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PETITIONER: THE STATE OF ASSAM

       Vs.

RESPONDENT: KESHAB PRASAD SINGH AND ANOTHER.GAMIRI KHARI CHAIDUAR FISHER

DATE OF JUDGMENT: 14/04/1953

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MAHAJAN, MEHR CHAND JAGANNADHADAS, B.

CITATION:  1953 AIR  309            1953 SCR  865  CITATOR INFO :  RF         1954 SC 592  (10)  R          1956 SC 640  (7)  E          1957 SC 377  (11)

ACT: Assam  Land and Revenue Regulation (1 of 1816), s. 16  Rules 190,  190A, 191 -Settlement of fisheries--Direct  settlement under  r. 190A after auction by Deputy Commissioner  and  on his    recommendation--Whether    settlement    of    Deputy Commissioner  under Rules, or executive act of  State-Appeal to High Court-Maintainability.

HEADNOTE: The Government of Assam, desiring to settle a fishery direct under r. 190-A of the rules framed under the Assam Land  and Revenue Regulation (1 of 1886), directed the Deputy  Commis- sioner  concerned to put the fishery to auction  and  submit the  bid  list  to Government with  his  recommendation  for direct  settlement.   The  Deputy  Commissioner  accordingly auctioned  the  fishery and submitted the bid  list  with  a recommendation in the first respondent’s favour.  Government sanctioned  the  settlement of the fishery  with  the  first respondent and the latter was informed of the acceptance  of the  bid  and  directed to make  the  deposits.   Government received  two  more  petitions  on  the  same  day  for  re- consideration  of  the orders passed and three  weeks  later Government  reviewed its order and settled the fishery  with another person.  The first respondent preferred an appeal to the  High Court under r. 190 which provided that all  orders of  a  Deputy  Commissioner passed under  these  rules  were appealable to the High Court: Held,  the words " except with the previous sanction of  the Provincial  Government  "  in r. 190-A  do  not  permit  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 r. 190-A run counter to s. 16 of the Regulation which requires these sales to  be made under and in accordance with the Rules.  The  departure contemplated  by r. 190-A was a departure within the  Rules. As the Deputy Commissioner was the only

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112 866 authority  competent to settle these fisheries,  subject  to sanction,   the   act  of  cancellation  and  the   act   of resettlement  were his acts, however much he may have  acted under  the direction and orders of the Government,  and  the High Court had jurisdiction to entertain the appeal under r. 190. Judgment of the High Court of Assam affirmed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeals Nos.  176  and 176-A of 1952. Appeals by Special Leave granted by the Supreme Court on the 20th February, 1952, and 23rd May, 1952, respectively,  from the Judgment and Order dated the 6th December, 1951, of  the High Court of Judicature in Assam at Gauhati in its  Revenue Appellate  Jurisdiction (Deka J.) in Revenue Appeal  No.  65 (M) of 1951. C.   K.  Daphtary,  Solicitor-General  for  India  (Nuruddin Ahmed, with him) for the appellant in Civil Appeal No. 176. B.   B.  Tawakley  (K.   B.  Asthana,  with  him)  for   the respondent in Civil Appeal No. 176. R.   K.  Chaudhury  (Jai Gopal Ghosh and R. N.  Tikku,  with him)  for  respondent  No. 2. in Civil Appeal  No.  176  and appellant in Civil Appeal No. 176-A. 1953.  April 14.  The Judgment of the Court was delivered by BOSE  J.--This  is  a  curious  case  in  which  the   State Government  of Assam having granted the first  respondent  a lease later cancelled its grant and regranted it to  another party and now contends that it is not bound by the laws  and regulations which ordinarily govern such transactions. Assam is blest with fisheries which are under the control of and  belong  to  the  State  Government.   Periodically  the fishing  rights  are ]eased out to licensees and  the  State derives considerable revenue from this source.  So  valuable are these rights that as long ago as 1886 it was  considered undesirable to leave such a lucrative source of revenue,  to the unfettered 867 discretion  and control of either the Provincial  Government or  a  single  individual  however  eminent.    Accordingly, legislation was enacted and Regulation I of 1886 (The  Assam Land  and Revenue Regulation, 1886) was passed into law.   A Register  of  Fisheries  had  to  be  kept  and  the  Deputy Commissioner  was empowered, with the previous  sanction  of the  Chief  Commissioner (later Provincial  Government),  to declare  any  collection of water to be a fishery.   Once  a fishery  was  so declared no person  could  acquire  fishing rights  in  it except as provided by rules  drawn  up  under section  155.  These rules, with alterations made from  time to  time,  were still operative at all  dates  relevant  and material to this case. Put  shortly,  the  effect  of  these  rules  at  the  dates mentioned here, was to require the fishing rights to be sold periodically   by  public  auction  in  accordance  with   a particular procedure which was prescribed.  These sales were called  " Settlements." Among the conditions -of  sale  were the following :--- (1)The officer conducting the sale does not bind himself  to accept the highest bid or any bid. (2)The  purchaser shall immediately after the acceptance  of his bid furnish as security etc.

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(3)The  annual  sale of fisheries in a  district  should  be reported to the Commissioner for sanction in Form No. 100. The  Form  shows that each individual settlement had  to  be sanctioned.  But the rules in force at the dates relevant to this case permitted a departure in these words:- " -Rule 190-A. No  fishery  shall  be settled otherwise  than  by  sale  as provided  in  the  preceding instructions  except  with  the previous sanction of the Provincial Government." There is also the following rule: - "  191.  Fisheries should be settled to the  best  advantage but,  subject to this condition, the agency of middlemen  as lessees should be done away with as 868 far as possible.  To effect this the fishery area should  be broken  up into blocks of such size that the actual  fishers may  be able to take the lease, which should be  given,  for preference, to the riparian land occupants or to the  actual fishermen.  The endeavour of the District Officer should  be to  do away with the middlemen by finding out who  the  sub- lessees are and trying to come to terms with them." The  Rules also made provision for an appeal to the  Revenue Tribunal  (the  High Court acted as such) in  the  following words :- "190.  All orders of a Deputy Commissioner or Sub Divisional Officer  passed  under  these rules are  appealable  to  the Revenue Tribunal." The  first  respondent held previous leases of  the  fishery with which we are concerned for a number of years.  The last of these was to expire on 31st March, 1951.  Shortly  before its  expiry  there  was agitation by way  of  petitions  and memorials  by some of the local fishermen asking  in  effect that rule 191 be given effect to though the applications  do not  actually mention the rule.  These applications, six  in number,  range  in  date from 27th October,  1950,  to  13th March,  1951.   They  were addressed  to  various  officials ranging from the Chief Minister and the Revenue Minister  to the Secretary to Government and the Parliamentary  Secretary and  the Deputy Commissioner.  Government therefore had  all the facts fully before it. In  view of these applications Government decided to  settle the  fishery  direct and wrote the following letter  to  the Deputy Commissioner on 1st February, 1951:- Government  desire  to settle the  above  mentioned  fishery direct under rule 190-A.  I am therefore directed to request you to put the fishery to auction and then to submit the bid list  to  Government  with your  recommendation  for  direct settlement." By that date Government had four of the six applications  to which  we have referred before it.  In addition, it had  the recommendation of the Sub-Deputy Collector 869 dated  4th  January, 1951, in favour of  these  applications together  with the Deputy Commissioner’s endorsement  letter dated 5th January, 1951, confirming the facts set out in the Sub-Deputy Collector’s endorsement and in the  applications. The  first  respondent  also made  ail  application  to  the Parliamentary  Secretary  on 13th March,  1951,  before  any final decision was reached. The Deputy Commissioner proceeded to auction the fishery  on 24th February, 1951., and on 26th February, 1951,  forwarded the bid lists to the Government with a recommendation in the first  respondent’s favour (his was the highest bid) in  the following terms :- The present lessee is managing the fishery well and there is

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nothing against him." After  this,  and  before  the  final  sanction,  Government received  still  another  petition from some  of  the  local fishermen asking for a settlement in their favour.  This was on 13th March, 1951.  Therefore, by that date Government had six petitions from the local fishermen before it and one  by the first respondent as well as the various  recommendations made  by the District officials.  With all this material  in its  possession  Government decided in favour of  the  first respondent  and  on 17th March, 1951, wrote  to  the  Deputy Commissioner,  with a copy to the Development  Commissioner, as follows:- " Government sanction settlement of the Chaiduar-Brahmaputra and  Kharoibeel fishery under rule 190-A with  the  existing lessee Shri Keshab Prosad Singh at an annual revenue of  Rs. 17,700  for a term of three years with effect from  the  1st April, 1951, on the usual terms and conditions." The Deputy Commissioner conveyed this sanction to the  first respondent  on 21st March, 1951, and called on him  to  make the  necessary deposits.  The sanction is in  the  following terms:- "  You  are  hereby informed that  Government  have  allowed settlement  of Chaiduar-Brahmaputra and  Kharoibeel  fishery with you at Rs. 17,700 per year 870 for  3  years  with effect from 1st April,  1951.   You  are therefore  directed  to  deposit the  1  /4  purchase  money amounting to Rs. 4,425 on 28th March, 1951, and the  balance of  Rs. 13,275 in cash on 31st March, 195 1,  failing  which the settlement granted is liable to be cancelled." According  to all notions of contract current  in  civilised countries  that would have constituted a binding  engagement from  which  one of the parties to it could  not  resile  at will, and had the first respondent tried to back out we have little  doubt that the State Government of Assam would,  and quite justifiably, have insisted on exacting its just  dues. But the State Government did not feel itself hampered by any such  old  fashioned  notions  regarding  the  sanctity   of engagements.  On the very day on which it passed its  orders in  the  first  respondent’s favour, 17th  March,  1951,  it received  two more petitions.  They emanated from  the  same sources as before and said nothing new; but they asked for a reconsideration  of the orders just passed.  Had  Government recalled  its orders then and there, possibly no harm  would have been done beyond exposing its vacillations to a limited official circle.  But it allowed five davs to pass and  then the  Revenue Secretary wired the Deputy Commissioner not  to recall  the orders of Government, but to "stay  delivery  of possession"  pending what the Revenue Secretary was  pleased to  call  "further  orders of  Government  on  the  revision petitions".  But by then it was too late.  The acceptance of the   bid  had  already  been  communicated  to  the   first respondent  and  by all ordinary notions  the  contract  was complete. The State Government now says in effect, somewhat cynically, that it is not bound by the statutory rules and claims  that that  gives it the right to recall its previous  orders  and regrant the fishery to some other person or body more to its liking,   or  rather  in  whom  it  has   discovered   fresh virtueshidden  from  its  view in its  earlier  anxious  and mature deliberations. Acting on the telegraphic instructions received by him,  the Deputy  Commissioner  conveyed  the  orders  to  the   first respondent on 22nd March, 1951, and said;- 871

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"The under mentioned document is forwarded to Srijut  Keshab Prosad Singh for information and necessary action. He  is further informed that he is not to deposit the  1/4th purchase  money  and additional security.........  till  the decision   of  the  revision  petition  mentioned   in   the telegram". Three weeks elapsed and then on 13th April, 1951, the  State Government solemnly "reviewed" its former order and said:- "It  is reported by the Deputy Commissioner that the  Gamiri Kharai-Chaiduar  Fishermen Society, Ltd., is constituted  by bona  fide  fishermen.   Accordingly, in  view  of  the  new circumstances  brought  forward  by the  above  Society  the review  petition  is  allowed and  the  previous  orders  of Government dated the 17th March, 1951, is modified. The   Chaiduar   Brahmaputra  and  Kharaibeel   fishery   is accordingly settled with the Camiri kharaiChaiduar Fishermen Society Ltd......" The manager of this Fishermen’s Society is one Maniram  Das. His  name was put forward by 205 members who claimed  to  be bona  fide  Assamese  fishermen in  the  petitions  of  27th October,  1950,  and 21st December, 1950, also  by  Manirani himself  on  behalf of this Society on  2nd  January,  1951. Their  claims were endorsed by the Sub-Deputy  Collector  on 4th  January,  1951, and by the Deputy Commissioner  on  5th January, 1951.  The same claims were again made by  Manirani Das  on behalf of the Society on 23rd January, 1951.  The  " new  circumstances " said to have been discovered on  review was the following statement made by the Deputy  Commissioner on 3rd April, 1951: - "  Gamiri  Kharai-Chaiduar Society is formed  by  bona  fide fishermen" The  previous statement of the Sub-Deputy Collector made  on 4th January, 1951, was:- "The  applicants are all Kaibarta people in the district  of Darrang whose sole business is to deal with 872 fish.....  The applicants are Assamese people.  In  view  of this  and  in view of the fact that these people  have  been recommended  by respectable persons, I suggest that  Kharai- Chaiduar  fishery"  (the  one in question  here)  "  may  be settled  with  them to encourage them to compete  with  the, other fishermen coming from outside Assam." The  Deputy  Commissioner’s endorsement on  this  (the  same Deputy Commissioner) dated 5th January, 1951, runs:- "  The  petitioner (Maniram Das) is an actual  fisherman  as will  appear from the report of the Sub Deputy Collector  As observed  by  the Sub-Deputy Collector........it is  a  fact that  the  indigenous  fishermen  cannot  compete  with  the upcountry people in open auction." To   characterise   the  later  statement  of   the   Deputy Commissioner  dated 3rd April, 1951, as disclosure of a  new circumstance  betrays a cynical disregard for accuracy on  a par  only with the Assam Government’s cynical disregard  for its pledged word. The  Deputy  Commissioner was informed of  the  Government’s revised  decision  on 13th April, 1951, and on  16th  April, 1951,  the  fishery  was  settled  with  Maniram  Das   and, according  to  the first respondent, the settlement  in  his name was cancelled. The  first  respondent’s  reaction to this was  to  file  an appeal to the High Court under rule 190 and at the same time to   apply  for  a  mandamus  under  article  226   of   the Constitution.  The relief sought was worded as follows :- " The humble appellant, therefore, prays that your Lordships would be pleased to set aside the settlement of the  fishery

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with  the respondent and restore the settlement of the  same with the humble appellant." The  High Court, not unsurprisingly on these facts.  granted the  prayer.   It  acted  under rule  190  as  an  appellate tribunal  and the only question for us to decide is  whether it had jurisdiction to do so.  The 873 mandamus  petition is not before us.  The appellant  is  the State of Assam. There   is  an  ancient  presumption  under   section   114, illustration (h), of the Evidence Act, dating from at  least 1872,  that  official acts have  been  regularly  performed. Strange  as it may seem this applies to Governments as  well as to lesser bodies and officials, and ancient though it  is the rule is still in force.  True, the presumption will have to  be  applied  with  caution  in  this  case  but  however difficult  the task it is our duty to try and find a  lawful origin for as many of the acts of the appellant’s Government as we can. Now,  as  we have seen, prescribed fisheries in  Assam  were lifted  out of the realm of matters which could be  disposed of  at  the executive discretion of  either  Governments  or officials  and  were placed under statutory  regulation  and control  by  sections  16 and 155 of  the  Assam  Land.  and Revenue  Regulation of 1886 and we have already referred  to the elaborate set of rules which were drawn up in  pursuance of  that  Regulation.   It follows that no  fishery  can  be "settled" except in accordance with those Rules. It was not disputed that, apart from rule 190-A which we are now  called upon to construe, the Deputy Commissioner  alone could  effect a "settlement" and, as we have shown,  he  was bound.  to  follow  a prescribed procedure;  also  that  his "settlement"   was   subject   to  the   sanction   of   the Commissioner. Rule  190-A  permits a departure but we do not  consider  it necessary in this case to determine the exact extent of  the departure  permitted  because the  Deputy  Commissioner  was directed  to put the fishery to auction and he did so.   The only  departure from the rules was that instead  of  sending the result of the auction to the Commissioner for Settlement it was sent to the State Government direct.  In our opinion, that  was a permissible departure but it was for all that  a departure within the Rules. In  our  judgment,  the words " except  with  the  previous sanction of the Provincial Government " are, 874 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 in 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 follows  that  the departure contemplated by rule  190-A  is also  a departure within the four corners of the rules  read as  a  whole  and is a part of the rules.  It  is  true  the departure need not conform to the " preceding instructions " contained  in  the  earlier portion of  the  rules  but  the departure once sanctioned itself becomes part and parcel  of the rules. This  is important because one of the  statutory  safeguards against  arbitrary  executive action is the  appeal  to  the

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Revenue Tribunal, which in this case is the High Court.   We would   be  slow  to  bold  that  this  safeguard   can   be circumvented  by the simple expedient of lifting a sale  out of the rules whenever Government finds that convenient. It  seems  to  us that if the  intention  was  to  authorise Government  to lift the matter out of the  rules  altogether and to proceed in an executive capacity the word "  sanction " would be out of place, for Government would hardly require its  own previous sanction to something which it  is  itself authorised  to  do.  The sanction must  therefore  refer  to something  which some other person or body is authorised  to do,  and  in  the  context we feel that  it  can  only  mean sanction  to the Deputy Commissioner to proceed in a  manner which is not quite in accordance with the instructions  con- tained in the rules. The  next  question  is,  to what  extent  was  a  departure sanctioned?   This  is to be found in the letter  dated  1st February, 1951, addressed to the Deputy Commissioner :- 875 Government  desire  to settle the  above  mentioned  fishery direct under rule 190-A.  I am therefore directed to request you to put the fishery to auction and then to submit the bid list  to  Government  with your  recommendation  for  direct settlement ". The State of Assam wishes to construe this to mean that  the Government  of  Assam  intended to  flout  the  statute  and disregard  the Rules and proceed by executive  action.   The words  "  direct  settlement " do lend  themselves  to  that construction but that would be an act which, in our opinion, would  not be warranted by the law and, as we are  bound  to presume  until the contrary is shown that the official  acts of  the Assam Government were regularly performed, we  must, if we can, lean against a construction which would put  that Government more in the wrong than we can help especially  as it self purported to act under rule 190-A. Now the only act which would be in consonance with rule 190- A and which would at the same time be in conformity with the letter  of  the  first  February would  be  for  the  Deputy Commissioner to sell by auction and then send the matter  to Government   direct   for  sanction  instead   of   to   the Commissioner.  That, in our opinion, would be a  permissible departure and would make the action of Government legal  and would  bring  the  matter under rule  190-A.   In  the  cir- cumstances,  we  are bound to construe this letter  in  that sense. Now  what  did the Deputy Commissioner do ? So  far  as  the actual  auction  was concerned, he followed the  Rules.   He held  a regular auction and recorded the bids in  the  usual way. -Up to that point he not only complied with the  letter of  the 1st February but also with the regular  rules.   His only  departure  was  to  send his choice  of  a  lessee  to Government  direct  instead of to the  Commissioner.   This, according to us, was a permissible departure. Upon  receipt  of the Deputy  Commissioner’s  recommendation Government   sanctioned  the  settlement  with   the   first respondent  and  the Deputy  Commissioner  communicated  the sanction. 876 It was argued on behalf of the State of Assam that this  was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only  acting as its mouthpiece when he conveyed the orders of  Government to  the first respondent.  In. our opinion, that is  a  mere playing  with words.  The substance of the thing  is  there. It  would  be illegal for Government to settle  the  fishery

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direct by executive action because of the statute.  It would be proper for it to sanction the settlement under rule 190-A in the way it did.  Government said it was acting under rule 190-A.  It said it had " sanctioned " the settlement.  Whose act  was  it sanctioning?  Certainly not its  own,  for  one cannot  sanction  one’s  own  act.   Sanction  can  only  be accorded  to the act of another and tile only  other  person concerned  in  this  matter  was  the  Deputy  Commissioner. Accordingly, in spite of the efforts of Government to appear as  a bold brave despot which knows no laws but its own,  we are constrained to hold that it not only clothed itself with an  aura of legality but that it actually acted  within  the confines of the laws by which it is bound.  It follows  that the  settlement was the act of the Deputy  Commissioner  and fell within the four corners of the rules.  That vested  the first respondent with a good and legal title to the lease. Next  followed  a  similar series  of  acts  cancelling  the settlement  with  the first respondent  and  resettling  the fishery  with the rival body.  As the  -Deputy  Commissioner was the only authority competent to settle these  fisheries, subject of course to sanction, we are bound to hold that the act  of  cancellation and the act of resettlement  were  his acts however much lie may have acted under the direction and orders of a third party.  That at once vested the High Court with  jurisdiction  to  entertain  the  appeal  against  his actions under rule 190. When  we  say  the  Deputy  Commissioner  acted  under   the direction  and orders of the State Government, we  refer  to the  actual  act of "settling" and not to his  choice  of  a lessee.  If this auction had proceeded in the normal 877 way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection  on to a higher authority, the  Commissioner,  for sanction.  He would then have "settled" the fishery.  In the present case, he carried out every one of those steps except that  the  higher authority here was  the  State  Government which  had substituted itself under rule 190-A in  place  of the Commissioner.  It was the -Deputy Commissioner who  made the  initial  choice.   It  was  his  choice  which  was   " sanctioned  "  and it was he who in reality and in  fact:  " settled  " the fishery with the first respondent.  The  mere fact that the State Government in addition to "  sanctioning " his act also told him to " settle " the fishery could  not alter or divest limit of his legal authority.  This is not a case  in  which the Deputy Commissioner having  been  vested with  a  discretion failed to exercise it and acted  as  the mouthpiece  of  another.   His discretion was  to  select  a bidder and he did that without any outside pressure.  There- after  his authority was to " settle " the fishery with  the selected  bidder  once his act was sanctioned and  the  mere fact  that lie was directed by another to do that  which  he would  have  been  bound to do under the law  in  any  event cannot  divest  the  settlement of  its  legal  and  binding character. On  the  merits  the High Court was  abundantly  right.   We accordingly  upheld  its order and dismiss the  appeal  with costs payable to the first respondent. Civil Appeal No. 176-A of 1952. BOSE  J.--For  the reasons given in our  judgment  in  Civil Appeal  No.  176 of 1952 pronounced to-day, we  dismiss  the appeal without costs. Appeals dismissed. Agent for the appellant in Appeal No. 176: Naunit Lal. Agent for respondent No. 1 in Appeal No. 176 and  respondent

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in Appeal No. 176-A: A. D. Mathur. Agent  for respondent No. 2 in Appeal No. 176 and  appellant in Appeal No. 176-A: K. R. Krishnaswamy. 878