Hatem Ali vs Deputy Commissioner and Others

G. Mehrotra, C.J.—By means of this petition under Article 226 of the Constitution of India the Petitioner has prayed for a writ of mandamus directing the Opposite party not to give effect to the order of the Deputy Commissioner, Nowgong, dated the 11th April 1962.

There is a bazar, known as Rupahihat bazar, within the territorial jurisdiction of the Rupahi Anchalik Panchayat. This bazar was put up for auction on the 3rd March 1962, by the Rupahi Anchalik Panchayat for settlement for the year 1962-63. The auction was conducted by the President of the Anchalik Panchayat at the Pan-chayat''s office on the same date assisted by the Executive Officer and five other members of the Panchayat including the Vice-President. A number of persons offered bid of Rs. 5,650/- and the President accepted the bid of Hatem Ali and did not accept the bid of other bidders who had also offered the same bid. The Deputy Commissioner by his impugned order has set aside the order of the President accepting the bid of the Petitioner and has directed that the bazar should be re-auctioned.

The contention of the Petitioner is that the order of the Deputy Commissioner is without jurisdiction and that as the Deputy Commissioner is a public officer, who has passed the order without jurisdiction, and the order affects the interest of the Petitioner, the Petitioner is entitled to claim a writ of mandamus directing the Deputy Com missioner not to give effect to that order. The Deputy Commissioner Has purported to act u/s 139 of the Assam Panchayat Act, 1959.

Before we deal with the merits of the case it will be convenient to dispose of the preliminary objection raised by the opposite party. It is con tended by Dr. Medhi, who appears for some of the opposite parties, that as the Petitioner has no right to get settlement of the bazar and the settlement itself is not complete so far without the approval of the Panchayat in its meeting, the Petitioner has no right in the bazar itself and thus his application under Article 226 of the Constitution is not maintainable. His argument in substance is that under Article 226 of the Constitution a person can ask for enforcement of his right and if the Petitioner has no right he is not entitled to ask for any writ under Article 226 of the Constitution. Reliance is placed for this proposition on the, cases of Stale of The State of Orissa Vs. Madan Gopal Rungta, Bombay Salt and Chemical Industries Vs. L.J. Johnson and Others, and Assam Fisheries Farms and Industries Ltd. Vs. The Development Commissioner and Others,

In the first case the facts were that the State of Orissa had passed an order canceling temporary permits and directed the Respondents to remove their assets appertaining to the mines within a fortnight A writ petition was filed before the High Court The High Court did not go into the question as to whether the Petitioner had acquired any right in the property by virtue of the permits which were already granted and passed an order staying operation of the order, passed, by the State for certain time to enable the Petitioners: to get their right declared in a proper Court. It is against this order that an appeal went up to the Supreme Court and the Supreme Court held that under Article 226 of the Constitution the High Court has got no power not to decide the question of title and pass an interim order. The Supreme Court has no doubt observed that "Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do" and has further observed that the foundation for the exercise of the power under Article 226 of the Constitution is the existence of a right, but the facts, therefore, of that case were entirely different.

There the Petitioner claimed a relief in his favour on the ground that he had acquired a right in the mines and the High Court without deciding that question granted an interim relief. The Supreme Court thus set aside the order of the High Court mainly on the ground that the interim relief as the only and final relief could not be granted by the High Court. The argument which was advanced by the Petitioners before the High Court was that as they had acquired a right under the permits granted to them, they had a right to approach the High Court, and the Supreme Court held that on the interpretation of the permits they had no right in the mines at all, and thus they were not entitled to any relief under Article 226 of the Constitution.

The next case is Bombay Salt and Chemical Industries Vs. L.J. Johnson and Others, That case has been relied upon in support of the contention that mere acceptance of the bid does not confer any right in favour of the bidder. But this case, to our mind, also does not lay down that even though the Petitioner may have been adversely affected by a particular order passed'' by a public officer, he cannot approach the, High Court under Article 226 of the Constitution and show that the order is illegal, without jurisdiction and should not be given effect to.

The case of Assam Fisheries Farms and Industries Ltd. Vs. The Development Commissioner and Others, is also a case where the question was whether the order passed by the Development Commissioner was valid or not. The High Court held that the Development Commissioner as the sanctioning authority acted in an administrative capacity and he had full powers to refuse or to accept the recommendation of the Deputy Commissioner. If acting administratively the Development Commissioner directed the Deputy Commissioner to make certain settlement with somebody, it cannot be said that the settlement made by the Deputy Commissioner subsequently was not his own act and that it was an order passed at the instance of the Development Commissioner. Under these circumstances no relief was granted to the Petitioner. It is true that in that case the observation made is that the foundation for the exercise of the power is the existence of a right and if the Petitioner has no right he cannot ask for the enforcement of any right by a direction to be issued by the High Court under Article 226 of the Constitution. The question whether a person who has been adversely affected by a particular order has a right to come to High Court under Article 226 of the Constitution and ask for a writ of and amuse directing the officer not to enforce that order did not come up directly for consideration in that case.

On behalf of the Petitioner reliance is placed on the case of K.N. Guruswamy Vs. The State of Mysore and Others, The following passage at p. 595 may be referred to.

The next question is whether the Appellant can complain of this by way" of a writ. In our opinion, he could have done so in an ordinary case. The Appellant is interested in these contracts and has a rigid under the laws of the State to receive the same treatment and be given the same chance as anybody else. Here we have Thimmappa, who was present at the auction and who did not bid-not that it would make any "difference if he had, for the fact remains that he made no attempt to outbid the Appellant. If he had done so it is evident that the Appellant would have raised his own bid.

The procedure of tender was not open here because there was no notification and the furtive method adopted of settling a matter of this moment behind the backs of those interested and anxious to complete is unjustified. Apart from all else, that in itself would in this case have resulted in a loss to the State because, as we have said, the mere fact that the Appellant has pursued this writ with such vigor shows that he would have bid higher.

Under these circumstances the Supreme Court held that the Petitioner was entitled to ask for a mandamus directing the officer concerned not to give effect to the order of settlement in favour of the opposite party. So far as the Petitioner''s claim for the grant of license to him was concerned, the Supreme Court in this very case observed that as the Petitioner acquired no right by offering a bid such a relief could not be granted in his favour.

Where the Petitioner claims a right in the property and wants a direction to be issued against the opposite party to settle the property with the Petitioner, the question as to whether the Petitioner has'' a right to the property is a material circumstance to grant or refuse a relief to the Petitioner. But, if the Petitioner''s case only is that a certain order which affects him adversely has been passed without jurisdiction by a public officer he has sufficient interest to entitle him to approach this Court under Article 226 of the Constitution and ask for a mandamus directing the officer not to give effect to an invalid order. Unless the acceptance of the applicant''s bid by the President is approved by the Anchalik Panchayat and lease executed, the applicant may not have acquired any right in the property. But the acceptance of the bid by the President docs give a right to the Petitioner to have the order of acceptance enforced and a lease executed in his favour. His right to have the order of acceptance of the bid given effect to has been impaired by the order of the Deputy Commissioner and thus he has a legal right which he seeks to enforce by means of the petition under Article 226 of the Constitution.

Reference in this connection may be made to the case of Nuruddin Ahmed Vs. State of Assam and Others, ;Dambarudhar Barua v. The Chairman, Local Board, Sibsagar, ILR (1954) 6 Gau 487: (AIR 1955 Gau 97 ). Nuruddin Ahmed Vs. State of Assam and Others, has considered the earlier case of ILR (1953) 5 Gau 354 : Assam Fisheries Farms and Industries Ltd. Vs. The Development Commissioner and Others, The Supreme Court in the case of Ganga Ram Das Vs. Tezpur Kaibarta Co-operative Fishery Society Ltd., has no doubt overruled Nurud-din Ahmed''s case but only on the ground that Rule 12 of the Fishery Rules is ultra vires. There is thus no force in the preliminary objection.

Coming to the merits of the case, the contention is that the only ground on which the Deputy Commissioner has cancelled the order passed by the President accepting the bid of the Petitioner is that there was non-compliance of the provision of Rule 65(5) of the Assam Panchayats (Financial) Rules, 1960. Rule 65(5) made in the exercise of the powers conferred u/s 160 of the Assam Panchayat Act, 1959 is as follows:

The auction shall be held by the President or the Vice-President of the Gaon Panchayat concerned, and in case of the Anchalik Panchayat, by the President being assisted by the Executive Officer at the Panchayat''s office. The Panchayat concerned may appoint not more than four of its members to render such assistance to the Officer conducting the auction as he may require. No such auction shall take place on a Sunday or other authorized holiday. If the day fixed for sale happens to be Sunday or other authorized holiday, the sale shall commence on the next opening day and shall continue from day to day, except on holiday, unless the person conducting the sale fixes other dates and gives notice of them to those present at the auction.

Mr. Lahiri''s contention for the Petitioner is that the Deputy Commissioner was not right in holding that there was non-compliance with the pro vision of Rule 65(5), and, secondly, he contends that even if there was non-compliance of Rule 65(5), as pointed out by the Deputy Commissioner, the order cannot be said to be manifestly perverse or ultra Vires so as to justify an order u/s 139 of the Assam Panchayat Act, 1959. Section 139 pro vides as follows:

The Deputy Commissioner or the Sub-divisional Officer, as the case may be, may by order in writing on his own initiative or on information received, suspend or prohibit the execution of any resolution of a Gaon or Anchalik Panchayat or Mohkuma Parishad or of any order or notice issued by it or its President or cancel such order, notice or resolution and may prohibit the doing of any act which is about to be done in pursuance, or under colour of this Act if for reasons recorded by the said officer such act, order, notice or resolution is manifestly perverse or ultra vires or the execution of such order, notice, act or resolution is likely to cause obstruction, injury or annoyance to the public or danger to human life, health or safety or is likely to lead to a riot or an affray or is otherwise against the public interest.

In substance, Section 139 of the Panchayat Act gives power to the Deputy Commissioner to prohibit the execution of any resolution, order or notice issued by the President. It further gives power to the Deputy Commissioner to cancel such an order, notice or resolution passed by the Gaon Panchayat. Apart from this the Deputy Commissioner has also been given power u/s 139 to prohibit doing of any act which is about to be done in pursuance or under colour of this Act provided the resolution, notice or order is manifestly perverse, ultra vires and is likely to cause affray or is otherwise against, the public interest. In the present case, it cannot be said that the order of the Deputy Commissioner prohibited any act sought to be performed under the colour of the Panchayat Act, because if the was the case then the only power which is given to the Deputy Commissioner is to prohibit the doing of the act when it is about to be done.

In the present case the auction had already been held and the Deputy Commissioner could not have prohibited the doing of the auction as an act. The ground on which the Deputy Commissioner has acted u/s 139 of the Panchayat Act is that he has treated the order passed by the President of the Anchalik Panchayat accepting the bid of the Petitioner as an order contemplated u/s 139 of the Panchayat Act, but he could only cancel it if the order was manifestly perverse or ultra vires or otherwise against the public interest. The Deputy Commissioner has not even pointed out in his order as to how the order if enforced will be against the public interest or that it was manifestly perverse or ultra vires. The reason given by the Deputy Commissioner is that there has been a violation of the provisions of Rule 65(5) of the Assam Panchayats (Financial) Rules.

We have already referred to Rule 65(5) and it will be clear from a perusal of this rule that the President is empowered to conduct the auction with the assistance of the Executive Officer and the members of the Panchayat. The Deputy Commissioner in his order says as follows:

In this context it will be proper to assess whether the President had observed the rules with regard to the sale of Bazars. Rule 65(5) lays down "The auction shall be held by the President or the Vice-President of the Gaon Panchayat concerned and in case of the Anchalik Panchayat, by the President being assisted by the Executive Officer at the Panchayat''s office. The Panchayat concerned may appoint not more than four of its members to render such assistance to,the officer conducting the auction as he may require " From the procedure adopted by the President for the sale of the Bazar it appears that the rule in this regard was not observed at all. The Executive Officer was not taken into confidence at all, and the President for reasons best known to him, had conducted the auction in his own way.

It is difficult to accept the reasoning of the Depute Commissioner that there was any violation of the provisions of Rule 65(5). It is not denied that the Executive Officer was present and the members were also present. There was thus compliance with the provisions of Rule 65(5). Merely because the Executive Officer was not taken into confidence is no ground to hold that there was violation of Rule 65(5). It cannot be said that the order passed by the President accepting the bid of the Petitioner was either manifestly perverse or ultra vires.

It is contended by Dr. Medhi that although there is no mention of Rule 65(7) in the order of the Deputy. Commissioner, there was, in fact, violation of Rule 65(7) inasmuch as no reasons were given for rejecting the bids other than the bid of the Petitioner. It is also urged that in fact there was no auction at all. Auction necessarily implies that there should be competition amongst the bidders and in the present case the President selected one amongst the bidders who had all offer-id the same highest bid, and, therefore, it cannot be said that there was any auction at all. The Deputy Commissioner has not passed his order on any of these reasons. If the Deputy Commissioner had passed his order on any of these reasons, we could have examined whether violation of this rule would make the order manifestly perverse or ultra vires.

But as the Deputy Commissioner has not based his order on any of these reasons, the question of considering the correctness of the argument advanced does not arise. Even on merits we do not think that Rule 65(7) requires that reasons should be given for rejecting all the bids. Rule 65(7) reads as follows:

Every bid made shall be recorded in writing by the person conducting the sale. He shall not be bound to accept the highest or any bid; but if he does not accept the highest or any bid he shall record his reasons in writing. The lease shall be granted to the person whose bid is accepted, subject to the provisions of the following Sub-rules.

On a plain reading of this Sub-rule (7) reasons have got to be recorded if the highest bid or any of the bids is not accepted. In cases where the highest bid has been accepted it is not necessary under Rule 65(7) that reasons should be given for not accepting all other bids. If the interpretation put by the other side is accepted then the result will be that even in cases where the highest bid is accepted, the President should give reasons for rejecting all other bids. We do not think that such an interpretation is justified on a plain reading of Rule 65(7).

It is contended by Dr. Medhi that the Deputy Commissioner in his order referred to this fact that no reasons have been given for selecting the present Petitioner from amongst the other bidders. As we have pointed out, it is not necessary to give reasons for rejecting all the other bids under Rule 65(7). It cannot, therefore, be said that the order of the President accepting the bid of the Petitioner was either manifestly perverse or ultra vires. It is argued by Dr. Medhi that if certain provisions J of the rules are not followed, the order passed under these circumstances will be manifestly erroneous. The question as to whether the order is manifestly erroneous or not has to be examined on the language and the contents of the order itself and any circumstance pointed out which may invalidate the order itself will not make the order manifestly erroneous.

It may be argued that an order passed without observing the mandatory provisions is ultra vires, but it cannot be said that the order is manifestly erroneous. As we have pointed out that there was no failure to comply with the provisions of Rule 65(7) in the present case, it cannot be argued that the order was ultra vires. The Deputy Commissioner has not based his order on the ground that it was otherwise against the public interest. It is, how over, argued that if the order was passed without observing the procedure provided for under the rules, such an order cannot be in the public interest. It is contended that the statutory restrictions imposed on the President and directions issued for conducting the auction are with a view to ensure impartiality in the settlement and thus are in public interest and any violation of these directions will be against public interest.

As we have pointed out, there was no violation of any of the rules; but, even if that is the underlying policy, the order will not be manifestly against the public interest unless the order itself operates against public interest. Nothing has been shown that the settlement with the Petitioner will be against the public interest. As we have pointed out earlier, the only question is whether the reasons given by the Deputy Commissioner come within the ambit of Section 139 of the Panchayat Act, and, in our opinion, the order of the Deputy Commissioner does not come within the ambit of Section 139. The order was thus without jurisdiction and the Petitioner is entitled to a writ of mandamus directing the Deputy Commissioner not to give effect to his order.

Dr. Medhi argues that the settlement is not final till it is placed before the Anchalik Panchayat. That is not the ground on which the writ claimed for by the Petitioner can be refused. If the settlement is not final before it is approved by the Anchalik Panchayat, we have no reasons to doubt that the rule in this regard will be observed.

We accordingly allow this petition with costs against the opposite parties other than opposite party No. 2, who has not put any objection, which we assess at Rs. 100/- and direct the Deputy Commissioner, Nowgong, not to give effect to his order dated the 11th April, 1962.

S.K. Dutta, J.

I agree.