Sorothaibam Ibohal Singh v. Dy. Commr. , Manipur — 1954 DIGILAW 71 (GAU)

ORDER This is a writ petition under Art.226 of the Constitution of India praying that a writ of certiorari be issued to the respondents and the order passed by the District Magistrate, Manipur respondent No. 1 on 25-6-1954 and the order passed by the Honble Chief Commissioner, Manipur on 23-8-1954 be set aside and the order for the sale of the petitioners property for realising Rs.633/-the deficit money be stayed. It is further prayed that the costs of these proceedings be allowed to the petitioner and such other further orders as may be deemed proper by this Court, be passed against the respondents. 2. It appears from the affidavit filed by the petitioner that he had taken the fishery No.405 Wabagai Khong-ahanbi on lease on 10-3-1954 for Rs.6000/- and Rs.1513/- were paid by him on 10-3-1954 and Rs.504/- on 2-4-1954 as security as demanded by the respondent No.1 under R.184 of Chapter X Part VI of the Assam Land Revenue Manual. Two other instalments of Rs.3033/- and Rs.1000/- were to be paid, later, the first one was to become due on 15-8-1954 but for payment of the sum of Rs.1000/- no date had been fixed. The petitioner, owing to accidental loss in business, was unable to pay Rs.3033/- on 15-6-1954, but the respondent No.1 had already issued a notice on l-6-1954 to the effect that the pattadar (petitioner) had failed to pay his first instalment in full and so his past payments were forfeited and the fishery was to be re-auctioned on 22-6-1954 at 11 A.M. in the office of the Deputy Commissioner, Manipur and if the amount fetched by this auction would be less than the amount purchased by him the shortage should be recouped from the petitioner. On the strength of the notice referred to above the respondent No. 1 refused to accept half of the sum of Rs.3033/-offered by the petitioner on 15-6-1954. On 22-6-1954 the petitioner with great difficulty secured this sum of Rs.3033/- with interest and offered the sum to the respondent No.1, but the latter declined to accept the money on the ground that the petitioner had committed fraud in connection with the construction of certain roads under the Community Project. On 22-6-1954 the petitioner with great difficulty secured this sum of Rs.3033/- with interest and offered the sum to the respondent No.1, but the latter declined to accept the money on the ground that the petitioner had committed fraud in connection with the construction of certain roads under the Community Project. The petitioner has alleged in para.5 of the petition that he has been separate from his father and if his father was alleged to have committed any fraud in connection with the construction of road under the Community Project, the learned District Magistrate should not have become biased against the petitioner on that account and the money should have been accepted as was done in other cases. The petitioners fishery was auctioned on 22-6-1954 to the respondents Nos.3 and 4 for Rs.3400/-leaving a deficit of Rs.633/- for which the petitioners other properties are being sold, but the sale has now been provisionally stayed by this Court. The petitioner filed appeal No.4 of 1954 before the Konble Chief Commissioner exercising the powers of Revenue Tribunal against the order of the Deputy Commissioner referred to above, but this appeal was also rejected on 23-8-1954. According to the petitioner the order passed by the Deputy Commissioner was absolutely without jurisdiction and against the express provisions of law and as the learned Deputy Commissioner was biased against the petitioner on account of some conduct of the petitioners father during construction of a road, the orders in question should be set aside by this Court. 3. The respondents Nos.1 and 2 in their affidavits contend that the fishery was auctioned to the petitioner for Rs.6050/- and the petitioner gave the security deposit of Rs.1513/- and Rs.504/-, but he failed to pay the first kist of Rs.3025/- on 15-5-1954 and so the fishery was resold to the respondents Nos.3 and 4 after due notice in accordance with the Fishery Revenue Collection Rules, of Manipur published through Notification No.131 dated 5-4-1950 in the Manipur Gazette (Extraordinary) dated 28-4-1950. According to these respondents there is no scope for interference under Art.226 of the Constitution of India in this case. 4. Respondents Nos.3 and 4 have also contended in their affidavit that the petitioner could not pay the kist in time and so there was a valid resale of the fishery on 22-6-1954. 5. According to these respondents there is no scope for interference under Art.226 of the Constitution of India in this case. 4. Respondents Nos.3 and 4 have also contended in their affidavit that the petitioner could not pay the kist in time and so there was a valid resale of the fishery on 22-6-1954. 5. The learned Government Advocate has urged that the fisheries cannot be settled in Manipur State otherwise than by sale according to the procedure laid down in chapter X of part VI of the Assam Land Revenue Manual except with the previous sanction of the Honble Chief Commissioner as laid down in Rule 5 of Notification No.R/Py/4/51/10 dated 27-7-1951 published in the Manipur Gazette dated 1-8-1951. Rule 182 Chapter X lays down as follows: "(182) The Deputy Commissioner should annually fix a date 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 auction were reserved from sale under R.188. The date fixed should be proclaimed by the Deputy Commissioner, or Sub-divisional Officer, at least a month in advance by a written notice in Form No. 101 posted at the Sadar and Sub-divisional Cutchery and at the Munsiff and Police Station within the local limits of which the fishery or any part of it is situated. The notice should state the name of the fishery, the Mauza or Pargana within which it is situated, and any other particulars that may be necessary for its identification; the term and price for which it was sold at the last auction; the term for which it will now be sold, and the date, place, and conditions of sale. The contents of this notice should also (if possible) be made known by beat of drum at the bazar nearest to the fishery". 6. Rule 184 runs as follows: "(184) The following conditions of sale shall be specified in the notice and shall be proclaimed before the sale begins: (1) The Officer conducting the sale does not bind himself to accent the highest bid, or any bid. 6. Rule 184 runs as follows: "(184) The following conditions of sale shall be specified in the notice and shall be proclaimed before the sale begins: (1) The Officer conducting the sale does not bind himself to accent the highest bid, or any bid. (2) The purchaser shall immediately after the acceptance of his bid furnish as security a sum equal to one quarter of a years revenue and may be required to furnish within seven days of the date of sale additional security to the satisfaction of the deputy Commissioner, so as to bring up the total amount of the security to one-third of the revenue for the full term of the settlement....... (3) If the purchaser fails to execute a counterpart within one month from the date of the auction, the fishery shall be resold at his risk and he shall be bound to make good the difference between his bid and the amount realised by the subsequent sale, calculated on the whole period of settlement....... (4) If the purchaser fails to execute a counterpart within one month of the date of the auction, or if he fails to do anything which he is required or bound to do under sub-paras (2) and (3) above, the Deputy Commissioner may further direct that he shall also forfeit the security furnished, if any, or any portion of it". 7. Rule 185 runs as follows: "(185) When for default of furnishing the additional security mentioned in R.184 (2) or of executing a counterpart under R.184(3) the lease of the fishery has to be put up to sale a second time, at the risk of the first purchaser, notice of sale shall be given as in the case of an original sale with the additional proviso that the resale shall be at the risk of and on account of the first purchaser". 8. The above-mentioned rules clearly show that under R.182 one months notice is necessary and particulars specified in that rule should also be given in that notice. In the present case notice issued by the Deputy Commissioner, has been brought on this record vide paper No.4-C and it shows that it was only a 15 days notice and this notice does not give the term and price for which the fishery was sold on the last occasion and also the term for which it) was to be resold. Other particulars mentioned in the R.182 were also not distinctly given and the notice was not posted at the Munsifi within the local limit of which the fishery was situated. It thus becomes clear that the notice which was issued in this case was not in accordance with the provisions of R.182. 9. Again R.66 of the Land Revenue Manual, Assam (1947 edition) clearly lays down that every sum payable under this Regulation on account of land revenue, shall fall due on such date and shall be payable in such manner, in such instalments, at such place, and to such person as may be prescribed. 10. The instalments of land revenue and the dates on which they are in force in every district should be found in part 11, chapter V, Ss.(1) and (5). At page 103 it has been laid down that so far as the item of revenue regarding fishery is concerned the revenue would become payable in each year of the lease as follows: "One-fourth of one years revenue on 15th July. Three-eighths of one years revenue on 15th November. Three-eighths of one years revenue on 15th January." The sum furnished as security on the day of sale will be adjusted only against the last instalment payable during the lease. 11. It would thus become clear that the instalment of Rs.3033/- would become payable under the above-mentioned rule in July and no resale could legally take place on 22-6-1954. 12. A perusal of the rules mentioned above clearly shows that resale could be ordered only if 1/3rd of the amount were not deposited in time etc., the counterpart be not executed, but in the present case both these contingencies had not arisen and so the resale was without jurisdiction. Notice issued was also illegal and as there was no compliance with Rr.72 and 75 of the Manual, and as it is admitted that in other cases time was given to other lessees, I am definitely of opinion that the order of resale and the resale dated 22-6-1954 which was absolutely without jurisdiction cannot be upheld. 13. It has been admitted by the respondent No.1 in para.12 of his affidavit that the reference to the petitioners father was made only in a passing way in the order dated 25-6-1954 and so the contents of para.5 of the petition are admitted in this respect. 13. It has been admitted by the respondent No.1 in para.12 of his affidavit that the reference to the petitioners father was made only in a passing way in the order dated 25-6-1954 and so the contents of para.5 of the petition are admitted in this respect. The petitioner has clearly stated in his affidavit and his application that he has been separate from his father and if the learned Deputy Commissioner was prejudiced against the petitioner simply because the latter a father was separate from the petitioner, was deemed to have practised fraud during the construction of a road - his order dated 25-6-1954 cannot be sustained on this ground also as it has been held that actual bias on the part of the presiding authority need not be proved, nor need it be proved that his actual decision is biased vide - Visakapatnam Cooperative Motor Transport Ltd. v. Bangaru Raju, AIR 1953 Mad 709 (A), where objection is taken on the score of bias, the question is not whether Justices were really biased or not and in fact decided partially, but whether there was really likelihood of bias vide - R. v. Wood-house, (190S) 2 KB 501 at p.518 (B). In the present case the learned Deputy Commissioner went to the extent of mentioning, that the petitioner himself had committed fraud, but the affidavit now filed shows his father was deemed to have committed some fraud. These circumstances make it quite clear that the order dated 25-6-1954 was passed against the petitioner under the biased impression that his father was a dishonest person and the petitioner should not be allowed to continue to be Appellant lessee. 14. The respondent Nos.1 and 2 unfortunately relied on an old notification regarding collection of fishery revenue which was published on 5-4-1950 and as in this notification no reference was made to the Assam Land Revenue Manual, all the orders passed in this case were not according to law. The later notification dated 27-7-1951 published in Manipur Gazette on 1-8-1951 have been in force with effect from 1-8-1951 and under it the Assam Land Revenue Manual provisions have been made applicable and the respondents Nos.1 and 2 should have taken notice of the later notification published in the Manipur Gazette. 15. The later notification dated 27-7-1951 published in Manipur Gazette on 1-8-1951 have been in force with effect from 1-8-1951 and under it the Assam Land Revenue Manual provisions have been made applicable and the respondents Nos.1 and 2 should have taken notice of the later notification published in the Manipur Gazette. 15. It has been laid down by their Lordships of the Privy Council in - Subramania Iyer v. King-Emperor, 5 Cal WN 866 (C), that disobedience of the express provisions of the law as to the mode of trial cannot be regarded as a mere irregularity, and as such is not covered by S.537, Cr.P.C. 16. In - Nazir Ahmad v. King-Emperor, AIR 1936 PC 253 (2)(D), it was laid down that the rule which applies is that where a power is given to do certain thing in a certain way, the thing must be done in that way or not at all. 17. I have shown above that the learned Deputy Commissioner did not comply with any provisions of law mentioned above when ordering resale and as all these provisions were not brought to the notice of the Honble Chief Commissioner when he passed the order dated 23-8-1954 both these orders will be deemed to be against the express provisions of law. 18. The scope of a writ certiorari is very wide. Writ of certiorari lies not merely when the Tribunal acts in excess of jurisdiction but also when the Tribunal commits an error of law patent on the face of the record: in other words, the High Court is able by virtue of the writ to see that the inferior tribunals keep within their jurisdiction and also to see that the inferior Tribunals observe the law in the course of exercise of that jurisdiction vide - Kusum Kumari Devi v. Custodian Evacuee Property Bihar, AIR 1954 Pat 238 (E). A Writ in the nature of certiorari under Art.226 of the Constitution can, therefore, be properly granted in this case as an error of law is apparent on the face of the decisions given by the Deputy Commissioner and the Honble Chief Commissioner. 19. A Writ in the nature of certiorari under Art.226 of the Constitution can, therefore, be properly granted in this case as an error of law is apparent on the face of the decisions given by the Deputy Commissioner and the Honble Chief Commissioner. 19. The present petition is thus allowed and the orders dated 25-6-1954 (passed by the Deputy Commissioner, Manipur) and dated 23-8-1954 passed by the Honble Chief Commissioner, Manipur are set aside and the order for sale of other properties of the petitioner for recovery of the sum of Rs.633/- is also set aside. The petitioner will get costs of this proceeding from the respondents Nos.1 and 2. The respondents Nos.3 and 4 will neither pay nor receive any costs. Petition allowed.