ARVIND CHANDRA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application by Kumar Arvind Chandra Singh and Arun Chandra Singh under Articles 226 and 227 of the Constitution of India is directed against the auction notice (Annexure 8) published in daily news paper "the Searchlight" of the 17th and 18th February, 1972 that Monghvr Raishat Ferry would be settled for a period of three years on 3rd March, 1972 by oPen public auction. In the application, the petitioners prayed for quashing the said notice (Annexure 8). During the course of arguments Mr. Jagdish Sahay, learned counsel for the petitioners contended that the prayer in the application is not really for quashing the entire auction notice contained in Annexure 8, but it is confined only to the period for which the auction was held. According to him, the period of three years mentioned in Annexure 8 should be deemed to be for a period of nine years. The lease for three years was executed in favour of the petitioners, who were the highest bidder in the said auction. Therefore, the lease in favour of the petitioners should also be deemed to be for nine years, and the original lease for the period of three years in favour of the petitioners was to expire on 31st March, 1975. Therefore, a direction may be issued on respondents Nos. 1 to 3 for execution of further lease in favour of the petitioners for a further period of six years.

(2.) In order to appreciate the points involved in this application it will be necessary to state briefly the facts. In the district of Monghyr, there is a ferry known and described as Monghvr Rajghat Ferry. The said ferry was declared as a public ferry under Section 6 of the Bengal Ferries Act (Act 1 of 1885) (hereinafter to be referred to as the 'Act'). The petitioners have stated in paragraph 4 of their application that the ferry business was ancestral business of the petitioners end their ancestors for more than 100 years had specialised themselves in ferry business, and used to take settlement of public ferries in the State of Bihar. In their application, they stated that for the last 35 years the Monghyr Raighat Ferry was being settled each time for a period of nine vears by the District Magistrate of Monghyr and approved by the Commissioner. Bhaealpur Division, as provided under Section 9 of the Act. Due to certain special circumstances of the Monghyr Raighat Ferry, the Model Rules framed by the Government under letter No. 1059 L. S. G. dated the 9th March, 1937, and circulated to all the District Magistrates and Divisional Commissioners, was not adopted by the District Magistrate, Monghyr with the approval of the Commissioner, Bhagalpur Division. In 1954. the said Monghyr Raj-ghat Ferry (hereinafter to be referred to as the 'Ferry') was leased under Section 9 of the Act with late Sri Bhagwati Prasad Singh. father of the petitioners for a period of nine years. On expiry of the said lease, he again took lease of the said ferry in 1963 for a period of nine years in public auction which period was to expire on 31st March, 1972. Meanwhile, on 26th December, 1970. the father of the petitioners died and the petitioners as his heirs succeeded to the said ferry with the permission of the District Magistrate. Monghyr for the remaining period of the lease and. accordingly a fresh registered lease was executed for the remaining period. Since the petitioners and their father have been taking on lease the ferry since long, they got the necessary appliances, steam vessels, boats, etc. manned with required number of crews, sarangs and other staff. As the period of lease was going to expire on 31st March, 1972. the District Magistrate fixed the period of settlement for nine vears with effect from 1st April, 1972 and took steps for leasing out the same for another period of nine years beginning from 1st April, 1972 and sometime in May, 1971 forwarded a draft copy of tender notice (Annexure 1) to the Commissioner. Bhagalpur Division for approval under Section 9 of the Act. Shri R. C. Prasad Sinha. the then Commissioner of Bhagalpur Division approved the period of lease of the ferrv for nine years as initiated by the District Magistrate under his letter dated 7th June, 1971 (Annexure 2). Subsequently, the District Magistrate under some misconception requested Shri R. C. Prasad Sinha, the then Commissioner in his letter dated 16th July, 1971 (Annexure 3) to move the Government in the department of Revenue and obtain clarification as to whether the lease for the period of nine years would be valid and if not valid, the settlement should be for a period of three years. The said proposal and the request of the District Magistrate was turned down by Sri R. C. Prasad Sinha under his letter dated 21st July, 1971 (Annexure 4) and directed inter alia that the term of the lease should be for nine vears as approved by him earlier. Shri R. C. Prasad Sinha was transferred from Bhagalpur and Shri M. Alam was posted as Commissioner, Bhagalpur. who under his letter dated 8th November, 1971 (Annexure 5) wrote to the State Government in Revenue Department for clarification and guidance on the question of the period of settlement of the ferrv and suggested. that the lease should be only for three years. In paragraph 17 of the application, petitioners have stated that the Minister of Transport had expressed his views on Annexure 5 that the period for the settlement of the ferry should be nine years. Later petitioner No, 1 represented to the Minister of Transport. Government of Bihar vide copy of his representation (Annexure 6). Subsequently there was President's Rule in the State of Bihar. The petitioners stated in paragraph 19 of their application that the decision of the Minister of the Transport was not given effect to and ultimately the reference sent by Shri M. Alam was returned with observation that the Government of Bihar had no jurisdiction to give any opinion. The petitioners have further stated in paragraph 20 of their application that on 31st January, 1972, Shri M. Alam. Commissioner of Bhagalpur Division was transferred from Bhagalpur but only three days before i. e., on 29th January 1972, he passed an order directing the then District Magistrate. Monghyr to settle the ferry for a period of three years only. The District Magistrate in pursuance of the order dated the 29th January, 1972 passed by Shri M. Alam published the. public auction notice as mentioned earlier in the daily news paper, the Searchlight of 17th and 18th February, 1972 mentioning therein that Monghvr Raighat Ferrv would be settled for a period of three years on 3rd March, 1972 by open public auction (Annexure 8). Aggrieved by the terms of Annexure 8 with regard to the period of the lease the petitioners came up to this Court and obtained rule by the order dated 24th February, 1972. However, the petitioners' prayer for staying the operation of the auction notice contained in Annexure 8 was rejected. In that circumstance the petitioners participated in the auction, without prejudice to their claim for settlement for nine years. The petitioners being the highest bidder their bid was accepted and ultimately a lease was executed in their favour for three years.

(3.) A counter-affidavit has been filed on behalf of the respondents on 12th May, 1972, inter alia supporting the auction of the ferry for a period of three years, and subsequent thereof the execution of the lease only for three years in favour of the petitioners, and submitting therein that the Commissioner had ample jurisdiction to approve the terms of the lease, and to reduce the period from nine to three years. A supplementary affidavit has further been filed on behalf of the petitioners on 19-2-1975 reiterating therein that the petitioners have participated in the auction without prejudice to their claims that the auction ought to have been for a period of nine years, and the lease which was executed in their favour should also, therefore, be for nine years instead of three years.