Barada Kanta Bishya and Another vs Assam Board of Revenue and Others

G. Mehrotra, C.J.—These rules arise out of the following circumstances and relate to the settlement, of No. 1 Upper Part of Brahamaputra No. 1A Brahmaputra Chapari and No. 2 Middle part of Brahamaputra Fishery for three years 1966-69.

The Petitioner in Rule No. 395 offered Rs. 20,125.00 per year on tenders being called. Rajaduar Fishery Co-operative Society which is arrayed as opposite party No. 2 in Rule No. 395 also made an offer, The Additional Deputy Commissioner by his order dated the 2nd February. 1966 settled the fisheries with, Rajaduar Fishery Co-operative Society. Against this order of settlement the Petitioner society preferred an appeal before the Assam Board of Revenue. The Board of Revenue by its order dated the 16th August 1966 allowed the appeal of the Petitioner society and set aside the settlement made with the Respondent No. 2 Rajaduar Fishery Co-operative Society in Rule 395 but sent back the whole matter to the Deputy Commissioner for resettlement. As against this decision of the Board an application has been filed by Shri Barada Kanta Bishya on behalf of the Gauhati Machdhara and Becha Kina Fishery Co-operative Society Ltd., which has given rise to rule No. 395. The prayer of the Petitioner is that the Board of Revenue after setting aside the settlement made by the Additional Deputy Commissioner should have settled the fishery with the Petitioner.

Rule No. 369 arises out of a petition under Article 226 of the Constitution filed by Bangshidhar Das, Secretary, Rajaduar Fisherv Co-operative Society Ltd. The settlement with this society was set aside by the Assam Board of Revenue by the order which is the subject matter of rule No. 395. The Board of Revenue has also directed the Deputy Commissioner to make arrangement with the fisheries for an interim period. The Additional Deputy Commissioner after the order of remand by the Board of Revenue settled the fisheries with Shri Barada Kanta Bishya for one month from 1st September 1966 to the 30th September 1966. The Additional Deputy Commissioner further invited fresh tenders and fixed the 1st October 1966 as the date of settlement. In the petition filed in the High Court under Article 226 of the Constitution on behalf of Rajaduar Fishery Co-operative Society which gave rise to rule No. 369 of 1966, the Petitioner moved this Court for stay and this Court directed that the further settlement be stayed. Thereafter it is alleged by the Petitioner that by a telegram dated the 27th September 1966 from the Government the Deputy Commissioner. Gauhati was directed to settle the fishery with Bangshidhar Das, Secretary, Rajaduar Fishery Co-operative Society. The Petitioner then moved this Court under Article 226 of the Constitution challenging the order of the Government directing settlement with Rajaduar Fishery Co-operative Society and this application has given rise to Rule No. 403.

By an application under Article 226 of the Constitution the order passed by the Government for settlement has been challenged and this has given rise to rule No. 405 of 1966.

The main point raised in the two Civil Rules Nos. 395 and 369 is that the order of the Assam Board of Revenue by which the settlement granted by the Additional Deputy Commissioner to Rajaduar Fishery Co-operative Society was set aside and the case was sent back to the Deputy Commissioner for resettlement is erroneous. As the Government has purported to settle the fishery directly under Rule 12 of the Fishery Rules with Rajaduar Fishery Co-operative Society, unless that order is set aside, the rules Nos. 395 and 369 have become infructuous. The validity of the order of the Government dated the 27th September 1966 making direct settlement has been challenged by the petitions which is the subject matter of rules Nos. 403 and 406. Mainly thus these two rules have been argued. The order of the Government making direct settlement has been challenged on a number of grounds. It is firstly urged that as the Government had exercised its right of notifying this fishery for settlement through the tender system, the power of the Government to make direct settlement under Rule 12 of the Fishery Rules has been exhausted. Secondly it is urged that as the settlement of the fishery in question is now the subject-matter, of decision by the Board and the Deputy Commissioner was acting in accordance with the direction of the Assam Board of Revenue, the Government had no power to make direct settlement. Such a direct settlement will amount to interference with the judicial order passed by the Assam Board of Revenue. Thirdly it is urged that in view of the stay order passed by this Court in Civil Rules Nos. 395 and 369 restraining the Deputy Commissioner from making any fresh settlement, the order of the Government directing the Deputy Commissioner to make direct settlement is ultra vires. Fourthly it is urged that the telegram dated the 27th September 1966 was not an order as contemplated by the Assam Fishery Rules and is neither expressed in the name of the Governor nor has it been properly authenticated by the proper authority. In this connection it will be relevant to point out that on the first date when the case came up for hearing, the Government Advocate was directed to produce the Secretariate record to show if there was any order of settlement passed by the Government. There is an order passed on the record by the Minister concerned. It is now argued by the Petitioner that even the Minister''s order is not a valid order in law unless it is shown that the advice which was tendered by the Minister was accepted by the Governor followed by another order expressed in the name of the Governor.

In the case of Birendra Nath Barman v. Deputy Commissioner, Goalpara reported in ILR (1963) Gau 288 it has been held by this Bench that by simply adopting the procedure of settlement by tender system at the initial stage, the Government does not exhaust its power under Rule 12 to make direct settlement. It is, therefore, not necessary for us in this case to reiterate our views expressed in this judgment. This case is sought to be distinguished on the ground that in the present case there was an order by the Assam Board of Revenue remanding the case to the Deputy Commissioner for fresh settlement and in view of that order it was not open to the Deputy Commissioner to carry out the directions of the Government and make settlement. This argument ignores the fact that the power of the Government is not exhausted by an order of the Assam Board of Revenue. Till the settlement is made in pursuance of the order passed by the Assam Board of Revenue, the power of the Government is not exhausted and the order of the Board of Revenue does not in any way affect the power of the Government to make direct settlement under Rule 12. In fact the Government may think of making direct settlement in view of the fact that the order of the Assam Board of Revenue remanding the case may delay settlement of the fishery that may result in loss of revenue to the Government. The order of the Assam Board of Revenue itself may give rise to a situation where the Government may exercise its power under Rule 12.

In the case of Ganga Ram Das Vs. Tezpur Kaibarta Co-operative Fishery Society Ltd., it was observed by their Lordships of the Supreme Court as follows:

No limitation is placed on this power which is thus vested in the State Government and if the State Government is empowered to settle fishery rights otherwise than by sale it can do so by adopting the tender system if it thought it desirable to do so or even by entering into individual settlements if the circumstances of the case so warranted. Apart from the adoption of the tender system in place of the auction system, circumstances may conceivably arise where either by reason of the cancellation or relinquishment of fishery lease before the expiration of the period thereof and having regard to the situation then obtaining, it may not be feasible or desirable to sell fishery rights for the unexpired portion of such a lease either by public auction or by inviting tenders and the State Government may, under these circumstances, consider it desirable to enter into individual settlement of the fishery rights so as to earn for the State as much of revenue as possible. No fetter can be placed on the discretion of the State Government in this behalf and the State Government would be the best judge of the situation and would be in a position to determine what procedure to adopt in the matter of the settlement of fishery rights otherwise than by sale. There is nothing in the provisions of Section 4 containing rules for settlement of fishery by tender system which militates against the above position.

This passage also shows that the power of the Government may be exercised under certain circumstances of which the State Government would be the best judge. It cannot, therefore, be said that the Government had no power after the order of the Assam Board of Revenue to make direct settlement.

Coming to the third point raised by the Petitioner that effect of the stay order passed by this Court in Civil Rules Nos. 395 and 369 was to prohibit the Government from making direct settlement, it is necessary to refer to the stay order passed by this Court. On the 8th September 1966 when Civil Rule No. 869 was issued, an interim order was passed by this Court directing the Deputy Commissioner not to make fresh settlement of the fishery and the existing arrangement was to continue. This petition was on behalf of Rajaduar Fishery Co-operative Society Ltd. with which the direct settlement has now been made by the State Government. When rule No. 395 was issued on the 26th September 1966 during the Long Vacation on the petition by Sri. Barada Kanta Bishya representing the Gauhati Machdhara and Becha Kina Fishery Co-operative Society Ltd, a similar interim order was passed to the effect that in the meantime the present arrangement was not to be disturbed. On the 29th September 1966 Dr. Medhi appearing for Rajaduar Fishery Co-operative Society Ltd. prayed for vacating the stay order. On the 6th October 1966 this matter came up before the single Judge during the Long Vacation and the single Judge modified the earlier order of stay in view of the fact that the Government had already settled the fishery with Rajaduar Fishery Co-operative Society Ltd. under Rule 12 to the extent that he left it to the Deputy Commissioner to make an interim arrangement as he thought fit, The Deputy Commissioner could make an interim settlement with either of the parties. The Deputy Commissioner acting under this order of the High Court made settlement with Rajaduar Fishery Co-operative Society Ltd. The stay order passed by this Court prohibited the Deputy Commissioner to make fresh settlement. The Deputy Commissioner has not in any way violated the order of this Court inasmuch as the Deputy Commissioner has made interim arrangements in accordance with the direction issued by this Court on the 6th October 1966. The order passed by the Government for direct settlement has, therefore, not been given effect to so far. There was no direction issued to the Government not to pass any order under Rule 12 of the Fishery rules. So long as the order of the Government was not given effect to by the Deputy Commissioner, there was no conflict between the stay order passed by this Court and the order passed by the Government directing settlement. This Court''s order was only for interim arrangement which was carried out by the Deputy Commissioner. As pointed out in the order passed by this Court on the 6th October 1966 a point raised by Mr. Lahiri that the order passed by the Government under Rule 12 of the Fishery Rules was ultra vires and this matter was ordered to be decided in the final hearing. As the Assam Board of Revenue had remanded the case and directed the Deputy Commissioner to call for fresh tenders, the stay order passed in the first instance by this Court only meant that all other preliminaries should be done by the Deputy Commissioner. But he should not make the final order of settlement till disposal of this petition and the existing arrangement was to continue. That order was only modified on the 6th October 1966 to this extent that the existing arrangement was to be substituted by an interim arrangement to be made by the Deputy Commissioner. But there could not have been any occasion for this Court to pass a general order of injunction restraining the Government from exercising its power under Rule 12. The Government was no party to those proceedings and there was no question of this Court at that stage prohibiting the Government from passing an order under Rule 12 of the Fishery rules.

The order passed by this Court on the 8th September 1966 directing the Deputy Commissioner not to make any fresh settlement of the fishery was itself modified and substituted by another order passed by this Court on the 6th October 1966. In our opinion, therefore, there is no substance in the contention that the order of the Government under Rule 12 was invalid in view of the stay order passed by this Court.

The last point urged is that there is no order by the Government. By a telegram dated the 27th September 1966 the Deputy Commissioner was informed by the Government that the Government has decided under Rule 12 of the Fishery Rules to make direct settlement of the fishery with Bangshidhar Das, Secretary, Rajaduar Fishery Co-operative Society Ltd. This was in reply to the letter of the Deputy Commissioner to the Government dated 13th September 1966. It is urged by the Petitioner that this is neither an order by the Government nor does ii comply with the provisions of Article 166 of the Constitution. In the counter-affidavit it is stated that this was only the communication sent by the Government to the Deputy Commissioner and this is not the order passed by the Government. In view of that statement it is not necessary to examine the correctness or otherwise of the telegram and no question of quashing the telegram arises. What was really contended for by the Petitioner is that as there as a stay order and as the Assam Board of Revenue remanded the case, the Government had no power to make direct settlement under Rule 12. That point having been held to be against the Petitioner, there is no question at this stage of quashing the order passed by the Government. Moreover on the date of hearing on our direction the Government placed the Secretariat record before us and on the record there is a well considered order passed by the Minister directing the fresh settlement with Rajaduar Fisherv Co-operative Society Ltd.

It is urged that the order of the Minister is only an advice to the Government and unless that advice is accepted by the Governor, it does not become the order of the Government and further that the order has get be expressed in the name of the Governor. The answer to this argument firstly is that the challenge is not precisely on the ground that there is no order by the Government but it is on the ground that the Government had no power to make direct settlement Under Rule 12 of the Fishery Rules in view of the circumstances of this case and further the telegram which was sent to the Deputy Commissioner did not comply with the provisions of Article 166 of the Constitution. Thus the question as to whether the Minister''s advice was accepted by the Governor could not be allowed to be agitated.

In the ease of R. Chitralekha and Another Vs. State of Mysore and Others, it was held by the Supreme Court that the provisions of Article 166 of the Constitution are only directory and not mandatory in character and if they were not complied with it could still be established as a question of fact that the impugned order was issued in fact by the State Government or Governor. It was further observed in that case that the latter in question, no doubt did not conform to the provisions of the article but it ex facie said that the order to the effect mentioned therein was issued by the Government and it was not denied that it was communicated to the selection committee. In the circumstances there was no reason to reject the averment made by the Deputy Secretary and hence there was no merit in the contention of the Petitioner. Here the telegram which communicated the order said that there was an order of the Government. The existence of the order of the Government having been mentioned in that telegram and that supported by the order of the Minister shown to us, it cannot be presumed that there was no valid order by the Government.

Reliance is placed by the Petitioner on the following passage in the case of Bachhittar Singh Vs. The State of Punjab, at p. 398:

We may further observe that, constitutionally speaking the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the ''order'' of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned.

It is true that the Ministers only advise the Governor but in the absence of anything to the contrary and in view of the clear averment in the telegram itself that the Government has passed an order, it cannot be presumed that the advice of the Minister tendered in this case was not accepted by the Governor and that the rules of procedure framed under the Constitution were not followed in this case. We cannot, therefore, accept the contention of the Petitioner that there was no proper order under Rule 12 of the Fishery Rules.

In the result, therefore, there is no force in these petitions and they are dismissed. But we make no orders as to cost except in Civil Rule No. 405/66 which is dismissed with cost to the opposite parties. Hearing fee is fixed at Rs. 100.