The Delhi High Court has said that a decision taken by a Minister cannot have a binding effect unless it gets the nod of the President in case of the Union and the Governor when it came to a State.
“Mere writings on the file in the Ministry do not amount to an order unless expressed in the name of the President or the Governor in consonance with the constitutional mandate,” a Bench comprising Justices Pradeep Nandrajog and Suresh Kait said.
Finality only after assent
The court said an order attained finality only when it is expressed in the name of the executive head and merely writing something on the file kept in the Ministry has no effect.
“The opinion/notings/orders passed by the Minister in the file being not translated into an order as contemplated by the mandate of the Constitution, the stand of company that once the Minister took the decision on the file, the same has to be implemented, cannot be accepted,” the court said.
The court also said that the order so made in the names of the President and the Governor would not have a binding effect if it has not been communicated to parties concerned.
The court’s explanation of the Constitutional position came when it heard an appeal filed by M/s Shoes East Ltd (company) seeking implementation of an order passed by a Minister restoring the allotment of land to it.
The company was allotted a plot in the capital by Delhi Development Authority (DDA) on instalments. After paying the first instalment, the company defaulted and sought extension of time, which the DDA refused and cancelled the allotment.
The company then made representation to the Centre on which, the then Minister for Urban Development, after finding fault in the DDA’s order, made a file writing directing it to restore the allotment in 1998.
However, as the order was not expressed in the name of the President and never communicated to the company, the succeeding Minister to the office, differing from the decision taken by his predecessor, declined to restore the allotment.
Aggrieved by the subsequent order, the company approached the court on the ground that the succeeding Minister had no power to review the order of his predecessor.
Comminicate decision to affected party
The counsel for the company contended that even if such an order is going to be reviewed, the petitioner is entitled to be heard in compliance with the principles of natural justice.
However, the court rejecting the contention said that merely writing something cannot be deemed to be an order as the consultation process was still going on and hence, no question of order being reviewed had arisen.
“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,” the court said.