# 508 SUPREME COURT REPORTS (1962] SUPP. STATE OF ASSA~f v. TULSI SINGH

- **Citation:** [1962] Supp. 3 S.C.R. 508
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 14 of 1962
- **Bench:** B.P. Sr:nIA, K. SusBA RAO N. ltA.JAGOPALA AYYANGAR, J. R. MuDHOLKAR, T. L. Vf.Nkatar~Ma Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/508-supreme-court-reports-1962-supp-state-of-assa-f-v-tulsi-singh-2396
- **Pages:** 8

## Headnote

Fcrry-Seltlement nf by
auction-!11t!es-01tl~ of officer
canduc!1'.ng s1!e -Spe:iri! I.Ji'>~ 1nJ.in!ained by Assci1n aovernmcnt
of -persons su,pccted or coafit1w:,d l'J b"- c:>nn '!c!ei 1oit-li sn1.11,7glin'}
activilies-Nat?Lre of document-If could be »died on for sdtlinq
f!ivil right-tJ-High
Court if CtJ1t'd
(l~cirle m:11t-r,r entr1t.,fed fo
execulive authoritie•-lndian Evid-.nce .4cl, 1872 (I of 1872).
•.35-Norlhern India Ferrie.• Act, 1878 (17 of 1878), as. 4,8,12,
r. 19.
Under s. 4 of the Northern India Ferries Act, 1Ri8, the
ferry at N was declared to be a puhlir ferry.
Rule I 9 framed
under s. 12 of the Act provided that a s>le of
f~rry w.lS
generally to ho auctioned to the highest bidder, and the
acceptance of a hid by the officer conducting the sale was
subject to the approval of the Chief Enginet-r \vho had to see
v.rhcthcr that officer had taken into consideration all the
factors mentioned in r. 19.
Ferry at N \Vas put up tQ auction
and sold to the second rcspo11dent whose bid \''as the lo·.vcst,
Though the first respondent's hid was the highest, the officer
conducting the S<lle, \vithout funning an opinion about the
suitability of the first respondent ·on· his o\vn appreciation of
matrrials as required under r. 19, rejected first respondent's
hid straight -a\vay as his natne. appeared in the. "Speci;ll List"'.
This "Special List" was prepared and maintained by the
Government of Assain of persons
suspected
or
confirmed to be connrctcd v.•ith smuggling activities so that no
permit or license may be o/anted to such pcrso ts.
'fiiis was
in pursuance of thr. prohibition policy of the G )Vernricnt.
The first respondent applied to the Chief Enginrcr for accepting his bid and settling the ferry on him which was rejected,
whereupon he moved the High Court of Assam under Art.
226.
The High Court set aside the settlement of the ferry in
favour of the second respondent as bein~ violative of s. 8 of
the Act and r. 19 and further dr.clarecl that tl1e first rc~pon
dent was entitled to the scttleinerit as the highest bidder.
Assam Government ca1ne up in appeal by special lea\'c to tlt<:
· Surreme C.ourt.
·
3 s.c.it.
SUPREME COURT REPORTS
509
The question
is whether a bid of a person at the
auction of ferry can straightaway te rejected by the officer
conducting the sale merely for the reason _that his name
appears in the special list and w bet her the H1~h Court cc;>~ld
decide a ,question was entrusted to the executive authorities
under the Act and make setdement of the ferry.
Held, that the discretion conferred on the officer conduct·
ing the sale under s. 8 of the Northern Ferries Act read with
r. 19 framed under the Act is wide but not unrestricted.
The discretion must be based on the material before him and
rrlevant for his consideration and if, on a consideration
thereof, he declines to exercise his discretion to accept the
bid, his decision is not liable to be reversed by the courts,.
But where there is no material before him on basis of which
he rejects a bid his action amounts to non-compliance with
the provisions of r. 19 and cannot be upheld.
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 authorities. 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.

## Text

508 SUPREME COURT REPORTS (1962] SUPP.
STATE OF
ASSA~f
v.
TULSI SINGH
(B.P. Sr:nIA, c .. J., K. SusBA RAO N. ltA.JAGOPALA
AYYANGAR, J. R. MuDHOLKAR and T. L.
VF.NKATAR~MA AIYAR, JJ.)
Fcrry-Seltlement nf by
auction-!11t!es-01tl~ of officer
canduc!1'.ng s1!e -Spe:iri! I.Ji'>~ 1nJ.in!ained by Assci1n aovernmcnt
of -persons su,pccted or coafit1w:,d l'J b"- c:>nn '!c!ei 1oit-li sn1.11,7glin'}
activilies-Nat?Lre of document-If could be »died on for sdtlinq
f!ivil right-tJ-High
Court if CtJ1t'd
(l~cirle m:11t-r,r entr1t.,fed fo
execulive authoritie•-lndian Evid-.nce .4cl, 1872 (I of 1872).
•.35-Norlhern India Ferrie.• Act, 1878 (17 of 1878), as. 4,8,12,
r. 19.
Under s. 4 of the Northern India Ferries Act, 1Ri8, the
ferry at N was declared to be a puhlir ferry.
Rule I 9 framed
under s. 12 of the Act provided that a s>le of
f~rry w.lS
generally to ho auctioned to the highest bidder, and the
acceptance of a hid by the officer conducting the sale was
subject to the approval of the Chief Enginet-r \vho had to see
v.rhcthcr that officer had taken into consideration all the
factors mentioned in r. 19.
Ferry at N \Vas put up tQ auction
and sold to the second rcspo11dent whose bid \''as the lo·.vcst,
Though the first respondent's hid was the highest, the officer
conducting the S<lle, \vithout funning an opinion about the
suitability of the first respondent ·on· his o\vn appreciation of
matrrials as required under r. 19, rejected first respondent's
hid straight -a\vay as his natne. appeared in the. "Speci;ll List"'.
This "Special List" was prepared and maintained by the
Government of Assain of persons
suspected
or
confirmed to be connrctcd v.•ith smuggling activities so that no
permit or license may be o/anted to such pcrso ts.
'fiiis was
in pursuance of thr. prohibition policy of the G )Vernricnt.
The first respondent applied to the Chief Enginrcr for accepting his bid and settling the ferry on him which was rejected,
whereupon he moved the High Court of Assam under Art.
226.
The High Court set aside the settlement of the ferry in
favour of the second respondent as bein~ violative of s. 8 of
the Act and r. 19 and further dr.clarecl that tl1e first rc~pon
dent was entitled to the scttleinerit as the highest bidder.
Assam Government ca1ne up in appeal by special lea\'c to tlt<:
· Surreme C.ourt.
·
3 s.c.it.
SUPREME COURT REPORTS
509
The question
is whether a bid of a person at the
auction of ferry can straightaway te rejected by the officer
conducting the sale merely for the reason _that his name
appears in the special list and w bet her the H1~h Court cc;>~ld
decide a ,question was entrusted to the executive authorities
under the Act and make setdement of the ferry.
Held, that the discretion conferred on the officer conduct·
ing the sale under s. 8 of the Northern Ferries Act read with
r. 19 framed under the Act is wide but not unrestricted.
The discretion must be based on the material before him and
rrlevant for his consideration and if, on a consideration
thereof, he declines to exercise his discretion to accept the
bid, his decision is not liable to be reversed by the courts,.
But where there is no material before him on basis of which
he rejects a bid his action amounts to non-compliance with
the provisions of r. 19 and cannot be upheld.
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 authorities. 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
State of.A.ssrm
••
Tulri Singh
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 question that arises for our decision in this appeal is whtether the settlement by the Executive Engineer, Golaghat 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 superintend<•nce of the ferry is vested, or, if the
ferry 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 payment 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
::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 the Act is as
follows:-
"The sale shall generally be by auction to
. the highest bidder. The Officer conducting
the sale for sufficient reason recorded in writing 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 language, 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, the
second
respondent for
Rs. 3,000/-. The Executive Engineer then made
the following Order :-
"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
1962
St•te of .Assam
v.
Tulsi Singh
~iyarJ.
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 account and considered a.II the factors m!'ntioned in Rule
19 above." The Chief Engineer approved of the decision of tho executive Engineer dated January 23,
1961, and the sale totbe second respondent was confirmed. Thereupon, on February 6,1!161, t.he first respondent 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 directed.
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 respondent, who gave the bighPst. bid. Section 8, provides 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 provides that in accepting the bid, he has to take into
-
r'
-
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 materials before a conducting officer on which he could
refuse to accept the highest bid and he on a consideration, 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 suspected 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 difficulty of the appellant is that there are no materials
nu which the first respondent could be held to
'
..
.
'
'
,- .
.
1962
State of Assam
v.
Tulsi Singh
A'._yarJ.
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 Prohibit.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 the
"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
s. 35 of the Evidence Act. · It is said to be a
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 Criminal 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,
then thnre was nothing else on which the conducting 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 authorities 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
...
•
3 S.C.lt.
SUPREME COURT REPORTS
515
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 reference to 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,
1962
Stati of Assan1
v.
Tulsi Singh