JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, New Kanpur Flour Mills Pvt. Ltd. seeks the following reliefs:-
"(a) 'issue' a writ, order or direction in the nature of certiorari, quashing the impugned order dated 3rd December, 1999 (annexure No. 11 to writ petition), passed by the State Government/respondent No. 1;
(b) 'issue' a writ, order or direction in the nature of mandamus, directing the respondents not to give effect to the impugned-order of respondent No. 1 dated 3rd of December, 1999(annexed as annexure No. 11 to this writ petition);
(c) 'issue' a writ, order or direction in the nature of mandamus, directing the respondents to extend the benefit of 20% rebate in making the deposit of free-hold amount by the petitioner as per the Government Orders dated 02.10.1994 and 17.02.1996(annexure nos.2 and 3 respectively to this petition) and not to make any further recovery of 20% rebate from the petitioner;
(d) 'issue' a writ, order or direction in the nature of mandamus, directing the respondents not to take any steps of recovery of 20% free-hold amount from the petitioner consequent to the Government Order dated 03.12.1999 (annexure No. l1 to this writ petition).
(e) 'issue' any such other or further suitable writ, order or direction as this Hon'ble Court may deem just and fit in the circumstances of the case to meet the ends of justice between the parties;
(f) 'award' the cost of the instant writ petition to the petitioner."
2. Briefly stated the facts giving rise to the present petition are as follows:
3. According to the petitioner, it is the leaseholder of Nazul Plot No. 2, Block No. 85 (82/2), Cooperganj, Kanpur Nagar. The Government of Uttar Pradesh had issued an order on 2nd December, 1992 laying down the policy and principles for conversion of lease hold rights in respect of nazul land into freehold on payment of the amount as prescribed therein. Several other Government Orders were issued from time to time by the Government of Uttar Pradesh. Vide Government Order dated 3rd October, 1994, the State Government had provided that if a lessee makes payment of the entire amount of freehold charges within 90 days from the issue of the demand note, the lessee would be entitled for rebate of 20% thereon. It is claimed by the petitioner that the Government of Uttar Pradesh vide order dated 14th October, 1996 had directed the district authorities to take proceedings for the conversion of leasehold rights in respect of nazul land into freehold in respect of the land held by the petitioner in accordance with the Government Order dated 17th February, 1996,wherein the amount of conversion from leasehold to freehold has been provided at the rate of 40% of the circle rate. The petitioner had made an application for conversion of lease hold rights in respect of the nazul plot in question into freehold on 12th May, 1993 and another application was made on 8th April, 1994. The demand note was issued to the petitioner on 25th January, 1995. The petitioner had challenged the validity of the Government Order dated 3rd October, 1994 and demand note dated 25th January, 1995 before this Court by means of Civil Misc. Writ Petition No. 21320 of 1995, which was subsequently got dismissed as withdrawn on account of subsequent developments ,which rendered it infructuous.
4. The Additional District Magistrate, Finance and Revenue, issued a fresh demand note dated 3rd June, 1997 for an amount of Rs. 21,30,078.50 in terms of the Government Order dated 17th February, 1996. It has been stated by the petitioner that the aforesaid demand note dated 3rd June, 1997 was received by the petitioner on 5th June, 1997 and it had deposited the amount on 2nd September, 1997 after adjusting the rebate of 20% available under the Government Order dated 17th February, 1996. The Vice Chairman, Kanpur Development Authority, Kanpur was of the opinion that the petitioner is not entitled for 20% rebate as it has not deposited the amount within 90 days from the date of issuance of the demand note whereupon the petitioner submitted a representation stating therein that it is entitled for the rebate of 20%, which representation was rejected by the Vice Chairman, Kanpur Development Authority, Kanpur vide order dated 2nd July, 1997. On 4th February, 1999 the State Government issued a clarification that if the entire amount is not deposited in lump sum but in instalments within the stipulated period, the rebate is admissible. The petitioner thereafter made another representation to the Additional District Magistrate (Finance & Revenue), Kanpur on 12th February, 1999 as also to the State Government on 16th February, 1999, which was followed by another representation made on 10th May, 1999. The State Government vide order dated 3rd December, 1999 has taken a decision that the petitioner is not entitled to rebate of 20% as the amount has been deposited after 90 days i.e. on 91st day from the date of demand note i.e. 3rd June, 1997 whereas the deposit has been made on 2nd September, 1997. The order dated 3rd December, 1999 is under challenge in the present writ petition.
5. We have heard Sri Naveen Sinha, learned Senior Counsel, assisted by Sri Anil Bhushan, learned counsel appearing on behalf of the petitioner and Sri C.B.Yadav, learned Chief Standing Counsel, appearing for the respondents.
6. Sri Sinha submitted that the period of 90 days is to be counted from the date when the demand note has been received by the petitioner i.e. from 5th June, 1997 and not from the date of the demand note i.e. 3rd June, 1997. According to him, if the period of 90 days is calculated from 5th June, 1997, then the amount has been deposited within the specified period of 90 days. According to him, 'the date of order' would mean the date when the order is served or received by the person concerned, who has to make compliance and not the date on which it has been signed by the officer. In support of his aforesaid plea he has relied upon the following decisions:
1. Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Anr.,
2. Madan Lal v. State of U.P. and Ors.,
7. He further submitted that the validity of the order is to be judged from the grounds given in the order and it cannot be supplemented by fresh grounds in the shape of affidavits or otherwise. In support of which he has relied upon the following decisions;
1. Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors.,
2. State Govt. Houseless Harijan Employees' Association v. State of Karnataka and Ors., (2001) 1 SCC 610.
3. Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr., .
4. Union of India and Anr. v. GTC Industries Ltd., Bombay, .
8. Sri C.B.Yadav, learned Chief Standing Counsel on the other hand submitted that the demand note dated 3rd June, 1997 was received by the representative of the petitioner on that very date and, therefore, the period of 90 days expired on 1st September, 1997. The petitioner having deposited the amount on 2nd September, 1997,which is after 90 days, being the 91st day, is not entitled for rebate of 20% as prescribed under the Government Order dated 3rd October, 1994. He further submitted that the petitioner's representative with the collusion of the office staff had interpolated the date of receipt from 3rd June, 1997 to 5th June, 1997 for which action against the staff has been taken. He invited the attention of the Court to Annexure CA-1 filed along with the counter affidavit of Sri Bhola Nath Mishra, V Additional City Magistrate, Kanpur Nagar and submitted that there is clear interpolation on the figure "3" given under the signature of the petitioner's representative and this Court should decline to exercise its jurisdiction under Article 226 of the Constitution of India in the present case.
9. Having given our anxious consideration to the various pleas raised by the learned counsel for the petitioner, we are of the considered opinion that the date of the order is to be treated as the date on which the order is communicated or received by the person concerned or when it is pronounced in the open Court after due notice.
10. The Apex Court in the case of Raja Harish Chandra Raj Singh (supra) has held that expression "the date of the award" used in proviso (b) to Section 18(2) of the Land Acquisition Act, 1894 must mean the date when the award is either communicated to the party or is known by him either actually or constructively and it would be unreasonable to construe the words from the date of the Collector's award used in the proviso to Section 18 in a literal or mechanical way.
11. In the case of Madan Lal (supra), the Apex Court while referring to its earlier decision in the case of Raja Harish Chandra Raj Singh (supra) has held as follows:-
"9. The Act we are concerned with does not state what would happen if the Forest Settlement Officer made an order under section 11 without notice to the parties and in their absence. In such a case, if the aggrieved party came to know of the order after the expiry of the time prescribed for presenting an appeal from the order, would the remedy be lost for no fault of his? It would be absurd to think so. It is a fundamental principle of justice that a party whose rights are affected by an order must have notice of it. This principle is embodied in Order XX, Rule 1 of the Code of Civil Procedure; though the Forest Settlement Officer adjudicating on the claims under the Act is not a Court, yet the principle which is really a principle of fair play and is applicable to all tribunals performing judicial or quasi-judicial functions must also apply to him. The point has been considered and decided by this Court in Harish Chandra v. Deputy Land Acquisition Officer, . This was a case under the Land Acquisition Act, 1894 and the Court was considering the question of limitation under the proviso to Section 18 of that Act. Under Section 18 of the Land Acquisition Act a person who has not accepted the Collector's award can apply to the Collector requiring him to refer the matter for the determination of the Court. This application has to be made within six months from the date of the Collector's award in the case where the person interested was not present or represented before the Collector at the time when he made his award or had received no notice from the Collector of the award. Construing the expression "the date of the award" this Court observed" 'The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair-play and natural justice the expression "the-date of the award" used in the proviso must mean the date when the award is either communicated to the party or known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector's award" used in the proviso to Section 18 in a literal or mechanical way.
...where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the order must mean either actual or constructive communication of the said order to the party concerned."
10. The High Court in the case before us was therefore right in holding that the impugned order should be deemed to have been passed on April 24, 1956 when the Forest Department came to know of the order and "the right of appeal granted to the Department should be determined on that very basis.""
12. In the case of D. Saibaba v. Bar Council of India, , the Apex Court has held that an order may be passed without the knowledge of anyone except its author, may be kept in the file and consigned to the record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the order would be lost by limitation though the person aggrieved or affected does not even know what order has been passed. Such an interpretation cannot be countenanced. It further held that the words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. Thus, the date of demand note in the present case would be the date on which the petitioner had come to know of it either actually or constructively. It is the specific case of the petitioner that the demand note dated 3rd June, 1997 was received by it on 5th June, 1997. In the representation filed before the State Government as also before the various authorities this very plea was taken. In the representation dated 12th February, 1999 made by the petitioner to the Additional District Magistrate(Finance & Revenue) Kanpur Nagar, a copy of which has been filed as Annexure No. 8 to the writ petition(which is not under dispute) in paragraph 17, the date of the receipt of the demand note dated 3 rd June, 1997 has been mentioned as 5th June, 1997. Similar fact has been stated in the representation dated 16th February, 1999 sent by the petitioner to the Secretary (Awas) Government of Uttar Pradesh, Lucknow, a copy of which has been filed as Annexure No. 9 to the writ petition and letter dated 10th may, 1999 sent by the petitioner to the Special Secretary (Awas) Government of Uttar Pradesh, Lucknow, a copy of which has been filed as Annexure No. 10 to the writ petition. The State Government vide order dated 3rd December, 1999 had rejected the representation of the petitioner by taking the view that 90 days would be counted from the date of the demand note and not from the date of receipt of it. It has mentioned the fact that the petitioner had received the demand note on 5th June, 1997. The State Government had not rejected the representation on the ground that the demand note was received by the petitioner on 3rd June, 1997.
13. So far as the question as to whether any other ground, other than what has been taken in the impugned order, can be raised for justifying the order is concerned, we find that in the case of Mohinder Singh Gill and Anr. (supra), the Apex Court has held as follows:
"8. The second equally relevant matter is 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. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (at p.l8):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Order are not like old wine becoming better as they grow older."
14. The aforesaid decision has been followed by the Apex Court in the case of State Govt. Houseless Harijan Employees' Association (supra), wherein the Apex Court has held as follows:
"49. The basis on which the learned Single Judge dismissed the appellant's writ petition was that there was no approval of the appropriate Government to the acquisition, namely, the absence of the third factor noted above. This was not the ground on which withdrawal from the acquisition had been made and it was not open to the State Government to justify its decision on any other ground. As held by this Court in Mohinder Singh Gill v. Chief Election Commr.:(at SCC p.417,para 8) "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."
15. In the case of Pavanendra Narayan Verma(supra) the Apex Court has held that an affidavit cannot be relied on to improve or supplement an order. It has further held that equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order.
16. In the case of GTC Industries Ltd. , Bombay(supra), the Apex Court has held that it is well settled that a quasi-judicial order has to be judged on the basis of the reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter affidavit or oral arguments before the court.
17. In the case of State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Anr., , the Apex Court has held that in relation to administrative act it is well settled that the statutory authority is not permitted to support its decision on the ground de hors the ground stated in the order.
18. Thus, from the aforementioned pronouncements of the Apex Court it is now well settled that an order has to be judged on the basis of reasonings contained therein and not on the basis of any fresh plea mentioned in the affidavit or taken in the oral arguments before the Court.
19. Applying the principle laid down in the aforesaid cases to the facts of the present case, we are of the considered opinion that the State Government in rejecting the petitioner's representation have not taken the ground regarding receipt of the demand note on 3rd June, 1997 itself instead of 5th June, 1997. It is now not open to the respondents to advance the plea that the demand note was received by the petitioner on 3rd June, 1997 and not on 5th June, 1997. So far as the question of interpolation on the date is concerned, we have perused the Annexure CA-1 filed along with the counter affidavit and are of the view that the figure mentioned therein can be read as "3" or "5". Thus, if the State Government had proceeded on the basis that the demand note was received by the petitioner on 5th June, 1997 we are afraid we cannot hold it otherwise.
20. No other point has been pressed by any of the counsels for the parties.
21. In view of the aforesaid discussion, as the petitioner had deposited the amount within 90 days from the date of receipt of the demand note, we are of the considered opinion that the petitioner was entitled for rebate of 20% as per the Government Order dated 3rd October, 1994. The State Government had rejected the petitioner's representation wholly on untenable grounds.
22. In the result, the writ petition succeeds and is allowed and the order dated 3rd December, 1997 passed by the State Government, filed as Annexure No. 11 to the writ petition, is hereby set aside and a writ of mandamus is issued directing the respondents to allow the rebate of 20% to the petitioner in terms of the Government Order dated 3rd October, 1994.
On the facts and circumstances of the case, the parties are left to bear their own costs. Dated: 12.9.2005