H. Deka, J.
1. This rule was obtained by the petitioner for a writ under Article 226 of the Constitution of India for quashing certain order of the State Government dated 29-9-58 settling the Kamalabari-Kokilamukh/Neamatighat Ferry for the period extending from 1st of October, 1958 to 31st March, 1959 at an amount of Rs. 2,500/- with Golok Chandra Kalita, respondent No. 3. The ferry between Kamalabari-Kokilamukh/Neamatighat across the river Brahmaputra in the district of Sibsagar was declared to be a public ferry and had been run as such for a number of years till 31st March, 1958.
Though the ferry was run for a fairly long time as a steam driven ferry, it was subsequently converted into a power driven mar-boat ferry and Harikishore Prosad Singh, respondent No. 4 continued to be the lessee till 31st August, 1958 when he resigned. The State Government invited sealed tenders by a notification dated the 27th August, 1958 for operating the ferry between Kamalabari-Kokilamukh/Neamatighat with engined mar-boats with the right to collect tolls as per schedule attached for a term of six months commencing on and from the 1st of October, 1958. Other necessary directions for submitting tenders for operating the ferry were given in the said notice which is marked as Annexure A.
In pursuance of the said notification the petitioner along with some five others submitted tenders and the offer of the petitioner was Rs. 7,000/- as payable to the Government, and that was the highest offer amongst the candidates. The opposite party No. 3 Golok Chandra Kalita submitted a tender for Rs. 2,500/-. The Provincial Government settled the ferry with Golok Chandra Kalita in spite of his offer being comparatively very low and the said order was communicated under the signature of Sri K. Barua, Secretary to the Government of Assam, Public Works Department (R. and B.) Wing by his letter dated 29-9-58 which is marked as Annexure C.
2. The relevant order communicated to Golok Chandra Kalita is in the following form:
'I am directed to say that the Governor of Assam is pleased to settle the above mentioned ferry for the period from 1-10-58 to 31-3-59 at an amount of Rs. 2,500/- (Rupees two thousand and five hundred) only.
The lease should be executed immediately. The necessary advance money of Rs. 250/- (Rupees two hundred and fifty) only should be deposited forthwith. The Survey certificates of the boats should also be submitted without any further delay.'
3. The contention of the petitioner is that the settlement was governed by the Northern India Ferries Act of 1878 and that the present settlement is in contravention of the Act and rules framed under Section 12 of the Act which were applicable to all public ferries other than steam ferries and under those rules the settlement in question would be competent if only made by the Deputy Commissioner or the Civil Sub-Divisional Officer by auction, and the settlement had to be approved by the Chief Engineer and not by the Government.
The petitioner further contended that the action of the State Government amounted to violation of Section 8 of the Northern India Ferries Act and the State Government exceeded its rights given under that section by making the settlement themselves for which there was no sanction under the Act or the rules framed thereunder. The petitioner accordingly prays that the orders of settlement should be set aside and a fresh settlement made or the court should pass such other order or orders which might be justified in the circumstances of the case, and in keeping with the provisions of the Northern India Ferries Act.
4. The State Government appeared to oppose the rule and their contention was that it was within the competence of the State Government to settle the ferry by tender system which they did after proper notification of the Government's intention. They further questioned the petitioner's right to get a settlement inasmuch as he had not complied with the terms as specified in the notice to supply two single engined boats of specified size and power together with all necessary safety measures. The stand taken by the Government is that their action was just, legal and they had acted within their jurisdiction as furnished by Section 8 of the Northern India Ferries Act.
5. The relevant portion of Section 8 of the Northern India Ferries Act runs as follows:
'8. The tolls of any public ferry may, from time to time be let by public auction for a term not exceeding five years with the approval of the Commissioner, or by public auction, or otherwise than by public auction, for any term with the previous sanction of the State Government. .........'
6. A perusal of the Section would indicate that a public ferry has to be normally let by public auction, and when so done for a term not exceeding five years, the settlement should get the approval of the Commissioner (or the Chief Engineer by virtue of the Commissioner's Transfer of Power Act) and this approval is chronologically subsequent to the proposed settlement by some other officer holding or conducting the sale who might be named or authorised under the rules framed under Section 12 of the Act.
But the Government is left with the power to sanction, some other course of settlement either by public auction or otherwise than by public auction for any term, namely, it might exceed the period of five years or may be for a very short term. The general principle laid down by the section seems to be that for any period lesser than five years, the settlement should normally be by public auction subject to the approval of the Commissioner or the Chief Engineer. But in case of some emergency or for special reasons, the Government might take the case out of the general rule of settlement by public auction.
What is required under Section 8 is that the Government should decide earlier as to the method of the proposed settlement it they want to take the case out of the general rule and the procedure should be sanctioned by it in advance. In the present case the settlement was for a period of six months and the Government indicated by its notification dated 27-8-1958 that they would accept tenders and make the settlement also. The only point, therefore, is whether the Government could grant settlement at their own option in any manner they liked without having it done by some other subordinate agency subject to their approval,
7. Mr. R. C. Choudhury appearing on behalf of the petitioner contends that Section 8 of the Northern India Ferries Act does not entrust the Government with the power of direct settlement whereas it can be done only by the officer or officers who are entrusted with the power of settlement under the rules framed, if any, or by the District Magistrate, in whose jurisdiction the public ferry operates. He has laid much emphasis on he following passage occurring in the Supreme Court's judgment, reported in State of Assam v. Keshab Prosad Sing, AIR 1953 SC 309.
'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 contained in the Rules'.
8. Relevant Fishery Rule (in Chapter X--Assam Land and Revenue Regulation)--Section 190A is also similarly worded, and it is in the following words:
'190A. No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government'.
9. Mr. Medhi, Senior Government Advocate, who appeared to oppose the rule began by conceding that the Government does not enjoy the power of direct settlement as contended on behalf of the petitioner, but the Government's sanction is only for the purpose of settlement by a subordinate officer who is ordinarily competent to hold the public auction and make the settlement. He also relies on the observations (contained in paragraph 31, page 313) of the Supreme Court in the case of AIR 1953 SC 309 (supra), to the effect that the Government acted within the confines of the law in granting sanction to the act of settlement which was a function of the Deputy Commissioner, even though the order of settlement was passed by the State Government itself. We cannot accept Mr. Medhi's contention that the sanction of the Government could be interpreted to be an order of settlement by some other indeterminate subordinate officer, which is not a fact and the order by itself is a speaking order.
10. We have, therefore, to examine whether any power is left with the Government for the purpose of direct settlement purporting to act under Section 8 of Northern India Ferries Act on any occasion they so desire. Reading the Act as a 'whole, the scheme seems to be that the State Government exercises only a power of approval or superintendence under certain cases either before or after the settlement and the Government is not competent to exercise the power of direct settlement unless it is so empowered by any of the rules framed under Section 12 of the Act which provides for framing of rules subject to the Government control, generally to carry out the purposes of the Act and for the purposes enumerated therein.
The settlement directly by the Government, as a special case, is nowhere provided for under the rules so far framed. But the only thing provided is that the Provincial Government can sanction certain other procedure previous to the settlement, when it does not come within the first part of Section 8 of the Northern India Ferries Act. In the present case the Government by the selfsame notification asked for tenders without first laying down what would be the procedure, namely, as to who will make the settlement or enforce the conditions under the lease. Mr. Chaudhury's contention is that the Government cannot sanction its own action by way of self protection nor can they do it as an administrative measure.
11. Mr. Medhi has further relied on the decision of the Supreme Court reported in Cangaram Das v. Tezpur Kaibarta Co-operative Fishery Society Ltd., (S) AIR 1957 SC 377. The case refers to the settlement of fisheries by the Government purporting to act under Rule 12 of the Fishery Rules subsequently framed wherein it was provided that no fishery was to be sealed otherwise than by sale except by the Provincial Government which implied that the State Government could settle otherwise than by sale if there was no other impediment.
Their Lordships while discussing this rule, observed that no limitation was placed on this power which was vested in the State Government and if the State Government was empowered to settle fishery rights otherwise than by sale it could do so by adopting tender system if they thought desirable to do so or even by entering into the individual settlement if the circumstances of the case so warranted. Their Lordships observed in this connection as follows:
'No fetter can be placed on the discretion of the State Government in this behalf and the State Government would be the best judge of the situation and would be in a position to determine what procedure to adopt in the matter of settlement of fishery rights otherwise than by sale'.
12. In the light of this decision we have to examine whether Section 8 of the Northern India Ferries Act is so worded. In my opinion, it is not. Rule 12 of the Fishery Rules speaks of settlement of fishery rights and it says that if the settlement is made by other agencies than the State Government it has to be done by sale but not by the Government, who can do it otherwise. Wordings in Section 8 of the Northern India Ferries Act are more in keeping with the wordings in Rule 190A of the Fishery Rules as quoted above and the Government's power must be interpreted to be confined to the limits of laying down the mode by which the settlement will be made, unless some provision is made authorising the Government to make direct settlement as in Rule 12 of the Fishery Rules.
13. The decision reported in Jonab Fazilatdin v. Lakhinath Das, ILR (1954) 6 Assam 502 has been cited as a precedent by the learned Advocate for the petitioner in support of his contention, but that case refers only to the first part of Section 8 of the Northern India Ferries Act and does not deal with the second part with which we are concerned in this case, even though there may be some observations favouring the stand taken by the petitioner.
14. Looking to the Northern India Ferries Act itself, we find, that in Section 10 thereof, the Provincial Government is authorised to cancel the lease of the tolls of any public ferry under certain circumstances and if this Act would have intended powers of direct settlement to be conferred on the Provincial Government, there must have been some mention rather than it be left to the authorities to be named or described in the rules framed under the Act. It cannot be said on the other hand emphatically that there is any limit to the Government's power of direct settlement, or that it is circumscribed to the power of approval alone as is contended, but I think it will be advisable to accept the interpretation put by the Supreme Court on Government's power of 'sanction'' as was done in the earlier fishery case AIR 1953 SC 309. The scheme of the Act would more favour that view and the Government's power is also not neutralised thereby.
15. In the present set up, however, we do not propose to interfere with the order of settlement moved against since the period of settlement is going to expire by the end of March 1959 and it may not be possible to make fresh arrangement for running the ferry which is a public necessity.
16. In the circumstances, the rule is discharged but the respondents should pay cost to the petitioner which we assess at Rs. 100/- as hearing fee.
Sarjoo Prosad, C.J.
17. Substantially I am inclined to interpret Section 8 of the Northern India Ferries Act, 1878, in the same way as any learned Brother has done and I agree to the order proposed. I would like to add also, as my learned Brother has already noticed, that I have found no reasonable explanation on the record as to why the settlement of the ferry-ghat should have been made by the Government for a sum of Rs. 2,500/- only, when the highest bid was Rs. 7,000/-. I realise that the responsibility in the matter is that of the Government, but as it affects the public revenue, this glaring fact could not escape our notice.