RAMPHAL SINGH Vs. DISTRICT MAGISTRATE OF PATNA

JUDGEMENT

(1.) The petitioner is a lessee of river ferries in the State of Bihar. He has been, for a long time, plying boats at twenty-five ferries of the Patna District Board under the authority of that Board, and the last parwana was granted to the petitioner in 1956 for a period of one year terminating on 31-3-1957. One of the ferries settled with the petitioner is known as Chowtha Nawada Ferry which extends from village Jajira in the Patna district to village Sultanpur in the district of Darbhanga on the northern side and from Pundarak Ghat to Umanath Temple in Barh on the southern side. The above ferry service is sometimes between places in Darbhanga district, Muzaffarpur district or Patna District according as the river shifts. It is stated that for over fifty years efforts have been made by the Government of Bengal to lew what is known as Paimali and to settle Paimali rights besides the ferry rights in these ghats, but, as objections have been raised throughout by the lessees of the ferry rights as also by the raiyats Over whose-lands these rights are being claimed, the authorities concerned have refused to settle the paimali rights. It is further stated that the respondents are attempting to levy paimali and settle paimali rights in Railli-Pundarak Coal Ghat which falls within the limits of the Nawadah-Chowtha and Pundarak-Chairaya Toke ferries which have been settled with the petitioner by the District Board of Patna. The Sub-divisional Officer of Barh, respondent No. 2, made an order on 6-3-1956, for settling the aforesaid paimali right, and the District Magistrate of Patna, respondent No. 1, has, by his order dated 6-11-1956, rejected the objections raised by the petitioner to the settlement of the above right. According to the petitioner, the respondents were anxious for taking steps to settle the above right and it is stated that the settlement of that right will prejudice the petitioner's business and trade and will cause loss in his ferry service. The petitioner, therefore, presented this application under Article 226 of the Constitution of India for issue of a writ of certiorari to quash the above orders of the Sub-divisional Officer of Barh and the District Magistrate of Patna and a writ of mandamus directing the respondents not to settle the paimali right. Cause has been shown on behalf of the respondents who have filed counter-affidavit and the application is opposed by the learned Government Pleader on their behalf.

(2.) Several contentions have been raised by Mr. Das' appearing for the petitioner. Two of them, however, may be summarily disposed of They are: (1) the paimali rights have been refused to be settled by the Government for over the last fifty years and (2) lands on either side of the river are raiyati lands and the Government have no right to settle the paimali rights over those lands. In support of the first of the above two contentions, our attention has Been drawn to several documents, namely, annexures 'C', 'D', 'E' 'F' and 'G', attached to the petition, which show that the proposal for settling the above rights of Mokamah Ghat had been given up for the last fifty years. By annexure "C" the Sub-divisional Officer of Barh passed an order on 8-9-1927, for cancellation of the settlement of paimali at Mokamah and directed that the same should not be settled in future. By annexure "D" it was directed, in connection with the paimali right of Mokamah Ghat by order dated 4-2-1935, that it should not be settled by the Khas Mahal as this was opposed to the interest of the traders. Again in 1952-53, in relation to the above right of Mokamah Ferry Ghat, the Collector of Patna observed that paimali rights have not been settled in the past and passed an order that the auction, if held, is not confirmed, and the money, if deposited, would be refunded to the persons concerned (vide annexure "E"), Again by order dated 12-10-1955, the Collector of Patna with regard to the same right ordered that in view of the past practice, paimali rights need not be settled (vine annexure "F"). By annexure "G", the Additional Collector of Darbnanga passed order on 5-7-1956, refusing to settle paimali rights in certain Ghats situated on the Ganges in the district of Darbhanga. It may be noted that the above order was passed at the instance of the petitioner who was the lessee of the ferry designated as Chowtha Nawadah Ferry referred to above. On these documents it is contended that the paimali rights having been refused to be settled for a very long time, the orders of the Sub-divisional Officer of Barh and the District Magistrate of Patna referred to above are unjust and should not have been passed. On behalf of the respondents, however, it is contended, as has been stated in the counter-affidavit, that, so far as the paimali right in the Railli Pundarak Coal Ghat is concerned, the same has all along been settled and actually in 1949-50 the settlement was taken by one Jungi Singh, the brother of the petitioner, on payment of Rs. 1010/- and in 1950-51 it was taken by the petitioner himself on payment of Rs. 825/-. Thus there is a controversy over the question whether this right had or had not been settled in past. The question is of fact and a controversial question of fact cannot be gone into in a writ application. Moreover, the documents of settlement referred to above have only historical importance and they do not create any estoppel against the Government. It may be mentioned that it has not been argued on behalf of the petitioner that any principle of estoppel is involved in this case on the above ground.

(3.) The other point is with regard to the lands on both sides of the Ganges being raiyati lands. It is stated in paragraphs 8 and 8A of the writ application that the lands on either side of the river on which the ghats are located and sheds are constructed are all raiyati lands and are in possession of raiyats and that the landing places and sheds are both over raiyati lands. On behalf of the respondents it is stated in the counter affidavit that only some of the lands are raiyati and the others are gainnazma malik lands in possession of the State of Bihar. A rejoinder to the counter affidavit has been filed on behalf of the petitioner and in that rejoinder again it is stated that all those lands are raiyati lands and a list of the raiyats who, according to the petitioner, hold those lands, has been given therein. That list includes the names of Punit Manto & Ramdhari who, according to the counter affidavit referred to above, had themselves taken settlement of the paimali rights of the Ghat in question on several occasions. It is, however, submitted by Mr. Das that the orders of the Sub-Divisional Officer dated the 20th of February, 1956, and the 5th of March, 1956, and the order of the Collector dated the 6th of November, 1956, which are sought to be quashed, themselves give full indications that they are the raiyati lands. It is however, an admitted case of the parties that at least some of the lands are raiyati lands. The learned Government Pleader, however, has contended that as the Ghats are always shifted, it is not possible to locate, on the materials available on the record of this case, as to which lands are raiyati lands over which paimali rights have to be exercised throughout the year according as the Ghat shifts. This question again is a question of fact over which the parties are not in agreement, and, as already observed, such controversial fact cannot be gone into in a writ application. It has, however, been contended that admittedly some of the lands being raiyati lands, the Government couid not, by making settlement of paimali right, interfere with the private, right of the raiyats, and in support of that contention reliance has been placed on a Bench decision of the Calcutta High Court in Midnapore District Board v. Monmotha Nath AIR 1937 Cal 289, in which it was held that such an interference would, in effect, amount to confiscation of private property without a corresponding award of compensation and thus taking away rights of private individuals and vesting the same in the public. There is no doubt as to the correctness of the above principle. But in the present case it is difficult to apply the same inasmuch as the raiyats whose rights are alleged to be interfered with by the settlement in question have not made any grievance and come to this Court and it is not possible to issue any writ at the instance of the petitioner who has not claimed to have acquired any interest from the raiyats concerned. On the other hand, as the counter affidavit shows, some of the raiyats themselves have taken settlement in the past. The above two grounds, therefore, fail.