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1965 DIGILAW 175 (CAL)

Gopal Singh v. Hooghly Zilla Parisad

1965-07-12

Banerjee

body1965
JUDGMENT 1. THERE is an Act known as the Bengal Ferries Act, 1885. Under section 7 of the Act "the control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner". Section 8 of the Act vests the immediate superintendence of every public ferry in the District Magistrate or in such other officer as the Governor may from time to time either by name or by official designation appoint. Section 9 of the Act deals with leasing out of the ferry tolls and is couched in the following language:-"the tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner direct. The Magistrate of the district or the officer authorized by him to conduct such auction may, for sufficient reason to be recorded; in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction. 2. THE lessee of the tolls of every ferry which have been leased under this section shall execute a contract setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfilment. " section 35 of the Act provides that it shall be lawful for the State Government to order that any public ferry situated in any District in which a District Board has been established shall be managed by such District Board. By the said section such District Boards are invested with all the powers vested in the Magistrate for leasing out ferries. The District Board of Hooghly, which used to manage public ferries in the district, has now been succeeded by a Zilla Parishad, established under the West Bengal Zilla Parisad Act, 1963. Under section 111 of the latter Act, all Zilla Parishad become entitled to all rights acquired, all debts obligations incurred, all matters and things engaged to be done, before the establishment of Zilla Parishad, by the District Boards. Thus the leasing out of the ferry in the district of Hooghly is now the function of the Hooghly Zilla Parisad. Under section 111 of the latter Act, all Zilla Parishad become entitled to all rights acquired, all debts obligations incurred, all matters and things engaged to be done, before the establishment of Zilla Parishad, by the District Boards. Thus the leasing out of the ferry in the district of Hooghly is now the function of the Hooghly Zilla Parisad. Keeping in mind the provisions of the aforesaid two statutes, I now turn to the facts which have given rise to this Rule. There is a public ferry known as Telinipara ferry, within the jurisdiction of Hooghly Zilla Parisad, That ferry was leased out to the petitioner from April 1, 1964 to March 31, 1965, at an annual rental of Rs. 24,000/ -. Shortly before the expiry of the period of that lease, the respondent Vice Chairman of the Zilla Parisad issued a notice, dated February 16, 1965, thereby fixing March 3, 1965, as the date of auction of the tolls of the ferry for tike period April 1, 1965 to March 31, 1966. At the auction held on March 3, 1965, the petitioner made the highest bid at Rs. 14,000/ -. The bid was not up to the expectation of the Zilla Parisad. In such a case, the Zilla Parisad might have withdrawn the ferry from auction and put to re-auction. Nothing compelled the Zillah Parisad to accept the highest bid offered by the petitioner. Instead of resorting to re-auction, the Secretary of the respondent Zilla Parisad addressed a letter, dated March 19, 1965, to the petitioner, couched in the following language:- "In terms of the resolution No. 6 of the meeting of the Finance and Establishment Standing Committee of the Hooghly Zillah Parishad held on 9th March, 1965, the undernoted public ferry is hereby leased out for one year to Shri Satyeswar Mukherjee offering the highest bid of an annual rent of Rs. 16,000/- (Rupees Sixteen: Thousand) for the year 1965-66 (with effect from 1st. April, 1965 to 31st March 1966) by way of negotiation. The lessee shall accordingly execute and get registered the required kabuliyat for the said lease for 1965-1966 with effect from 1st April, 1965 to 31st March, 1966 at his own cost within 15 days from the date of receipt of this order and thereafter take charge of the ferry ghat on 1st. The lessee shall accordingly execute and get registered the required kabuliyat for the said lease for 1965-1966 with effect from 1st April, 1965 to 31st March, 1966 at his own cost within 15 days from the date of receipt of this order and thereafter take charge of the ferry ghat on 1st. April, 1965, from Shri Gopal Singh, old lessee of the ferry for the year 1964-1965. " 3. IT may be noted at this stage that Satyeswar Mukherjee was not one of the persons, who had bid at the public auction for the ferry, held on March 3, 1965. According to the petitioner the private settlement of the ferry made with Satyeswar Mukherjee, was violative of the provisions of the Ferries Act. On March 27, 1965, the petitioner wrote to the Zilla Parisad ventilating this objection and by that letter also intimated that he was prepared to pay Rs. 17,000/-, in place of Rs. 16,000/- offered by Satyeswar Mukherjee, and was prepared to go higher up if the ferry be put to auction again. On the day when the petitioner addressed the above letter to the Zilla Parisad, the respondent Zilla Parisad passed a resolution to the effect that the bid offered by the petitioner, at the auction, was inadequate and should be set aside; but in the perspective of the counter offer of Rs. 16,000/-, made by Satyeswar Mukherjee, the petitioner Gopal Singh must be given the last chance to make his offer and that the Vice-Chairman should be entrusted to take necessary steps for the settlement of the ferry. The respondent Vice-Chairman made the resolution known both to the petitioner and to Satyeswar Mukherjee and in response thereto Satyeswar Mukherjee sent an offer of Rs. 17,100/- in writing. That offer being higher than the offer made by the petitioner on March 27, 1963, the Vice-Chairman decided to settle the ferry with Satyeswar Mukherjee. 4. AGGRIEVED thereby, the petitioner moved this court, under Article 226 of the Constitution, praying for a Writ of Mandamus directing the respondents Zilla Parisad authorities to forbear from settling the disputed ferry with Satyeswar Mukherjee and obtained this Rule. Two points were argued by Mr. Ranjit Kumar Banerjee, learned Advocate for the petitioner, in support of the Rule. 4. AGGRIEVED thereby, the petitioner moved this court, under Article 226 of the Constitution, praying for a Writ of Mandamus directing the respondents Zilla Parisad authorities to forbear from settling the disputed ferry with Satyeswar Mukherjee and obtained this Rule. Two points were argued by Mr. Ranjit Kumar Banerjee, learned Advocate for the petitioner, in support of the Rule. He contended, in the first place, that under the scheme of the Ferries Act, lease of ferry tolls may be made only under the prescribed procedure, namely, by auction and in no other manner and as such the settlement of the ferry in favour of Satyeswar Mukherjee by private negotiation must be set aside. In my opinion, there is a good deal of substance in the contention of Mr. Banerjee. Explaining sections 7, 8 and 9 of the Ferries Act, the Supreme Court observed in the case of (1) State of Bihar v. Ram Bharosa Singh, (A. I. R. 1956 S. C. 640) as follows:- "The intendment or the scheme of the Act and the rules is either to have khas possession of the ferries in the District Magistrate or to hold a public auction for the grant of a lease. There is no power express or implied for extension of a term of lease already granted. It is no doubt true that the Magistrate is empowered to refuse to accept the highest bid and accept any other bid or even withdraw the tolls from auction, but this does not mean that the process of holding an auction and ascertaining the bids could be abandoned altogether and that it is open to the District Magistrate to extend the term indefinitely and at his sweet will and pleasure. The maximum term cannot exceed three years and at the end of it there has to be a public auction to ascertain the bids. The reason for insistence on a public auction can be guessed. As is pointed out in The State of Assam v. Keshab Prasad Singh, (1953 S. C. R. 865) it is probably a statutory safeguard against arbitrary executive action. " That being the law, I have to condemn the arbitrary procedure adopted by the Zilla Parisad in overriding the statutory safeguards and in trying to settle the toll of the ferry in a manner not provided for by the statute. " That being the law, I have to condemn the arbitrary procedure adopted by the Zilla Parisad in overriding the statutory safeguards and in trying to settle the toll of the ferry in a manner not provided for by the statute. On this ground alone this Rule ought to succeed and the private settlement of the ferry with the respondent Satyeswar Mukherjee need be set aside. Even then I cannot ignore the other argument advanced by Mr. Banerjee. That argument was that the petitioner did outbid respondent Satyeswar Mukherjee when by his letter dated March 27, 1965, he offered Rs. 17,000/- in place of Rs. 16,000/- offered by Satyeswar Mukherjee. The Zilla Pari-sad, by its resolution dated March 27, 1965, had authorised the respondent vice-Chairman to take the last say from the petitioner before rejecting his bid altogether. That last say was there, contained in petitioner's letter, dated March 27, 1965. But as against that respondent Satyeswar Mukherjee was allowed to have another say. This does not look well of a public body of the status of a Zilla Parisad. If the Zilla Parisad was really concerned over financial gain, there was the petitioner, who, by his letter dated March 27, 1965, had shown his willingness to go to any length in order to retain the ferry. Why that offer was not considered by the Vice-Chairman as the last offer is not easy to comprehend. I am of the firm belief that in order to safeguard against this sort of arbitrariness, the statutory procedures prescribed by the ferries Act should not be allowed to be departed from. 5. I, therefore, set aside the proposal to lease the ferry in favour of the respondent No. 5, Satyeswar Mukherjee and restrain the respondent Zilla Parisad from settling the ferry in any manner other than the manner prescribed by the Ferries Act. This Rule succeeds to the extent indicated above. Let a mandate issue accordingly. The respondent Zilla Parisad must pay costs of this Rule to the petitioner, which I assess at five gold mohurs. Out of the money deposited by the petitioner with the Registrar, Appellate Side, the respondent No. 1 may withdraw a sum of Rs. 4748 -, being the amount admittedly due to it from the period April 1, 1965 up to date. The balance may be returned to the petitioner All interim orders made in the Rule stand vacated. Out of the money deposited by the petitioner with the Registrar, Appellate Side, the respondent No. 1 may withdraw a sum of Rs. 4748 -, being the amount admittedly due to it from the period April 1, 1965 up to date. The balance may be returned to the petitioner All interim orders made in the Rule stand vacated. In view of the disposal of the Rule no order is necessary on the application dated May 24, 1965.