ROPAN SAHOO & ANOTHERversusANANDA KUMAR SHARMA & OTHERS

                    [2013] 3 S.C.R. 1129


               ROPAN SAHOO & ANOTHER                               A
                               V.
         ANANDA KUMAR SHARMA & OTHERS
            (Civil Appeal No. 615 of 2013)
                     JANUARY 22, 2013
                                                                   B
   [K. S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     Orissa Excise Rules, 1965 - r.34(1) proviso - Grant of
IMFL licence - By relaxing the rules - Challenged - High
Court quashed the grant of licence on the ground that there        C
was no order relaxing the rules - On appeal, plea that order
granting licence was in consonance with proviso to r.34(1) -
Held: It is evident from the Note-sheet in the file that every
authority was aware of the restrictions on the distance from the
preferred site and recommended for relaxation - Non-               D
mentioning of rule does not tantamount to non-passing of an
order - Thus the order of granting licence was in consonance
with proviso to r.34(1) - Therefore, if cannot be said thatthere
was no order relaxing the rules.
                                                                   E
     Licence in respect of IMFL 'ON' shop, was granted
in favour of the appellants in C.A.No.615 of 2013.
Respondent No.1 filed writ petition under Art. 226 of the
Constitution, challenging the grant of the licence. High
Court entertained the writ petition and quashed the grant . F
of exclusive privilege and the licence, holding that there
was no order relaxing the restrictions on the minimum
distance as mentioned in clauses (d) and (e) of r.34 of
Orissa Excise Rules, 1965 relating to the proposed shops
in exercise of powers of the said Rule. Hence the present
appeals by the affected persons as well as the State. The G
State referred to the Note-sheet in the file to highlight that
the order had been passed in consonance with proviso
to r.34(1) of the Rules.

                              1129                                 H
     1130    SUPREME COURT REPORTS             [2013] 3 S.C.R.


A        Allowing the appeals, the Court

         HELD: 1. The reasons ascribed by the High Court
   that there was no order whatsoever relaxing the Orissa
   Excise Rules, 1965 before the order of grant of exclusive
   privilege was passed, is not correct. On a keen ~crutiny
8
   of the entire note-sheet it is evident that the
   Commissioner-cum-Secretary had accepted the
   recommendations of the Collector and the Excise
  Commissioner, and upon perusal of the note-sheet, the
C Joint Secretary had recommended for consideration and
  approval by the Minister of Excise and Tourism. The
   Minister has signed and thereafter, the file had travelled
  back for communication. After the Minister had signed on
  the file on the basis of the recommendations sent by the
  Commissioner-cum-Secretary which was founded on the
D recommendations of the Joint Secretary who had
  concurred with the recommendations of the Collector
  and the Excise Commissioner, communications were
  made· by the Joint Secretary. The note-sheet clearly
  indicated application of mind to the relevant facts which
E pertain to the restrictions on the distance from the
  proposed site and the endorsement by the Minister. [Para
  18] [1141-B-F]

        Tafcon Projects (I) (P) Ltd. v. Union of India and Ors.
F (2004) 13 sec 788 - relied on.

       Narmada Bachao Ando/an v. State of Madhya Pradesh
  AIR 2011 SC3199: 2011 (12) SCR 84; State of U.P. and Ors.
  v. Pradhan Sangh Kshettra Samiti and Ors. AIR 1995 SC
  1512: 1995 (2) SCR 1015; Shamsher Singh v. State of
G Punjab and Anr. AIR 1974 SC 2192: 1975 (1) SCR 814;
  Sethi Auto Service Station and Anr. v. Delhi Development
  Authority and Ors. (2009) 1 sec 180: 2008 (14) SCR 598;
  State cf West Bengal v. M. R. Monda/ and Anr. AIR 2001 SC
    3471: 2001 (2) Suppl. SCR 531 - referred to.
H
 . ROPAN SAHOO v. ANANDA KUMAR SHARMA                 1131


     2. The cumulative effect of the note-sheet goes a        A
long way to show that every authority was aware of the
distance and recommended for relaxation of clauses (d)
and (e) of sub-rule (1) of Rule 34 and the concerned
Minister had endorsed the same. Non-mentioning of the
Rule or sub-rule does not tantamount to non-passing of        B
an order. The dominant test has to be the application of
mind to the relevant facts. The second part of the order,
if properly appreciated, conveys that no reasons have
been ascribed. The proviso to Rule 34(1) lays a postulate
that the distance as mentioned under clauses (d) and (e)      ·c
may be relaxed by the State Government in special
circumstances. The recommendations made by the
Collector refers to the circumstances, namely, that there
is a demand for consumption of liquor within the hotel
premises; that illegal liquor cases have been booked in
the nearby area; and that the proposal is in the interest     D
 of the Government revenue. The said recommendations
 have been concurred with, by the higher authorities and,
 hence, there can be no trace of doubt that they constitute
the special circumstances. [Para 24] [1144-H; 1145-A-D]
                                                              E
                    Case Law Reference:
    (2004) 13 sec 788            relied on        Para 18
    2011 (12) SCR 84             referred to      Para 20
    1995 (2) SCR 1015            referred to      Para 21      F

    1975 (1) SCR 814             referred to      Para 21
    2008 (14) SCR 598            referred to      Para 22
    2001 (2) Suppl. SCR 531      referred to      Para 23     G
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 615
of 2013.

    From the Judgment & Order dated 16.09.2009 of the High
Court of Orissa at Cuttack in W.P.(C) No. 3913 of 2009.        H
     1132    SUPREME COURT REPORTS                 [2013) 3 S.C.R.


A                                WITH

    Civil Appeal No. 616 of 2013

      Bhaskar P. Gupta, Shibashish Misra, Arun Patr,
  Abhinandan Nanda, Kirti Renu Mishra, Apurna Upmanyu, G.
B Ramakrishna Prasad, B. Suyodhan, Mohd. Wasay Khan, Filza
  Moonis for the Appearing Parties.

         The Judgment of the Court was delivered by

C       DIPAK MISRA, J.1. Leave granted in both the special
    leave petitions.

       2. Questioning the legal acceptability of the order dated
  16.9.2009 passed by the Division Bench of the High Court
  Orissa at Cuttack in WP(C) No. 3913 of 2009 whereby the High
D Court entertained the writ petition preferred by the first
  respondent herein and quashed the grant of exclusive privilege
  and the licence granted in favour of Ropan Sahoo and Mukesh
  Kumar, the respondent Nos. 5 and 6 in the writ petition, the
  present appeals have been preferred by the grieved persons
E as well as by the State.

        3. Shorn of unnecessary details the facts which are
  requisite to be stated are that Mukesh Kumar, the respondent
  No. 6 before the High Court, had submitted an application for
  grant of licence to open an IMFL "Off' shop in Ward No. 16,
F Bargarh Town for the year 2007-08 on 28.1.2008. As a report
  was submitted that the proposed site was violative of sub-rule
  1(c) of Rule 34 of Orissa Excise Rules, 1965 (for short "the
  Rules"), the said respondent chose to withdraw the application
  for the aforesaid year by indicating personal reasons. In
G respect of the next financial year he again submitted an
  application for grant of licence at the same place. The Collector,
  Bargarh, invited objections and pursuant to the same the writ
  petitioner filed his objection on 18.10.2008. The Inspector of
  Excise submitted a report on 2.2.2009 stating about the
H
     ROPAN SAHOO v. ANANDA KUMAR SHARMA                       1133
               [DIPAK MISRA, J.]

existence of a bathing ghat, Vishnu temple, bus stand and              A
petrol pump within the prohibited distance, but recommended
for relaxation of restrictions. The Collector, Bargarh,
recommended for opening of the shop for remaining part of the
year 2008-09 in relaxation of the restrictions and .the Excise
Commissioner also recommended to the Government on                     B
19.2.2009 for sanction by relaxing of the restrictions. As the
factual matrix would reveal, the State Government on the basis
of the recommendations invoked the power of relaxation under
Rule 34 of the Rules and granted licence in favour of the said
respondent for the remaining period of 2008-09. Be it noted,           c
in a similar manner relaxation was granted for opening of the
IMFL/Beer ('ON' shop) at Hotel Sawadia for the period from
2.3.2009 to 31.3.2009.

        4. Being grieved by the grant of said licences, the first
  respondent invoked the jurisdiction of the High Court under          D
  Article 226 of the Constitution principally contending that the
  report submitted by the Excise Inspector with regard to certain
  aspects, namely, location of the bathing ghat, etc. were not
  factually correct; that the recommendations made by the
  authorities were highly improper and unwarranted; and that the       E
  relaxation had been granted in an extremely arbitrary manner
  and, therefore, the grant of exclusive privilege and the licence
  deserved to be axed. The High Court perused the documents
  brought on record, called for the record to satisfy itself in what
  manner the power of relaxation was exercised, and after              F
· perusal of the record and on consideration of to various
  recommendations, came to hold that as far as the respondent
  No. 5 was concerned for sanction of a beer parlour 'ON' shop
  licence for the remaining period of 2008-09, no order was
  passed relaxing the Rules before the grant of exclusive              G
  privilege. As far as the sanction of IMFL Restaurant licence in
  respect of 6th respondent was concerned, the High Court
  expressed the similar view. We think it apt to reproduce thi:
  ultimate conclusion recorded by the High Court: -
                                                                       H
    1134     SUPREME COURT REPORTS                 (2013) 3 S.C.R.


A        "13. Proviso to Rule 34 specifically prescribes that
         restriction on the minimum distance as mentioned in
         Clause (d) and (e) may be relaxed by the State
         Government in special circumstances. There being no
         order by the State Government relaxing the aforesaid two
B        Clauses in relation to the minimum distance between the
         proposed shops and the place of worship i.e. the Vishnu
         Temple, petrol pump and bus stand, the order of the State
         Government approving the sanction/grant of exclusive
         privilege in favour of opposite parties 5 and 6 cannot be
c        sustained in law."

         5. After so stating the High Court referred to Section 41
    of the Bihar and Orissa Excise Act. 1915 (for brevity "the Act")
    and observed as follows: -

D       "Rule 34 of the Rules castes a statutory duty on the
        Department to pass order with reasons relaxing the
        restrictions. When there has been infraction of such
        statutory duty, the same cannot be covered under Section
        41 of the Act."
E
          6. Being of the aforesaid view, the High Court quashed the
    privileges and the licences granted in favour of the private
    respondents therein.

       7. We have heard Mr. Bhaskar P. Gupta, learned senior
F counsel for the beneficiaries of the grant, Mrs. Kirti Renu
  Mishra, learned counsel for the State and Mr. G. Ramakrishna
  Prasad, learned counsel appearing for the respondent No. 1
  in both the appeals.

G      8. At the very outset we may note that it is the admitted
  position that both the proposed sites come within the prohibited
  area as envisaged under Rule 34(1)(d) and (e) of the Rules.
  Rule 34 of the Rules stipulates that the places in· respect of
  which licences for consumption of liquor on vendor's premises
H should not be granted. The said Rule reads as follows: -
   ROPAN SAHOO v. ANANDA KUMAR SHARMA                        1135
             [DIPAK MISRA, J.]

    "34. Licences for shops for consumption of liquor on              A
    vendor's premises not to be granted at certain places
    : (1) No new shop shall be licensed for the consumption
    of liquor on the vender, premises -

      (a)     in a marketplace, or
                                                                      B
      (b)     at the entrance to market place, or

      (c)     in close proximity to a bathing-ghat, or

      (d)      within at least five hundred meters from a place of    C
             · worship, recognized educational institution,
               established habitant especially of persons
               belonging to scheduled castes and labour colony,
               mills and factories, petrol pumps, railway stations/
               yard, bus stands, agricultural farms or other places
                                                                      0
               of public resort, or

     . (e)    within at least one kilometer from industrial,
              irrigation and other development projects areas, or

      (f)     in the congested portion of a village :                 E
           Provided that the restriction on the minimum distance
     as mentioned under clauses (d) and (e) may be relaxed
     by the State Government in special circumstances.

           (2) So far as practicable, an established liquor shop      F
     licensed for the consumption of liquor on the premises shall
     not be allowed to remain on a site which would not under
     sub-rule (1) be permissible for the lo.cation of a new shop.

            (3) In areas inhabited by ScheduledTribes, country        G
     spirit shops shall not be licensed to be placed immediately
     on the side of a main road or in any other prominent
     position that is likely to place temptation in their way."

    9. On a perusal of the aforesaid Rule, it is crystal clear that
the State Government has been conferred with the power to             H
    1136     SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A  relax the restriction on the minimum distance as mentioned in
  clauses (d) and (e) pertaining to the minimum distance. As has
  already been indicated hereinbefore there is no cavil that the
  material on record pertained to the relaxation of the restriction
  as prescribed under clauses (d) and (e) of sub-rule (1) of Rule
B 34 of the Rules. The High Court, as the impugned order would
  reflect, has quashed the order of approval/sanction and the
  consequent grant of licences on the foundation that there has
  been no order relaxing the restrictions on the minimum distance
  as mentioned in Clauses (d) and (e) relating to the proposed
C shops in exercise of powers of the said Rule by the State
  Government and, in any case, no reasons have been ascribed.
  Thus, the question that emanates for consideration is whether
  the High Court has appositely appreciated the note sheet in the
  file and arrived at the correct conclusion or not.

D       10. The High Court, as demonstrable, has reproduced the
  communications made by the Joint Secretary to the
  Government by fax vide memo No. 1159/Ex. dt. 2.3.2009
  addressed to the Excise Commissioner about the Restaurant
  "ON" shop licence in favour of Mukesh Kumar at "RASSOI
E RESTAURANT" in the premises of Hotel 'Sawadia Palace',
  Ward No. 11, Bargarh Municipality over Plot No. 1622, Khata
  No. 2542/362, in the district of Bargarh for the remaining period
  of 2008-09 and also the memo No. 1161/Ex. dated 2.3.2009
  in respect of Beer Parlour "ON" shop licence in favour of Ropan
F Sahoo over Plot No. 1391/2260, Khata No. 393 in Ward No.
  16 of Bargarh Municipality, in the district of Bargarh for the
  remaining period of 2008-09. The communication that has been
  made in favour of Mukesh Kumar reads as follows: -
        "In inviting a reference to your letter No. 1214 dt. 19.2.09
G       on the subject cited above, I am directed to say that Govt.
        after careful consideration have been pleased to grant
        IMFL Restaurant "ON" shop Licence in favour of Sri
        Mukesh Kumar at "RASSOI RESTAURANT" in the
        premises of Hotel ~sawadia Palace", Ward No. 11,
H       Baragarh Municipciity over Plot No. 1622, Khata No. 2542/
   .ROPAN SAHOO v. ANANDA KUMAR SHARMA                     1137
              [DIPAK MISRA, J.]

    362, in the district of Baragarh for the remaining period of    A
    2008-09 by relaxing rule 34 of the Orissa Excise Rules,
    1965 and fixation of MGQ as per Excise Duty, Fee
    Structure and Guidelines for 2008-09. The Excise
    Administration may be held responsible if the existing
    nearby excise shops are affected by the new "ON" shop."         B

    As far as grant of beer parlour "ON" shop in favour of
Ropan Sahoo is concerned, the communication vide memo No.
1161/Ex. dated 2.3.2009 is as follows: -

    "In inviting a reference to your letter No. 1380 dt. 25.02.09   C
    on the subject cited above, I am directed to say that Govt.
    after careful consideration have been pleased to sanction
    Beer Parlour "ON" shop Licence in favour of Sri Ropna
    Sahoo over Plot No. 139112260, Khata No. 393/330 in
    Ward No. 16 of Bargarh Municipality, in the district of         D
    Bargarh for the remaining period of 2008-09 subject to
    condition that the district excise officials will be held
    responsible if the nearby existing excise shops are
    affected by opening of the new shop."
                                                                    E
      11. As no reasons were assigned, the High Court called
for the file. On a perusal of the file the High Court referred to
the recommendations and, eventually, opined that no order had
been passed relaxing the Rule in respect of the said shops by
the Commissioner-cum-Secretary to Government, Department
of Excise. The thrust of the matter is whether any order has been
                                                                    F
passed relaxing the restrictions imposed by the Rules and does
it contain reasons. As the first communication would reveal, it
is clearly mentioned therein that the Government has relaxed
the restrictions under Rule 34 and as far as the second
communication .is concerned, it has been stated that the            G
Government has sanctioned grant of licence. The learned
counsel for the State has referred to the note sheet to highlight
that the orders had been passed in consonance with the proviso
to Rule 34(1) of the Rules and on that basis the communications
were issued.                                                        H
    1138     SUPREME COURT REPORTS                 (2013] 3 S.C.R.


A       12. We have bestowed our anxious consideration and
  carefully perused the note-sheet. On a studied scrutiny of the
  same it is luculent that the Excise Commissioner, Orissa,
  Cuttack, had recommended the proposals and in support of the
  same had furnished seventeen documents. The note sheet has
B referred to the report which states that the proposed site exist
  at 350 meters from Vishnu Temple, 250 meters from the petrol
  pump, 200 meters from the private bus stand and 50 meters
  from the irrigation canal. The recommendation which forms part
  of the note sheet reads as follows: -
c        "The Collector, Bargarh, in his report at P-84/C has stated
         that the local consumers demand for consumption of liquor
         within the hotel premises. Illegal liquor cases have been
         booked in the nearby area and hence, there is demand
         for the "ON" shop. The apprehension that the existing IMFL
D        "OFF" shop will be affected after opening of the proposed
         "ON" shop is ruled out, because the consumers of "OFF"
        shop are different from "ON" shop. The customers of "ON"
        shop has to consume liquor inside the Hotel premises with
        peg system and pay service charge, whereas such a
E       facility is not available with "OFF" shops. Besides, the
        bathing ghat is not nearby as objected. But only one
        irrigation canal is flowing at a distance of about 50 meters.
        Therefore, Collector has recommended for relaxation of
        rule 34 of Orissa Excise Rules, 1965 for sanction of the
F       proposal in the interest of Govt. revenue and to check
        illegal liquor trade."

      13. The objections of A.K. Sharma and that of the
  Secretary, Human Society, Bargarh have also been considered.
G Thereafter, the Joint Secretary has recommended thus: -

       "In the above circumstances and in view of
       recommendation of the Excise Commissioner, Orissa,
       Cuttack, it may kindly be considered to grant IMFL
       Restaurant "ON" shop licence in favour of Sri Mukesh
H      Kumar at "Rasooi Restaurant" in the premises of Hotel
    ROPAN SAHOO v. ANANDA KUMAR SHARMA                     1139
              [DIPAK MISRA, J.]

     "Sawadia Palace" Ward No. 11, Bargarh Municipality over       A
     Plot No. 1622, Khata No. 2542/362, in the district of
     Bargarh, for the remaining period of the year 2008-09 by
     relaxing rule 34 of Orissa Excise Rules, 1965 ar;id MGQ
     fixed as per the Excise Duty, Fee Structure and Guidelines
     for 2008-09. The District Excise Administration may be        8
     held responsible if the existing nearby excise shops are
     affected by the new "ON" shop."

    14. The Commissioner-cum-Secretary to Government,
Excise Department, has endorsed the same in the following
terms: -                                                           C

    "Notes from P.10/N explain. We had received a
    representation from Shri A.K. Sharma, Exclu~ive Privilege
    Holder of IMFL 'Off Shop' No. 4 of Bargarh (P.23-22/C)
    against the proposal received from Collector, Bargarh and      D
    endorsed by the Excise Commissioner, Orissa for opening
    of IMFL 'On Shop' at Rasoi Restaurant in the premises of
    Hotel Sawadia Palace, Ward No. 11 of Bargarh. The
    objections raised by Shri Sharma have been enquired into
    by the District Administration. In this regard, the letter     E
    received from Collector, Bargarh at P.34-32/C may please
    be glanced through. The objections of Shri Sharma are
    found to be devoid of merit. The report received from the
    Excise Commissioner, placed below, may also be
    perused. The Excise Commissioner had recommended to
                                                                   F
    consider the sanction of IMFL 'On Shop' at Rasoi
    Restaurant in favour of Shri Mukesh Kumar situated in the
    premises of Hotel Sawadia Palace, Ward No. 11 of
    Bargarh. The proposal may kindly be considered and
    approved."
                                                                   G
     15. The same has been signed by the Minister of Excise
and Tourism, Orissa. As far as the second shop is concerned,
the note sheet referred to the recommendations of the Collector,
which reads as follows: -
                                                                   H
    1140    SUPREME COURT REPORTS                    [2013] 3 S.C.R.


A       "... the Collector, Bargarh has reported that both the petrol
        pumps are situated in such a manner that the shops will
        have no effect at all on the proposed Bar and hence he
        has suggested for relaxation of restrictive provisions of rule-
        34 of Orissa Excise Rules, 1965.
B             The Collector, Bargarh has also reported that the
        proposed Beer Parlour shall cater to the needs of the
        consuming people of the locality besides fetching Govt.
        revenue and checking illicit sale of Beer, since the
        population of the area is increasing. Only 3 (three) IMFL
c       "OFF' shops, one IMFL 'ON' and one Beer Parlour a.re
        functioning in the entire town area having population of
        more than one lakh. There is feasibility and potentiality for
        opening of the Beer Parlour 'ON' shop, since illegal sale
        of liquor has been detected in the area. The proposed
D       shop will check illicit trade of liquor. He has also stated that
        the opening of new Beer Parlour will not affect the nearby
        IMFL shops in the Municipality."

       16. The Joint Secretary after referring to the objections and
E the recommendations of the Excise Commissioner has passed
  the following order in the note sheet: -

        "In the above circumstances and in view of
        recommendation of the Excise Commissioner, Orissa,
        Cuttack, it may kindly be considered to sanction Beer
F       Parlour 'ON' shop licence in favour of Sri Ropna Sahu over
        plot No. 1391 /2260, Khata No. 393/330 in Ward No.16 of
        Bargarh Municipality in the district of Bargarh for the
        remaining period of 2008-09 subject to condition that the
        district excise officials will be held responsible if the nearby
G       existing shops are affected by opening of the new shop.

              Government orders may kindly be obtained in the
        matter."

        17. Thereafter, the Commissioner-cum-Secretary tc
H
     ROPAN SAHOO v. ANANDA KUMAR SHARMA                       1141
               [DIPAK MISRA, J.]

Government in the Department of Excise has endorsed the                A
same and the Minister, Excise and Tourism has signed in
approval thereof and thereafter the movement of the file took
place. On the basis of the aforesaid orders the communications
have been sent.
                                                                       B
     18. On a keen scrutiny of the entire note sheet we have
no hesitation in our mind that the Commissioner-cum-Secretary
had accepted the recommendations of the Collector and the
Excise Commissioner, and upon perusal of the note sheet of
the Joint Secretary had recommended for consideration and
approval by the Minister of Excise and Tourism. The Minister,          C
as stated earlier, has signed and thereafter, the file had travelled
back for communication. We really fail to fathom the reasons
ascribed by the High Court that there is no order whatsoever
relaxing the Rules before the order of grant of exclusive privilege
was passed. After the Minister had signed on the file on the           D
basis of the recommendations sent by the Commissioner-cum-
Secretary which was founded on the recommendations of the
Joint Secretary who had concurred with the recommendations
of the Collector and the Excise Commissioner, communications
were made by the Joint Secretary. The note sheet clearly               E
indicates application of mind to the relevant facts which pertain
to the restrictions on the distance from the proposed site and
the endorsement by the Minister. In this context, we may refer
with profit to the decision in Tafcon Projects (/) (P) Ltd. v. Union
of India and Others, 1 wherein the High Court, after taking note       F
of the order passed by the Secretary who, in anticipation of the
formal approval by the Minister concerned, had allowed the
party to go ahead for appointing the appellant therein as "Event
Manager". This Court referred to the earlier order passed by
the Secretary granting permission and the latter order in which        G
he had mentioned that the party may be allowed to go ahead
with the proposal for making the preliminary arrangement in
anticipation of the formal approval of the Minister and

1.   (2004) 13 sec 788.                                                H
    1142     SUPREME COURT REPORTS                [2013) 3 S.C.R.


A expressed the view that the High Court had erred in coming to
  hold that the Secretary had not taken any final decision with
  regard to the appellant therein as the Event Manager.
  Thereafter, the Court adverting to the justification of the
  conclusion of the High Court that no final decision had been
B taken by the Minister expressed thus :-
        "12. It appears also from the record as noted by the High
        Court, that the file had been pending with the Minister for
        some time and despite expressions of urgency, the
        Minister did not sign the file since he was busy with
C       "elections and other important matters". What the High
        Court has overlooked is that the relevant file was again
        placed before the Minister on 30.8.1999 by JS&FA with a
        note which stated that Tafcon had been appointed as the
        "Event Manager" for three years. This was signed by the
D       Minister with the endorsement "file returned".
        13. The High Court deduced from this signature of the
        Minister that no approval was in fact granted by him to the
        appointment of Mis. Tafcon either expressly or impliedly.
        We are unable to agree. Where the Minister has signed
E       the various notes put up before him seeking his approval,
        his signature, without more, must mean that he has
        approved the steps taken by the Department."
       19. Be it noted, in the said case, the Court referred to Rule
  3 of the Transaction of Business Rules, 1961 which provided
F for all business to be conducted on general or special
  directions of the Minister-in-charge.
      20. In the case at hand, Rule 7 of the Orissa Government
  Rules of Business made under Article 166 of the Constitution
G confers the power on the Minister to pass an order in respect
  of a matter pertaining to his portfolio. The effect of such a
  delegation has been dealt with by a three-Judge Bench in
  Narmada Bachao Ando/an v. State of Madhya Pradesh 2
  wherein it has been held that: -

H 2.   AIR 2011 SC 3199.
     ROPAN SAHOO v. ANANDA KUMAR SHARMA                          1143
               [DIPAK MISRA, J.]

      "The decision of any Minister or Officer under the Rules of        A
      Business made under Articles 77(3) and 166(3) of the
      Constitution is the decision of the President or the
      Governor respectively and these Articles do not provide
      for 'delegation'. That is to say, that decisions made and
      actions taken by the Minister or Officer under the Rules of        B
      Business cannot be treated as exercise of delegated
      power in real sense, but are deemed to be the actions of
      the President or Governor, as the case may be, that are
      taken or done by them on the aid and advice of the Council
      of Ministers."                                                     c
     21. The Bench to fructify its opinion has placed reliance
on State of U.P. & Ors. v. Pradhan Sangh Kshettra Samiti &
Ors. 3 . and pronouncement by the seven-Judge Bench in
Shamsher Singh v. State of Punjab & Anr. 4 For the sake of
completeness, we may note with profit what has been stated · D
in paragraph 27 of the aforesaid decision: -

      "27. In Dattatraya Moreshwar v. The State of Bombay &
      Ors., 5 a Constitution Bench of this Court held that an
      omission to make and authenticate an executive decision            E
      in the form mentioned in Article 166 does not make the
      decision itself illegal, on the basis that its provisions were
      directory and not mandatory."

    22. In this regard we may quote a passage from Sethi Auto
Service Station and Another v. Delhi Development Authority               F
and Others6 : -

      "14. It is trite to state that notings in a departmental file do
      not have the sanction of law to be an effective order. A
      noting by an officer is an expression of his viewpoint on          G

3.   AIR 1995 SC 1512.
4.   AIR 1974 SC 2192.
5.   AIR1952SC181.
6.   (2009) 1 sec 1ao.                                                   H
    1144     SUPREME COURT REPORTS                  [2013] 3 S.C.R


A       the subject. It is no more than an opinion by an officer for
        internal use and consideration of the other officials of the
        department and for the benefit of the final decision-making
        authority. Needless to add that internal notings are not
        meant for outside exposure. Notings in the file culminate
B       into an executable order, affecting the rights of the parties,
        only when it reaches the final decision-making authority in
        the department, gets his approval and the final order is
        communicated to the person concerned."

       23. In State of West Bengal v. M.R. Monda/ and Another
C it has also been held that an order passed on the file and not
  communicated is non-existent in the eye of law.

        24. In the present case it is luminous that the file had
  travelled to the concerned Joint Secretary of department who
D had communicated the order. The High Court has opined that
  there is no order by the State Government relaxing the
  restrictions enshrined in clauses (d) and (e) of Rule 34(1) of
  the Rules in relation to the minimum distance between the
  proposed shops and the Vishnu Temple, petrol pump and bus
E stand and at a latter part of the judgment has expressed the
  opinion that there has been infraction of statutory Rule, namely,
  Rule 34 which casts a statutory duty on the department to pass
  on order with reasons relaxing the restrictions. We are disposed
  to think that the High Court, as far as the first part of the opinion
F is concerned, has been guided by the factum that the
  Commissioner-cum-Secretary in his recommendation to the
  Minister of Excise and Tourism had not specifically referred to
  clauses (d) and (e) of Rule 34(1) of the Rules. It is pertinent to
  state here that it is perceptible from the note sheet that the
G Secretary had referred to the proposal received from the
  Collector, endorsement made by the Excise Commissioner, the
  objections raised by the objectors and also expressed the view
  that the said objections were devoid of merit and, accordingly,
  recommended for approval. The cumulative effect of the note
H 7.   AIR 2001 SC 3471.
    ROPAN SAHOO v. ANANDA KUMAR SHARMA                       1145
              [DIPAK MISRA, J.)

sheet goes a long way to show that every authority was aware          A
of the distance and recommended for relaxation of clauses (d)
and (e) of sub-rule (1) of Rule 34 and the concerned Minister
had endorsed the same. Non-mentioning of the Rule or sub-
rule, in our considered opinion, does not tantamount to non-
passing of an order. The dominant test has to be the application      B
of mind to the relevant facts. The second part of the order, if
properly appreciated, conveys that no reasons have been
ascribed. The proviso to Rule 34(1) lays a postulate that the
distance as mentioned under clauses (d) and (e) may be
relaxed by the State Government in special circumstances. The         c
recommendations made by the Collector refers to the
circumstances, namely, that there is a demand for consumption
of liquor within the hotel premises; that illegal liquor cases have
been booked in the nearby area; and that the proposal is in
the interest of the Government revenue. The said                      0
recommendations, as is reflectible, have been concurred with
by the higher authorities and, hence, there can be no trace of
doubt that they constitute the special circumstances.

       25. In view of our aforesaid analysis, the appeals are
allowed and the order passed by the High Court is set aside.          E
It is further clarified that if the Government, if so advised, can
invoke the power under the proviso to Rule 34(1) of the Rules
for the purpose of relaxation for grant of exclusive privilege and
licence pertaining to the said shops in respect of current and
subsequent financial years. In the facts and circumstances of         F
the case, the parties shall bear their respective costs.
K.K.T.                                         Appeals allowed.