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1993 DIGILAW 267 (PAT)

Kusheshwar Asthan Boat Traffic Co-operative Society v. State Of Bihar

1993-07-08

R.N.PRASAD, S.B.SINHA

body1993
Judgment S. B. Sinha, J. 1. The petitioner in this application have prayed for quashing the order dated 23-1-1993 as contained in Annexure-1 to the writ application passed by the respondent No.2 in case No.53 of 1989-90 whereby the Commissioner directed for realisation of full amount of settlement from the petitioner in relation to Sahorba Ghat from 1-4-1987 to 31-3-1990 excepting the period 1-4-87 to 12-6-1987. 2. The fact of the matter is as follows : that the Ghht in question was settled with the petitioner on 12-3-1987 for a period of three years i. e.1-4-87 to 31-3-1990 for a sum of Rs.66.955/- per year. The petitioner deposited l/3rd amount of the yearly amount of settlement i. e.22, 321/-. The agreement was executed on 20th March, 1987 and a Parwana, was issued in favour of the petitioner on 23-3-1987 (sic ). However on 31-3-1987 the settlement of the petitioner was cancelled and 8-4-1987 was fixed for settlement of ghats by public auction and in the meantime it was directed that the old settle Rajkishore mukhiya was to realise the tolls. A bid was held on 8-4-1987 and one Daya Nand Singh offered 85,000/- therein and he was declared the highest bidder. 3. The petitioner preferred an appeal before the Commissioner who by an order dated 7-4-1987 while admitting the appeal stayed further action in the matter. 4. According to the petitioner despite the said order Rajkishore mukhiya collected the toll under the orders of the authorities of the District board from 1-4-1987 to 30-11-87 to the extent of Rs.56.665/-. By an order dated 10-1-89, the appeal of the petitioner was allowed by reason of an order which is contained in Annexure-5 to the writ application. 5. The petitioner has therefore, contended that he was not liable to deposit the amount for realisation of the toll from 31-3-1987 to 9-1-89. It has also been contended that the petitioner filed an application before the commission which was registered as case No.53 of 1988-89 wherein the district Board allegedly appeared through lawyer who conceded that the aforementioned amount of Rs.55,665/- should be realised from the Rajkishore mukhiya. A copy of the said order is contained in Annexure-6 to the writ application. 6. However, according to the petitioner the present incumbent of the office of the petitioner had directed him to deposit the entire amount excluding the period 1-4-87 to 12-6-1987. 7. A copy of the said order is contained in Annexure-6 to the writ application. 6. However, according to the petitioner the present incumbent of the office of the petitioner had directed him to deposit the entire amount excluding the period 1-4-87 to 12-6-1987. 7. In this case, a counter affidavit has been filed wherein it has been contended that there are various documents to show that the petitioners had been in possession of the ghats in question since 13-6-1987. In the counter affidavit various documents had also been annexed in support of the aforementioned fact. 8. It has further been contended that the petitioner himself deposited the Revenue Jama for the year 1987-88 which confirms that he realised the tolls in the year 1987-88 also. It was submitted that later on he filed a claim for remission for the amount in question for the year 1987-88. It is stated that in this situation the impugned order dated 12-3-1993 has been passed by the Commissioner. 9. Mr. Pasupati Prasad Sinha, the learned counsel appearing on behalf of the petitioner submitted that in view of the order dated 4-3-1990 as contained in Annexure-6 to the writ application whereby Shri Rajkishore mukhiya was directed to deposit a sum of Rs.55.665/-for the period 1-4-87 to 30-11-87, it does not lie in the mouth of the respondents now to contest that the petitioners possession was restored on 13-6-1987. 10. The learned counsel further submitted that the every fact from a perusal of the order dated 24-3-1990 as contained in Annexure-6 to the writ application, it would also appear that the lawyer for the District Board admitted that the petitioner be not treated to be a defaulter, the contention of the respondent must be held to be barred under the principles of estoppel. 11. From a perusal of the aforementioned order, it appears that the same was not a final order but merely an interim order passed on the concession of the lawyer of the District Board which was based on the statements made by the petitioner for the limited purpose that he may not be treated to be a defaulter so as to enable him to participate in the bid. 12. 12. So far as the letter dated 19-12-1987 as contained in Annexure-4 to the writ application is concerned, it has been contended by the respondents that the said letter is based on wrong facts and D. D. O. had no jurisdiction to issue the said letter. 13. The Commissioner in the impugned order as contained in Annexure-6 to the writ application, has considered all aspects of the matter and analysed each and every document. He has also held that the entire confusion arose out of the aforementioned letter as contained in annexure-4 which was not only without jurisdiction but also based on wrong facts. 14. It has been pointed out that the Deputy Development Commissioner is the Chief Executive Officer of the Zila Parishad and as the District development Officer has not been authorised to issue any letter by the Chief executive Officer of Zila Parishad, the said letter must be held to have been issued wholly unauthorisedly. 15. From a persual of the impugned order it is evident that the learned commissioner has considered each and every material produced before him and except Annexure-4 the petitioner has not been able to point out anything to show that the said order is either unreasonable or perverse. 16. The question as to whether since when the petitioner had been realising any tolls in respect of the ghat in question is essentially a question of fact. Such a question of fact cannot be determined by this court in exercise of its jurisdiction under Article 226 of the Constitution of India. The impugned order passed by the Commissioner is an administrative order. 17. Such an administrative order can be interfered with by this court only when the same is found to be wholly perverse or unreasonable. 18. Recently in U. P. Financial Corporation V/s. Gem Cap (India) Pvt. Ltd. , reported in 1993 (I) Supreme Court Cases 299 it has been held as follows :- "the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this court as far back as 1970 in A. K Kraipak V/s. Union of india. Even so the extent of judicial scruitiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities, they have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to be preferred". (Lord Diplock in Secretary of State for education and Science V/s. Metropolitan Borough Counsel of tamesidh) ). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. To quote the classic passage from the Judgment of Lord Greene M. R. in Associated Provincial picture Houses Ltd. V/s. Wednestiury Corporation : "it is true the discretion must be exercised reasonably. Now what does that means Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word unreasonable in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matter which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. He must exclude from his consideration matter which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. " 19. We find that the impugned order passed by the learned commissioner is based, on facts and cannot in any way be termed to be perverse and unreasonable nor does it contain any error of law on the fact of the records. 20. For the reasons aforementioned, we do not find any merit in this application, which is accordingly dismissed, but without any order as to costs. Application Dismissed.