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Judgment
Sanjay Kishan Kaul, J.—The petitioner made an application for grant of perpetual leasehold rights in respect of hotel plot in November, 1994 in pursuance to the tenders invited for the same in October, 1994 and the bid of the petitioner was accepted on 14.12.94 for a sum of Rs. 15.62 crores in respect of the hotel plot at Wazirpur. The petitioner defaulted in payment of the instalments and requested for extension of time which was rejected on 8.6.1995. The petitioners filed a CW No. 2253/95 in which directions were passed on 14.2.1996 granting opportunity to the petitioners to make a representation to the Central Government including for such extension of time and in the alternative for refund of the amount paid by it which representation had to be considered. The petitioner made a representation which was rejected on 17.7.1996. This gave rise to the second writ petition bearing CW No. 3185/96. The said writ petition was dismissed on 9.9.1996. It would be relevant to reproduce para 21 of the directions contained in the said judgment which are as under:-
We make it clear that this decision concludes the controversy to the extent of the petitioner''s challenge to the correctness/propriety of the decision of the Central Government dated 17.7.1996 and to the decision of the respondent-DDA refusing to extend the time for payment of the balance amount. So far as the forfeiture of the earnest money is concerned, the petitioner is at liberty to challenge the same before a competent forum pursuing such remedy as may be advised. No order as to the costs.
The effect of this was that the matter in controversy in so far as the correctness of the decision of the Central Government refusing to extend the time period for making payment of the balance amount stood concluded.
It is relevant to note that in the counter affidavit filed by respondent DDA it has been stated that after forfeiture of the earnest money of Rs. 3.91 crores, the balance amount of Rs. 5,90,50,050/- was refunded to the petitioner which was encashed by the petitioner in October, 1996 unconditionally.
The present writ petition arises as a consequence of another representation made by the petitioner after a lapse of about 2 years on 19.6.1998. It is stated in para 21 of the writ petition that in pursuance to the said representation the petitioner was heard by the then Hon''ble Minister concerned and a decision was taken to grant relief to the petitioner on the same day itself i.e., 7.8.1998. However, no final communication was addressed to the petitioner. The petitioners have filed a supplementary affidavit dated 14.1.2003 stating this fact as also the fact of the Private Secretary of the then Hon''ble Minister handing over copy of the order dated 7.8.1998 to the petitioner. This aspect will have to be considered keeping in mind the averment made by the petitioner in para 21 of the petition stating that Mr. Pawan Sachdeva, Managing Director of petitioner No. 1 was informed that a formal order would be communicated in writing to petitioner No. 1. No such order was ever communicated and finally in terms of the letter dated 18.8.1999 the petitioners were informed that the representations had been examined but it had not been found possible to accept their request.
The petitioner has filed the present writ petition seeking quashing of the said letter dated 18.8.1999 and further seeking grant of extension of time for payment of the instalments as also for restraining the respondents from creating any third party interest in respect of the property in question.
I have considered the submissions advanced by learned Counsel for the parties.
It cannot be disputed that after the orders were passed in CW 3185/96 the issue of grant of extension of time for payment in favour of the petitioner would not arise for consideration and the matter in issue stood concluded by the judgment of the Division Bench. Thus this prayer of the petitioner can only be appreciated as a consequence of the prayer made for quashing of the letter dated 18.8.1999.
Learned Counsel for the petitioner has contended that rights were created in favour of the petitioner in pursuance to the order passed on 7.8.1998 by the then Hon''ble Minister and in case the matter was reconsidered and reviewed the petitioner had to be heard before the final decision was taken.
In order to appreciate this submission it is relevant to refer to the said order which forms part of the original record. Original records have been produced in the court. The noting in question were made by the then Hon''ble Minister putting down certain terms but what is relevant is the last portion of the said order/noting which is as under:-
This proposed order may be conveyed to the relevant officer in the Ministry for comments, if any. Put up again after a week.
Learned Counsel for respondent No. 1 contends that no rights can at all be created in favour of the petitioner arising from this so called order which was at best a noting in the file calling for comments from the officer. The perusal of the original records does show that the matter was put up to the concerned officers thereafter who did not agree with the noting of the then Minister and returned the file with their own conclusion recommending that the representation of the petitioner should not be accepted. This decision was then accepted by the Hon''ble Minister. It may be noted though it is not material that by then there had been a change in the Minister heading the Ministry.
Learned Counsel has referred to the judgment of the Supreme Court in Bachhittar Singh Vs. The State of Punjab, The Supreme Court was of the view that merely writing something on the file does not amount to an order and that for the same to amount to an order it has to be expressed in the name of the concerned authority and it has to be communicated. The Supreme Court observed as under at page 721:-
Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.
Learned Counsel also referred to the judgment of the Supreme Court in Gulabrao Keshavrao Patil and Others Vs. State of Gujarat and Others, which referred to the judgment in Bachattar Singh''s case (supra) with approval. A reference has also been made to the judgment of the Supreme Court in State of Bihar and Others Vs. Kripalu Shankar and Others, dealing with the issue of nothings in file. The Supreme Court observed as under:-
Viewed in this light, can it be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation. The nothings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under review. To examine whether contempt is committed or not, what has to be looked into is the ultimate order. A mere expression of a view in notes file cannot be the sole basis for action in contempt. Business of a State is not done by a single officer. It involves a complicated process. In a democratic set up, it is conducted through the agency of a large number of officers. That being so, the noting by one officer, will not afford a valid ground to initiate action in contempt. We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt. It would not, in our view, constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub-section (c) of Section 2 of the Contempt of Courts Act, 1971, which defines civil contempt. Expression of a view is only apart of the thinking process preceding government action.
Learned Counsel for both the respondents have also contended that the plea advanced on behalf of the petitioner that the petitioner should have been heard prior to the decision being communicated cannot be sustained as the petitioner has no right to be heard as admittedly it is not a statutory representation. Not only this the representation was made more than 2 years after the decision of the Division Bench of this Court in CW 3185/96 foreclosing this issue and on such representation the Minister had only directed that the observations of the department be obtained which were so obtained and the representation was finally rejected. It may be noted that in the said noting dated 7.8.1998 there is no reference to the petitioner or its representation being heard though in the writ petition and the additional affidavit the petitioner has stated so.
In my considered view a reading of the order passed in CW 3185/96 which was dismissed on 9.9.96 leaves no manner of doubt that in so far as the issue of explanation of the time period for making payment was concerned, the same did not survive for consideration. The representation filed by the petitioner on 19.6.1998 after a lapse of considerable period of time of almost two years and that too after encashing the cheques for refund of the amount sent back to the petitioner after deducting the earnest money, is clearly an after-thought though there is no doubt that the same was entertained by the Hon''ble Minister. Government and Government bodies may receive numerous representations which may have to be considered by them but it does not require that for each and every representation received a petitioner must be given an opportunity for hearing. The matter goes further then that since the petitioners'' own averment is that the petitioner was heard. The then Minister was of a particular view at that stage of time and sought comments from his officers. No final decision was taken. The final decision was taken only after the comments were called for which were against the petitioners and the Minister deciding the matter finally agreed with the comments of its officers. In such a case no right whatsoever could have arisen in favour of the petitioner.
I am unable to accept the contention of learned senior counsel for the petitioner that prior to the communication of the decision of rejection of the representation another opportunity should have been granted of hearing to the petitioner because the final view taken by the Minister was different from the earlier noting made after hearing the petitioners.
I am also constrained to comment on the issue of the noting dated 7.8.98. The same can certainly be not called an order and at best was a noting seeking advise of the other officers. It can hardly be appreciated as to in what circumstances should a copy of the said noting which was a matter of internal discussion between the Minister and his officers should have been handed over to the petitioners. Though the petitioners in writ petition in para 21 state that the final order had to be communicated subsequently by the additional affidavit copy of the said order has been filed stating that the Private Secretary to the said Minister handed over a copy. I refrain myself to express anything more on this issue.
The petitioner had numerous rounds of litigation on this very issue. There was no occasion to make the representation even after the decision of the Division Bench in CW 3185/96 much less to give rise to cause of action from rejection after two years of the said judgment. The petitioner cannot be permitted to keep on agitating the issue again and again and then come to court claiming a decision was taken in their favour though actually only comments were asked from the officers of the department. I find the writ petition wholly devoid of any merit or substance and dismiss the same with costs of Rs. 15,000/-.