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2005 DIGILAW 14 (GUJ)

Rajesh Khanna v. Govt. of NCT of Delhi

2005-01-12

PRADEEP NANDRAJOG

body2005
PRADEEP NANDRAJOG, J. ( 1 ) PRESENT order disposes of IA. No. 9160/01 filed by respondents 1 to 3, being objections under section 30 of the Indian Arbitration Act,1940 to the award dated 29. 11. 2000/15. 12. 2000 pronounced by Shri S. S. Aggarwal, Sole Arbitrator appointed between the parties. For clarity, it may be noted that the award is dated 29. 11. 2000. 15. 12. 2000 is the date on which the learned arbitrator published the award. ( 2 ) OBJECTIONS have been filed by the respondents. Petitioner prays that award be made rule of the Court and decree be drawn accordingly. ( 3 ) DISPUTE between the parties pertained to the work "lining of supplementary drain including construction of cunnette from RD 20850 m to 20950 m of supplementary drain" under agreement No. EE/sdd-III/89-90/6 dated 22. 8. 1989. ( 4 ) PETITIONER had 7 claims against the respondents. 8th claim being for interest. Said claims were referred to the sole arbitration of Shri S. S. Aggarwal. Claim No. 2 had 18 sub-heads. Award of the learned arbitrator would reveal the following : TEXT OF JUDGMENT (NOVEMBER 27, 2003) 2003 (TLS)212900 2004-GLH-1-467 :: 2003-Tlgj-0-589 HANSADEVI GHANSHYAMSINH JADEJA Vs. STATE K. A. PUJ, J. ( 1 ) THIS petition is filed under Article 226 of the Constitution of India praying for issuance of writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus, directing the respondents, more particularly, the respondent No. 1 State of Gujarat and the Collector, Rajkot to implement the decision of the State Government contained in the order dtd. 13. 07. 1970 and in the order dtd. 15. 09. 2001 and to allot and physically hand over the possession of land bearing Survey Nos. 180, 69, 94, 96, 109 and 139 totally admeasuring about 51 acres situated at village Mota Mauva, Tal. and Dist. Rajkot. The petitioner has also prayed for issuance of an appropriate writ, direction or order, quashing and setting aside the decision of the State Government as taken by the then Chief Minister on 22. 09. 2001 or thereabout keeping in abeyance the order dtd. 15. 09. 2001 and quashing and setting aside the decision taken by the respondent No. 4 i. e. the Minister of State for Revenue Department on or about 12. 11. 2001 which was taken on 13. 12. 2001. 09. 2001 or thereabout keeping in abeyance the order dtd. 15. 09. 2001 and quashing and setting aside the decision taken by the respondent No. 4 i. e. the Minister of State for Revenue Department on or about 12. 11. 2001 which was taken on 13. 12. 2001. ( 2 ) CIVIL Application No. 1241/2003 was filed by Shri Mota Mauva Gram Panchayat through its Sarpanch seeking permission to be joined as respondent in S. C. A. No. 12432/2001. ( 3 ) CIVIL Application No. 4321/2002 was filed by Shri Samasta Saurashtra Leuva Patel Pragati Samaj through its Treasurer Shri Nagjibhai D. Khunt seeking permission to be joined as party - respondent in S. C. A. No. 12432/2001. ( 4 ) CIVIL Application No. 3068/2002 was filed by Shri Kapilbhai Tansukhlal Sameja seeking permissions to be joined as party - respondent in S. C. A. No. 12432/2001. ( 5 ) SO far as the main petition i. e. S. C. A. No. 12432/2001 is concerned, the brief facts giving rise to the said petition are that the petitioners late husband, namely, Ghanshyamsinhji Umedsinhji Jadeja was the erstwhile ruler of princely state of Khijadiya-Dhrol situated in Paddhari Tal. in Rajkot District in erstwhile region known as Saurashtra State. The said Shri Ghanshyamsinhji Umedsinhji Jadeja was the holder of approximately 2600 Acres of land which was his personal property. On formation of State of Saurashtra, the State of Saurashtra had effected and implemented the land Reforms under the Saurashtra Land Reforms Act, 1951 and 2600 Acres of land belonging to the said Shri Ghanshyamsinhji Umedsinhji Jadeja, husband of the petitioner herein, were acquired under the said Land Reforms Act. As per the provisions contained in the said Act, the said Shri Ghanshyamsinhji Umedsinhji Jadeja was entitled to be an allottee of Gharkhed land and hence, he had applied for grant of land as Gharkhed land under the provisions of the said Act. Pursuant to the said application moved by the said Shri Ghanshyamsinhji Umedsinhji Jadeja and his three brothers, the proceedings were initiated under the said Act. ( 6 ) BY virtue of an order dtd. 30. 03. Pursuant to the said application moved by the said Shri Ghanshyamsinhji Umedsinhji Jadeja and his three brothers, the proceedings were initiated under the said Act. ( 6 ) BY virtue of an order dtd. 30. 03. 1954, the Special Mamlatdar, Gharkhed, interalia had taken the view that the said Shri Ghanshyamsinhji and his three brothers were entitled to be granted totally 120 Acres of land and necessary certificate in this behalf was issued under Section 39 read with Section 2 of the said Act. Since the petitioners husband and his three brothers were not satisfied with the said order, they preferred Revision application before the Saurashtra Revenue Tribunal and the said revision application was rejected by the Tribunal vide its order dtd. 11. 12. 1954. The petitioners husbands brother, namely, Shri Pravinsinhji Umedsinhji Jadeja, being aggrieved and dissatisfied with the order of the Tribunal, made representation and applied to the Government of Gujarat for considering the case under Section 26 of the said Act. However, the said representation was also rejected by the Government of Gujarat. The matter was also taken up before this Court by way of an appeal and the said appeal was also dismissed by this Court. ( 7 ) THE petitioners late husband Shri Ghanshyamsinhji and his brother Pravinsinhji, had thereafter, made a representation on humanitarian ground to the Government of Gujarat, interalia, pointing out that 2600 Acres of land were lost and that the Government should consider grant of more land to them. On the basis of the said representation, the Deputy Secretary, Revenue Department, vide his communication dtd. 13. 07. 1970 informed the petitioners late husband that the Government had considered the matter and had decided to allot 60 Acres of land to each of the four brothers totalling 240 Acres of Govt. wasteland as old tenure land in Kheda district or any other District either together or in parts. Based on this order, the Collector Ahmedabad on 13. 07. 1970 itself granted allotment of 36 Acres per each of four units totalling 144 Acres to the petitioners late husband and his three brothers, out of land bearing Survey No. 355 of village Lavad, Tal. Dehgam, Dist. Ahmedabad. After having considered Collectors decision, the Government under its Yadi dtd. 25. 01. 1978 approved the grant of land to the petitioners late husband and his three brothers and on receipt of the said order dtd. Dehgam, Dist. Ahmedabad. After having considered Collectors decision, the Government under its Yadi dtd. 25. 01. 1978 approved the grant of land to the petitioners late husband and his three brothers and on receipt of the said order dtd. 25. 01. 1978, the petitioner made a request to the Collector, Ahmedabad on 21. 08. 1978 stating that as the native place of the petitioner was Paddhari taluka, Dist. Rajkot and her husband had expired, the petitioner may be allotted land to Paddhari Taluka instead of at village Lavad in Ahmedabad District. One of the brothers of the petitioners late husband, namely, Shri Ranjitsinhji also simultaneously approached the Govt. for allotment of land at village Paddhari in place of land at village Lavad and in response to the said representation, the Collector prepared a proposal of grant of land in Khijadiya for 51 Acres in case of the brother of the petitioners late husband. Pursuant to the said proposal, the Government of Gujarat had amended its decision and decided to allot 51 Acres of land to the brother of the petitioners late husband at village Khijadiya, Tal. Paddhari instead of land at village Lavad and accordingly, the land admeasuring 51 Acres out of Survey No. 286 at village Khijadiya, Tal. Paddhari was allotted in favour of the brother of the petitioners late husband. However, despite the fact that the case of the present petitioner was very material, no decision was taken nor the land was allotted to the petitioner. In view of non-allotment of land to the petitioner, several representations were made by the petitioner to the State Government. It was also found that the land allotted at village Lavad was allotted to the person belonging to backward classes and that the Gram Panchayat has also passed Resolution opposing grant of land to the petitioner and hence, a request was made for allotment of land at village Kudasan, Tal. and Dist. Gandhinagar. The Collector, Gandhinagar vide his communication dtd. 30. 04. 1999 informed that the land was vested in the Gram Panchayat and was not the Govt. wasteland at village Kudasan. It was further communicated that there was opposition and panchayat was not willing to the allotment of land. ( 8 ) SINCE the land at village Kudasan was not available for allotment, the petitioner made another representation on 03. 05. 1999 informed that the land was vested in the Gram Panchayat and was not the Govt. wasteland at village Kudasan. It was further communicated that there was opposition and panchayat was not willing to the allotment of land. ( 8 ) SINCE the land at village Kudasan was not available for allotment, the petitioner made another representation on 03. 05. 2000 pointing out that the land was available at Rajkot district and, therefore, request was made for allotment of land at village Mavdi, Tal. and Dist. Rajkot out of Govt. wasteland. The State Government vide its communication dtd. 30. 06. 2001 informed the petitioner that as the land of village Mavdi which was demanded to be allotted was situated within the Rajkot city limits, it was not possible to allot the said land and, therefore, the petitioner was called upon to select another land in Rajkot / Jamnagar or other districts of Saurashtra. The Revenue Department has also called for the detailed report from the Collector, Rajkot to find out the land which is away from city. A detailed report was submitted by the Collector, Rajkot to the Deputy Secretary, Revenue Department on 24. 08. 2001 pointing out that the land of Survey No. 180 admeasuring about 24 Acres and 30 Gunthas as well as land situated at Survey Nos. 69, 94, 96, 109 and 139 admeasuring about 26 Acres and 10 Gunthas were available for allotment. It was pointed out in the said report that there was demand of Patel Seva Samaj Trust for educational purposes which was earlier rejected. Other application was also rejected. Applications moved by Smt. Kiranben and Hemalben were pending. It was further pointed out that the land was in agricultural zone and it was outside Municipal Corporation area and within the area of Rajkot Urban Development Authority. It was submitted in the said report that according to the Govt. Resolution the decision for allotment to be taken only by the Govt. and hence, the order from the Govt. was sought for. ( 9 ) BASED on the said report of the Collector, an order was passed on 15. 09. 2001 by Shri A. S. Gamit, Deputy Secretary, Revenue Department, Govt. of Gujarat in the name of the Governor of Gujarat and the said order was despatched by Regd. A. D. Post to the Collector, Rajkot. was sought for. ( 9 ) BASED on the said report of the Collector, an order was passed on 15. 09. 2001 by Shri A. S. Gamit, Deputy Secretary, Revenue Department, Govt. of Gujarat in the name of the Governor of Gujarat and the said order was despatched by Regd. A. D. Post to the Collector, Rajkot. The land allotted to the petitioner is at village Mota Mauva. However, the said order was kept in abeyance at the instance of the then Chief Minister on 22. 09. 2001. The Chief Minister thereafter on 27. 10. 2001 took a decision, asking the revenue department to process file further in accordance with the existing policy. Thereafter, on 12. 11. 2001, the then Minister of State for Revenue took a decision that in view of the fact that earlier order dtd. 15. 09. 2001 allotting the land to the petitioner was kept in abeyance on 22. 09. 2001 and as the land which was ordered to be allotted at village Mota Mauva is within the area of Rajkot Urban Development Authority and as the petitioner was entitled to get land for agricultural purposes and as the land in question was having potential for non-agricultural purposes, it was not proper to grant the said land for agricultural purposes. The decision was therefore taken to cancel the earlier allotment and it was decided to inform the Collector to reject the proposal for grant of land at village Mota Mauva. The Chief Minister concurred with the decision of the Revenue Minister on 13. 12. 2001 and taken the decision on the file. ( 10 ) IT is in the above background, the present petition is filed under Article 226 of the Constitution of India. ( 11 ) MR. Harin P. Rawal, learned advocate appearing for the petitioner submitted that there is no power to review the decision taken by the Govt. in the name of the Governor of Gujarat since no such power of review is expressly conferred under the Provisions of the statute. ( 11 ) MR. Harin P. Rawal, learned advocate appearing for the petitioner submitted that there is no power to review the decision taken by the Govt. in the name of the Governor of Gujarat since no such power of review is expressly conferred under the Provisions of the statute. In this connection, he has relied on the decision of this Court in the case of BHAGWANJI BAWANJI PATEL v. STATE OF GUJARAT AND ANOTHER, (12) G. L. R. 156 wherein it is held that "there is no provision in the Bombay Land Revenue Code whereby the State Government can review its own order already passed in exercise of its powers under Section 211 of the Code. It may, if permissible in law, have recourse to a remedy by filing a suit in a Civil Court. But it cannot review its own order. " Mr. Rawal has further relied on the decision of this Court in the case of T. R. ASSOCIATES v. STATE OF GUJARAT AND OTHERS, 41 (4) G. L. R. 2969 wherein, after referring to the decision of the Honble Supreme Court in the case of PATEL NARSHI THAKERSHI v. PRADYUMANSINGHJI, A. I. R. 1970 S. C. 1273 laying down the proposition that "the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It was held that since there is no provision in the Bombay Land Revenue Code empowering the State Government to review its own order the impugned order which practically amounts to reviewing the earlier order of the Govt. dtd. 11. 03. 1991 is apparently illegal and without jurisdiction. It cannot be said that the revisional authority has done substantial justice by passing the impugned order. " Mr. Rawal has also relied on the decision of the Honble Supreme Court in the case of MAJOR CHANDRA BHAN SINGH v. LATAFAT ULLAH KHAN AND OTHERS, 1979 (1) S. C. C. 321 wherein it is held that "it is well settled that review is a creature of statute and cannot be entertained in the absence of provisions thereof. " Mr. Rawal has further relied on the decision of the Honble Supreme Court in the case of DR. " Mr. Rawal has further relied on the decision of the Honble Supreme Court in the case of DR. (SMT.) KUNTESH GUPTA v. MANAGEMENT OF HINDU KANYA MAHAVIDYALAYA, SITAPUR AND OTHERS, 1987 (4) S. C. C. 525 wherein it is held that "a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. " ( 12 ) MR. Rawal has further pointed out that the grounds on which the decision was reversed were that the land is within the Rajkot Urban Development Authority area, it is having N. A. potential and the petitioner was entitled to get the land for agricultural purpose only. All these grounds were present while taking decision to allot the land in question and yet the allotment order was passed on 15. 09. 2001. He has further submitted that while allotting the land under order dtd. 15. 09. 2001, the Revenue department has also taken into consideration para 20 of the Circular of the Govt. dtd. 28. 03. 1989 which empowers the Govt. to allot land for agricultural purpose, if such land is situated within the urban area. He has further submitted that the Revenue Minister has taken the decision for extraneous purpose and on irrelevant and extraneous ground, so as to deprive the petitioner widow lady of an original claim of land to be allotted according to the decision taken by the Govt. in the year 1970 which decision was not being implemented for one or another reason for about 31 years, causing irreparable loss and prejudice to the petitioner. He has further submitted that the petitioner is 76 years old lady and is denied her rightful claim without any rhyme or reason for extraneous considerations which are not germane to the exercise of powers. ( 13 ) MR. Rawal has further submitted that the decision to concern the allotment is violative of principles of natural justice, in as much as, once an order dtd. 15. 09. 2001 was passed allotting land, vested right is created in favour of the petitioner which could not have been taken away without complying with principles of natural justice, even assuming without admitting that the Govt. has power of review. 15. 09. 2001 was passed allotting land, vested right is created in favour of the petitioner which could not have been taken away without complying with principles of natural justice, even assuming without admitting that the Govt. has power of review. In this connection, he relies on the decision of this Court in the case of HASMUKHBHAI DHANJIBHAI ZAVERI v. R. PARTHASARTHY, 12 G. L. R. 128 wherein it is held that:"the vice that attaches to an order passed in contravention of principles of natural justice cannot be cured ex post facto by affording to the person affected thereby an opportunity to represent his case after the order is passed. An order made in breach of principles of natural justice is void and an opportunity given to the affected person to represent his case after such an order is made cannot have the effect of resuscitating a still-born order. The fatal defect in the proceedings may be cured only if the authority passing the order, realising that it had acted hastily and arbitrarily, annuls its decision, proceeds to reconsider the whole matter afresh after affording to the person affected a reasonable opportunity to represent his case and arrives at a fresh decision. The Court has further held that the consideration whether miscarriage of justice has, in fact, resulted or not is wholly irrelevant in judging the validity of an order passed in violation of the rules of natural justice. The breach of natural justice is itself miscarriage of justice which entitles the applicants to succeed. " ( 14 ) MR. Rawal has lastly submitted that the facts and grounds stated in the affidavit-in-reply amounts to adding to the reasons contained on the file for taking the impugned decision with a view to justify the same such course is not permissible in law. For this purpose, he relies on the decision of the Honble Supreme Court in the case of MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS, A. I. R. 1978 S. C. 851 wherein it is held that "when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. " On the basis of the aforesaid grounds and submissions, Mr. Rawal has strongly contended that the decision to cancel the allotment is absolutely unjust, illegal, bad in law and beyond the powers of the State Government. He has, therefore, prayed before this Court that the State Government be directed to implement the order dtd. 15. 09. 2001 forthwith. ( 15 ) MR. K. B. Trivedi, learned Addi. Adv. General appearing for the respondent State while opposing the petition, has invited my attention to the relevant provisions contained in the Saurashtra Land Reforms Act, 1951. Section 2 (12) of the Act defines economic holding in relation to any region specified in column 1 of the First Schedule, means a holding of land of an area shown in the corresponding entry in column 2 thereof". Section 2 (13) of the Act defines estate which means all land of whatever description or an undivided share thereof held by a Girasdar and includes uncultivable waste, whether such land is used for the purposes of agriculture or not". Section 2 (14) defines gharkhed which means any land reserved by, or allotted to a Girasdar before 20/05/1950 for being cultivated personally, and in his personal cultivation. Section 19 (1) states that any Girasdar at any time within four months from the date of the commencement of the Saurashtra Land Reforms (Second Amendment) Ordinance, 1952 apply to the Mamlatdar for the allotment to him of land for personal cultivation. Section 20 (1) of the Act states that on receipt of an application under Section 19, the Mamlatdar shall issue notice to the tenant or tenants concerned and, after giving the parties an opportunity of being heard, shall make an inquiry in the prescribed manner. Sub-section 2 thereof states that after making such inquiry as may be deemed necessary, the Mamlatdar may, having due regard to the provisions of this Chapter, pass an order making an allotment to the Girasdar of such land as may be specified in the order. Sub-section 2 thereof states that after making such inquiry as may be deemed necessary, the Mamlatdar may, having due regard to the provisions of this Chapter, pass an order making an allotment to the Girasdar of such land as may be specified in the order. Section 21 of the Act states that subject to the provisions of this Chapter, a Girasdar of A class or B class shall be allotted land for personal cultivation to such an extent as, when added to the area of Gharkhed in his estate and of Khalsa land, if any, in his possession, would make up the total area as shown below: (A) in the case of A class Girasdars, 3 economic holdings. Section 22 of the Act states that in making an allotment of land to any Girasdars of A class or B class, the Mamlatdar shall have due regard to the following provisions, namely, (a) firstly such of the bid land or cultivable waste of the estate as the Girasdars wishes to utilize for personal cultivation shall be allotted to him. ( 16 ) ON the basis of the above statutory provisions, Mr. Trivedi has contended that the allotment of land to Girasdar for personal cultivation shall be out of the original estate and that no allotment can ever be effected for the purpose other than personal cultivation and in the areas other than the original estate. Mr. Trivedi has further submitted that if at all any right came to be accrued in favour of the petitioner then in that case the same was pursuant to the order dtd. 30. 03. 1954 passed by the Special Mamlatdar (Gharkhed) directing allotment of in all 120 acres of land at village Mota Khijadia to the late husband of the petitioner and his three brothers. However, it was the petitioners husband who waived the said right to have land at village Mota Khijadia on the ground that they may not like to displease the tillers who were in occupation of the said land. He has, therefore, contended that in view of this waiver, it is not legally permissible to the petitioner to allege the conferment of any further right and that too on the basis of a communication dtd. 13. 07. 1970. He has, therefore, contended that in view of this waiver, it is not legally permissible to the petitioner to allege the conferment of any further right and that too on the basis of a communication dtd. 13. 07. 1970. The said communication was rather a reaction of magnanimity on the part of the State Government whereby the petitioner was merely desired to select land and to inform the Government accordingly. He has further submitted that even today, after lapse of more than three decades, the State Government does not want to back out from the said reaction in principle, so long as the land to be selected by the petitioner falls within the estate of the petitioners family as defined under Section 20 of the Saurashtra Land Reforms Act, 1951. ( 17 ) MR. Trivedi has further submitted that inter-departmental communication/proposal dtd. 15. 09. 2001 addressed by the Secretary, Revenue Department to the Collector, Rajkot cannot, by any stretch of imagination, be considered to be an order which can be pressed for execution, unless the following conditions are complied with :i) It should be expressly stated "by and in the name of the Governor" and authenticated as provided in Article 166 (2) of the Constitution;ii) The same should be in accordance with the Business Rules of the Government as specified in Article 166 (3) of the Constitution; andiii) The same must be communicated to the party concerned. He has further submitted that even if one of the aforesaid three conditions is not complied with, the communication and/or proposal in question remains to be a mere noting on the file which cannot partake the character of an executable order. He has therefore submitted that merely, because an order is made by and in the name of the Governor, in the manner prescribed in Art. 166 (2), it cannot be contended that such an order becomes immune and that the validity thereof cannot be questioned on any other ground including the ground to the effect that the said order does not correctly reflect the decision taken by the State Government. The only challenge against the said order which is excluded is to the effect that it is not an order made by the Governor. The only challenge against the said order which is excluded is to the effect that it is not an order made by the Governor. In this connection, he relied on the decision of the Honble Supreme Court in the case of E. P. ROYAPPA v. STATE OF TAMIL NADU, A. I. R. 1974 S. C. C. 555 wherein it is held that "it is now well settled law that when an order is authenticated, the only challenge that is excluded by the authentication is that it is not an order made by the Governor. The validity of such an order can be questioned on other grounds. The authentication does not, therefore, preclude the contention that the order though made by the Governor suffers from some other infirmity. The authenticated order is merely an expression of the actual order which precedes it and which is made by the appropriate authority entitled to act on behalf of the State Government. The process of making an order precedes and is different from the expression of it. It should, therefore, be axiomatic that if the authenticated order does not correctly reflect the actual order made, or to put the same thing differently, the actual decision taken by the State Government, it must be open to correction. The formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made and override it. That would not be consonant with reason or principle. It would be an artificial rule calculated to obstruct the cause of truth and justice. In the case before the Honble Supreme Court, it was the citizen who contended that the authenticated order does not correctly reproduce the actual order made by the State Government. But there may conceivably be cases where the Government may also find that there is a mistake in the authenticated order and it requires to be rectified. The Honble Supreme Court has, therefore, held that it was competent to the petitioner to contend, by reference to the draft order which contains the original decision of the State Government where the authenticated order did not correctly reflect such decision and suffer from an error. " ( 18 ) MR. The Honble Supreme Court has, therefore, held that it was competent to the petitioner to contend, by reference to the draft order which contains the original decision of the State Government where the authenticated order did not correctly reflect such decision and suffer from an error. " ( 18 ) MR. Trivedi has further contended that in exercise of the powers conferred by clauses (2) and (3) of Art. 166 of the Constitution and in supersession of Gujarat Government Rules of Business, 1988, the Governor of Gujarat has made Rules for more convenient transaction of the business of the Government of Gujarat known as Gujarat Government Rules of Business, 1990. In view of the provisions contained under Rule 10 (2), Rule 9 (2) and Rule 11 (1) (a) (i) of the said Rules as well as item 22 of Second Schedule to the said Rules, such a case like the present one is required to be placed before the Chief Minister for taking the decision in the matter as well as the Finance Department is required to be consulted in respect of all proposals affecting the finance of the State and particularly involving the grant of land, before issuing the orders. He has therefore submitted that any decision taken in violation of the aforesaid Provisions of the Business Rules is irregular and not capable of being pressed in service. In this connection, he relied on the decision of this Court (Coram :- D. A. Mehta, J.) dtd. 22/23. 07. 2003 in S. C. A. No. 4137/2002 wherein it is held that "a decision communicated by the Government to the Collector cannot assume form of an order as required by Art. 166 of the Constitution of India, and if that be so, it would not be open to the petitioners to rely upon such a decision and seek relief on basis of such decision. The Court has further observed that in absence of any order, which is valid in law, the petitioners cannot seek compliance of communication. This is apart from the fact that the petitioners could not have been officially in possession of the inter-departmental communication. The Court has, therefore, held that in light of the settled legal position, the petitioners cannot successfully assail either the earlier decision dtd. 03. 09. 1997 or seek relief on the basis of subsequent communication of October, 1997 and 04. 10. 1999. The Court has, therefore, held that in light of the settled legal position, the petitioners cannot successfully assail either the earlier decision dtd. 03. 09. 1997 or seek relief on the basis of subsequent communication of October, 1997 and 04. 10. 1999. " ( 19 ) MR. Trivedi has further relied on the Division Bench judgment of this Court (Coram :- J. M. Panchal and A. M. Kapadia, JJ) dtd. 09. 09. 2003 in LPA No. 832 of 2003 in S. C. A. No. 4137 of 2002 wherein it is held that "it is not necessary to decide on the basis of Art. 166 of the Constitution of India because the contention must fail in view of non-compliance of Rule 11 (1) of the Gujarat Govt. Rules of Business, 1990. The Court has come to the conclusion that there is no manner of doubt that the decision taken by the concerned Minister of the respondent No. 1 was contrary to the Gujarat Govt. Rules of Business, 1990 and, therefore, it cannot be directed to be implemented by issuing a writ of mandamus. The Court has further observed that it is well settled that writ will not be issued if effect of issuing writ would be to revive an illegal order. " ( 20 ) MR. Trivedi has further submitted that notings in a notes file do not have behind them the sanction of law as an effective order and are merely an expression of views preceding the order. An opinion becomes a decision of the Government only when it is communicated to the person concerned and then and then only any right can be said to have been accrued in favour of the person. In this connection, he relied on the decision in the case of KEDARNATH v. STATE OF PUNJAB REPORTED IN AIR 1979 S. C. 220 wherein it is held that "an order of the Chief Minister confirming a public servant does not create any right in favour of the servant concerned when it is not expressed in the name of the Governor and is not communicated to the employee. Consequently, the employee cannot challenge his reversion to his substantive post on the basis of such order when the order is subsequently rescinded and the temporary post on which the employee has been appointed, is abolished. " .