Ram Labhaya, Ag. C.J.
1. This order will cover the two Revenue Rules Nos. 45 and 46 of 1952 issued under Articles 226 and 227 of the Constitution of India. Both are directed against the settlement of Fisheries Nos. 49 to 52 of Barpeta Subdivision for the year 1952-53 alleged to have been made by the State of Assam with Respondent 3, Harendra Nath Das. The Subdivisional Officer of Barpeta auctioned at Barpeta the four registered fisheries Nos. 49 to 52 of the Barpeta Subdivision on 14-2-52. The petitioner was the highest bidder. He offered Rs. 28,125/- for the fisheries in question. At the close of the auction, the Subdivisional Officer passed the following order: 'Sold to the highest bidder Sabaru Ijardar, s/o late Chamria Khowa of Nagaon, Mauza: Barpeta, for Rs. 28,125/- (rupees twenty-eight thousands one hundred and twenty-five only). Sd/ B.M. Dam, S. D. Order 14-2-52'. The petitioner deposited Rs. 9375/- as security deposit with the S. D. O., Barpeta, who then referred the said settlement to the Director of Land Records for confirmation, through the Deputy Commissioner, Kamrup. The Respondent (No. 3) represented to the Director of Land Records, Assam, that the petitioner was a partner of the lessee of the fishery for the previous year and, as such, ought to be treated as a defaulter. The petitioner characterises the allegation as false, and avers that he had nothing to do with the settlement of these fisheries for the year 1951-52. The Director of Land Records gave him no opportunity to answer the allegations made against him.
On 1-4-1952, the D. L. R., in the exercise of powers previously vested in the Development Commissioner, passed the following order:
'In view of the facts stated by the S. D. O., Barpeta, in his report forwarded with your Memo under reference, I cannot confirm the sale of the above fishery held on 14-2-52. The fishery may be put to sale, again at an early date and proposal for confirmation of the resale may be submitted to me, in due course. As regards the recovery of the arrear revenue from the defaulter, steps may be taken to realise the same from the security deposit furnished by him in connection with the sale of the fishery for 1952-53'.
It is urged that the order of the D. L. R. was illegal and in excess of jurisdiction. It was also in violation of the principles of natural justice inasmuch, as the petitioner was not afforded any opportunity for answering the case set up against him before the order was passed.
2. On 3-4-52, the Revenue Secretary to the Government of Assam sent a telegraphic order to the S. D. O., Barpeta, which is as follows:
No. RF. 5052. Reference your No. R III/1/, 52/9 of twelfth ultimo addressed Depcom Kamrup paaa Government are pleased to direct settlement of Kukurmara fishery for one year with Harendra Nath Das the next highest bidder at rupees twenty-eight thousand, one hundred, twenty-five and Resale proceedings ordered by Director of Land Records should be dropped'.
The Government directed the settlement of the
fishery with Harendra Nath Das, respondent
3, the next highest bidder, at Rs. 28,125/-. The
order directing re-sale was cancelled. The
order of the Government was notified to the
petitioner. In the communication which the
S. D. O. sent to the petitioner, he stated that
the Government of Assam had settled the said
fishery with Sri Harendra Nath Das, and the
sum of Rs. 9375/- which he had deposited as
security deposit had been adjusted against the
arrears due in respect of the fisheries for the
3. It is pleaded that the State of Assam had no power under the rules to direct settlement of the fishery or to cancel or amend any order passed by the Development Commissioner or the D. L. R. in course of settlement proceedings. The order, therefore, is challenged as illegal and without jurisdiction. It is further urged that the order of the D. L. R. to the extent that he directed the S. D. O. to realise the arrears of revenue from the security deposit furnished by the petitioner in connection with the settlement of the fisheries for the year 1952-53 was also in excess of his jurisdiction and, therefore, illegal. Similarly, the action of the S. p. O., Barpeta, in pursuance of the said direction, in adjusting the aforesaid security deposit against arrears of revenue for the year 1951-52, for which the petitioner was not responsible, was illegal and contrary to the principles of natural justice. It was prayed that a Writ of certiorari or any other appropriate writ should be issued quashing the order dated 1-4-1952 passed by the D. L. R. a writ of mandamus directing respondents 1 & 2, the State of Assam and the Revenue Secretary, directing them to forbear from giving effect to the telegraphic order dated 3-4-52, and also another writ quashing the order of 1-5-1952, passed by the S. D. O., Barpeta.
4. The petition is resisted. Harendra Nath Das has put in a counter-affidavit, by which he affirms that the fisheries in question were settled with the petitioner & his son-in-law for Rs. 49,000/- for the year 1951-52; that they were both defaulters as they had not paid up Government dues for the year 1951-52. On 23-2-1952, they jointly applied for remission. The statements of the petitioner that the fishery was not settled with him and that he had no connection with the lease of the fishery for the year 1951-52 are repudiated and characterised as false. The S. D. O., Barpeta, has supported respondent 3. He has also reported that the fisheries in question were settled with both the petitioner and his son-in-law for the year 1951-52, In support of his assertion, he has relied upon the bid list for the year and the joint petition of the petitioner and his son-in-law dated 23-2-52 by which they prayed for the remission of the unpaid balance of the lease money. Mr. Lahiri the learned Advocate has argued on behalf of Harendra Nath Das, respondent 3, that the petitioner is not entitled to any relief under Article 226 of the Constitution of India for the following reasons:
1. That the order of the Provincial Government directing settlement of the fisheries with the respondent, the next highest bidder to the petitioner, is not open to challenge, the order being in the exercise of unrestricted executive or administrative authority.
2. That the petitioner had other remedies open to him, viz: (a) remedy of appeal against the order of the S. D. O., by which the fishery was settled with respondent 3, and (b) remedy by suit for recovery of damages;
3. The petitioner has no right to invoke the jurisdiction of this Court under Article 226 of the Constitution as no fundamental or other right of his has been violated. He has so far not acquired any right in the fishery.
4. The petitioner is guilty of suppression of material facts, and this conduct on his part disentitles him to relief.
5. That in any case, the facts bearing on the question of default are disputed, and when such is the case, no high prerogative writs may issue.
5. The learned Government Advocate has contended that the cancellation of the order of the S. D. O. directing adjustment of the security deposit towards alleged arrears of the petitioner would be futile as the S. D. O. has the right to recover the amount again from the same sum. He has also added that the direction of the D. L. R. was no more than a suggestion from superior authority.
6. The first question to be considered is--whether the Provincial Government had the jurisdiction to direct settlement of the fishery with respondent 3. Rule 16, Assam Land and Revenue Regulation, provides that the Deputy Commissioner, with the previous sanction of the Provincial Government, may, by proclamation published in the prescribed manner, declare any collection of water, running or still, to be a fishery. It further provides that no right in any fishery so declared shall be deemed to have been acquired by the public or any person, either before or after the commencement of this Regulation, except as provided in the rules made under Section 155. There is also a proviso to the Rule which contains some exceptions. This is to the effect that nothing in the section shall affect any express grant of a right to fish made by or on behalf of the Crown or any fishery rights acquired by a proprietor before the commencement of this Regulation, or the acquisition by a proprietor of such rights in any fishery forming after the commencement of this Regulation in his estate.
7. The case admittedly does not fall under any of the exceptions mentioned in the proviso. The benefit of the exception has not been claimed on behalf of the Government. The requirement of the section obviously is that no right in the fishery declared to be a fishery under Section 16 could be acquired by any person except as provided in the rules made under Section 155. Part VI of the Assam Land and Revenue Manual, Vol. I, 6th Edition, contains executive instructions about ten different matters. Chapter X of this part embodies executive instructions in regard to fisheries. Section 179 of Chapter X requires a register of Government fisheries to be kept by each District or Subdivisional Officer in the prescribed form. Section 182 prescribes the procedure for the lease of fisheries. It requires that the Deputy Commissioner should annually fix a date not later than the 15th February for the sale of all registered fisheries held under leases expiring on the last date of the current year. The method of proclamation of the date is laid down and the contents of the notice also are prescribed. Rule 184 lays down the conditions of the sale. The first condition is that the officer conducting the sale does not bind himself to accept the highest bid or any bid. A detailed procedure for sale is given in Rules 184 and 185. Rule 186 provides that when the sale has been concluded, a lease and counterpart should be interchanged in form Nos. 98 and 99. Under Rule 187, annual sales of fisheries in a District have to be reported to the Commissioner for sanction in form No. 100. Rule 190 provides for appeals against orders of Deputy Commissioners or Subdivisional Officers passed under the Rules. Their orders were made appealable to the Revenue Tribunal. Rule 190-A is the crucial provision. It is as follows:
'No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government'.
8. Though these rules contained in Chapter X were not described originally as rules under Section 155 of the Regulation, they were in practice being taken as such till they were bodily incorporated in Appendix IV-A as rules framed under Section 6 of Fisheries Act, 1897 and Sections 155 and 156, Assam Land and Revenue Regulation, 1886 vide Notification No. RF. 2/42/116 dated 21-3-44. Rule 6 provides that no fisheries shall be settled otherwise than by sale according to the procedure laid down in Chapter X of part VI of the Assam Land Revenue Manual, except with the previous sanction of the Provincial Government. It is now common ground that the rules contained in Chapter 10 of part VI of the Assam Land Revenue Manual are rules framed under Section 155, Assam Land and Revenue Regulation.
9. The requirement of Section 16 of the Regulation is that no right in a fishery declared as such under Section 16 can be acquired except as provided in the rules made under Section 155. The procedure is contained in the rules. Rule 190A of Chapter 10 and rule 6 of Appendix IV-A both emphasise that settlement of fisheries shall not be otherwise than by sale (in accordance with the procedure laid down in Chapter 10) except with the, previous sanction of the Provincial Government.
10. It is contended that the rules do not reserve any power for the Provincial Government to make settlement of fisheries direct, uncontrolled by any rules. On the other hand, Mr. Lahiri urges that the Provincial Government has reserved to itself the power to settle fisheries otherwise than in accordance with procedure laid down in the rules, and as there are no restrictions on the power of the Provincial Government in this regard, it can settle fisheries with any one at any time without conforming to any rules or objective standards. Its power in this respect is absolute and is unjusticiable.
11. It is difficult to interpret Rule 190A of Chapter 10 read with rule 6 of Appendix IV-A to mean that the Provincial Government was reserving to itself the power of settling fisheries direct. The rules were issued as executive instructions to begin with, and not being then rules under Section 155, Land and Revenue Regulation, they did not possess the force of law. The subordinate authorities, the Deputy Commissioner or the Subdivisional Officer, could conceivably settle fisheries without rigid adherence to the executive instructions. The Government could be committed by such acts to certain transactions. This possibility could be envisaged and it may be in view of this and for other reasons that the Government thought it fit to emphasise in the executive instructions that no fisheries shall be settled otherwise than by sale except with the previous sanction of the Provincial Government, The settlement by any method other than that of sale could be made only with the previous sanction of the Provincial Government. This is what was repeated when Chapter 10 was incorporated in the rules. The injunction was for the subordinate authorities charged with the duty of making settlements. It was in a way addressed to them and meant for their compliance. When enjoining on them not to depart from the rules laid down without previous permission, the Provincial Government was not reserving, expressly or by necessary implication, power to make settlement direct untrammelled by an irksome restriction. Deviation from the track chalked out had to be with previous permission. The instructions stop here. They do not lay down that the Provincial Government may, at its pleasure, settle the fishery with any one at any time. This does not appear to have been contemplated. There is no reservation express or implied, to that effect in favour of the Provincial Government. This is the line on which the argument of Mr. Ahmed has proceeded. He urges with considerable force that the question of previous sanction of the Provincial Government arises only where the settlement is made or is to be made by a subordinate authority. If the Provincial Government had intended to reserve power for direct settlement, there should have been a separate express provision to that effect. No question of Provincial Government's sanction in that case would have arisen.
12. Such a reservation, it is pointed out, would be against the spirit of the rules inasmuch as the right of appeal which is provided against orders of settlements would be taken away. The rules merely permit an appeal against settlement under the rules. The effect of this interpretation would be that two authorities with concurrent jurisdiction--one bound by certain rules of procedure and the other exercising unrestricted authority with power to make final orders--would come into existence. This, it is contended, could not have been contemplated.
13. Mr. Lahiri has also argued that even in the absence of any rules, the Provincial Government will have authority to settle fisheries with any one and its orders settling fisheries would not be subject to judicial review or scrutiny under Article 226 of the Constitution of India. This contention, if accepted, would involve contravention of Section 16 of the Regulation. It lays down in express terms that no one can acquire any right in a fishery except as provided in the rules made under Section 155. If no rules are made, no effective and binding settlement is possible. Persons dealing with the Government direct, in the absence of rules, will be doing so at their own risk, the transactions entered into and completed may be repudiated. The framing of rules is, therefore, obligatory. Without the rules, no legal settlement is possible. The mere absence of rules cannot be any basis for the exercise of unrestricted power to make settlements which it was intended to be controlled by rules under Section 155.
14. The difficulties in the way of subscribing to the proposition put forward by Mr. Lahiri are indicated as the question has been argued before us at considerable length. It is, however, not necessary to give a decision on this question in this case as the order of the Provincial Government, even though without jurisdiction, cannot be challenged by the petitioner under Article 226 of the Constitution on the ground that he has so far acquired no right in the fishery. The S. D. O. was not bound to accept his highest bid. Even his acceptance was subject to confirmation by the D. L. R. The D. L. R. has not confirmed the proposed sale in his favour. The order of the D. L. R. to the extent that it declined to confirm the sale has not been challenged by Mr. Ahmed before us. His bid thus not having been accepted, he did not acquire any kind of right in the fishery. He cannot, therefore, complain if the fishery is settled with some one else, whether it has been settled in conformity with the provisions of law or not, is not his concern, so long as his right is not violated. His learned counsel has argued that if the order of the D. L. R. had stood, there would have been a re-sale and the petitioner would have again been entitled to bid at the auction. But, as pointed out above, the first condition of auction under the rules is that the authority auctioning is not bound to accept any bid even though it may be the highest. In the case of the petitioner, if his highest bid was rejected and a re-sale was ordered by reason of that rejection, he could not have any chance of having his bid accepted 2nd time. It was not rejected because it was not high enough. The bid was rejected by reason of the alleged taint of default in the bidder. He may not have been a defaulter; his son-in-law admittedly was, and this could be a reason for the rejection of his bid if he came forward again, and in this situation there would be no legal right in him. Until the petitioner could enforce a right at law, there could be no violation of it, which would attract the exercise of extraordinary jurisdiction by this Court. The order off the Provincial Government, in these circumstances, whether with or without jurisdiction, is not open to challenge by him. He has got no grievance.
15. The contention that the petitioner has got a right of appeal under the rules, need not be examined in any detail in view of the conclusion arrived at above. All that may be stated is that under Rule 190, all orders of a Deputy Commissioner or Sub Divisional Officer passed under the rules are appealable. Appeal used to lie to the Revenue Tribunal, and now this appellate jurisdiction is exercised by this Court.
16. Appeals are possible only against orders under the rules. If even the Deputy Commissioner or Subdivisional Officer passes an order not under the rules but in pursuance of a direction or order from superior authority, the order not being under the rules, could not be appealable. Where, the Deputy Commissioner or the Subdivisional Officer does not pass any order himself but merely communicates the order of the superior authority, it would be a question whether such an order is an order of the Deputy Commissioner or the Subdivisional Officer, as the case may be. It appears that Rule 190 allows appeals against orders of leases which are completed by observance of formalities prescribed by Rule 185. Sale is completed or concluded after the due observance of these formalities, and it is then that a lease and a counterpart are interchanged. Where transactions are completed in accordance with the provisions contained in Rules 181 to 185, the order of the Deputy Commissioner or Subdivisional Officer would be appealable.
16a. In this view of the matter, the petitioner will riot have any right of appeal. The sale was admittedly not under the rules, nor can it be said to have been made by the order of the Sub-divisional Officer concerned.
17. The petitioner has also stated that the order of the Director of Land Records regarding recovery of arrears from the petitioner is also in excess of jurisdiction. It is pointed out that the order was passed in the absence of and without hearing the petitioner. It also was in respect of a matter over which the Director had no jurisdiction. Similarly, adjustment of the security deposit made against the arrears of 1951-52 is challenged as an act in excess of jurisdiction.
18. So far as the question of arrear is concerned, it is noteworthy that the petitioner did not disclose full facts on the basis of which the arrears of 1951-52 were realised from him. He did emphatically aver that he was not the lessee for 1951-52, but the grounds on which he was so treated were not stated. It now appears from the list of bids put in by respondents that the highest bid for 1951-52 was recorded in the joint names of the petitioner and his son-in-law. The lease, however, was executed in the name of the son-in-law alone. The respondents have omitted to state this fact and the Sub-divisional Officer has given no explanation for it. It has further been stated by the respondents that the petitioner and his son-in-law jointly applied for remission of unpaid lease money. The petitioner has not denied the allegations about the joint bid and the subsequent joint application for remission of arrears. It is clear that the petitioner failed to disclose all facts, bearing on the validity of the order relating to adjustment of security deposit against arrears. The fact that the statement from the respondents also was not complete does not help the petitioner. Suppression of relevant facts, by itself, disentitles him to any extraordinary or prerogative writ under Article 226 of the Constitution--vide--'Ratan Chandra v. Adhar Biswas', AIR 1952 Cal 72 (A); --'Ganesh Das Ram Gopal v. Govt. of the State of Uttar Pradesh', AIR 1952 All 992 (B); --'Zikar v. Govt, of Madhya Pradesh', AIR 1951 Nag 16 (C).
19. There is another aspect of this matter. The question is whether the petitioner is a defaulter or not. There is a dispute on facts. Besides, assuming that a bid was recorded in the joint names and later there was an application for remission by both, it would be a question whether in view of the fact that the petitioner's son-in-law alone is shown in the lease as a lessee, the petitioner could be treated as a joint lessee. 'Mr. Ahmed contends that the application relied on by the respondents could not necessarily be treated as an application of one of the joint lessees from whom lease money in arrears could be recovered. We, do not think it proper to attempt to decide this question as it involves some further enquiry into facts.
20. Whether the Subdivisional Officer, with or without the order of the Director of Land Records, could adjust the security deposit towards arrears, depends on the question whether the petitioner is in arrears. Since we cannot undertake to decide this question, it is not possible to quash the order of the S. D. O. making the adjustment on this petition.
21. The petitioner is not without a remedy. In fact, the remedy by a suit would be both appropriate and adequate.
22. No effort has been made to bring the case under Article 227 of the Constitution of India. In any case, in view of the findings arrived at above, the petitioner is not entitled to any relief under Article 226 or Article 227 of the Constitution of India.
23. As a result, both the petitions are dismissed, and the Rules discharged.
24. These are two applications one under Article 226 and the other under Article 227 of the Constitution of India arising from the same set of facts and covering the same set of orders or in other words, they may be said to be alternative applications. There is practically no question of the power of superintendence exercisable under Article 227, but it is primarily an application for relief under Article 226. The learned Acting Chief Justice in his judgment has dealt with the facts of the case in detail and I see no necessity to recapitulate them except where necessary.
25-26. (His Lordship narrating the facts, continued :)
27. In my opinion, the petitioner is quite justified in contending that the order of the Director of Land Records with regard to the direction that the arrear of revenue for previous settlement of the fishery should be realised from the deposit made by the petitioner in this case was in excess of his jurisdiction and that Government's order of direct settlement in such circumstances was illegal and that the Sub-divisional Officer could not have attached the deposit in pursuance of the order of the Director of Land Records.
28. I am giving my reasons in short because the violation of the Rules is so palpable. The learned Acting Chief Justice has given in his judgment the reasons showing that the State Government has no residuary power of settlement of a fishery as claimed by the Advocate-General appearing on behalf of opposite party No. 3. I find nothing in the statute to justify or to hold that the Government can settle any fishery in defiance of the Rules framed under Rule 155, Assam Land and Revenue Regulation. In--'Keshab Prasad Singh v. Gamiri Kharai Chaiduar Fishermen Society, Ltd., AIR 1P52 Assam 76 (D), I had given my view that on a proper construction of Rule 190-A of the Fishery Rules (Executive Instructions, Chapter X, Assam Land and Revenue Regulation) and Rule 6 of the Appendix IV A, the Government has no power of making a direct settlement. Rule 190-A is intended only to leave the discretion with the Government to direct settlement otherwise than by sale as contained in Chap. X A L R R in certain cases which I need not refer to here. The words 'previous sanction' in the said Rule does not mean 'subsequent interference'. The Government can direct in certain cases that any particular fishery may not be put up to sale for a certain year or years as provided under Chapter X or may approve of the recommendation to that effect made by the Subordinate Officers or have it settled otherwise than by sale. It is questionable whether the Government can exercise such power or interfere after a public-auction has been held for the purpose of settlement of the fishery. The intention of the Rule is clear and it suggests that the Government should have given proper directions before the sale was held. The Government should realise the fact that people are put to unnecessary harassment and expenses in case the settlement by sale is interfered with or made infructuous at a later stage and some person unsuccessful at the bid is favoured with the settlement at the back of the public bidders. The intention of the Rule is surely otherwise. In this view, the Government exceeded its power in making a direct settlement after the Director of Land Records had directed a resale.
29. No attempt has been made to show in this case on behalf of the Government that the order of the Director of Land Records was justified in law. The only contention raised in support of this order has been that the petitioner did not come with clean hands and there was material to suppose that the petitioner was a partner in the previous sale though the lease was issued in favour of a third party. It is not for us to decide whether the petitioner was liable to pay any portion of the arrear revenue, but it is clear that the Director of Land Records has no legal nor advisory capacity to pass an order to that effect. This portion of the order, therefore, is illegal and in excess of the jurisdiction of the Director of Land Records and is to be treated as such.
30. In my view, the Subdivisional Officer could not have acted on the order of the Director of Land Records to seize or attach the security deposit that the petitioner made in connection with the sale that has been set aside. Whether the Subdivisional Officer has or has no independent power in this connection to attach the money is another matter to which we need not go.
31. The learned Acting Chief Justice has opined that we are not called upon to give a decision on the point as to whether the Government has any direct power of settlement or not in pursuance of Rule 190-A in view of the fact that in this case, the petitioner has failed to prove any legal right to the settlement of the fishery in his favour. I must respectfully differ from his Lordship in this view. We cannot presume that in the re-sale, a settlement in the petitioner's favour would be illegal or impossible. Now the right which is sought for is a right to bid in a prospective sale that would have been held as a result of the Director of Land Record's order.
It is not for us to speculate as to whether he would be the highest bidder or whether the Director of Land Records may or may not confirm the sale in his favour. This is a matter to which, in my opinion, we need not go at this stage. His objection is only to the resale being interfered with and we must say definitely here and now whether the Government has a right to interfere at this stage or not. In my opinion, therefore, it is necessary that we should express our view with regard to the powers enjoyed by the Government under Rule 190-A of the Fishery Rules and they, having acted in the present circumstances in defiance of the existing rules with regard to the settlement of the fishery, the Government's order is ultra vires.
32. In view, however, of the present set of facts, viz., the year of settlement having practically come to a close and the next sale being likely to be held within about a month, the opposite-party No. 3 having enjoyed the fishery in pursuance of the Government's order, it would be practically ineffective to set aside the settlement in favour of the opposite-party No. 3 at this time of the year and in this view, I agree with my Lord, the learned Acting Chief Justice that no writ should be issued setting aside the Government's order of settlement. This case should not be treated as a precedent in the matter of refusing writs in such circumstances because that might induce some of the authorities to think that if an illegal order is passed and the relief is delayed by causing a situation which lies with them, an illegal order even can be made efficacious. It having been given to be understood by the Govt. that the order of the Director of Land Records with regard to realisation of arrears had only an advisory value,--& is not treated as an effective direction,--I see no reason to issue a writ,--directing cancellation of that part of the order.
33. In the result, I agree with the proposed
order that the rules be discharged. Parties to
bear their own costs.