Letters Patent Appeal No. 490 of 2013 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.490 of 2013 ====================================================== 1. Kaushal Kishore Singh Son Of Late Rama Nand Singh Resident Of Vill.- Gandhi Maidan, P.S.- Siwan Town, District- Siwan 2. Jitendra Tiwary Son Of Late Gautam Tiwary Resident Of Village- Akopur, P.S.- Siwan Mufasil, District- Siwan 3. Dharmdeo Singh Son Of Late Rampujan Singh Resident Of Village- Bajrahiya, P.S.- Gautam Budh Nagar, District- Siwan 4. Prabhu Singh Son Of Late Ram Pujan Singh Resident Of Village- Bajrahiya, P.S.- Gautam Budh Nagar, District- Siwan 5. Suresh Kumar Prasad Son Of Gulab Chand Prasad Resident Of Village- Mahadeo, P.S. Mufasil, District- Siwan 6. Amit Kumar Gautam Son Of Late Kameshwar Kumar Sinha Resident Of Vill.- Gandhi Maidan, P.S.- Siwan Town, District- Siwan Versus .... .... Appellant/s 1. The State Of Bihar 2. The District Magistrate, Siwan 3. The Additional Collector, Siwan 4. The Senior Deputy Collector Incharge Establishment, Siwan 5. The District Development Commissioner Siwan Dist.- Siwan 6. The Sub Divisional Officer, Siwan .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shailesh Kumar Sharma, Adv. For the State : Mr. Rishi Raj Sinha, Adv. Mr. Rakesh Prabhat, Adv. Mr. Archana Prasad, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 5 03-10-2013 I.A. No. 2808 of 2013 has been filed to condone the delay of 62 days in filing of the Appeal. We have considered the submissions on behalf of the parties and the explanation for the delay. The I.A. application is allowed and we take up the Appeal for disposal on merits. The present Appeal arises from order dated 2 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 2 / 9 30.10.2012 dismissing C.W.J.C. No. 20137 of 2012. It was held that in absence of any settlement order for the shops in favour of the Appellants, the impugned order dated 4.9.2010/9.10.2012 holding that they could also participate in the fresh auction required no interference.
Legal Reasoning
notings that pursuant to the order of this Court in C.W.J.C. No. 12512 of 1996, the respondents had made up their mind to settle the shops with the Appellants on terms and conditions as determined by them. At no time have the 4 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 4 / 9 Appellants objected to those terms and conditions. Counsel for the State supported the order of the District Magistrate submitting that it does not shut out the Appellants from consideration. The State authorities have the right to make the settlement at the best rates available so that the revenue does not suffer. The Appellants have no legal right to demand settlement of the shops with them. They have illegally occupied the newly constructed shops without any formal orders for settlement. On the earlier occasion we had noticed from the impugned order dated 4.9.2012/9.10.2012 that funds were sanctioned for construction of a library. The shops were constructed from the State funds. We had required the respondents to explain how funds meant for construction of the library were diverted for construction of shops. The counter affidavit filed on behalf of the respondent no. 2 on this aspect shall be considered by us later at the conclusion of the order. The undisputed facts of the case, to our satisfaction from the materials on record, are that the Appellants were running kiosk on the roadside. The fact that the Zila Parishad, Siwan may have been taking toll/revenue for these unauthorized kiosks cannot amount to an approval by us of the conduct of the Zila Parishad for 5 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 5 / 9 creating any right in favour of the Appellants. The Kiosk by the roadside was removed as an encroachment. The question for our consideration in this Appeal is the legal right of the Appellants to demand rehabilitation in the shops constructed in the library premises. The order of the District Magistrate holds that there was never any formal authorization to the Appellants to occupy the newly constructed shop premises holding that they had unlawfully and unauthorizedly encroached and occupied the new shops. No material has been placed before us of any written authorization to the Appellants permitting them to occupy the newly constructed shop pending consideration of their requests for rehabilitation in them. In absence of any formal order issued by the respondents permitting the Appellants to occupy the newly constructed shop premises pending consideration of settlement with them, we find it difficult to hold that the Appellants were justified in occupying the newly constructed shops merely because a proposal in pursuance of an observation given by the Court was pending before the respondents for settlement with them. The law stands well settled that file notings do not constitute a cause of action much less vests any right in the concerned. Notings in the file are but a part of the decision making process 6 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 6 / 9 which may ultimately culminate either ways. In (2009) 1 SCC 180 (Sethi Auto Service Station Vs. Delhi Development Authority) the effect of a file noting was considered and it was observed at Paragraphs 14 and 15 as follows:- the final order “14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it final decision-making reaches authority in the department, gets his approval and is the communicated to the person concerned. 15. In Bachhittar Singh v. State of Punjab, a Constitution Bench of this Court had the occasion to consider the effect of an order passed by a Minister on a file, which order was not communicated to the person concerned. Referring the Constitution, the Court held that order of the Minister could not amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said article and was then communicated to the party concerned. The Court observed that business of State is a complicated one and has necessarily to be conducted through the agency of a and of large authorities. Before an 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 to Article 166(1) of number officials 7 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 7 / 9 rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one opinion about a particular matter at a particular stage a Minister or the 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 opinion becomes a decision of the Government only when it is communicated to the person concerned.” We therefore hold that the Appellants are in unauthorized occupation of the new shops for which there was no formal allotment order in their favour. We must consider the allegation of discrimination urged on behalf of the Appellants with regard to others having been given settlement as a measure of rehabilitation. The public notice relied upon on behalf of the Appellants and on basis of which it was submitted that directions to consider were given in C.W.J.C. No. 12512 of 1996 provides for preference to be given to those who had been removed from their earlier place of business. No details have been furnished, much less any names given, with regard to any settlement made in favour of a person similarly situated at preferential rates different from that made in favour of a fresh allottee. In absence of such material, we find it difficult to hold discrimination as alleged by the Appellants. While affirming the order of the District 8 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 8 / 9 Magistrate, we do consider it proper to observe that if the Appellants participate in the open bid and the offer made by them is at par with others, under the public notification issued by the respondents, preference has to be given to the Appellants in settlement. That brings us to the question with regard to diversion of funds meant for the library utilized for construction of shops. From the counter affidavit we find that on 5.5.1988, the estimate for construction of the library was granted administrative approval. It was mentioned that release of funds shall be in accordance with the Financial Rules. The file notings of the District Magistrate dated 10.1.1996 opined construction of shops to be an integral part of the approval. The District Magistrate was the President of the Managing Committee. From the materials placed before us prima facie it appears to be a case for diversion of funds by unauthorized use for construction of shops, violating financial rules. We therefore direct that the Principal Secretary, Department of Finance, Government of Bihar shall hold an enquiry himself and fix responsibility upon the concerned whosoever it may be, in his administrative domain. vacated. The interim order dated 31.7.2013 stands 9 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 9 / 9 With the aforesaid observations and
Arguments
Learned counsel for the Appellants submits that they were not encroachers by the roadside but had been permitted to put up kiosks by the Zila Parishad, Siwan on payment of requisite amount ever since 1991. In an anti encroachment drive when they were removed, the question came up for their rehabilitation in fresh premises on 17.8.1996. The S.D.O. wrote to the District Magistrate that the Appellants have been running their kiosk by the roadside for livelihood. It had become necessary to remove the encroachments, and from the human point of view the newly constructed shops in the library premises be considered for allotment to them. This had been the past practice also. C.W.J.C. No. 12512 of 1996 was filed by the petitioners. Directions were given to consider their requests on the aforesaid recommendation and also a public notice issued with regard to certain others who were also removed during the anti encroachment drive. Referring to several file notings of 28.8.1997, 5.9.1999 and 28.8.1999, it was submitted that the authorities were of the confirmed opinion that the Appellants were to be rehabilitated in the 3 Patna High Court LPA No.490 of 2013 (5) dt.03-10-2013 3 / 9 newly constructed shop premises of the library at rates determined by them. Not only did not respondents not abide by the direction in C.W.J.C. No. 12512 of 1996 but also did not implement their own decision as contained in the file noting for allotment to the Appellants. Others similarly situated have been given preferential settlement while the Appellants are being discriminated. C.W.J.C. No. 9519 of 2010 was filed afresh, when liberty was granted to approach the District Magistrate in a fresh representation leading to the impugned order. Once the respondents had taken a decision to rehabilitate the Appellants in the newly shop premises, the question of asking them to participate in a fresh auction settlement does not arise. The order of the District Magistrate is further bad when it holds that they are rank encroachers in the shop. It has already been demonstrated that their occupation was lawfully recognized by the authorities and proposed settlement recommended in their favour. Learned counsel for the Appellants strenuously sought to persuade us from the several file
Decision
directions, the Appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) P. Kumar/-