1. In this case the petitioner has obtained a rule as to why the order issued under letter dt. 15-4-1983 (Annexure-4) by the Joint Secretary, Department of Revenue and Land Reforms of the State Government be not quashed. By this letter, respondent No. 2 has disapproved the recommendations for settlement of two Jalkars, namely, (i) Ganga Jalkar T. No. 406, 20236 Ganga and (ii) Gandak T. No. 306, 160½ (for the sake of convenience they would be referred to hereinafter as ‘Ganga Jalkar’) and simultaneously ordered for settlement of the Jalkar in favour of respondent No. 6. the Fishermen's Co-operative Society, Bakhtiarpur. From the above statements it becomes obvious that the dispute in this case relates to the settlement of fishery rights and the competition is between the petitioner and respondent No. 6.
2. The relevant facts, briefly stated, are as follows. The Additional Collector, Patna (respondent No. 5) issued a general notice dt. 29-1-1983 for holding bid of the said Jalkar (along with some other Jalkars) on 14-2-1983. As nobody turned up to attend the bid on that day, the auction was adjourned to 21-2-1983. On that day also no bidder turned up, but three Fishermen's Co-operative Societies, including respondent No. 6, filed petitions showing their willingness to take the settlement on the reserve Jama of Rs. 1,09,481/-. Undisputedly, the Jalkar in question falls within the area of operation of Patna Sadar Fishermen's Co-operative Society, which was blacklisted. Therefore, according to the circular of the Co-operative Department it could not be settled with the said society. In respect of settlement of any Jalkar with a co-operative society other than the local co-operative society there is a circular issued by the Co-operative Department for guidance of the revenue authorities (a copy of which has been filed as Anmexure-I to the supplementary affidavit filed by respondents No. 6 on 5-7-1983). The relevant provision for our purpose appertaining to this document reads as follows:—
From the above provisions two things are established, namely, (i) the local co-operative society, i.e, the co-operative society within whose jurisdiction the Jalkar falls, is the preferential claimant of the settlement, and (ii) in case the local co-operative society fails or is not eligible to take the settlement then only the case of an outsider society getting it arises. For consideration of their case, they have first to seek the departmental approval. Thereafter, they may get the settlement departmentally or participate in the bid. As already stated earlier, when the application was filed by respondent No. 6 on 21-2-1983, respondent No. 5 had directed him to bring the approval from the District Co-operative Officer, Patna in terms of Annexure-I, and adjourned the auction to 25-2-1933. As on the adjourned date none of the co-operative societies produced the approval of the District Co-operative societies produced the approval of the District Co-operative Officer, as indicated above, the bid was held and knocked down in favour of the petition for Rs. 1,10,000/-. The petitioner deposited also half of the said amount. After the deposit was made, the Collector of Patna (respondent No. 4) forwarded the record on 15-3-1983 to the State Government through the Commissioner of Patna Division for approval, as a settlement above Rs. 50,000/- could be made only after the approval of the State Government. In the forwarding letter the Commissioner not only had recommended the case of the petitioner, but also said that the recommendation of the Co-operative Department, it is at this stage that the impugned letter (annexure-4) was issued disapproving the settlement in fovour of the petitioner and simultaneously directing for making the settlement to respondent No. 6.
3. In the show cause filed by respondent No. 6 the issuance of notice for holder the auction for settlement of the Jalkar on 14-2-1983 is not disputed. But, it has been stated that the State Government had stayed the holding of auction by order dt. 24-2-1983 which was to take place on 25-2-1983, for 10 days. It is not in controversy by the Additional Collector until the bid was completed. This fact is borne out from the letter written by the Commissioner, Patna Division. It is well settled that stay order becomes operative after its service. The auction, therefore, cannot be held to be illegal in the eye of law due to the stay order nor any argument has been before us by any of the learned counsel that passing of the stay order had rendered the holding of the bid itself illegal. Apart from this fact, the stay order was passed on the application of different society and not respondent No. 6.
4. Mr. Balbhadra Prasad Singh appearing in support of this application, however, contended that according to the procedure which has been prescribed by different circulars and Government instructions for settlement of the Jalkars (fishery rights) on the failure of the local co-operative society, viz. Patna Sadar Fisherman's Co-operative Society, no option was left to the authority than to settle the Jalkar by an open bid. Reference in this connection has been made to the circular dated 12-2-1981 issued by the Revenue and Land Reforms Department of the Government, which is printed at page 67 of the Sairat Compendium, 1981 (part II). Paragraph 1 of this circular prescribes that settlement of the Jalkars would be made in favour of the eligible and willing co-operative societies constituted at the Sub-divisional of State levels on the fixed reserve Jama instead of setting by open bid. This letter further provides that if the co-operative society was not prepared to take the settlement on the reserved Jama then it should be settled with the highest bidder, not below the reserved Jama.
5. We have seen that the local co-operative society was black listed and, therefore, there was no question of settling the Jalkar with that society. No provision has been shown to us by any of the parties that in such a situation the authority was bound to call matter, the other co-operative society to come for ward and take the settlement before proceeding to hold the auction. From all that emerges from the different circulars and instructions, one, which appears to be most relevant, has been already referred to, is that in such event the outside Fishermen's Co-operative Societies also can approach the Co-operative Department for getting approval for taking the settlement or to participate at the bid. It is obvious that in absence of any approval, the outside co-operative societies are not at all competent to participate in the bid like a private citizen. In our view, the circular has deliberately contemplated both the situations for the outsider co-operative societies, namely, (i) to get the settlement, or (ii) to participate at the bid, depending on the stage when the society happens to come to the scene. It is not the case of respondent No. 6 that he was not aware of the black listing of the local co-operative society from before. In view of the Government circular (Annexure-I), therefore, if respondent No. 6, or for that matter, the other co-operative societies which had made applications on 21-2-1983 for taking the settlement in their favour should have completed the formalities of getting the approval of the appropriate authority before that date or might have taken such other step in the matter as they might have been advised. The date of auction had already been fixed as seen earlier and the auction was, accordingly, held. It is no doubt true that according to the Government policy the settlement in favour of the petitioner which was recommended by the district authorities, had to get the approval of the Government and in absence of the approval of the Government he could not get it. It also goes without saying that the State Government while exercising the right to grant approval has also the authority to disapprove the bid in its discretion. But the ground that has weighed with the Government in disapproving the settlement in favour of the petitioner is the application of respondent No. 6 and, perhaps, under the impression that respondent No. 6 being a co-operative society was alone entitled to get the settlement, the impugned order has been passed.
6. Mr. Tara Kant Jha, learned counsel for respondent No. 6 followed by learned Government Pleader VI, vehemently contended that in the absence of a completed settlement in favour of the petitioner, he had no enforceable right and, therefore, the writ application it self was not maintainable, Mr. Jha placed reliance upon several decisions, including (i) the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh (AIR 1977 SC 2149) and (ii) Hari Shankar Singh v. State of Bihar (AIR 1983 Pat 83), Learned Government Pleader, however, cited State of U.P v. Vijay Bahadur Singh (AIR 1982 SC 1234) for the same proposition. It is no doubt, true that these decisions support the contention of the learned counsel for the respondents that a successful bidder on that account alone does not get any right in absence of any concluded contract followed, thereafter That may be so, but it cannot foe disputed that on account of the bid held in accordance with law in which the petitioner was the highest bidder according to the procedure prescribed for making the settlement, he acquired a type of the right which was conceived by the Supreme Court in the case Radhakrisna Agrawal v. State of Bihar (AIR 1977 SC 1496). In the 12th paragraph of this report while approving a Bench decision of this Court (AIR 1977 Pat 65) it was held that there were three types of cases in relation to contract, (i) where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Art. 299 of the Constitution. The Government, has prescribed a procedure for settlement of Jalkars which we have already discussed above and the procedure was followed by the administrative authorities. The petitioner had a right to take part in the bid and according to our finding respondent No. 6 had no right to get the settlement directly at the reserved Jama on the facts of the case. The impugned order, therefore, has greatly prejudiced the petitioner and his remedy is to approach the writ Court. At this stage we may usefully refer to the case of The Government of State of Bihar v. Ram Bharosa Sing (AIR 1956 SC 640) relied by Mr. Balbhadra Prasad Singh where it was observed that “It is no doubt true that the Magistrate is empowered to refuse to accept the highest bid and accept any other bid or even withdraw the tolls from auction, but this does not mean that the process of holding an auction and ascertaining the bids could be abandoned altogether and that it is open to the District Magistrate to extend the term indefinitely and as his sweet will and pleasure.” The stage of any concluded contract had not reached and, therefore, the other argument which was also advanced by the learned counsel for the respondents that the right being contractual in nature was not enforceable through a writ application has no force. This Court had occasions to consider somewhat similar problems in the case of Shree Krishna Gyanodaya Sugar Ltd. v. State Of Bihar (1978 BBCJ 342) : (AIR 1978 Pat 157). That case was with respect to payment of price of the liquor supplied by a Licensee, and an argument was advanced that the writ application was not maintainable as it related to the matters covered by contract. Repelling this argument it was held that the price had been fixed under the statutory power of the Government and was enforceable under the writ jurisdiction and this Court issued appropriate writ.
7. Mr. Tara Kant Jha in support of the impugned order also relied upon the case of Daudpur Fishermen Co-operative Society Ltd. through Shri Jawahar, Sabni v. State of Bihar (1981 BBCJ 572) : (AIR 1981 Pat 294). In that case the impugned order was the settlement of two Jalkars in favour of an ‘outsider’ Co-operative society, namely, Bigha Ghat Fishermen's Co-operative Society, which was challenged by the ‘local’ society, namely, Daudpur Fishermen Co-operative Society Ltd., Dinapur and the ground of challenge of the order was that the two Jalkars did not lie within the area of its operation…… the settlement was in violation of the directions given by the Minister, Co-operative Department. This argument was repelled and it was held that (at p. 295):
“It has also been stated that if the society, in whose area the operation of Jalkars lies makes default in payment of Government revenue of the previous year, the settlement of the Jalkars can very well be made with any other society recommended by the Department or even to a private individual by public auction. However the co-operative societies are to be given preference over private individuals.”
The question in that case, therefore, was entirely different and we do not differ from the general proposition laid down in that case that settlement could be made to a different co-operative society also and not only to the local society, in whose area the Jalkar is situate.
8. Mr. Balbhadra Prasad Singh, as already said earlier, has submitted that while considering the question of granting approval to the settlement to the petitioner which had been recommended by the Commissioner, Patna Division, the State Government could approve or disapprove the proposal, but the question of making the settlement in favour of respondent No. 6 was not the matter which had been forwarded to the Government. If settlement was to be made in favour of respondent No. 6, then for that also, there should have been a fresh recommendation by the subordinate executive authorities.
9. Be that as it may, even assuming for the sake of argument that it was the State Government which had the necessary authority of making the settlement directly, then, on the facts of the present case, the question is as to whether the circumstances in which the direction for giving the settlement to respondent No. 6 has been given can be upheld. We have already referred to the instructions issued by the Revenue Department under Annexure-I and the other circular dated 12-2-1981 printed at page 67 of the aforesaid Compendium according to which if the Fishermen's Co-operative Society was not willing to take the settlement on the reserved Jama them the settlement has to be made by open bid with the highest bidder. Therefore, once the situation comes to the holding of the bid in the event of the local society having declined or being not eligible to take the settlement and the settlement is ordered to be made by auction, then the only privilege that can be availed of by an ‘outsider’ Co-operative society on securing the departmental approval is to participate in the bid. The right to get the settlement as a matter of course may be availed of by such a society as mentioned in clause “3” of Annexure-I (already extracted earlier), if at all can be availed of before making the stage of holding the auction by open bid. To make the matter more clear we would say that the other clause that can be availed of before reaching the stage of actual bidding. Once we take this view, it follows as a matter of course that the order directing for making the settlement in favour of respondent No. 6 in the impugned order Annexure-4 while considering the question of granting approval in favour of the petitioner cannot be sustained.
10. Necessary conclusion that follows from the above discussions is that in view of the rejection of the recommendation in favour of the petitioner settlement of the Jalkar in question remains to be made. We have already said that at this stage the only method of settlement in question. It will be open auction. The petitioner as well as respondent No. 6 would be eligible for competing at the time of the bid for the settlement in question. It will be open to respondent No. 6 to claim refund of the amount deposited by him.
11. Now remains for consideration the petition of intervention filed by the settles of respondent No. 6. This petition has not been pressed, and, in any view of the matter, it has become in-fructuous in view of our order.
12. Before parting with the case, we may refer to some interim orders passed in this case. By the first order issuing notice in admission matter on 4-5-1983 it was ordered for maintaining status quo as existing on that day. This order was continued from time to time and later on. On 11-7-1983, on the statement made by the learned counsel for the petitioner that the petitioner has been in possession of the fishery in pursuance of this Court's order it was directed that the interim order would continue till the disposal of this case. It is, accordingly, argued that the petitioner's possession (if that be there as asserted by him) should fee allowed to continue till the settlement matter is over. In our opinion, if such an order is made then it will not result in any disadvantage to any of the parties. The petitioner has already deposited Rs. 55,000/-. Necessary adjustment can be made for the period the petitioner continues to be in possession of the Jalkar in question out of the said deposit in case the settlement goes ultimately in favour of any other person. Otherwise the petitioner's possession could be maintained on modifying or altering the amount, as the case may be, in accordance with the result of the bid.
13. In the result, the application succeeds and Annexure-4 is hereby quashed, however, subject to the directions given and observations made above. In the circumstances, however, we shall leave the parties to bear their own costs. We further hope that steps for holding the auction will be taken by the appropriate authority very expeditiously so that neither the Government revenue may suffer nor any other complication arise in the matter.
Order accordingly.