Ramchandra Shukla vs State of Rajasthan and Others

Farooq Hasan, J.—This first appeal arises out of judgment of the learned trial Court dismising the appellant''s suit for Rs. 56,0007-.

The plaintiff instituted a civil suit against the State of Rajasthan, Director of Animal Husbandary, the Deputy Director, Fisheries and also making Rajkumar as Proforma defendant, praying therein for:

(i) the defendant Nos. 1 to 3 be directed to pay the plaintiff Rs. 56000/-towards loss incurred by him on account of the delay in issuing the licence and resulting in depriving him of fishing during period from 1.10.72 to 28.2-.73.

(ii) alternatively the defendant Nos. 1 to 3 be directed to pay the plaintiff Rs. 55,5551- as proportionate amount of the aforesaid period of five months.

Factual matrix

In an auction of 8th September, 1972 in respect of right of fishing in Silised dam (bundh) district Alwar), the highest bid in a sum of Rs. one lac being of the plaintiff & proforma defendant No.4, was accepted by the auction Committee in the presence of the Director, Animal husbandary subject to his confirmation. One fourth amount of the auction bid worth Rs. 25,0007- was deposited by the plaintiff. Admittedly, the defendant No.2 accepting the plaintiff''s highest bid, recommended to the Government for according its administrative sanction wide his fetter dated the 30th September, 1972.

However, without any communication as to the fate of the plaintiffs aforesaid highest bid in the auction of 8th September, 1972. the defendants Government functionaries re- auctioned fishing rights in respect of Silised dam on January 20, 1973. Against such reauction the plaintiff presented S.B. Civil Writ Petition No. 95/1973 before this Hon''ble Court at Jodhpur which, after, return to the writ petition by the State Government, culminated in favourable decision to the plaintiff on February 21, 1973 with the following conclusions:

The circumstance of the present case are exactly similar. In the present 1992 WLN Ramchandra Shukla v. State of Rajasthan and Ors. 581 case, the director had recommended to the Govt. vide his letter dated 30th Sept., 1972 to accord sanction to the highest bid of the petitioner which in the eye of law is nothing but the acceptance of the bid by the Director. Under the Scheme of the Act and the Rules, it is only the Director who is the ultimate authority to accept the bid. The Government does not come at all in the picture, and, therefore, when the Director recommended the case of the petitioner that his highest bid may be confirmed, it would tantamount to the acceptance of the highest bid by the Director. In these circumstances, the petitioner has a right to demand the issuance of a licence for carrying the operation of fishing in Silised Bundh for the period for which the auction had taken place.

The writ petition is, therefore, allowed. The respondents Nos. 1 and 2 arejiereby directed to issue a licence in favour of the petitioner within a week. The petitioner shall get his costs from respondents No. 1 and 2.

After the decision of this Court, admittedly, the plaintiff deposited balance bid money worth Rs. 75,000/- alongwith security deposit of Rs. 5,000/- and thereupon the plaintiff was accorded license No. 692 on March 1,1973 permitting him to fish in the water of Silised dam upto June 30,1973.

The plaintiffs'' case is that in fact, he should been permitted to fish in Silised dam water from October 1, 1972 but, on account of whims, and caprice on the part of the defendant Nos. 2 & 3 the issuance of license permitting him to fish from October 1, 1972, was delayed till redressai of his grievances by this Court in his writ petition, and thus he was, as was found by this Court, itself, in writ petition, ibid, deprived of his full benefits and enjoyment of right out of the contract of fishing in the water of Silised dam in an arbitrary manner and it resulted in incurring losssess not less than worth Rs. 56.000/- for period from October 1,1972 to February 27,1973 and in this manner, he could only enjoy the contractual rights only for four, months instead of nine months of which period license fee was charged from the plaintiff.

Avering in the plaint that the plaintiff had to enjoy contractual rights of fishing under the impugned auction from 1.10.1972 to 30.6.1973 i.e. for nine months but, by issuing the license on 1.3.1973 he could have utilised the same upto 30.6.73 i.e. only four months on account of the delayed issue of the license which resulted in deprivation of fishing in the water Silised dam for full five months, alternatively it has been claimed that the pliaintiff is entitled to the refund of the proportionate ratio 5:9 i.e. to the tune of Rs. 55,555/-, of the licence fee deposited by him.

The defendants filed their written statement. Admitting the filling of the writ petition by the plaintiff and the decision in his favour thereon, the defendants State functionaries contended in written statement that under the statutory Fisheries Rules framed under the Fisheries Act there was no period provided for confirming the sale, inasmuch as soon as the plaintiff deposited Rs. 75,0007- along with security money after acceptance of the plaintiff''s writ petition, the licence was issued in his favour and according to the defendants State, no liability can be fastened on the State for the delay in issuing the license.

On the basis of the pleadings of the parties, the following issues were framed by the trial Court:

(1) Whether it was incumbent on the plaintiff to have paid the balance of Rs. 75,0001/- before the issue of licence and he licence could be issued only thereafter?

(2) Whether he suit is not triable by this Court?

(3) Whether the notice served on the defendants n/s BO, CPC is not valid?

(4) Is he suit not mainatiable for the various grounds pleaded by the defendants?

(5) Whether the plaintiff suffered a loss of Rs. 56,000/- due to delay on the part of the defendants in issuing the lincence to him?

(6) Whether the plaintiff is entitled to get back Rs. 55,555/- from the defendants out of the acution money on account of proportionate amount of the period of five month?

(7) Relief to which the plaintiff is entitled?

The plaintiff & the defendants led their evidence is support of their respecive case. After hearing both the parties, the learned trial Court dismissed the plaintiffs suit on the basis of conclusions recorded while deciding issue Nos. 5 & 6. Since no arguments were canvassed by the defendants'' counsel and moreso, issue Nos. 2, 3 & 4 were not presed by the counsel for the defendants--State functionaries, these three issues were decided against the defendant Nos. 1 to 3. While deciding issue No. 1, taking into consideration and referring to Rule 6 of the Rajasthan Fisheries Rules, 1958, the trial Court observed that before issue of the licence, it was necessary for the plaintiff to deposit Rs. 75,000/- (balance bid money and only upon he deposit of the said balance money, the licence could have been issued.

While dealing with issue Nos. 5 & 6, the learned trial Court, itself, observed that it was correct that plaintiffs bid of 8th September, 1972 was accepted, he deposited Rs. 25,000/- bu the confirmation of his auction bid had to be done by the Director-while was not done, so, neither the plaintiff deposited balance bid money of Rs. 75,000/- alongwith security amount nor the defendants issued licence. It further observed that it was correct that the defendants delayed the issue of the licence which was not proper and obviously because of that, this Court directed the defendants to issue the licence in favour of the plaintiff But, that it finched observing that simple because of this delay the plaintiff But, that it flinched observing that simple because of this delay the plaintiff could not bring the suit for damages; and in this regard it assigned a reason that since the plaintiff had deposited a huge amount so as to enter into the licence knowingly that the last date for fishing under the licence was 30.6.1973, he was estopped from raising any claim on the pre-text of the alleged delay, particularly when it was not proved as to on whose part the delay was committed by which of the officers, and as to how the State Government was responsible for such delay. Even the learned trial Court consequently also held the plaintiffs suit not maintainable for the refund of proportionate amount of licence fee of five month''s period (1.10.72 to 27.2.1973) to the tune of Rs. 55,500/-. In ultimate conclusion, the trial Court dismissed the suit of the plaintiff-appellant. Hence this appeal.

Before diverting to the conclusions on the questions raised by the parties on merits, I must has ten to reproduce herein below decisive conclusions recorded by the trial Court which are in the nature of clarifactory admissions-

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Taking the aid of the afore-quoted clarifactory conclusion recorded by the trial Court, itself, holding the contesting defendants as responsible for the delay in issuance of the licence in question, Shri J.M. Jain learned Counsel for the plainiff-appellant contended that despite the afore quoted clarifactory conclusions the dismissal of the plaintiff''s suit was totally not sustainable, because according to the learned Counsel, once it has been found that the delay in issuing he licence after accepting the bid in favour of the plaintiff, was on the part of the contesting defendants-State functionaries, there remains nothing hardly to hold the plaintiff disentitled to the claim of damages.

Shri Jain then urged that it is/was not the defendants'' case that the plaintiff delayed the deposit of the balance licence fee/bid money and/or the security money. According to Shri Jain, had he defendants Director Animal Husbandry & Fisheries not acted at their whims & caprice in an arbitrary manner and in violation of the Fisheries Rules & the legislative policy to grant the licences for fishing, specially breach of Rule 5-as was found by the High Court in plaintiffs writ petition No. 95/73 vide judgment dated February 21, 1973, the licence would have been issued immediately after acceptance of highest bid of the plaintiff by the Director when his case was recommended, i.e. on 30.9.1972 and from that date, the plaintiff has been entitled to his rights of fisheries in the Silised dam and naturally he would have started earning out of fisheries till the end of the contract in pursuance of the auction which took place on September 8, 1972.

Shri R.K. Sharma appearing for the contesting defendants, on the contrary, contended reiterating the pleas raised in the written statement that there is a statutory rule for confirmation of the bid and the procedure is required to be complied with, inasmuch as no time limit is prescribed for sanction, and in this connection, he referred to the General Financial Rules and according to him, as per the General Financial Rules, it is for the Finance Department to refuse or accept the confirmation of the auction. Such a contention that it is for the Finance Department to refuse or accept the confirmation of the auction, is bizzare and barren of force in view of the legislative mandate, i.e. Rajasthan Fisheries Rules framed under the Fisheries Act, to grant the licences for fishing in a particular manner. Further, after the decision of this Court in plaintiff''s writ petition, ibid, wherein it has clearly been held (quoted above) that under the Scheme of the Fisheries Act and the Rules made thereunder, it is only the Director who is the ultimate authority to accept the bid; there was was no necessity for the Director to have referred the matter for according a sanction/confirmation to the auction, to the Government or the Finance Department thereof under General 584 High Court Reports 1992 (2) WLN Financial Rules, That being so, this Court in plaintiff''s writ petition, as stated above, held that the Director ought to have confirmed the auction after acceptance, and on the same anology, the learned trial Court found that it was correct that the defendants delayed the issue of the licence which was not proper.

The question of depositing the remaining balance bid money alongwith security money would have arisen only after the bidder like the plaintiff was asked or communicated with acceptance/confirmation of the auction bid before issuance of the licence, as has been found by the learned trial Court. Not a single document has been adduced in evidence by the defendants to show that any communication as said above was sent to the plaintiff before issue of the licence or the re-auction. Thus, it does not lie in the mouth of the defendants now to plead that he plaintiff did not deposit the requite money in time and he had also not taken security amount of Rs. 5000/- in time resulted in delay; especially in view of the above quoted clarifactory conclusions as to the holding the defentants responsible for the delay in issuing the licence, and this conclusion has not at all been challenged by the defendants before this Court.

Unquestionably, the period of licence for which the advertisement was issued on December 26, 1971 and the auction had taken place on September, 8, 1972, was to end on June 30, 1973, conferring the rights of fisheries in certain waters in the Silised dam. Further there is no dispute that in the auction took place on September 8, 1972, the highest bid was of the plaintiff and l/4th of the auction money (Rs. one lac) that is, Rs. 25,000/- was deposited by him; and the petitioner''s bid was accepted by the auction Committee subject to the confirmation by the Director of Anjmual Husbandary, as provided in rule 5 of the Fisheries Rules Under rule 5, so also in view of the decision in plainiff''s writ petition it was only the Director who was the ultimate authority to accept the bid. It is also not disputed that the Director had recommended to the Government vide his letter dated 30th September, 1972 to accored sanction to the highest bid of the petitioner. In this sate of admitted position proved in the evidence on record, the faulter was the Director because he, despite being the ultimate authority under Rule 5 of the Fisheries Rules to accept the bid, did not confirm the plaintiffs bid, rather referred the matter to the Government deviating from legislative policy to grant the licences for fishing whereas the Government does not come at all in the picture; and his deviation resulted in dealy of five months in grant of the licence, in question, otherwise, immediately after acceptance of the bid of the plaintiff who had also been allowed to deposit l/4th of the total auction money (Rs. one lac), that is Rs. 25,000/- as first instalment under Rule 6 of the Fisheries Rules, as would be evident from the Director''s own letter dated 30th September, 1972, the only act remained to be done under the Rules was to issue a licence in favour of the plaintiff on 30th September, 1972. And, the plaintiff was entitled to grant of licence w.e.f. 30th Septmeber, 1972, as was found by this Court, in case the Director would not have deviated from legislative policy (referred to above).

Thus viewed, the conclusion recorded by the trial Court that there was no evidence to establish as to which of the officer caused the delay and as to how the Government is responsible, is totally wrong and it smacks of misreading of evidence on record, and is, therefore, not sustainable, in the eye of law.

The decks are now clear. Undoubtedly, as stated above, the period of licence conferring the rights of fisheries in the water of Silised dam was to commerce from 1.10.1972 and to end on 30.6.1973, and the matter of grant of licence was delayed for five months (from 1.10.1972 to February, 1973) during which he was deprived of carrying the operation of fishing in Silised dam and he was allowed to carry the operation of fishing by grant of licence on 1.3.1973 till 30.6.1973, i.e. for four months out of nine months for which the auction had taken place on September 8, 1972, and for which licence fee was charged at Rs. one lac which was his bid in the auction and accepted by the defendants.

The licence fee was to be paid and has been paid for carrying in the operation of fishing in Silised dam for nine months for which the auction had taken place on September 8, 1972, and the fish taken out from the waters would have been marketed by the plaintiff for his advantage for auction period of nine months, but on account of the delay and deviations from the legislative policy on the part of the Director, as discussed above, the plaintiff was deprived of fishing in the water of Silised dam for the period of five months consisting of October, November, December, ''72, January & February, ''73, during these five months, there is evidence on record, in northern India there has always been big market for fish. Therefore, the defendants deprived the plaintiff of earning profits out of marketing the fish taken out from the waters in the Silised dam for these five months without any fault on his part. That apart, from the evidence on record it is estabished that when the auction was for the period of nine months and for which, the bid was given to Rs. one lac, then the plaintiff was to be allowed to operate fishing for nine months against the auction money/licence fee of Rs. one lac. but since the plaintiff has been allowed to operate fishing only four months, logically proportionate licence fee would have been charged for four months operation, and thereby the plaintiff ought to have been refunded the proportionate fee for five months in an amount of Rs. 55,555/-. The learned trial Judge has eschwed this significant aspect of the matter causing miscarriage of justice. Keeping in view the facts and circumstances of the case appearing in the plaintiff''s evidence, the learned trial Judge in all fairness ought to have measured the quantum of damages to the extent of proportionable refund of the licence fee to the plaintiff who was deprived of fruits of the licence for carrying the operation of fishing in Silised for the period for which the auction had taken place and for which the plaintiff had given his bid worth Rs. lac., for nine moths, on account of the latches and inactions on the part of the defendants functionaries.

For reasons stated, ut supra, this appeal is allowed; the judgement & decree of the trial Court are set aside; and as held above, since the plaintiff is entitled to the proportionate refund of the licence fee worth Rs. 55, 525/- because he was deprived of carrying the operation of fishing in Silised dam for five months (October, 1972 to February, 1973) out of total period of nine months for which the auction had taken place on September 8, 1972, his suit is decreed for Rs. 55,5557- with costs throughout. A decree be drawn accordingly. The plaintiff shall also get costs of this appeal.