Ningthoujam Kali Singh v. Sinam Nityai Singh — 1960 DIGILAW 30 (GAU)

ORDER :- This is an application for issue of a writ of certiorari for quashing the orders of the Deputy Commissioner, Manipur dated 4-5-1959 and of the second respondent Chief Commissioner dated 19-5-1959. 2. The allegations of the petitioner are as follows : In February, 1958, he purchased in auction the fishery rights in the Yangoi fishery No. 88 Manipur, for a period of two years from 1-4-1958 to 31-3-1960 on an annual rent o£ Rs. 10,200/- and the sale was confirmed by the Manipur Administration in his favour. He also deposited the rent for the first year as well as Rs. 7,100/- towards the rent of the second year, even though, he had not started the fishing for the second year of the lease. The petitioner was confined to bed due to illness since the purchase of the fishing rights and he delegated his powers to his two brothers, son and cousin and they were managing and conducting the fishery on his behalf. While so, the 4th respondent herein aided and abetted by respondent 1 animated by malice and jealousy at the petitioners success in the auction brought a false charge before respondent 3 - Deputy Commissioner, that the petitioner was guilty of executing unauthorised sub-leases of the fishery in favour of 5 persons including respondent 1. Respondent 3 registered a case as Fishery Miscellaneous Case No. 1/88 of 1959 and allowed certain inadmissible and forged sub-leases to be admitted in evidence and he passed the order - Annexura-B/1 - holding without any evidence that the petitioner was guilty of sub-letting parts of the fishery and that he had violated Rule No. 11 of the Manipur Fishery Rules and Clause (iii) of the Fishery Lease Form No. 11 which prohibited sub-letting and he ordered the cancellation of the petitioners lease on 4-5-1959. The petitioner preferred an appeal to respondent No. 2 in Fishery Appeal Case No. 1 of 1959, but the appeal was dismissed and the order of respondent 3 was up-held. The said illegal orders have deprived the petitioner of enjoying the said fishery and respondents 2 and 3 have acted in breach of law, arbitrarily and without jurisdiction. 3. This petition was filed on 30-5-1959. The said illegal orders have deprived the petitioner of enjoying the said fishery and respondents 2 and 3 have acted in breach of law, arbitrarily and without jurisdiction. 3. This petition was filed on 30-5-1959. It turned out from the counter statement of respondents 2 and 3 that after the cancellation of the fishery rights given to the petitioner there was a fresh auction in which the Yangoi Fishing Co-operative Society Limited bid for the fishery on a rent of Rs. 24,000/- a year and the said bid was accepted and confirmed by the Administration and the fishery given in settlement to the said Society for the period from 1-6-1959 to 31-3-1962. 4. Respondents 2 and 3 denied the petitioners allegations and state that there was a thorough enquiry by the Deputy Commissioner in which 7 witnesses were examined and on consideration of all the materials placed before him, the Deputy Commissioner was satisfied that some portions of the fishery were sub-let without obtaining the sanction of the Deputy Commissioner as required under Rule (iii) of Form No. II and hence he was justified in cancelling the fishery lease. 5. The forms of (1) the lease executed by the Deputy Commissioner and (2) the acceptance of the lease and its counter-part signed by the fishery lessee are Forms Nos. II and III. It is admitted that similar forms were duly signed and exchanged in this case. Condition No. (iii) of Form No. II. stated that the lessee shall have no power to sell his right of lease of the fishery or to sub-let to any one or to admit any one as a partner without informing the Deputy Commissioner who may refuse his sanction thereto. Condition No. (vii) of Form No. II stated that the settlement was subject to the provisions of the Fishery Rules of Manipur and further that if the lessee or his partner or any person holding from him infringed any of the conditions of the lease the Deputy Commissioner may cancel the lease on his own authority, in which case all sums paid would be forfeited, and the lessee will further be held liable for any loss which may be incurred by the Government. In Form No. III the lessee agreed to hold himself bound by ail the conditions of the lease. Rules Nos. In Form No. III the lessee agreed to hold himself bound by ail the conditions of the lease. Rules Nos. 33 and 34 of the Fishery Rules of Manipur, to which the lease has been made subject under clause (vii) of Form No. II, stated that if the lessee infringed the terms of the lease in Form No. II, the lease will be liable to termination without any notice to the lessee concerned and the fishery will be put to re-sale, which shall be at the risk of and on account of the lessee concerned and that any loss caused to the Government due to the re-sale would be realised from the defaulting lessee by adjustment or the security deposit. The very notice of the auction of the fishery the terms of which are contained in Form No. I, reproduced in Condition (6) of the said notice what as contained in Rule 33 of the Fishery Rules. Thus, the petitioner was fully aware of the terms under which he purchased the fishery rights were sold in auction. He was further made aware of the conditions when the lease and its counterpart were exchanged and he accepted the conditions and agreed to abide by them. He knew that the Deputy Commissioner had the right on his own authority to terminate the lease without even a notice to him for any infringement of the conditions of the lease. 6. But in this case, the lease was not terminated without notice to the lessee. Notice was given to the petitioner of the charge of sub-letting brought against him by certain persons and a regular enquiry was held and witnesses were examined and documents were marked in support of the charge of sub-letting. Five receipts given by the petitioners son to the sub-lessees were also produced. The Deputy Commissioner in his order has also referred to the statements given by the petitioners son and by his agent one Naran Singh as showing that in fact parts of the fishery were sub-let. A reading of the Deputy Commissioners order as well as the documents and oral evidence referred to therein certainly show that the order of the Deputy Commissioner was not passed without any evidence whatsoever. A reading of the Deputy Commissioners order as well as the documents and oral evidence referred to therein certainly show that the order of the Deputy Commissioner was not passed without any evidence whatsoever. What the petitioner pointed out was that the statement of Naran Singh referred to in the order was inadmissible in evidence and further that the statement was misconstrued by the Deputy Commissioner and that the view taken by him was not warranted by the evidence adduced in the enquiry. These are matters which this Court would refuse to go into in writ proceedings as this Court will not act as an appellate Court in the exercise of its Writ jurisdiction. 7. It was pointed out that where an obviously erroneous conclusion was drawn by an inferior Tribunal from the facts placed before it, it will be an error apparent on the face of the record and that in order to correct such an error, a writ can be issued under Article 226. I am unable to agree that in this particular case there is any such apparent error on the face of the record as far as the question of fact as to whether there was really any sub-letting was concerned. I may refer to the decision of the Supreme Court : Hari Vishnu Kamath v. Ahmed Ishaque, (S) AIR 1955 SC 233 and to the latest decision Satyanarayan Laxminarayan v. Mallikarjun Bhavanappa, AIR 1960 SC 137 . The latter decision has. approved of the earlier decision. What was decided in those cases was that the Court issuing a writ of certiorari acts in the exercise of a supervisory and not appellate jurisdiction and that even if the findings of fact by an inferior Court were erroneous, the superior court will not review the said findings on, the principle that an inferior tribunal which has jurisdiction over a subject-matter has the jurisdiction to decide wrong as well as right and that in a writ of certiorari the superior Court will not substitute its-own findings in place of the findings of the inferior Court. Again, it was held that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two-opinions can hardly be said to be an error apparent) on the face of the record. Again, it was held that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two-opinions can hardly be said to be an error apparent) on the face of the record. For the above reasons refuse to go into the details of the enquiry before the Deputy Commissioner or to substitute my findings in place of the findings of the Deputy Commissioner which have been found to be correct and which have been confirmed by the appellate tribunal, the Chief Commissioner. 8. In the present case we need not even go thus far. The order of the Deputy Commissioner is not a quasi-judicial order in any sense. The Government is the lessor and the petitioner is the lessee. Rules provided for the Deputy Commissioner who is a servant of the lessor to cancel the lease in favour of the lessee without even a notice to him if the Deputy Commissioner was satisfied that any terms of the lease have been infringed. It was a matter for the subjective satisfaction, of the Deputy Commissioner and not a matter where the Deputy Commissioner was acting as a tribunal and deciding a case between two parties in which he was bound to give opportunity to both the parties to be heard and to hold an enquiry in accordance with the principle of natural justice. It was purely an administrative order which under, the Rules subject to which the auction was held and the petitioner became the successful bidder, the Deputy Commissioner had every jurisdiction to pass Such an order cannot be questioned in a writ of certiorari. 9. It was however pointed out that even if it is an administrative order and a writ of certiorari cannot issue, a writ of mandamus can issue asking the Deputy Commissioner to forebear from acting in furtherance of that order. Even a writ of mandamus cannot issue where the inferior tribunal has acted within jurisdiction, I have already pointed out that the Deputy Commissioner had the jurisdiction under the Fishery Rules and under Form Nos. I and II all of which the petitioner has accepted in Form No. III to pass the order now questioned before me. 10. The proper procedure for the petitioner was to file a suit if he was dissatisfied with the said order. I and II all of which the petitioner has accepted in Form No. III to pass the order now questioned before me. 10. The proper procedure for the petitioner was to file a suit if he was dissatisfied with the said order. It is a matter between the lesser and the lessee and if the lessee is not satisfied with the manner in which the lessor has cancelled the lease and feels that he was entitled to claim damages from the lessor he ought to do so in a civil Court and not in writ proceedings. Further, there is no point in issuing a writ or mandamus at present, because the Deputy Commissioner has already acted in furtherance of his order cancelling the lease and even before this writ was filed a fresh auction has been held and the lease has been given to a Co-operative Society with effect from 1-6-1959 for a period of three years and the said Society has not been made party to this writ petition. Any order passed in these proceedings will prove infructuous, as the petitioner can never get back the fishery, but at best can claim only damages from his lessor. That has to be done in a Civil Court. 11. It was argued for the petitioner that even if he would not benefit in getting back his lease, observations made by this Court in this Writ petition would be helpful to him if he has ultimately to file a suit claiming damages from the Government. No order in a writ can be made for such a purpose. In fact, I am studiously avoiding making any statement in this order which in any way influence a Civil Court for or against the petitioner in any suit which he may file. 12. It seems to me that the proper course for the petitioner would have been to file a suit straight way instead of coming to this Court for the issue of a writ. As pointed out in the decision Union of India v. T.R. Varma, (S) AIR 1957 SC 882 : "It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. As pointed out in the decision Union of India v. T.R. Varma, (S) AIR 1957 SC 882 : "It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor". do not see any good ground in the present petition to issue a writ when the petitioner has not only got an equally efficacious remedy by way of suit, but when in fact, the real remedy for the petitioner, is only by way of a suit. I have pointed out that at writ of certiorari cannot issue in the present case as it is purely an administrative order and secondly that a writ of mandamus cannot issue as the Deputy Commissioner has acted within jurisdiction and further that even the issue of a writ of mandamus will not in any way help the petitioner as the fishery has already been given to another party, (not before us), even before the filing of this petition. Thus the petitioner can only claim damages and it can be done only by way of a suit. There are no grounds at all to interfere in this petition. 13. Various ether points were argued in the course of the writ. They were whether it was a lease or only a licence and secondly, whether if it was a licence a sub-licence has been prohibited and whether the Deputy Commissioner can cancel the licence on the ground that sub-licences had been given. A third question was whether sub-letting and sub-licensing of parts of the fishery have been prohibited by Condition (iii) of Form No. II or only of the whole fishery or whether infringement can take place only if the entire fishery was so transferred. A third question was whether sub-letting and sub-licensing of parts of the fishery have been prohibited by Condition (iii) of Form No. II or only of the whole fishery or whether infringement can take place only if the entire fishery was so transferred. I do not wish to express any opinion on these questions as these are matters which the petitioner could take up in a suit for damages and compensation and it will be then the duty of the Civil Court to decide those questions. I do not want that any opinion which I may express on those question should in any way influence a Civil Court. 14. I see no merits at all in this writ petition. It is accordingly dismissed with the costs of the respondents. Advocates fee Rs. 100/- one set. Writ petition dismissed.