Bhuban Chandra Das vs Chairman Assam Board of Revenue and Others

G. Mehrotra, C.J.—This rule arises out of an application under Article 226 of the Constitution.

The facts necessary for the disposal of the present petition are as follows.

The Deputy Commissioner Nowgong, advertised and called for tenders for settlement of the proclaimed fishery No. 48 of the District of Nowgong, namely the Thekera Beel. for a period of three years from 1-4-62. The Petitioner and opposite party No. 3 and some other persons submitted tenders. The Deputy Commissioner opened the tenders and accepted all the tenders as in accordance with the prescribed form. The offer of Rs. 4,501/- given by opposite party No. 3 was considered to be the highest and the Petitioner''s offer was Rs. 4,423 Inp. The Deputy Commissioner with the advice of the Advisory Board settled the fishery with the Petitioner at the highest offer of Rs. 4,501/- for three years in view of the provision of Rule 46(b) of the Fishery Rules, under which the Petitioner was entitled to a preference. The Petitioner accepted the settlement and paid one year''s revenue of Rs. 4,501/- in cash and gave the necessary security within the prescribed period.

The Deputy Commissioner then sent his recommendation to the Commissioner of Plains Division for approval, as required under the provisions of the Fishery Rules. Before the Commissioner also opposite party No. 3 filed an objection on the ground that the Petitioner was not actual fisherman and thus he was not entitled to any preference. The objection was rejected and the Commissioner approved of the settlement of the fishery for a period of three years with the Petitioner. The Deputy Commissioner then settled the fishery with the Petitioner and a lease was executed on the 22nd of March 1962 in favour of the Petitioner on behalf of the Governor of Assam. The Petitioner was then put in possession of the fishery. Then the opposite party No. 3 preferred an appeal to the Assam Board of Revenue against the settlement order passed by the Deputy Commissioner under Rule 11 of the Fishery Rules.

When the matter came up before the Board of Revenue, the Board of Revenue by a majority decision allowed the appeal and directed settlement in favour of the opposite party No. 3. The only ground on which the Board of Revenue held that settlement with the Petitioner was illegal was that in the tender, which he submitted, in column No. 7. Which required the year or years for which the settlement is sought for, the Petitioner had given ''1962-64''. In the opinion of the Board of Revenue this was a mistake and thus there was non-compliance with the provisions of the rule under which the tenderer had to file the tender in the prescribed form. It was pointed out to the Board of Revenue that though the sale notice asked for tender for three years, the Petitioner by putting in column No. 7 the period to be 1962-64 had only offered to take settlement for two years and thus he had not complied with the provisions of the rule. The defect in the tender was according to the majority a major defect and thus the settlement could not be made in favour of the Petitioner. In that view, the appeal was allowed and the order of settlement with the Petitioner was set aside by the Board of Revenue.

In this petition two points have been urged before us. Dr. Medhi''s first contention is that on a proper interpretation of the rules and in view or the provisions of Rule 49, when the Petitioner had mentioned in his tender the years to be ''1962-64'', it was for three years. The year 1964 was to start from the lst of April 1964 and to end on the 31st March 1965. Although in figures he had given 1962-64, but it was really for three years starting from the 1st of April 1962 and ending on the 31st March 1965.

Rule 49 of the Fishery Rules is as follows:

In settlements of fisheries under the tender system the year shall be reckoned as beginning from the 1st April and ending on the 31st March following.

The next contention of Dr. Medhi is that even assuming that there was a mistake in the tender, it was not a violation of any mandatory provision of law so as to render the settlement itself illegal. It was not a major defect in the tender so as to defeat the right of the Petitioner to get the settlement Rule 49 in our opinion, clearly lays down that in settlements of fisheries under the tender system, the year shall be reckoned as beginning from the 1st of April and ending on the 31st March following. In that view of the matter when the tender mentioned the year to be 1962-64, it had to start from the 1st of April 1962 and end on the 31st March 1965. If the tender is interpreted in that manner, there was no defect in the tender at all. Mr. Goswami has made two-fold arguments in answer to the contention of Dr. Medhi. His first contention is that this point was never urged before the Board of Revenue and, secondly, he contends that even if the Board of Revenue wrongly interpreted the tender, it will not be a manifest error of law so as to entitle this Court to interfere with the order of the Board of Revenue.

We have perused the order of the Board of Revenue and it is true that the Board of Revenue does not appear to have considered that aspect of the matter at all. The Petitioner had argued on the assumption that he had committed a mistake in not mentioning ''1962-65'' in the tender, and, on that basis the Board of Revenue had examined the case. There is however no bar to our holding that if that was the point which should have been considered by the Board of Revenue, the Board of Revenue has failed to exercise its jurisdiction and decide all the questions which arose in the case. Apart from it, there can he no dispute so far as the interpretation of the terms of the tenders is concerned. Column No. 7 expressly mentioned ''1962-64'' and the question is of only applying Rule 49 to the facts of the case. It is not really a question of interpreting a document of evidence wrongly by a Court which is competent to do it. There can be no two opinions so far as the interpretation of the document is concerned.

The document clearly sets out the year to be 1962-64. The only question is, having regard to Rule 49 whether these years should read to start from 1-4-62 and end on 31-3-65, and, in this view of the matter, the question raised is one of law and the Board of Revenue has failed to consider the question of law which arises out of the admitted facts. Apart from it, we are also not inclined to accept the view of the Board of Revenue that the defect in the tender, assuming that it is a defect is such as to vitiate the order of settlement. There is no provision in the rules under which the tender is to be submitted in the prescribed form Rule 43 only requires that there will be a sale notice in the prescribed form as appended in Appendix A.

Clause (1) of the sale notice reads as follows:

Tenders are invited for the settlement of the undermentioned fishery/fisheries within the Nowgong district for a period of 3 years from 1962-63 to 1964-65. The tenderer should mention in the tender the amount of annual revenue he is prepared to pay for the fishery/fisheries. No subsequent offer of any amount other than the amount mentioned in the tender already submitted by the tenderer will be considered under any circumstances.

Clause (1) of the sale notice only requires that the tender should be in the prescribed form and further that the tenderer should mention in the tender the amount of annual revenue he is prepared to pay for the fishery or fisheries. It only requires that tenders should be submitted in the prescribed form and not on any sheet of paper. But the subsequent clause that the tenderer should mention in the tender the amount of annual revenue he is prepared to pay for the fishery indicates that what is mandatory is that in the tender it should be mentioned the amount at annual revenue the tenderer is prepared to pay. That requirement may be regarded as a mandatory and substantial requirement, but the other requirements cannot be regarded as mandatory, and thus even assuming that there was a defect in the tender, it was not such a defect that the settlement itself should be declared illegal. The Board of Revenue in our opinion has committed a manifest error of law in regarding the requirement of mentioning the period of three years as a mandatory provision the violation of which will vitiate the entire settlement. To that extent it is a manifest error of law committed by the Board of Revenue. It is not the question where the Board has selected one person and we are interfering with the selection made by the Board. It is on a manifest error of law committed by the Board of Revenue inasmuch as the Board has regarded the defect as a fatal defect and the requirement to mention the period of settlement as a mandatory provision.

In the result, therefore, we allow this petition, and set aside the order of the Board of Revenue. The Board of Revenue will hear the appeal and dispose it of according to merits. There will be no order as to costs in this petition.

C.S. Nayudu, J.

I agree.