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2014 DIGILAW 256 (PAT)

State of Bihar v. Shankar Tiwary

2014-02-14

NAVIN SINHA, VIKASH JAIN

body2014
JUDGMENT : NAVIN SINHA, J.:–I. A. 1870 of 2013 has been filed to condone delay of 154 days in filing the Appeal. We have heard Learned Counsel for the parties and considered the explanation for delay. Official procedures requiring administrative approvals at different levels in an impersonal bureaucratic set up, to file Appeal do take time, opinions have to be obtained, especially when a judgement has implications at the State level concerning issues of policy, far beyond the immediate parties. The present appeal raises important questions of law having implications all over the State. We consider it proper to condone the delay. The I.A. Application is allowed. 2. The present appeal arises from order dated 30.4.2012 allowing CWJC No. 14449 of 2010. The Learned Single Judge held that the notification dated 1.7.2010 of the State government issued under Section 158 (1) of the Bihar Panchayat Raj Act, 2006, [hereinafter referred to as ‘the Panchayat act’] directing that no settlement of public ferry be made by the Zila Parishad from 2010-2011 and releasing all existing settlements was invalid and without jurisdiction. The State government could not interfere with statutory settlements made by the Zila Parishad under the Bengal Ferries Act,1885 [hereinafter called ‘the Ferries act’], more so in absence of any request from the Zila Parishad, a pre-condition for exercise of powers under the Section 158 (1). The Zila Parishad in a ferry settled by it under Section 35 of the Ferries act was the exclusive repository of the power like the District Magistrate with regard to settlements made by him. If the State government could not interfere with the statutory settlements made by the District Magistrate, the same reasoning would apply to statutory settlements made by the Zila Parishad. The Learned Single Judge relied upon Section 6 of the Ferries act as interpreted in AIR 1956 SC 640 [State of Bihar & ors Vs. Ram Bharosa Singh) and AIR 1987 Patna 138 [Ranjit Singh Vs. State of Bihar& ors]. Section 73 [21] [h] of the Panchayat act was held to have no application as it is related to maintenance and control of any tank, ghat, well channel or drain, belonging to a private owner on agreed terms. The respondent was held entitled to refund of the settlement amount for the period 5.7.2010 to 14.5.2011 during which he was unable to collect toll by an erroneous premature cancellation. The respondent was held entitled to refund of the settlement amount for the period 5.7.2010 to 14.5.2011 during which he was unable to collect toll by an erroneous premature cancellation. The respondent was further held entitled to compensation for loss and damages to be determined by the District Magistrate on a representation to be filed. 3. Learned counsel for the appellant submitted that the interpretation of Section 6 and 35 of the Ferries act by the Learned Single Judge was erroneous. Section 73 [14] of the Panchayat act could not be brought to the attention of the Court. The State government having taken a policy decision to do away with auction settlement of ferries by the District Board had framed Model Rules 2011 published in the Gazette on 15.6.2012 for registration and licensing of boats including safety features along with other requirements. It was further contended that the Learned Single Judge did not appreciate the difference in power of the District Magistrate to make settlements under supervision of the Commissioner and the power of the District Board for settlement of ferries where a Board existed in a District, under supervisory control of the State government. The provisions of Section 6 of the Ferries act had to be read with the notifications issued thereunder in respect of the separate powers of the District Magistrate and of the District Board read along with Section 35. Compensation of Rs.6,71,003.63p. had been directed to be paid simultaneous to cancellation of settlement even before the order by the Court. Payment had been received by the respondent on 10.7.2013. The claim for compensation and damages had been considered by the District Magistrate and rejected on 5.12.2012 by a reasoned order. There is no challenge to it. There was no error in exercise of powers under the Panchayat act. Alternately, the State government had power under Section 35 of the Ferries act to give directions to the Zila Parishad. The mere quoting of a wrong provision would not invalidate the notification. Reliance was placed on 2004 (2) PLJR (SC)80 (M.T.Khan Vs. Government of Andhra Pradesh). 4. Learned Counsel for the respondents submitted that under Section 6(f) of the Ferries act one or more ferry could be closed down if considered unnecessary. There could be no general order for closure of public ferries. Reliance was placed on 2004 (2) PLJR (SC)80 (M.T.Khan Vs. Government of Andhra Pradesh). 4. Learned Counsel for the respondents submitted that under Section 6(f) of the Ferries act one or more ferry could be closed down if considered unnecessary. There could be no general order for closure of public ferries. There is no notification issued under section 6 [f] determining that the public ferry had become unnecessary. A public ferry could be closed as unnecessary if a bridge had been constructed. The notification under section 158 (1) of the Panchayat act does not state that the public ferry was considered unnecessary. If the State government revoked the power of the Zila Parishad under section 35 of the Ferries act to settle public ferry it would only take it out of the jurisdiction of the Zila Parishad and the public ferry would then vest in the Khas possession of the District Magistrate. The latter would then exercise powers under Rule 3 of the Model rules framed under Section 15 of the Ferries act on 9.3.1937. The power to frame rules for public ferries vested in the District Magistrate alone under Section 15 of the Ferries act, and not in the State government. The power to frame rules in respect of private ferries vested in the Commissioner under Section 22 of the Ferries act. The Model rules framed in 2011 have no application to public ferries settled under the Ferries act. The right to run a ferry constituted property as held in (1970) 3 SCC 109 (Ranendra Narayan Sinha Vs. State of West Bengal). Rule 73 (14) of the Panchayat act had no application as it related to inland waterways. The right to run a public ferry across the river did not constitute a waterway which had to be in length only. Reliance was placed on CWJC no. 17834 of 2010 (Institute of Public Character Vs. State of Bihar) to reinforce the submission with regard to the sole authority of the District Magistrate to make settlement of public ferry under the Ferries act. It was lastly submitted that the claim for damages and compensation had been wrongly rejected by the District magistrate. 5. In order to better appreciate the controversy involved it shall be necessary to quote the relevant statutory provisions. BENGAL FERRIES ACT Section 6. It was lastly submitted that the claim for damages and compensation had been wrongly rejected by the District magistrate. 5. In order to better appreciate the controversy involved it shall be necessary to quote the relevant statutory provisions. BENGAL FERRIES ACT Section 6. Power to declare, establish, define and discontinue public ferries.–It shall be lawful for the Lieutenant-Governor from time to time to– [a] declare for ferries shall be deemed to be public ferries, and the respective districts in which, for the purposes of this act, they shall be deemed to be situated; [b] take possession of a private ferry, and declared it to be a public ferry; [c] establish new public ferries where, in his opinion, they are needed; [d] define the limits of any public ferry; [e] change the course of any public ferry; and [f] discontinue any public ferry which he deems unnecessary. Every such declaration, establishment, definition, change or discontinuance, shall be made by notification: provided that, when any alteration in the course or in the limits of a public ferry is rendered necessary by changes in the River on which such ferry is established, such alteration may be made by an order in writing by the Magistrate of the district. 6. Under Bengal government notification dated 9th of May 1889, the power under clauses [d] and [e] of section 6 of the Act, to define the limits and to change the course of such public ferries as are under their control have been delegated to the District Magistrate's in Bengal. 7. In Bengal government notification no. 3403-L.S.G., dated 1st December 1904, the powers conferred upon the Lieutenant-Governor by clauses [a], [b], [c] and [f] of Section 6 have been delegated to the Commissioners of Divisions. Under Section 35, the power mentioned in the last clause of Section 6 will be exercised by the District Board in respect of any ferry placed under its management.– SECTION 35. 3403-L.S.G., dated 1st December 1904, the powers conferred upon the Lieutenant-Governor by clauses [a], [b], [c] and [f] of Section 6 have been delegated to the Commissioners of Divisions. Under Section 35, the power mentioned in the last clause of Section 6 will be exercised by the District Board in respect of any ferry placed under its management.– SECTION 35. Management may be vested in District Board or Municipality.– 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 under the provisions of the Bengal local self- government act of 1885, [or situated, within or adjacent to the limits of any municipality, shall be managed by such district Board or by the commissioners of such municipality as the case may be]; and such District Board shall have all the powers vested in the Magistrate of the district under this act, except the powers specified in sections 7, 17 and 32 [and thereupon the ferries shall be managed accordingly]. The State government may, from time to time, vary or annul any order made under this section. BIHAR PANCHAYATI RAJ ACT. Section 73. Functions and powers of Zila Parishad.–[1] subject to such condition as may be prescribed by the government from time to time, the Zila Parishad shall perform the following functions- (14). Rural roads and Inland waterways.–[i] construction and maintenance of roads other than national and state highways. [ii] bridges and culverts coming under roads other than national and state highways. [iii] construction and maintenance of office building of the Zila Parishad. [iv] identification of major link roads connecting markets, educational institutes, health centers and link roads; [v] organizing voluntary surrender of lands for new roads and widening of existing roads. Section 158. [ii] bridges and culverts coming under roads other than national and state highways. [iii] construction and maintenance of office building of the Zila Parishad. [iv] identification of major link roads connecting markets, educational institutes, health centers and link roads; [v] organizing voluntary surrender of lands for new roads and widening of existing roads. Section 158. Withdrawal of powers and functions from the Panchayats.–(1) Notwithstanding the transfer of any power, functions and duties in respect of any matter to a Panchayat under this Act, the Government on a proposal from the Panchayat in that behalf or where it is satisfied that by reason of a change in the nature of the matter, such as the conversion of a primary health center into a secondary health center or hospital or the conversion of a seed multiplication farm into an agricultural research farm or a road becoming a part of a highway, the matter would cease to be a matter on the relevant Panchayat Functions List and if it is deemed to be necessary to withdraw from the Panchayat the powers, functions or duties in respect of such matter, may, by notification in the Official Gazette, withdraw such powers, functions and duties with effect from the date specified in the notification and make such incidental and consequential orders as may be necessary to provide for matters including the taking over of the property, rights and liabilities, if any, vesting in the Panchayat and of the staff, if any, which may have been transferred to the Panchayat as the case may be. (2) The Government may, by notification in the Official Gazette amend or add any activity, programme or scheme assigned to a Panchayat under this Act. On the issue of such notification, the relevant Panchayat Functions List shall be deemed to have been amended accordingly. 8. The scheme of the Ferries act provides that the District Magistrate is competent to make settlement of public ferries under Section 7 subject to the directions of the Commissioner. In Districts where a District Board exists, the District Board through its Chairman is competent to make such settlements under Section 35 of the Ferries act exercising like powers as the District Magistrate but subject to the control of the State government, except such powers as are specifically excluded. In Districts where a District Board exists, the District Board through its Chairman is competent to make such settlements under Section 35 of the Ferries act exercising like powers as the District Magistrate but subject to the control of the State government, except such powers as are specifically excluded. In respect of ferries settled by the District Board under Section 35 of the ferries act, the State government is competent from time to time to vary or annul orders. The power to vary or annul, in our opinion would include the power to issue directions to the District Board for closure of a public ferry under Section 6 (f) of the Ferries act pursuant to the notification dated 1st of December 1904. The conclusion that the State government had no power or jurisdiction to interfere with settlement of a ferry made by the District Board as the exclusive repository of the statutory power or to direct its closure is difficult to uphold. 9. The words “unnecessary” in Section 6 (f) of the Ferries act have to be given a wider connotation in a contextual interpretation and not a literal interpretation as urged on behalf of the respondent. The word signifies something that is not necessary and not wanted or required. It has to be understood as the sole subjective power of the State government / Zila Parishad. If the power to decide be there in the State government it cannot be interfered only because another view may be possible unless the reason for the decision is completely arbitrary or perverse. Such is not the case presently. 10. Section 73(14) vests powers in the Zila Parishad with regard to inland waterways. An inland waterway, in our opinion constitutes a mode of travel through water unlike a road. It is not possible to hold that crossing from one side of the river to another would not constitute an inland waterway. The concept on an inland waterway cannot be put at par with crossing one side of the road to another. Section 158(1) of the Panchayat act, in our opinion, does not provide for exercise of powers only at the request of a Panchayat. Power is also vested in the State government subject to its satisfaction to withdraw any powers from the Panchayat. Section 158(1) of the Panchayat act, in our opinion, does not provide for exercise of powers only at the request of a Panchayat. Power is also vested in the State government subject to its satisfaction to withdraw any powers from the Panchayat. The power in the Zila Parishad with regard to inland waterways can therefore well be withdrawn by the State government on its satisfaction. The notification dated 2.7.2010, effectively annuls the power of the Zila Parishad to make settlement of public ferry under Section 35 of the Ferries act. But since it was being taken as a policy decision the State government thought it prudent to take away the power of the Zila Parishad regarding inland waterways in general. If the power to settle public ferry was given to the Zila Parishad by the State government under section 35 of the Ferries act and the power to vary or annul the same remained with the State government, it is difficult to hold that the State government had no powers over such settlement made by the Zila Parishad pursuant to the vesting of such powers. The State government was therefore fully competent to direct the Zila Parishad to close down the public ferry settled by it under section 6 (f) of the Ferries act. The conclusion of the Learned Single Judge in this regard is not sustainable in absence of discussion with regard to the last clause of Section 35 in juxtaposition with Section 6 (f) of the Ferries act read with notification dated 1st December 1904. Section 73 (14) of the Panchayat act was not brought to the attention of the Learned Single Judge. 11. There is no statutory foundation for the submission that if a public ferry settled by the Zila Parishad under Section 35 of the Ferries act was directed to be annulled by the State government it would vest in the form of a public ferry with the District Magistrate in his khas possession. The State government as a matter of policy has decided to do away with settlement of ferries by public auction replacing it with the Model rules 2011, framed in exercise of powers under Section 15 of the Ferries act requiring registration and licencing of boats with safety features to do away with accidents arising out of ill kept and overloaded boats. There was no specific challenge to this policy decision by the respondent in the writ petition. 12. Ranendra Narayan Sinha (supra) has no relevance to the present controversy as it related to the question if the civil court had the jurisdiction to entertain claim for abatement of revenue in respect of ferries resumed by the State government from the Zamindar. Similarly Institution of Public Character (supra) has also no application to the facts of the case as it related to settlement of public ferry through a sanctuary by the District Magistrate. It did not relate to a settlement by the Zila Parishad under section 35 of the Ferries act and annulment of the same. 13. The issue for consideration in (Ram Bhorosa Singh) (supra) was factually different. The District Magistrate after notifying a public auction had withdrawn it on directions of the State government to extend the existing lease. There was no settlement by the District Board under Section 35 of the Ferries act with consequent directions from the State government. It was in the facts of the case that the conclusion was arrived at. There is no provision like Section 35 in respect of settlements made by the District Magistrate with the government retaining the power to vary or annul it. The case has no application to the present controversy.– 7. 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…..” 14. Likewise in (Ranjit Singh)(supra) also the question did not relate to a settlement of ferry by the District Board and the power of the State government to vary and or annul decisions of the District Board under Section 35 of the ferries act. 15. We therefore find it difficult to sustain the order under appeal. Likewise in (Ranjit Singh)(supra) also the question did not relate to a settlement of ferry by the District Board and the power of the State government to vary and or annul decisions of the District Board under Section 35 of the ferries act. 15. We therefore find it difficult to sustain the order under appeal. It is set aside. The appeal is allowed. VIKASH JAIN, J.:—I agree. ?