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Lalgola Padma Fisherman's Co-operative Society Ltd. Vs. the State of West Bengal and Ors. (25.07.1973 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1798 (W) of 1973
Judge
Reported inAIR1974Cal217,78CWN386
ActsWest Bengal Government Estates Manual, 1953 - Rule 273
AppellantLalgola Padma Fisherman's Co-operative Society Ltd.
RespondentThe State of West Bengal and Ors.
Appellant AdvocateM.N. Roy and ;Mahitosh Mazumdar, Advs.
Respondent AdvocateSankardas Banerji, ;B.C. Roy, Advs. (for No. 11) and ;R.K. Mukherji, Adv. (for Nos. 1, 2, 7, 9 and 10)
Cases Referred(Union of India v. K. P. Joseph
Excerpt:
- .....of 1379 b. s. on 31st chaitra, 1379 b. s. the possession of the said fishery was taken over by the state government on the expiry of the year 1379 b. s.2. it appears that thereafter the said fishery was provisionally settled with andiran fishermen's society for the year 1380-81 b. s. at an annual rent of rs. 16,000/-. the said andiran fishermen's society made a deposit of rs. 16,000/- on 13th april, 1973. on the next day, i. e. 14th april it was put into possession. the provisional settlement of the fishery given to andiran fishermen's co-operative society was challenged by the petitioner in a writ petition. andiran fishermen's co-operative society also moved an op-plication under article 226 of the constitution and obtained a civil rule 919(w) of 1973. andiran fishermen's co-operative.....
Judgment:
ORDER

Debi Prosad Pal, J.

1. The dispute in the present case centres round the settlement of Dadpur Baur Fishery (hereinafter referred to as the said Fishery) within the P. S. Beldanga, District -- Murshidabad. The petitioner is Lalgola Padma Fishermen's Co-operative Society Ltd. registered under the Bengal Cooperative Societies Act, 1940. It is stated that 98 per cent, of the members of the Society are bona fide fishermen. The settlement of the said Fishery has a chequred history. By an Indenture dated 1st April, 1963, the petitioner was appointed as a lessee of the said Fishery by the State of West Bengal at an annual rental of Rs. 13,000/-. The said lease was granted by the State for a fixed term of one year which was to expire on or about 15th April, 1964. Before the expiry of the said term of the lease, one Sm. Maya Debt filed a writ petition in this Court and oblained a rule being C. R. 70(W) of 1963. The petitioner was respondent No. 5 in the said rule. It is stated in the affidavit of Sri Satyesh Chandra Chakravarty filed on behalf of respondents Nos. 1 to 5, 7, 9 and 10 that the petitioner obtained an order of injunction in the said rule and continued to remain in possession of the said Fishery even after the said lease expired by efflux of time. The said Civil Rule No. 70(W) of 1963 was ultimately discharged by Chittatosh Mukherji, J. on 16th May, 1972. In view of the interlocutory orders made from time to time in the said Civil Rule 70(W) of 1963 the petitioner remained in possession of the said Fishery from 1370 B. S. to 1378 B. S. on making payment of the same annual rent of Rs. 13,000/-, which was stipulated in the Indenture dated 1st April, 1963. As a result of the order made by Chittatosh Mukherji, J. the petitioner's right, title and interest in the said Fishery came to an end after the expiry of 1379 B. S. On 31st Chaitra, 1379 B. S. the possession of the said Fishery was taken over by the State Government on the expiry of the year 1379 B. S.

2. It appears that thereafter the said Fishery was provisionally settled with Andiran Fishermen's Society for the year 1380-81 B. S. at an annual rent of Rs. 16,000/-. The said Andiran Fishermen's Society made a deposit of Rs. 16,000/- on 13th April, 1973. On the next day, i. e. 14th April it was put into possession. The provisional settlement of the Fishery given to Andiran Fishermen's Co-operative Society was challenged by the petitioner in a writ petition. Andiran Fishermen's Co-operative Society also moved an op-plication under Article 226 of the Constitution and obtained a Civil Rule 919(W) of 1973. Andiran Fishermen's Co-operative Society was respondent No. 8 in the application filed by the petitioner. By an order dated 10-5-1973 Anil Kumar Sen, I disposed of both the matters setting aside the provisional settlement of the said Fishery made in favour of Andiran Fishermen's Co-operative Society. The learned Judge gave the following directions while disposing of the said applications :

(1) The Additional Collector will now go on to take steps without least delay to settle the said Fishery strictly in accordance with the Regulation 273 of the West Bengal Government Estates Manual, 1953 (hereinafter referred to as the Estates Manual).

(2) Andiran Fishermen's Co-operative Society would hand back possession of the disputed Fishery for such fresh settlement in accordance with law to the Additional Collector forthwith. On such possession being back, the Additional Collector should refund the entire sum of Rs. 16,000/- to the said Andiran. Fishermen's Co-operative Society.

(3) The Additional Collector should complete the procedure for settlement as early as possible in accordance with law and in any event within a month from the date of the order. In the meantime possession therein would be retained by the Collector himself.

3. Pursuant to the said directions of the learned Judge the Additional Collector, Land Reforms, Murshidabad issued a fresh tender notice on 14th May, 1973 for settlement of the said Fishery for the year 1380 B. S. A copy of the said tender notice has been annexed to the petition being annexure 'F'. The petitioner in response to the said tender notice submitted a sealed tender on 24th May, 1973. In the said tender it was stated that in the absence of any indication as regard reserve price of the said Fishery in the tender notice, the petitioner could not quote the exact amount of the annual rent that may be offered by it for the proposed settlement. The petitioner however stated that it was ready to pay annual rent of any amount as may be fixed by the authority as the reserve price equivalent to the economic rent of the fishery in question. The petitioner? states that the Assistant Registrar, Co-operative Societies, Murshidabad by a letter dated 22nd May, 1973, requested the Additional District Magistrate, Land Reforms, Murshidabad, for settlement of the said Fishery with the petitioner. It was also stated in the said letter which is annexure 'G' to the petition that the tender notice was incomplete as the reserve price of the Fishery in question had not been mentioned therein. It appears from paragraph 29 of the affidavit of Satyesh Chandra Chakraborty that Saktipore Ram-para Fishermen's Co-operative Society Ltd. being respondent No. 11 offered Rs. 52,500/-and had paid already Rs. 13,125/- on 29th May, 1973. The Board of Revenue, West Bengal, by its letter dated 7th June, 1973, has accorded sanction to the settlement of Dadpur Baor Fishery at an annual licence fee of Rs. 50,500/- for three years with effect from 1380 B. S. with the respondent No. 11. The petitioner being aggrieved by the issue of the tender notice being annexure 'F' and the settlement of the said Fishery with respondent No. 11 has challenged the said settlement in this rule.

4. Counsel for the petitioner has contended that the tender notice dated 14th May, 1973 issued by the Government is not in accordance with Rule 273 of the Estates Manual as no economic rent for the said fishery has been fixed and no reserve price of the said fishery has been mentioned in the said tender notice. This according to the learned Counsel is in contravention of Rule 273 (c) of the Estates Manual. It is further contended by him that the settlement in respect of the said Fishery in the absence of a valid tender notice is illegal and should be set aside. Although there are various other allegations in the petition regarding the infraction of Rule 273 of the Estates Manual, the learned Counsel for the petitioner did not press any other alleged violation of the said rule except the one set out above.

5. In paragraph 17 of the affidavit of Satyesh Chandra Chakraborty it is stated that it was not possible to fix the economic rent on the basis of the income from the said fishery for the three preceding years as required under Rule 273 (c) of the Estates Manual as the income from the said fishery during the three preceding years was exorbitantly low. In view of the fact that the petitioner was continuing in possession of the said fishery continuously for the 11 years from 1369 B. S. to 1379 B. S. paying an annual lease rent at Rs. 13,000 only although the lease for the said fishery was granted for one year only for 1369 B. S. The petitioner was in possession of the said fishery by reason of the interlocutory orders passed in Civil Rule No. 70(W) of 1963. It is further stated that the petitioner submitted its tender on 25th April, 1973 offering Rupees 32,000/- as an annual lease rent for 1380-81 B. S. whereas Saktipur Rampara Fishermen's Co-operative Society submitted their tender dated 25th April, 1973 offering annual rent of Rs. 41,000/- and both these offers were received in response to the tender notice dated 18th April, 1973. It was therefore stated that the annual lease rent offered for settlement of the said fishery was varying from Rs. 13,000/- to Rs. 41,000/- and in these circumstances fixation of the economic rent on the basis of the income for the preceding years would have been exceedingly low and prejudicial to the interest of the revenue of the State. The learned Counsel appearing for the respondent No. 11 contended that the tender submitted by the petitioner was not a valid tender at all in view of the fact that no price has been fixed by the petitioner. It is further contended that Rule 273 of the Estates Manual is not statutory rule but is in the nature of departmental instruction and compliance with such rule cannot be enforced in a proceeding under Article 226 of the Constitution. It is further contended that the requirement as to the fixation of economic rent is directory and not mandatory. This rule as to the fixation of such economic rent was intended to protect the interest of the Revenue and does not confer any right upon the petitioner which can be enforced in a constitutional writ jurisdiction. It is also submitted that the reserve price need not be mentioned in the tender notice. The fixation of the reserve price is intended primarily for the guidance of the Government as to whether the price quoted by a tenderer can be accepted or not. It is also contended that the petitioner has no right, fundamental or otherwise to insist upon the Government to enter into a settlement of fishery with it. The Government, like any private individual has the right to settle the fishery which is the property of the Government with any person it likes. Even assuming that there had been any breach of rules or regulations in the issue of the tender notice no writ lies for the enforcement of such contractual rights. The Counsel for the State Authorities contended that Rule 273 has no statutory character and is mere departmental instruction.

6. To appreciate the rival contentions of the parties it is necessary to refer to Rule 273 of the Estates Manual which lays down the mode of settlement of Government Fisheries. Rule 273 (a) prohibits the practice of settling the Government fisheries by open and unrestricted auction. Sub-rule (b) of Rule 273 gives preference in the settlement of Government fisheries to a Co-operative Society of fishermen not less than 75 per cent, of whose members are bona fide fishermen. The Collector is to provide before the commencement of the year, the Director of Fisheries, West Bengal, the Registrar of Co-operative Societies of West Bengal, the Assistant Registrar of Co-operative Societies concerned with a list of fisheries in his District, with date of expiry of existing leases in each case. The Collector should obtain from the Registrar of Co-operative Societies a list of the Co-operative Fishermen's Societies of the District which, in the opinion of the Registrar, are in a sound financial condition and can be safely entrusted with the settlement of fisheries in the District. Rule 273 (c) directs the Collector to fix the economic rent of each fishery after taking into consideration the income from the fishery for the three preceding years. The Co-operative Societies for fishermen recommended by the Registrar of Cooperative Societies should be asked to offer a sealed tender for the settlement of fisheries in question giving reserve price for each fishery. Such reserve price should be equivalent to the economic rent which is to be determined by the Collector. The highest of such tenders should be accepted for each fishery provided it is not less than the reserve price. If, however, the highest tender offered by the Co-operative Society falls below the reserve price, settlement of the fishery should be made by auction among the Co-operative Societies who had offered tenders and settlement may be made with the Society giving highest bid provided the bid is not less than 75 per cent, of the reserve price. It is an admitted position that in the present case there has been no fixation of the economic rent of the said fishery by the Collector as required under Rule 273 (c) of the Estates Manual. It is also a common case that no reserve price has been fixed in the tender notice dated 14-5-1973. In fact, the Assistant Registrar of Co-operative Society in his letter dated 22-5-73 drew the attention of the Additional District Magistrate (L. R.) Murshidabad to the fact that the said tender notice was incomplete as reserve price for the said fishery has not been mentioned therein. An explanation has been offered in paragraph 17 of the affidavit of Shri Satyesh Chandra Chakraborty as to why the reserve price could not be given in the tender notice. The explanation given is that as the petitioner was in possession of the said fishery continuously for 11 years from 1369 B. S. to 1379 B. S. at an annual lease rent of Rupees 13,000/- by virtue of the interlocutory orders made in Civil Rule No. 70(W) of 1963 and as it appeared from the offers made in the various tenders on 25-4-1973 that the lease rent was varying from Rs. 13,000/- to Rs. 41,000/-, the fixation of the economic rent on the basis of the income for the preceding years would be exceedingly low and hence the economic rent was not fixed and necessarily no reserve price also was given in the tender notice. This explanation for the omission to fix the economic rent as required under Rule 273 (c) of the Estates Manual proceeds upon a misconception about the factors to be taken into account for the fixation of the economic rent of the said fishery in terms of the aforesaid Rule. The said Rule requires the Collector to fix the economic rent of each fishery after taking into consideration the income from the fishery for the three preceding years. The form of the words used in the aforesaid rule no doubt lends itself to the suggestion that the economic rent of a fishery should be fixed by taking into consideration the income from the said fishery for the three preceding years. But I am unable to accept the contention that in determining the economic rent of a fishery only the income for the three preceding years, isolated from other relevant factors, should be taken into account. The Rule does not say that the economic rent should be fixed after taking into consideration 'only' the income from the fishery for the three preceding years. There are a number of fisheries which are under the control of and belong to the State Government. The fishing rights are leased out by way of settlement of the fishery and the State Government derives considerable revenue from this source. It is for the protection of interest of the State that the Collector is required to fix the economic rent and treat such rent as the reserve price while settling the fishery. In my view no answer, which can be said to be in any measure adequate can be given to the question of fixation of 'economic rent' by considering alone the income from the fishery in question for the three preceding years. Rule 273 (c) while making sure that the income from the fishery for the three preceding years is not lost sight of, requires all matters relevant for the fixation of the economic rent to be taken into account. If, as in the present case, the Collector, after considering the peculiar facts and circumstances under which the fishery was in possession of the petitioner for the last 11 years at an annual rent of Rs. 13,000/- determined 11 years back, is of the view that the said rent does not represent the economic rent of the said fishery in the present day, it is open to him to take into consideration such other factors which are relevant for the determination of the present economic rent of the said fishery. Unless the economic rent is fixed by the Collector and a reserve price on that basis is mentioned in the tender notice, the settlement of the fishery on the basis of such a tender cannot be said to be in compliance with the Rule 273 (c) of the Estates Manual. The requirement of the fixation of economic rent of the fishery is also desirable for the purpose of the protection of the interest of the revenue of the State.

7. The next question that arises for consideration is whether the aforesaid Rule 273 of the Estates . v. State of West Bengal, : AIR1961Cal214 and Golak Behari Tewari v. Additional District Magistrate, Bankura, (( 1970) 74 Cal WN 454). It is true that in the case of Bidyadhari Spill Matasyajibi Samabaya Samity Ltd. v. State of West Bengal, the learned Judge proceeded on the footing that the procedure of settling the fishery in the said case was not according to the Government Estates Manual framed by the Board of Revenue but by executive order issued by the Government of West Bengal in its department of Irrigation and Waterways. The question as to the legal character of those rules was not directly in issue before the learned Judge. The decision in (1970) 74 Cal WN 454 was concerned with the question as to whether Rule 3 of the West Bengal Board Miscellaneous Rules was statutory in character and can be relied upon to confer any statutory right of appeal or a corresponding statutory obligation of adjudication. Learned Counsel appearing for the State also could not refer to any statutory provision or rule under which the Estates Manual has been framed. A perusal of these Rules shows that they are in the nature of departmental orders and instructions which the Officers of the State Government are required to follow for the management of Government estates. It was considered undesirable to leave the management of Government Estates which constitute a lucrative source of revenue to the unfettered discretion and control of either the State Government or a single individual, however, eminent. It is in this background that these Rules have been framed dealing with the administration of properties under the Government management including fishery, bed of navigable rivers etc.

8. Administrative directions are widely used in modern times as a technique of administrative process for a variety of purposes. Such directions may lay down some norms, general principles and policies which are to be followed by officials so that there may be some uniformity of approach in dealing with the cases coming before them. Such objectives are more effectively achieved through directions rather than statutory rules in certain circumstances e. g. when a 'principle does not lend itself to, or is not ripe for, precise articulation, or when the agency desires to retain some freedom to modify its views' (Friendly, the Federal Administrative Agencies, the Need for Better Definition of Standards p. 146-147 (1960) ). Thus the Government in the exercise of its executive or administrative powers may give instructions to its servants how to act in certain circumstances, but these cannot be characterised as statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it has to be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. (G. J. Fernandez v. State of Mysore, : [1967]3SCR636 ). The rules contained in the Estates Manual being merely administrative instructions and not statutory rules, any breach of such departmental rules does not confer any right upon the petitioner to ask for any relief against the respondents Nos. 1 to 7 in the writ jurisdiction of this Court.

9. Anil Kumar Sen, J. in his order dated 10th May, 1973 did not consider it necessary to examine the legal character of the rules as such a contention was never raised before him in that case. In (1970) 74 Cal WN 454 (vide supra) A. K. Sen, J. delivering the main judgment referred to the earlier decision of Sinha, J. in support of the contention that these rules are not statutory in character.

10. The question as to whether the petitioner has any right to insist upon the Government to settle the fishery with it is closely connected with the determination of the character of the rules under the Estates Manual under which such right is claimed. In respect of the Government fishery, the Government is the absolute owner of such property and the Government has the sole and exclusive right to settle with any persons such fishery. The petitioner has no right fundamental or otherwise to insist upon the Government to settle the fishery with it. The position however is different where there is a law regulating the settlement of such fishery by the Government, such a law might imply a right in others to insist on their transactions with the Government being dealt with in accordance with law and consequently a right to complain against a breach of the law. (V. Punnen Thomas v. State of Kerala, : AIR1969Ker81 (FB)). In the case of State of Assam v. Keshab P. Singh, : [1953]4SCR865 , rules were drawn up for the settlement of the fishery under the Assam Land Revenue Regulations, 1886 and such regulations and control were considered by the Supreme Court as statutory in character. Hence fetters imposed by such statutory regulations could not be brushed aside at the pleasure of the Government or its officers. In the case of K. N. Guruswamy v. State of Mysore, : [1955]1SCR305 rules were framed under Mysore Excise Act of 1901 for the licencing of liquor in that State. It is in the context of these statutory rules that the Supreme Court considered that the persons interested in these licencing contracts had a right under the laws of the State to receive the same treatment and be given the same chance as anybody else. In my opinion the result of these decisions indicates that where there are statutory rules and regulations prescribing the procedures to be followed in the matter of settlement of the Government fishery, a person interested in such settlement in an appropriate case can seek relief in the event of non-compliance with such procedures. If the procedure is laid down by merely departmental instructions, no right accrues in favour of the petitioner which can be enforced in the writ jurisdiction. Learned Counsel appearing for the petitioner contended that even if such rules are administrative in character, they can be enforced in the writ jurisdiction if the breach of such rules abridges or takes away the right of the petitioner. Reliance was placed in support of this proposition upon the decision of the Supreme Court in the case of Union of India v. Anglo-Afgan Agencies, AIR 1968 SC 718. In my view the above decision is hardly of any assistance to the petitioner's contention. The proposition that an administrative order or rule can never confer any right upon a citizen enforceable in the Court of law is too wide. Courts have the power in an appropriate case to compel performance of the obligations imposed by scheme which are executive in character upon the departmental authorities. AIR 1968 SC 718 (vide supra). Generally speaking it is true that an administrative order can confer no justiciable right or impose duties enforceable in the Court of law but it is not necessary for me to embark upon a detailed investigation into types of cases where the Courts have directed the compliance with such administrative order. In cases where such an administrative order which abridges or takes away the rights of a citizen without complying with the principles of natural justice, the courts have imported the principles of natural justice or audi alteram partem into this area (Union of India v. K. P. Joseph, : [1973]2SCR752 ). But in all the.se cases there are certain rights of the citizens which are statutory in character and were sought to be affected by an administrative order in violation of the principles of natural justice. As I have held that in the absence of any statutory rules or regulations, the petitioner has no legal right to insist upon the Government to settle the fishery with it, the circumstances under which and the principles on which an administrative order has been brought under judicial review do not apply in the present case.

11. Learned Counsel for the respondent No. 11 contended that the tender made by the petitioner was not a valid tender in view of the fact no price has been quoted in such tender. It is not necessary for me to decide this question as in my view the petitioner has no legal or enforceable right in the present case.

12. For the reasons stated above this application fails. The rule is discharged. Interim order, if any, stands vacated. There will be no order as to costs.


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