G. Mehrotra, J. - (1.) ALL these three cases arise out of the same proceeding and can be dealt with by one common judgment. Briefly the facts giving rise to these cases are that on 7th February, 1957, an auction for settlement of fishery No. 23 Chilochi beel along with two other fisheries Nos. 23 and 57 in a group for settling them for three years - 1957 -58, 1958 -59 and 1959 -60 was, held by the Sub -divisional Officer, Barpeta. As many as 5 bidders participated in the auction Harinath Das, who will hereinafter be called the Petitioner and Bharat -Chandra Das, who is the opposite party No. 3 in the petition filed by Harinath and will hereinafter be called opposite party, were two of the bidders. The highest bid in the auction was of Rs. 20,100/ -, given by the Petitioner and according to him, the next bid was that of the opposite party for Rs. 19,000/ -. The auction sale was knocked down at the said amount of Rs. 20,100/ - in the name of the Petitioner and the bid was accepted by the Sub -divisional Officer by his order dated 7th February, 1957. The order is as follows: Sold to the highest bidder Hari Nath Das son of late Ramo Ram Das of Barpeta Town Nawkhandapur at Rs. 20,100/ -.
(2.) THE papers of the auction sale were then forwarded to the Commissioner of Plains Division, Assam, for confirmation of the sale as provided under the Fishery Settlement Rules. The Petitioner further states that he came to know that an appeal was also filed on behalf of the opposite party, challenging the settlement of the fishery by the Sub -divisional Officer with the Petitioner on the ground that he had given a further bid of Rs. 21,000/ - which was not recorded by the Sub -divisional Officer. It was also claimed by Bharat Ch. Das that he was a member of the Namasudra community and thus entitled to be given preference. The Commissioner, while considering the question of the confirmation of the auction sale, appears to have heard the appeal of Bharat Ch. Das also in the absence of the parties and by his order dated 4th April, 1957, refused confirmation of the auction sale in favour of the Petitioner and directed that the said fishery should be settled with Bharat Ch. Das, on payment of Rs. 20,100/ -. The Commissioner's order has been challenged by means of the petition in this Court under Articles 226 and 227 of the Constitution. It is also prayed that the opposite parties Nos. 1 and 2 who are the State of Assam and the Commissioner of Plains Division be directed to forbear to enforce the order dated 4th April, 1957, This petition has been numbered as Civil R. 39/57. The Petitioner has also filed an appeal against the order of the Commissioner of Plains Division dated the 4th April, 1957, refusing confirmation of the settlement of the fishery No. 23 auctioned along with Fishery Nos. 23 and 57 in the Barpeta Sub -division which was settled with the Appellant by the Sub -divisional Officer, Barpeta, by his order of settlement dated 7th February, 1957 for the years 1957 -58, 1958 -59 and 1959 -60 and directing the settlement with the Respondent. This appeal is numbered as Revenue Appeal No. 28 (M)/47. Civil Rule No. 12 (M)/57 arises out of an application filed by Bharat Ch. Das for the issue of a Writ of Mandamus, directing the Sub -divisional Officer, Barpeta, not to prevent him from further fishing in the fishery. This petition was ordered to be listed along with the other two matters. The main question, therefore, to be considered in these cases is about the validity of the order, passed by the Commissioner, The matter was referred to a Special Bench as correctness of a Division Bench decision of this Court, reported in Assam Fisheries Farms and Industries Ltd. v. Development Commissioner, Assam : ILR (1953) 5 Gau 354 : AIR 1953 Gau 155 (A), was doubted by one of the learned Judges of this Court.
(3.) IN the exercise of the powers conferred by Sections 155 and 156 of the Assam Land and Revenue Regulation, 1886 and by Section 6 of the Indian Fisheries Act, 1897 (Act IV of 1897), the Governor of Assam has framed certain rules for the settlement of the fisheries. The first part of the rules deals with the general matters and settlement of fisheries. The term 'fishery' has been defined under Rule 1(a) of the Rules as meaning water declared to be a fishery by proclamation issued under Section 16 of the Assam Land and Revenue Regulation 1886 (I of 1886) and includes Khcos or fishways, dobas and beels; and fish includes shellfish and turtles. Rule 2 of the Rules provides for the maintenance of a Register of the fisheries. Rule 3 which provides for the sale of the fisheries is as follows: The Deputy Commissioner or the Sub -divisional Officer, as the case may be, shall annually fix a date, ordinarily not later than the 15th February, for the sale of all registered fisheries held under leases expiring on the last day of the current year or which at the last previous auctions were reserved from sale under Rule 9. The date fixed shall be proclaimed by the Deputy Commissioner or Sub -divisional Officer, at least a month in advance by a written notice in Form No. 101 of the Assam Land Revenue Manual Vol. II posted at the Sadar and Sub -divisional Cutchery and at the Munslfi and Police Station within the local limits of which the fishery or any part of it is situated. The notice shall state the name of the fishery, the mauza of pargana within which it is situated, and any other particulars that may be last auction (sic) and the term for which it will now be sold, and the date, place, and conditions of sale. Rule 4 then provides for the place of sale and Rule 5 lays down the conditions of sale. The first condition is that the Officer conducting the sale does not bind himself to accept the highest bid or any bid. The purchaser has immediately, after the acceptance of his bid to furnish as security a sum equal to one quarter of a year's revenue and maybe required to furnish within seven days of the date of sale additional security to the satisfaction of the Deputy Commissioner. Immediately after the acceptance of the bid, he is to furnish as security a sum not less than one -eighth of a year's revenue. In case he fails to furnish the initial or the additional security, the fishery is to be resold at his risk. The fishery is also to be resold at the risk of the bidder -purchaser if he fails to execute a counter -part within one month from the date of the auction of the fishery. When the sale has been concluded, a lease and counterpart is interchanged in Forms Nos. 98 and 99 of the Assam Land Revenue Manual Vol II. Rule 8 of the Rules provides that all sales in a district are to be reported to the Commissioner of Divisions for approval in Form No. 100 of the Assam Land Revenue Manual Vol II. Rule 11 which is the material rule to the question in these proceedings is as follows: All orders of a Deputy Commissioner or Sub -Divisional Officer passed under these rules are appealable to the Assam High Court. Orders of settlement, however, will be appealable only after confirmation by the Commissioner of Divisions. Provided that there shall be no appeal against an order of settlement, passed by the State Government under Rule 12. Rule 12 provides that no fishery shall be settled otherwise than by sale except by the State Government. The order of settlement passed by the State Government be final. Provided that the State Government may introduce the tender system of settlement of fisheries in place of sale by auction system whenever it is considered necessary. Rule 11 of the Rules, in my opinion, does not give any right Of appeal against the order of the Commissioner acting under Rule 8 of the Rules. Ail auction sales have got to be reported to the Commissioner for confirmation and any power exercised under Rule 8 by the Commissioner and any order passed by him in the exercise of that power has not been made appealable to this Court under Rule 11 of the Rules. The orders passed by the Deputy Commissioner or by the Sub -divisional Officer have only been made appealable. The other limitation placed under the rules on the right of appeal to this Court is that no such appeal can be filed unless after the confirmation of sale by the Commissioner of Divisions. This provision, in my opinion, clearly indicates that till the auction sale has not been confirmed by the Commissioner, the order of the Deputy Commissioner or the Sub -divisional Officer, accepting the highest bid, remains only a provisional order. The offer is liable to be finalised after it has been confirmed by the Commissioner. It is the final order of settlement which has been made appealable to this Court under Rule 11 and not an order passed by the Deputy Commissioner or Sub -divisional Officer referring the matter for confirmation or that of the Commissioner confirming or refusing to confirm an auction sale. In this view of the matter, the appeal filed by Harinath Das against the order of the Commissioner is not competent. The Commissioner, according to the Petitioner, gave a direction for the settlement of the fishery with the opposite party - Bharat Ch. Das; but that is not a final order of settlement by the Commissioner. It is not even an order of settlement passed by the Deputy Commissioner or the Sub -divisional, Officer, so as to give Harinath Das a right of appeal against that order. It was argued by the counsel for the Appellant that his client has come up in appeal against the order of the Sub -divisional Officer, making settlement with the opposite party, Bharat Ch. Das, in pursuance of the direction issued by the Commissioner; the right of appeal given against an order of settlement includes the right of appeal against the order of refusal to settle and as the effect of the order of the Commissioner had been that the settlement had been made with Bharat Ch. Das and had been refused in favour of his client, he has a right to come up in appeal. The answer to this contention is that in the appeal, the impugned order mentioned is one dated 4th April, 1957 of the Commissioner and no order of the Sub -divisional Officer, passed after the order of the Commissioner dated 4th April, 1957 has been filed nor any prayer has been made to set aside any such order. It is also not clear whether any order of settlement has been passed in compliance with the direction issued by the Commissioner, by his order dated 4th April, 1957. Reference in this connection be made to the case of Nayab Ali v. Mahadev Ch. Das, ILR (1949) 1 Gau 534 (B), which I shall have to refer to later also.;