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NuruddIn Ahmed Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Constitution
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 56 of 1955
Judge
ActsAssam Land and Revenue Regulation, 1886 - Regulation 12 - Sections 16 and 155; Constitution of India - Articles 141, 226 and 245; Code of Civil Procedure (CPC) , 1908
AppellantNuruddIn Ahmed
RespondentState of Assam and ors.
Appellant AdvocateS.K. Ghose and P. Chaudhuri, Advs.
Respondent AdvocateS.M. Lahiri, A.G., D.N. Medhi, Adv. (for Nos. 1, 2 and 4) and N.M. Dam, Adv. (for No. 3)
DispositionApplication allowed
Excerpt:
- - the government after considering his representation and with a view to giving him a chance to make good the loss lifted this fishery from the deputy commissioner's list and directed settlement of it with respondent 3. it is stated further that the sum of rs. 9. it is extremely difficult to imagine that the legislature when providing under section 16 for settlements under the rules could envisage the possibility of a rule which authorised the making of settlements by any authority according as it liked, without conforming to any procedure, rules or objective standard. a settlement outside the rules was clearly not in contemplation. if what is described as the rule is not distinguishable in its effect from the absence of the rule, there would be failure to comply with the..... ram labhaya, j. 1. nuruddin ahmed, petitioner in this case, has applied for suitable writs under article 226 of the constitution of india against the state of assam, under-secretary to the government of assam in the revenue department, the deputy commissioner of cachar and illias ali,, respondent 3, in the following circumstances:2. fishery no. 11, river kushiara is on the register of fisheries maintained by the revenue department. it is a first class fishery. it is alleged that the fishery since its registration was being settled by auction in accordance with the rules which regulate the settlement of fisheries. illias ali, respondent 3 was the lessee in respect of the fishery for the last two terms viz., from 1949-50 to 1954-55. he got the settlements by bidding at the auction sales.in.....
Judgment:

Ram Labhaya, J.

1. Nuruddin Ahmed, petitioner in this case, has applied for suitable writs under Article 226 of the Constitution of India against the State of Assam, Under-Secretary to the Government of Assam in the Revenue Department, the Deputy Commissioner of Cachar and Illias Ali,, respondent 3, in the following circumstances:

2. Fishery No. 11, River Kushiara is on the register of fisheries maintained by the Revenue Department. It is a first class fishery. It is alleged that the fishery since its registration was being settled by auction in accordance with the rules which regulate the settlement of fisheries. Illias Ali, respondent 3 was the lessee in respect of the fishery for the last two terms viz., from 1949-50 to 1954-55. He got the settlements by bidding at the auction sales.

In conformity with the rules the Deputy Commissioner of Cachar issued a proclamation to the effect that the fishery in question (No. 11) along with others would be put up for sale on 10-2-1955 for a period of three years commencing from 1955-56. The proclamation was duly published. The petitioner went to the office of the Deputy Commissioner as an intending bidder for the fishery in question. But this fishery was not put up to sale as advertised. All other fisheries were duly auctioned. No information was given to the bidders why this fishery could not be put up for sale.

The petitioner could not get any information about it even from the office of the Deputy Commissioner. The petitioner later found that the fishery in question had, been settled by the State of Assam (respondent 1) through respondent 4, Under-Secretary to the Government of Assam, Revenue Department and that, it had been settled with respondent 3 by order dated 11-2-1955. The order of 11-2-1955 is to the following effect:

'Shri Illias Ali is the existing lessee of the Kushiara Fishery. Due to various troubles and difficulties to which he was subjected by the Pakistani nationals, and due to several litigations of a protracted nature, he naturally sustained a loss, and as such, his case appears to deserve consideration.

The Governor of Assam is, therefore, pleased to settle direct the Fishery No. 11, Kushiara River, with Shri Illias Ali (the present lessee) for another term of three years, with effect from 1-4-55, at an annual revenue of Rs. 2,500/- (rupees two thousand and five hundred) subject to the usual terms and conditions of ,a fishery lease.

The petition filed by Shri Muslim Uddin Earlaskar is rejected.'

3. The petitioner has averred that the settlement was made at a grossly inadequate rental and this has resulted in a substantial loss to the exchequer. He was prepared to pay at a much, higher rate than the one at which the settlement had been made with respondent 3. The petitioner asked whether he could get a certified copy of the order by which sale was postponed. He also desired to know whether any instructions had been received from the Government of Assam to postpone the sale of the fishery. This information was not given to him.

His case is that in the circumstances of the case the State of Assam (respondent 1) had no authority or jurisdiction to make the settlement direct with respondent 3 without following the procedure laid down in Fishery Rules, and the order of the Government has adversely affected his legal right to obtain a lease of the fishery on competitive terms.

4. Shree U. K. Sarma, the Under-Secretary, Revenue Department, has sworn the affidavit in opposition. He has affirmed that respondent 3 represented to the Government that he had suffered loss in the fishery on account of illegal interference from Pakistan nationals. The Government after considering his representation and with a view to giving him a chance to make good the loss lifted this fishery from the Deputy Commissioner's list and directed settlement of it with respondent 3.

It is stated further that the sum of Rs. 2,500/-the annual rent fixed for the fishery was reasonable in the circumstances of the case. The fishery fetched only Rs. 2,050/- at the previous auction. It was claimed that the State of Assam was fully competent to make direct settlement of fisheries as was done in this case. The decision was not high-handed, arbitrary or illegal in any sense as alleged.

5. At the hearing it was contended on behalf of the petitioner that Rule 12 of the Fishery Rules framed under Section 155 of the Assam Land and Revenue Regulation under which the Government settled the fishery direct with respondent 3 was 'ultra vires' the State of Assam and the settlement therefore had no validity.

Though the legality of the settlement had been assailed in the petition, the validity of the rule was not expressly challenged. It could however be regarded as implied in the plea taken in paragraph 13 of the petition.

With the permission of the Court the question was later raised in express terms, and this is the real question that arises in this petition.

6. Rule 190A of the old fishery rules provided that

'no fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government.'

This rule was interpreted by their Lordships of the Supreme Court in--'State of Assam v. Keshab Prasad Singh', AIR 1953 SC 309 (A). Their Lordships held that the rule did not confer any power on the State Government to lift the sale completely out of the protection afforded by the rules and to dispose of them by executive action. Immediately after the decision of their Lordships of the Supreme Court rules for the settlement of fisheries were framed afresh in supersession of all previous rules which were in force till then. The rules were recast. Rule 12 of the new rules corresponds to Rule 190A and it modifies the old rule substantially. Rule 12 of the rules now in force under which the settlement in question is made reads as follows:

'No fishery shall be settled otherwise than by sale except by the State Government. The order of Settlement passed by the State Government shall be final;

Provided that the State Government may introduce the tender system of settlement of fisheries in place of sale by auction system whenever It is considered necessary'.

Mr. Ghose's contention is that the State Government has assumed the power to settle fisheries direct & otherwise than by sale, & has also invested its orders with finality. The rule to the extent that it confers on the State an unrestricted power to make settlements otherwise than in accordance with the rules, vests the State with arbitrary and unrestricted power and it is repugnant to Section 18 of the Land and Revenue Regulation.

Mr. Lahiri has argued that the rule is not in excess of the rule making power that the Government possessed. It does not conflict with any requirement of Section 16 and is therefore valid. He has also raised the question that petitioner has no 'locus standi' to challenge the vires of the rule.

7. Fisheries are scattered over almost the entire territory of the State of Assam. They provide a substantial source of revenue to the State. The Assam Land and Revenue Regulation was passed in 1886. It dealt with fisheries specifically, in Chap. II, which deals with rights over the land. Section 16 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; and 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.'

The section has a proviso which has no bearing on the matter in controversy in this case. It is clear from the provisions of Section 16 that it was felt necessary as early as 1886 to regulate the settlement of waters which may be notified as fisheries under Section 16. The provision of law embodied in Section 16 is emphatically mandatory. Any fishery which has been so declared under Section 15 cannot be acquired by any one except in accordance with the provisions contained in the rules made under Section 155. Rules therefore must exist before any valid settlement binding on the Government could be made.

By Section 155 the Provincial Government has been vested with authority to make rules consistent With the Regulation relating to matters enumerated in the section in addition to other matters for which it has been empowered to make rules by other sections of the Regulation. In regard to fisheries Clause (f) of Section 155 specifically empowers the Provincial Government to make rules for regulating fishing in the fisheries. The requirement of Section 155 is that the rules shall be consistent with the Regulation.

Any rule relating to fisheries which is inconsistent with the provisions contained in Section 16 would be in excess of the powers of the Provincial Government and to that extent would be invalid and unenforceable. The rules must not conflict with any provision contained in the Act itself. In the exercise of the rule-making power the executive Government may not supersede, repeal or modify any provision of the Act itself. The rules are framed for carrying out the purposes of the Act.

8. The validity of R. 12 is assailed on the ground that it confers on the State Government unrestricted power to make settlements. No method or manner of making settlement is provided when the State Government decides to settle a fishery direct. The Government is not bound by any of the rules which regulate settlements by subordinate authorities. The subordinate authorities have to fix a date for sales not later than 15th February in each year, the date fixed has to be proclaimed at least one month in advance by a proclamation. The manner of the publication of the proclamation is so laid down by the rules.

The rules also provide what the proclamation of sale should contain. The place of sale also is fixed. The conditions of the sale laid down in Rule 5 have to be embodied in the proclamation of sale and they are also to be announced at the time of sale. All this elaborate procedure has to be observed when a fishery is sought to be settled. The State Government in its direct settlements is not bound by any procedure or the rules. It may settle any fishery at any time with any one without notice to persons interested in the settlement of fisheries. It need not settle the fisheries by auction or even by tender system.

The rule in question also does not contain anything which may guide or regulate the conduct of the State Government in making a direct settlement. It also makes the order of the State Government final. No appeal is provided against it, while all orders of settlements by subordinate authorities are appealable. When the power or the discretion is unlimited and is not regulated or restricted in any way, it is capable of arbitrary exercise.

The question is whether the assumption of the power by the State Government in its rule-making power is consistent with the requirements of Rule 16. Was the Government giving effect to the purpose of Section 16 by assuming so vast a power, the exercise of which is not subject to any check or scrutiny? Where the Legislature confers on a person or body of persons large powers for the purposes of administering an Act, it normally prescribes the principles on which these powers are to be exercised.

If there are no rules for guiding and controlling the exercise of discretion by the person or the body of persons, the power is regarded as arbitrary and even unreasonable. The State Government when exercising its rule-making power performs a legislative function. When it confers on itself power which is absolutely unfettered, it exposes itself to the criticism that arbitrary power has been assumed.

9. It is extremely difficult to imagine that the Legislature when providing under Section 16 for settlements under the rules could envisage the possibility of a rule which authorised the making of settlements by any authority according as it liked, without conforming to any procedure, rules or objective standard. If the idea or the intention had been to leave the making of settlements to the uncontrolled, discretion of the executive Government, the power could have been conferred on the State Government directly by the Legislature.

The provision that the rules must be framed and settlements should be under the rules reveals the intention of the Legislature in no uncertain manner. Rules were considered necessary for regulating the mode, of settlements, whatever the authority which was invested with' power to make settlements under the rules. A settlement outside the rules was clearly not in contemplation. The fisheries formed a very substantial source of revenue of the State.

They also provided an occupation to a large section of the population in Assam. We have a class of fishermen by caste and there are also fisheries by profession who take settlements of fisheries for working them through fishermen. Regulating the settlement of fisheries therefore served a double purpose.

It provided security to those who were fishermen by caste or profession. It also safeguarded the Government against loss of revenue. An unrestricted power to settle fisheries in anyone would be antagonistic to both these purposes and this may not be read into Section 16 unless it is so stated in express terms or by necessary intendment.

The language of Section 16 contains nothing on the basis of which it may be argued as the learned Advocate-General has done that the assumption of power by the State Government to settle fisheries direct, uncontrolled by any rules or regulations is not opposed to the provisions of Section 16.

He has argued that all that Section 16 requires is that there should be rules for the settlement of fisheries. The State Government has complied with this requirement by framing the rules. Rule 12 is as much a rule as other rules are and the rule not being opposed to any express prohibition cannot be regarded as inconsistent with Section 16. The contention has the merit of plausibility. But it is not sound. The purpose of 'rules is to guide and regulate the exercise of the power to make settlement. When the so-called rule casts off even the pretence of directions which may have any value for purposes of regulation and guidance, the situation would not be different from what it would be if there are no rules at all.

It would be the same if the Legislature itself had left the making of settlement to the unfettered discretion of the State Government which it advisedly did not do and this brings out the inconsistency between the so-called rule and the requirements of Section 16. Rule 12 no doubt occurs in the rules. Its validity is being challenged notwithstanding the fact that it forms part of the

rules. It admittedly has got the appearance of the rule. It has not got the substance.

Whenever a question of legislative competence arises and the contention is that a legislative body has exceeded its powers, the rule of

pith and substance provides the test for deter

mining whether the impugned Act is within its

legislative competence or not. The same rule

would apply when the question is whether the

rule-making authority has exceeded its powers.

It is the substance and not the form that would

provide the answer to the question.

If what is described as the rule is not distinguishable in its effect from the absence of the rule, there would be failure to comply with the requirements of the statute and the rule framed would be in excess of the authority conferred by the Legislature. A rule may be framed in such a manner that it may be a colourable exercise of the rule-making authority, just as a legislative enactment may be a colourable exercise of the legislative function.

The form is not conclusive and unless the rule satisfies the requirements of the law in pith and substance, it may founder on the rock of constitutional invalidity or incompetence. The rule in question is a lifeless imitation of what a rule ought to be. It is like a picture, all surface and no depth. It is a rule which does not rule but allows an officer or a body of officers acting under it to rule.

It substitutes the rule of man for the rule of law or in other words it makes the State of Assam the rule unto itself. The rule so expressed would be unpredictable in its effect and consequences. No one would know when any fishery may be lifted out of scope of the rules, when to apply or how to qualify, for a direct settlement of it. The rule therefore is antagonistic to the spirit of Section 16 even though it may conform to the letter of the law and even that I doubt.

10. The question is in fact concluded by authority. In AIR 1953 SC 309 (A) their Lordships of the Supreme Court had to interpret Rule 190A of the old rules which has been replaced by Rule 12. It was contended on behalf of the State of Assam that even the old rule vested the State with unfettered powers to make direct settlements and the orders of the State Government could not be appealed from.

Their Lordships found that the language of the rule could not be interpreted that way. The rule merely authorised the State Government to sanction settlements by subordinate authorities otherwise than in conformity with the rules. The State Government had no authority under that rule to make settlements direct. Their Lordships further held that if the rule was interpreted that way, it would run counter to the requirements of Section 16 and would be hit by it. Bose J. who delivered the judgment, when dealing with this contention observed as follows:

'In our Judgment, the words 'except with the previous sanction of the Provincial Government' are 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 fn 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 was clearly laid down that any rule permitting the lifting of a fishery or fisheries out of the list for sale by an unorthodox method not contemplated by the Regulation would be inconsistent with the provisions contained in Section 16. The need for Rule 12 arose from the fact that the Supreme Court refused to read the power which the State Government claimed under Rule 190A of the old rules which stand superseded.

It appears that the State Government could not derive any guidance from the Supreme Court judgment before framing the new rules. The judgment of the Supreme Court was delivered on 14-4-1953. The new rules were notified on 15-4-1953.

11. The learned Advocate-General has argued that the remarks of their Lordships of the Supreme Court in AIR 1953 SC 309 (A) are merely 'obiter' and this Court is not bound by them. The remarks were made in answer to a contention advanced on behalf of the State Government. It was claimed that the State Government had the power to make settlements otherwise than under the rules. If this contention had prevailed, the settlement made by the Government in that case would have been upheld.

The contention was overruled on two grounds viz., (1) that the language of the rule did not confer any such authority on the State Government, (2) if it had, the rule would have been in conflict with the requirement of Section 16. The observations therefore may not be regarded as merely obiter. They were necessary for disposing of a contention raised on behalf of the State of Assam.

The observations embody an interpretation of Section 18 and therefore they would be binding. Even if they were made obiter they would be entitled to the highest esteem from us. This would be more so when we find ourselves in respectful agreement with the view which prevailed with their Lordships.

12. It follows from the above discussion that the direction in Rule 12 which allows the State Government to settle a fishery otherwise than by sale and makes the order of settlement by the State Government final, is inconsistent with Section 16 and as such ultra vires the State Government and therefore invalid and unenforceable. The settlement thus is by an authority which had no jurisdiction and is therefore incompetent and unsustainable.

13. The learned Advocate-General has also contended that the petitioner has got no locus standi to invoke the extraordinary jurisdiction of the Court as no right of his has been violated. He could not ask for a declaration that the rule in question was ultra vires the State Government. The contention would appear attractive at the first blush. But it is essentially weak. A competent authority under the rules' issued a notice inviting bidders to a sale of this fishery which was to be held on 10-2-1955.

Petitioner went there for bidding at the sale. He states that he was keen on having the settlement of the fishery and was prepared to pay at a rate, higher than that at which it has been settled with respondent 3. He was deprived of the opportunity of taking the settlement which the rules provided as the fishery was taken out of the category of other fisheries of the District which were duly put up for sale.

He is obviously still prepared to have the fishery on a competitive basis. He had an eye on this fishery as would appear from the facts alleged in the petition. These have not been disputed. It may be that hoping that this fishery would be put up for sale he did not try to secure any other fishery, for, no announcement was made till then that this particular fishery would not be sold. In any case his learned counsel argues that the rule, under which the State Government has settled the fishery direct being ultra vires, the settlement is without authority and a valid settlement under the rules has to be made.

The petitioner is in all respects elegible for a settlement and all that he wants is that the fishery may be settled in accordance with the provisions contained in the rules, so that he also along with others may have a chance of obtaining the settlement by conforming to the rules. It is also pointed out that even if the annual rental for which the fishery has been sold may appear reasonable, there is no reason why the State should lose money if the fishery can fetch more at a sale by auction.

The method adopted for settling the fishery, it is argued, has caused an injuiy to the petitioner inasmuch as by an illegal settlement he is prevented from exercising his right under the rules to have the fishery. Loss also has been caused to the revenues of the State. Both from a public and a private view point the petitioner has the right to demand a valid settlement of the fishery under the rules.

He has no other way of obtaining redress. An injury has been caused to him, he has grievance, he is not asking merely for a declaration that Rule 12 in part is invalid. He is praying for the cancellation of an illegal settlement in order that a valid settlement of it may be possible.

The basis on which he claims relief is that the State Government had no authority to make the settlement in the way it has done. This may raise the issue of the vires of the rule to the extent that it authorises the Government to make settlements direct and otherwise than by sale. But his main purpose is to have the settlement of the fishery made according to rules in order that nobody who is not prepared to offer a bid as high as he is prepared to do, may have it to his detriment and also to the detriment of the State.

14. The case of the petitioner so presented is almost irresistible. Article 226 confers on the High Courts the power to issue suitable writs or orders for the enforcement of any of the rights conferred by part III and for any other purpose. It is settled law that redress under this Article may be obtained not only for the enforcement of fundamental rights conferred by part III but also for other legal rights.

The words 'for any other purpose' would surely include infringements of other rights for the enforcement of which the extraordinary jurisdiction, of the High Court under Article 226 may be invoked. Infringement of a right involves an injury of some kind. Where there 19 an injury and there is no other mode of obtaining redress, relief may be given under Article 226.

Fazl Ali J. considered this question in--'Charanjtt Lal v. Union of India, AIR 1951 SC 41 (B). He agreed with the proposition that no one except those whose rights are directly affected by law can raise the question of the constitutionality of that law. He considered some cases from the United States of America and relied in particular on the principle enunciated by Hughes J. in--'McCabe v. Atchison', (1914) 235 US 151 (C), in these words :

'It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainant's need of it and the absence of an adequate remedy at law must clearly appeal. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant--Not to others --which justifies judicial interference.'

Fazl Ali J. after reproducing the principle observed as follows :

'On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights.' It is' not necessary to consider the facts of that particular case. The requirement of the principle is clear. There has to be an injury to the individual who invokes the extraordinary jurisdiction of the High Court. The injury should create the need for a remedy and there should be the absence of an adequate remedy at law.

The learned Advocate-General has relied on this decision and if the principle which was referred to therein with approval is applied to the facts of this case, it would be found that the petitioner has made out a case for interference. The settlement of the fishery has been found to be illegal. He has been deprived of the right which the rules give him of having the fishery by offering best terms to the Government. There is an injury for which there is no other remedy.

In fact if the petitioner is held disentitled to claim relief under Article 226 an anomalous situation would be created. If he has not the right to object to the illegal settlement, no one else has that right as all intending to have the settlement would be in exactly the same position. The result would be that an illegal settlement would not be open to invasion. The invalidity of the rule also would escape legal challenge.

Not only this, any other fishery may similarly be singled out for special treatment and no one will have the right to challenge either the legality of the settlement or the validity of the rule which permits settlements otherwise than under the rules. The situation then would be that even thouhn there is an invalid rule resulting in illegal settlements, no one will have the right to claim any relief. This surely could not be law.

Every wrong settlement injures someone who is better entitled to it than the one who gets it in a way which the law does not countenance. We feel that the case of the petitioner satisfies the requirements of the principle approved in AIR 1951 SC 41 (B), and relief cannot be refused to him on the ground that he has no locus standi to apply for relief under Article 226.

15. The learned Advocate-General has also relied on 'State of Orissa v. Madan Gopal Rungta', AIR 1952 SC 12 (D). He has referred us to the observation of Kania C. J. that

'the language of Article 228 shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of trio Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the

exercise of jurisdiction of the Court under this Article.'

These observations have to be read in the light of facts of that case. The judgment of the Orissa High Court under appeal showed that the Judges had decided nothing at all in respect of the rights of the parties. Indeed they had expressly stated that their observations should- not in any way be considered as deciding any of the rights or contentions of the parties raised in the petitions. Without referring to rights of the parties the High Court had issued what amounted to a temporary injunction to the State of Orissa directing that it should refrain from disturbing the petitioner's possession over the mining areas in question for the periods specified in the order.

Their Lordships by the observations reproduced above were emphasizing the fact that in the absence of any decision about rights no writ or order under Article 226 could issue. The principle enunciated in AIR 1951 SC 41 (B), on which also the learned Advocate-General has relied was not dissented from and the statement of the law contained in this case is not inconsistent with that principle. On facts this case is distinguishable.

16. Mr. Lahiri has also relied on two decisions of this High Court. The first of these two is reported in--'Assam Fisheries, Farms and Industries Ltd. v. Development Commissioner, Assam', AIR 1953 Assam 155 (13). The dispute arose from the settlement of a fishery. It was for the petitioner to establish a valid right for the protection of which he could invoke the jurisdiction of the High Court for the issue of a writ under Article 226.

In this case the fishery was advertised. It was auctioned on the due date. The petitioner in the case offered the highest bid. The opposite party was the next highest bidder. The Deputy Commissioner accepted the bid of the petitioner and directed that the fishery should be settled with him and sent the bid sheet along with his recommendation to the Development Commissioner for sanction.

The Development Commissioner did not accept the recommendation made by the Deputy Commissioner and by his order refused to sanction the settlement with him. He also expressed in his order the opinion that opposite party No. 3, the next highest bidder being actually a fisherman the settlement of the fishery should be made with him after allowing him the concession of 10 per cent, over the highest bid which the rules permitted. The fishery was settled with him.

The petitioner challenged the order of settlement made in pursuance of the suggestion emanating from the Development Commissioner. His highest bid was not acceptable to the Development Commissioner who had to sanction the fishery. He thought that the next highest bidder, the actual fisherman was better entitled. No fresh sale was considered necessary. The settlement was mane on the bid list to which petitioner was a party.

His bid having been validly refused, he had no right for the protection of which he could invoke the extraordinary jurisdiction of the High Court. The case of the petitioner in that case was that his bid having been accepted by the Deputy Commissioner he had acquired a right in the fishery. It was found that the proposal of the Deputy Commissioner in his favour which was subject to the sanction of the Development Commissioner and to the execution of appropriate leases, could not confer any right on the petitioner.

The matter was merely in an inchoate stage as long as the proposal had not been sanctioned by the Development Commissioner, and a proper document of lease executed by the parties. The learned C. J. who delivered the judgment observed that

'it would be, therefore, an abuse of language to say that he had acquired any such right by the mere order of the Deputy Commissioner recommending a settlement with him.'

The petition was founded on the existence of a personal right. It was found not to exist and in the absence of a claim for protection of a right relief by writs under Article 226 was refused. The question which is raised in this case was not then before the Court. The legality of a settlement was not challenged on the ground that any rule was ultra vires the State Government.

The petitioner merely claimed a right in himself which was found not to exist. Since the vires of any rule was not called in question, any observations made in that case may not be pressed into service for an argument on a point which was not before the Court in that case. The other case reported in--'Mahboob Khan v. Deputy Commr. of Lukhimpur', AIR 1953 Assam 145 (F), is also distinguishable on the same grounds.

17. We may also refer to a case reported to--'G. D. Karkare v. T. L. Shevde', AIR 1952 Nag 330 (G), to which our attention has been drawn by the learned counsel for the petitioner. The learned Judges in this case interpreted the words 'for any other purpose' occurring in Article 226. They held that the enforcement of legal right and the performance of legal duty cannot be exhaustive of the purposes for winch the Court may issue any order, direction or writ under Article 226. The Words 'for any other purpose' must receive their plain and natural meaning, namely, for any other object which the Court considers appropriate and call's for the exercise of the powers conferred upon it. Though the power of the Court under Article 226 is ordinarily exercisable for enforcement of right or performance of duty, it cannot necessarily be limited to only such cases.

Such a limitation cannot be reconciled with the power to issue a writ in the nature of quo warranto which power has been expressly conferred on the Court. In proceedings for a writ of quo warranto the applicant does not seek to enforce any right of his as such, nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office.'

In this case the applicant challenged the appointment of the Advocate-General on the ground that he hod attained the age of sixty before he was appointed Advocate-General. It wcs held that there was no reason to refuse a citizen under a democratic constitution to move for a writ of 'quo warranto' for testing the validity of such a high appointment under the Constitution as that of the Advocate-General whoso office was of a public nature.

Mr. Ghose has tried to derive support from this decision for the proposition that since direct settlements by negotiation may lead to loss of public revenue, the petitioner would have the

right to challenge the settlement on the ground that it was a matter of grave public concern like the appointment of an Advocate-General of a province. Article 226 expressly authorises the issue of writs in the nature of quo warranto and we do hot consider it necessary to extend the scope of the decision by applying it to a case of the kind now before us.

We think the present case is within the scope of the principle enunciated by their Lordships of the Supreme Court in AIR 1951 SC 41 (B), and therefore the rule may not be discharged on the ground that the petitioner has no locus standi. The petition is allowed. The settlement in favour of respondent 3 is set aside. It shall cease to have effect and the fishery shall be settled in accordance with the rules. The Rule is made absolute.

Sarjoo Prosad, C.J.

18. I entirely agree and have little to add to the very elaborate discussion of the matter contained in the judgment of my learned brother. It appears to me fairly obvious that Rule 12 of the Fishery Rules to the extent that it confers unrestricted and arbitrary powers on the State Government to make settlements of fisheries, otherwise than in accordance with the rules is repugnant to Section 16 read with Section 159 of the Assam Land and Revenue Regulation.

Though in the guise of a rule, in effect it is the very negation thereof; because in one sweep it enables the State Government to wipe out and override all the other rules regulating such settlements. It defeats the very object of Sections 18 and 155 of the Regulation and therefore cannot be justified, either in letter or in spirit. The decision of the Supreme Court in AIR 1953 S. C. 309 (A), has a direct bearing on the interpretation of Section 16 of the Regulation.

To validate a rule which manifestly enables the State Government to lift the sales of fisheries completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by mere executive action would be to run counter to Section 16 of the Regulation itself which requires the sales to be in accordance with rules framed under Section 155. The rule-making authority cannot by any device override the statute itself.

19. On the point of locus standi, it is quite clear that the petitioner has been deprived of his valuable right to bid at an auction sale for settlement of fisheries. If the fishery had been put to sale and the petitioner had been arbitrarily prevented from bidding at the auction, he would have been entitled to seek the protection of this Court for an appropriate writ in redressal of the wrong.

The effect of the action taken by Government in the present case stands almost on the same footing; otherwise the anomalous situation would arise that no one interested in the fisheries could question the arbitrary powers claimed by Government in enacting Rule 12 of the rules. The case falls distinctly within the principle laid down by Hughes J. in (1914) 235 US 151 (C) :

'It is an elementary principle that in order to justify the granting of that extraordinary relief, the complainant's need of it and the absence of an adequate remedy at law must clearly appear.'

Here the complainant's need of the relief is clear beyond doubt and he has no other adequate remedy.

20. I therefore agree that this application must be allowed and the directions given must be carried out.

21 We make no order as to costs of this application.


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