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TMI Blog1953 (4) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... isheries had to be kept and the Deputy Commissioner was empowered, with the previous sanction of the Chief Commissioner (later Provincial Government), to declare any collection of water to be a fishery. Once a fishery was so declared no person could acquire fishing rights in it except as provided by rules drawn up under section 155. These rules, with alterations made from time to time, were still operative at all dates relevant and material to this case. 3. Put shortly, the effect of these rules at the dates mentioned here was to require the fishing rights to be sold periodically by public auction in accordance with a particular procedure which was prescribed. These sales were called Settlements. Among the conditions of sale were the following :- (1) The officer conducting the sale does not bind himself to accept the highest bid or any bid. (2) The purchaser shall immediately after the acceptance of his bid furnish as security etc. (3) The annual sale of fisheries in a district should be reported to the Commissioner for sanction in Form No. 100. 4. The Form shows that each individual settlement had to be sanctioned. But the rules in force at the dates relevant to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Collector dated 4th January, 1951, in favour of these applications together with the Deputy Commissioner's endorsement latter dated 5th January, 1951, confirming the facts set out in the Sub-Deputy Collector's endorsement and in the applications. The first respondent also made an application to the Parliamentary Secretary on 13th March, 1951, before any final decision was reached. 10. The Deputy Commissioner proceeded to auction the fishery on 24th February, 1951, and on 26th February, 1951, forwarded the bid lists to the Government with a recommendation in the first respondent's favour (his was the highest bid) in the following terms :- The present lessee is managing the fishery well and there is nothing against him. 11. After this, and before the final sanction, Government received still another petition from some of the local fishermen asking for a settlement in their favour. This was on 13th March, 1951. Therefore, by that date Government had six petitions from the local fishermen before it and one by the first respondent as well as the various recommendations made by the District officials. With all this material in its possession Government decided i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contract was complete. 14. The State Government now says in effect, somewhat cynically, that it is not bound by the statutory rules and claims that that gives it the right to recall its previous orders and regrant the fishery to some other person or body more to its liking, or rather in whom it has discovered fresh virtues hidden from its view in its earlier anxious and mature deliberations. 15. Acting on the telegraphic instructions received by him, the Deputy Commissioner conveyed the orders to the first respondent on 22nd March, 1951, and said :- The undermentioned document is forwarded to Srijut Keshab Prosad Singh ......... for information and necessary action. He is further informed that he is not to deposit the 1/4 purchase money and additional security ..... till the decision of the revision petition mentioned in the telegram . 16. Three weeks elapsed and then on 13th April, 1951, the State Government solemnly reviewed its former order and said :- It is reported by the Deputy Commissioner that the Gamiri Kharai-Chaiduar Fishermen Society, Ltd., is constituted by bona fide fishermen. Accordingly, in view of the new circumstances brought forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the settlement in his name was cancelled. 22. The first respondent's reaction to this was to file an appeal to the High Court under rule 190 and at the same time to apply for a mandamus under article 226 of the Constitution. The relief sought was worded as follows :- The humble appellant, therefore, prays that your Lordships would be pleased to set aside the settlement of the fishery with the respondent and restore the settlement of the same with the humble appellant. 23. The High Court, not unsurprisingly on these facts, granted the prayer. It acted under rule 190 as an appellate tribunal and the only question for us to decide is whether it had jurisdiction to do so. The mandamus petition is not before us. The appellant is the State of Assam. 24. There is an ancient presumption under section 114, illustration (h), of the Evidence Act, dating from at least 1872, that official acts have been regularly performed. Strange as it may seen this applies to Governments as well as to lesser bodies and officials, and ancient though it is the rule is still in force. True, the presumption will have to be applied with caution in this case but however difficult the task it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed itself becomes part and parcel of the rules. 29. This is important because one of the statutory safeguards against arbitrary executive action is the appeal to the Revenue Tribunal, which in this case is the High Court. We would be slow to hold that this safeguard can be circumvented by the simple expedient of lifting a sale out of the rules whenever Government finds that convenient. 30. It seems to us that if the intention was to authorise Government to lift the matter out of the rules altogether and to proceed in an executive capacity the word sanction would be out of place, for Government would hardly require its own previous sanction to something which it is itself authorised to do. The sanction must therefore refer to something which some other person or body is authorised to do, and in the context we feel that it can only mean sanction to the Deputy Commissioner to proceed in a manner which is not quite in accordance with the instructions contained in the rules. 31. The next question is, to what extent was a departure sanctioned ? This is to be found in the letter dated 1st February, 1951, addressed to the Deputy Commissioner :- Government desire to settle t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to settle the fishery direct by executive action because of the statute. It would be proper for it to sanction the settlement under rule 190-A in the way it did. Government said it was acting under rule 190-A. It said it had sanctioned the settlement. Whose act was it sanctioning ? Certainly not its own, for one cannot sanction one's own act. Sanction can only be accorded to the act of another and the only other person concerned in this matter was the Deputy Commissioner. Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound. It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules. That vested the first respondent with a good and legal title to the lease. 37. Next followed a similar series of acts cancelling the settlement with the first respondent and resettling the fishery with the rival body. As the Deputy Commissioner was the only authority competent to settle these fisheries, subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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