Jaswant Singh, J. - (1.) This appeal by special leave is directed against the judgment and order dated August 20, 1976, of the High Court of Judicature at Patna in Civil Writ Judicial Case No. 1463 of 1976 (filed by respondent No. 1) restraining the appellant and respondents 2 to 4 herein from acting on the basis of letter No. 10/S-4032/76-1976 R dated June 29, 1976 addressed by the Department of Revenue and Land Reforms Government of Bihar to the Deputy Commissioner Santhal Pargana, Dumka (which formed Annexure - 4 to the aforesaid writ petition) and directing respondent No. 2 to execute the lease of the fishery rights in question in favour of respondent No. 1 and to put him in possession thereof, if not already done.
(2.) The facts and circumstances giving rise to this appeal are:The appellant which is a co-operative society commenced taking settlement of Gangapath Islampur Jalkar, bearing Tauzi No. 614 (hereinater referred to as the Jalkar) immediately after its establishment and registration in 1950 (A.D.). The fishery rights in the Jalkar which were settled with the appellant for the year 1974-75 as theretofore was to run from July 1, 1974, to the end of June, 1975 at the Jamma of Rs. 1,50,000/-. At the end of the said year, it was discovered that the appellant had defaulted in payment of the Jamma to the extent of Rs. 66,869/-. The settlement of fishery rights in the Jalkar for the period commencing from July 1, 1975 to June 30, 1976 was made in favour of respondent No. 1 by respondent No.2 through its Revenue Department as a result of the public auction at which the former offered the highest bid of Rs. 1,65,000/-. In February, 1976, respondent No. 1 made a representation to the Revenue Department of the Government of Bihar praying for a remission of Rs. 75,000/- in the amount at which the settlement had been made in his favour on the ground that he had suffered a heavy loss during the aforesaid period of settlement as a result of the unlawful activities of the members of the appellant society. In the alternative, he prayed that in case the State Government was not in a position to grant the remission, the settlement of fishery rights of the Jalkar be continued with him for a further period of three years at the same amount in order to enable him recoup the aforesaid loss suffered by him. After some inquiry and consideration of the matter, the Revenue Department of the Government of Bihar ordered that the settlement of the Jalkar should continue with respondent No. 1 for the years 1976-77 and 1977-78 at Rs. 1.65,000/- per year. The Government, however, made the deposit of the settlement fee of Rs. 1,65,000/- by respondent No. 1 a sine qua non to the issue of the order of settlement. An intimation of this order was given by the Government to its Deputy Commissioner, Santhal Pargana, Dumka, vide its letter No. 10-S-4032/76 R dated April 30, 1976 forming Annexure-1 to the writ petition. A copy of this communication was also sent to respondent No. 1 with the direction that he should deposit Rupees 1,65,000/- before the issue of the settlement order for the aforesaid two years. In compliance with this order, respondent No. 1 deposited a sum of Rs. 1,65,000/- on May 3, 1976, vide challan No. 18 (Bank) dated May 3, 1976 and by his letter of the even date he requested the Sub-Divisional Officer Sahibganj, to issue the patta of settlement of the Jalkar for the years 1976-77 and 1977-78 in his favour. Respondent No. 1 also communicated the fact of the deposit by him of Rs. 1,65,000/- to the Secretary to the Government of Bihar, Revenue Department, by telegram dated May 5, 1976. However, taking a favourable view of the representations made by the appellant on February 18, 1976 and March 9, 1976 to its Revenue Minister and the Chief Minister respectively, the Government of Bihar changed its mind and informed the Deputy Commissioner of Santha Paragana, Dumka vide its letter No. 10/S4032/76-1976-R dated June 29, 1976 that it had "taken the decision that settlement of the aforesaid Jalkar with the Society (ie. the appellant) be done for the year 1976-77 on the additional conditions (besides those laid down by the prescribed rules and conditions) that it would make the deposit of all earlier arrears ofRs. 58, 868/- along with the amount of settlement of Rs. 1,65,000/- for this year (i.e. 1976-77) in three equal instalments; the first instalment to be deposited before taking the settlement and within a week from that date. It was made claear in the concluding part of the communication that in case the appellant failed to make the deposit as aaforesaid, the settlement be issued by highest bid. One June 30, 1976, when respondent No. 1 went to obtain the dakhil parwana, he is stated to have been informed of this subsequent decision of the State Government. Averring that he had been put to a considerable financial loss as a result of the aforesaid subsequent order of the Government settling the fishery rights in Jalkar in favour of the appellant, respondent No. 1 filed a petition under Article 226 of the Constitution in the High Court of Judicature at Patna on July 2, 1976 praying that the aforesaid order settling the fishery rights of the Jalkar with the appellant be quashed by a writ of a certiorari and the State Government be directed by a writ of mandamus to execute the lease in his favour for the years 1976-77 and 1977-78 and not to disturb his possession over the fishery right in question during the currency of the term of the lease. The respondent also prayed for such other orders, as the Court might think fit and proper.
(3.) The writ petition was contested by the appellant as also by respondents Nos. 2 to 4 herein. In the counter affidavit jointly filed by them in opposition to the petition, respondent Nos. 2 to 4 averred inter alia that there was no complete contract and hence no formal agreement was executed between the State and respondent No. 1 and no parwana was issued in favour of the latter; that the State had full right and authority to revoke its decision before execution of the agreement and that in view of the well established principles, the settlement of the Jalkar had to be given to the appellant if it was willing to take the lease. The respondents also denied their liability for the expenses alleged to have been incurred by respondent No. 1 in connection with the preparation for the lease ordered in his favour by the Government vide the aforesaid Annexure - 1 to the writ petition. They, however, admitted that the appellant indulged in unlawful activities for four days in 1975-76 which had caused a meagre loss to respondent No. 1. In the counter affidavit filed by it, the appellant while denying that it was a defaulter, averred that its petion for remission was pending before the Remission Committee appointed by the State; that the Assistant Registrar and the Registrar of the Co-operative Societies had recommended the settlement of fishery rights of the Jalkar in its favour and on representations made by it to the Revenue Minister and the Chief Minister, the government of Bihar had, in conformity with mandatory order and instructions, issued an order of settlement in its favour on June 28, 1976, that pursuant to that order, it made the necessary deposit by 10.35 A. M. on July 1, 1976 and that respondent No. 1 had no right to challenge the settlement of the fishery rights of the Jalkar in its favour.;