Sahabganj Boat Traffic Co-operative Society v. State Of Bihar
1993-07-30
R.N.PRASAD, S.B.SINHA
body1993
DigiLaw.ai
Judgment S. B. Sinha and J JJ. 1. This application is directed against a notice dated 7th may, 1993 issued by the Deputy Commissioner, Sahebganj wereby and whereunder tenders have been invited from the intending bidder for taking setllement of Sahebganj Manihari Group of Public Ferry which is a public ferry within the meaning of the provisions of Bengal Ferries Act 1885. 2. The fact of the matter lies in a very narrow compass. Petitioner no.1 is a society registered under the Bihar Co-operative Societies Act. The ghats in-question had been settled with the petitioners for the year 1991-92. It is accepted that previously there was 180 different ghats. One Jai Manga)Singh filed a writ petition in this court being C. W. J. C.6175/90 wherein inter alia it was contended that the settlement of Ghats were going to be made without fixing the limits thereof. A Division Bench of this Court by order dated 20th September, 1980 dismissed the said writ application directing the petitioner to appear before the Deputy Commissioner, Sahebganj so as to get the limits of the Ferries in-question defined before the auction was held. Another writ application was filed by one Damodar Pd. Singh raising the same question which was registered as C. W. J. C.1494/91. By an order dated 9-4-1991 the said writ application was also disposed of in view of the submissions made by the counsel for the State that steps have already been taken to renotify the limits of the ferries. 3. However, another writ application was filed by Damodar Prasad singh as allegedly the direction of this Court in C. W. J. C 1494 of 1991 were not complied with being C. W. J. No.3838 of 1991. In that writ application the petitioner was added as respondent No.4. By a judgment dated 7th May, 1992, a Division Bench of this Court while allowing the said writ application held as follows :- "if the Act requires the State Govt to define the limits of the public ferries, there is no reason why the State Government should not define the limits. For one reason or the other the Govt, has been dragging its feet.
For one reason or the other the Govt, has been dragging its feet. No doubt the demarcation of the limits of each individual public ferry (sic) may involve considerable time and affort, but that should have been done in view of earlier orders of this Court and the order of the Commissioner as contained in Annexure-14 of the writ application. We are informed that so far this has not been done. It is difficult to imagine how an intending settlees can bid at a public auction or take the settlement otherwise unless all the different ferries are defined by reference to their limits. In the absence of such definition of limits there may be disputes inter se between the different lessees of public ferries. At the same time other persons in the locality who are prohibited from maintaining a private ferry within two miles from the limits of public ferries may be penalised for committing breach of Sec.16 of the Act without even fur nishing the limits of the public ferries. I have, therefore, no doubt that the limits of public ferries which are sought to be settled separately must first be clearly defined in accordance with the provisions of the Act before an auction is held, or before such public ferries are sought to be leased out to any person or body otherwise. I, therefore, direct the State of Bihar to first define the limits of the public ferries in question, and notify the definition in terms of section 6 of the Act. Only thereafter the respondent shall take steps either to hold public auction for leasing out such public ferries, or settle the same in accordance with the provisions to section 9 of the Act, If a settlement is sought to be made under the proviso to Sec.9 of the Act. in addition to the definition of the limits, the terms and conditions on which such settlements are to be made must also be notified by the State Govt. before the settlement is made, I direct the respondents not to hold auction of the public ferries in question except after complying with the direction contained in this order. " 3. A copy of the said judgment is contained in Annexure-5 to the writ application and has also been reported in 1993 (1) PLJR 194.
before the settlement is made, I direct the respondents not to hold auction of the public ferries in question except after complying with the direction contained in this order. " 3. A copy of the said judgment is contained in Annexure-5 to the writ application and has also been reported in 1993 (1) PLJR 194. 4 The petitioner has contended that, however, a notification was published in the Gazette dated 23-3-93 whereby and whereunder the earlier notification dated 27-2-79 was revived without complying with the order of this court By reason of the said notification dated 23-3-93 (Annexure-2), the earlier notification dated 16-9-90 had been cancelled. 5. A supplementary affidavit has been filed on behalf of the petitioners wherein it has been stated that the Deputy Commissioner, Sahebganj after making an enquiry in respect of all 180 ghats submitted a report before the state Government to the effect that out of 180 ferries, the existence of 140 (sic) ferries have already been extinguished on account of change of course of ganges A copy of the said report is contained Annexure-9 to the supplementary affidavit. The petitioner has also brought on record an order passed by the Commissioner of the Division in Misc. Sairat Appeal No.2 of 1991-92 wherein the following observations have been made :- "notification regarding declaration of 180 ghats of Sahebganj manihari group of public ferries has been isssued in the year 1979. Now after lapse of 12 years it may be possible that due to change of course of river some ferry ghats notified earlier at present do not exits and it is possible that some new ghats have come up. Therefore necessary proposal for deleting those ghats which do not exist at present and inclusion of those new ghats which have come out recently should be submitted for approval adhering to the provision of Sec.16 of the Bengal Ferry Act. " 6. The petitioner contends that the Government of Bihar issued the aforementioned notification dated 27-2-79 without considering the said fact and thus the notification dated 23-3-93 as contained in Annexure- 2 to the writ application must be held to have been issued without application of mind as thereby the earlier notification dated 27-2-79 was sought to be revived. 7. Mr. Pashupati Pd. Sinha learned counsel appearing for the petitioner has raised a short question in support of this writ application.
7. Mr. Pashupati Pd. Sinha learned counsel appearing for the petitioner has raised a short question in support of this writ application. Learned counsel submitted that the impugned notice as contained in annexure 1 to the writ application has been issued by the Deputy Commissoner Sahebganj without complying with the judgment of this Court and without taking into consideration the subsequent event that many of the ghats out of 180 ghats stood extinguished. Learned counsel further submitted that by not fixing the limits of each ghat, no notice inviting tender could have been issued. 8. In this case an application for intervention has been filed on behalf of Navgbat Upbhokta Sangh. It has been contended that auction was scheduled to be held on 28-5-1993 and the same had taken place and one suresh Chandra Sakar has become the highest bidder. It has further been submitted that Dakhli Parwana has already been issued to the said settled on 31-5-93 and he has been operating the public ferry since 1-6-93. 9. In support of the aforementioned contention, the ordersheet dated 28-5-93 and 31-5-93 have been annexed which are contained in Annexures A and B to the intervention application. It has been submitted that the petitioner-Co-operative Society was not present at the time of holding of auction. It has further been asserted that, in fact, in terms of Sec.9 of the said Act, an offer was made to respondent No.4, but the petitioner had prayed for two months time to arrange for the requisite number of boats and as the same would have been against the public interest and it was also not certain as to whether it would be able to fulfil the required condition, a public auction was held. It has further been submitted that sofar as notification 23-3-93 (Annexure-2)is concerned, the same is valid inasmuch as the settlement of Sahebganj manihari Public Ferry is in operation since 1979 as a single group of public ferry. It has been stated that Commissioner, Santhal Parganas Division at Dumka through a Gazette notification date 6-9-90 introduced certain amendments in the Gazette notification No.315 dated 27-2-1979 by declaring that 179 ferries separtely which were in fact part of the said group of public ferryes. 10. According to the intervenor, a dispute arose on account of creation of large number of separate public ferries by reason of non-mentioning of the limits thereof.
10. According to the intervenor, a dispute arose on account of creation of large number of separate public ferries by reason of non-mentioning of the limits thereof. It has been stated that the decision of this Court in 1993 (1) PLJR 194 was rendered in a different situation. According to the intervenor, the petitioner itself admitted in Misc. Sairat Appeal No.2 of 1991-92 that earlier the said 180 ghats used to be setlled in one lot with one person. A copy of the said memo of appeal and the order of the commission dated 18-7-90 are contained in Annexures C and C/1 to the intervention application. 11. It has further been submitted that the area of operation of the petitioner-Society is only within the jurisdiction of the district of sahebganj but the ferries in-question fall within the two districts namely sahebganj and Katihar. 12. The said Act was enacted for regulation of ferries within the territories under the Lt. Governor of Bengal which includes State of Bihar. The said Act is now in force in Santhal Parganas. Sec.6 (d) empowers the State Government inter alia to define the limits of any public ferry. 13. The State of Bihar issued a notification dated 27th Feb.1979 being notification No.315 which was published in Bibar Gazette extraordinary dated 27th Feb.1979 in exercise of its power conferred upon it under section 6 (b) of the said Act whereby it was declared that the ferries mentioned therein shall be public ferries with the provision to operate them with power-crafts. Their headquarters were to be within the district of Santbal Parganas and their control shall vest in deputy Commissioner, Santhal Parganas and shall be managed together in a group. Clause 2 of the said notification contains a list of 180 ferrise within Sahebganj Manihari Group of Public Ferries. 14. The Commissioner of the Division, however, issued a notification no 436 dated, 5th October, 1990 (Annexure-6) whereby and whereunder it was declared that the control and regulation of ferries named therein would be done separately. The said notification was purported to have been issued under Sec.6 (a) of the Act. It is in this situation that several litigations started.
14. The Commissioner of the Division, however, issued a notification no 436 dated, 5th October, 1990 (Annexure-6) whereby and whereunder it was declared that the control and regulation of ferries named therein would be done separately. The said notification was purported to have been issued under Sec.6 (a) of the Act. It is in this situation that several litigations started. This aspect of the matter has been noticed by the Bench in damodar Prasad Singhs case (supra) wherein it was pointed out that the commissioner in view of various difficulties in delimiting the ferries, directed the Commissioner to frame a complete picture of all the ferry-ghats falling within the boundary of Sahebganj Manihari group of public ferries and after fixing the boundaries of each ferry ghat submit the same to him. 15. However, from a perusal of 1979 (sic) notification 1990 notification itself it would appear that ferries used to start from different ghats, As for example, item nos.1 to 30 of the notification would show that all the ferries were to start from Sakri to Rampur. Item nos.31 to 60 show that all the ferries were to start from Harparas Rampur ; item nos 61 to 88 show that all the ferries were to start from Samdanala Bijlighat, item Nos, 89 to 118 ferries were to start from Lal Bathani Ghat, item Nos.119 to 148 were to start from Kishunprasad Gujara Ghat and item Nos.149 to 178 ferries were to start from Makdampur Lal Bethani Ghat and 179 is again from Samdanala bijli Ghat. 16. The said Act did not put any embargo for declaration of a number of pubilc ferries as one group of ferries and put the same under the management and control of one person. If such group of ferries are considered to be one public ferry, there cannot be any impediment whatsoever in law to grant settlement thereof in favour of one person. It may be that in view of combination of so many farries as one group of ferries persons having not much resources may not be able to take part, in the settlement, but thereby the legality of the Act cannot be questioned. 17. It is further not in dispute that from 1979-90, that is until the notification (Annexure-6) was issued, settlement used to be made treating ail the 180 ferries to be one group of ferries.
17. It is further not in dispute that from 1979-90, that is until the notification (Annexure-6) was issued, settlement used to be made treating ail the 180 ferries to be one group of ferries. However, confusion started only after the Commissioner issued the said notification dated 5-10-1990 (Annexure-6 ). 18. There cannot be any doubt that if settlement of a separate ferry has to be made, the limits thereof has to be notified in terms of Sec.6 (d) of the Act. But once all the ferries are termed to be a group of ferry, its limits being known to all concerned, there cannot be any illegality if settlement in relation to the said group of ferries is given. 19. By reason of the impuged notification dated 23-3-93, as contained in Annexure-2 to the writ application, the earlier notification bearing No.31 dated 27-4-79 was revived and only an amendment has been made to the effect that the words santhal Parganas shall be substituted by the word sahebganj. By reason of the said notification issued by the Commissiener, santhal Parganas bearing No.90 dt.6th September, 1990 was also cancelled. By reason of the aforementioned notification dated 27th Feb.1979, two groups of ferries had been declared, namely, North Bank Manihari Anchal, the limits whereof was Manihari Anchal under Manihari P. S. and Amdabad anchal under Amdabad P. S. and Sahebganj Anchal under Sahebganj P. S. in the district of Sanihal Parganas. 20. Clause 3 of the said notification defines the limits of Sahebganj and Manihari Group of Public Ferries declared under Sec.3 of the said act which reads as follows :- "3. Schedule of limits of the sahebganj Manihari group of public ferries declared under Sec.3 clause (d) of Bengal Ferries Act 1 of 1885 :- (a) The public Ferries across the river Ganges on the Northern bank of the river between Madarichak, Manihari P. S. on the western side and upto Naulkha Gapt, Amdabad P. S. on the Eastern side situated on the road from Katihari to amdabad (both points on the north Bank inclusive ). (b) The public ferries across the river Ganges on the Southern bank of the river between Pirpati Nalla, Sahebganj P. S. on the western side and upto Maharajpore Railway Station, sehebganj/taljhari P. S. on the Eastern side situated on the road from Sahebganj to Maharajpore (both points on the south bank inclusive ).
(b) The public ferries across the river Ganges on the Southern bank of the river between Pirpati Nalla, Sahebganj P. S. on the western side and upto Maharajpore Railway Station, sehebganj/taljhari P. S. on the Eastern side situated on the road from Sahebganj to Maharajpore (both points on the south bank inclusive ). " 21 It is therefore clear that the 1979 notification complied with the statutory provisions as contained in section 6 (d) of the said Act. 22. Further it is well known that it is for the State to adopt a policy decision. Such policy decision can be taken by the State from time to time taking into consideration exigency of the situation. Such an administrative act on the part of the State cannot be interfered with by this Court in exercise of jurisdiction under Articie 226 of the Constitution of India except on the ground of unreasonableness and arbitrarineness so as to attract the wrath of Article 14 of the Constitution. 23. In U. P. Financial Corporation V/s. GEM CAP (INDIA) PVT LTD and others reported in (1993) 2 SCC 299 , the Supreme Court held as follows : "the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule cf 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. 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 scrutiny/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 which is to be preferred".
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 which is to be preferred". (Lord Diplock in Secretary of State of education and Science V/s. Metropolitan Borough Counsel of Tamaside ). 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. Wednesury Corporation : "it is true the discretion must be exercised reasonably. Now what does that mean Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word unreasonable in a rather comprehensive sernse. 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 speak, 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 matters 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 absured that no sensible person could ever dream that it lay within the powers of the authority. " 24. Nothing has been argued as to how the said notification of the year 1979 which has been revived by the impugned notification made (Annexure-2)is wholly unreasonable. The said policy decision evidently has been taken upon taking into consideration the topographical condition and other circumstances. 25. Mr. Sinha is right to contends ng that some ghats might have been extenguished, but when composite group of ferries is treated to be one ferry, the settlee thereof would be entitled to carry out his operation within the entire limits and, thus, be will not be prejudiced thereby. The petitioner has not been able to show any prejudice in this connection. 26. For the reasons aforementioned, we do not find any illegality in the said notification.
The petitioner has not been able to show any prejudice in this connection. 26. For the reasons aforementioned, we do not find any illegality in the said notification. However, it appears that the intervenor has interred in a writ application in this Court being C. W. J. C.5237 of 1993. We are, however, not concerned with the merit of the said writ application in this case. 27. For the reasons aforementioned, this writ application is dismissed being devoid of any merit. In the facts and circumstances of this case, there will be no order as to costs. Petition dismissed.