circular cannot be made applicable in the present case, and this is agreed on behalf of the petitioners. However, reliance was placed on Paragraph 7 which states that in case the trader makes payment of taxes under the Scheme coercive steps for recovery like attachment of Bank Account, moveble or immoveble properties, prosecution, auction proceedings, recovery from third parties or non-issuance of ''C'' Form would be automatically withdrawn by the department. That the said paragraph would also be applicable in cases of payments made through instalments.
However, proceeding on the assumption that the petitioners could claim benefit under the aforesaid public circular, the question that yet survives is as to whether as per terms of circular the petitioners fulfill the conditions stipulated for the applicability of the circular. As seen hereinbefore, Paragraph 1 of the circular specifically requires that outstanding taxes in relation to transactions upto 31-3-1985 have to be paid by trader by 30-9-1993. Can the petitioners claim that there was any outstanding tax due on 14-7-1993 when the scheme came into effect. Merely because the sales tax authorities communicated a figure stated to be outstanding tax and the petitioners made payments in consequence of such communication could it be stated that there was any outstanding due of sales tax which the petitioners were required to discharge. There is no dispute as to the fact that the lands in question were attached by the Revenue Department, auctioned, sale proceeds recovered and transferred to the Sales Tax Department by book adjustment. It is nobody''s case that the aforesaid exercise carried out by the Revenue Department was not in pursuance of communication of recovery by the Sales Tax Department and the entire exercise of attachment and auctioning of the lands was only a mode of recovery of outstanding dues of sales tax. The authority to carry out such exercise and the procedure adopted as prescribed under the Bombay Land Revenue Code, 1879 and the Rules framed thereunder have not been disputed. The say of the petitioners is that for the very same dues there cannot be double recovery : (i) by way of attachment of the property and auction thereof; and, (ii) by way of actual payment in cash through challans. At this juncture, it is necessary to bear in mind that the attachment and the auction took place some time in November, 1974 while the Amnesty Scheme came to be floated for the first time only in July, 1993. Thus, the outstanding dues of the Sales Tax Department stood satisfied in 1974 when the lands were attached and put to auction and the sale proceeds thereof transferred by book entry in favour of the Sales Tax Department. In effect, thus there were no dues outstanding in 1993 when the Amnesty Scheme was floated by the State Government.
During hearing, when this was pointed out, Mr. Oza on behalf of the petitioners, at this juncture raised an interesting contention inviting attention to communication dated 21-9-1994 addressed by Collector, Rajkot to Commissioner, Sales Tax. It was submitted by Mr. Oza that even as per book adjustment only a sum of Rs. 18,960/- had been recovered by the Sales Tax Department, and hence, the balance dues could be stated to be outstanding. This submission sounds attractive at first blush, but does not bear scrutiny. As can be seen from communication dated 30-8-1993 (Annexure-M) the sales tax department has shown outstanding amount to be Rs. 47,065-33 and in fact this is the amount paid by the petitioners by different challans. The said communication dated 30-8-1993 does not state that figure of Rs. 47,065/- is the balance amount due after giving credit for the amount already recovered through attachment and auction of the lands in question. In this regard, communication dated 3-5-1995 from the Sales Tax Commissioner to the Collector, Rajkot requires to be noted. It is stated in the said communication that in case of the petitioners the lands in questions had been auctioned long back and were duly mutated in favour of the Government. Despite that even if the petitioners have made payment of any amount as sales tax and claimed exemption in relation to interest and penalty no question would arise as regards returning of the, lands which was auctioned, to the trader, because Amnesty Scheme did not have any such underlying purpose.
Thus, on a plain reading of the circular dated 14-7-1993 it is apparent that the case of the petitioners does not fall within the terms stipulated in the said circular and the petitioners could not claim to be eligible to seek benefit of the said circular. Even otherwise, once the debt had been discharged, may be partially in monetary terms, the said debt cannot be said to be subsisting after a period of nearly 19 years. It is not even the petitioners'' case that between 1974, when the auction proceedings took place and in 1993, when the Amnesty Scheme was put out, the Sales Tax Department had at any time called upon the petitioners for any outstanding dues. For all intents and purposes, the Sales Tax Department had effected recovery of its tax dues and the debt stood discharged. The contention on behalf of the petitioners may be tested. Could the Sales Tax Department have taken any action against the petitioners in any competent forum for so-called recovery Of its outstanding dues once the lands in question had been attached and auctioned, and auction proceedings credited by book entry in favour of the Sales Tax Department? The simple answer would be ''No''. Considering the period of" limitation also, assuming for the sake of argument that there were any outstanding dues in 1993, bar of limitation would come into play and Sales Tax Department could not have called upon the petitioners to discharge its debt by availing any legal remedy. In the circumstances, this contention does not merit acceptance.
The petitioners having made payment of tax as can be seen from the evidence produced on record, the next question would arise whether under the Amnesty Scheme there is any stipulation of quid pro quo so as to enable the petitioners to seek return/regrant of the lands in question. Paragraph 7 of the Scheme on which reliance was placed specifically refers to proceedings of attachment, auction, prosecution etc. which are admittedly pending on the day of the Scheme. They do not refer to proceedings which have already terminated. In the present case, admittedly attachment/auction proceedings culminated in the recovery of the amount by the Sales Tax Department and no proceedings for recovery could be said to be pending on the day of the Scheme. Thus, even on this count, the Scheme cannot be said to be applicable in case of the petitioners.
Next issue that would arise is as to whether de hors this Scheme the petitioners would be entitled to claim regrant of the lands. The case of the petitioners is founded on the footing that in relation to the very same dues, it is not open to the respondent-State Government to attach the lands and auction the same on one hand for recovery of sales tax dues, and also collect payment under the Amnesty Scheme on the other hand. To this extent, the petitioners are right that for satisfaction of the very same dues the State Government cannot recover the amount twice over in relation to one and the same debt. However, the question that then arises is : whether the petitioners are entitled to regrant of the lands which have already been mutated in favour of the Government? It is pertinent to note that the lands were entered in the Government head upon successful culmination of auction proceedings. The attachment and auction proceedings took place as a mode of recovery of outstanding dues of sales tax. Therefore, the debt stood discharged on the said day. The subsequent payment of tax under the Amnesty Scheme was voluntary payment and accepted as such by the State Government. It is not even the case of the petitioners, that the petitioners were called upon to make payment in satisfaction of any outstanding dues, communication dated 30-8-1993 (Annexure-M) notwithstanding. Therefore, if at all, there has been a double payment in relation to one and the same debt, it is at the behest of the petitioners themselves. The petitioners knew very well that the debt had been discharged when their lands had been attached and auctioned in 1974. The petitioners do not deny this knowledge. If that be so, the petitioners cannot, thereafter, claim that because the petitioners made voluntary payment in 1993 the lands must be returned to the petitioners by the State Government. At the best, the petitioners may be entitled to seek refund of the amount paid in 1993 of their own volition, because the State Government cannot retain funds twice over in satisfaction of one and the same debt. Hence, the contention regarding double payment and return of lands on the said basis does not merit acceptance.
In this connection, it is necessary to take note of the fact that Entry No. 228 whereunder the lands came to be mutated in favour of the State Government were challenged in 1991 before the Deputy Collector, Rajkot. On 24-4-1991 the said appeal was dismissed by Deputy Collector, Rajkot and being aggrieved the petitioners approached the Collector, Rajkot on 4-5-1991. On 30-11-1992/3-12-1992, the Collector dismissed the appeal, and subsequent revision filed before the Secretary, Revenue Department on 21-1-1993 came to be rejected on 3-7-1993. It is also pertinent to note that in the meantime the petitioners had moved Collector, Rajkot by, various applications right from 7-6-1980 to regrant the lands. These applications sought regrant of lands after showing willingness to make necessary payments in, this regard - not tax. Thus, till 3-7-1993 when the Revision Application came to be rejected by the Secretary, Revenue Department, there was no occasion for the petitioners to make claim of regrant of lands on the basis of double payment having been effected for the outstanding sales tax dues. It was a fortituous circumstance that on 14-7-1993 the public circular floating Amnesty Scheme came to be issued by the State Government and the petitioners seized upon the opportunity. As already stated hereinbefore, the claim on the basis of payment made under the Amnesty Scheme cannot carry the case of the petitioners any further.
The petitioners have placed strong reliance on communication dated 7-10-1997 (Annexure-S) in support of the claim of regrant of the lands in question. It is the say of the petitioners that the State Government took conscious decision in October, 1997 and by virtue of communication dated 7-10-1997 the Collector, Rajkot was directed to regrant the lands on the basis of Paragraph 4(d) of Government Resolution dated 27-9-1979 and the petitioners are seeking implementation of this order. The State Government in its affidavit-in-reply dated 11-3-2003 affirmed by Under Secretary, Revenue Department, places reliance on communication dated 3-9-1997 to counter the claim of the petitioners. The case of the State Government is that in effect the Government had taken a decision in August/September, 1997 to reject the claim for regrant of the lands in question and this is reflected by the aforesaid inter-departmental communication addressed from the Under Secretary, Revenue Department, to the Collector, Rajkot. During the course of hearing, attention was invited on behalf of the State Government to Paragraph 6 of the aforesaid affidavit dated 11-3-2003 wherein on the basis of communication dated 3-9-1997, it is averred that the State Government is undertaking review/reconsideration of the communications dated 9-10-1997 and 4-10-1999 in larger public interest. It was contended by Mr. Oza on behalf of the petitioners that the communication dated 7-10-1997 (Annexure-S) was followed by communication dated 4-10-1999 (Annexure-T) wherein the State Government had in no uncertain terms directed Collector, Rajkot to initiate necessary action for regranting the disputed lands to the petitioners. It was submitted with great vehemence by Mr. Oza that in the communication dated 4-10-1999 the Under Secretary had specifically informed the Collector that as the decision of October, 1997 had been arrived at after taking into consideration all relevant factors, there was no occasion to review the same and the said decision had to be implemented.
Ms. Vishen, learned A.G.P. appearing on behalf of the State Government countered this by referring to the two reply-affidavits filed on behalf of the State Government and the Collector and pointed out that in tact there was no communication dated 7-10-1997 (Annexure-S) which the petitioners had presented, but the communication was dated 9-10-1997. The contention that was built on this submission was that the petitioners have relied upon non-existent document, atleast it did not exist on 7-10-1997, and hence, the petitioners could not rely upon the same and claim any relief on the basis of the said document. In this context, it was also submitted that considering the conduct of the petitioners, the petitioners were not entitled to any equitable relief and the petition was required to be rejected on this count alone. At this juncture, Mr. Oza joined issue to contend that regardless of the date of the document what was material and important was the contents of the document and it was not even the case of the respondent-State Government that it had not recorded such a decision, viz. to regrant the lands to the petitioners. It was also submitted by Mr. Oza that it was not necessary for the petitioners to disclose the source of acquisition of the said communication and the Court should only consider as to whether the document in tact existed and if it existed whether the contents thereof were correct. It was in context of the aforesaid submission and counter-submission that the original file had been called for by the Court for perusal.
Upon perusal of the file, it is clear that on 3-9-1997 Under Secretary, Revenue Department addressed a communication to the Collector, Rajkot stati''ng that Government had declined the request of the petitioners to regrant the disputed lands. What is interesting is that even before the said communication dated 3-9-1997 could see light of the day by way of despatch, an application dated 2-9-1997 addressed to the Hon''ble Minister, Department of Revenue was received and notings on the same have, been made by concerned Minister on 4-9-1997 in his own hands to recall the entire file which had in the meantime been returned to the Collector, Rajkot along with communication dated 3-9-1997. It transpires that thereafter there are various notings by different officers in hierarchy and ultimately on 4-10-1997 the concerned Minister has specifically recorded that the lands may be regranted to the petitioners despite earlier communication dated
3-9-1997.
As to what is the efficacy and strength of the notings on the file and their value in relation to the pending dispute has to be decided in context of principles laid down by the Supreme Court of India in case of State of Bihar and Others Vs. Kripalu Shankar and Others, .
"A Government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels. Ultimately getting finality at the hands of the Minister concerned. Till then, conflicting opinions; views and suggestions would have emanated from various officers at the lower level. There should not be any fetter on the fearless and independent expression of opinions by officers on matters coming before them through the files.
xxx xxx xxx
The expression of opinion by the officers in the internal files are for the use of the department and not for outside exposure or for publicity.
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The notings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under review.
XXX XXX XXX
Business of a State is not done by a single officer. It involves a complicated process. In a democratic set-up, it is conducted through the agency of a large number of officers.
"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".
"15. 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).
In the aforesaid decision in case of State of Bihar (supra) the Court finally concludes :
"18. This Court observed in this judgment that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before action is taken by the authority concerned in the name of the Rajpramukh which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities on third parties. It is possible, observed this Court, that after expressing one opinion about a particular matter at a particular stage a Minister or Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the order of the State Government ? It was, held that an opinion becomes a decision of the Government only when it must be communicated to the person concerned and that this is the essence of the matter. We seek support from these observations for our purpose that notings in a notes files, not only of officers but even that of a Minister will not constitute an order to affect others unless it is done in accordance with Articles 166(1) and (2) and communicated to the person concerned."
Applying the aforesaid principles to the facts of the case, it is apparent that right from communication dated 3-9-1997 till the aforesaid communication dated 4-10-1999 there have been various inter-departmental communications and notings on the file. One can also go to the extent of saving that from time to time conflicting tentative decisions were arrived at. However, as stated by the Apex Court there is a distinction between the decision recorded on the file and an order made in accordance with the provisions of Article 166 of the Constitution of India. The reliance by the petitioners on communication dated 7-10-1997 (or 9-10-1997) and communication dated 4-10-1999 does not assist the petitioners inasmuch as there is no order by Government, envisaged by law, which would give rise to corresponding right in favour of the petitioners, to seek implementation thereof. A decision communicated by the Government to the Collector cannot assume form of an order as required by Article 166 of the Constitution of India, and if that be so, it would not be open to the petitioners to rely upon such a decision and seek relief on basis of such decision. In fact, as can be seen from various communications and nothing on the file the Government recorded contrary tentative decisions at different points of time. In contradiction to this tentative decisions one finds that a specific order dated 15-9-2001 in the name of Governor of Gujarat was issued in favour of respondent No. 5 - Hansadevi. However, even that order did not exist for more than a week as can be seen from communication dated 22-9-2001 (Annexure-W) and the said order has also been directed to be kept in suspension, till further orders.
Therefore, in absence of any order, which is valid in law, the petitioners cannot seek compliance of communication. This is apart from the fact that as submitted on behalf of the State Government, the petitioners could not have been officially in possession of the inter-departmental communication. Apart from the absence of an order as required in law under Article 166 of the Constitution of India, none of the documents (communications dated 7/9-10-1997, Annexure ''S'' or dated 4-10-1999, Annexure ''T'') was ever communicated to the petitioner. This is also a necessary requirement so that the petitioner can claim that a right has accrued in his favour. Therefore, in light of this, settled legal position the petitioners cannot successfully assail either the earlier decision dated 3-9-1997 or seek relief on the basis of subsequent communication of October, 1997 and 4-10-1999.
On behalf of the State Government various contentions in relation to conduct of the petitioners were advanced. It is not necessary to enter into detailed discussion in relation to this aspect of the matter. Suffice it to state that there are various circumstances on record which go to show that the petitioners have been able to successfully peruse inter-departmental communications and notings and obtain some of the documents which might prima facie favour the petitioners. This reflects not only on the conduct of the petitioners but also poorly on the respondents. In light of the fact that an inquiry in this regard is initiated against one Shri V.V. Vaza, at the relevant point of time Deputy Collector in the office of Collector, Rajkot, who is also incidentally Power of Attorney Holder of the petitioners and related to the petitioners it is not necessary to dilate any further on this aspect of the matter.
The contention raised on behalf of the State regarding delay in preferring the petition is interlinked with the aforesaid aspects : that there was no valid order in law entitling the petitioner to stake a claim, and that the petitioner was not officially communicated the letters from the State Government to the Collector, Rajkot. The petition does not mention any reason for the delay from October, 1997 upto March, 2002 when the petition came to be filed. During course of hearing, Mr. Oza tried to explain the delay by stating that the cause of action arose only in August/September, 2001, when the disputed lands were granted to respondent No. 5 - Hansadevi. This explanation does not point out in any manner the reason for delay from October 1997 upto August/September, 2001. Hence, on the ground of delay and latches also the petition fails.
To summarise : the petitioners have not been able to establish that the petitioners are entitled to benefit of Amnesty Scheme published on 14-7-1993, both on facts and in law. Before that date, the debt from the petitioners to the Sales Tax Department having been discharged by initiating recovery by mode of attachment and auction, there was no debt outstanding on the date when the Amnesty Scheme came into effect, and hence, the payment made under the Amnesty Scheme would be a payment de hors the Scheme and of own volition of the petitioners, not entitling the petitioners to seek any corresponding benefit under the Scheme. There is no order on the basis of which any corresponding right would accrue in favour of the petitioners enabling the petitioners to seek implementation of the same, as inter-departmental communication cannot take place of an order as envisaged in law. There is no satisfactory/ reasonable explanation for delay. In the circumstances, the petition requires to be rejected.
However, there is one aspect of the matter which requires to be considered. The State Government having effected recovery of its sales tax dues by adopting mode of attachment and auction of the disputed lands, the subsequent payment voluntarily made by the petitioners towards the very same dues cannot be retained by the State Government. Though, the petitioners have not claimed any relief in this regard, it would be just and fair to direct the State Government to return the said amount to the petitioners. Accordingly, the State Government is directed to refund to the petitioners an amount of Rs. 47,066/- paid by the petitioners on 18-9-1993 by way of challan (Annexure-N) upon the petitioners moving an appropriate application in this regard, without raising any dispute as regards limitation. In light of the fact that the petitioners had availed of benefit of exemption from paying interest on sales tax the petitioners would not be entitled to any interest on the aforesaid amount.
The petition stands accordingly rejected. Rule discharged. There shall be no order as to costs.
In light of a separate order passed in Special Civil Application No. 10452 of 2002 today, it is agreed between the parties that it is not necessary to deal with various contentions raised by Mr. P.J. Vyas on behalf of respondent Nos. 6 and 7.
At this stage, a request is made by Mr. Unwala on behalf of the petitioners to continue the order of status quo or stay operation of this order for a period of four weeks from today. In the facts and circumstances, no case is made out for granting aforesaid prayer. Request is rejected.