Abdul Malik vs Deputy Commissioner and Others

Mehrotra, J.—This rule arises out of an application under Article 226 of the Constitution filed by Abdul Malik. The facts necessary for the disposal of the petition are that Abdul Malik (hereinafter called) ''the petitioner'') is a resident of Dibrugarh town. A sale notice was issued inviting tenders for the settlement of the fishery known as ''Mesaki Nalla'' (Register No. 5) situate in'' Murkongselek Transferred Area, District Lakhimpur. The notice was that the leaso will be auctioned for a period of three years commencing from 1st April 1958 to 31st March 1961.

The petitioner gave his bid and offered to take settlement of the fishery on an annual sum of Rs. 100/-. The settlement was accordingly made by the Deputy Commissioner in favour of the petitioner. After the settlement Was made with the petitioner, the Dibrugarh Fishery Cooperative Society Ltd. which is impleaded as respondent No. 7 in this petition (hereinafter called ''the respondent''), filed a representation before the learned Commissioner of Plains Division, praying for the settlement of the fishery with them. That prayer however was not accepted and the settlement of the fishery with the petitioner was approved by the Commissioner of Plains Division. A lease was issued in favour of the petitioner which was executed by the Additional Deputy Commissioner, Lakhimpur in. Form No. 98 of the Assam Land and Revenue Manual, Volume II. A counterpart in Form No. 99 of the Land Revenue Manual was also executed by the petitioner. The entire money was deposited.

The respondent got the settlement of the Mesaki Nalla Fishery for two terms from 1952 to 4958 but during the year in question they were not granted the settlement of this fishery. The respondent got settlement of Brahmaputra Fishery. After having got the settlement of the Brahmaputra Fishery they wanted to fish in the Nalla. The petitioner objected to that Petitioner''s ease was that it was his fishery and the respondent had no right to fish in that Nalla, that is the Nalla between the Sengajan Forest Reserve and Lamba Chapari.

The Deputy Commissioner after making inquiries passed an order on the 9th March 1900 to the effect that the disputed Nalla forms part of the fishery settled with the petitioner and the respondent had no right to fish in that Nalla. The Deputy Commissioner prohibited the respondent from fishing in the Nalla. Thereafter the respondent filed a petition before the Government of Assam by which the respondent prayed that the order of the Deputy Commissioner be quashed.

The matter was heard by the Government. It does not appear from the order whether it was heard by the Minister concerned or by the Secretary himself. Any way, it appears from certain allegations made in the petition that it was the Minister in Charge of Revenue who heard the matter. The order passed by the Minister was communicated by the Secretary to the Government of Assam, Revenue Department by his order dated 21st November 1960.

The State Government held that the fishery which was settled with the petitioner subsequently dried up and the present Nalla formed part of the Brahmaputra Fishery which was settled with the respondent. In that view of the matter, the Government directed that the respondent who was the lessee of the Brahmaputra Fishery should be allowed to fish in the disputed Nalla. It is this order which is impugned by means of the present petition.

The contention of the petitioner is that the order of the Government has been passed without jurisdiction and as the order affects the right of the petitioner to property, he is entitled to come to this Court for a writ of mandamus directing the opposite parties not to give effect to the order of the Government dated 21st November 1960. The facts are set out in the petition filed by the petitioner. He has categorically stated that the fishery known as Mesaki Nalla was auctioned and settled with the petitioner.

After the grant of the fishery the petitioner made all the necessary deposits, he entered into possession and was fishing in the disputed Nalla.

Thereafter the respondent interfered with his right to fish and started fishing in that Nalla. It is not denied that the fishery was auctioned to the present petitioner and that a lease was given to the petitioner. On the allegation therefore, made out in the petition, the petitioner has got a right in this fishery and the Government cannot interfere with that right except under the authority of law.

Unless it is shown that the Government acted in depriving him of his right to fish in the Nalla, under some Law the order of the Government cannot be upheld. No provision in the fishery rules or in the Land Revenue Regulation has been pointed out under which the Government had authority to interfere with the right of the petitioner to fish in the fishery which had been settled with him.

The contention raised by the Senior Government Advocate who appears for the State however, is that the order of settlement with the petitioner itself was illegal inasmuch as this Nalla was not declared a fishery u/s 16 of the Assam Land and Revenue Regulation. The argument in effect is that the settlement was not proper and was not in the exercise of any statutory power. The right was created in favour of the petitioner under a contract and if the contract itself was illegal it is open to the State Government to repudiate the contract and thus interfere with the right of the petitioner under the contract.

His remedy, if any, was to go to the civil court. This argument does not appear to us to be correct. Factually it will appear that the fishery was registered and it bears registration No. 5. The fishery was settled with the petitioner and under the settlement the petitioner acquired a right to the fishery which is a right to the property and the petitioner cannot: be deprived of that right except by the authority of law.

The State cannot now say that by a unilateral act they can altogether declare the contract of lease as invalid and thereafter encroach upon the petitioner''s right which he has acquired under the contract executed by the Deputy Commissioner on behalf of the State. Under these circumstances it cannot be said that the remedy of the petitioner was only to approach the civil court and not to come to this court. No other provision has been pointed out under which the Revenue Minister had jurisdiction to entertain the representation and then pass an order which affects the right of the petitioner.

It was further contended by the Senior Government Advocate that the order passed by the Government was only an administrative order and this Court will not interfere with that order under Article 226 of the Constitution. He further contended that no writ of certiorari could be issued quashing that order. As regards the writ of mandamus his contention is that in the present case the interest of a third party has been affected as there was a dispute as to whether this area is covered by the respondent''s lease or the petitioner''s lease and as such no mandamus can be issued.

It is not the case of the petitioner that he should be granted a writ of certiorari. The Government when passing the impugned order, does not act in a quasi-judicial capacity. Therefore the question of issuing a writ of certiorari does not arise. The simple case of the petitioner is that the order has affected the fundamental right of the petitioner and it could not be passed by the State Government without the authority of law. If there was any provision of law under which the State Government could have heard an appeal from the order of the Deputy Commissioner, it could have well been argued that the order had been passed by, the Government under the authority of law.

But in the absence of any such provision it is not open to the Government to say that the order had been passed under the authority of law. As regards the writ of mandamus no writ of mandamus is granted against a third party whose interest is affected. The writ of mandamus is claimed against the Government not to give effect to the order passed by the Government dated 21st Nov. 1960 and therefore the question of the third party''s interest being affected does not arise.

Reliance was placed in this connection on the case of Sohanlal Vs. The Union of India (UOI), The facts of that case are entirely different. There a third party had entered into possession and the petitioner''s right had been terminated by the Government illegally. What the Supreme Court held in that case was that, no mandamus could be issued against a third party evicting him from the land.

But the case here is entirely different. Here the third party in the exercise of his right as the lessee of the Brahmaputra Fishery is trying to interfere with the petitioner''s right and the Government has by its order in effect deprived the petitioner of his right to fish in that fishery and a mandamus can be issued against the Government directing them not to give effect to the order passed by the Government. Though no mandamus can be issued against a third party that principle cannot be invoked in the present case.

It is not seriously contended by the Senior Government Advocate that the order passed by the Government has not got the effect of interfering with the right of the petitioner, though it is argued that in substance the order sets aside, that portion of the Deputy Commissioner''s order by which he has restrained the respondent from fishing. But on a careful reading of the order it will be apparent that it is not such a simple order by which the portion of the order passed by the Deputy Commissioner by which he has restrained the lessee of the Brahmaputra Fishery from fishing has only been set aside, but it has got the effect of restraining the petitioner from fishing in the fishery which has been settled with him and thus it has affected his right and the petitioner therefore, is entitled to a writ of mandamus.

The counsel for the opposite party has argued that the order passed by the Deputy Commissioner was in the exercise of his powers as a Revenue Officer and as such the Minister being the highest revenue authority had every right to interfere with that order. We fail to appreciate this argument. If it was an order passed by the Deputy Commissioner under the Land and Revenue Regulation as a Revenue Officer, the remedy of the party affected by that order was either to file an appeal u/s 147, Land and Revenue Regulation if it was permissible or to come up in revision to this Court u/s 151 of the Land Revenue Regulation.

But there is no power given to the State Government to interfere with the order passed by the Revenue Officer under the Land and Revenue Regulation in the exercise of his administrative power. In the result therefore we allow this petition and grant a mandamus to the petitioner restraining the opposite parties from giving effect to the order dated 21st November 1960 passed by the Government. But in view of the fact that the lease of the petitioner is going, to expire tomorrow we direct that the parties will bear their own costs of this petition.

Dutta, J.

I agree.