Orissa High Court
Bhagabati Primary Fishermen'S ... vs State Of Orissa And Ors. on 22 December, 1986
Equivalent citations: AIR1987ORI215, AIR 1987 ORISSA 215, (1987) 64 CUTLT 469 (1987) 1 ORISSA LR 530, (1987) 1 ORISSA LR 530
JUDGMENT Behera, J.
1. The Bhagabati Primary Fishermen's Co-operative Society represented hy its Secretary calls in question in this writ application under Articles 226 and 227 of the Constitution of India the letter addressed by the Subrdivisional Officer, Pipili Irrigation Sub-division, to the Assistant Director of Fisheries, Puri, as per Annexure-7, containing a direction to conduct public auction of the Bhargabi Syphone for fishing for the year 1986-87, as being violative of the principles for settlement of fisheries contained in Annexure-1 issued by the Revenue Department for settlement of fishery Sairat sources with the eligible co-operative societies on consideration amounts equivalent to the averages of lease values fetched during the last three years plus five per cent of the same read with instructions contained in letter No. R-13/76-14757 dt. the 23rd April, 1976 (Annexure-2) issued by the State Government in the Irrigation and Power Department to the Chief Engineer, Irrigation and other authorities that such authorities may adopt Annexure-1. It has been contended by Mr. Pal that the petitioner is entitled to have the fishery right for the year 1986-87 settled with it without public auction. He has also contended that in view of the instructions contained in Annexures I and 2, the Stale Government and its authoritiesare estopped from taking a different stand and putting the Sairat source to public auction.
2. According to the opposite parties, as per para. 6.4.5. of the Orissa Public Works Department Code, Volume-I, notice was issued in accordance with the instructions issued by the higher authorities fixing the auction in respect of the Sairat in question on June 6, 1986. It has been stated in the counter affidavit of the opposite parties that from the year 1970 onwards, the Bhargabi Escape is being put to public auction and leased out annually and whileduring the preceding three years, the bid amounts at the auctions were Rs. 10,128.00, Rs. 6,790.00 and Rs. 9,270.30 respectively, the bid amount for the current year 1986-87 is Rs. 50,000/- offered by the opposite party No. 6.
3. Coming to the question of promissory estoppel, reference has been made by Mr. Pal to the case reported in AIR 1986 SC 806 Union of India v. Godfrey Philips India Ltd. and AIR l986Orissa 163, Sri Jagannath Roller Flour Mill v. State of Orissa. The principles relating to the applicability of this doctrine have been enunciated in the first-mentioned case. In the instant case, no promise had been made by the State or any authority to the petitioner-society for settlement of the fishery right with it. It is not a case where the fishery right has been settled with the petitioner. It follows that the petitioner has not acted on the promise made by the opposite partiesand has not changed its position its prejudice or disadvantage. In the case reported in AIR 1986 Orissa 163 (supra), referred to and relied on by Mr. Pal for the petitioner, certain exemptions with regard to sales tax and octroi duties allowed for a period had been withdrawn by the State. In such circumstances, this Court held thai the doctrine of promissory estoppel would apply to the facts of that case. The contention raised on behalf of the petitioner in this regard must fail.
4. The petitioner banks its case on Annexure-1 issued by the State Government in the Revenue Departmenl with regard to the principles for settlement of fisheries wherejn it has been stated :
"Fishery Sairat sources in the Slate would ordinarily be settled in favour of bona fide co-operative societies, consisting of genuine local fishermen and excluding middle men and speculators, wherever the same exist or come up in future. The societies eligible for this benefit must be non-defaulters and have a generally good record of settling the dues of Govt. in proper time."
These instructions issued by the Revenue Department have been adopted by the Irrigation and Power Department as per Annexure-2.
5. Asaverred in Annexure-1, fishery Sairat sources would 'ordinarily' be settled in favour of bona fide co-operative societies. The word 'ordinarily' is significant. In common parlance, 'ordinarily' means usually, in a large majority of cases. The expression is not used in reference to a case to which there are no exceptions. It cannot obviously mean 'always'. The word 'ordinarily' gives certain amount of elasticity. This term would not necessarily mean 'invariably' and without exception. As has been observed in AIR 1961 SC 1346, Kailash Chandra v. Union of India and AIR 1973 SC 1252, State of Assam v. Basanta Kumar Das, the expression 'ordinarily' means 'in the large majority of cases but not invariably'. The same view has been taken in AIR 1962 Mys 280, Padmanabhacharya v. Slate of Mysore. On the facts of the case and in the context, the expression "ordinarily" used in Rule 4(3) of the Madhya Pradesh Delention Order, 1971 providing for facilities to prisoners had been interpreted to mean "without exception, generally" in AIR 1976 Madh Pra 95, Nirmal Chand Jain v. District Magistrate, Jabalpur. It has been observed in that case that the word "ordinarily" may have different sets of meanings and it would depend upon the context as to what the meaning of the word should be.
6. Fishery Sairat sources exclusively belong to the State. As mentioned in Annexure-1, 'ordinarily' such sources are to be settled with eligible co-operative societies. As would appear from the counter affidavit, the opposite parties had been settling such rights in previous years by public auction. It was open to the authorities either to settle such fishery rights with co-operative societies or put the same to auction which had been done in the instant case and the revenue had considerably increased, as already indicated.
7. The petitioner has not acquired any legal right for enforcement and in such an event, a writ application is not competent. No person has a fundamental right to insist that the State Government or its authority must enter into a contract with him in terms of some rules framed or administrative instructions issued.
8. No statutory rule or administrative instruction has been violated in the instant case. It cannot be said that being bound to perform a particular function, the authorities have failed to do so. No contract has been entered between the petitioner and the authorities and even after the execution of a contract, a writ of mandamus cannot be granted to enforce an obligation flowing from a contract. Reference may be made in this regard to the principles laid down in AIR 1977 SC 2149, Bihar Eastern Cangetic Fishermen Co-operative Society Ltd. v. Sipali Singh.
9. Relying on the principles laid down by the Supreme Court in AIR 1968 SC 718, Union of India v. Anglo Afghan Agencies, AIR 1973 SC 303 Union of India v. K. P. Joseph, AIR 1979 SC 1628 Ramana Dayaram Shetty v. International Airport Authority of India and AIR 1984 SC 363, B.S. Minhas v. Indian Statistical Institute, it has been contended on behalf of the petitioner that administrative instructions or orders conferring rights and imposing duties may be enforceable and administrative authorities should conduct themselves with fairness and propriety and their actions should not be characterised by unequal treatment or arbitrariness. But in the case on hand, it cannot be said that what has been done by the authorities in putting the fishery Sairat source to auction has been done arbitrarily or illegally or in violation of any statutory rules or administrative instructions. No question of discrimination is involved.
10. Questions similar to the ones relating to settlement of fishery rights raised in this writ application had been considered and negatived by a Division Bench of this Court in (1983) 56 Cut LT 209 : (AIR 1983 Orissa 281) Raghunath Behera v. Revenue Divisional Commr., after referring to a number of decisions of the Supreme Court and this Court.
11. For the foregoing reasons, it must be held that the writ application is incompetent and is devoid of merits.
12. The writ application fails and is dismissed leaving the parties to this proceeding to bear their own costs. The order passed by this Court on June 5, 1986 in Miscellaneous Case No. 2269 of 1986 arising out of this writ application directing that the auction be held, but the sale would not be finalised is vacated.
P.C. Misra, J.
13.I agree.