The State of Assam Vs. Keshab Prasad
Singh & ANR  INSC 32 (14 April 1953)
BOSE, VIVIAN MAHAJAN, MEHR CHAND
CITATION: 1953 AIR 309 1953 SCR 865
CITATOR INFO :
RF 1954 SC 592 (10) R 1956 SC 640 (7) E 1957
SC 377 (11)
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.
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 Commissioner 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 reconsideration 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 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.
Judgment of the High Court of Assam affirmed.
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.
(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 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
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 "The under mentioned document
is forwarded to Srijut Keshab Prosad Singh for information and necessary
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 KharaiChaiduar 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 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
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 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
contained 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 190A 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 circumstances, we are bound to construe this letter in that
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
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
It would be illegal for Government to settle
the fishery 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. Thereafter 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.
Agent for the appellant in Appeal No. 176:
Agent for respondent No. 1 in Appeal No. 176
and respondent 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.