SHEOPUJAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution of India the petitioner prays for the issuance of a writ of mandamus commanding respondents 1 to 4 to settle a fishery known as Anaith Ahar in favour of the petitioner after cancelling the settlement made in favour of respondent No. 5 by the impugned order dated 28th August, 1978, as contained in Annexure '7'. The aforesaid order was passed by the Collector. Bhojpur (Respondent No. 3) by which settlement of the fishery in question was directed to be made in favour of respondent No. 5 for the years 1978-79 and 1979-80, the year in each case beginning on the 1st of April. Subsequent to the filing of the writ application an order dated 12th September, 1978 was passed by which settlement was actually made by the Additional Collector (Respondent No. 4) in favour of respondent No. 5. A copy of this order has been annexed as Annexure 'E' to the counter affidavit filed on behalf of respondent No. 5, Although no formal application has been made by the petitioner for amendment of the original writ petition learned counsel in the petitioner also challenged the order of settlement made on 12th Sept, 1973 as borne out by Annexure 'E' to the counter-affidavit of respondent No. 5.

(2.) The facts, as admitted by the petitioner, are these:-- An auction is said to have been held for the settlement of the fishery in question at which the petitioner also participated along with his so-called Benamidar who figures as respondent No. 6 in this application. It is stated that the petitioner's bid having been accepted there he was called upon to deposit a sum of Rs. 1,500/-which was required under the terms of the auction inviting competitive bids. It seems, the petitioner deposited a sum of Rs. 1000/- only. By an order dated 20th July, 1978, as incorporated in Annexure '3', the petitioner was called upon to deposit the remaining amount of the first instalment of the auction money, namely, Rs. 500/-, failing which it was stated that on 21st July, 1978, the fishery in question would be resettled. Admittedly, the petitioner did not deposit the balance amount of the first instalment as was required of him to be done before the 21st of July, 1978. Subsequently, on 24th July, 1978 as the petitioner states, he deposited the balance amount of the first instalment of Rs. 500/-. As admitted by learned counsel for the petitioner, no settlement could have been finally made unless approval thereto was accorded by the commissioner of the Division. Admittedly, no approval was given to the petitioner's so-called settlement Subsequently, it is stated, a fresh auction was held at which respondent No. 5 being the highest bidder, the impugned order as contained in Annexure 'E' was passed in his favour by the Collector (Respondent No. 3). As already stated above, on 20th July. 1973., respondent No. 4, the Additional Collector, made settlement in favour of respondent No. 5 pursuant to the direction made by the Collector.

(3.) Two contentions were raised by learned counsel for the petitioner in support of this application. It was submitted, firstly, that there is no power in the Collector to upset the order passed by the Additional Collector nor was there any such power under which he could interfere in any manner with the orders passed by the Additional Collector. It was submitted that it amounted to an order of review which is always a creature of Statute. The only other point raised in support of this application was that there being a complete contract in favour of the petitioner by virtue of his previous bid having been accepted, a legal right under the contract had accrued to the petitioner which was enforceable in or through this writ application.