Ram Jiyawan and Ors.,etc. vs State of U.P.& Ors.,etc.

R.A. Sharma, J.—All these writ petitions 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 affidavit filed in the leading case shall be treated as the counter affidavit in all other cases.

In 191314 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, Government started letting out the said land on periodical contracts/lease to various persons 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 1031992 the Department has refused to give lease to the petitioners. The petitioners, therefore, filed these writ petitions, praying for quashing of the aforementioned Government order dated 1031992. Writ of mandamus, commanding the respondents to grant lease in their favour, has also been claimed.

The learned counsel for the petitioners has made two submissions in support of these writ petitions, namely, (i) the Government order dated 1031992, 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 submissions and has further contended that even the order dated 2941988 (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.

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 formally 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 communicated 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 interdepartmental correspondence need not be formally expressed.

In the instant case, in his letter dated 2941988, 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 purposes:

(i) persons whose land has been acquired after 2221967,

(ii) local landless persons especially members 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 been mentioned that persons, who are in possession of the land from a date prior to July 22, 1967 or who are holding the lease of the land prior to the said date will be given the first preference, if they have not violated the terms and conditions of the lease. By letter/order dated 1031992 issued by the Joint Secretary, Government of U.P. to the Chief Engineer, Irrigation Department, it has been directed that the lease shall not be granted to a person or family repeatedly. It has further been directed that no lease shall be granted to any person or family, who has been granted the lease for five years continuously. In view of the said letter dated 1031992 the petitioners have not been granted any lease. This letter has been signed by the Joint Secretary, Government of U.P. and it contains a recital to the effect that he has been directed to say as mentioned above. It is a departmental correspondence from the Secretariat to the Chief Engineer. It is not addressed to any outsider. Such a letter is not required to be formally expressed in the name of the Governor. That apart, the Government in its counter affidavit has also stated that the said letter is a Government order. It may further be mentioned that even the letter dated 2941988 on which the petitioners rely is also not formally expressed. For the reasons given above the first contention of the learned counsel for the petitioners is rejected.

The second contention also deserves the same fate. The land for construction of Dam was acquired in 191314 and it was being allotted from time to time by the Irrigation Department to various persons. According to the letter daled 2941988 (Annexure I to the writ petition) of the Executive Engineer, Irrigation Department, the Government laid down the preference for allotment of such land vide letter dated 2781971, according to which first preference was to be given to those, who are in occupation of the land from the date prior to 2271967. In view of the said preference the object of the Government to give the land to landless persons especially members of Scheduled Castes and Scheduled Tribes was frustrated. From the letter daled 1031992, it also appears that the persons, who are in continuous possession of the land for several years have made unauthorised construction over the land. The Government, therefore, changed the order of preference in the matter of allotment of the Government land, so far as the old allottees/occupants are concerned, on account of which the Government land is liable to be allotted to landless persons, members of Scheduled Castes and Scheduled Tribes and the persons whose land has been acquired. Giving the Government land on lease to landless persons, members of Scheduled Castes and Scheduled Tribes and those whose land has been acquired cannot be said to be arbitrary, unreasonable or unfair. In fact such a policy sub serves the constitutional goal as contained in Article 39 of the Constitution of India. No exception can be taken to such an order.

These writ petitions are accordingly dismissed. In view of the facts and circumstances of the case, there shall be no order as to costs. Petitions dismissed