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R.K. Aneja Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 395 of 1972
Judge
Reported inAIR1973Raj111; 1972()WLN192
ActsRajasthan Fisheries Act, 1953 - Sections 6; Rajasthan Fisheries Rules, 1958 - Rule 5
AppellantR.K. Aneja
RespondentThe State of Rajasthan and ors.
Appellant Advocate R.K. Rastogi and; J.S. Rastogi, Advs.
Respondent Advocate B.P. Agarwal, Adv. for Respondent No. 3 and; S.K. Tewari, Deputy Govt. Adv.
DispositionPetition allowed
Cases ReferredState of Assam v. Keshab Prasad Singh
Excerpt:
.....for fishing in a particular manner. that is a legislative policy which must be obeyed by the state government both in letter and spirit.;in the present cafe, there is a clear violation of rule 5. as observed above, the petitioner's highest bid in the circumstances of the present case shall be deemed to have been confirmed by the director of animal husbandry and, therefore, the only act remained to be done under the rules is to issue a licence in favour of the petitioner and his partner respondent no. 4. - - rule 5 lays down procedure of giving licence by auction and it reads like this: rastogi's argument is that the director, according to the document filed by the state itself, had recommended the petitioner's case to the state government to accept the petitioner's bid for..........is that after having accepted the bid and received 25% of the amount from the petitioner, the state government by its order dated 11th of february, 1972, granted the theka in favour of the bharatpur fishermen co-operative society, bharatpur (respondent no. 3) for an amount of rs. 89,500/-. the director in compliance with the order of the state government, which has been reproduced verbatim at page 6 of the writ petition, issued a licence to respondent no. 3 under rule 5 on 14th of february. 1972. it is this order of the state government that has been challenged by the petitioner, inter alia, on the grounds that under the rules the state government is not competent to sanction a contract of fishing in any of the waters for which auction had taken place under the rules. according to.....
Judgment:
ORDER

V.P. Tyagi, J.

1. This writ petition of R. K. Aneja arises out of the following circumstances:

2. By publishing an advertisement dated 26th of December. 1971. in the Raiasthan Gazette and various other papers it was announced by the respondents Nos. 1 and 2 that the waters of Morel bund, including the Morel river shall be auctioned for giving a contract for fishing under the provisions of the Raiasthan Fisheries Act. 1953. The auction took place at Jaipur on 20th of January, 1972, and the petitioner along with respondent No. 4 who happens to be the partner of the petitioner, were the highest bidders at the auction and their bid was for Rs. 1,02,100/-. According to the averments made in the petition, the highest bid of the petitioner was accepted by the auction committee to which the Director of Animal Husbandry was a member. The period for which this contract of fishing was given by means of the said auction was very short and It was to end on the 30th of June. 1972. It is also averred that after accepting the highest bid of the petitioner the Director of Animal Husbandry confirmed the same and the petitioner deposited 25% of the amount of the total bid with the Deputy Director of Animal Husbandry under Rule 6 of the Raiasthan Fisheries Rules, 1958. The petitioner's grievance is that after having accepted the bid and received 25% of the amount from the petitioner, the State Government by its order dated 11th of February, 1972, granted the Theka in favour of the Bharatpur Fishermen Co-operative Society, Bharatpur (respondent No. 3) for an amount of Rs. 89,500/-. The Director in compliance with the order of the State Government, which has been reproduced verbatim at page 6 of the writ petition, issued a licence to respondent No. 3 under Rule 5 on 14th of February. 1972. It is this order of the State Government that has been challenged by the petitioner, inter alia, on the grounds that under the Rules the State Government is not competent to sanction a contract of fishing in any of the waters for which auction had taken place under the Rules. According to the petitioner, it is the Director of Animal Husbandry who is competent to sanction the highest bid of the bidder at the auction and this bid of the petitioner was confirmed by the Director. Animal Husbandry and, therefore, under Section 6 of the Act read with the Rules it is the petitioner who has the sole right of fishing in the Morel Bund. The petitioner has. therefore, praved that the order of the Government dated 11th February, 1972 and licence issued in favour of respondent No. 3 for fishing in the Morel Bund for the period ending 30th June, 1972 be quashed and respondent No. 2, the Director of Animal Husbandry, may be directed by issuing an appropriate writ or order to grant a licence to the petitioner and respondent No. 4 (partner of the petitioner) for fishing for the said period in Morel Bund.

3. An interim order was passed by this Court on 17th of February, 1972 directing respondent No. 3, the licensee, not to start fishing under the licence given to it by the Director of Animal Husbandry, but it is averred by the Bharatpur Fishermen Co-operative Society (hereinafter called the Society) that before the said order was received by it, it had already started fishing under the licence, but still the Director stopped the society to further carry on Its operation of fishing in the concerned waters. In such circumstances, all the parties were eager to see that the writ petition Is disposed of as early as possible so that they may exactly know their rights regarding the licence issued in favour of respondent No. 3 by the Director of Animal Husbandry.

4. The State Government has filed a reply to the stay matter but learned Deputy Government Advocate has requested that that reply may be taken as a reply to the writ petition also. In this reply the stand taken by the State Government is that under the Instructions issued at the time of the auction it was made clear by the Director to all those persons who were bidding at the auction that the State Government shall be at liberty to sanction the contract of fishing in favour of any co-operative society at a reduced rate of 121/2 per cent, an the highest bid received at the auction and, therefore, the petitioner cannot now say that the State Government was not authorised to sanction the contract of fishing in favour of respondent No. 3.

5. Affidavit on behalf of respondent No, 3 has also been filed in reply to the writ petition wherein it has been averred that the society consists of 70 fishermen whose sole profession is to carry on fishing in the waters granted to them. According to this reply, the society has already incurred an expense of Rs. 10,500/- and it has spent money on the materials for the preparation of nets and boats etc. and if they are debarred from fishing at this stage then they will suffer an irreparable loss. The society has also placed reliance on the Instructions issued by the Government at the time of the auction sale and it is contended that the petitioner and his partner were aware of those conditions of sale wherein it had been provided that the Government would be at liberty to grant Theka in favour of a co-operative society by reducing the licence fee by 121/2 per cent, on the highest bid received at the auction. It is also averred that the society had already started fishing in the concerned waters and, therefore, the stay order issued by this Court arid also the petitioner's writ petition have become infructuous.

6. These facts are not in dispute that at the time of the auction certain conditions were announced by the auction committee which have been incorporated in a document produced by the State Government and marked as R-2. The petitioner had put his signatures on these conditions before the auction had started which, according to the respondents, mean that the petitioner had accepted all these conditions of auction.

7. The respondents have placed reliance on two conditions mentioned in document R-2 and they are conditions Nos. 13 and 21. According to condition No. 13 all the bids over Rs. 15.000/- shall be accepted by the State Government and it is only thereafter that a licence shall be issued to the Thekedar to carry on the operation of fishing in the concerned waters. According to condition No. 21 the State Government could grant a licence in favour of the registered co-operative societies at a reduced rate of licence fee at the rate of 121/2 per cent below the highest bid procured at the auction provided that such a society had taken part in the auction.

8. Learned Deputy Government Advocate has urged that the petitioner should not be allowed to have any relief from this Court as he has not come with clean hands before this Court. The contention of the State Government is that the petitioner in order to get his petition admitted and the stay order obtained from this Court made a false statement in para 10 of his petition whereby this impression has been given to this Court that the highest bid of the petitioner was confirmed by the Director of Animal Husbandry which fact, according to him was far from being true. According to condition No. 13 of the conditions of auction sale, every bid beyond Rs. 15,000/- was to be submitted to the Government for sanction and, therefore, the question of confirming the petitioner's bid by the Director of Animal Husbandry does not arise. This fact has been mentioned wrongly by the petitioner in his petition to create a right in his favour under Rule 5 of the Rules which says that the highest bidder, after confirmation by the Director of Animal Husbandry, shall have the sole right of fishing in the waters in respect of which the auction was held. According to Mr. Tewari, no right had been created in favour of the petitioner before the formal sanction was accorded by the Director. Animal Husbandry to the highest bid of the petitioner. Before deciding this question, it will be convenient to refer to certain relevant provisions of the law which have a bearing on this question.

9. Section 6 of the Rajasthan Fisheries Act. 1953, lays down that no fishing shall be allowed except under licence obtainable from such officer or person as may be authorised in that behalf by the State Government Rule 4 of the Rajasthan Fisheries Rules. 1958, prescribes certain fees for licence under the Act and this prescription indicates that three types of licences can be issued under these Rules. The first type of licence is a Seasonal Fishery Licence given on form No. 1. The second type of licence is Angling licence which is given under Sub-rule (2) of Rule 4 on form No. 2. The third type of licence is the licence issued by auction. The fees for this type of licence shall be the amount at which the highest bid has been 'accepted. Rule 5 lays down procedure of giving licence by auction and It reads like this:

'Rule 5. Procedure by auction.-- (a) On or after the 1st day of August each year the Director of Animal Husbandry or any other officer specially appointed by him for the purpose may in case of waters he considers reasonable and necessary to do so, auction the right of fishing. The highest bidder after confirmation by the Director of Animal Husbandry shall have the sole right of fishing in the waters in respect of which the auction was held in accordance with the licence granted to him in this behalf in Form No. 3.

(b) The Director of Animal Husbandry or the Auction Committee, if any, specially appointed by him for conducting the auction shall, for reasons to be recorded in writing have the right to reject any bid offered'.

10. By reading these provisions of law it is clear that no person has a right to fish in the waters owned by the Government unless a licence has been given by an officer or person authorised by the State Government in that behalf. Rule 5 authorises the Director of Animal Husbandry to issue such licences. According to this rule, it is the Director of Animal Husbandry who has a right to confirm the highest bid and then to issue a licence in favour of the highest bidder. He has, however, a right to reject the highest bid, but if he or the Auction Committee, if appointed for that purpose, rejects such a highest bid, then it is incumbent on them to record the reasons for rejecting the highest bid. The Government does not come in the picture at all in the matter of granting licences under the Act and the Rules. These Rules, however, are silent about giving preference to the co-operative societies. According to Rule 5 the highest bidder, after confirmation by the Director of Animal Husbandry, has the sole right of fishing in the waters in respect of -which the auction was held.

11. It is true that certain conditions were pronounced by the Auction Committee when the auction for issuing licences for Morel Bund was held containing this condition that the Government can grant a licence in favour of a co-operative society at a reduced licence fee provided the society had participated in the auction. An argument has been raised by Mr. Rastogi that any such administrative conditions issued by the State Government or the Director of Animal Husbandry before the auction had taken place cannot confer any power on the State Government to grant licence in favour of a co-operative society at a reduced rate of licence fee rejecting the right of the highest bidder who under Rule 5 is the sole person who can claim the right of fishing in the waters after his bid has been confirmed by the Director of Animal Husbandry. I need not decide this question here because I see that condition No. 21 if at all it confers any power on the Government to prefer a co-operative society to the highest bidder lays down a condition that such a co-operative society must participate in the auction. But in the present case, I find that the society, respondent No. 3, did not take part in the auction and therefore, it cannot take any advantage of condition No. 21 of R-2.

12. Before adverting to the main issue whether the petitioner had made a false statement in para 10 of his petition, I will have to examine whether under the circumstances of this case, as Mr. Rastogi argues, the Director can be said to have confirmed the bid or not, the decision on that main question would depend on the decision of this argument whether under the circumstances the Director had confirmed the petitioner's bid or not.

13. Mr. Rastogi's argument is that the Director, according to the document filed by the State itself, had recommended the petitioner's case to the State Government to accept the petitioner's bid for carrying out the fisheries operations in Morel Bund and this recommendation, according to his argument, tantamounts to the confirmation of the petitioner's bid. In support of this argument. Mr. Rastogi placed reliance on a Supreme Court case in M/s. Ravi Roadways v. Asia Bi, AIR 1970 SC 1241. The argument of Mr. Rastogi is like this. According to him, the Director of Animal Husbandry is the sole authority under the Rules to confirm the bid. The Government does not at all come in the picture for confirming or rejecting the highest bid of the bidder at the auction, but it so appears that due to certain departmental instructions issued by the State Government for conducting the auction proceedings under Rule 5 of the Rules the Director is required to submit the papers for the administrative sanction of the Government if the bid exceeds Rs. 15,000/-. Document R-4 also indicates that the Director had submitted the proceedings of auction to the State Government for according administrative sanction to Issue a licence to carry out fishing in Morel Bund waters. If in such circumstances the Director recommended the petitioner's case to the Government, then such a recommendation according to Mr. Rastogi must be taken to be a confirmation under Rule 5 by the Director of Animal Husbandry. In AIR 1970 SC 1241 one Sabulal entered into a contract to sell his vehicle to the Roadways. The Roadways paid the price stipulated but the transfer of the permit could be effective only if a sanction to that transfer was accorded by the Transport Authority. When the papers came for sanction of a transfer before the Transport Authority, it appears that that Authority submitted the papers to the Transport Commissioner with a recommendation to accept that transfer. The learned Judges of the Supreme Court in such circumstances were of opinion that if the Transport Authority had no objection to the permit being transferred to the Roadways, then that recommendation in their judgment amounted to sanction of the transfer and they further held that as that order was made during the lifetime of Sabulal the transfer became effective in favour of the Roadways.

14. Mr. Rastogi vehemently urged that under Rule 5, which has a statutory force, the authority to confirm the highest bid is the Director of Animal Husbandry who did not reject the petitioner's highest bid in accordance with Clause (b) of Rule 5, but, on the contrary, recommended to the Government for according an administrative sanction for granting licence for the waters of Morel Bund on the licence fee of Rs. 1,02,100/- as obtained at the auction. This conduct of the Director of Animal Husbandry, according to the principle laid down by their Lordships of the Supreme Court tantamounts to his confirmation of the bid and in such circumstances the bid shall be deemed to have been confirmed by the Director in favour of the petitioner and his partner.

15. In this view of the matter, I have now to judge the objection of the learned Deputy Government Advocate that the petitioner's application must be thrown because of coming to this Court with unclean hands. Mr. Rastogi urged that the auction had taken place on 20th of January, 1972, and the order was issued by the Deputy Secretary to the Government to the Director of Animal Husbandry to grant licence to respondent No. 3 on the 11th of February, 1972 and this fact came to the knowledge of the petitioner on 14th of February. 1972. The petitioner immediately rushed to Jodhpur to file a writ application and it was in a hurry that the writ application was drafted and, therefore, all the facts were not mentioned with all the details in the manner in which they ought to have been incorporated in the petition and, therefore, according to him from the averments made in para. 10 this plea has been raised that the petitioner deliberately stated a lie that the Director of Animal Husbandry had confirmed his bid. As a matter of fact, if this statement of the petitioner is read in the light of all the circumstances that have now been brought on the record, then no other conclusion could be drawn except this that the Director had confirmed the petitioner's bid and that the petitioner was the sole person to have a licence under Rule 5 of the Rules. I find force in the argument of Mr. Rastogi and in these circumstances the petitioner's application cannot be rejected on this ground that he spoke a deliberate lie before this Court.

16. In the State of Assam v. Keshab Prasad Singh, AIR 1953 SC 309, which was a fisheries case, the Supreme Court held that the sale of these licences forms such a lucrative source of revenue that State legislatures have deemed it wise not to leave the matter to unfettered executive discretion; accordingly legislation has been enacted in most parts of India to regulate and control the licensing of these trades; Acts are passed and elaborate Rules are drawn up under them. It is evident that there is a policy and a purpose behind it all and it is equally evident that the fetters imposed by legislation cannot be brushed aside at the pleasure of either Government or its officers. The Rules bind State and subjects alike.

17. In the matter of granting liquor licences under the Mysore Excise Act, their Lordships in K. N. Guruswamy v. State of Mysore. AIR 1954 SC 592 reproduced the said observations in the case of the State of Assam v. Keshab Prasad Singh, AIR 1953 SC 309 and further observed that 'the Act and the Rules make it plain that liquor licencing in the State of Mysore can only be done in certain specified ways end such discretion as is left to the authorities is strictly controlled by Statute and Rules.'

18. In that case, the petitioner-appellant's bid, which was the highest was not confirmed and, therefore, a question was raised before the Supreme Court that the petitioner-appellant had no right to make an approach to the High Court in the extraordinary jurisdiction and seek for a writ. Their Lordships observed:

'In our opinion, he could have done so in an ordinary case. The appellant is interested in these contracts and has a right under the laws of the State to receive the same treatment and be given the same chance as anybody else.'

19. They also observed:

'But deeper considerations are also at stake, namely the elimination of favouritism and nepotism and corruption; not that we suggest that that occurred here, but to permit what has occurred in this case would leave the door wide open to the very evils which the legislature in its wisdom has endeavoured to avoid. All that is part and pracel of the policy of the legislature. None of it can be ignored.'

20. These observations apply on all fours to the circumstances of the present case. Here the legislature has given a mandate to the executive Government to grant the licences for fishing in a particular manner. That is a legislative policy which must be obeyed by the State Government both in letter and spirit. Any deviation from such a policy without amending the Rules can afford an opportunity for the persons interested to levy all types of charges against the executive Government. It is in the interest of the Government itself that the rules for granting fisheries licences must be strictly followed and the officers who are empowered by the Act and the Rules should observe the Rules implicitly. In the present case, there is a clear violation of Rule 5. As observed above, the petitioner's highest bid in the circumstances of the present case shall be deemed to have been confirmed by the Director of Animal Husbandry and, therefore, the only act remained to be done under the Rules is to issue a licence in favour of the petitioner and his partner respondent No. 4.

21. For the reasons mentionedabove, the writ petition is allowed. Thelicence issued in favour of respondentNo. 3 is hereby quashed, and respondent No. 2 is directed to issue licence infavour of the petitioner and respondentNo. 4. Respondent No. 1 shall pay coststo the petitioner.


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