GOUR HARI MONDAL Vs. STATE OF W BENGAL

JUDGEMENT

(1.) THE decision of the rule under article 227 of the Constitution, now depending before me, depends inter alia on the true meaning of the expression : a hereditary Patni, occurring in an order upon the Collector, Midnapore, contained in memorandum No. 16132 (15) K. M. /1160/58 dated April 2, 1960, of the Board of Revenue, Government of West Bengal, [wrongly stated as No. 16132 (15) K. M. 1160/58 in annexure A to the main petition. Its contents need not be referred to further than as follows : for ferries vested in Government under the West Bengal Estates acquisition Act 1953, 1 of 1954, should be bid by a hereditary Patni, in an auction open to all, be 85 per cent or more of the highest offer, the settlement is to be made with him in preference to the highest bidder.

(2.) GOUR Hari Mondal is the petitioner before me. The case he comes to Court with, and on the foot of which he has obtained this rule, is that he, a member of the scheduled castes and a poor man too, has been earning his livelihood in the district of Midnapore as a Patni (ferryman), just as his forefathers did before him. For the ferry in controversy here, the one at Srirampore, his father was the lessee in 1341 B. S. (1934-35) from the then zamindars. And he continued to be so, ''except for short intervals. Then came the vesting in the State Government in or about Baisakh 1, 1362 B. S. corresponding to April 15, 1955. But the lessees continued to be his "family members and near relations, such as his uncle, brother etc. For three years from 1369 B. S. to 1371 B. S. (1962-63 to 1964-65), he himself was the sole lessee, his having been the highest bid. The trouble began for the settlement in 1372 B. S. , corresponding to 1965-66, when the public auction for leasing the ferry registered, for all practical purposes, the following two highest bids : jatindra Nath Hait, respondent No. 5. Rs. 4,625. Gour Hari Mondal, the petitioner. Rs. 4,600 but this bid of Rs. 25 less than the highest had nothing him to dismay. Because he is a hereditary Patni. 85 per cent of Jatindra's highest bid of Rs. 4,625 comes to Rs. 3,931. 25 paise. And his was rs. 4,600 - Rs. 669. 25 paise more than Rs. 3,931. 25 paise. He represented so before the Collector, relying on the order of April 2, 1960, and was called upon to deposit 25 per cent of his bid money - which he did.

(3.) JATINDRA, the highest bidder, who had deposited too the entire amount, rs. 4,625, his bid was for, would not take it lying down. He moved the Commissioner, Burdwan Division, under rule 3 of the Board's Miscellaneous Rules which, amongst other things, empowers the higher authority (here the Commissioner) to modify or reverse, with or without appeal, any order passed by a lower authority (here the Collector ). The Commissioner, who heard lawyers, found inter alia: one, Patni has not been defined anywhere. Two, the Constitution (Scheduled Castes) Order 1950, by serial No. 36 in Part XIII, refers to Patni as one of the scheduled castes in West Bengal (except Purulia and the territories transferred from the district of Purnea in Bihar), three, ergo, a hereditary Patni referred to in the order of April 2, 1960, means one who is a Patni by caste and also a boatman by occupation. Four, no proof there is of Gour Hari Mondal being a Patni by caste or his father having been a hereditary boatman of the Srirampore ferry right from 1957 on the 24th day of June of which year the Board issued a letter containing a direction that the existing leases were to run, pending a decision, as it was found that "the Patnis and other classes of hereditary boatmen mostly belonging to the scheduled tribes and backward classes to ho used to ply the ferries in the pre-vesting period are being displaced and outsiders are taking ijara of such ferries at much higher rates. " accordingly, by an order dated June 8, 1965, he directed a remit with a view to ascertaining on such evidence as may be necessary, (i) if Gour Hari Mondal is a Patni by caste, and (ii) if he is a hereditary boatman. Both these conditions satisfied and it being found that Gour Han Mondal or his forefathers had been boatmen of this ferry or any other ferry in that area from 1957, the Commissioner concluded, he, that is, Gouri Hari Mondal, should be treated as a hereditary Patni and the ferry would be leased to him ; if not, the lease should go to Jatindra Nath Halt, the highest bidder.