MEHROTRA, J. : This appeal has been referred to the Special Bench by me as the questions of law raised in this appeal very often come up for considera­tion before this court. I have had the advantage of reading the judgment of my lord the Chief Justice and my brother Dutta, J. But as I do not agree with the opinion expressed by them on the points raised and argued, I shall give my opinion separately. (2) This is an appeal under section 147 of the Assam Land and Revenue Regulation (herein­after called 'the Regulation') with rule 11 of the Fishery Rules published under the said Regulation (hereinafter called 'the Rules') on behalf of one Raghunath Talukdar against an order of the Sub-divisional Officer, Barpeta who is impleaded as respondent No. 1 in this appeal. The State Gov­ernment selected Fishery No. 28 Barkana beel with Nos. 29 and 68 for settlement by tender. The Subdivisional Officer, Bavpeta was accord­ingly directed to take steps for settlement of the said Fishery under the rules after inviting ten­ders. By a sale notice dated 22nd December, 1959 the Subdivisional Officer, Barpeta invited ten­ders for settlement of the aforesaid fishery, fixing the last date for submission of such tenders Upto 6 P.M. cm 3rd February, 1960. The appellant along with others filed his tender in prescribed form within time. As re­quired under rule 45 of the Rules the Sub divisional Officer, Barpeta appointed an Advisory Board. The tenders were opened on the 4th Feb­ruary, 1960 in the presence of the tenderers and the appellant's tender was the highest at Rs. 24,550. Along with this proposal, other pro­posals regarding the settlement of other fisheries in. this Sub-Division were sent to the Commissioner of Plains Division for sanction. On the 2nd March, 1960 the Commissioner of plains Division set aside all the proposals for settlement on the ground that the proceedings before the Subdivi­sional Officer for selection of a suitable tenderer With whom the settlement should be made were irregular inasmuch as the tenders were not open­ed on the date fixed under the notice. A peti­tion under Article 226 of the Constitution was filed by the present appellant to this Court chal­lenging tile order of the Commissioner which was allowed by this court on 13th May, 1960. It was held by this Court that the order of the Commis­sioner setting aside the entire proceedings was illegal. A peti­tion under Article 226 of the Constitution was filed by the present appellant to this Court chal­lenging tile order of the Commissioner which was allowed by this court on 13th May, 1960. It was held by this Court that the order of the Commis­sioner setting aside the entire proceedings was illegal. The order of the Commissioner was quashed and a mandamus was issued to the Sub-divisional Officer, Barpeta directing him to resubmit the settlement proposal for sanction. There is no dispute between the parties, so {ar as the facts stated above are concerned. Ac­cording to the appellant however, after the man­damus had been issued by this court, the Sub-divisional Officer, resubmitted his original pro­posal on the 1st July, I960. But the Commission­er refused to confirm the settlement and further directed the Subdivisional Officer, Barpeta for submission of a fresh proposal again indicating that the settlement be made with respondent No. 2 Bapuram Das who is Secretary Bania Kuchi Co-operative Fishery Society Ltd. The appellant} further alleges that in obedience to the above) direction and suggestion of the Commissioner of Plains Division, Shillong, respondent No. 1 the Subdivisional Officer, Barpeta selected res­pondent No. 2 as the suitable candidate for settle­ment and sent the proposal to the Commissioner for sanction. The Commissioner by his order dated 14th September, 1960 sanctioned the settlement of the Fishery with respondent No. 2 at Rs. 24,550) for the years 1960-61 to 1962-63. (3) When the appeal came up for hearing before me mainly three points were argued by Dr. Medhi on behalf of the appellant. Firstly he argued that when the fresh proposal was sub­mitted to the Commissioner for sanction after the Order by this Court on the 13th May, 1960. the Advisory Board was not consulted. There was thus no valid proposal for settlement before the Commissioner for sanction and any sanction ac­corded by the Commissioner on such an invalid proposal was no sanction in the eye of law at all. The settlement was thus made with the respon­dent No. 2 without proper sanction by the Commissioner and is liable to be set aside. The argument in effect is that in submitting the proposal for sanction to the Commissioner, there was violation of the mandatory provisions of Rule 45 of the Rules and thus the submission was without jurisdiction and the consequent sanction was also without jurisdiction. The argument in effect is that in submitting the proposal for sanction to the Commissioner, there was violation of the mandatory provisions of Rule 45 of the Rules and thus the submission was without jurisdiction and the consequent sanction was also without jurisdiction. The answer to this question depended on the decision whether the provisions regarding consultation with the Advisory Board were mandatory and non-compliance that the sanction accorded will also be regarded as a nullity (sic). Secondly it was contended that if it is held that the provisions of rule 45 requiring con­sultation with the Advisory Board before submit­ting a proposal to the Commissioner for sanction were mandatory, this court in the exercise of its appellate powers could only set aside the settle­ment with the respondent No. 2 and direct the settlement officer to follow the mandatory provisions of rule 45 and submit a f;° h proposal for sanction. But this court in appeal cannot make the settlement itself after selecting any person from amongst the tenderers as a Suitable person. The third contention was that the provisions of the rule enforced at the time when the sate notices were issued should apply to the settlement in the present case and not the amended rule. This question arose for consideration in the fol­lowing circumstances. According to the appellant in pursuance of the orders of this court, on the 1st July, 1960 the Subdivisional Officer resubmitted the proposal for settlement in favour of the appellant to the Commissioner for sanction. The Commissioner however pointed out that ac­cording to the amended rule 46, the respondent; No. 2 was entitled to preference and thus he in­dicated that a fresh proposal should be submitted by the Sub-Divisional Officer recommending the name of respondent No. 2 for settlement. Under the rules enforced at the time of the sale notice, the respondent No. 2 was not entitled to a pre­ference; he became entitled to a preference only after the amended rule came in force. The Com­missioner and the Subdivisional Officer purported to apply the amended rule to the present pro­ceedings, which they could not do as it would be giving retrospective, effect to the amended rule. All these points are set out in the referring order by me. The above three points raised by the counsel for the appellant have been referred to the Special Bench for opinion. All these points are set out in the referring order by me. The above three points raised by the counsel for the appellant have been referred to the Special Bench for opinion. (4) I shall first take up the first point urged by Dr. Medhi that the provisions of rule 45 of the Rules are mandatory. Reference at this stage may be made to certain provisions which may be relevant for the examination of the point. Section 16 of the Regulation provides that the Deputy Commissioner, with the previous sanc­tion of the Provincial Government, may, by pro­clamation published in the prescribed manner, declare any collection of water, running or still, to be a fishery, and no right in any fishery so declared shall be deemed to have been acquired by the public or any person, either before or after the commencement of the Regulation, ex­cept as provided in the rules made under sec­tion 155. This section makes it perfectly clear that in the fisheries proclaimed by the State Gov­ernment, no right can be conferred except in accordance with the provisions of the rules made under section .155. On die 15th April, 1953 cer­tain rules were framed, by the State Government in the exercise of the powers conferred under sections 155 and 156 which are known as the rules for the settlement of fisheries. Rule 12 of the said Rules 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 shall 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." In regard to the fishery in question the State Government had introduced the tender system. Rules No. 42 onwards in Section IV of the Rules are Rules for settlement of fisheries by lender system. After a fishery has been selected by the State Government under rule 42 to be settled by tender system and instruction to that effect is issued to the Deputy Commissioner or the Sub-divisional Officer to lease them out for a specified period, the Deputy Commissioner or the Sub-divisional Officer is to invite tenders and issue notices, the procedure for which is provided under rule 43. Rule 44 then provides the place Of the settlement. Rule 44 then provides the place Of the settlement. Rule 45 which is the relevant rule, reads as follows : "The Deputy Commissioner or the Subdivisional Officer, as the case may be, shall open the tenders in the presence of an Advisory Board consisting of not less than 5 persons called at the moment and in consultation with that Board make a selection of the most suitable tender and submit the proposal for settlement to the Com­missioner of Plains Division for sanction. The selection of members of the Board shall be strictly confidential." Analysing this rule it will be clear that the first requirement is that the tenders are to be opened in, the presence of the Advisory Board consist­ing of not less than five persons called by the Deputy Commissioner or the Subdivisional Offi­cer, Secondly the Deputy Commissioner or the Subdivisional Officer has to select a suitable tender in consultation with that Board and thirdly he has to submit the proposal for settlement to the Commissioner of Plains Division for sanction. If is further clear that the selection of the members of the Board is to be strictly con­fidential. Under- rule 43 which I have already referred to, the Deputy Commissioner of the Sub-divisional Officer has to fix a date not later thin 5th February, on which the settlement of the registered fisheries selected by Government will be made by him after calling for tenders firm the public. It is clear that the settlement is to be made by the Deputy Commissioner or the Sub divisional Officer himself. It is further clear that before a proposal is submitted to the Commissioner of Plains Division for sanction, the tenders are to be opened in the presence of the Advisory Board and selection to be made in consultation with the Board. The proposal then is to be submitted by the Deputy Commissioner or the Sub divisional Officer to the Commissioner for sanction. The Advisory Board does not come into the picture at all in the matter of settlement. Nor does rule 45 lay down that the Deputy Commissioner or the Sub divisional Officer is bound to accept the opinion of the Advisory Board in the matter of selec­tion of the suitable tender. Rule 45 does not lay down that the Commissioner when entertaining proposal for sanction necessarily should be informed that the selection had the approval of the Advisory Board. Rule 45 does not lay down that the Commissioner when entertaining proposal for sanction necessarily should be informed that the selection had the approval of the Advisory Board. The Deputy Commissioner PE die Sub divisional Officer having consulted the Advisory Board, has to submit his proposal and the Commissioner of Plains Division has either to accord his sanction or may refuse to sanction. The argument Of Dr, Medhi which I have already set out earlier, is that the selection is to be made in consultation with the Board and it no consultation has been done by the Deputy Commissioner or the Sub divisional Officer before submitting his proposal, the submission itself is illegal the consequent sanction is a nullity. There being no sanction in the eye of law, the settlement made by the Deputy Commissioner or the Sub divisional Officer must be held to be invalid. A mandatory statute is one which may be fallowed in order that the proceeding to which it relates may be valid, while a directory a state or provision is one which need not be complied with in order that the proceeding to .which it pertains may be valid. It also cannot lie disputed that if a provision is directory the substantial compliance of the said provision will be sufficient but if the provision is mandatory it has to be complied with strictly. There are no express words in rule 45 which go to show that She failure to comply with the provision regard-Big the consultation with the advisory Board will render the subsequent proceedings invalid. The rule however uses the word 'shall' arid not "may'. It however, cannot be disputed that certain requirement of a rule may be mandatory while the other requirements of the same rule play not be mandatory and may be directory. It also can­not foe disputed that though the statute may use the imperative word 'shall' still the requirement may be directory. The authorities have laid down certain tests for deciding as to whether a parti­cular statute is mandatory or directory, but all those tests are only aid to the interpretation of the statute and help the determination of the intention of the legislature. The authorities have laid down certain tests for deciding as to whether a parti­cular statute is mandatory or directory, but all those tests are only aid to the interpretation of the statute and help the determination of the intention of the legislature. (5) As pointed by Lord Penzance in Howard v. Bodington (1877-2 P. D. 203) with reference to the problem of determining when a statute is manda­tory and when it is directory, you cannot glean a great deal that is very decisive from a perusal of the cases. They are on all sorts of subjects. It is very difficult to group them together, and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Campbell...... .'No universal rule can be laid down........... I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the matter is what is called impera­tive or only directory. (6) In "Statutory Construction-interpretation of Laws" by Crawford, at page 529, the rule is laid as follows : "As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order, and convenience, and neither public nor private rights will be injured or impaired thereby. (7) In 'Maxwell on Interpretation of Statutes' tenth edition at page 38f the law is summarised as follows : "On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general incon­venience or injustice to persons who have no con­trol over those entrusted with the duty without pro­moting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them." It will be convenient to examine some of the cases both Indian and English in this connection. (8) In the case of 'Montreal Street Ry. Co. v. Normandin' reported in 1917 AC 170: (AIR 1917 PC 142) their Lordships of Privy Council were dealing with the case of irregularities committed in the preparation of the list of jurors. The list of jurors was not properly revised find the question which arose for consideration before their Lordships was whether the verdict of the jury should be set aside on account of the non-compliance with certain provisions for the revision of the list of jurors. At p. 174 of the report (A. C.) : (at p. 144 of AIR) the following observations lay down the law which has been followed subsequently in other cases: "The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th edn. p. 596 and following pages. When the provisions of a statute relate- to the performance of a public duty and the case is such that to hold null and void acts done in neg­lect of this duty would work serious general incon­venience, or injustice to persons who have no con­trol over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the vali­dity of the acts done." (9) In the case of Biswanath Khemka v. Empe­ror reported in AIR 1945 F. C. 67 the provisions of section 256 of the Government of India Act 1935 came up for consideration. This section provides that no recommendation shall be made for the grant for magisterial powers or of enhanced magisterial powers to or the withdrawal of any magisterial powers from, any person save after consultation with the District Magistrate of the district in which lie is working, or with, the Chief Presidency Magis­trate, as the case may be. Their Lordships of the Federal Court affirmed the decision of the Calcutta High Court in the case of Biswanath Khemka v. Sew Chand Roy reported in AIR 1945 Gal 488 and held that the direction laid down in section 256 of the Government of India Act requiring consultation before conferring power on the Magistrate is direc­tory and not mandatory and non-compliance with it would not render an appointment otherwise regu­larly and validly made ineffective or inoperative. It was observed by their Lordships that any other view would lead in many cases to results which could not have been intended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrus­ted with the duty of making recommendations for the grant of magisterial powers. (10) In the case of State of U. P. v. Manbodhan Lal Srivastava reported in (S) AIR 1957 SC 912 the question which came up for consideration before their Lordships of the Supreme Court was the provisions of Article 320 (3) (c) of the Constitu­tion which provides that the Union Public Service Commission, or the State Public Service Commission as the case may be, shall be consulted, on all dis­ciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. It was held by their Lordships that the provisions are directory and not mandatory. In this case their Lordships of the Supreme Court agreed with the observation of their Lordships of the Privy Council in the case reported in 1917 A. C. 170 : (AIR 1917 PC 142) to which I have already referred. Dr. Medhi con­tends that that decision is distinguishable. The decision was based on the fact that the Article does not come under chap. I headed "Services" of Part XIV but it occurs in chap. II of that Part headed 'Public Service Commission'. Dr. Medhi con­tends that that decision is distinguishable. The decision was based on the fact that the Article does not come under chap. I headed "Services" of Part XIV but it occurs in chap. II of that Part headed 'Public Service Commission'. He has further contended that in this 'case their Lordships were influenced by the proviso to Article 820 of the Constitution which provides that the president as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts 5n connection with die affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. In my opinion the decision of their Lordships of the Supreme Court is not based only on the proviso to Art. 320 of the Constitution. It is certainly one of the factors which was taken into' consideration by their . Lordships in interpreting Article 320 of the Constitu­tion. This point starts with the following sentence at page 916 of the report:, "Perhaps, because of the use of the word 'shall' in several parts of Art. 320, the High Court. was led to assume that the provisions of Art. 320 (3) (c) were mandatory, but in our opinion, there are several cogent reasons for holding to the contrary. In the first place, the proviso, to Art. S2fi» itself, contemplates that the President or ihe Governor, as the case may be, 'may make regulations specifying the matters tf» which either generally, or in any particular .class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.' * * * * * Secondly, it is clear that the requirement, of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course the Government, when it consults the Commission on matters, like these, does it not by way of a mere formality but with a view to getting proper assis­tance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. Of course the Government, when it consults the Commission on matters, like these, does it not by way of a mere formality but with a view to getting proper assis­tance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the ride for consultation would have been fatal to the vali­dity of the order proposed to be passed against a public servant. In the absence of such a binding character it is difficult to see how non-compliance with the provisions of Art. 320(3)(c) could have the effect of nullifying the final order passed by the Government." (11) The above observations to my mind muftis mutandis apply to the provisions of Rule 45 of toe Rules. Nowhere it is laid down that the Deputy Commissioner or the Sub-divisional Officer in. sub­mitting the proposal after consultation with the Advisory Board is bound to accept the advice al the Board. (12) The third point emphasised by their Lord-ships of the Supreme Court in the above case is that Article 320 of the Constitution does -sot m terms confer any rights or privileges cm .any -indi­vidual public servant, nor any constitutional guarantee of the nature contained in Article 311 of the Constitution. The fact that Article 320 does not: come under chapter 1 headed "Services" of Part XIV was emphasised by their Lordships to point out that, the giving of advice or opinion in consultation is a duty cast upon the public body and does not confer any right on any individual. Ap­plying the same reasoning to the provisions of Rule 45 of the Rules, it will also be clear that the duty conferred On the, Deputy Commissioner to consult the Advisory Board before submitting the proposal confers no rights on the tend (13) The matter can be examined even from a different aspect. There are fisheries on lands belonging to the Government. The fisheries are to be settled to the best interest, of the revenues of the State. The settlement therefore is a public duty cast upon the Deputy Commis­sioner or the Sub-divisional Officer. When entrusted with the duty of making settlements they have to discharge their public duty. There are fisheries on lands belonging to the Government. The fisheries are to be settled to the best interest, of the revenues of the State. The settlement therefore is a public duty cast upon the Deputy Commis­sioner or the Sub-divisional Officer. When entrusted with the duty of making settlements they have to discharge their public duty. But it confers no right on the tenderer to insist upon the settlement in his favour, much less, it confers any right on the tenderer to insist upon the consultation with the Advisory Board before submission of the proposal by die Deputy Commissioner or the Sub divisional Officer to the Commissioner of Plains Division for sanction. The other reasoning given by their Lordships of the Supreme Court is to be found in the following passage at page 917 of the report: "The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320 (3) (c)? It does not, either in express terms or by implication, provide that the result of such a non-compliance is to invalidate the procee­dings ending with the final order of the Govern­ment. This aspect of the relevant provisions of part XIV of the Constitution has a direct baring on the question whether Art. 320 is mandatory." Thereafter their Lordships quoted with approval the observations of their Lordships of the Privy Council in the cases reported in 1917 AC 170: (AIR 1917 PC 142) and AIR 1945 FC 67 (ibid), to which I have already referred. (14) Dealing with the argument based on the use of the word 'shall' it is observed as follows at page 917 of the report ((S) AIR 1957 SC 912 ): "An examination of the terms of Art. 320 shows that the word 'shall' appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320(3Xc) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointment its made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. If it were held that the provisions of Art. 320(3Xc) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointment its made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely .affect the person, so appointed, to a public service, without any fault on his part and without his having any say iii the matter. Thu result could not have been contemplated by the makers of the Constitution. Hence, the use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily wean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid." (15) In my opinion the above reasoning also applies to the provisions of Rule 45 of the Rules. The argument of Dr. Medhi leads to the result (that a tenderer with whom a fishery has been settled, ultimately will suffer on account of the act of the Subdivisional Officer in not consulting with the Advisory Board before submitting the proposal for sanction to the Commissioner, although he had no hand in the proceedings relating to the consultation with the Advisory Board. A person who has acquir­ed a right tinder the settlement is thus affected by the failure of the Subdivisional Officer to comply with the requirement of consultation with the Advisory Board. The framers of the rule could sol have intended that such a result should follow. (16) In the case of Hazari Mai Kuthiala v. Income-tax Officer, Special Circle. Ambala Cantt., reported in AIR 1961 SC 200 , the views expressed in the earlier case reported in (S) AIR 1957 SC 912 {ibid) were reiterated. The question which arose in this case for consideration was whether the pro­visions of Sec. 5(5) of the Patiala Income Tax Act which provided for consultation before a Commis­sioner acted under the said section, were mandatory or directory. It was observed by their Lordships as follows : "We do not think- that the failure to consult the Central Board of Revenue renders the order of the Commissioner ineffective. It was observed by their Lordships as follows : "We do not think- that the failure to consult the Central Board of Revenue renders the order of the Commissioner ineffective. The provision about consultation must be treated as directory, on the principles accepted by this Court in 1958 SCR 533 : (S) AIR 1957 SC 912 * * * * ". It should also be pointed out that assuming that Rule 45 of the Rules is attracted at every stage of the submission of the proposal for sanction by the Deputy Commissioner or the Subdivisional Officer to the Commissioner, to hold that the requirement of consultation with the Board is manda­tory will lead to a good deal of inconvenience arid may not be workable in some cases. Suppose the fishery is to be leased for a year. The Sub-Divi­sional Officer in consultation with the Advisory Board submits a proposal for sanction. The sanc­tion is accorded by the Commissioner and the set­tlement is consequently made with the tenderer. The settlement is set aside on appeal by this Court, or there may be a case where the Commissioner himself refuses to sanction and asks for a fresh proposal, or as in the present case, there is a mandamus issued by this Court directing the Sub-divisional Officer to send a fresh proposal. If the provision of consultation with the Board is deemed to be mandatory, it will have to be insisted that in strict compliance with the provision of the rule the same Advisory Board should be consulted. The Advisory Board is an Ad-Hoc body and comes to an end alter it has been consulted and it may be impossible to have the same Advisory Board called. It may be that the members of the old Advisory Board may be available and they may be collected together. But that will not be in strict compliance with the terms of the rule and even that may take sometime. After the matter goes back to the Deputy Commissioner or the Sub-divisional Officer, he may after consulting the Advisory Board submit the proposal for sanction and the Commissioner may sanction it. At a later stage the .person with whom the settlement is made may be the same tenderer with whom the settlement had been made earlier and the settlement may ultimately be upheld by tins Court. At a later stage the .person with whom the settlement is made may be the same tenderer with whom the settlement had been made earlier and the settlement may ultimately be upheld by tins Court. Though ultimately it is die same tenderer who gets the settlement but on account of the failure to carry out the duties im­posed on the Deputy Commissioner or the Sub-Divi­sional Officer the tenderer suffers. Major portion of the period of lease expires before he actually gets the settlement and then starts operation. (17) It has been contended by Dr. Medhi that the difficulty in carrying out the mandatory provision is not a good ground for holding that the provision should not be complied with. This argument overlooks the real import of the reasons mentioned by me earlier. As I have already said, the object of the legislature and the inconvenience which will result are matters which are to be con­sidered in interpreting the provisions of a statute. If we start with this assumption that this particular requirement of R. 45 is mandatory, then no amount of difficulty in carrying out the provisions of a statute can be pleaded in defence by the authority concerned and this Court will not uphold its action contrary to such provisions. But the circumstances including the difficulty pointed out by me are certainly relevant when this court is called upon to interpret the provisions of Rule 45. Even assuming for argument's sake that the rule will be complied with if the members forming the Advisory Board at the initial stage are recalled as the Advisory Board will be deemed to have continued in existence, - there is no reason why the requirement of consultation itself cannot b* regarded as directory. (18) One other argument advanced by Dr. Medlii may be considered. He has contended that as Sec. 16 of the Regulation which I have set out above, makes it obligatory and uses a negative word, it necessarily follows that the fishery must be settled in accordance with the rules made under Sec. 155 of the Regulation. I fail to understand the rele­vancy of this argument on the question which I have to decide. Nobody would say that the settle­ment can be made in a manner other than the one provided under the rules framed under Sec. 155. I fail to understand the rele­vancy of this argument on the question which I have to decide. Nobody would say that the settle­ment can be made in a manner other than the one provided under the rules framed under Sec. 155. If a certain requirement of Rule 45, is not manda­tory but is only directory, mere non-compliance with such a direction will not amount to non-obser­vance of the rules or that it will amount to settle­ment of the fishery otherwise than in accordance with the rules framed under Sec. 155. If a settle­ment is made under the provisions of the rule but some of the requirements which are only directory under the rule are not followed, the settlement still is under the rule and not outside the rules. (19) The next argument was that the whole object of providing for consultation is to keep a check on the arbitrary action of the authorities in making settlement of the land or the fishery belong­ing to the State. The settlement of a fishery is likely to affect the revenue of the State and any arbitrary action, on the part of the Deputy Commis­sioner or the authorities is likely to affect the public interest. It is to put a check on the arbitrary action of the officers that this solemn rule has been framed. But this object cannot be achieved as the rules does not make it obligatory on the authority to accept the recommendation made by the Advisory Board. As the Deputy Commissioner or the Subdivisional Officer has only to take into consideration the advice given by the Board and need not follow it, it cannot be said that the under­lying object of the rule is to put a check on the arbitrary action of the Deputy Commissioner. On the contrary the underlying object may be to enable the authorities to get the advice of the local people who may be conversant with the case of the tenderers and may be in a position to inform the Deputy Commissioner of the financial status or the character of the tenderers. In this view of the matter the advice may be helpful and this object will not be frustrated if the Deputy Commis­sioner or the Subdivisional Officer has all the mate trials before him & is in a position to assess the finan­cial status or the character of the tenderers. In this view of the matter the advice may be helpful and this object will not be frustrated if the Deputy Commis­sioner or the Subdivisional Officer has all the mate trials before him & is in a position to assess the finan­cial status or the character of the tenderers. The underlying object of Rule 45 is to maintain the secrecy of the names of the members of the Advisory Board and if the rule is interpreted as contended by the appellant, the said object will be nullified. I need not emphasise that all these are relevant considerations in finding out whether a particular provision is mandatory or directory. (20) It should also be pointed out that merely because a provision is held to be directory it does not lose its solemnity. If a certain rule is framed with the object of affording the autho­rities with the unbiased advice and opinion on the matters vitally affecting the public revenue, such rules are ordinarily meant to be followed. But the question which we are called upon to decide is whether the non-compliance with the provisions will render the proceedings a nullity. I am therefore, of opinion that provisions contain­ed in Rule 45 requiring consultation with the Advisory Board before submitting a proposal to the Commissioner for sanction are only directory and failure to do so will not make the sanction as non-existent in the eye of law and the conse­quent settlement ultra vires. (21) Another argument was advanced in this connection by the counsel for the State that the provisions of Rule 45 do not in terms apply to the submission of a proposal at a later stage. Reading Rules 42, 43 and 45 of the Rules together it is contended that the Advisory Board is to be con­sulted in making the proposal at the first instance when the tenders are opened. Rule 45 does not cover the case of resubmission of proposal neces­sitated either by the setting aside of the settle­ment by this court in appeal or by die refusal of the Commissioner to sanction the earlier pro­posal or on account of a mandamus issued by this court directing the Deputy Commissioner or the Sub-Divisional Officer to submit a fresh pro­posal for sanction. The argument to my mind does not mean that the substantial compliance with Rule 45 is sufficient. The argument to my mind does not mean that the substantial compliance with Rule 45 is sufficient. The argument in fact is that Rule 45 does not in terms apply to the aforesaid set of facts and circumstances and the question therefore, of violation of Rule 45 does not arise in the present case. Dr. Medhi has pointed out that if this inter­pretation is accepted, then there is no provision apart from Rule 45 under which the proposal is to be submitted for sanction to the Commissioner; nor there is any other provision under which the Deputy Commissioner or the Subdivisional Officer can settle the fishery. There are various answers to this objection. But as this point specifically has not been referred to the Special Bench I refrain from expressing my opinion and examining the arguments advanced by the parties' counsel on this behalf. Compliance with the requirement of consultation at the initial stage no doubt will consti­tute in any case substantial compliance with R. 45 and whether that is sufficient or not will again depend upon the interpretation of the provision of Rule 45. (22) I shall now take up the second point, namely, if it is held that the requirement of R. 45 about consultation is mandatory, whether this Court in appeal can after setting aside the settlement with the respondent on the ground that the said mandatory provision was not complied with, could take up the case of all the tenderers and decide for itself which of the tenderers was suitable for settlement and settle with one of the tenderers, it should be pointed out that the counsel both for the appellant and the respondents contend that this Court after holding that the settlement was illegal as the Advisory Board was not consulted before submitting the proposal to the Commissioner, should remand the case to the Subdivisional Officer for settlement after complying with the provisions of Rule 45 and not to make its own selection for settlement. The point therefore is of academic interest. As it has been held in a single Judge decision by my lord the Chief justice that this court has such a power and the correctness of that decision was challenged at the time of the argument, the point was referred by me to the Special Bench for consideration. The point therefore is of academic interest. As it has been held in a single Judge decision by my lord the Chief justice that this court has such a power and the correctness of that decision was challenged at the time of the argument, the point was referred by me to the Special Bench for consideration. As I have been able to read the judgment of my Lord the Chief Justice, he seems to be of opinion that as soon as the appeal is filed in this court, the whole question is at large including the process of selection and this court thus can make its own selection as soon as the appeal is filed and particularly when the order of settlement .passed by the Deputy Com­missioner or the Subdivisional Officer has been set aside on the ground that it is illegal. My lord Dutta, J. seems to be of opinion that both the courses are open to the appellate court. It may either remand the case to the Deputy Commis­sioner or the Subdivisional Officer for compliance with Rule 45 or to make its own selection and direct settlement with the person so chosen. Sub­stantially there is no difference between the two opinions. I would however like to express my own opinion in the matter as I am not inclined to agree with the views expressed by my Lord the Chief Justice or Dutta, J. (23) Under the rules the present appeal has been filed against the order of settlement. The Advisory Board comes into the picture only at the stage of preliminary selection before the pro­posal is submitted to the Commissioner for sanc­tion. Before it is sanctioned and actual settlement is made, it remains only a proposal. It cannot be said that in the present case any appeal was filed against the selection made by the Deputy Commis­sioner or the Subdivisional Officer for the purpose of sending the proposal to the Commissioner for sanction. The selection made in consultation with the Board is not to be recorded. No Order is to be .passed on that behalf. Thus it is doubtful if the selection by itself can be appealable under Rule 11 of the Fishery Rules. The selection made in consultation with the Board is not to be recorded. No Order is to be .passed on that behalf. Thus it is doubtful if the selection by itself can be appealable under Rule 11 of the Fishery Rules. If an appeal is filed against an order, then according to the pro­cedural law of this Court, the Court of appeal is a court of rehearing and not a court of review and thus it exercises all the powers of the trial court In other words its powers are co-extensive with that of the trial court. As soon as the appeal is filed, the whole matter is in effect reheard by the appellate court and in that sense the whole matter is set at large and the appellate court as if is substituted in place of the trial court and can decide the matters which arise in the case between the parties. For this proposition refer­ence may be made to the case of 'Lachmeshwai Prasad Shukul v. Keshwar Lai Chaudhuri reported in AIR 1941 F. C. 5 wherein it was held that once the decree of the High Court has been appealed against, the matter becomes sub judice again and thereafter the Federal Court has seisin of the whole case, though for certain purposes. It was further observed in this case as follows : "As stated in Shyamakant Lal v. Rambhajan Singh, 1939 FCR 193: (AIR 1939 FC 74) there is no reason to suppose that the powers of this Court when acting as a court of appeal are less extensive than those of the High Courts when hearing an appeal; 'and it has been a principle of legislation in British India at least from 1861 that a Court of appeal shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Civil Procedure Code on court' of original jurisdiction." The matter which came up for consideration before their Lordships of the Federal Court was whether the appellate court could take into consideration the law which came in force subsequent to the decision of the trial court. (24) This view was reiterated in the case of 'Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam reported in AIR 1,958 SC 398 at p. 408 in the following terms : "That being so, the powers of the Appellate Authorities in the matter of settlement, would be co-extensive with the powers of the primary autho­rity, namely the District Collector or the Subdivi­sional Officer”. The question therefore arises as to how can these principles be applied to the facts of the present case and to the provisions of the statute under con­sideration. (25) As I have already said the appeal is filed against the order of settlement and not against the process of selection. If the Deputy Commis­sioner of the Subdivisional Officer is bound to act on the advice of the Board in making the selection, it is difficult to understand how this appellate court can exercise a power larger than that of the trial court and make its own selection. Cases where a settlement lias been granted after comparing the respective merits of the tenderers and the order of settlement is appealed to this Court, this Court may examine the case of each tenderer separately and come to its own conclusion as to which of the tenderers should be preferred. But when it is held on the interpretation of Rule 45 that the provisions with regard to consultation are mandatory, it neces­sarily follows 'that the Deputy Commissioner is bound to accept the advice of the Board before submitting its proposal to the Deputy Commissioner. In that view of the matter it will be difficult to hold that the appellate court when exercising a co-extensive power need not consider the opinion of the Advisory Board at all. The provisions with regard to consultation before making settlement are thus mandatory in so far as the Deputy Com­missioner or the Sub-divisional Officer is concern­ed but when the same power is being exercised by the appellate Court that ceases to be mandatory. I do not think that any such interpretation can be given. It is contended that Rule 45 in terms does not apply to appellate court. I do not think that any such interpretation can be given. It is contended that Rule 45 in terms does not apply to appellate court. But the question is if the appellate court is exercising a co-extensive power, it cannot be said that it is not bound to consult the Advisory Board before making an actual settlement while the Deputy Commission, r or the Sub-Divisional Officer was bound to do so arid the provisions were mandatory so far as they were concerned. The very result of treating this provi­sion as mandatory is that the Deputy Commissioner or the Sub-Divisional Officer is bound to accept the advice given by the Advisory Board and if the appellate court can make its own selection, it in effect need not consider the advice given by the Advisory Board itself. If the opinion of the Advisory Board is only in the nature of a suggestion to the Deputy Com­missioner or the. Sub-Divisional Officer and he is not bound by it, in that case it may be said that as the Deputy Commissioner or the Sub-Divisional Officer himself in the matter of settlement makes his own selection after duly taking into considera­tion the opinion of the Advisory Board, the selec­tion is examinable by the appellate court and the appellate court may itself .make selection. But once it is held that the provisions regarding con­sultation are mandatory in the sense that the advice is binding on the Deputy Commissioner or the Sub-Divisional Officer, I find it difficult to hold that the appellate Court may ignore that advice and make its own selection. (26) The other difficulty which I find in ac­cepting the argument is that in the present appeal only the appellant who was not granted the settle­ment and Bapuram Das, Secretary Bania Kuchi Co-operative Fishery Society Ltd. who has been granted the settlement have been impleaded as parties. The other tenderers who were also in the field and whose merits could have been consider­ed by the Deputy Commissioner or the Sub-Divisional Officer are not before this Court. In these circumstances it is difficult to hold that this Court in appeal is only exercising the power of making selection after considering the merits of each of the tenderers. (27) The last point urged by Dr. In these circumstances it is difficult to hold that this Court in appeal is only exercising the power of making selection after considering the merits of each of the tenderers. (27) The last point urged by Dr. Medhi was that the parties in the present case will be govern­ed by the unamended Rule 46 and not by the amend­ed rule. Rule 46 before amendment was as follows: "46. Fisheries shall be settled to the best ad­vantage and subject to this condition, the agency of middlemen as lessee shall be done away with as far as possible. (1) Co-operative Fishery Societies formed by actual fishermen of the Scheduled Caste and registered tinder the Indian Co-operative Societies Act, and (2) individual actual fishermen of the Scheduled Caste shall be given preference^ ia the order stated above, in the matter of settlement of fisheries, provided their tender is not below an amount which is less than the highest tender by only 10 per cent; provided further that this monetary concession is limited to fisheries whose value does not exceed Hs. 20,000/-. Provided further that when the same Co-opera­tive Fishery Society formed by the actual fishermen of the Scheduled Caste or the same individual actual fishermen of the Scheduled Caste, offers tenders for more than one fisheries, the 10 per cent con­cession allowable should be restricted to one fishery only". After amendment Rule 46 reads as follows: "46. Fisheries shall be settled, to the best ad-­vantage and subject to this condition, the agency of middlemen as lessee shall be done away with as far as possible. (a) A Co-operative Fishery Society formed by actual fishermen of the Scheduled Caste and registered under the Assam Co-operative Societies. Act, 1949, shall be given option of taking settle­ment of Fisheries at the highest tender, provided that its tender is not less than 7% per cent of the highest tender. (b) When the tender of such Co-operative Societies is below 7i per cent of the highest tender (i) Co-operative Societies as stated above, (ii)-individual members of the Scheduled Caste, (iii) in­dividual members of the Scheduled Tribes and other Backward Classes who may submit tender at not less than 60 per cent of the highest tender may be given option to take settlement of the fishery at the highest tender in the order of preference stated above subject to the suitability of the tenderer. (c) When a fishery, the tender value of which does not exceed Rs. 35,000 is settled with any one falling within one of the categories stated in the sub--rules (a) and (b) above, the lessee shall get rebate of 7V2 per cent as concession. (d) An tenderer who claims the concessions provided in this Rule shall indicate it in his tender." The contention is that the monetary concession under the old Rule 46 was available to fisheries whose value does not exceed Rs. 20,000. This limit of Rs. 20,000, has been deleted from the amended Rule 46 and thus the concession is avail­able to every fishery. As the fishery in question is valued at more than Rs. 20,000 the settlement has-been made with the respondent No. 2 in view of the preference given to him under the amended-Rule 46. If the unamended Rule 46 applies, the respondent No. 2 was not entitled to any preference. There are various answers to the contention raised by Dr. Medhi. Section 16 of the Regulation which I have already set out says that no right to any declared fishery can be acquired by any person-except as provided in the rules made under Sec­tion 155. It necessarily implies that the right can be acquired by the public or any (person only under the rules in force at tile time when the right is to be acquired. The right is acquired not by mere submission of tender or by issue of the sale notices but by settlement and if sec. 16 lays down that the right can only be acquired in pursuance of the rules framed under Sec. 15.5, it necessarily follows that the rules in force at the time when the right is acquired will govern the acquisition of right and not the rules which are non-existent at the time. Prima facie the rule which is prevalent at the time when the right is being conferred on the person, will govern the matter. A rule which is non-existent at the time cannot obviously govern the matter and it cannot be said that if aid is taken of the rule in force at the time, it is giving retrospective effect to such rule. Unless there is something in the statute itself, it is clear that no retrospective effect can be given to the statute. A rule which is non-existent at the time cannot obviously govern the matter and it cannot be said that if aid is taken of the rule in force at the time, it is giving retrospective effect to such rule. Unless there is something in the statute itself, it is clear that no retrospective effect can be given to the statute. But by applying a law which is in force at the time when the right is created, it cannot be said that any retrospective effect is being given to such rule. Rules cannot be interpreted so as to affect the vested rights or the rights which have already accrued to a person. But if no right has accrued to a person the question of affecting such a vested right does not arise. The word 'retrospective' is used in several distinct senses. An act may be described as "res-prospective' because it affects existing contracts as from the date of its coming into operation. An set may be described as retrospective because it applies to actual transactions which have been completed or to rights or remedies which have al­ready accrued or it may apply to such matters as procedure and evidence but it cannot be said that in each of these cases such a legislation will have the same effect. Briefly if an act provides that as at a past date the law be taken to have been that which it was not, that Act would be retrospective. A statute is given retrospective •effect when it is construed as taking away or impair­ing any vested right acquired under existing laws. But if at the date of the passing of the Act the event has not happened, then the operation of the Act in forbidding the. subsequent coming into existence of that is not a retrospective operation but is an interference with the existing rights. (28) Reference may be made to the case of Indira Sohanlal v. Custodian of Evacuee Property, Delhi reported in (1955) 2 SCR 1117 : ((S) AIR 1956 SC 77 }. In this case a displaced person from Lahore who was an owner of a house there, arranged on the 10th October 1947 to have it exchanged with certain lands in a village in the State of Delhi belonging to another evacuee. In this case a displaced person from Lahore who was an owner of a house there, arranged on the 10th October 1947 to have it exchanged with certain lands in a village in the State of Delhi belonging to another evacuee. On 23rd February, 1948, she made an application to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the transaction of exchange under Section 5-A of the East Punjab Evacuees' (Administration of Pro­perty) Act, 1947. Under Sec. 5-B of the Act an order if passed by 'the Custodian or Additional Custodian would not be subject to appeal or revi­sion, and would become final and conclusive. The application however was disposed of on 20th March, 1952, on which date the Additional Custo­dian passed an order confirming the exchange. In the meantime there was an alteration in the law which conferred by Sec. 27 revisional powers on the Custodian-General. The Custodian General in the exercise of the power under Sec. 27 and after hearing the parties, set aside the order of confirma­tion and directed the matter to be reconsidered I»y the Custodian. It was argued before the Supreme Court that the confirmation made by the Additional Custo­dian was not open to revision, as under the law which existed on the date when the application for confirmation was filed the order of the Additional Custodian was final and was not liable to be set aside in revision. The applicant acquired a vested right of finality attached to the order of the Additional Custodian confirming the sale and this vested right could not be disturbed to the subsequent legislation. This contention was repelled. It was observed as follows at p 1133 (of SCR) : (at .p. 84 of AIR) of the report :- "However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action though we do not so decide - no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action. By the very terms of sec. 5-B of East Punjab Act XIV of 1947, finality attaches to it on the making of the order. By the very terms of sec. 5-B of East Punjab Act XIV of 1947, finality attaches to it on the making of the order. Even if there be, in law any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right. It does not accrue until the determination is in fact made when alone the right to finality becomes an existing right". Applying the principle to the facts of the present case, by submitting a tender the appellant in the present case may have acquired a right to get settle­ment in future if he was selected by the Deputy Commissioner or the Subdivisional Officer. But it can in no sense be a vested or an accrued right till the settlement was actually made. The argu­ment of the appellant is that the respondent could not be given preference under the amended rule and that the appellant acquired a vested right under the rules which existed at the time when he made his tender, which could not be disturbed by the amended rule. Reliance is placed on Sec. 6 of the Assam General Clauses Act, relevant provisions of which read as follows: "6. Where any act repeals any enactment hitherto made, or hereafter to be made then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enact­ment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed." (29) Sub-section (a) of Sec. 6 is not attracted in the present case as the amended Act does not revive anything not in force at the time at which the amendment took place. Sub-sec, (c) is also not attracted as no right or privilege had accrued to the appellant under the unamended rule. Reli­ance is placed only on sub-sec, (b). This to my mind does not prohibit the court from taking into consideration the amended rule in determining the respective merits or desirability of the tenderers for settlement. The amended Act will not affect any­thing duly done or suffered thereunder. Reli­ance is placed only on sub-sec, (b). This to my mind does not prohibit the court from taking into consideration the amended rule in determining the respective merits or desirability of the tenderers for settlement. The amended Act will not affect any­thing duly done or suffered thereunder. This only means that the tender submitted in pursuance of the notice issued under the unamended rule will not stand cancelled. It will be a valid tender. The notice issued under the unamended section will not be affected by the new amended rules. In fact there is no amendment of Rule 42 or Rule 43 which provides for the issue of notice and submis­sion of tenders. The question therefore, of affecting notices or tenders does not arise. (30) The next branch of the argument is that if the notice has not been affected by the amendment of the rules, cl. 14 of the sale notice which provides that the' settlement will be subject to the confirmation by the Commissioner of Plains Division, Assam and to the rules for the time being in force, will make the rules in force at the time of the issue of the notice applicable to the settle­ment. Clause 14 speaks of the settlement and provides that it will be subject to the rules for the time being in force. The words "for the time being in force" will naturally relate to the date of settlement and not to the date of the issue of the notice. Moreover the said notice cannot in any way affect the rules. Reliance is placed on the case of 'Heston and and Isleworth Urban District Council v. Grout' reported in (1897) 2 Ch. 306. In this case an urban local authority served notice under Sec. 150 of the Public Health Act, 1875, to sewer and make up a private street. Under this notice, if the frontagers did not do the work within a limited time, the local authority had a right to do it them­selves, and charge the frontagers with the expenses, to be apportioned as provided by the above section. Under this notice, if the frontagers did not do the work within a limited time, the local authority had a right to do it them­selves, and charge the frontagers with the expenses, to be apportioned as provided by the above section. The frontagers having made default, the local autho­rity took steps towards doing the work; but before it had been commenced they adopted the Private Street Works Act 1892, which by Sec. 25 pro­vides that from its adoption in any district Sec. 150 of the Public Health Act, 1875, shall not apply to that district. The work was subsequently done by the local authority, and the expense apportioned according to the Act of 1875. It was held in these circumstances that Sec. 25 of the Act of 1892 did not affect the notice given while Sec. 150 was in force in the district, though after the adop­tion of the Act of 1892 no fresh notice could be given under Sec. 150. This case to my mind, does not help the appellant's contention. It only lays down that the notice issued under the previous unrepealed Act will be alive and the amended Act will not affect the validity of the notice en-effect of the notice given. As I have already point­ed out. the provisions for issue of notice and for submission of tender have not been repealed. The question therefore, of affecting the validity of the notice does not arise in the present case at all; nor does the question of affecting the effect of the notice arise in the present case. The notice only gave the appellant a right to submit a tender. Even cl. 7 of the sale notice provides that there is no obligation on the part of the undersigned to accept the highest or any tender or to assign any reason for rejecting any tender. If therefore the appellant's tender was not accepted or that the respondent's tender was accepted in view r-f the provisions of the amended rule 46, it cannot be said that such an action in any way violated the natural effect of the sale notice. If therefore the appellant's tender was not accepted or that the respondent's tender was accepted in view r-f the provisions of the amended rule 46, it cannot be said that such an action in any way violated the natural effect of the sale notice. In this case the question did not come up for consideration as to which law will apply to the parties, the one in force at the date when the right accrued to the party or the one which was in force at the time when the application was made on which he may have been entitled to acquire right io future. Even under the old rule the ac­ceptance or rejection of a tender was within the discretion of the Deputy Commissioner Or the Sub-divisional Officer and the discretion even otherwise invalidly exercised, cannot be interfered with by this Court in appeal simply on the ground that he has taken into consideration certain grounds of preference which are available to the respondent only after amendment. Even if in terms the amended Rule 46 did not apply, the Deputy Commissioner or the Sub-divisional Officer could select any of the tenderer; and it could not be said that it was a violation of any of the provisions of Rule 46 so as to call for an interference by this court in appeal with the order of settlement. The preference was available to a co-operative fishery society formed by actual fisher­men of the scheduled caste even under the old rule. The only limitation was that such a prefe­rence will not be available in respect of a fishery whose value exceeds Rs. 20,000. This limitation has been removed. The concession also relates to the monetary concession but nowhere it is laid down in Rule 46 that a co-operative fishery society formed by actual fishermen of the scheduled caste cannot be selected in preference to the other ten­derers even though their tender may not be the highest. (31) I would therefore .answer the points re­ferred to the Special Benclr4or opinion as indicated above. DUTTA, J. : (32) This is an appeal under S. 147 of the Assam Land and* Revenue Regulation (hereinafter called the Regulation) read with Rule 11 of the Rules framed under Ss. 155 of the said Regulation (hereinafter called the Fishery Rules). (31) I would therefore .answer the points re­ferred to the Special Benclr4or opinion as indicated above. DUTTA, J. : (32) This is an appeal under S. 147 of the Assam Land and* Revenue Regulation (hereinafter called the Regulation) read with Rule 11 of the Rules framed under Ss. 155 of the said Regulation (hereinafter called the Fishery Rules). The appeal came up before my learned brother Mehrotra, J. who referred it to the Full Bench formulating cer­tain points. The appellant's case is as follows; (33) The Government of Assam selected Fishery No. 28 Barkana Beel with Nos. 29 and 68 in the Barpeta Sub-Division to be settled by tender and asked the Sub-Divisional Officer, Barpeta to take necessary action. So the Sub-Divisional Offi­cer in conformity with the Fishery Rules invited tenders by sale notice dated 22-12-59 for settle­ment of the said fishery and fixed the last date for submission of tenders up to 3 P. M. on. 3-2-60-The appellant filed a tender in tile prescribed form in due time and it was accepted as a valid one. Then the Sub-Divisional Officer, Barpeta appointed an Advisory Board as required and the leaders were opened on 4-2-60 in the presence of the said Advisory Board as required under Rule 45. .It was found that the offer given by appellant at Rs. 24,550/- was the highest. The Advisory Board considered all the tenders in connection, with the settlement of this fishery and after very careful consideration unanimously advised the settlement of the fishery with the appellant and the Sub-Divisional Officer accepting the said advice sent up his proposal to the Commissioner for sanction of the settlement of the fishery with the appellant at Rs. 24.550/-. The sanction of the Commissioner is necessary under Rule 45. Then on 2-3-60 the Commissioner ordered issue of fresh sale notice on the ground that the proceedings were irregular. Thereupon the appel­lant submitted a Writ petition before this Court which was allowed on 13-5-60 and it was held that the order of the Commissioner was illegal. It was directed that the Sub-Divisional Officer should re-submit the settlement proposal to the Commissioner for fresh confirmation. Accordingly, the original of settlement with the appellant wag re-submitted on 1-7-60, but the Commissioner refused to con­firm the sale, and asked the Sub-Divisional Officer to submit a fresh proposal indicating that the settle­ment should be made with respondent No. 2. It was directed that the Sub-Divisional Officer should re-submit the settlement proposal to the Commissioner for fresh confirmation. Accordingly, the original of settlement with the appellant wag re-submitted on 1-7-60, but the Commissioner refused to con­firm the sale, and asked the Sub-Divisional Officer to submit a fresh proposal indicating that the settle­ment should be made with respondent No. 2. In obedience to the said order the Sub-Divisional Offi­cer submitted a proposal for the settlement of the fishery with respondent No. 2 and the Commis­sioner confirmed the same on 14-9-60. (34) Dr. Medhi, appearing on behalf of the appellant, puts forward two contentions which had been raised before my learned brother Mehrotra, I. who referred them to the Full Bench. His first contention is that Rule 45 of the Fishery Rules is mandatory and as such it was obligatory on the part of the Sub-Divisional Officer to consult the Advisory Board when he re-submitted the proposal to the Commissioner for sanctioning tire settlement of the fishery with respondent No. 2. Rule 45 of the Fishery Rules reads as follows: "The Deputy Commissioner or the Sub-Divi­sional Officer, as the case may be, shall open the tenders in the presence of an Advisory Board con­sisting of not less than 5 persons called at the moment and in consultation with that Board make a selection of the most suitable tender and submit the proposal for settlement to the Commissioner of Plains Division for sanction. The selection of members of the Board shall be strictly confiden­tial". (35) Section 16 of the Regulation lays down that no fishery shall be settled except in accordance with the Fishery Rules. The selection of members of the Board shall be strictly confiden­tial". (35) Section 16 of the Regulation lays down that no fishery shall be settled except in accordance with the Fishery Rules. This section is as follows: "The Deputy Commissioner, with the previous sanction of the Provincial Government, may, by proclamation published in the prescribed manner, declare any collection of water, running or still, to be a fishery; and no right in any fishery so declared shall be -deemed to have been acquired by the public or any person, either before or afler the commencement of this Regulator;, except as provid­ed in the rules made under S. 153: Provided that nothing in this section shall affect any express grant of a right to fish made by or on behalf of the Crown or any fishery rights acquired by a proprietor before the commence­ment of this Regulation, or the acquisition by a proprietor of such rights in any fishery forming after the" commencement of this Regulation in his estate". (36) Dr. Medhi has strenuously argued that the aforesaid section prohibits the settlement of any fishery except in accordance with the Fishery Rules and that when an enactment is in prohibitory language, the formalities laid down by it are mandatory. He has quoted the following passage from 'Craies on Statute Law' 5th Edition, page 243 in support of his argument viz: "If the requirements of a statute which pres­cribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it had been laid down that these requirements are in all cases absolute, and neglect to attend to them will invali­date the whole proceeding". (37) Dr. Medhi has also cited the judgment o£ the Supreme Court in State of Assam v. Keshab Frasad, AIR 1953 SC 309 in support of his conten­tion that in the settlement of fishery the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, is bound to follow the prescribed procedure. Dr. Medhi further contends that when a provision affects an individual's right, it is al­ways mandatory. Dr. Medhi further contends that when a provision affects an individual's right, it is al­ways mandatory. Reliance is placed in support of this contention on a (judgment of the Supreme Court in Dattatraya v. State of Bombay, AIR 1952 SC 181 in which the following passage from Max-Well's Interpretation of Statutes was quoted and the principle accepted: "Where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words as direcfory only". (38) Dr. Medhi argues that in the present case the right of an individual is involved in the observance of the statutory provision and as such, it was obligatory for the authority to rigorously observe the same. He submits that the omission on the part of the Sub-Divisional Officer to consult the Advisory Board before submitting the proposal for settlement of the fishery with respondent NO.. 2 is a clear breach of a mandatory statutory provi­sion to the prejudice of the appellant and as Such the said settlement is void. (39) The Senior Government Advocate Mr-Goswami first contends that Rule 45 of the Fishery Rules is merely direcfory. But when it is pointed out to him that the provision of sanction by the Commissioner is also found in that rule, he Submits that only that part of the rule which requires con­sultation with the Advisory Board is directory. In support of this contention he cites a decision of the Supreme Court in (S) AIR 1957 SC 912 , in which the provisions of Art. 320 (3) (c) of the Constitu­tion, of India were held not to be mandatory. I do not see how the decision in this case can be of any help to Mr. Goswami. This Article lays down that in all disciplinary matters the Union Public Service Commission, or the State Public Service Commission, as the case may be, shall be consulted. In the case before the Supreme Court an employee in the Education Department of the Government of Uttar Pradesh was demoted on certain charges. Goswami. This Article lays down that in all disciplinary matters the Union Public Service Commission, or the State Public Service Commission, as the case may be, shall be consulted. In the case before the Supreme Court an employee in the Education Department of the Government of Uttar Pradesh was demoted on certain charges. The Government took the opinion of the Public Service Commission, but an elaborate explanation submitted by the employee subsequently was not placed before it- Hence a Division Bench of the High Court held that the impugned orders were invalid for the reason that the provisions of Article 320 (3) (c) of the Constitution of India had not been fully complied with. The Supreme Court found that the High Court overlooked the proviso to Article 320 itself which empowers the President' or the Governor to make regulations specifying the matters, in which either general or in particular class of cases or in parti­cular circumstances, it shall not be necessary for a Public Service Commission to be consulted. The above proviso makes it clear that the Constitution makers envisaged certain cases or class of cases in which the Commission need not be consulted. The above Article was held to be directory in view of this proviso. The Supreme Court observed, how­ever, that once a regulation was made providing for consultation with the Public Service Commission in disciplinary matters affecting a public servant that regulation had to be followed in letter and in spirit. The circumstances of the case before us are entirely different. Here a particular Procedure is laid down for the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, to be followed in the settlement of fisheries and there is nothing to show that the law-making authority intended that the requirement of consultation with an Advisory Board should Be ignored or evaded. On the other hand, there is a good deal of force in the argument of Dr. Medhi that the pro­visions of Rule 45 of the Fishery Rules are mandatory. In my view, when the whole aim and ob­ject of the law-making authority will be plainly defeated, if a prescribed procedure is not followed, there can be no doubt that the procedure laid down is mandatory. (40) Mr. Medhi that the pro­visions of Rule 45 of the Fishery Rules are mandatory. In my view, when the whole aim and ob­ject of the law-making authority will be plainly defeated, if a prescribed procedure is not followed, there can be no doubt that the procedure laid down is mandatory. (40) Mr. Goswami's second contention is that even assuming Rule 45 is mandatory, it was sub­stantially complied with by the Sub-Divisional Officer who consulted the Advisory Board when he submitted his first Proposal to the Commissioner. He argues that after that the Advisory Board be­came functus officio and that if that Board was consulted again there would have been violation of the rule as it was no longer a Board called at the moment and the names of its members became public. It is difficult to accept Mr. Goswami's con­tention that a substantial compliance with an im­perative provision is enough. A mandatory statutory requisite must always be rigorously observed: "The general rule is, that an absolute enact­ment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." (Maxwell's Interpretation of Statutes, 9th edition p. 374)." It is true, that an impossibility is always an excuse for non-compliance with an absolute provision. The performance of formalities prescribed by the statute may become impossible due to an act of God or force majeure but in the present case there was no difficulty for the Sub-Divisional Officer to act according to the prescribed procedure. When the Commissioner refused to sanction the settlement of the fishery with the party recommended by the Sub-Divisional Officer in consultation with die Advisory Board, the Sub-Divisional Officer could have easily called for fresh tenders and submit his fresh proposal to the Commissioner in compliance with Rule 45. In this connection the following observations made by a Full Bench of this Court in Harinath Das v. State of Assam, AIR 1958 Assam 70 (FB) are pertinent: "Ultimate settlement is to be made by the Deputy Commissioner himself and there is nothing to debar the Deputy Commissioner when ultimately settling tile fisheries to be guided by the advice of the Commissioner. If in making the final settle­ment, the Deputy Commissioner has violated any principle of law or has acted illegally and arbitra­rily, the order is appealable to this Court and can be examined on merits.'' In the present case the Sub-Divisional Officer has certainly acted illegally in not consulting the Advi­sory Board when he submitted the Proposal for the settlement of the fishery with respondent No. 2. (41) Dr. Medhi's second contention may now be considered. He has pointed out that the sale notice inviting tenders was issued on 22-12-59. According to paragraph 14 of the said sale notice the settlement was subject to the rules "for the time being in force." A notification was issued on 2nd of February, I960 amending rule 46 of the Fishery Rules. Rule 46 originally stood as follows- "Fisheries shall b«- settled to the best advant­age and subject to this condition, the agency of middlemen as lessee shall be done away with as far as possible. (i) Co-operative Fishery Societies formed by actual fishermen of the Scheduled Caste and re­gistered under the Indian Co-operative Societies Act, and (ii) individual actual fishermen of the Scheduled Caste shall be given preference, in the order stated above, in the matter of settlement of fisheries, pro­vided their tender is not below an amount which is less than the highest tender by only 10 per Cent; provided further that this monetary concession is limited to fisheries whose value docs not exceed Rs. 20,000........" (42) After amendment it reads as follows : "Fisheries shall be settled, to the best advant­age and subject to this condition, the agency of middlemen as lessee shall be done away with as far as 'possible. (a) A Co-operative" Fishery Society formed by actual fishermen of the Scheduled Caste and regis­tered under tile Assam Co-operative Societies Act, 1949, shall be given option of taking settlement of fisheries at the highest tender, provided that its tender is not less than 7 1/2 per cent of the highest tender............." (43) Dr. Medhi argues that at the time of inviting tenders the old rides were in force, and, therefore the new rule about giving option to a co-operative society should not have been taken into consideration by the authorities at the time of the settlement of the fishery. As against this the learned Senior Government Advocate Mr. Medhi argues that at the time of inviting tenders the old rides were in force, and, therefore the new rule about giving option to a co-operative society should not have been taken into consideration by the authorities at the time of the settlement of the fishery. As against this the learned Senior Government Advocate Mr. Go-swami contends that the real meaning of paragraph 14 is that the rules in force at the time of settle­ment should be taken into consideration and not the rules which were in force at the time of inviting tenders. In support of his contention Dr. Medhi cites the case of (1897) 2 Or 306. In that case the Urban Local authority issued a notice under S. 150 of the Public Health Act, 1875 to the frontagers to pave and make up a certain street. The frontagers defaulted. But the section under which the notice was given was also in effect repealed as regards that district by the adoption of the Private Streets Act, 1892. It was however, held that in spite of the repeal the notice remained effective. In the case before us, Paragraph 14 of the sale notice reads as follows: "Settlement will be subject to confirmation by the Commissioner, Plains Division, Assam and to the rules for the time being in force." (44) If the words "for the time being in force" are interpreted to mean the rules that are in force at the time of settlement of the fishery it may lead to unfairness and injustice and adversely affect some tenderers, as in the present case. The tenderer has to submit his tender with a non-refundable tender fee of Rs. 10/-. At the time of submission of the tender he must know the rules under which his tender will be. considered. Otherwise it will be simply a leap in the dark for him to submit a tender. If the authorities after receipt of certain tenders amend the rules so as to prejudice the casa of any of those tenderers, this will not be just and proper and it will affect the status of those tenderers. It will mean that a certain disqualification, has been imposed on them by the amendment. (45) In the case before us the sale notice was published on 22-12-59 fixing the last date for ten­der upto 3 P. M. on 3-2-60. It will mean that a certain disqualification, has been imposed on them by the amendment. (45) In the case before us the sale notice was published on 22-12-59 fixing the last date for ten­der upto 3 P. M. on 3-2-60. Rule 46 was amended on 2-2-60 and the petitioner submitted his tender on 3-2-60. So it may be argued that the rule was already amended when the petitioner sub­mitted his tender. But in my view, the date of submission of the tender is immaterial. The ques­tion should be whether the rules which were in force at the time of inviting tenders or the amend­ed rules should apply. If it is said that t' e amend­ed rules should apply in case of those only who submitted their tenders after the amendment, a dis­crimination will arise as in that case those tenders which were submitted from 22-12-59 to 2-2-60 would have to be considered according to the old rules, and tenders submitted on 3-2-60 would be subject to the amended rules. In this view of the matter the words "for the time being in force" must be interpreted to mean as in force at the time of submission of tenders. (46) In the result, in my opinion, Rule 45 of the Fishery Rules is mandatory and in the settle­ment of any fishery, the rules for the time being in force at the time of issuing the sale notice should apply. The next question that arises is whether this Court on appeal can make its own selection. It is a settled rule of law that it is competent to a court of appeal to remand a case to rectify errors, Omissions and defects which unless so rectified would result in serious miscarriage or failure of justice. But at the same time an appellate Court can exercise all the powers exercisable by a lower Court. In the present case, the second proposal by the Sub-Divisional Officer to the Commissioner was illegal as the mandatory provision for consulting the Advisory Board was violated. But the first proposal to which- the Commissioner did not give his sanction, was in order. In such circumstances, in my opinion, this Court as an appellate authority is competent to settle the fishery on the basis of the original, proposal. But the first proposal to which- the Commissioner did not give his sanction, was in order. In such circumstances, in my opinion, this Court as an appellate authority is competent to settle the fishery on the basis of the original, proposal. DEKA, G J. : (47) This is a revenue appeal that came up for hearing before my learned brother Mehrora, J. The learned Judge did not choose to decide the case on merits but referred it to a Special Bench for disposal after deciding certain points as indi­cated in his order. I consider it best to reproduce the relevant passage from the Order of reference made by my learned brother which run, as follows: "Three points have been urged by the counsel for the appellant. Firstly it is urged that the approval by the Commissioner at the second stage was not proper and the settlement was illegal in­asmuch as the advice of the Advisory Board was not sought. There is thus non-compliance with the provisions of Rule 45 of the Fishery Rules. It is secondly urged that if the provisions of Rule 45 be mandatory, any violation of the said provisions will vitiate the entire proceedings and this court in appeal also cannot exercise its power as an appellate Court and select some amongst the vari­ous tenderers and direct settlement. Thirdly it is urged that the rules, which came in force after the appellant had given his tender, cannot be applied to the present case. There is a Single Bench decision of this Court in which it is held that the provisions of Rule 45 of the Fishery Rules are mandatory and that in appeal this Court can make its own selection. When the matter came up before a Bench of this Court this point was not decided and the petition was disposed of on another ground. The matter also came up before a Divi­sion Bench in an appeal but the Division Bench also refrained from giving any decision on these points. It is therefore desirable that this matter should be heard and disposed of by a Special Bench of three Judges. I accordingly direct that the papers be laid before Hon. C. J. for necessary direction." (48) The facts are practically admitted and there is no dispute as to the facts as such which led to this appeal under S. 147 of the Assam Land and Revenue Regulation. I accordingly direct that the papers be laid before Hon. C. J. for necessary direction." (48) The facts are practically admitted and there is no dispute as to the facts as such which led to this appeal under S. 147 of the Assam Land and Revenue Regulation. Tenders were invited for the purpose of settlement of a fishery known as Barkana Fishery in the Barpeta sub-division and several Persons including the present appellant and Respondent No. 2 filed tenders in response thereto. The learned Sub-Divisional Officer, Barpeta, in con­sultation with the Advisory Board constituted under Rule 45 of the Fishery Rules recommended the name of the appellant for settlement of t1 e fishery for a period of three years from April 1960 to March, 1963 at a sum of Rs. 24,550/-, his tender being the highest. The learned Commissioner of Plains Division directed a re-sale inasmuch as in his opinion the tenders were not properly Opened and considered. On an application by the parties concerned, this Court was pleased to direct that the order of the learned Commissioner be set aside and the Sub-divisional Officer Barpeta, should re-submit his proposal. The bid of the Respondent No. 2 was for a sum of Rs. 23.500/-. On the proposal being re-submitted, the learned Commissioner, Plains Division, refused to sanction the settlement with the appellant though he was the highest tenderer and directed for submission of a fresh proposal indi­cating that Respondent No. 2, Bania Kuehi Co­operative Fishery Society should get preferential treatment, and, in obedience to the said direction of the Commissioner, the Sub-Divisional Officer submitted a fresh proposal recommending Respon­dent No. 2 which was accepted by the Commissioner. The settlement of the fishery was sanc­tioned by the learned Commissioner with Respon­dent No. 2, Bania Kuchi Co-operative Fishery Society, at Rs. 24, 5507- per year for the years I960 to 1963 by his order dated 14th September, I960, and this was followed by the order of settlement by the Sub-Divisional Officer. It is against tin's order of settlement made by the Sub-Divisional Officer, Barpeta, that the present appeal was filed. 24, 5507- per year for the years I960 to 1963 by his order dated 14th September, I960, and this was followed by the order of settlement by the Sub-Divisional Officer. It is against tin's order of settlement made by the Sub-Divisional Officer, Barpeta, that the present appeal was filed. The facts enumerated above are accepted by both the parties and the appellant questioned the validity of the settlement on the grounds that there was no due compliance with the provisions of Rule 45 of the Fishery Rules inasmuch as the second proposal of the Commissioner was not made after consulting the Advisory Board formed under the same rule. In the appeal as filed in this Court, there are some other allegations made against the Respondent No. 2, but we have strictly confined ourselves to the points under reference, as quoted above. (49) The first point as indicated by my learn­ed brother, Mehrotra, J. is in regard to the provision of Rule 45 of the Fishery Rules, namely, as to whether the rule is directory or mandatory. In regard to this point. I have had the chance of reading the judgment prepared by my learned brother Dutta, J. and I fully agree with him for the reasons as stated in his judgment that the rule is mandatory. It is not really contended even by the States Government that the rule is not mandatory or that the settlement can be made without complying sub­stantially with the provisions of this rule. If there be liberty to reject the provisions of this rule, the settlement by tender system would be greatly affec­ted and possibly the purpose of the rules will be frustrated to a great extent. It will be difficult to assume that some part of the rule is mandatory such as obtaining the sanction of the Commissioner, but that consulting the Advisor)' Board is optional or directory. (50) Mr. Goswami for the State argued that! there was substantial compliance with this rule in­asmuch as the Advisory Board was consulted at the time of making the first recommendation to the Commissioner and that even while making the second recommendation as suggested by the Com-missioner of Plains Division, the Sub-Divisional Officer had in view the opinion of the Advisory Board in respect to the particular tenderer, and, therefore, the subsequent recommendation could not be said to be in violation of R. 45. Mr. Mr. Goswami did not contend that Rule 45 is not obligatory. It is, therefore, necessary to consider the rule itself to find out what is its real significance. The Commissioner undoubtedly has the power to sanction a proposal for settlement sent up by the Deputy Commissioner or the Sub-Divisional Offi­cer, as the case may be, and his suggestion, if any, is purely of an administrative nature, and advisory Bather than obligatory. Dr. Medhi argued on the other hand on the strength of the Supreme Court decision in the case reported in AIR 1953 SC 309 , that there is no meaning in the Commissioner making a suggestion and then sanctioning it, because the person who has the power to sanction has not the power to suggest as well, and that Supreme Court disaffiliated the action of the State Government in that respect. Dr. Medhi argued that it really amounted to passing the final order himself which the Commissioner could not do. In this particular Case, we are not called upon to decide the power of the Commissioner in this respect, but I consider it essential that any Proposal going to the Commissioner for the purpose of sanc­tion under Rule 45 has to pass after consultation with the Advisory Board constituted under the said rule. This was the view I expressed in the case of Upendra Patowary v. Commissioner of Plains Division, Assam, in Revenue Appeal No. 91 (M) of 1960, which my learned brother Mehrotra, J. possibly mentioned in his order without giving the par­ticulars of the case. I might usefully add that an application for special leave for an appeal against my order to the Supreme Court, failed. I see no reason to hold otherwise now. Nothing has been argued to induce me to differ from the view as already expressed by me. I am inclined to hold that the. particular proposal which the learned Commissioner subsequently accepted was not made in strict accordance with the rules of the provisions of settlement and it amounted to violation of R. 45 of the Fishery Rules which was mandatory. I am inclined to hold that the. particular proposal which the learned Commissioner subsequently accepted was not made in strict accordance with the rules of the provisions of settlement and it amounted to violation of R. 45 of the Fishery Rules which was mandatory. (51) I next come to the second point covered by the reference, namely, "if the provision of Rule 45, be mandatory any violation of the said provision will vitiate the entire proceedings and this court in appeal also cannot exercise its power as an appellate court and select some amongst the various tenderers and direct settlement." In this Court, however, Dr. Medhi does not contend that this Court has no jurisdiction to enter into the merits and make a settlement after considering the suitability of the individual tenderers as was done in Rev. Appeal No. 91 (M) of 1960. Though this point was not discussed as such in the Division Bench judgment of this court in the case of Jatindra Nath Das v. Commissioner of Plains Division, Assam, in Revenue Appeal No. 90 (M) of 1960, heard by my learned brother Mehrotra, J. and myself, we had in fact gone into the merits of the case and affirmed the order of settle­ment. There may be irregularities or even impro­priety in the matter of settlement by the authorities but there is no bar to the appellate court, namely the High Court, exercising its full and plenary power of settlement on merits. I might in this connection refer to the view of the Supreme Court in the case reported in AIR 1953 SC 309 , which runs as follows : "Accordingly, the law requires the sale to be under and in accordance with the Rules. It follows that the departure contemplated by R. 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 ........." In my opinion, therefore, this point should be de­cided accordingly. 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 ........." In my opinion, therefore, this point should be de­cided accordingly. (52) The next and third point is as to which set of rules would apply to the present Settlement. It is not that there were different rules but Rule 46 which necessitated consideration had undergone some change from the mid-night of the 2nd of February, 1960. In reference to this Particular case, the point may not be of much importance1 since the tender was submitted on 3rd of February, 1960 when the new set of rules came into force and the first order of settlement was made on the 5th of February, I960. It would be worthwhile to point out to the change in Rule 46 and how it was likely to affect the interest of the parties. Rule 46 as it stood up to the mid-night of 2nd of February, 1960 was in this form r "Fisheries shall be settled to the best advant­age and subject to the condition, the agency of middlemen as lessee shall be done away with as far as possible. (i) Co-operative Fishery Societies formed by actual fishermen of the Schedule Caste and registered under the Indian Co-operative Societies Act, and (ii) individual actual fishermen of the Scheduled Caste shall be given preference, in the order stated above, in the matter of settlement of fisheries, provid­ed their tender is not below an amount which is less than the highest tender by only 10 per cent; pro­vided further that this monetary concession is limit­ed to fisheries whose value does not exceed Rs. 20,000 ........." This rule underwent material changes in regard to the preference to be given to the Co-operative Fishery Society and individual members of the Scheduled Castes and Scheduled Tribes etc. The rule after amendment runs as follows : "Fisheries shall be settled, to the best advant­age and subject to this condition, the agency of middlemen as lessee shall be done away with as far as possible. The rule after amendment runs as follows : "Fisheries shall be settled, to the best advant­age and subject to this condition, the agency of middlemen as lessee shall be done away with as far as possible. (a) A Co-operative Fishery Society formed by actual fishermen of the Scheduled Caste and re­gistered under the Assam Co-operative Societies Act, 1949, shall be given option of taking settle­ment of fisheries at the highest Tender, provided that its tender is not less than 7 1/2 per cent of the highest tender ........." The other portions of the amended rule are not essential. The Commissioner recommended for con­sidering the case of Respondent No. 2 on 'the basis of this change in Rule 46 and Dr. Medhi's' objec­tion on behalf of the Appellant was that this rule could not be considered for the purpose of settle­ment. As I have stated above, if the tender was submitted on 3rd of February, 1960, the amended rule was already in force and the appellant could not raise an objection that this rule could not be applied to the subject-matter of the tender. It was argued that the rule for the time being in force would be applicable to the tenders called for. Dr. Medhi's contention was that even if the tender was submitted on the 3rd of February, 1960. that is immaterial, but for the purpose of settlement only those set of rules would apply, which were in force at the time of issue of the sale notice in­viting tenders. In support of this contention he relied on the language of S. 6 (c) of the Assam General Clauses Act which relates to the effect of repeal of rules or laws - and Rule 43 of the Fishery Rules, which laid down that the notice in­viting tender should state not only the name of- the fishery and location thereof but also the term for which it would be settled and the date, place and conditions of settlement. Rule 43 was not violated-Dr. Medhi's contention was that in this case the conditions of settlement were as laid down in Rule 46 as it then stood and not as it was amended at a later date, of which the tenderers had no idea at the time. Rule 43 was not violated-Dr. Medhi's contention was that in this case the conditions of settlement were as laid down in Rule 46 as it then stood and not as it was amended at a later date, of which the tenderers had no idea at the time. In this connection he drew our attention to a passage from 'Craies on Statute Law, 5th Editipn, page 324', bearing on the case of 1897-2 Ch 306. In this case we cannot say that anything was duly done by the appellant under the repealed rules by virtue of which he acquired any right or privilege except the right of having his tender considered which was duly done. Either the consideration of the tender or the act of settlement did not come at any stage before the new set of rules came into force, and, therefore, it would be only the new set, of rules that would govern the settlement and not the old ones at the lime of Inviting lenders. Dr. Medhi has drawn our attention to paragraph 14 of the Sale Notice which runs as follows : "The Settlement will be subject to confirma­tion by the Commissioner of Plains Division Assam, and to the rules for the time being in force." It indicated that the settlement would be subject to the confirmation by the Commissioner and to the rules for the time being in force. The word "rules" would surely cover Rule 46, - but since no rights accrued to the appellant so far preference was con­cerned, he could not say that the change of rules affected his status adversely. I would, therefore, decide the third point in this light. (53) In my opinion, therefore, the case should go back to the referring Judge to decide the case in the light of the views held by the Special Bench and decade the case on merits considering the suita­bility of the tenderers, which point we did not en­courage to argue in the Special Bench. ORDER OF THE SPECIAL BENCH (54) Judgments delivered and points under re­ference answered. (55) The case is to go back to the referring Judge (Hon'ble Mr. Justice Mehrotra) to decide in the light of the majority views expressed in the judgments. IE/B. Reference answered.