Patna High Court
Shiv Lochan Jha vs State Of Bihar And Ors. on 22 December, 1981
Equivalent citations: AIR1982PAT119, 1982(30)BLJR280, AIR 1982 PATNA 119, 1982 BBCJ 261, (1982) BLJ 404, (1982) PAT LJR 180, 1982 BLJR 280
ORDER
1. In this writ application, the petitioner, Shiv Lochan Jha, has prayed for quashing an order contained in the letter of the Joint Secretary to the Government of Bihar in the Revenue and Land Reforms Department dated the 20th Jan., 1981, directing that the settlement of the Makhana-cum-fishery rights of the tanks of Manigachi Anchal, for the years 1980-81 and 1981-82, be settled in favour of respondent No. 7, for an annual Zama of Rs. 7,000 each year (commencing from the 1st Oct. and ending on the 30th Sept. every year). The petitioner has also challenged the order of the Commissioner of Darbhanga Division, dated the 17th March, 1981 (Annexure 6), by which he refused to interfere with the said order of the Government and observed that the Court of the Commissioner was not the forum where the petitioner should have gone for the cancellation of the impugned order.
2. The petitioner's case is that for the year 1980-81' (1st Oct. 1980 to the 30th Sept. 1981), an open bid was held by the Block Development Officer cum Anchal Adhikari, for settlement of the Makhana cum fishery rights in five tanks of Manigachi Anchal, on the 10th Sept. 1980, at which the petitioner was the highest bidder, having offered Rs. 6,000 per year.
The petitioner deposited a sum of Rupees 3,000 being half of the bid amount, as directed by the Anchal Adhikari, on the same day and the Anchal Adhikari referred the matter to the Deputy Collector Land Reforms, Darbhanga, for approval. On the 16th Sept., 1980, respondent No. 7 filed a petition before the Deputy Collector, Land Reforms, Darbhanga, stating that he was prepared to offer Rs. 7,000 per year, and that either the said rights be settled with him or a fresh bid should be held. On this the Deputy Collector, Land Reforms (respondent No. 5), directed by an order dated the 20th Sept., 1980, that if respondent No. 7 had offered Rs. 9,000, i.e. 50 per cent more than the bid amount, as required by the Government instructions, then he could have considered the question of directing a fresh bid. Respondent No. 7 was informed accordingly. In spite of notice, when respondent No. 7 did not comply with the aforesaid order, on the 6/7th Oct., 1980 the Deputy Collector, Land Reforms referred the matter to the Additional Collector for approval, as the amount of the bid was more than Rs. 5,000.
3. It seems, in the meantime, respondent No. 7 moved the State Government in the Revenue Department, and on the 7th Oct. 1980, obtained an order for settlement of the Shairat in question in his favour for three years, i. e., 1979-80, 1980-81 and 1981-82, at an annual Zama of Rs. 5,100/- only. When the file was placed before the Collector of Darbhanga, by a letter dated the 28th Nov. 1980, he pointed out to the State Government that Respondent No. 7 had himself offered Rs. 7,000/- per year and that, if the settlement could be made at Rs. 5,100/- only, as directed, there would be a loss of Rs. 1,900/- per year. On receipt of the aforesaid letter of the Collector, it seems that the State Government, by the impugned order, contained in the letter of the Joint Secretary, dated the 20th Jan. 1981 (Annexure '5'), cancelled its previous order dated the 7th Oct. 1980, and directed that the settlement should be made with Respondent No. 7 for the years 1980-81 and 1981-82 at the annual Zama of Rs. 7,000/- only, perhaps, on the footing that the year 1979-80 had already expired on the 30th Sept. 1980.
4. The petitioner thereafter moved the Commissioner of the Darbhanga Division in Case No. 186 of 1980-81, and he was asked to deposit a sum of Rs. 10,500/-, i.e., fifty per cent more than the amount offered by Respondent No. 7, which he deposited before the Additional Collector, as directed, but, in view of the Government order, the Commissioner dismissed the application of the petitioner on the 17th March, 1981 (Annexure '6'), observing that the Commissioner was not the proper forum to revise the order of the State Government. It is thereafter that the petitioner has moved this Court on the 8th May, 1981, and this application was admitted on the 15th May, 1981, and operation of the orders impugned (Annexures '5' and '6') was stayed.
5. A counter-affidavit has been filed on behalf of Respondents Nos. 1 to 6 and Respondent No. 7 has also filed a petition in opposition, to which the petitioner has filed a reply and they would be referred to only so far as they are relevant.
6. It will be necessary to refer to certain facts alleged by Respondent No. 7 in his petition. It is alleged that previously the Jalkars in question used to be settle-ed at very low Zama, and when an open bid was held for settlement for the year 1979-80, Respondent No. 7 offered the highest bid of Rs. 5,100/-. It is alleged that as the offer of Respondent No. 7 was much in excess of all previous bids, the District authorities recommended for settlement of the aforesaid Jalkars with Respondent No. 7 for a period of three years, as it would be advantageous, on which the State Government passed an order dated the 7th Oct. 1980, which, on objection by the Collector, as already stated, was recalled by the State Government and the impugned order dated the 20th Jan. 1981' (Annexure '5') was passed. It is the Respondent's case that an agreement was executed and a Parwana was also issued in his favour for three years, and that he has invested money in cleaning etc. of the Jalkar. It is asserted that no writ application is maintainable at the instance of the petitioner.
7. Mr. Prabha Shanker Mishra, learned counsel appearing on behalf of the writ petitioner, has urged that the auction for settlement of the Shairat in question for the year 1980-81 was held on the 10th Sept. 1980, in which Respondent No. 7 not having participated, there was no occasion for the State Government or any authority in the Government to direct the settlement of the Shairat in question to be made in favour of Respondent No. 7 for the year 1980-81, and that the order contained in Annexure 5 is wholly without jurisdiction, Mr. Mishra has also urged that the Slate Government having delegated the authority to settle the Shairat in question and laid down procedure for its settlement after approval by the competent authority, which, in the instant case, would be the Additional Collector, the State Government's action in interfering with the settlement would be discriminatory and hit by Article 14 of the Constitution of India. The further contention on behalf of the petitioner is that in the bid for the year 1980-81, the petitioner was the highest bidder and there was a recommendation for acceptance of his bid, and, even if that bid was annulled, it could be annulled only with a proper notice to the petitioner. This having not been done, there has been a violation of the principles of natural justice.
8. Mr. Kanhaiya Prasad Singh, learned counsel appearing on behalf of Respondent No. 7, has submitted that the said respondent having offered a sum of Rs. 5,100/- annual for three years and his bid having been accepted by the State Government and agreement etc. having been executed in his favour, the writ petition of the petitioner was not at all maintainable, and this Court could not cancel the settlement made in favour of Respondent No. 7 in exercise of the writ jurisdiction.
9. Learned Standing Counsel has supported the State Government's orders in pursuance of which the settlement has been made in favour of Respondent No. 7.
10. The first question to be answered is about the locus standi of the petitioner to maintain this writ application. To answer this question two things have to be clearly borne in mind, firstly, that initially there was a bid for the settlement for the year 1979-80, at which Respondent No. 7 was a bidder, and secondly the notice for auction was admittedly for settlement for one year and the matter was dragged on on account of confusion created by the local officers, especially the Collector in proposing for settlement for the three years in favour of Respondent No. 7 instead of one year, as advertised for. Learned counsel for Respondent No. 7 could not bring to our notice any Government Circular authorising settlement for more years than what had been advertised for aS against this, learned counsel for the petitioner has brought to our notice Government Letter No. 2526/R, dated the 12th Sept. 1978, in relation to settlement of Shairat. This letter seems to have been issued by the State Government in connection with the requests made by Bihar State Fishermen's Co-operative Federation and other Societies, for settlement of perennial and non-perennial Jalkars for longer periods, and while rejecting the Co-operative Societies Federation's request the letter reiterates some of the salient features of the Government policy in regard to the settlement of Jalkars. Relevant for our purpose are Paragraphs Nos. 2, 4, 5 and 6. A reference to these paragraphs makes it abundantly clear that the Government, confirmed its earlier directions for settlement of Makhana-cum-Jalkars for only one year at a time. Relevant portions from the said letter may usefully be quoted :--
11. It is the settled law that the State Government is bound by its own Circular or Instructions, although a citizen is not. In view of the clear circular and direction of the State Government, the settlement in favour of Respondent No. 7 could be only for one year, for which he was a bidder at the auction, i.e., for the year 1979-80, and the local authorities were fully justified in holding the bid for the next year, that is, 1980-81, on the 10th Sept. 1980, in which the petitioner not only participated, but was the highest bidder. There cannot be any doubt that so far as the settlement of the fishery for the year 1980-81 is concerned, he has a vital interest. He was not only an intending bidder, but a bidder at such an auction, where he had deposited half of the bid amount, i.e., Rs. 3,000/- and that there was recommendation for the approval of his bid by the Deputy Collector Land Reforms and Sub-Divisional Officer and the matter was pending before the Additional Collector, when the State Government's order came in. The petitioner, therefore, was undoubtedly a person who had locus standi to challenge any illegal order interfering with a fair consideration of his case for settlement of the Shairat in question for the year 1980-81. We would, therefore, reject the contention of Mr. Singh that the petitioner has no locus standi to challenge the settlement in favour of Respondent No. 7.
12. From the facts stated and the Circular referred to above, it is also abundantly clear that the State Government had no power to order settlement for three years, where initially the advertisement was for settlement for only one year. This will amount to a settlement by private treaty, when different Government Circulars laid down that settlement of such Shairats can be made only by public auction. The State Government, as already held, was bound by its own circulars and instructions, unless the State Government withdrew such circulars and instructions and assumed all powers in itself, which is not the case in the instant case. The State Government's order, therefore, is contrary to the decision of the Supreme Court in the case of Ramanna Dayaram Shetty v. International Airport Authority of India (AIR 1979 SC 1628), where all previous decisions on the point have been considered and which has been followed by the Supreme Court in latter cases, wherein it has been laid down that once the terms and conditions for settlement have been laid down by the appropriate authority, even that authority was not competent to go back from the said terms and conditions, as it may result in undue favour to a particular person, without affording equal opportunity to others, to take their chance after relaxation was made in the terms and conditions of the settlement Thus, there is no escape from the conclusion that the Government order contained in Annexure '5' is not a legal order at all and has to be quashed.
13. Coming to the question, whether in view of the fact that an agreement has been executed between Respondent No. 7 and the State, and that may stand in our way in cancelling the settlement made in favour of Respondent No. 7, it brings us to a sad state of affairs prevailing in the office of the Anchal Adhikari, Manigachi. It should be remembered that on the 15th May, 1981, we stayed the operation of the State Government's order contained in Annexure '5', meaning thereby that no settlement should be finalised during the pendency of the writ application, after the 15th May, 1981, From the order of the Anchal Adhikari dated the 6th April, 1981, it appears that Respondent No, 7 had not deposited Rupees 3,500/-, i.e., the other half of the annual Jama fixed by the State Government for settlement, i.e., Rs. 7,000/-, for the year 1980-81, and in that regard it was directed as follows :--
It is urged by Mr. Mishra that the last line in the said order (which we have underlined) is an interpolation, as it is wholly inconsistent with what precedes the same. When the order stated that the sum of Rs. 3,500/- due in respect of the settlement to be made for the year 1980-81 was not deposited till the 6th April, 1981, and a direction was made to deposit the same within a month from that date, failing which the settlement, as directed, would be cancelled, the question of the Ekrarnama being accepted on that dale and the direction for the issue of the Parwana are wholly inconsistent. On a reference to the original order-sheet of the Anchal Adhikari it is apparent that it is a subsequent addition. Besides, it is in direct conflict with the earlier part of the order, and appears to have been subsequently interpolated to get over the stay order passed by this Court on the 15th May, 1981, as urged by Mr. Mishra. Mr. Mishra has also pointed out that there is an interpolation in column No. 1 of the next order dated "2-5-1981", which would be "8-5-1981", but has been later interpolated to read as "2-5-1981". There is no doubt some overwriting in the digit of the date, which now appears to be '2'. The said order reads as follows :-- Mr. Mishra has further pointed out that in the next order also, which appears to be dated "8-6-1981", there is some overwriting with regard to the digit of the month and even the Anchal Adhikari has cut out the date below his initial and has rewritten it as "8-6-1981".
14. From the order-sheet it does not appear that the amount of Rs. 3,500/-was deposited even up to the 8th June, 1981. It is, therefore, surprising, how an agreement could be executed for such a settlement, as noted in the order dated the 6th April, 1981, and a direction made for issue of the Parwana, when that order itself recites that according to the Government directions, six months before the close of the year of settlement, the entire amount of settlement has to be deposited (relevant portion we have underlined in the order quoted above), The year of settlement would expire in the month of Sept. 1981, and, six months prior to that would have been in the month of March, 1981. In spite of our repeated asking, the respondents could not produce anything to show that the balance amount of Rs. 3,500/- was deposited before the 6th April, 1981, or even till the 8th June, 1981. Such a shady agreement, even if made, obviously cannot stand in the way of this Court in cancelling an illegal settlement in exercise of its writ jurisdiction.
15. So far as the period 1979-80 is concerned, Respondent No. 7 alone seems to be in the field. So far as 1980-81 is concerned, it is already over. What is left now is the settlement for the year 1981-82. After quashing the State Government's order contained in Annexure '5', we direct that the settlement for the year 1981-82 be made afresh by public auction after proper advertisement at an early date. As the settlement in respect of the earlier two years, namely, 1979-80 and 1980-81 is already over, we are not expressing any opinion as to what would be the equity between the State Government and Respondent No. 7, nor it is necessary for us to express any opinion on that question.
16. This writ application is accordingly allowed and the order contained in Annexure '5', is quashed. To be on the safe side, the order of the Commissioner, which has only refused to interfere with the order, is also quashed. In the circumstances of the case, we make no order as to costs.
17. Before we part, we leave the matter open to the Collector of Darbhanga (Respondent No. 3) to look into the matter regarding the functioning of the office of the Anchal Adhikari, Manigachi, about which serious allegations have been made before us with reference to the order sheet, as already mentioned.