This appeal has been referred to the Special Bench by me as the questions of law raised in this appeal very often come up for considera­tion before this court. I have had the advantage of reading the judgment of my lord the Chief Justice and my brother Dutta, J. But as I do not agree with the opinion expressed by them on the points raised and argued, I shall give my opinion separately.

(2) This is an appeal under section 147 of the Assam Land and Revenue Regulation (herein­after called 'the Regulation') with rule 11 of the Fishery Rules published under the said Regulation (hereinafter called 'the Rules') on behalf of one Raghunath Talukdar against an order of the Sub-divisional Officer, Barpeta who is impleaded as respondent No. 1 in this appeal. The State Gov­ernment selected Fishery No. 28 Barkana beel with Nos. 29 and 68 for settlement by tender. The Subdivisional Officer, Bavpeta was accord­ingly directed to take steps for settlement of the said Fishery under the rules after inviting ten­ders. By a sale notice dated 22nd December, 1959 the Subdivisional Officer, Barpeta invited ten­ders for settlement of the aforesaid fishery, fixing the last date for submission of such tenders Upto 6 P.M. cm 3rd February, 1960.

The appellant along with others filed his tender in prescribed form within time. As re­quired under rule 45 of the Rules the Sub divisional Officer, Barpeta appointed an Advisory Board. The tenders were opened on the 4th Feb­ruary, 1960 in the presence of the tenderers and the appellant's tender was the highest at Rs. 24,550. Along with this proposal, other pro­posals regarding the settlement of other fisheries in. this Sub-Division were sent to the Commissioner of Plains Division for sanction. On the 2nd March, 1960 the Commissioner of plains Division set aside all the proposals for settlement on the ground that the proceedings before the Subdivi­sional Officer for selection of a suitable tenderer With whom the settlement should be made were irregular inasmuch as the tenders were not open­ed on the date fixed under the notice. A peti­tion under Article 226 of the Constitution was filed by the present appellant to this Court chal­lenging tile order of the Commissioner which was allowed by this court on 13th May, 1960. It was held by this Court that the order of the Commis­sioner setting aside the entire proceedings was illegal. The order of the Commissioner was quashed and a mandamus was issued to the Sub-divisional Officer, Barpeta directing him to resubmit the settlement proposal for sanction.

There is no dispute between the parties, so {ar as the facts stated above are concerned. Ac­cording to the appellant however, after the man­damus had been issued by this court, the Sub-divisional Officer, resubmitted his original pro­posal on the 1st July, I960. But the Commission­er refused to confirm the settlement and further directed the Subdivisional Officer, Barpeta for submission of a fresh proposal again indicating that the settlement be made with respondent No. 2 Bapuram Das who is Secretary Bania Kuchi Co-operative Fishery Society Ltd. The appellant} further alleges that in obedience to the above) direction and suggestion of the Commissioner of Plains Division, Shillong, respondent No. 1 the Subdivisional Officer, Barpeta selected res­pondent No. 2 as the suitable candidate for settle­ment and sent the proposal to the Commissioner for sanction. The Commissioner by his order dated 14th September, 1960 sanctioned the settlement of the Fishery with respondent No. 2 at Rs. 24,550) for the years 1960-61 to 1962-63.

(3) When the appeal came up for hearing before me mainly three points were argued by Dr. Medhi on behalf of the appellant. Firstly he argued that when the fresh proposal was sub­mitted to the Commissioner for sanction after the Order by this Court on the 13th May, 1960. the Advisory Board was not consulted. There was thus no valid proposal for settlement before the Commissioner for sanction and any