l Appeals Nos 176 and 176 A of 1952
Appeals by Special Leave granted by the Supreme Court on the 20th February 1952 and 23rd May 1952 respectively from the Judgment and Order dated the 6th December 1951 of the High Court of Judicature in Assam at Gauhati in its Revenue Appellate Jurisdiction Deka J in Revenue Appeal No 65 M of 1951
C K Daphtary Solicitor General for India Nuruddin Ahmed with him for the appellant in Civil Appeal No 176
B B Tawakley K B Asthana with him for the respondent in Civil Appeal No 176
R K Chaudhury Jai Gopal Ghosh and R N Tikku with him for respondent No 2
in Civil Appeal No 176 and appellant in Civil Appeal No 176 A 1953
April 14
The Judgment of the Court was delivered by BOSE J
This is a curious case in which the State Government of Assam having granted the first respondent a lease later cancelled its grant and regranted it to another party and now contends that it is not bound by the laws and regulations which ordinarily govern such transactions
Assam is blest with fisheries which are under the control of and belong to the State Government
Periodically the fishing rights are eased out to licensees and the State derives considerable revenue from this source
So valuable are these rights that as long ago as 1886 it was considered undesirable to leave such a lucrative source of revenue to the unfettered 867 discretion and control of either the Provincial Government or a single individual however eminent
Accordingly legislation was enacted and Regulation I of 1886 The Assam Land and Revenue Regulation 1886 was passed into law
A Register of Fisheries 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
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  1The officer conducting the sale does not bind himself to accept the highest bid or any bid
2The purchaser shall immediately after the acceptance of his bid furnish as security etc
3The annual sale of fisheries in a district should be reported to the Commissioner for sanction in Form No 100
The Form shows that each individual settlement had to be sanctioned
But the rules in force at the dates relevant to this case permitted a departure in these words  Rule 190 A
No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government
 There is also the following rule  191
Fisheries should be settled to the best advantage but subject to this condition the agency of middlemen as lessees should be done away with as 868 far as possible
To effect this the fishery area should be broken up into blocks of such size that the actual fishers may be able to take the lease which should be given for preference to the riparian land occupants or to the actual fishermen
The endeavour of the District Officer should be to do away with the middlemen by finding out who the sub lessees are and trying to come to terms with them
 The Rules also made provision for an appeal to the Revenue Tribunal the High Court acted as such in the following words  190
All orders of a Deputy Commissioner or Sub Divisional Officer passed under these rules are appealable to the Revenue Tribunal
 The first respondent held previous leases of the fishery with which we are concerned for a number of years
The last of these was to expire on 31st March 1951
Shortly before its expiry there was agitation by way of petitions and memorials by some of the local fishermen asking in effect that rule 191 be given effect to though the applications do not actually mention the rule
These applications six in number range in date from 27th October 1950 to 13th March 1951
They were addressed to various officials ranging from the Chief Minister and the Revenue Minister to the Secretary to Government and the Parliamentary Secretary and the Deputy Commissioner
Government therefore had all the facts fully before it
In view of these applications Government decided to settle the fishery direct and wrote the following letter to the Deputy Commissioner on 1st February 1951 Government desire to settle the above mentioned fishery direct under rule 190 A
I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement
 By that date Government had four of the six applications to which we have referred before it
In addition it had the recommendation of the Sub Deputy Collector 869 dated 4th January 1951 in favour of these applications together with the Deputy Commissioner s endorsement letter 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 ail application to the Parliamentary Secretary on 13th March 1951 before any final decision was reached
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 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 in favour of the first respondent and on 17th March 1951 wrote to the Deputy Commissioner with a copy to the Development Commissioner as follows  Government sanction settlement of the Chaiduar Brahmaputra and Kharoibeel fishery under rule 190 A with the existing lessee Shri Keshab Prosad Singh at an annual revenue of Rs 17700 for a term of three years with effect from the 1st April 1951 on the usual terms and conditions
 The Deputy Commissioner conveyed this sanction to the first respondent on 21st March 1951 and called on him to make the necessary deposits
The sanction is in the following terms  You are hereby informed that Government have allowed settlement of Chaiduar Brahmaputra and Kharoibeel fishery with you at Rs 17700 per year 870 for 3 years with effect from 1st April 1951
You are therefore directed to deposit the 1 4 purchase money amounting to Rs 4425 on 28th March 1951 and the balance of Rs 13275 in cash on 31st March 195 1 failing which the settlement granted is liable to be cancelled
 According to all notions of contract current in civilised countries that would have constituted a binding engagement from which one of the parties to it could not resile at will and had the first respondent tried to back out we have little doubt that the State Government of Assam would and quite justifiably have insisted on exacting its just dues
But the State Government did not feel itself hampered by any such old fashioned notions regarding the sanctity of engagements
On the very day on which it passed its orders in the first respondent s favour 17th March 1951 it received two more petitions
They emanated from the same sources as before and said nothing new but they asked for a reconsideration of the orders just passed
Had Government recalled its orders then and there possibly no harm would have been done beyond exposing its vacillations to a limited official circle
But it allowed five davs to pass and then the Revenue Secretary wired the Deputy Commissioner not to recall the orders of Government but to stay delivery of possession pending what the Revenue Secretary was pleased to call further orders of Government on the revision petitions
But by then it was too late
The acceptance of the bid had already been communicated to the first respondent and by all ordinary notions the contract was complete
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 virtueshidden from its view in its earlier anxious and mature deliberations
Acting on the telegraphic instructions received by him the Deputy Commissioner conveyed the orders to the first respondent on 22nd March 1951 and said 871 The under mentioned document is forwarded to Srijut Keshab Prosad Singh for information and necessary action
He is further informed that he is not to deposit the 14th purchase money and additional security  till the decision of the revision petition mentioned in the telegram
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 by the above Society the review petition is allowed and the previous orders of Government dated the 17th March 1951 is modified
The Chaiduar Brahmaputra and Kharaibeel fishery is accordingly settled with the Camiri kharaiChaiduar Fishermen Society Ltd  The manager of this Fishermen s Society is one Maniram Das
His name was put forward by 205 members who claimed to be bona fide Assamese fishermen in the petitions of 27th October 1950 and 21st December 1950 also by Manirani himself on behalf of this Society on 2nd January 1951
Their claims were endorsed by the Sub Deputy Collector on 4th January 1951 and by the Deputy Commissioner on 5th January 1951
The same claims were again made by Manirani Das on behalf of the Society on 23rd January 1951
The  new circumstances  said to have been discovered on review was the following statement made by the Deputy Commissioner on 3rd April 1951  Gamiri Kharai Chaiduar Society is formed by bona fide fishermen The previous statement of the Sub Deputy Collector made on 4th January 1951 was The applicants are all Kaibarta people in the district of Darrang whose sole business is to deal with 872 fish 
The applicants are Assamese people
In view of this and in view of the fact that these people have been recommended by respectable persons I suggest that Kharai Chaiduar fishery the one in question here  may be settled with them to encourage them to compete with the other fishermen coming from outside Assam
 The Deputy Commissioner s endorsement on this the same Deputy Commissioner dated 5th January 1951 runs  The petitioner Maniram Das is an actual fisherman as will appear from the report of the Sub Deputy Collector As observed by the Sub Deputy Collector  it is a fact that the indigenous fishermen cannot compete with the upcountry people in open auction To characterise the later statement of the Deputy Commissioner dated 3rd April 1951 as disclosure of a new circumstance betrays a cynical disregard for accuracy on a par only with the Assam Government s cynical disregard for its pledged word
The Deputy Commissioner was informed of the Government s revised decision on 13th April 1951 and on 16th April 1951 the fishery was settled with Maniram Das and according to the first respondent the settlement in his name was cancelled
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
 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 873 mandamus petition is not before us
The appellant is the State of Assam
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 seem 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 is our duty to try and find a lawful origin for as many of the acts of the appellant s Government as we can
Now as we have seen prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive discretion of either Governments or officials and were placed under statutory regulation and control by sections 16 and 155 of the Assam Land
and Revenue Regulation of 1886 and we have already referred to the elaborate set of rules which were drawn up in pursuance of that Regulation
It follows that no fishery can be settled except in accordance with those Rules
It was not disputed that apart from rule 190 A which we are now called upon to construe the Deputy Commissioner alone could effect a settlement and as we have shown he was bound
to follow a prescribed procedure also that his settlement was subject to the sanction of the Commissioner
Rule 190 A permits a departure but we do not consider it necessary in this case to determine the exact extent of the departure permitted because the Deputy Commissioner was directed to put the fishery to auction and he did so
The only departure from the rules was that instead of sending the result of the auction to the Commissioner for Settlement it was sent to the State Government direct
In our opinion that was a permissible departure but it was for all that a departure within the Rules
In our judgment the words  except with the previous sanction of the Provincial Government  are 874 important
We do not consider that this permits the Provincial Government when it so wishes to lift the sales completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by executive action
Such a construction would make rule 190 A run counter to section 16 of the Regulation which requires these sales to be made in accordance with rules framed under section 155 and of course a rule making authority cannot override the statute
Accordingly the law requires the sale to be under and in accordance with the rules
It follows that the departure contemplated by rule 190 A is also a departure within the four corners of the rules read as a whole and is a part of the rules
It is true the departure need not conform to the  preceding instructions  contained in the earlier portion of the rules but the departure once sanctioned itself becomes part and parcel of the rules
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 bold that this safeguard can be circumvented by the simple expedient of lifting a sale out of the rules whenever Government finds that convenient
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 con tained in the rules
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  875 Government desire to settle the above mentioned fishery direct under rule 190 A
I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement 
The State of Assam wishes to construe this to mean that the Government of Assam intended to flout the statute and disregard the Rules and proceed by executive action
The words  direct settlement  do lend themselves to that construction but that would be an act which in our opinion would not be warranted by the law and as we are bound to presume until the contrary is shown that the official acts of the Assam Government were regularly performed we must if we can lean against a construction which would put that Government more in the wrong than we can help especially as it self purported to act under rule 190 A
Now the only act which would be in consonance with rule 190 A and which would at the same time be in conformity with the letter of the first February would be for the Deputy Commissioner to sell by auction and then send the matter to Government direct for sanction instead of to the Commissioner
That in our opinion would be a permissible departure and would make the action of Government legal and would bring the matter under rule 190 A
In the cir cumstances we are bound to construe this letter in that sense
Now what did the Deputy Commissioner do  So far as the actual auction was concerned he followed the Rules
He held a regular auction and recorded the bids in the usual way
Up to that point he not only complied with the letter of the 1st February but also with the regular rules
His only departure was to send his choice of a lessee to Government direct instead of to the Commissioner
This according to us was a permissible departure
Upon receipt of the Deputy Commissioner s recommendation Government sanctioned the settlement with the first respondent and the Deputy Commissioner communicated the sanction
876 It was argued on behalf of the State of Assam that this was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only acting as its mouthpiece when he conveyed the orders of Government to the first respondent
our opinion that is a mere playing with words
The substance of the thing is there
It would be illegal for Government 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 tile 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
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 subject of course to sanction we are bound to hold that the act of cancellation and the act of resettlement were his acts however much lie may have acted under the direction and orders of a third party
That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190
When we say the Deputy Commissioner acted under the direction and orders of the State Government we refer to the actual act of settling and not to his choice of a lessee
If this auction had proceeded in the normal 877 way the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority the Commissioner for sanction
He would then have settled the fishery
In the present case he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rule 190 A in place of the Commissioner
It was the Deputy Commissioner who made the initial choice
It was his choice which was  sanctioned  and it was he who in reality and in fact  settled  the fishery with the first respondent
The mere fact that the State Government in addition to  sanctioning  his act also told him to  settle  the fishery could not alter or divest limit of his legal authority
This is not a case in which the Deputy Commissioner having been vested with a discretion failed to exercise it and acted as the mouthpiece of another
His discretion was to select a bidder and he did that without any outside pressure
There after his authority was to  settle  the fishery with the selected bidder once his act was sanctioned and the mere fact that lie was directed by another to do that which he would have been bound to do under the law in any event cannot divest the settlement of its legal and binding character
On the merits the High Court was abundantly right
We accordingly upheld its order and dismiss the appeal with costs payable to the first respondent
Civil Appeal No 176 A of 1952
BOSE J
For the reasons given in our judgment in Civil Appeal No 176 of 1952 pronounced to day we dismiss the appeal without costs
Appeals dismissed
Agent for the appellant in Appeal No 176 Naunit Lal
Agent for respondent No 1 in Appeal No 176 and respondent in Appeal No 176 A A D Mathur
Agent for respondent No 2 in Appeal No 176 and appellant in Appeal No 176 A K R Krishnaswamy


Summary:
The Government of Assam desiring to settle a fishery direct under r 190 A of the rules framed under the Assam Land and Revenue Regulation 1 of 1886 directed the Deputy Commis sioner concerned to put the fishery to auction and submit the bid list to Government with his recommendation for direct settlement
The Deputy Commissioner accordingly auctioned the fishery and submitted the bid list with a recommendation in the first respondent s favour
Government sanctioned the settlement of the fishery with the first respondent and the latter was informed of the acceptance of the bid and directed to make the deposits
Government received two more petitions on the same day for re consideration of the orders passed and three weeks later Government reviewed its order and settled the fishery with another person
The first respondent preferred an appeal to the High Court under r 190 which provided that all orders of a Deputy Commissioner passed under these rules were appealable to the High Court Held the words  except with the previous sanction of the Provincial Government  in r 190 A do not permit the Provincial Government when it so wishes to lift the sales completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by executive action
Such a construction would make r 190 A run counter to section 16 of the Regulation which requires these sales to be made under and in accordance with the Rules
The departure contemplated by r 190 A was a departure within the Rules
As the Deputy Commissioner was the only 112 866 authority competent to settle these fisheries subject to sanction the act of cancellation and the act of resettlement were his acts however much he may have acted under the direction and orders of the Government and the High Court had jurisdiction to entertain the appeal under r 190
Judgment of the High Court of Assam affirmed