Full Judgment Text
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PETITIONER:
THE STATE OF ASSAM
Vs.
RESPONDENT:
KESHAB PRASAD SINGH AND ANOTHER.GAMIRI KHARI CHAIDUAR FISHER
DATE OF JUDGMENT:
14/04/1953
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
MAHAJAN, MEHR CHAND
JAGANNADHADAS, B.
CITATION:
1953 AIR 309 1953 SCR 865
CITATOR INFO :
RF 1954 SC 592 (10)
R 1956 SC 640 (7)
E 1957 SC 377 (11)
ACT:
Assam Land and Revenue Regulation (1 of 1816), s. 16 Rules
190, 190A, 191 -Settlement of fisheries--Direct settlement
under r. 190A after auction by Deputy Commissioner and on
his recommendation--Whether settlement of Deputy
Commissioner under Rules, or executive act of State-Appeal
to High Court-Maintainability.
HEADNOTE:
The Government of Assam, desiring to settle a fishery direct
under r. 190-A of the rules framed under the Assam Land and
Revenue Regulation (1 of 1886), directed the Deputy Commis-
sioner concerned to put the fishery to auction and submit
the bid list to Government with his recommendation for
direct settlement. The Deputy Commissioner accordingly
auctioned the fishery and submitted the bid list with a
recommendation in the first respondent’s favour. Government
sanctioned the settlement of the fishery with the first
respondent and the latter was informed of the acceptance of
the bid and directed to make the deposits. Government
received two more petitions on the same day for re-
consideration of the orders passed and three weeks later
Government reviewed its order and settled the fishery with
another person. The first respondent preferred an appeal to
the High Court under r. 190 which provided that all orders
of a Deputy Commissioner passed under these rules were
appealable to the High Court:
Held, the words " except with the previous sanction of the
Provincial Government " in r. 190-A do not permit the
Provincial Government when it so wishes to lift the sales
completely out of the statutory protection afforded by the
Regulation and proceed to dispose of them by executive
action. Such a construction would make r. 190-A run counter
to s. 16 of the Regulation which requires these sales to be
made under and in accordance with the Rules. The departure
contemplated by r. 190-A was a departure within the Rules.
As the Deputy Commissioner was the only
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authority competent to settle these fisheries, subject to
sanction, the act of cancellation and the act of
resettlement were his acts, however much he may have acted
under the direction and orders of the Government, and the
High Court had jurisdiction to entertain the appeal under r.
190.
Judgment of the High Court of Assam affirmed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 176 and
176-A of 1952.
Appeals by Special Leave granted by the Supreme Court on the
20th February, 1952, and 23rd May, 1952, respectively, from
the Judgment and Order dated the 6th December, 1951, of the
High Court of Judicature in Assam at Gauhati in its Revenue
Appellate Jurisdiction (Deka J.) in Revenue Appeal No. 65
(M) of 1951.
C. K. Daphtary, Solicitor-General for India (Nuruddin
Ahmed, with him) for the appellant in Civil Appeal No. 176.
B. B. Tawakley (K. B. Asthana, with him) for the
respondent in Civil Appeal No. 176.
R. K. Chaudhury (Jai Gopal Ghosh and R. N. Tikku, with
him) for respondent No. 2. in Civil Appeal No. 176 and
appellant in Civil Appeal No. 176-A.
1953. April 14. The Judgment of the Court was delivered by
BOSE J.--This is a curious case in which the State
Government of Assam having granted the first respondent a
lease later cancelled its grant and regranted it to another
party and now contends that it is not bound by the laws and
regulations which ordinarily govern such transactions.
Assam is blest with fisheries which are under the control of
and belong to the State Government. Periodically the
fishing rights are ]eased out to licensees and the State
derives considerable revenue from this source. So valuable
are these rights that as long ago as 1886 it was considered
undesirable to leave such a lucrative source of revenue, to
the unfettered
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discretion and control of either the Provincial Government
or a single individual however eminent. Accordingly,
legislation was enacted and Regulation I of 1886 (The Assam
Land and Revenue Regulation, 1886) was passed into law. A
Register of Fisheries had to be kept and the Deputy
Commissioner was empowered, with the previous sanction of
the Chief Commissioner (later Provincial Government), to
declare any collection of water to be a fishery. Once a
fishery was so declared no person could acquire fishing
rights in it except as provided by rules drawn up under
section 155. These rules, with alterations made from time
to time, were still operative at all dates relevant and
material to this case.
Put shortly, the effect of these rules at the dates
mentioned here, was to require the fishing rights to be sold
periodically by public auction in accordance with a
particular procedure which was prescribed. These sales were
called " Settlements." Among the conditions -of sale were
the following :---
(1)The officer conducting the sale does not bind himself to
accept the highest bid or any bid.
(2)The purchaser shall immediately after the acceptance of
his bid furnish as security etc.
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(3)The annual sale of fisheries in a district should be
reported to the Commissioner for sanction in Form No. 100.
The Form shows that each individual settlement had to be
sanctioned. But the rules in force at the dates relevant to
this case permitted a departure in these words:-
" -Rule 190-A.
No fishery shall be settled otherwise than by sale as
provided in the preceding instructions except with the
previous sanction of the Provincial Government."
There is also the following rule: -
" 191. Fisheries should be settled to the best advantage
but, subject to this condition, the agency of middlemen as
lessees should be done away with as
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far as possible. To effect this the fishery area should be
broken up into blocks of such size that the actual fishers
may be able to take the lease, which should be given, for
preference, to the riparian land occupants or to the actual
fishermen. The endeavour of the District Officer should be
to do away with the middlemen by finding out who the sub-
lessees are and trying to come to terms with them."
The Rules also made provision for an appeal to the Revenue
Tribunal (the High Court acted as such) in the following
words :-
"190. All orders of a Deputy Commissioner or Sub Divisional
Officer passed under these rules are appealable to the
Revenue Tribunal."
The first respondent held previous leases of the fishery
with which we are concerned for a number of years. The last
of these was to expire on 31st March, 1951. Shortly before
its expiry there was agitation by way of petitions and
memorials by some of the local fishermen asking in effect
that rule 191 be given effect to though the applications do
not actually mention the rule. These applications, six in
number, range in date from 27th October, 1950, to 13th
March, 1951. They were addressed to various officials
ranging from the Chief Minister and the Revenue Minister to
the Secretary to Government and the Parliamentary Secretary
and the Deputy Commissioner. Government therefore had all
the facts fully before it.
In view of these applications Government decided to settle
the fishery direct and wrote the following letter to the
Deputy Commissioner on 1st February, 1951:-
Government desire to settle the above mentioned fishery
direct under rule 190-A. I am therefore directed to request
you to put the fishery to auction and then to submit the bid
list to Government with your recommendation for direct
settlement."
By that date Government had four of the six applications to
which we have referred before it. In addition, it had the
recommendation of the Sub-Deputy Collector
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dated 4th January, 1951, in favour of these applications
together with the Deputy Commissioner’s endorsement letter
dated 5th January, 1951, confirming the facts set out in the
Sub-Deputy Collector’s endorsement and in the applications.
The first respondent also made ail application to the
Parliamentary Secretary on 13th March, 1951, before any
final decision was reached.
The Deputy Commissioner proceeded to auction the fishery on
24th February, 1951., and on 26th February, 1951, forwarded
the bid lists to the Government with a recommendation in the
first respondent’s favour (his was the highest bid) in the
following terms :-
The present lessee is managing the fishery well and there is
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nothing against him."
After this, and before the final sanction, Government
received still another petition from some of the local
fishermen asking for a settlement in their favour. This was
on 13th March, 1951. Therefore, by that date Government had
six petitions from the local fishermen before it and one by
the first respondent as well as the various recommendations
made by the District officials. With all this material in
its possession Government decided in favour of the first
respondent and on 17th March, 1951, wrote to the Deputy
Commissioner, with a copy to the Development Commissioner,
as follows:-
" Government sanction settlement of the Chaiduar-Brahmaputra
and Kharoibeel fishery under rule 190-A with the existing
lessee Shri Keshab Prosad Singh at an annual revenue of Rs.
17,700 for a term of three years with effect from the 1st
April, 1951, on the usual terms and conditions."
The Deputy Commissioner conveyed this sanction to the first
respondent on 21st March, 1951, and called on him to make
the necessary deposits. The sanction is in the following
terms:-
" You are hereby informed that Government have allowed
settlement of Chaiduar-Brahmaputra and Kharoibeel fishery
with you at Rs. 17,700 per year
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for 3 years with effect from 1st April, 1951. You are
therefore directed to deposit the 1 /4 purchase money
amounting to Rs. 4,425 on 28th March, 1951, and the balance
of Rs. 13,275 in cash on 31st March, 195 1, failing which
the settlement granted is liable to be cancelled."
According to all notions of contract current in civilised
countries that would have constituted a binding engagement
from which one of the parties to it could not resile at
will, and had the first respondent tried to back out we have
little doubt that the State Government of Assam would, and
quite justifiably, have insisted on exacting its just dues.
But the State Government did not feel itself hampered by any
such old fashioned notions regarding the sanctity of
engagements. On the very day on which it passed its orders
in the first respondent’s favour, 17th March, 1951, it
received two more petitions. They emanated from the same
sources as before and said nothing new; but they asked for a
reconsideration of the orders just passed. Had Government
recalled its orders then and there, possibly no harm would
have been done beyond exposing its vacillations to a limited
official circle. But it allowed five davs to pass and then
the Revenue Secretary wired the Deputy Commissioner not to
recall the orders of Government, but to "stay delivery of
possession" pending what the Revenue Secretary was pleased
to call "further orders of Government on the revision
petitions". But by then it was too late. The acceptance of
the bid had already been communicated to the first
respondent and by all ordinary notions the contract was
complete.
The State Government now says in effect, somewhat cynically,
that it is not bound by the statutory rules and claims that
that gives it the right to recall its previous orders and
regrant the fishery to some other person or body more to its
liking, or rather in whom it has discovered fresh
virtueshidden from its view in its earlier anxious and
mature deliberations.
Acting on the telegraphic instructions received by him, the
Deputy Commissioner conveyed the orders to the first
respondent on 22nd March, 1951, and said;-
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"The under mentioned document is forwarded to Srijut Keshab
Prosad Singh for information and necessary action.
He is further informed that he is not to deposit the 1/4th
purchase money and additional security......... till the
decision of the revision petition mentioned in the
telegram".
Three weeks elapsed and then on 13th April, 1951, the State
Government solemnly "reviewed" its former order and said:-
"It is reported by the Deputy Commissioner that the Gamiri
Kharai-Chaiduar Fishermen Society, Ltd., is constituted by
bona fide fishermen. Accordingly, in view of the new
circumstances brought forward by the above Society the
review petition is allowed and the previous orders of
Government dated the 17th March, 1951, is modified.
The Chaiduar Brahmaputra and Kharaibeel fishery is
accordingly settled with the Camiri kharaiChaiduar Fishermen
Society Ltd......"
The manager of this Fishermen’s Society is one Maniram Das.
His name was put forward by 205 members who claimed to be
bona fide Assamese fishermen in the petitions of 27th
October, 1950, and 21st December, 1950, also by Manirani
himself on behalf of this Society on 2nd January, 1951.
Their claims were endorsed by the Sub-Deputy Collector on
4th January, 1951, and by the Deputy Commissioner on 5th
January, 1951. The same claims were again made by Manirani
Das on behalf of the Society on 23rd January, 1951. The "
new circumstances " said to have been discovered on review
was the following statement made by the Deputy Commissioner
on 3rd April, 1951: -
" Gamiri Kharai-Chaiduar Society is formed by bona fide
fishermen"
The previous statement of the Sub-Deputy Collector made on
4th January, 1951, was:-
"The applicants are all Kaibarta people in the district of
Darrang whose sole business is to deal with
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fish..... The applicants are Assamese people. In view of
this and in view of the fact that these people have been
recommended by respectable persons, I suggest that Kharai-
Chaiduar fishery" (the one in question here) " may be
settled with them to encourage them to compete with the,
other fishermen coming from outside Assam."
The Deputy Commissioner’s endorsement on this (the same
Deputy Commissioner) dated 5th January, 1951, runs:-
" The petitioner (Maniram Das) is an actual fisherman as
will appear from the report of the Sub Deputy Collector As
observed by the Sub-Deputy Collector........it is a fact
that the indigenous fishermen cannot compete with the
upcountry people in open auction."
To characterise the later statement of the Deputy
Commissioner dated 3rd April, 1951, as disclosure of a new
circumstance betrays a cynical disregard for accuracy on a
par only with the Assam Government’s cynical disregard for
its pledged word.
The Deputy Commissioner was informed of the Government’s
revised decision on 13th April, 1951, and on 16th April,
1951, the fishery was settled with Maniram Das and,
according to the first respondent, the settlement in his
name was cancelled.
The first respondent’s reaction to this was to file an
appeal to the High Court under rule 190 and at the same time
to apply for a mandamus under article 226 of the
Constitution. The relief sought was worded as follows :-
" The humble appellant, therefore, prays that your Lordships
would be pleased to set aside the settlement of the fishery
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with the respondent and restore the settlement of the same
with the humble appellant."
The High Court, not unsurprisingly on these facts. granted
the prayer. It acted under rule 190 as an appellate
tribunal and the only question for us to decide is whether
it had jurisdiction to do so. The
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mandamus petition is not before us. The appellant is the
State of Assam.
There is an ancient presumption under section 114,
illustration (h), of the Evidence Act, dating from at least
1872, that official acts have been regularly performed.
Strange as it may seem this applies to Governments as well
as to lesser bodies and officials, and ancient though it is
the rule is still in force. True, the presumption will have
to be applied with caution in this case but however
difficult the task it is our duty to try and find a lawful
origin for as many of the acts of the appellant’s Government
as we can.
Now, as we have seen, prescribed fisheries in Assam were
lifted out of the realm of matters which could be disposed
of at the executive discretion of either Governments or
officials and were placed under statutory regulation and
control by sections 16 and 155 of the Assam Land. and
Revenue Regulation of 1886 and we have already referred to
the elaborate set of rules which were drawn up in pursuance
of that Regulation. It follows that no fishery can be
"settled" except in accordance with those Rules.
It was not disputed that, apart from rule 190-A which we are
now called upon to construe, the Deputy Commissioner alone
could effect a "settlement" and, as we have shown, he was
bound. to follow a prescribed procedure; also that his
"settlement" was subject to the sanction of the
Commissioner.
Rule 190-A permits a departure but we do not consider it
necessary in this case to determine the exact extent of the
departure permitted because the Deputy Commissioner was
directed to put the fishery to auction and he did so. The
only departure from the rules was that instead of sending
the result of the auction to the Commissioner for Settlement
it was sent to the State Government direct. In our opinion,
that was a permissible departure but it was for all that a
departure within the Rules.
In our judgment, the words " except with the previous
sanction of the Provincial Government " are,
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important. We do not consider that this permits the
Provincial Government when it so wishes to lift the sales
completely out of the statutory protection afforded by the
Regulation and proceed to dispose of them by executive
action. Such a construction would make rule 190-A run
counter to section 16 of the Regulation which requires these
sales to be made in accordance with rules framed under
section 155, and of course a rule-making authority cannot
override the statute. Accordingly, the law requires the
sale to be under and in accordance with the rules. It
follows that the departure contemplated by rule 190-A is
also a departure within the four corners of the rules read
as a whole and is a part of the rules. It is true the
departure need not conform to the " preceding instructions "
contained in the earlier portion of the rules but the
departure once sanctioned itself becomes part and parcel of
the rules.
This is important because one of the statutory safeguards
against arbitrary executive action is the appeal to the
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Revenue Tribunal, which in this case is the High Court. We
would be slow to bold that this safeguard can be
circumvented by the simple expedient of lifting a sale out
of the rules whenever Government finds that convenient.
It seems to us that if the intention was to authorise
Government to lift the matter out of the rules altogether
and to proceed in an executive capacity the word " sanction
" would be out of place, for Government would hardly require
its own previous sanction to something which it is itself
authorised to do. The sanction must therefore refer to
something which some other person or body is authorised to
do, and in the context we feel that it can only mean
sanction to the Deputy Commissioner to proceed in a manner
which is not quite in accordance with the instructions con-
tained in the rules.
The next question is, to what extent was a departure
sanctioned? This is to be found in the letter dated 1st
February, 1951, addressed to the Deputy Commissioner :-
875
Government desire to settle the above mentioned fishery
direct under rule 190-A. I am therefore directed to request
you to put the fishery to auction and then to submit the bid
list to Government with your recommendation for direct
settlement ".
The State of Assam wishes to construe this to mean that the
Government of Assam intended to flout the statute and
disregard the Rules and proceed by executive action. The
words " direct settlement " do lend themselves to that
construction but that would be an act which, in our opinion,
would not be warranted by the law and, as we are bound to
presume until the contrary is shown that the official acts
of the Assam Government were regularly performed, we must,
if we can, lean against a construction which would put that
Government more in the wrong than we can help especially as
it self purported to act under rule 190-A.
Now the only act which would be in consonance with rule 190-
A and which would at the same time be in conformity with the
letter of the first February would be for the Deputy
Commissioner to sell by auction and then send the matter to
Government direct for sanction instead of to the
Commissioner. That, in our opinion, would be a permissible
departure and would make the action of Government legal and
would bring the matter under rule 190-A. In the cir-
cumstances, we are bound to construe this letter in that
sense.
Now what did the Deputy Commissioner do ? So far as the
actual auction was concerned, he followed the Rules. He
held a regular auction and recorded the bids in the usual
way. -Up to that point he not only complied with the letter
of the 1st February but also with the regular rules. His
only departure was to send his choice of a lessee to
Government direct instead of to the Commissioner. This,
according to us, was a permissible departure.
Upon receipt of the Deputy Commissioner’s recommendation
Government sanctioned the settlement with the first
respondent and the Deputy Commissioner communicated the
sanction.
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It was argued on behalf of the State of Assam that this was
not a settlement by the Deputy Commissioner but by the State
Government and that the Deputy Commissioner was only acting
as its mouthpiece when he conveyed the orders of Government
to the first respondent. In. our opinion, that is a mere
playing with words. The substance of the thing is there.
It would be illegal for Government to settle the fishery
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direct by executive action because of the statute. It would
be proper for it to sanction the settlement under rule 190-A
in the way it did. Government said it was acting under rule
190-A. It said it had " sanctioned " the settlement. Whose
act was it sanctioning? Certainly not its own, for one
cannot sanction one’s own act. Sanction can only be
accorded to the act of another and tile only other person
concerned in this matter was the Deputy Commissioner.
Accordingly, in spite of the efforts of Government to appear
as a bold brave despot which knows no laws but its own, we
are constrained to hold that it not only clothed itself with
an aura of legality but that it actually acted within the
confines of the laws by which it is bound. It follows that
the settlement was the act of the Deputy Commissioner and
fell within the four corners of the rules. That vested the
first respondent with a good and legal title to the lease.
Next followed a similar series of acts cancelling the
settlement with the first respondent and resettling the
fishery with the rival body. As the -Deputy Commissioner
was the only authority competent to settle these fisheries,
subject of course to sanction, we are bound to hold that the
act of cancellation and the act of resettlement were his
acts however much lie may have acted under the direction and
orders of a third party. That at once vested the High Court
with jurisdiction to entertain the appeal against his
actions under rule 190.
When we say the Deputy Commissioner acted under the
direction and orders of the State Government, we refer to
the actual act of "settling" and not to his choice of a
lessee. If this auction had proceeded in the normal
877
way, the Deputy Commissioner would have directed the auction
and would have made a selection and would then have sent his
selection on to a higher authority, the Commissioner, for
sanction. He would then have "settled" the fishery. In the
present case, he carried out every one of those steps except
that the higher authority here was the State Government
which had substituted itself under rule 190-A in place of
the Commissioner. It was the -Deputy Commissioner who made
the initial choice. It was his choice which was "
sanctioned " and it was he who in reality and in fact: "
settled " the fishery with the first respondent. The mere
fact that the State Government in addition to " sanctioning
" his act also told him to " settle " the fishery could not
alter or divest limit of his legal authority. This is not a
case in which the Deputy Commissioner having been vested
with a discretion failed to exercise it and acted as the
mouthpiece of another. His discretion was to select a
bidder and he did that without any outside pressure. There-
after his authority was to " settle " the fishery with the
selected bidder once his act was sanctioned and the mere
fact that lie was directed by another to do that which he
would have been bound to do under the law in any event
cannot divest the settlement of its legal and binding
character.
On the merits the High Court was abundantly right. We
accordingly upheld its order and dismiss the appeal with
costs payable to the first respondent.
Civil Appeal No. 176-A of 1952.
BOSE J.--For the reasons given in our judgment in Civil
Appeal No. 176 of 1952 pronounced to-day, we dismiss the
appeal without costs.
Appeals dismissed.
Agent for the appellant in Appeal No. 176: Naunit Lal.
Agent for respondent No. 1 in Appeal No. 176 and respondent
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in Appeal No. 176-A: A. D. Mathur.
Agent for respondent No. 2 in Appeal No. 176 and appellant
in Appeal No. 176-A: K. R. Krishnaswamy.
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