STATE OF ASSA~f v. TULSI SINGH

Held, further, that the "Special List" maintained by the Government of Assam of persons suspected or confirmed to be connected with smuggling activities is not a document falling withins. 35 of the Indian Evidence Act and while such list might serve a purpose in guiding Criminal Intelligence Department, it will be unsafe to re1y on it for deciding civil rights of a person. Held, also, that even though the order of authorities is riot in accordance with Jaw, it was for the appropriate authori ties. to deal with the matter and the High Court could not itself decide '\'hat is entrusted to the executive authorities. Verappa Pillai v. Raman & Raman Ltd., [1952] S.C R. 583, followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 14 of 1962. Appeal by special leave from the judgment and decree dated July ll, 1961, of the Assam High Court in Civil Rule Nu. 64 of HJ6l. Naunit Lal, for the appellantB. The respondent did not appear. 1962 Slate of .A.ss.im v. Trdsi Sm1h Ai1arJ. ~io SUPI~EME COURT REPORTS [1962] SUPP.

#1962. March I. The Judgment of the Court waa delivered by VENKATARAMA. AlYAJt, J.-The short ques tion that arises for our decision in this appeal is whte ther the settlement by the Executive Engineer, Gola ghat in the State of Assam, of the ferry at N'opcrpatty c>D the second respondent, Phuka Chandra. Gohain, on January 23, Hi61 was in accordance with the provisions of the ~orthern India Ferries Act, 1878, hereinafter roferred to as "the Act", and the rules framed thereunder. The relevant provisions of the Act bearing on this question might now be referred to. Under s.4., the State Government may, from time to time, declare what ferries shall be deemed public ferries. Section 8 of the Act is as follows : - "8. The tolls of any public ferry may, from time to time, be let by public auction for a term not exceeding five yea.rs with the approval of the Commis~ioner, or by public · au<'lion, or otherwise than by public auction, for any term with the previous sanction of the State Government. The leSBee shall conform to the rules made under this Act for the management and coutwl of the ferry, and may be ea.lied upon by the officer in whom the immediate super intend<•nce of the ferry is vested, or, if the is managed by a municipal nr other public body under section 7 or section 7 A, then by that body, to give Ruch security for his good conduct and for the punctual pay ment of the rent as the officer or body, as the tho case may be, thinks fit. When the tolls are put up to public auction, the said officer or body, as the case may be, or the officer conducting the sale on his or its behalf, w "'v, for reasons recorded in ::i s.d.R.. SUPREME COURT REPORTS tHi writing, refuse to accept the offer of his high· est bidder, and may accept any other bid, or may withdraw the tolls from auction." Rule 19 framed under s.12 of follows:- the Act is as 1962 St•te of .Assam v. Tulsi Singh ~iyarJ. "The sale shall generally be by auction to . the highest bidder. The Officer conducting the sale for sufficient reason recorded in writ ing under his hand may refuse to accept the offer of the highest bidder or any bid. The Officer shall in accepting the bid consider the following factors among others : - ( i) Whether the bidder is a native or domicile or an outsider. (ii) Whether the bidder bas experience of the ferry business. ·(iii) Whether he has landed property in his own name within the district or State. can apeak the regional langu age, is finacially sound and of good conduct, etc." The ferry at N eparpatty has been declared to be a public ferry under s.4 of Act. On January 23, 1961, the Executive Engineer, Colaghat, put up the lease of the ferry for the year 1961-62 for public auction under s.8 of the Act. At the auction, Tulsi Singh, the first respondent, gave a bid for Rs. 4,200/-, one Indra Deo Singh for Rs. 4,050/- and Phukan Chandra Gobain, Rs. 3,000/-. The Executive Engineer then made the following Order :- respondent second "Sold to Shri Phukan Chandra Gohain at Rs. 3,000/. (Rupees Three thousand) only es the two other highest· bidders fall in special List." Under Rule 19(a), the acceptance of the bid by the I 1962 S1at1 of Assam v. Tu/Ji SU1gh A(1ar J, 512 SUPREME COURT REPORTS (1962] SUPP. conducting Offioer is subject to the approval of the Chief Engineer, and Rule W(b) provides tho.tho must, in doing so, "consider among others whother the Officer conducting the sale has taken into acco unt and considered a.II the factors m!'ntioned in Rule 19 above." The Chief Engineer approved of the deci sion of tho executive Engineer dated January 23, 1961, and the sale totbe second respondent was con firmed. Thereupon, on February 6,1!161, t.he first res pondent applied to the Chief Engineer for accepting his bid and Rettling the ferry on him. By his Order dated April i, l!lfil, the Chief Engineer rejected this petition. On .\fay 9, 1961, the first respondent filtd in the High Court of Assam a writ Petition uwler Ar-t. :!26 attacking the Order of the Executive Engineer datecl .January 2;1, 1961, settling the lease in favour of tho second respondent as contrary to the Act and the Rules, and praying that it might be Hett.led on him. The learned Judges accepted this l'oritention aml set aside the settlement in favour of the soeond respondent as violative of s.8 and Rule 19, and further declared that the first respondent was untitled to the settlement under R:ile 19 as the highest bidder. It is against this Judgment that this appeal by special leave is direc ted. The power of tho Executive Enginncr to settle public ferries is derived from s.8 of the Act and the H.ule~ framed thereundn, and it has theroforo to be exercised in accordance therewith. Under Rule! 9, the sale should genera.Hy be by auction to the highest bidder 9-ml under this provH<Jn the ferry should normally have boen settled wi~h the first respon dent, who gave the bighPst. bid. Section 8, provi des that the Officer eon ducting the sale may, for reasons recorded in writing, refuse to accept the offer of the highest bidder and accopt any other bid. The discretion thus conferred on tho Officer, is wide hut not indefinite or unrestricted. Rule I 9 provi des that in accepting the bid, he has to take into - r' 1962 State of Assam v. Tulsi Singh A'._yarJ. 3 S.C.R. SUPREME COURT REPORTS 513 account certain factors; and under Rule 19(b), the Chief Engineer has to satisfy himself that these factors have been taken into consideration by the conducting Officer when he accepted the bid. It is contended for the appellant that, if there are mate rials before a conducting officer on which he could refuse to accept the highest bid and he on a consi deration, thereof declines, in the exercise of his riiscretion, to accept it, his dicision is not one which is liable to be reviewed by the Court. That is undoubtedly so but when there are no materials before him on which he could act under Rule 19, then that il a case not of exercise of discretion but of want of authority to settle under the Act. Now the only ground given in .the Order dated January 23, 1961, for rejecting the bid of the first respondent which was the highest, is that his name is in the "special list". It appears from the affidavit of the Chief Engineer that in pursuance of the policy of prohibition followed in the State of Assam, the Government or Officers .of the Government have prepared ''lists of persons suspected or confirmed to be connected with smuggling activities", and that it was "the policy of the Governm<'nt not to grant taxi permit, stage carrier permit, fisheries, ferries etc. to persons who are listed to be sus pected or confirmed opium smugglers". It is this list that is referred to as the "special list" in the order of the Executive Engineer. It is argned for the appellant that if a person is a. smuggler, then he is not a person of good conduct, and the rejection of his bid would be justified under Rule 19(iii). The contention is perfectly sound, and the authorities would be exercising their discretion properly in refusing to accept the bid of a smuggler, because, to put such a person in charge of ferries must help to evade the prohibition laws, and that would be a relev1tnt factor under Rule 19(iii). But the diffi culty of the appellant is that there are no materials nu which the first respondent could be held to . ' , - ' ' . . .. - 1962 Stalt n(. !.~1m11 •• I'ul1i Si., :h .4 '_'fd' .! • 514 SUPREME COURT REPORTS [1962] SUPP. be a smuggler. It appears that he was!proseouted under s. 4 of tho Assam Ganja and Bhang Pro hibit.ion Act but that ended in his discharge. It is argued thllt though the materials llvailable might have been insufficient to sustain a conviction under the Ad, the~· might be sufficient for the authorities to take action under Rule 19. That is possible hut th:tt i~ not the position in this casc. The Executive Engineer did not form any opinion about the first respondent on his own appreciation of the materials. He found his name in "special list'' and straightaway rejected his bid. Now the question is whether on this mawi-ial an Orcler rejecting the highest hid could be made under Rule 19. It is not ancl cannot he argued that the '·special list" is a document falling within the Evidence Act. · It is said to be a s. 35 of confidential document. It does not appear on what information it is prepared or from what sources the information is received. Nor is any ~hing disclosed 88 to the procedure adopted by tho Government Officers in preparing the list. While such lists might servn a purpose in guiding Cri minal Int-Olligence Department, it will be unsafe to rely solely on thorn for deciding civil rights of persons. If the "special list" is thus ruled out as not material on which an opinion could be formed, thnre was nothing else on which the con ducting Officer could have rejected the offer of the highest bidder under Rule 19. We are accordingly of opinion that the decision of the learned ,Judges or the High Court that the rejection of the offer of the highest bidder is not in a.coordance with s. 8 or Rule 19 is corrent. The result of this conclusion is that the au thorities under the Aet would have to be directed to consider the matt{lr a.fresh and give a decision in accordance with law, but the learned Judges have proceeded further and observed that under Rule ~ 9, the offer of "the tir1t resrondent, being t~e ... 1962 Stati of Assan1 v. Tulsi Singh 3 S.C.lt. SUPREME COURT REPORTS 515 reference highest, ahould be accepted. The appellant con· tends that even on the view that the Order of the Executive Engineer dated January 23, 1961, is not in accordance with law, it was for the appropriate authorities to · deal with the matter and make a fresh settlement and that the Court could not itself decide what is entrusted to the executive authorities undfT the Act. This, in our opinion, is correct. In Verappa Pillai v. Raman & Raman Ltd.(') the quest!on arose with the grant of permits under the Motor Vehicles Act. The au· thorities constituted under the Act had made an Order granting permits to one Verappa Pillai, and its validity was disputed by a rival applicant M/s Raman and Raman Ltd., in an application under Art. 226. The High Court of Madras had held that the title of the applicant would prevail over that of Verappa Pillai and accordingly set aside the order of the authorities and direct grant of the permits to the applicants. On appeal to this Court, it was held that such a direction was elearly i11 excess of the powers and jurisdiction of the High Court. We must accordingly hold that the order of the High Court, in so far as it declared the rights of the highest bidder, is erront' ous. But, in view of the fact, that the lease was only for the period 1961-62 and that would shortty be expiring, there is no need to direct a fresh consideration of the matter by the authorities. In the result, the appeal is dismissed. Appeal dismissed. (I) [l9i2J S.C.R, 583, •