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PETITIONER: GULABRAO KESHAVRAO PATIL & ORS.

       Vs.

RESPONDENT: STATE OF GUJARAT & ORS.

DATE OF JUDGMENT01/12/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KIRPAL B.N. (J)

CITATION:  1996 SCC  (2)  26        JT 1995 (9)    12  1995 SCALE  (7)121

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Having heard  the counsel  on both  sides and given our anxious consideration  to  the  respective  contentions,  we propose to  dispose  of  the  matter  on  merits.  The  only question is whether the appropriate Government under Section (2) of  Section 5-A  of the  Land Acquisition  Act 1 of 1894 (for short,  ‘the Act’) has decided the objections raised by the claimants for further action under Section 6 of the Act. The Standing  Committee of  the Surat Municipal Corporation, authorised by  its resolution  dated February  27, 1992, the Municipal Commissioner to take appropriate action to acquire the land  in question  for  relieving  parking  and  traffic congestion near  Surat railway  station. On  July 31,  1992, permission was  granted by  the Town  Planning Department to the Corporation  to  acquire  the  land  in  question  under Section 78  of the  Town Planning Act. A declaration in that behalf was  made.  Accordingly  on  October  29,  1992,  the Collector had  published the notification under Section 4(1) of the  Act. It  is stated  in  the  declaration  that  "the District Collector  of Surat  feels that  the lands shown in the attached  list may  be required for the road and parking for the  purpose of  public  at  large  by  Surat  Municipal Corporation".  Thereafter,  notice  under  Section  5-A  was issued and  the appellant had objected to the acquisition in his objections  dated 4.1.1993 and 23.2.1993. Later the Land Acquisition Officer duly conducted the enquiry under Section 5A(1)  and  submitted  the  report  to  the  Government  for appropriate decision in that behalf. Here the dispute arises as to  whether the  decision has  been taken  by  the  State Government to  proceed  with  the  acquisition  or  to  stop further action  in that  behalf. It is seen that the Revenue Department of  the State  Government  to  proceed  with  the acquisition or  to stop further action in that behalf. It is seen that the Revenue Department of the State Government had

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decided, as  reflected in the letter dated 12.7.1993 written by the  Section  Officer  of  the  Revenue  Department  that "taking into  consideration the  objection submitted  by the account holder  and that taking into consideration the legal position and  also the  revenue  circular  dated  20.6.1970, notification  under   Section  6   cannot   be   sanctioned. Therefore, the  Land Acquisition Officer was requested to do the necessary  proceedings  accordingly".  The  Ministry  of Urban Development  did  not  agree  with  the  view  of  the Ministry of  Revenue. Consequentially,  they moved the Chief Minister to  have the  issue re-examined.  However, before a decision was  taken, the  Section  Officer  of  the  Revenue Department communicated its decision to the Land Acquisition Officer to  take further  action as  indicated above.  Since action was  not being  taken in  that behalf, the appellants have approached  the High  Court  for  necessary  directions under Article 226 of the Constitution. By the impugned order dated  7.12.1994,   made  in   Special   Civil   Application No.7890/94, the  High Court has held that the Government had not taken  the decision under sub-section (2) of Section 5-A of the  Act. Therefore, the writ petition was rejected. Thus this appeal by special leave.      Shri Harish  Salve, the  learned senior counsel for the appellant, contended  that in view of the communication sent by the  Section Officer, referred to hereinbefore, read with the affidavit filed by the Additional Chief Secretary of the Revenue Department  which says  that "I say that noting made by me  in the  file that "(I) may be submitted to Government (II) legal  position being  what it  is, it  will  serve  no useful purpose  in discussing  the issue  in formal  meeting with Urban  Development Department (UDD)" is in agreement to the noting  of Shri  Shamji Patel,  the then  Dy. Secretary, Revenue Department  as aforesaid."  The Minister for Revenue had approved  the proposal sent up by the Revenue Department on July  6, 1993  not to  take further  action under Section 4(1). Therefore,  the citizen  is made  to believe  that the Government have  taken a  decision under  its business rules not  to  proceed  with  the  acquisition.  The  High  Court, therefore, was not right in its conclusion that the decision was not taken. The High Court has noted in the judgment that it had perused the note file regarding the decision taken by the Revenue  Minister but  nonetheless concluded  that it is not a  final decision.  When the  matter came up before this Court on  November 2,  1995, this  Court after  hearing  the counsel on  either side  directed the  Government to produce the business  rules  under  which  the  competent  authority required to  take a  decision so  that we can proceed on the legal premise  whether Section  Officer’s letter  founded on legal premise.  Today, the learned counsel has placed before us the business rules.      Shri Salve contended that under Rule 15 of the Business Rules, the  competent authority  to take  the  decision  for acquisition of  the land  is the  Department of Revenue. The decision having  been taken  by the  Revenue Department  and having been  taken by the Revenue Department and having been communicated, as  referred to  earlier,  there  is  a  final decision taken  by the  Government under  its Business Rules and that,  therefore, no  further  action  could  be  taken, pursuant to  notification under  Section 4(1) of the Act. On the other  hand, Shri  Poti, the  learned senior counsel for the  Government,   contended  that   the  Urban  Development Department had  taken decision  that the land needed for the above public  purpose  and  acquisition  is  necessary.  The decision taken by the Revenue Department not to proceed with the acquisition  is not  final. Due to conflict of decisions

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between the  two departments  of the  Government, the matter required to  be referred  to the  Chief  Minister.  The  Law Ministry has advised that the view of the Revenue Department does not  bind the  Chief Minister.  The matter required the consideration by the Cabinet in this behalf which has yet to take the  decision. Therefore, there is no decision taken by the Government.  Shri D.P.  Gupta, learned Solicitor General for Corporation,  supported the  contention of  Shri Poti in this  behalf.   The  question,  therefore,  is  whether  the Government of  Gujarat has  taken decision on the objections raised by the appellants for the acquisition of the lands in question.      In R.K.  Jain vs.  Union of India [(1993) 4 SCC 119) at page 147,  this Court held that the Cabinet known as Council of Ministers  is the  driving and  steering body responsible for the  governance of  the country.  The executive function comprises of  both, the  determination of the policy as well as carrying  it into  execution. The  administration of  the affairs of  the State  including all trading activities, the acquisition, holding and disposal of property and the making of contracts  for any  purpose. The  primary function of the Cabinet is  to formulate  the policies  of the Government in conformity with the directive principles of the Constitution for the  governance of  the nation.  Have it accepted by the legislature and carry the executive function of the State as per  the   Constitution  and  the  laws.  The  Cabinet  bear collective responsibility.  At page  148 in paragraph 33, it was  further   held  that   the  Cabinet,  as  a  whole,  is collectively responsible  for the  advice  tendered  to  the President  and   for  the   conduct  of   business  of  each department. In  S.R. Bommai & Ors. vs. Union of India & Ors. [(1994) 3  SCC 11  in paragraph  226 at page 192-193, it was held  that   the  Council   of  Ministers  are  collectively responsible to the Parliament and accountable to the people.      Under Article  163, the  Council of  Ministers with the Chief Minister at the head is to aid and advice the Governor in the  exercise of his functions, except in so far as he is by or  under  the  Constitution  required  to  exercise  his functions or  any of  them  in  his  discretion.  The  Chief Minister should  be appointed  by the Governor and the other Ministers are  appointed on  his advice by the Governor. The Council of Ministers under Article 164 shall be collectively responsible to  the Legislative Assembly of the State. Under Article 167,  the Chief  Minister shall  hold  the  duty  to communicate to  the Governor all decisions of the Council of Ministers relating  to the  administration of the affairs of the State and proposals for legislation etc. It would, thus, be  clear   that  the  Chief  Minister  holds  the  ultimate responsibility to the Governor and accountable to the people of the  State for  the good governance of the State with the assistance of  his Council of Ministers. The executive power of the  State is carried on by the Governor with the aid and advice of the Council of Ministers, Chief Minister being the head. In  other words, the Cabinet transacts the business of the State and it is discharged by its Chief Minister to whom business of  the State  on specified  subjects are allocated for  convenient   transaction  of   the  business   of   the Government.      Article 166(1) and (2) of the Constitution state thus:      "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

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    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  of   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." In other  words, Article  166(1) and  (2) expressly envisage authentication of  all the  executive actions  and shall  be expressed to  be taken in the name of the Governor and shall be authenticated  in such manner specified in the rules made by the  Governor. Under  Article  166(3),  the  Governor  is authorised  to  make  the  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 in so  far as  it is  not business with respect to which the Governor is  by or under the Constitution required to act in his discretion.  In other  words, except  in cases  when the Government  in   his  individual  discretion  exercises  his constitutional  functions,   the  other   business  of   the Government required to be conveniently transacted as per the Business Rules  made by  Article 166(3) of the Constitution. If the  action of  the Government  and  the  order  is  duly authenticated as  per Article  166(2) and  the Business Rule 12, it  is conclusive  and irrebuttable  presumption  arises that decision  was duly taken according to Rules. The letter of the Section Officer is not in conformity with Rule 12 and Article 166(1)  and (2),  though under  rule 13 he is one of the authorised  officer to  communicate the  decision of the Government. In  Major E.G.  Barsay vs.  State of Bombay [AIR 1961 SC 1762], This Court held that If an order is issued in the name  of the  President and is duly authenticated in the manner prescribed in Article 77(2), there is an irrebuttable presumption that the order is made by the President. Whereby the order  does not  comply with  the provisions  of Article 77(2), it  is open  to the party to question the validity of the order on the ground that it was not an order made by the President and  to prove  that it was not made by the Central Government. Where  the evidence  establishes  that  the  Dy. Secretary on behalf of the Central Government made the order a delegate, the order cannot be questioned. Therefore, it is necessary to  show whether  decision of  the  Government  is according to Business Rules.      Rule 15 of the Business rules provides that these rules may, to  such extent as may be necessary, be supplemented by instructions to  be issued  by the Governor on the advice of the Chief  Minister. Under  the Business  Rules 33  subjects were allotted  to the  Revenue Department  of which  item 15 relates to  acquisition of  property,  principles  on  which compensation for  property acquired  for the  purpose of the State or  for any  other public purposes is to be determined and the  form and manner in which such compensation is to be ‘given’;  acquisition  of  Immovable  property  for  defence purpose etc.      The Urban Development and Urban Housing Department gets allotted 18  items of  which item  8  contemplates  of  Town Planning  Scheme   and  9  contemplates  Town  Planning  and Valuation Department.  It would  thus be  seen that  the two departments are  entitled to deal with the lands acquisition and valuation  thereof. Urban  Planning Scheme  in the urban area was  allotted to  the Urban  Development Department and Urban Development  and Urban Housing Department and the land acquisition, though  part of  the Town  Planning Scheme, was

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equally an  allotted subject to the Revenue Department under the subject referred to hereinbefore.      It is seen from the note file that when the proceedings have gone before the Secretary to the Revenue Department, by his note dated July 3, 1993 he stated thus:      "(1) May be submitted to Government.      (2) Legal  position being what it is, it      would  serve   no  useful   purpose   in      discussing  the   issue  in  a  survival      meeting with U.D.D."      It would  appear that  initially in the note dated July 2, 1993,  there was  suggestion to  refer the  matter to the Urban Development Department but later it was struck off and the above  endorsement came  to be  made. On that basis, the Minister for Revenue had approved the suggestion made by the Secretary on  July 6, 1993. It is also clear from the record placed before us that the Urban Development Department after finding that  the Revenue  Department is not proceeding with the acquisition  had taken  a decision to approach the Chief Minister who,  on receipt  thereof, sought legal opinion and the  Law   Department  opined   that  the  view  of  Revenue Department does  not bind  the Chief  Minister. The question then is who would take the decision in that behalf. It would be appropriate  to deal with the instructions issued in this behalf.      Instruction 4 in Part II says that:      "4(1)     Except as  otherwise  provided      in  these   Instructions   cases   shall      ordinarily be  disposed of  by or  under      the authority of the Minister-in-charge,      who may,  by means  of standing  orders,      give such  directions as  he thinks  fit      for  the   disposal  of   cases  in  the      Department."      Instructions 9 and 10 says that:      "(9) When the subject of a case concerns      more than  one Department no order shall      be issued  nor shall  the case  be  laid      before the  Council or the Cabinet until      it  has   been  considered  by  all  the      Departments concerned unless the case is      one of extreme urgency.      (10) If the Department concerned are not      in agreement regarding a case dealt with      under instruction  9,  the  Minister-in-      charge of  the  Department  may,  if  he      wishes to  proceed with the case, direct      that the  case be submitted to the Chief      Minister for  orders for laying the case      before the Council or the Cabinet."      The instructions are integral part of the scheme of the Business Rules  and have constitutional flavour and force to supplement the  rules. It would thus be seen that though the Minister-in-charge of  the subject  is empowered to have the subject disposed  of in the manner laid down in the Business Rules and  when two  Ministers are not in agreement with the manner of  the disposal  of a matter or decision, then under instruction 10  the concerned subject should be submitted to the Chief Minister for laying the same before the Council or the Cabinet.      The  responsibility   of  Council  of  Ministers  under Article 164  [2] of  the Constitution embodies the political responsibility of the Ministry headed by the Chief Minister. Collective responsibility makes each Minister responsible to the Legislature for the acts of himself and other members of

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the Council  of Ministers.  Since the  Council of  Ministers would stay  in office as long as it commands the majority of the Legislative  Assembly, it  The Council  of Ministers  is politically responsible  as one entity. In case it loses its confidence the  Ministry as  a whole  is required to resign. The responsibility to the Governor and accountability to the people collectively  by the  Council of Ministers is through and by  the Chief  Minister. It  would, therefore,  be clear that the  decision of a Minister under the Business Rules is not final  or conclusive  until the requirements in terms of clauses [1] and [2] of Article 166 are complied with. Before the action  or the  decision is expressed in the name of the Governor in  the manner  prescribed under the Business Rules and communicated  to the  party concerned it would always be open by necessary implication, to the Chief Minister to send for the  file and  have it examined by himself and to take a decision, though  the subject  was allotted  to a particular Minister for  convenient transaction  of the business of the Government. The  subject, though exclusively allotted to the Minister, by  reason of  the  responsibility  of  the  Chief Minister to  the Governor  and accountability to the people, has implied  power to  call  for  the  file  relating  to  a decision taken by a Minister. The object of allotment of the subject to  a Minister  is for the convenient transaction of the business  at various levels through designated officers. The ultimate  object is  to secure  an impartial,  pure  and efficient administration  as propounded  by Dr.  Ambedkar in the Constituent  Assembly vide Constituent Assembly Debates, Vol. VIII page 546.      In Bachhittar  Singh v.  The State  of  Punjab  [(1962) Supp. 3  SCR 713]  a Constitution Bench of this Court was to consider whether the order of the Revenue Minister could not be reviewed  and set  aside by  the Chief  Minister. In that context it  was held that the order must be expressed in the name of  the Governor  as required  by clause [1] of Article 166 and  then it has to be communicated. Until such an order is drawn  up by  the State  Government  in  accordance  with Article 166  [1], the State Government cannot be regarded as bound by  what was stated in the file. The business of State is a  complicated one  and has  necessarily to  be conducted through  the   agency  of  large  number  of  officials  and authorities. The  action must  be  taken  by  the  authority concerned in the name of the Raj Pramukh. The Minister is no more than  an advisor  and as head of the State the Governor or the Raj Pramukh has to act with the aid and advice of the Council of  Ministers. Until  the advice  is accepted by the Governor, whatever  the Minister or the Council of Ministers may say  with regard to a particular matter, does not become the action  of the  State until the advice of the Council of Ministers is  accepted by the head of the State. Until order is drawn  up in  the manner indicated by Article 166 [1] and communicated to  the person  who would  be affected  by  the order it  would be  open to  the  Council  of  Ministers  to consider the matter over and over again and, therefore, till its communication,  the order cannot be regarded as anything more than  provisional in  character. Even  if the rule does not contemplate that the Chief Minister would be entitled to pass an  order but  when  the  rule  envisages  that  he  is entitled to call for the file for issue of order, it clearly implies that  he has  the right  to interfere  and make such order as  he may  deem appropriate.  The Chief  Minister may call any  file and deal with it himself. The order passed by the Chief  Minister even though it is a matter pertaining to the portfolio  of the  Revenue Minister will be deemed to be an order  of Council  of Ministers.  So deemed, its contents

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would be  the Chief  Minister’s advice  to the  Governor for which  the   Council  of  Ministers  would  be  collectively responsible. This  view was  reiterated by a larger Bench of seven Judges of this Court in State of Karnataka v. Union of India &  Anr. [AIR  1978 SC  68]. In paragraph 46 this Court held that the object of collective responsibility is to make the  whole   body  of  persons  holding  ministerial  office collectively  or   if  one   may  so   put  it,  vicariously responsible for  such acts  or the other as are referable to their collective  volition so that even if an individual may not be  responsible for  it he  will be  deemed to share the responsibility with  those who  may have  actually committed the wrongful  act. In  paragraph 48  the Court observed that responsibility to  Parliament only  means that  the Minister may be  compelled by  convention  to  resign.  Out  of  this responsibility   arose    the   principle    of   collective responsibility. The  Government has  to be  carried on  as a unity rather  than by  a number of advisers of the Sovereign acting separately.      In Kedar  Nath Bahl v. State of Punjab & Ors. [AIR 1979 SC 220]  a Bench of three Judges held that expression of the order in the name of the Governor as required by Article 166 of the  Constitution and  communication thereof to the party affected thereby  are conditions  precedent for the order to bind the Government. It that case the order though initially was made  by the  Minister, the  order of  confirmation  was cancelled by  the Chief Minister before it was communicated. This Court upheld the order to be legal.      The same  view was  reiterated in State of Kerala v. A. Lakshmikutty &  Ors. [AIR  1987 SC  331]. It  would thus  be clear that before an order or action can bind the Government it must be drawn in the name of the Governor as envisaged in Article 166  [1] and  [2] read  with the  Business Rules and must be communicated to the affected person. Until then, the action of  the Government  is not  final. Before  it is duly done, Chief  Minister has  power to  call for  any file  and would have it re-examined and decision taken.      It would  thus be seen that the decision of the Revenue Minister on  July 6,  1973 is  not final  because the  Urban Development Department  did  not  accept  or  agree  to  the decision taken  by  the  Minister  for  Revenue.  As  stated earlier, when  the matter  was brought  by the  Ministry  of Urban Development  and Housing  Department to  the notice of the Chief  Minister, who  holds ultimate  responsibility and duty to  report to  the  Governor  and  accountable  to  the people, the  Chief Minister,  in light  of  instruction  10, should place  the decision necessarily before the Council or the Cabinet,  as the case may be, and then may be decided by the Chief  Minister. It  is seen  that no  decision has been taken by the Chief Minister under instruction 10. Therefore, under Section  5-A(2), no  decision  was  taken  to  proceed further  under   Section  6   or  to  drop  the  acquisition proceedings.  The   High  Court,  therefore,  was  right  in rejecting  the   writ  petition  as  being  not  proper  for interference.      The appeal is accordingly dismissed. No costs.