there had been some dispute between one Shri Raj Kumar Bansal and his wife Smt. Urvashi Bansal. The writ petitioner Shri Purshottam Ramnani being a family

                                                                 REPORTABLE


             IN THE SUPREME COURT OF INDIA


          CRIMINAL APPELLATE JURISDICTION


       CRIMINAL APPEAL NOS. 1585-1586   OF 2011

       (Arising out of SLP(Crl.) Nos. 5998-5999 of 2008)




Ram Mehar Singh                                                     ...  Appellant


                                      Vs.


State of N.C.T. of Delhi & Ors.                                  ...  Respondents


                                  With


       CRIMINAL APPEAL NOS.  1587-1588  OF 2011

       (Arising out of SLP(Crl.) Nos. 6719-6720 of 2008)




                              J U D G M E N T





Dr. B.S. CHAUHAN, J.




1.     Leave granted in all the cases.




2.     The criminal appeals arising out of S.L.P.(Crl.) Nos.5998-5999


of 2008 have been filed against the common judgment and order dated


28.5.2008  passed by the High Court of Delhi in L.P.A. Nos. 286/2008


and   289/2008.   Though   the   matters   had   arisen   before   the   Division


Bench from different judgments of the Single Judge Bench, however,


the   same   had   been   heard   together   and   disposed   of   by   the   impugned


judgment   and   in   all   these   cases,   the   Division   Bench   dismissed   the


appeals   filed   by   the   State   of   N.C.T.   of   Delhi,   respondents   herein,


against the judgments of the learned Single Judge dated 28.2.2008 in


W.P. (Crl.) No. 1392 of 2007 and 25.2.2008 passed in W.P. (Crl.) No.


2448 of 2006, wherein it has been alleged by the writ petitioners that


the police authorities had misused their powers while resorting to the


provisions   of   Sections   107/151   of   the   Code   of   Criminal   Procedure,


1973 (hereinafter called Cr.P.C.) and violated their fundamental rights.


A   learned   Single   Judge   had   quashed   the   criminal   proceedings   under


Sections 107/151 Cr.P.C.; awarded  a token compensation  and further


directed the Central Bureau of Investigation (hereinafter called CBI) to


investigate   the   cases   against   the   police   officials   who   had   allegedly


misused their powers, and directed the police administration to initiate


proceedings  against such officials.




3.     Facts and circumstances giving rise to Criminal Appeals arising


out of SLP (Crl.) Nos. 5998-5999 of 2008 are that there had been some


dispute between one Shri Raj Kumar Bansal and his wife Smt. Urvashi


Bansal.   The writ petitioner Shri Purshottam Ramnani being a family




                                                                                   2


friend helped Smt. Urvashi Bansal financially by giving a huge amount


of loan and as the same was not returned, dispute arose between them


regarding the immovable properties. On the complaint of Smt. Urvashi


Bansal, the proceedings under Sections 107/151 Cr.P.C. were initiated


against the writ petitioner and in that respect he was produced before


the   Special   Executive   Magistrate,   Jahangir   Puri,   Delhi   (hereinafter


called   the   Magistrate)   on   25.8.2007,   wherein   he   was   released   on


furnishing   personal   bond.   The   said   Shri   Purshottam   Ramnani   filed


W.P.(Crl.) No. 1392 of 2007 on 31.10.2007 alleging that in case there


was some dispute regarding the immovable property, the police could


not resort to the provisions of Sections 107/151 Cr.P.C.,  and since he


had   been   detained   in   jail   for   one   day,   there   was   violation   of   his


fundamental rights, therefore, he should be awarded compensation and


erring police officials be punished.




4.     The   writ   petition   was   heard   and   disposed   of   by   the   learned


Single   Judge   vide   judgment   and   order   dated   28.2.2008   granting   all


reliefs sought by the writ petitioner to the effect that proceedings under


Sections   107/151   Cr.P.C.   were   quashed.   The   court   held   that   the   writ


petitioner   was   illegally   detained   by   invoking   provisions   of   Sections


107/151 Cr.P.C. and the provisions of Section 145 Cr.P.C. could have




                                                                                      3


been   invoked;     a   sum   of     Rs.50,000/-   was   awarded   as   token


compensation.  The court further gave liberty to the said writ petitioner


to file suits for damages for tortuous liability against the erring police


officials   and   also   for   recovery   of   possession   of   the   immovable


property.




5.        Being aggrieved,      the State  of NCT of Delhi preferred  L.P.A.


No.286   of   2008   and   the   same   was   dismissed   by   the   impugned


judgment and order dated 28.5.2008.




6.        The present appellant was SHO of the police station concerned at


the relevant time.  Admittedly, in the writ petition he was not a party by


name,   nor   any   notice   had   ever   been   issued   to   him   and   he   had   no


opportunity to defend himself. Even before the Division Bench in the


L.P.A. filed by the State he was not impleaded as a party.   Thus, the


relevant   submission   on   his   behalf   is   that   certain   observations   and


directions   have   been   made   against   him   though   he   had   never   been


heard.




7.        Submission   on behalf   of  the learned   counsel  for  the contesting


respondents has been that not giving an opportunity of hearing to the


present appellant either before  the learned Single Judge or the Division




                                                                                     4


Bench remains immaterial,  for the reason, that he would be heard by


the   concerned   authorities   during   the   disciplinary   proceedings   to   be


initiated   in   pursuance   of   the   impugned   judgments   and   orders.


However, there is no denial by him of the fact that the present appellant


had   neither   been   made   a   party   by   name   nor   he   had   been   given   any


notice   of   the   proceedings   and   thus,   he   had   no   opportunity   of   being


heard.   The judgments of the courts below are based on the premises


that instead of resorting to the provisions of Sections 107/151 Cr.P.C.


the provisions of Section 145 Cr.P.C. could have been invoked in the


present situation.




8.     In Criminal Appeals arising out of SLP (Crl.) Nos. 6719-6720 of


2008, the facts had been that the appellant No.1-Sudesh Ranga   being


the SHO of the   Police Station had received a complaint from Ashok


Kumar   Munna,   the   respondent   herein   against   Keshav   Kumar,


respondent No.2 that the water  from his toilet had been entering into


the house of the complainant and damaged   the entire wall because of


seepage,   and   foul   smell   was   also   coming.   On   being   asked,   the


respondent   Keshav   Kumar     refused   to   carry   out   the   repair   and


quarrelled   with   him   and   beaten   him.   In   view   of   the   said   complaint,


Keshav   Kumar   was   detained   under   Sections   107/151   Cr.P.C.   on




                                                                                      5


16.7.2006   and   was   produced   before   the   Magistrate   on   17.7.2006,


wherein he was directed to be released on furnishing personal bond of


Rs.5,000/- with one surety in the like amount. As he failed to furnish


the personal bond he was sent to judicial custody and was released only


on   18.7.2006   on   furnishing   the   said   bond.     Keshav   Kumar   filed   writ


petition on 30.10.2006 alleging the violation of his fundamental rights


by   the   police   authorities   by   resorting   to   the   provisions   of   Sections


107/151 Cr.P.C. The High Court entertained the said writ petition and


asked   the   respondent   therein   to   submit   the   status   report.     The   High


Court   after   considering   the   same   disposed   of   the   writ   petition   vide


order   dated   25.2.2008   quashing   the   proceedings   under   Sections


107/151   Cr.P.C.;   directing   to   pay   a   token   compensation   to   the


complainant to the tune of Rs.50,000/- and further direction was issued


to   the   Commissioner   of   Police     to   initiate   disciplinary   proceedings


against the appellants.




9.     Being aggrieved, the State of NCT of Delhi preferred L.P.A. No.


289 of 2008  which  has  been  dismissed  vide  impugned   judgment  and


order dated 28.5.2008. Hence, these appeals.





                                                                                     6


10.     As both the matters had been disposed of by the Division Bench


by   the   common   judgment,   we   have   heard   them   together   alongwith


other Criminal Appeals arising out of SLP (Crl) Nos. 1773 of 2008 and


5702 of 2008 and are being disposed of by the common judgment.




11.     Whatever   may   be   the   legal   position,   admittedly,   the   police


officials   i.e.   appellants   had   not   been   impleaded   by   name   in   the   writ


petitions.   The   standing   counsel   appearing   for   the   State   of   N.C.T.   of


Delhi had taken notice on behalf   of the parties excluding the private


parties. Thus, while hearing the writ petitions, these appellants had not


been given an opportunity  of hearing  at all before  the writ  court  and


definitely   the   learned   Single   Judge   passed   certain   orders/directions


against them.




12.     Being   aggrieved,   the   State   filed   L.P.As.   before   the   Division


Bench wherein also none of these appellants had been impleaded and


both the appeals stood dismissed by the common judgment and order


dated   28.5.2008.   Thus,   even   before   the   Division   Bench,   all   these


appellants had not been given any opportunity to appear or plead their


defence.   Even on merit,   the opinion of the High Court in first case,


that   the   proceedings   under   Section   145   Cr.P.C.   could   have   been





                                                                                       7


resorted   to   instead   of   Sections   107/151   Cr.P.C.   does   not   seem   to   be


correct. In fact it is the officer on spot who has to take a decision as


what   provisions   should   be   resorted   to   according   to   the   prevailing


circumstances.     Even   in   another   case   if   there   had   been   altercation,


abusing,   threatening   and   beating,   by   no   means,   it   can   be   held   that


resorting   to   the   provisions   of   Sections   107/151   Cr.P.C.   was   totally


unwarranted.




13.          We  have  decided   other   connected  appeals  arising  out  of  SLP


(Crl.)   Nos.   1773   of   2008   and   5702   of   2008   giving   reasons.   These


appeals stand disposed of in terms of the same.  In view of the above,


the judgments and orders impugned herein are set aside except to the


extent that  in all  these  cases  the  proceedings   under  Sections  107/151


Cr.P.C. stood quashed. In first case liberty given by the High Court  to


file a civil suit for recovery of immovable property shall remain intact.






                                                            ...............................

     J.                                                                              (P.

     SATHASIVAM)




                                                     ...............................J.

                                                         (Dr. B.S. CHAUHAN)

New Delhi,

August 12, 2011



                                                                                      8


 





      9

On 3.2.2007, Constable Virender Kumar, Head Constable Krishan Singh and Constable Jai Kumar, appellant nos. 2 to 4 respectively while patrolling in the area found that Sanjeev Kumar Singh and Dalip Gupta, respondent nos.3 and 4 respectively were fighting with each other in an intoxicated condition. The said appellants tried to pacify them but in vein. After realising that they were in drunken condition the aforesaid appellants took both the said respondents to the hospital for medical examination wherein they misbehaved with the Doctor and other staff of the hospital. After medical examination, it was opined that both the said respondents had taken alcohol. B. The said respondents were booked under Sections 107/151 of the Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.') and were produced before the Special Executive Magistrate (hereinafter called `the Magistrate') on 4.2.2007. The Magistrate issued show

                                                            REPORTABLE


              IN THE SUPREME COURT OF INDIA


         CRIMINAL APPELLATE JURISDICTION


          CRIMINAL APPEAL NO.  1582   OF 2011

          (Arising out of SLP(Crl.) No.1773 of 2008)




Rajender Singh Pathania & Ors.                                       ...

Appellants


                                      Vs.


State of N.C.T. of Delhi & Ors.                           ...  Respondents


                               With


          CRIMINAL APPEAL NO. 1583   OF 2011

          (Arising out of SLP(Crl.) No.5702 of 2008)




                           J U D G M E N T





Dr. B.S. CHAUHAN, J.




1.    Leave granted in both the matters.




2.    These   appeals  have  been  preferred  against  the   same  judgment


and order dated 25.2.2008 passed by the High Court of Delhi in Writ


Petition (Crl.) No.264 of 2007 by which the High Court has quashed


the criminal case  registered  against  respondent nos. 3 and 4; directed


Central Bureau of Investigation (hereinafter called `CBI') to investigate


the   case   in   respect   of   the   allegations   made   by   the   said   respondents


against   the   appellant   nos.   2   to   4;   and   awarded   a   compensation   of


Rs.25,000/- each to the said respondents for wrongful confinement.  




3.      FACTS:


A.      On   3.2.2007,   Constable   Virender   Kumar,   Head   Constable


Krishan   Singh   and   Constable   Jai   Kumar,   appellant   nos.   2   to   4


respectively   while   patrolling   in   the   area   found   that   Sanjeev   Kumar


Singh   and   Dalip   Gupta,   respondent   nos.3   and   4   respectively   were


fighting   with   each   other   in   an   intoxicated   condition.       The   said


appellants   tried   to   pacify   them   but   in   vein.   After   realising   that   they


were in drunken condition the aforesaid appellants took both the said


respondents   to   the   hospital   for   medical   examination   wherein   they


misbehaved   with   the   Doctor   and   other   staff   of   the   hospital.     After


medical examination, it was opined that  both the said respondents had


taken alcohol.


B.      The said respondents were booked under Sections 107/151 of the


Code   of   Criminal   Procedure,   1973   (hereinafter   called   `Cr.P.C.')   and


were   produced   before   the   Special   Executive   Magistrate   (hereinafter


called   `the   Magistrate')   on   4.2.2007.     The   Magistrate   issued   show




                                                                                         2


cause notice as to why they should not be ordered to execute personal


bond   of   Rs.5,000/-   each   with   a   surety   in   the   like   amount   for


maintaining peace for a period of one year. The said respondents could


not   furnish   the   bonds   and   thus,   the   Magistrate   sent   both   of  them     to


judicial   custody.     The   said   respondents   furnished   the   bond   of


Rs.15,000/- each on the next day, i.e., 5.2.2007 and were released.


C.      The   said   respondents   filed   Criminal   Writ   Petition   No.264   of


2007 on 19.2.2007 before the High Court of Delhi praying mainly for


quashing   of   the   proceedings   under   Sections   107/151   Cr.P.C.   and


further   asked   to   initiate   criminal   proceedings   against   the   appellant


nos.2 to 4 and award them compensation for illegal detention. The writ


petition   came   for   hearing   on   26.2.2007.     The   standing   counsel


appearing for the State took notice on behalf of all the respondents in


the   writ   petition.   The   High   Court   directed   the   police   authorities   to


submit the status report. The appellant no.1 after making an inquiry in


the   case   submitted   the   status   report   on   10.7.2007.   The   petition   was


heard   on   31.10.2007   and   has   been   allowed   vide   judgment   and   order


dated 25.2.2008.  Hence, these appeals.


 

4.      Shri   P.P.   Malhotra,   learned   Additional   Solicitor   General


appearing for the State of NCT Delhi and Shri Pradeep Gupta, learned




                                                                                         3


counsel appearing for the appellants, have submitted that both the said


respondents had been under the influence of liquor and were fighting


with each other at a public place, thus, there was danger of breach of


peace and tranquillity. Appellant nos.2 to 4 tried to pacify them but the


said respondents did not pay any heed. They had been booked under


Sections   107/151   Cr.P.C.   and   produced   before   the   Magistrate   on   the


next   day.   The   Magistrate   after   completing   legal   formalities   directed


that   they   may   be   released   on   furnishing   the   bonds   to   the   tune   of


Rs.5,000/- each with a surety in the like amount.  The said respondents


were   not   in   a   position   to   submit   the   bail   bonds   on   the   said   date   and


thus,   could   not   be   released   on   4.2.2007.     However,   on   the   next   day,


they   submitted     the   bail   bonds   voluntarily   for   a   sum   of   Rs.15,000/-


each, and thus, they were released.  Factual averments made in the writ


petition were totally false.


       Appellants   had   not   been   served   personal   notices   and   had   no


opportunity to defend themselves. The order impugned has been passed


in   flagrant   violation   of   the   principle   of   natural   justice.   Such   a   petty


matter   does   not   require   to   be   investigated   by   the   CBI.     Token


compensation to the tune of Rs.25,000/- has been awarded to each of





                                                                                             4


the   said   respondents   without   determining   the   factual   controversy.


Hence, the appeals deserve to be allowed.


       

5.     On   the   contrary,   the   learned   counsel   appearing   for   the


respondent  nos.  3 and  4 has  opposed   the appeals   contending that  the


appellants   had   violated   fundamental   rights   of   the   contesting


respondents   and   detained   them   in   jail   without   any   justification,


therefore, the matter is required to be investigated by the CBI or some


other   independent   investigating   agency.   Token   compensation   has


rightly been awarded by the High Court. The appeals lack merit and are


liable to be dismissed.




6.     We   have   considered   the   rival   submissions   made   by   learned


counsel for the parties and perused the record.  




7.     In   the   writ   petition,   admittedly,   altogether   there   were   seven


respondents,   including   the   present   appellants   and  the  Magistrate   who


had   passed   the   order   under     Sections   107/151   Cr.P.C.   Record   of   the


case reveals that the matter  was listed for the first time on 26.2.2007


and   the   learned   standing   counsel   for   the     State   accepted   notice   on


behalf  of all  the seven   respondents  therein.     Most of the  respondents


before the writ court had been impleaded by name in personal capacity




                                                                                    5


making   allegations   of   exceeding   their   powers   and   abusing   their


positions. There is nothing on record to show that the standing counsel


had any communication with persons against whom allegations of mala


fide had been alleged, particularly, appellant nos. 2 to 4 and the learned


Magistrate,   respondent   no.5   herein.       Thus,   none   of   them   had   an


opportunity  of  appearing   before  the  High  Court.  We   do  not  find   any


force   in   the   submission   made   by   learned   counsel   appearing   for   the


original  writ  petitioners that as the State had been representing all of


them,   there   was   no   need   to   hear   each   and   every   individual.


Undoubtedly,   the   judgment   and   order   impugned  in   these   appeals   has


been passed in flagrant violation of the principles of natural justice and,


thus, liable to be set aside solely on this ground.




8.     The status report had been submitted before the High Court after


having proper  investigation,  stating that the writ  petitioners  had been


under   the   influence   of   alcohol   and   been   abusing,   threatening   and


quarrelling each other at the public place.   The police personnel could


not   control   them.   When   they   were   taken   to   the   hospital   for   medical


check up they were found intoxicated,  and they misbehaved  with the


doctor and staff of the hospital also. It had been brought to the notice of


the   High   Court   that   Sanjeev   Kumar   -   respondent   no.   3,   had   been




                                                                                     6


threatening  the police officials that his cousin Shri Aushutosh Kumar


was   a   Metropolitan   Magistrate   in   Tis   Hazari   Courts,   Delhi   and   he


would teach them a lesson for ever. It was further pointed out that Shri


Aushutosh Kumar, MM, Tis Hazari Courts, Delhi from his mobile No.


9868932336   had   a   talk   with   appellant   no.1-Rajender   Singh   Pathania,


SHO,   PS   Samaipur   Badli,   at   10.00   P.M.   on   his   mobile   No.


9810030663 for more than three minutes on 3.2.2007.  The Magistrate


had   passed   the   release   order   of   the   said   respondents,   however,   they


could not be released because they failed to furnish the personal bond


with   a   surety   in   the   like   amount.   The   High   Court   while   passing   the


order did not consider it proper to have an investigation on the material


facts   regarding   demand   of   bribe   to   the   tune   of   Rs.500   from   the   writ


petitioners or regarding the mis-behaviour of the said respondents with


the   doctor   and   staff   of   the   hospital.     The   medical   report   reveals   that


they   were  intoxicated.    The   relevant   part  of  the  medical  report  dated


3.2.2007 made at 8.00 p.m. in Babu Jagjivan Ram Memorial Hospital,


Jahangirpuri, Delhi reads as under:


            "Smell of alcohol  ++


             Patient had been irritating and misbehaving with

            the doctor and staff"





                                                                                          7


9.      No   further   investigation   or   inquiry   had   been   conducted   on   the


charge of abusing,   threatening   and  quarrelling  by  the writ  petitioners


with each other.   Though the High Court reached the conclusion that


the said respondents had been kept behind the bar for one day resulting


into violation  of their fundamental  rights, without  realising  that since


they   failed   to   furnish   bonds,   no   other   option   was   available   and   they


were sent to judicial custody in view of the order of the Magistrate.  If


the   writ   petitioners   were   aggrieved   of   the   same,   they   could   have


challenged the same by filing appeal/revision. We failed to understand


under   what   circumstances   the   writ   petition   has   been   entertained   for


examining the issue of illegal  detention, particularly, in a case  where


there was a justification for keeping them in judicial custody.  





10.     The High Court reached the conclusion that in spite of the fact


that the Magistrate passed the order to furnish the bonds of Rs.5,000/-


each,   the bonds had been accepted for Rs.15,000/-.   There is nothing


on record to show that any of writ petitioners had raised the grievance


before the Magistrate enhancing the amount of personal bonds. In fact,


the   said   writ   petitioners   themselves   voluntarily   submitted   bonds   for


Rs.15,000/- and therefore, no illegality could be found on that ground.





                                                                                       8


11.     The   judgment  and   order   impugned   herein   shocked   our   judicial


conscience   as   under   what   circumstances   such   a   petty   incident   was


considered by the High Court to be a fit case to be referred to the CBI


for investigation.





12.     This very Bench recently in Disha v. State of Gujarat & Ors.,


JT   (2011)   7   SC   548,   while   relying   upon     earlier   judgments   of   this


Court in Ashok Kumar Todi v. Kishwar Jahan & Ors., JT (2011) 3


SC 50;   and  Narmada Bai v. State of Gujarat,  JT (2011) 4 SC 279,


came   to   the   conclusion   that   for   directing   the   CBI   to   hold   the


investigation   the   court   must   be   satisfied   that   the   opposite   parties   are


very powerful and influential persons or the State authorities like top


police   officials   are   involved   and   the   investigation   has   not   proceeded


with in proper direction or it has been biased. In such an eventuality, in


order  to do complete justice  a direction  to the CBI to investigate  the


case can be issued.





13.     In the instant case, the grievance of the writ petitioners basically


had been against the two Constables and one Head Constable. It was


not   a   case   where   it   could   be   held   that   the   State   authorities   were





                                                                                        9


interested or involved in the incident.  Thus, in our opinion, it was not a


fit case where investigation could be handed over to the CBI.



                It is not only in the instant case  that the High Court has


directed CBI to investigate but it is evident from the other connected


cases  which have  been  heard  along with  these   appeals  and  are being


disposed of by separate order, that on the same day i.e. 25.2.2008 the


same Hon'ble Judge directed CBI enquiry in another paltry case under


Sections   107/151   Cr.P.C.     Further   on   28.2.2008   CBI   enquiry   was


directed in another case also under Sections 107/151 Cr.P.C..  Thus, it


is   evident   that   the   High   Court   has   been   passing   such   directions   in   a


most   casual   and   cavalier   manner   considering   that   each   and   every


investigation must be carried out by some special investigating agency.




14.      The   object   of   the   Sections   107/151   Cr.P.C.   are   of   preventive


justice and not punitive. S.151 should only be invoked when there is


imminent   danger   to   peace   or   likelihood   of   breach   of   peace   under


Section 107 Cr.P.C. An arrest under S.151 can be supported when  the


person   to   be   arrested   designs   to   commit   a   cognizable   offence.     If   a


proceeding under Sections 107/151 appears to be absolutely necessary


to   deal   with   the   threatened   apprehension   of   breach   of   peace,   it   is





                                                                                         1


incumbent   upon   the   authority   concerned   to   take   prompt   action.   The


jurisdiction   vested    in  a  Magistrate  to  act  under  Section  107  is   to  be


exercised in emergent situation.




15.   A mere perusal of Section  151 of the Code of Criminal Procedure


makes   it   clear   that   the   conditions   under   which   a   police   officer   may


arrest   a   person   without   an   order   from   a   Magistrate   and   without   a


warrant have been laid down in Section 151. He can do so only if he has


come   to   know   of   a   design   of   the   person   concerned   to   commit   any


cognizable offence. A further condition for the exercise of such power,


which must also be fulfilled, is that the arrest should be made only if it


appears   to   the   police   officer   concerned   that   the   commission   of   the


offence   cannot   be   otherwise   prevented.   The   Section,   therefore,


expressly   lays   down   the   requirements   for   exercise   of   the   power   to


arrest without an order from a Magistrate and without warrant. If these


conditions are not fulfilled and, a person is arrested under Section  151


Cr.P.C., the arresting authority may  be exposed to proceedings under


the law for violating the fundamental rights inherent in Articles 21 and


22 of Constitution.  (Vide:  Ahmed Noormohmed  Bhatti    v.  State of


Gujarat and Ors., AIR 2005 SC 2115).





                                                                                      1


  (See   also:  Joginder   Kumar  v.  State   of   U.P.   and   Ors.,  AIR   1994   SC

1349 , D.K. Basu v. State of West Bengal, AIR 1997 SC 610).



16.     In   the   instant   case   the   proceedings   under   Sections   107/151


Cr.P.C. were initiated on 4.2.2007 and the High Court has quashed the


proceedings.     At   such   a   belated   stage,   correctness   of   the   decision   to


that   extent   does   not   require   consideration.   Even   otherwise   the   issue


regarding   quashing   of  those   proceedings   at   this   stage   remains   purely


academic. So, we uphold the impugned judgment to that extent.





17.     The   issue   of   award   of   compensation   in   case   of   violation   of


fundamental rights of a person has been considered by this Court time


and again and it has consistently been held that though the High Courts


and this Court in exercise of their jurisdictions under Articles 226 and


32   can   award   compensation   for   such   violations   but   such   a   power


should   not   be   lightly   exercised.     These   Articles   cannot   be   used   as   a


substitute for the enforcement of rights and obligations which could be


enforced efficaciously through the ordinary process of courts.   Before


awarding   any   compensation   there   must   be   a   proper   enquiry   on   the


question of facts alleged in the complaint.  The court may examine the


report   and   determine   the   issue   after   giving   opportunity   of   filing





                                                                                        1


objections to rebut the same and hearing to the other side.  Awarding of


compensation   is   permissible   in   case   the   court   reaches   the   same


conclusion on a re-appreciation of the evidence adduced at the enquiry.


Award of monetary compensation in such an eventuality is permissible


"when   that   is   the   only   practicable   mode   of   redress   available   for   the


contravention   made   by   the   State   or   its   servants   in   the   purported


exercise of their powers."



(Vide: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026;

Bhim Singh, MLA v. State of J&K & Ors., AIR 1986 SC 494; Smt.

Nilabati Behera v. State of Orissa & Ors., AIR 1993 SC 1960; D.K.

Basu v. State of W.B.,AIR 1997 SC 610; Chairman, Railway Board

&   Ors.  v.   Mrs.  Chandrima   Das   &   Ors.,   AIR   2000   SC   988;   and

S.P.S. Rathore v. State of Haryana & Ors., (2005) 10 SCC 1).



18.     In Sube Singh v. State of Haryana & Ors., AIR 2006 SC 1117,


while dealing  with similar issue this Court held as under:



            "In   cases   where   custodial   death   or   custodial

            torture or other violation of the rights guaranteed

            under   Article   21   is   established,   the   courts   may

            award compensation in a proceeding under Article

            32   or   226.   However,   before   awarding

            compensation, the Court will have to pose to itself

            the following questions: (a) whether  the violation

            of   Article   21   is   patent   and   incontrovertible,   (b)

            whether the violation is gross and of a magnitude

            to  shock   the   conscience   of  the   court,   (c)  whether

            the   custodial   torture   alleged   has   resulted   in

            death.....   Where   there   are   clear   indications   that

            the allegations are false or exaggerated fully or in

            part, the courts may not award compensation as a





                                                                                       1


                public   law   remedy   under   Article   32   or   226,   but

                relegate   the   aggrieved   party   to   the   traditional

                remedies   by   way   of   appropriate   civil/criminal

                action."

(See also:  Munshi Singh Gautam (D) & Ors. v. State of M.P., AIR

2005   SC   402;   and  Bharat   Amratlal   Kothari   v.   Dosukhan

Samadkhan Sindhi & Ors., AIR 2010 SC 475).




19.          In view of the above, we are of the considered opinion that the


High Court erred in awarding even token compensation to the tune of


Rs.25,000/-   each   as   the   High   Court   did   not   hold   any   enquiry   and


passed the order merely after considering the status report submitted by


the   appellant   no.1   without   hearing   any   of   the   persons   against   whom


allegations of abuse of power had been made.   Such an order is liable


to be set aside.



20.          In   view   of   the   above,   appeals   succeed   and   are   allowed.


Judgment and order impugned herein is set aside except to the extent


that   the   proceedings   under   Sections   107/151   Cr.P.C.   against   the


contesting respondents stood quashed.



                                                               ...............................

       J.                                                      (P. SATHASIVAM)




                                                            ...............................J.

 New Delhi,                                                    (Dr. B.S. CHAUHAN)

 August 12, 2011





                                                                                     1

We are, in this appeal, concerned with the legality of the direction given by a Division Bench of the High Court of Uttaranchal at Nainital to the State Government to pay an amount of Rs.70,99,951.50 with interest to the respondents, placing reliance on an inter-departmental communication sent by the District Magistrate, Haridwar to the Secretary, Government of Uttar Pradesh.

                                                    REPORTABLE

            IN THE SUPREME COURT OF INDIA

             CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NO.5374 OF 2005



State of Uttaranchal & Anr.                  ... Appellants

                             Vs

Sunil Kumar Vaish & Ors.               ...Respondents




                     J U D G M E N T




K.S. RADHAKRISHNAN, J.



1.     We   are,   in   this   appeal,   concerned   with   the

legality of the direction given by a Division Bench

of the High Court of Uttaranchal at Nainital to the

State   Government   to   pay   an   amount   of

Rs.70,99,951.50   with   interest   to   the   respondents,

placing   reliance   on   an   inter-departmental

communication   sent   by   the   District   Magistrate,

Haridwar   to   the   Secretary,   Government   of   Uttar

Pradesh.



2.     The   State   of   Uttaranchal   (the   State   which

has interest now) submits that the above direction


was   given   overlooking   several   important   and   vital

documents   which   have   considerable   bearing   for   a

proper   and   just   determination   of   the   dispute.

Further,   it   was   also   pointed   out   that   the   High

Court   had   failed   to   notice   that   even   the   inter-

departmental communication was found to be improper

by the Government of Uttar Pradesh.  



3.        Mr. S.S.Shamshery, learned counsel appearing

for   the   State   of   Uttaranchal   referred   to   the

pleadings   of   the   parties,   documents   produced   and

submitted those relevant facts were not taken into

consideration   by   the   High   Court   while   granting

relief to the respondents causing serious prejudice

to the State.



4.        Mr. Rakesh Khanna, learned counsel appearing

for   the   respondents,   submitted   that   there   is   no

legality   in   the   order   passed   by   the   High   Court

warranting   interference   by   this   Court   and   that   no

substantial   questions   of   law   arise   for

consideration and the appeal deserves dismissal.  




FACTS:


5.          Plot No. 1008 measuring 7 Bighas, 14 Biswas

situated   at   Rampur   Colony,   Roorkee,   originally

belonged   to   the   grand-father   of   the   respondents

Late   Ram   Rattan   Lal,   was   acquired   for

rehabilitation   of   refugee   camp   at   Roorkee   and   the

amount of compensation for the acquisition was paid

to Ram Rattan Lal on 13.3.1952.   On 14.9.1962 Ram

Rattan   Lal   made   a   request   to   the   Government   to

lease out the said land for agricultural purposes.

Request was considered favourably by the Government

and a grant/lease deed was executed on 14.9.1962 in

favour   of   Ram   Rattan   Lal   on   certain   terms   and

conditions, which are extracted hereinbelow:  

      1.    In   consideration   of   the   sum   of   Rs.2742.00

            (two thousand and seven hundred and forty two

            only)   paid   by   the   Grantee   to   Grantor,   the

            receipt   of   which   the   Grantor   hereby

            acknowledges,   and   of   the   covenants   on   the

            part   of   the   Grantee   hereinafter   contained,

            the   Granter   hereby   demises   to   the   Grantee.

            All   the   land   described   in   the   Scheduled

            hereto   to   hold   the   said   land   with   only   the

            rights and obligations akin to a Bhumidhar as


      defined   in   the   U.P.   Zamindari   Abolition   and

      Land   Reforms   Act,   1950   or   any   statutory

      notification   thereof,   subject   to   such

      conditions,   restrictions   and   limitations   as

      are imposed under this deed.

2.    The Grantee hereby covenants with the Grantor

      as follows:-

      (1) The   Grantee   shall   use   the   land   granted

           to   him   only   for   the   purposes   of

           cultivation   and   purposes   incidental

           thereto,   and   for   no   other   purpose

           whatsoever.

      (2) The   Grantee's   rights   in   the   said   land

           shall   be   heritable   but   he   shall   not   be

           entitled   to   alienate   the   said   land

           without   the   previous   permission   in

           writing of the Grantor.

      (3) The   Grantee   shall   pay   the   rent   in

           accordance   with   the   hereditary   rates

           applicable   and   shall   also   pay   taxes   or

           cesses   that   may   be   imposed   on   the   said

           land.

      (4) In   the   event   of   any   rent   payable

           hereunder,   whether   lawfully   demanded   or

           not, remaining in arrears for months or

           in   the   event   of   the   Grantee   not   at   any

           time   cultivating   the   said   land   for   two

           successive   years,   or   if   there   shall   be

           any   breach   of   any   covenant   by   the


     Grantee   herein   contained,   the   Grantor

     may   notwithstanding   the   waiver   of   any

     previous   right   or   cause   for   re-entry,

     re-entry upon the said land or any part

     thereof   in   the   name   of   the   whole   and

     thereafter   the   whole   of   the   said   land

     shall remain to the use of and be vested

     in   the   Grantor   and   this   grant   shall

     absolutely   determine,   and   the   Grantee

     shall   not   be   entitled   to   any

     compensation   therefore   or   for   any

     improvement made on the said land.

              Provided always that should the

     State Government at any time require the

     said   land,   or   any   part   thereof   for   any

     public   purpose,   the   Grantor   may

     determine the same in whole or part and

     may also take possession of the whole or

     part, as the case may be, and in such a

     case   the   Grantee   shall   be   entitled   to

     such   compensation   as   the   District

     Officer   of   Saharanpur   may   in   his

     discretion assess.

(5) Notwithstanding   anything   herein   before

     contained   the   Grantor   shall   be   entitled

     to   recover   the   arrears   of   rent   due   as

     arrears of land revenue.

(6) The   stamp   duty   and   registration   charges

     on   this   deed   shall   be   borne   by   the

     Grantee."


6.      Apprehending   forcible   dispossession,   Ram

Rattan Lal filed Civil Misc. Writ No. 1974 of 1967

before   the   Allahabad   High   Court.     The   High   Court

allowed the writ petition on 26.8.1982 restraining

the   State   Government   from   forcibly   dispossessing

him, though it was found that the land in question

was  acquired  by  the  Government  under  Section  9  of

the   U.P.   Land   Acquisition   (Rehabilitation   of

Refugees) Act, 1948.



7.      The         District         Magistrate,         Saharanpur

accordingly   vide   his   proceeding   dated   24.12.1971

determined the lease as per Clause 4 of the lease

deed   dated   14.9.1962   stating   that   the   land   was

required   by   the   Government   for   a   public   purpose

i.e. for construction of a building for the use of

a Government Litho Press at Roorkee.     Ram Rattan

Lal was, therefore, directed to vacate the premises

within   a   period   of   thirty   days   from   the   date   of

receipt of notice.   Ram Rattan Lal did not vacate

the   premises   within   the   stipulated   time   and   was

found to be in unauthorised occupation of the land

since  27.1.1972.    The  State  of  Uttar  Pradesh  then

initiated   ejectment   proceedings   under   the   U.P.


Public   Premises   (Eviction   of   Unauthorised

Occupants)   act,   1972   [for   short   U.P.   Act   XXII   of

1972]   before   the   Sub   Divisional   Magistrate

(Prescribed   authority)   by   filing   case   No.   1227   of

1972 under Section 4 of the U.P. Act XXII of 1972.

It was pointed out that the State was entitled to

possession since 27.1.1972 and was suffering a loss

of Rs.500/- per month from that date and that Ram

Rattan Lal was liable to pay damages of Rs.3,000/-

and also the damages till the date of delivery of

possession.



8.      Ram   Rattan   Lal   filed   a   detailed   written

statement before the Prescribed authority.     Both

the   parties   also   adduced   oral   as   well   as

documentary   evidence   before   the   Prescribed

authority   and,   after   detailed   examination   of   the

contentions,   the   prescribed   authority   passed   an

order   dated   13.9.1973,   the   operative   portion   of

which reads as follows:

           "As   provided   in   grant-deed   dated

      14.9.1962   the   O.P.   was   bound   to   give

      possession   to   the   granter   in   response   to

      notice   dated   24.12.71   which   was   served   upon

      him on 27.12.71 with in a period of 30 days


      but   he   did   not   do   so   any   by   violating   the

      condition   of   the   grant   deed   he   remained   in

      unauthorised   occupation   over   the   disputed

      land after 27.1.72 for which he is liable to

      pay   the   damages   to   the   applicant.     The

      applicant has demanded Rs.500/- P.M. from the

      O.P.   which   seem   to   be   excessive   and   in   my

      opinion   the   damages   at   the   rate   of   Rs.150/-

      per month will be reasonable and the opposite

      party is therefore, liable to pay Rs.150/- as

      damages   per   month   with   effect   from   27.1.72

      upto the date of delivery of possession."



9.      Aggrieved   by   the   above-mentioned   order   Ram

Rattan   Lal   preferred   Misc.   Appeal   No.335   of   1973

before   the   1st  Additional   District   and   Sessions

Judge, Saharanpur and the Court held that the land

was   a   public   premises   and   Ram   Rattan   Lal   was   in

unauthorised occupation after the determination of

grant   and   action   for   his   eviction   under   the   U.P.

Act No. XXII of 1972 was fully justified.  However,

the   rate   of   damages   fixed   by   the   prescribed

authority   was   reduced   to   Rs.60/-   per   month.

Aggrieved   by   the   said   order   Ram   Rattan   Lal   filed

Civil Misc. Writ No.12304 of 1975 before the High

Court of judicature at Allahabad.   Before the High

Court,   the   contention   was   raised   that   Ram   Rattan


Lal   should   be   treated   as   Bhumidar   under   the   U.P.

Zamindari   Abolition   and   Lad   Reforms   Act.     High

Court rejected all those contentions and held that

Ram   Rattan   Lal   had   not   acquired   the   rights   of   a

Bhumidar   under   any   of   the   provisions   of   the   U.P.

Zamindari   Abolition   and   Land   Reforms   Act   and   was

not   a   tenure   holder   under   any   of   the   clauses

mentioned in Section 129 of the aforesaid Act and

held that the step taken for eviction in respect of

Ram Rattan Lal was fully justified under U.P. Act

XXII   of   1972.     The   writ   petition   was   accordingly

dismissed with costs.



10.      Aggrieved   by   the   said   order   of   the   High

Court   Ram   Rattan   Lal   approached   this   Court   and

filed SLP(C) No.6851 of 1979 and the same was also

dismissed by this Court on 23.12.1981



11.      District   Magistrate,   Haridwar,   without

referring   to   any   of   those   facts,   sent   a

communication   dated   17.9.1993   to   the   Secretary,

Government of Uttar Pradesh stating as under:

       "As  per  the  conditions  mentioned  in  the

       Patta,   Pattedar   was   dispossessed   from

       the land under the provisions of Section


       4   of   the   Public   Premises   Act,   but

       whatever payment as per allowance had to

       be   made   to   the   farmer   was   not   made.

       Therefore   the   Pattedar   is   entitled   to

       receive   the   compensation   of   the   land.

       But   by   not   paying   the   compensation

       amount under the Land Acquisition Act no

       policy   for   payment   of   compensation   to

       the Patta holder with regard to the said

       land   is   given   in   the   Patta   and   for

       determination   of   the   same   it   would   be

       proper to hold the stamp duty prevailing

       for   the   year   1987   in   the   area   in

       question   as   the   basis   of   determination

       of   compensation   amount.     Hence   the

       compensation   towards   the   said   land

       admeasuring   6-14-0   Bighas   i.e.   15777.67

       Sq.mts.   @   Rs.450/-   per   sqm.   As   per   the

       prescribed  stamp  duty  for  the  year  1987

       comes   to   Rs.70,99,951.50,   in   which

       arrangement would have to be made by the

       Government   Photo   Litho   Press,   Roorkee

       and the same could be demanded from the

       concerned department."



12.      The   Government   of   Uttar   Pradesh   considered

the   communication   received   from   the   District

Magistrate, Haridwar and took the view that it was

not   proper   on   the   part   of   the   District   Magistrate


in   recommending   payment   of   compensation   for   the

following reasons:

     1.    "The   Hon'ble   Courts   in   its   judgments

           under   the   cases   in   question,   especially

           in   the   judgment   dated   26.2.79   of   the

           Hon'ble   High   Court,   Patta   holder   has

           been declared in unauthorised possession

           of the land in question from 27.1.72 and

           compensation amount of Rs.60/- per month

           has   been   granted   to   the   State

           Government.           Therefore,   payment   of

           compensation   amount   by   the   State

           Government          to         the         persons         in

           unauthorised   possession   of   the   land   is

           not proper.

     2.    Under   the   provisions   of   Section   108(Q)

           of  the  Transfer  of  Property  Act,  within

           the   prescribed   period   of   notice   of

           completion   of   Patta   i.e.   upto   27.1.72,

           Patta   holder   had   to   hand   over   the

           possession   of   land   in   question   to   the

           State Government, which was not given by

           them  upto  6.6.87  and  during  that  period

           debarred   the   State   Government   from   the

           use   of   land   in   question   and   themselves

           took   the   benefit   of   the   same.     In   this

           way this rule has been violated and the

           condition   mentioned   in   para   4   of   the

           Patta   dated   14.9.62   has   also   been

           violated   and   hence   Patta   Holder   is   not


      entitled   to   receive   the   compensation

      amount.

3.    As per the judgment of the Hon'ble High

      Court   the   Patta   holders   have   to   pay

      compensation   amount   at   the   rate   of

      Rs.60/-   per   month   to   the   State

      Government   for   the   period   they   were   in

      unauthorised possession of the land.  In

      such         circumstances,         payment         of

      compensation amount to them by the State

      Government,   when   conditions   of   Patta

      dated  14.9.62  has  been  violated,  is  not

      proper.

4.    Land   in   question   was   acquired   in   the

      year   1948.     Payment   of   compensation   in

      regard to the land acquired was made by

      the State Government at that time itself

      and this compensation was paid to one of

      the   members   of   Patta   holder   family   as

      per   the   condition   then   was.     Hence   for

      the   second   time   payment   of   compensation

      amount   pertaining   to   the   same   land   on

      the same basis is not as per the law.

5.    Under  the  condition  mentioned  in  para  4

      of   the   Patta   deed   dated   14.09.1962

      payment   of   compensation   amount   had   to

      make upto 27.1.1972 then the Patta would

      be   as   per   condition,   but   the   Patta

      Holders  had  to  hand  over  the  possession

      of   land   to   the   State   Government   upto

      27.1.1972   but   the   same   was   not   given


               upto   6.6.87   and   situation   changed   and

               responsibility  of  this  fault  was  on  the

               patta   holders   and   the   guilty   person

               could not take benefit of its own wrong.

               Hence the payment of compensation amount

               as   has   been   proposed   by   you   is   not

               proper.

       6.      In   the   aforesaid   circumstances   payment

               of   compensation   amount   to   the   Patta

               holders   is   neither   lawful   not   logical.

               Therefore,   it   is   requested   to   take

               action   for   recovery   of   compensation

               amount   of   Rs.11,062/-   which   has   to   be

               paid   by   the   Patta   holdes   @   60/-   per

               month   for   the   period   from   27.1.1972   to

               6.6.1987   to   the   State   Government   under

               the provision of point No.1 of said para

               1   and   accordingly   acknowledge   the

               government with the action taken."



13.          We   are   surprised   to   note   that   the   Division

Bench   of   the   High   Court   had   overlooked   the   above

mentioned   vital   facts   while   deciding   the   lis

between the parties.       Non-application of mind is

writ large in the order of the High Court, not even

an attempt or effort has been made to refer to the

pleadings   of   parties   or   examine   the   documents

produced, in spite of the fact that those materials


were on record.  



14.     Of late, we have come across several orders

which   would   indicate   that   some   of   the   judges   are

averse to decide the disputes when they are complex

or  complicated,  and  would  find  out  ways  and  means

to pass on the burden to their brethren or remand

the   matters   to   the   lower   courts   not   for   good

reasons.    Few  judges,  for  quick  disposal,  and  for

statistical purposes, get rid of the cases, driving

the   parties   to   move   representations   before   some

authority   with   a   direction   to   that   authority   to

decide   the   dispute,   which   the   judges   should   have

done.  Often, causes of action, which otherwise had

attained finality, resurrect, giving a fresh causes

of   action.     Duty   is   cast   on   the   judges   to   give

finality   to   the   litigation   so   that   the   parties

would know where they stand.



15.     Judicial determination has to be seen as an

outcome   of   a   reasoned   process   of   adjudication

initiated   and   documented   by   a   party   based,   on

mainly events which happened in the past.   Courts'

clear reasoning and analysis are basic requirements


in a judicial determination when parties demand it

so   that   they   can   administer   justice   justly   and

correctly,  in  relation  to  the  findings  on  law  and

facts.   Judicial decision must be perceived by the

parties and by the society at large, as being the

result of a correct and proper application of legal

rules,   proper   evaluation   of   the   evidence   adduced

and  application  of  legal  procedure.      The  parties

should   be   convinced   that   their   case   has   been

properly   considered   and   decided.              Judicial

decisions   must   in   principle   be   reasoned   and   the

quality of a judicial decision depends principally

on the quality of its reasoning.   Proper reasoning

is   an   imperative   necessity   which   should   not   be

sacrificed for expediency. The statement of reasons

not only makes the decision easier for the parties

to understand and many a times such decisions would

be   accepted   with   respect.     The   requirement   of

providing   reasons   obliges   the   judge   to   respond   to

the parties' submissions and to specify the points

that justify the decision and make it lawful and it

enables   the   society   to   understand   the   functioning

of   the   judicial   system   and   it   also   enhances   the


faith and confidence of the people in the judicial

system.  



16.     We   are   sorry   to   say   that   the   judgment   in

question   does   not   satisfy   the   above   standards   set

for proper determination of disputes.   Needless to

say   these   types   of   orders   weaken   our   judicial

system.  Serious attention is called for to enhance

the quality of adjudication of our courts.   Public

trust   and   confidence   in   courts   stem,   quite   often,

from   the   direct   experience   of   citizens   from   the

judicial adjudication of their disputes.





CONCLUSION

17.     We have gone through the writ petition filed

before   the   High   Court,   counter   affidavit   filed   by

the   State   Government   and   the   oral   and   documentary

evidence   adduced   by   the   parties   before   the

prescribed authority and before the higher forums.

Facts   would   clearly   indicate   that   Ram   Rattan   Lal

was   an   unauthorised   occupant   of   the   land   since

27.11.1972 and that finding had   attained finality

and   the   Judges of   the High Court had failed to


note   the   following   relevant   documents,   apart   from

the pleadings of the parties:

       1.    The order of the Prescribed authority

             in   case   No.   12272   dated   13.9.1973,

             wherein there was a clear finding that

             Ram   Rattan   Lal   was   an   unauthorised

             occupant   of   the   disputed   land   from

             27.11,1972.

       2.    Judgment   of   the   Court   of   1st

             Additional   and   Sessions   Judge,

             Saharanpur   dated   8.11.1975   in   Misc.

             Appeal   No.   335   of   1973   affirming   the

             finding   that   Ram   Rattan   Lal   was   an

             unauthorised           occupant          after

             determination   of   the   grant   and   the

             action   for   his   eviction   was   fully

             justified.

       3.    Judgment   of   the   High   Court   of

             Allahabad   in   Civil   Misc.   Writ   No.

             12304   of   1975   affirming   the   above

             mentioned orders.

       4.    Order of this Court in SLP ) No. 6851

             of 1979 dated 22.3.1981.


        5.    Letter of the Special Secretary, State

              of   Uttar   Pradesh   bearing   No.   1251

              PS/18-8-21 (10) PS/93 dated 25.6.1994,

              stating   that   the   reasons   stated   in

              inter-departmental communication dated

              17.9.1993 was improper.



18.     In   our   view,   the   State   Government   had

rightly   rejected   the   recommendations   made   by   the

District Magistrate for payment of Rs.70,99,951.50

because   while   doing   so,   the   concerned   officer

conveniently   ignored   the   fact   that   Ram   Rattan   Lal

had already been declared as unauthorised occupant

of   the   land   in   question.     In   the   face   of   the

decision   taken   by   the   State   Government,   the   High

Court   could   not   have   relied   upon   the

recommendations made by the District Magistrate by

treating   the   same   as   an   order   of   the   State

Government.   It is settled law that all executive

actions   of   the   Government   of   India   and   the

Government of a State are required to be taken in

the   name   of   the   President   or   the   Governor   of   the

State concerned, as the case may be [Articles 77(1)

and 166(1)].  Orders and other instruments made and


executed   in   the   name   of   the   president   or   the

Governor   of   a   State,   as   the   case   may   be,   are

required   to   be   authenticated   in   the   manner

specified   in   rules   made   by   the   President   or   the

Governor,   as   the   case   may   be   [Articles   77(2)   and

166(2)].     In   other   words,   unless   an   order   is

expressed   in   the   name   of   the   President   or   the

Governor   and   is   authenticated   in   the   manner

prescribed by the rules, the same cannot be treated

as an order on behalf of the Government.



19.     A   nothing   recorded   in   the   file   is   merely   a

noting   simpliciter   and   nothing   more.     It   merely

represents expression of opinion by the particular

individual.     By   no   stretch   of   imagination,   such

noting   can   be   treated   as   a   decision   of   the

Government.     Even   if   the   competent   authority

records   its   opinion   in   the   file   on   the   merits   of

the matter under consideration, the same cannot be

termed as a decision of the Government unless it is

sanctified   and   acted   upon   by   issuing   an   order   in

accordance with Articles 77(1) and (2) or Articles

166(1) and (2).   The noting in the file or even a

decision   gets   culminated   into   an   order   affecting


right of the parties only when it is expressed in

the name of the President or the Governor, as the

case   may   be,   and   authenticated   in   the   manner

provided   in   Article   77(2)   or   Article   166(2).     A

noting or even a decision recorded in the file can

always be reviewed/reversed/overruled or overturned

and the court cannot take cognizance of the earlier

noting   or   decision   for   exercise   of   the   power   of

judicial   review.     -  State   of   Punjab   v.   Sodhi

Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh v.

State of Punjab AIR 1963 SC 395, State of Bihar v.

Kripalu Shankar  (1987) 3 SCC 34,  Rajasthan Housing

Board   v.   Shri   Kishan  (1993)   2   SCC   84,   Sethi   Auto

Service Station v. DDA (2009) 1 SCC 180 and Shanti

Sports Club v. Union of India (2009) 15 SCC 705.



20.       We, therefore, set aside the judgment of the

High   Court   in   Writ   Petition   No.   401   of   2002

expressing   our   strong   disapproval.       Appeal   is,

therefore, allowed with costs, which is quantified

as Rs.10,000/- .




                                      ...................J.
                                     (G.S. Singhvi)


                       ....................J.
                       (K.S. Radhakrishnan)

New Delhi
August 16, 2011.