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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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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

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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

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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

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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;-

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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

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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,

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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.

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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.

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