Barpeta Road Fish Marketing Society Ltd. and Shri Suchen Chandra Barman vs The Assam Board of Revenue and Others

K. Lahiri, J.—In Assam registered Fisheries are generally sold by calling "public tenders". "Public servants" have been empowered to settle the fisheries with the aid and assistance of experts or members of the Advisory Board. The fisheries are really public properties held by the State but the beneficiaries are the public. In the matter of settlements, co-operative societies and or the members of the listed classes have been granted preferential treatments under the mandates of Part IV of the Constitution.

A tiny fishery, the highest annual value offered standing at Rs. 27,705/-, was put to sale for the period commencing from 26.9.80 to 31.3.83. The Petitioner and Respondent No. 3 filed tenders offering 27,505/- and Rs. 27,005/- respectively. The Sub-divisional officer, the Settling Authority, accepted the highest tender of the Petitioner whereupon he deposited Rs. 2,751/- as security and continued to deposit the kists from time to time. the fishery lease was executed by the Sub-divisional officer in favour of the Petitioner and the possession was taken over by the later. In the meantime Respondent No. 3 preferred an appeal before the learned Board of Revenue and the learned Board was unsure as to whether in fact 5 members constituted the Advisory Board or only 4. It concluded "that the settlement was violative of Rule 45 of "the Fishery Rules" which required "not less than 5 members and set aside the settlement and remitted the matter to "the primary authority''''with the following directions:

The learned S.D.C. may reconstitute the Advisory Board properly as provided under Rule 45 and make settlement to any suitable party from amongst the three tenderers or may even readvertise the fishery ami resell it.

It is beyond question that the part of the order directing, re-advertisement of the fishery and re-sale was beyond the competence of the appellate authority on the facts and (SIC) of the case. However, we are not at that. The main question that has been urged before us is that the learned Board of Revenue being the appellate authority constituted under the Assam Board of Revenue Act and the Regulation has failed to (SIC) its jurisdiction vested in it by law in overlooking that it (SIC) power to settle the fishery even without remitting the matter back to the primary authority.

it is not contested by the learned Counsel for the parties that the appellate authority, namely, the learned Board of, Revenue has co-extensive power with that of the settling authority. The meaning of the expressions co-extensive power and/or plenary power in no longer a res Integra. What the primary authority can do is within the width, contour and scope of the appellate authority. The only difference is that while the primary authority is to consider the tenders with the aid and assistance of the members of the Advisory Board, the learned. Board of Revenue is free to decide the matter without any aid or assistance of any advisor. The crucial submission (SIC) before us is that the learned Board of Revenue, while exercising its appellate power must lock to the public internet as well as the interests of the tenderers while disposing of an appeal. In our opinion, in the absence of any prejudice to any of the parties, no proceeding should be elongated particularly the proceeding touching public need or public interest. The appellate authority has the undoubted power of remand. But when it should cry a halt and decide on merits instead of remanding the matter. We are of the opinion that it must balance the cause, the cases of the patties along with the vital question of public interest.

In the instant case there was absolutely no impediment in disposing the matter by the appellate authority on merits as all the materials were before it. What was the object or purpose of sending down the master to the primary authority when the very same matter could have been heard by it and disposed of in accordance with law? If the matter is disposed by the appellate authority without rebounding to the primary authority, it can protect and spare unnecessary expenditure of the parties and also avoid consumption of time and energy of the parties as well as of the public servant i.e. the primary authority. The order of the Board is bound to lead to "immediate complicacy" If the settlement is set aside and the primary authority is directed to reconsider the matter because during the interregnum confusion and chaos are (SIC) to arise and the public interest would suffer. The purpose of conferring the co-extensive power on the Board is to enable it to enforce and proteot "Jus publicum". Further, the Petitioner is the highest tenderer and is a co-operative society, The chance of the Petitioner''s getting the settlement was quite bright. In Swadeshi Cotton Mills Vs. Union of India (UOI), , of course in a different context, although the order was found to be void as no full, fair and effective hearing had been given, no relief Was granted. "The unstated consideration for such a course of action by the court appears to be that it would treat confusion and chaos if the undertaking is handed back to the owner and if the Government again passes an order of take over". (Vide Dr. S.N. Jain''s Observations on the Effect of Failure of Natural Justice: The Ultimate Relief" in seminar of the L.L.I., at Pondicherry on "Administrative Law" in October 1981.) Similarly, no relief was granted in S.L. Kapoor Vs. Jagmohan and Others, . to avoid confusion, disorder or chaos. We are of the view that in cases of the present nature it is within the jurisdiction of the appellate authority to bear the appeal on marits and dispose it in accordance with law instead of sending it down to the authorities for fresh disposal to avoid (SIC) inconvenience and to uphold the cause of justice. The learned Board missed this aspect completely, and as such, fat-led to exercise a jurisdiction vested in it by law, which on the facts and the circumstances of the case it ought to have exercised.

In the result, we morley set aside the order of remand of the case to the primary authority. We remit the case to the learned Board of Revenue to hear and dispose of the appeal on merits within a month from today. The parties shall appear before the learned Board on the 16th day of December, 1981 for taking necessary orders from it.

In the result, the petition is allowed to the extent indicated above. There is no order as to costs. Send down the records forthwith.