Judgement GOSWAMI, C. J. :- This application under Article 226 of the Constitution is directed against an order of the Secretary to the Government of Assam. Transport Department, settling the Dibru-ka-chari-Oriumghat Ferry for the year 1973-74 in favour of M/s. Parghat Kaibarta Meen Silpa Samabav Ltd., the 5th respondent. 2. The petitioner is a member of the scheduled Tribe (Adi) and is a permanent resident of Pasighat in the district of Siang within tie Union Territory of Arunachal Pradesh. In pursuance of a tender notice dated 2nd January, 1973 inviting tenders for settlement of 9 number of ferries including the Dibru-Kachari-Oriumghat Ferry for the year 1973-74, the petitioner submitted his tender offering a sum of Rs. 58,551/-cevering the entire period. The 5th respondent also submitted a tender offering a sum of Rs. 52,775/- for the entire period. There were other tenderers as well. The petitioners offer was the highest The Executive Engineer, inland Water Transport Division-Gauhati, the 3rd respondent, was the officer to conduct the sale, and after considering all the tenders he provisionally settled the ferry with the petitioner at the highest tendered amount Alter the provisional settlement by the 3rd respondent all papers in connection with the settlement of the ferry were sent to the Director of Inland Water Transport and Shir Surveyor, briefly the Director 2nd respondent, who, in turn, forwarded his recommendation and other relevant papers to the Secretary to the Govt. of Assam. Transport Dept. briefly the Secretary, the 1st respondent for approval. After communication of the provisional acceptance of his tender, the petitioner deposited the first kist money amounting to Rs. 14,137.75. In due course, the Secretary settled the ferry with the 5th respondent at its tendered amount of Rs. 52,7757/- by his order dated 23rd March, 1973. Hence this writ application. 3. It is common case of the parties that the settlement of the ferry in this case is governed by the Control and Management of Ferries Rules, 1968, briefly the Rules Although originally in his application, the petitioner challenged the validity of Rule 19(b) of the Rules, he has abandoned this point when making his submissions before us, We, will, therefore, assume that the Rules are valid for the purpose of this case. 4. 4. The learned counsel for the petitioner submits that the Secretary in accepting the settlement of the 5th respondent contrary to the recommendations of the Director, failed to comply with Rule 19(b) of the Rules, in not recording any reasons for disapproval of the highest tender provisionally accepted by the conducting officer and by the Director. The learned Counsel for the State produced the records before us at the time of hearing of this application and drew our attention to a note of the Secretary to the Minister. Transport on 16th March, 1973, which may be quoted in extensor : "Minister. Transport Notes from prepage : The highest tender of Rs. 56,551/- was received from Shri Orin Movong, a tribal from Arunachal and he is the present lessee of the ferry and his bid was Rs. 38,111/- last year. In view of his past experience and his bid being the highest the ferry may be settled with him. For orders." It does not appear what passed between the Minister, Transport and the Secretary after this note had been placed before the former. But we find another note by the Secretary after a week on 22nd March, 1973, which may as well be quoted in extenso : "Minister Transport. The highest bidder is, Shri Orin Moyong with a bid of Rs. 56,551.00 and provisional settlement is made by Executive Engineer, I. W. T. Division. Gauhati with Shri Movong. But the following, facts are considered. That Shri Orin Moyong is not a native of Assam and his lands are not within this State. There is no guarantor in the State for his landed property or in Union Territory. Further his landed certificate lacks detail. His case cannot be considered. The 2nd highest bidder is Pasighat Co-operative General Store of Arunachal which is a outside the State party. Their tender money is Rs. 56,000.00. Further it is a Govt. store and their detail bye-laws etc. are not furnished and is rejected. The 3rd bidder is Malik and Co., Dibrugarh, whose bid is Rs. 55,551.00 and cannot be accepted for reasons stated against their tender offered for Sadia-Saikhowa ferry service. The 4th bidder is Parghat Kaiborta Meen Silpa Samabav Ltd., Dehmaji with a bid of Rs. 52,775.00. It is a fully scheduled caste co-operative and deserve 10% rebate over the highest bidder. Their documents are complete. The final settlement may be made with them. 55,551.00 and cannot be accepted for reasons stated against their tender offered for Sadia-Saikhowa ferry service. The 4th bidder is Parghat Kaiborta Meen Silpa Samabav Ltd., Dehmaji with a bid of Rs. 52,775.00. It is a fully scheduled caste co-operative and deserve 10% rebate over the highest bidder. Their documents are complete. The final settlement may be made with them. The 5th bidder is Ramprasad Das with a bid of Rs. 45,678.69. He is a present lessee also but his case not considered because of low offer. Placed for approval." The Minister approved the suggestion on 23rd March, 1973. 5. Ordinarily, if the order of the Secretary contained reasons for disapproval of the recommendations of the Director, there would have been perhaps no necessity for the State to place these notes before the Court. But now that these are placed before us, it is not possible to shut our eyes to them, particularly because the impugned order is sought to be supported by what is contained in the notes. It is apparent what is contained in the notes was not available to the petitioner at the time of making the application. Now that these notes are available, Mr. Katald, the learned counsel for the petitioner, submits that the impugned order was passed not by the Secretary but by the Minister or, at any rate, under the behest of the Minister, which is in cross violation of Rule. 19(b). Mr. T.N. Singh, the learned counsel for the State." tried to support the impugned order by relying upon Section 8 of the Northern India Ferries Act, 1878, briefly the Act, which, according to him, reserves the power of the State Government whose previous sanction is necessary for settlement of the ferry. Mr. J.P. Bhattacharjee, the teamed counsel for the 5th respondent who followed Mr. Singh, also submitted in the same vein. 6. The Rules which are made in exercise of the power under Section 12 of the Act provide inter alia in Part II for regulating the time at which, the manner in which, the terms on which and the person by whom the tolls of ferries may be let either by putting into public auction or by calling tenders or by both. By Rule 14 which is the opening rule in that part. By Rule 14 which is the opening rule in that part. "All ferries shall be let by the officer-in-charge of the ferry either, by public auction or if the Government so direct by calling for tenders." By Rule 17(A), the auction sale notice and notice for calling tender shall state the various particulars specified in clauses (1) to (ix) thereof. Clause (ix) provides for preferential treatment to individual belonging to Scheduled Castes. Scheduled Tribes and other backward classes and to the Co-operative Societies. Then comes Rule 19, which may be quoted : "19. The sale by auction/tender shall generally be to the highest bidder/tenderer. The officer conducting the sale/calling for tender for sufficient reason recorded in writing under his hand may, refuse to accept the offer of the highest bidder/tenderer or any bid/tender. The officer shall in accepting the bid/tender consider the following factors among others - (i) whether the bidder/tenderer is indigenous of this State, permanent resident or outsider. (ii) Whether the bidder/tenderer has experience of ferry business. (iii) Whether the bidder/tenderer has periodic Patta landed property of the value of not less than bid/tender money in his own name within the district or tills State, can speak the regional language, is financially sound of good conduct etc. etc," Rule 19 (a) refers to auction sale which need not be quoted. "(b) The Secretary to the Government of Assam in the Transport Department shall consider the results of the auction sale or tender or both together as the case may be for the purpose of final settlements. In doing so he shall consider among others whether the officer conducting the sale/calling for tenders and the Director have taken Into account and considered all the factors mentioned in Rule 19 above. The secretary to the Government of Assam in the Transport Department may for reasons recorded in writing disapprove of the bid/tender or both as the case may be, accepted by the officer conducting the sale/calling for tenders and by the Director and may settle the ferry with any bidder/tenderer or may disapprove the sale/tenders or both. The decision of the Secretary to the Government of Assam in the Transport Department will be final and binding on all concerned." We may also set out Rule 16 which to referred to in the above rule : "16. The decision of the Secretary to the Government of Assam in the Transport Department will be final and binding on all concerned." We may also set out Rule 16 which to referred to in the above rule : "16. Auction sale shall be conducted on the date to be fixed by the officer-in-charge of the ferry in consultation with the Deputy Commissioner/Sub-divisional Officer (Civil) concerned. Tender also shall be invited by the officer-in-charge of the ferry if directed by the State Government in the Transport Department. At least one fortnight notice shall be given to the public before the date fixed for the auction sale and/or receiving tenders and the notices shall be widely circulated. The bid list hi the result of auction sale shall be submitted to the Director in the form in Appendix C not later than on the 31st December. The comparative statement of all the tenders to the form in Appendix C along with all tenders in original shall also be submitted to the Director not later than on the 31st December. The Director shall submit the both as it is with his comments end recommendations taking into account the factors mentioned in Rule 19 to the Secretary to the Government of Assam in the Transport Department to reach on or before 20th January without fall. If the highest tender is not accepted then the reasons for not accepting shall be recorded in writing." The material portion of Section 8 of this Act, to which our attention is drawn, may also be quoted before we proceed further. "8. The tolls of any public ferry may, from time to time, be let by public auction for a term not exceeding five« years with the approval of the Commissioner or by public auction, or otherwise than by public auction, for any term with the previous sanction of the State Government. X X X X X." (The Commissioner in this section stands substituted by another authority in Assam). 7. We may first dispose of the submission on behalf of the respondents with reference to Section 8 of the Act. We are mainly concerned with the first paragraph of Section 8, which we have set out. That paragraph contains two parts. The first part relates to letting by public auction for a term not exceeding five years with the approval of the Commissioner. We are mainly concerned with the first paragraph of Section 8, which we have set out. That paragraph contains two parts. The first part relates to letting by public auction for a term not exceeding five years with the approval of the Commissioner. We are not concerned In this case with that pan of the provision. The second part relates to letting of tolls of any public ferry by public auction for any term, that is to say, exceeding five years or otherwise than by public auction, e.g., by tender, with the previous sanction of the State Government. While the first part provides for approval of the Commissioner, the second part provides for previous sanction of the State Government The use of the words previous sanction clearly indicates that a particular settlement is not kept in view for the purpose of the second part. The previous sanction of the State Government is necessary at a stage anterior to the settlement and calling for tenders when a decision has to be made with regard to letting out by a method other than public auction or even by public auction for a term exceeding five years. Rule 14 which is in consonance with this construction of the section provides that all ferries shall be let ............ if the Government so directs by calling for tenders. A timely order from the Government in that behalf will be necessary as under Rule 16 at least one fortnights notice shall be given to the public before the date fixed for auction date or for receiving tenders. Be-sides, under Rule 17(A) the auction sale notice and notice for calling tenders have to contain the term or the period for which the lease will be given as fixed under Rule 14. We are, therefore, unable to spell out from Section 8 any power of the Government to accord approval to a settlement provisionally accepted by the Director of under the Rules. 8. We should also, however, point out that in this case there is no order in the name of the Governor and only the Minister approved of the Secretarys proposal and the order was communicated thereafter by the Secretary. 9. The next question that falls for decision is whether the Transport Minister had any power under the Rules to disapprove the Divisional settlement and order for settlement in favour of the 5th respondent. 10. 9. The next question that falls for decision is whether the Transport Minister had any power under the Rules to disapprove the Divisional settlement and order for settlement in favour of the 5th respondent. 10. When there are statutory rules made in exercise of the power under Section 12 of the Act for regulating the manner and the procedure of settlement, these rules have to be complied with by the settling authority. The procedure that is laid down under the Rules and no other procedure will govern the settlement of these ferries. 11. The scheme of the Rules as noticed in the provisions, which are set out earlier, may now briefly be indicated. The sale by tender shall generally be to the highest tenderer. The officer calling for tenders may refuse to accept the offer of the highest tenderer but then be is required, under R. 19, to record in writing sufficient reasons of its non-acceptance. The officer in accepting the tender has to consider certain factors specified in Rule 19(i) to (iii) and other relevant matters. Since the officer is required to consider various relevant factors in accepting the tender, he is not under this rule obliged to accept the offer of the highest tenderer. The officer, accepting the tender has to forward a comparative statement of all the tenders in the form in Appendix C along with all the tenders in original to the Director within a specified time. The Director shall then submit his comments and recommendations, taking into account the factors mentioned in Rule 10, to the Secretary to reach him within the time specified. If the highest tender is not accepted, the reasons for not accepting shall be recorded in writing. The relevant documents with the recommendations of the Director will be forwarded to the Secretary who has to consider the tenders and make the final settlement. The Secretary, under Rule 19(b), to required to consider inter alia whether the two officers below him have taken into account and considered all the factors mentioned in Rule 19. This rule confers power on the Secretary to disapprove of the tender accepted by the Director or even when accepted by both the officer, namely, the Director and the officer receiving the tenders. In case of dis-approval of the tender accented by the officers, the Secretary his to record fits reasons in writing for his order. This rule confers power on the Secretary to disapprove of the tender accepted by the Director or even when accepted by both the officer, namely, the Director and the officer receiving the tenders. In case of dis-approval of the tender accented by the officers, the Secretary his to record fits reasons in writing for his order. The decision of the Secretary under Rule 19(b) is final and binding so far as the settlement it concerned. 12. It is, therefore clear that there is a three tier system in the matter of settlement of a ferry. The first officer who is concerned with the settlement is the officer receiving tenders, who is empowered under the Rules to provisionally accept a tender. The second stage is reached when the Director has to make a decision for accepting one of the tenders. He may agree with the officer receiving the tenders or may make his own recommendation. Both the officers, however, are required to take into account and consider the factors enumerated in Rule 19 and other relevant factors. The third and final stage is reached when the relevant documents and tenders along with the comparative statement in Appendix C are received by the Secretary who considers the whole matter in order to make the final settlement of the ferry. The Rules do not contemplate any other authority in the matter of settlement of ferries. The last authority is that of the Secretary and he has to make his own decision in the matter in the light of the Rules. The Secretary cannot surrender his independent Judgement to the Minister or to any other authority. The intervention of the Transport Minister in the matter of settlement of ferries is foreign to the Rules. This appears to be the legal position that emerges from the scheme of the Rules which we have already noticed. 13. In the instant case, the Secretary has not arrived at his independent decision in the matter of acceptance of the tender. As we have set out above, his two contradictory notes to the Minister of 16th and 22nd March, 1973 clearly disclose that he was not aware of his duties under the Rules in the matter of settlement of ferries. In the instant case, the Secretary has not arrived at his independent decision in the matter of acceptance of the tender. As we have set out above, his two contradictory notes to the Minister of 16th and 22nd March, 1973 clearly disclose that he was not aware of his duties under the Rules in the matter of settlement of ferries. Left to the Secretary, one might even take the view that he would have accepted the tender of the petitioner as he seems to have indicated in his note of 16th March to the Minister. Although it is not clear why another contradictory note had to be given by the Secretary to the Minister one week after the first note without obtaining any order thereon from the Minister, it is apparent that he was submitting his second note under the behest of some other authority, in all likelihood the Minister himself, who later on approved of the second note in favour of the 5th respondent. At any rate, it is clear that the Secretary has not applied his, own mind in the matter of approval and has come to a decision contrary to the Rules and in compliance with the wishes of an authority not contemplated under the Rules. Approval of settlement under the Rules is to be accorded by the Secretary and not by the Minister. There is, therefore, no approval of the settlement in this case under the Rules in the eye of law. 14. Mr. J.P. Bhattacharjee, the learned counsel for the 5th respondent, drew our attention to a Division Bench decision of this Court reported in Assam LR (1969) Assam and Naga. 254, (Atul Chandra Tave v. The Secretary to the Government of Assam in the Transport Department). This is a case of settlement of ferry by public auction and was not governed by the 1968 Rules, with which we are concerned. This decision is, therefore, not relevant in the present case. Mr. Bhattacharjee also drew our attention to a notification of the State Government of 29th February 1968 (Annexure IV to the petitioners Affidavit in Reply) whereby under Section 3 of the Assam Commissioners (Transfer of Powers) Act, 1947, the Governor of Assam notified inter alia the powers exercised by the Chief Engineer under Section 8 of the Act to "Government in Transport Department". In view of the construction we have put to Section 8 of the Act this notification is not at all of relevance in the present case. Besides, by this notification powers of the Chief Engineer with regard to the approval of settlement by public auction under Section 8 have been transferred to the "Government in Transport Department". This notification, therefore, does not at all support the case of the respondents. 15. In the result, the impugned order of the Secretary of 23rd March, 1973 is quashed. It will be open to the authority to make interim arrangements for running the ferry until a fresh settlement is made in accordance with the Rules and in the light of the observations made hereinabove. The application is allowed in the above terms. The petitioner is entitled to his costs, which wt assess at Rs. 250/- to be paid by the 4th respondent. R.S. BINDRA, J. :- I agree. Application allowed.