Citation Codes

Equivalent Citations

citation codes

Case Number

Revenue Rules Nos. 145 and 146 of 1951

Advocates

S.M.Lahiri
J.C.Sen
D.N.Medhi

Judges

Hon'ble Mr. Chief Justice Sarjoo Prasad
Hon'ble Mr. Justice Ram Labhaya

Acts

ARTICLE 14 CONSTITUTION OF INDIA
ARTICLE 227 CONSTITUTION OF INDIA
Rule 184 of the Fishery Rules). Rule 187

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Smart Summary

Judgment Summary

Factual and Procedural Background

These two applications, brought by the same petitioner and against common parties, challenge an order dated 28-5-51 passed by the Development Commissioner, Shillong. One application was stated to be under Article 226 and the other under Article 227 of the Constitution of India. The petitioner sought writs in the nature of certiorari or mandamus to set aside the Development Commissioner's order of 28-5-51, an order of the Deputy Commissioner of Nowgong passed pursuant to that order (which effected settlement of a fishery in favour of Opposite Party No. 3, Lohit Chandra Hazarika), and a writ of prohibition preventing that opposite party from fishing in the fishery.

Material facts alleged: the Deputy Commissioner, Nowgong, advertised Fishery No. 13 Nonai No. 1 for public auction on 24-2-51. At the auction the petitioner was the highest bidder at Rs. 6,500; Opposite Party No. 3 bid Rs. 5,800. The Deputy Commissioner accepted the petitioner's bid and recommended settlement with him to the Development Commissioner for sanction. The Development Commissioner refused to sanction that recommendation by his order dated 28-5-51, after examining a report he had called for; he concluded that Opposite Party No. 3 was actually a fisherman and suggested settlement with him allowing a concession of 10% over the highest bid, effectively recommending an annual rental of Rs. 5,850. Acting on that order, the Deputy Commissioner settled the fishery with Opposite Party No. 3 and informed the petitioner on 9-6-51.

The petitioner applied to the Development Commissioner for revision of his order — the revision petition was rejected. The petitioner then filed the present applications in this Court and obtained a Rule nisi.

Legal Issues Presented

Whether the Development Commissioner had jurisdiction or power to refuse sanction to the Deputy Commissioner's recommended settlement and to indicate that settlement ought to be made with another person (Opposite Party No. 3).
Whether the Deputy Commissioner, in subsequently settling the fishery with Opposite Party No. 3, acted merely as a mechanical agent of the Development Commissioner and thereby exercised no independent discretion such as would render the settlement vulnerable to judicial review.
Whether the concession granted to Opposite Party No. 3 (a 10% concession on the highest bid on account of his being a fisherman) violated Article 14 (and, as argued, clause (2) of Article 15) of the Constitution of India.
Whether the petitioner had any enforceable legal right or locus standi, before sanction by the Development Commissioner and the execution of a lease, to seek extraordinary writ relief in the High Court.
Whether the Development Commissioner's order offended principles of natural justice by not hearing the petitioner prior to passing an order adverse to him.

Arguments of the Parties

Petitioner's Arguments

The Development Commissioner had no right to settle the fishery with any person and therefore his order dated 28-5-51 directing settlement with Opposite Party No. 3 was wholly without jurisdiction.
The Deputy Commissioner, when making a fresh settlement in favour of Opposite Party No. 3, did not exercise his own discretion but acted solely in pursuance of directions of the Development Commissioner.
The concession given to Opposite Party No. 3 violated Article 14 of the Constitution of India (and counsel suggested an argument under clause (2) of Article 15 that the petitioner was placed under a disability).
On merits: settlement at a rate lower than the highest bid was not to the best advantage; and Opposite Party No. 3 never claimed at the time of settlement that he was a fisherman by profession.
The order was opposed to natural justice because the Development Commissioner did not hear the petitioner before passing an order prejudicial to him.

Respondent / Government Arguments (as recorded)

The learned Advocate-General pointed out a fundamental objection: the petitioner had not established any valid legal right the protection of which could invoke the High Court's extraordinary writ jurisdiction. The Deputy Commissioner's recommendation subject to sanction by the Development Commissioner and to execution of leases did not confer a vested right on the petitioner.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded from the statutory and administrative framework governing fishery settlements. It examined Chapter 10 of the Executive Instructions in Part VI of the Assam Land Revenue Manual and the relevant rules:

Rules require fisheries not ordinarily to be leased for less than three years, with the year normally from 1 April to 31 March. The Deputy Commissioner may fix sale dates, give at least one month's written notice, and conduct auctions.
Under these rules the officer conducting a sale is not bound to accept the highest or any bid. After acceptance, the purchaser must furnish security (one quarter of annual revenue immediately and potentially additional security to reach one-third for the term). If security is not furnished the Deputy Commissioner may resell the fishery (see Rule 184).
Rule 187 requires annual sales in a district to be reported to the Development Commissioner for sanction by Form No. 100; the entire bid-sheet is submitted for consideration. Nothing in the rule obliges the Development Commissioner to hear any party before refusing sanction, nor does it prescribe that refusal of sanction must be followed by a fresh sale with fresh notice except where specific resale rules (Rr. 184 and 185) apply.
The court concluded that the Development Commissioner, in according or refusing sanction, exercises an executive (administrative) discretion rather than a judicial function. He may take into account various factors and decide that settlement should be made in favour of a particular bidder; while he must not act arbitrarily, the rules contemplate his control over annual sales.
Rule 190 provided an appeal to the Revenue Tribunal from orders of Deputy Commissioners, but the Tribunal no longer exists. The court observed earlier decisions held the petitioner had no right of appeal to the High Court; the correctness of those decisions was not further considered.
Although the rules do not expressly empower the Development Commissioner to make a direct settlement unless there is prior sanction of the Provincial Government (Rule 190A), that does not prevent the Development Commissioner from refusing to sanction a particular sale and directing that settlement should be effected in favour of another bidder through the Deputy Commissioner.
Concerning natural justice, the court found nothing in the rules requiring the Development Commissioner to hear any party when considering sanction, and the record did not show flagrant violation of rules or arbitrary conduct by the Development Commissioner.
On the crucial point of standing, the court accepted the Advocate-General's submission that the Deputy Commissioner's acceptance and recommendation to the Development Commissioner — being subject to sanction and to the execution of lease documents — did not amount to the creation of a vested or enforceable right in the petitioner. The proposal remained inchoate until sanction and execution; therefore the petitioner had no legal right to seek writ relief.
As to the contention that a resale should have been held (and that the petitioner would thereby have a right to bid), the court found it doubtful that the rules envisaged an automatic resale whenever sanction was refused, and even assuming they did, an option to bid on a contingency of a resale would not create a legally enforceable right to invoke the extraordinary jurisdiction of the High Court.
On the constitutional challenge under Article 14 (and suggestion of Article 15), the court considered the concession to fishermen in the scheme of Article 46 — the State's duty to promote economic interests of weaker sections — and found no clear application of Article 14 or Article 15 to invalidate the concession. However, the court regarded it unnecessary to decide this point in detail because the lack of a legal right was dispositive.

Holding and Implications

Holding: Applications dismissed; Rule in each case discharged.

Implications and direct effects:

The petitions challenging the Development Commissioner's order of 28-5-51 and the Deputy Commissioner's subsequent settlement were dismissed for want of any legal right in the petitioner to invoke the extraordinary writ jurisdiction of the High Court.
The court did not find it necessary to set aside the Development Commissioner's exercise of discretion on grounds of arbitrariness or violation of the rules, and it did not hold that any constitutional provision (Article 14 or Article 15) was contravened in a manner that required relief in these proceedings.
No new legal principle or precedent was laid down by this opinion; the decision rested on application of the existing executive rules governing fishery settlements and on the conclusion that the petitioner had no enforceable right until sanction and lease execution.

Result recorded in the opinion: "Applications dismissed."

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Assam Fisheries Farms And Industries Ltd. v. The Development Commissioner, Assam And Others Opposite Parties.

Sarjoo Prosad, C.J:— These two applications relate to the same matter and are directed against an order, dated 28-5-51, passed by the Development Commissioner, Shillong. The first application purports to be under Article 226, while the second one under Article 227 of the Constitution of India, the parties being common to both. In these applications, the petitioner has prayed for the issue of a writ in the nature of a certiorari or mandamus on the Development Commissioner to vacate his order dated 28-5-51, as also for another writ on the Deputy Commissioner of Nowgong to vacate his order passed in pursuance of the order of the Development Commissioner making settlement of certain fisheries with opposite party, No. 3, Lohit Chandra Hazarika. The petitioner has also prayed for a writ of Prohibition against the said Opposite Party prohibiting him from fishing in the fishery in question.

2. The relevant facts alleged are that the Deputy Commissioner Nowgong advertised for settlement of fishery No. 13 Nonai No. 1, by putting it to public auction, fixing 24-2-51 for that purpose. An auction was held on the date aforesaid and the petitioner appears to have offered the highest bid of Rs. 6500/- for settlement of the fishery, while the Opposite Party No. 3 offered a bid for Rs. 5800/- only. The Deputy Commissioner accepted the bid of the petitioner and directed that the fishery should be settled with him and then 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 for settlement of the fishery with the petitioner, and by the order in question he refused to sanction the settlement. The Development Commissioner also opined in the said order, after having examined some report which he had called for, that Lohit Chandra Hazarika, Opposite Party No. 3, was actually a fisherman and the settlement of the fishery should be made with him after allowing him a concession of 10 per cent, over the highest bid; in other words, he suggested that the settlement should be made on an annual rental of Rs. 5850/- only with the said Opposite Party. In pursuance of this order of the Development Commissioner, the Deputy Commissioner, Nowgong, settled the fishery with the said Opposite Party and informed the petitioner of that settlement on 9-6-51. The petitioner then filed a petition before the Development Commissioner asking him to revise his order, but that petition was rejected. He then presented these applications before this Court and obtained a Rule nisi. The grounds urged in support of the petitions are: (1) that the Development Commissioner had no right to settle the fishery in question with any person and, as such, the order dated 28-5-51, directing the settlement with the Opposite Party No. 3 was wholly without jurisdiction; (2) that the Deputy Commissioner, in making a fresh settlement in favour of the Opposite Party, did not exercise his own discretion, but acted only in pursuance of the directions given by the Development Commissioner; and (3) that the concession shown to the Opposite Party in making the settlement violated the provisions of Article 14 of the Constitution of India.

3. In addition to these grounds, there were two other grounds taken which relate to the merits of the order, namely, that the settlement of the fishery at a rate lower than the highest bid, was not to the best advantage; and that the Opposite Party No. 3 Lohit Chandra Hazarika never claimed at the time of settlement that he was a fisherman by profession. The order of the Development Commissioner was further assailed on the ground that the order was opposed to natural justice, because before the passing of the order, which was evidently to the prejudice of the petitioner, the Development Commissioner did not hear the petitioner.

4. To appreciate these contentions and in order to find out whether the petitioner has any Legal right to move these applications for issue of writs, it would be necessary to examine the rules under which the settlement of these fisheries are effected. The rules in question are to be found in Chapter 10 of the Executive Instructions contained in Part VI of the Assam Land Revenue Manual. The rules provide that the right of fishing in registered fisheries should not ordinarily be leased for less than three years, and the year should be reckoned ordinarily from 1st April to 31st March. The Deputy Commissioner is authorised under the rules to fix a date not later than 15th February, for the sale of all registered fisheries held under leases; and the date should be proclaimed at least a month in advance by a written notice in the prescribed form and published in accordance with the manner provided by the rules. The officer conducting the sale is not bound to accept the highest or any bid; and the purchaser, immediately after the acceptance of the bid has to furnish as security a sum equal to one quarter of the annual revenue; & he might be also liable to furnish additional security within a week of that date so as to bring up the total amount of the security to one-third of the revenue for the full term of the settlement. If the securities in question were not furnished then the Deputy Commissioner was entitled to resell the fishery (Vide Rule 184 of the Fishery Rules). Rule 187 provides that the annual sales of fisheries in a district should be reported to the Development Commissioner for sanction as prescribed by Form No. 100, and from an examination of the form it appears that the entire bid-sheet is submitted to the Development Commissioner for his consideration. There is nothing in this Rule to indicate that when the bid-sheets of the annual sales of fisheries in a district are reported to the Commissioner for sanction, he is bound to hear any party whatsoever; or that in case he refused to sanction a particular sale, the Deputy Commissioner should call for fresh bids and put up to sale the fishery afresh, thereby necessitating each time a month's notice in advance. The only rules which provide for resales are contained in Rr. 184 and 185 of the Executive Rules. The Development Commissioner, therefore, in according his sanction, may refuse to accept the sale in favour of any particular bidder and may decide, on the materials before him, whether the sale should be effected in favour of some other bidder.

5. The Development Commissioner, in following these executive rules, cannot be said to be acting as a judicial officer & it is open to him to take into consideration various factors in making the settlement in favour of one bidder or another, though one would expect that in the exercise of that discretion he will not act arbitrarily or despotically. Rule 190, of course, provides that all orders of a Deputy Commissioner or Sub-divisional Officer passed under these rules are appealable to the Revenue Tribunal, but the Revenue Tribunal no longer exists and it has been pointed out by the learned counsel that, as held in some previous decisions of this Court, the petitioner has no right of appeal to the High Court. It is at present unnecessary for me to consider the correctness or otherwise of these decisions. Rule 190A also provides that no fishery shall be settled otherwise than by sale as provided in the preceding instructions, except with the previous sanction of the Provincial Govt. Rule 191, on which also reliance has been placed on behalf of the petitioner, says that fisheries should be settled to the best advantage. Whether settlement has or has not been made to the best advantage, is not for us to decide in an application under Article 226 or 227 of the Constitution. It is true that the rules do not confer the power on the Development Commissioner to make a settlement directly by himself unless, of course, such power can be spelled out from R. 190A; but that could be only so where there is a previous sanction of the Provincial Government, This, however, does not mean that in according or refusing sanction to a particular sale, the Development Commissioner is precluded from observing that settlement should be made in favour of a particular bidder. In the petition, the petitioner has admitted that the settlement in favour of the Opposite Party of the fishery in question was finally made, not by the Development Commissioner himself, but by the Deputy Commissioner; but his complaint is that the Deputy Commissioner was acting merely as an agent of the Development Commissioner and in obedience to the order passed by him. Even if that be so, this is hardly any ground for interference by this Court. When the rules provided for sanction of the annual sales of fisheries by the Development Commissioner, it was obviously contemplated that the Development Commissioner would exercise control over settlements made by the Deputy Commissioner; and if the Deputy Commissioner, in making settlements, followed the advice or guidance or direction given by the Development Commissioner, it cannot be said that there was anything wrong or improper about it. At least so far as this record is concerned, there is nothing to suggest that the Development Commissioner has acted in flagrant violation of the rules or that his action has been in any way inconsistent with the rules aforesaid.

6. The most fatal objection to the maintainability of these applications lies in the fact as pointed out by the learned Advocate-General, that the petitioner has not been able to establish any valid right for the protection of which he can invoke the extraordinary jurisdiction of this Court for the issue of any writ. The petitioner contends that the settlement was originally made by the Deputy Commissioner in his favour and, therefore, it gave him a right to come to this Court. A mere perusal of the rules would show that the proposal to make a settlement by the Deputy Commissioner, 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 proposal was merely in an inchoate stage as long as the matter had not been sanctioned by the Development Commissioner, and a proper document of lease executed by the parties. 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.

7. The petitioner next contends that if the settlement in his favour had not been sanctioned by the Development Commissioner, there should have been, as a matter of course, a re-sale, as contemplated by the rules, and then the petitioner would have a right to bid. In the first place, as I have pointed out above, it is very doubtful if the rules did contemplate any re-sale under such circumstances. A resale each time that sanction is refused would perhaps defeat the very purpose of the rules. The obvious intention of the rules was that these settlements should be expedited and made as early as possible before the commencement of the financial year, because the year of settlement was to be reckoned from 1st April to 31st March. But even assuming that the rules did contemplate a re-sale, I cannot understand how a mere option to bid on the contingency of a fresh sale being held, would confer any valid right upon the petitioner to come to this Court and apply for the issue of writs. Such a claim cannot be enforced in any Court of law and on the face of it, does not carry any legal sanction behind it. The petitioner, therefore, has no locus standi to apply for any writ, and these applications are clearly misconceived.

8. It is hardly useful now to go into the question whether the settlement in favour of the Opposite Party is in violation of Article 14 of the Constitution. It is true that he has been given a certain concession in the revenue payable by him, because he happens to be a fisherman. I fail to see how Article 14 has any application to the present case, but the learned counsel suggests that the settlement is in violation of clause (2) of Article 15, because it places the petitioner under a disability. Article 15 also in terms has no application and under Article 46, it has to be remembered that it is the duty of the State to promote with special care the economic interest of the weaker sections of the people and protect them from social injustice. If, therefore, some concession was allowed to fishermen, then that cannot be said to be in violation of any of the Articles of the Constitution. Be that as it may, I have already found that the applications must fail because the petitioner has not been able to establish any legal right for the protection of which he could be held to be entitled to the issue of any writ. The applications, therefore, must be dismissed and the Rule in each case is discharged.

A/V.S.B

9. Applications dismissed.

Assam Fisheries Farm... v. The Development Comm...