Rambharosa v. State Of Bihar

Jamuar, J.:— This is an application under Article 226 of the Constitution for the issue of an appropriate writ directing the District Magistrate of Patna to lease the tolls of a ferry known as the Patna-Ganges Ferry by public auction, irrespective of the direction of the State Government to the contrary.

The Patna-Ganges Ferry has been declared to be a public ferry under the Bengal Ferries Act, 1885 (Bengal Act I of 1885). The tolls of the ferry had been leased to opposite party no. 5 by public auction for a term of two years, namely, from the 1st April, 1951, to the 31st March, 1953. According to the rules framed in pursuance of the provisions of section 15 of the Bengal Ferries Act, the District Magistrate of Patna advertised to the public in the issue of the Bihar Gazette, dated the 3rd September, 1952, fixing the 22nd December, 1952, as the date for holding a public auction for the lease of the tolls of the ferry for a period of three years with effect from the 1st April, 1953. The petitioner intended to bid at this public auction, and he came to Patna for the purpose. Then he found that the District Magistrate had revoked his announcement to lease the tolls of the ferry by public auction in supersession of the advertisement referred to above, and had withdrawn the tolls from public auction under a notice, dated the 19th December, 1952, which was to the following effect:—

“It is hereby notified for general information that as Government decided to extend the lease of the Patna Ganges Ferries of the present lessee, Sri Nagendra Narain Singh, for a further period of two years with effect from the 1st April, 1953, settlement of the Patna Ganges Ferries by public auction fixed for the 22nd December 1952 is withdrawn and, consequently there will be no public auction for the settlement of she ferries in question.”

The tolls of the ferry had been leased to Sri Nagendra Narain Singh, opposite party no. 5, for a period of two years commencing from the 1st April, 1951, at an annual rental of Rs. 51,000. On the 22nd December, 1952, the petitioner filed an application before the District Magistrate offering an annual rental of Rs. 1,05,000 as against the previous annual rental of Rs. 51,000 of the opposite party no. 5. The District Magistrate disposed of that application by endorsing upon it that the notification to hold a public auction had already been withdrawn. It is then stated that the petitioner filed applications before the Commissioner as also before the Governor; Tut no orders were passed. Hence, on the 6th March, 1953, he filed the present application under Article 226 of the Constitution.

It appears that opposite party no. 5 had made an application before the District Magistrate for an extension of his lease. The District Magistrate had recommended to the Commissioner that the lease might be extended for a period of three years. The Commissioner also moved the Government for an extension of the lease. On the 16th December, 1952, the State Government wrote to the Commissioner that they desired that the lease of opposite party no. 5 might be extended for a further period of two years with effect from the 1st April, 1953, and the same letter stated that the District Magistrate of Patna may be advised to withdraw the ferry from auction under section 9 of the Bengal Ferries Act. It was in pursuance of this direction that the District Magistrate, by the notice quoted above, withdrew the settlement of the ferry from public auction which was fixed for the 22nd December, 1952.

The argument advanced by Mr. P.R Das in support of this application was that, in the circumstances of this case, the withdrawal of the settlement of the ferry from public auction by the District Magistrate was wholly illegal, and further that the extension of the lease in favour of opposite party no. 5 was, consequently, also illegal and void. The contention was that, under the Bengal Ferries Act as also under the rules framed under it, the State Government had no locus standi to advise the District Magistrate to withdraw the settlement of the ferry from public auction or to extend the lease in favour of opposite party no. 5.

In order to appreciate this point, it is necessary to refer to certain provisions of the Bengal Ferries Act. Section 6 of the Act provides that it shall be lawful for the State Government from time to time, amongst other matters, to declare what ferries shall be deemed to be public ferries. The ferry in question, namely, the Patna-Ganges Ferry, has been declared to be a public ferry. There then follow four important sections, namely, sections 7, 8, 9 and 10.

“7. The control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner.

8. The immediate superintendence of every public ferry shall be vested in the Magistrate of the district in which such ferry is situated, or in such other officer as the Provincial Government may, from time to time, either by name or by official designation, appoint.

And such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arrangements for the supply of boats for such ferry, and for the collection of the authorized tolls leviable thereat.

9. The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct.

The Magistrate of the district or the officer authorized by him to conduct such auction may, for sufficient reason to be recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction.

The lessee of the tolls of every ferry which have been leased under this section shall execute a contract setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfilment.

10. When the tolls of a public ferry have been duly leased, the lessee and every servant of the lessee shall be demed to be legally bound to conform to the rules made under this Act for the management and control of such ferry.”

By section 7, the control of all the public ferries has been vested in the District Magistrate, subject to the direction of the Commissioner. Section 8 also vests the immediate superintendence of such a ferry in the District Magistrate, and the second paragraph of this section is important: it provides that the District Magistrate shall either himself make the necessary arrangements for the supply of boats or for the collection of the tolls or he may lease out the tolls. Under the provisions of section 9, it seems to be clear that, if the District Magistrate chooses to lease out the tolls, he must do so by public auction. The second paragraph of section 9, however, authorises the District Magistrate to refuse to accept the offer of the highest bidder and to accept any other bid or to withdraw the tolls from auction; but if the District Magistrate chooses to do so, he must do so “for sufficient reason to be recorded in writing”. Section 10 enjoins upon the lessee and every servant of the lessee to be bound to conform to the rules made under the Act for the management and control of the ferry after the tolls of the ferry have been “duly” leased, that is to say, leased at a public auction. It will be noticed that it is the District Magistrate who has been given all these powers subject only to the direction of the Commissioner, and the State Government does not come in the picture at all. It was, accordingly, argued by Mr. P.R Das that, once the District Magistrate had decided to lease the tolls of the Patna-Ganges Ferry by public auction, he was bound to carry out that decision: he could not withdraw from that decision under the orders of the State Government: he could do so but solely at his own discretion and “for sufficient reason to be recorded in writing”. It will also be noticed that there is no provision made in the Act for the extension of a previous lease granted to a person. The lease may well be given to the same lessee; but this must be at the discretion of the District Magistrate and at a public auction. I may state here an argument advanced by Sir Sultan Ahmad on behalf of opposite party no. 5. He argued that, although the words “public auction” are used in section 9, yet in effect it is no auction at all. He contended that, ordinarily, at an auction it is the offer of the highest bidder which is accepted and not that of any other bidder, so that, when the District Magistrate has been given the power to refuse to accept the offer of the highest bidder and to accept any other bid, it is not an auction, and the District Magistrate may well extend the lease of a previous lessee without, holding any auction at all. I do not feel disposed to accept this argument in face of the words of the section itself. Section 9 enjoins the tolls to be leased by public auction; but the District Magistrate has been given the power “for sufficient reason to be recorded in writing” to, refuse to accept the offer of the highest bidder and to accept any other bid or even to withdraw the tolls from auction. One can understand why the Legislature has given such power to the District Magistrate: it may be that the highest bidder may not be a desirable person to whom the tolls should be leased out, and for other similar reasons. On the wording of section 9, it seems to be clear to me that the District Magistrate is not authorised to withdraw the ferry from public auction under orders of the State Government: he can do so on his own initiative, but he must record sufficient reason for doing so. The District Magistrate has not done so in the present case.

Section 15 of the Bengal Ferries Act empowers the District Magistrate, with the approval of the Commissioner, to make rules consistent with this Act. The rules framed are dated the 13th February, 1929, and have been published under notification no. 2184 L.S.G in the Bihar and Orissa Gazette, dated February 20, 1929. Rule 2 provides:

“Every Patna-Ganges ferry shall either be held khas by the Magistrate or be leased by public auction.”

Thus, the District Magistrate will either hold the ferry “khas”, and then the second paragraph of section 8, quoted above, will apply, namely, that the District Magistrate will make all necessary arrangements for the supply of boats, etc., or he may give it on lease; but this must be by public auction. Rule 5 provides:

“When it has been determined to lease the tolls of any Patna-Ganges ferry by auction under section 9 of Act I of 1885, the Magistrate shall, at least 15 days before the auction is held, cause an advertisement of such, auction to be published both in English and in vernacular, in such place and in such manner as to him shall seem expedient.”

The emphasis in this rule is also on the lease being granted by public auction. Rule 7(d) provides that the maximum period for which a lease may be granted shall not exceed three years at a time.

Mr. P.R Das cited the case of Commissioner of Police, Bombay v. Gordhandas Bhanji in support of his argument that, the Bengal Ferries Act having given the discretion to the District Magistrate only, though subject to the directions of the Commissioner, the District Magistrate acted illegally in acting upon the orders issued by the State Government in this connection. In the case just mentioned, an application had been made by the respondent of that case for permission to build a cinema on a certain site, and it was rejected by the Commissioner of Police of Bombay. The respondent then applied for reconsideration of his application, and the Commissioner granted it. Subsequently, under instructions from Government, the Commissioner sent the following communication to the respondent:—

“I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you……………… is hereby cancelled.”

The respondent then applied to the High Court to direct the Commissioner of Police to withdraw the cancellation and to grant permission for the erection of the cinema, and the High Court directed the Commissioner to withdraw the order of cancellation passed by him. The Commissioner of Police then appealed to the Supreme Court. The Supreme Court held that there was no valid cancellation of the license because (a) the order of cancellation communicated to the respondent was one made by the Government, and not by the Commissioner on his own authority; the Commissioner acted in the matter only as a transmitting agent, and (b) under the rules framed under certain sections of the City of Bombay Police Act, 1902, the Government of Bombay had no power to cancel a license once issued the only person vested with authority to grant or refuse a license for the erection of a building to be used for the purposes of public amusement is the Commissioner of Police. The learned Advocate-General referred to the form of agreement which a lessee has to execute under section 9 of the Act. Rule 10 of the rules framed under the Act says:

“The contract which the lessee will be required to execute under section 9 of the Act shall be in the form attached to these rules.”

The form shows that the parties to this agreement are the State and the lessee. The learned Advocate-General, therefore, argued that, since the State is a party to the agreement which the lessee has to execute, it should be inferred that the State can give directions to the District Magistrate as its agent. I cannot accede to this argument in view of the fact that the Act and the rules framed thereunder give the sole control of the ferries to the District Magistrate, subject only to the direction of the Commissioner, and I do not think that the State Government can give directions to the District Magistrate. The learned Advocate-General also suggested that an extension of the lease is permissible under Rule 7(d). I have already stated that Rule 7(d) fixes the maximum period for which a lease may be granted as not exceeding three years at a time. I cannot read into this rule the power to extend a lease. It may be that the previous lessee may again be granted a lease for a period not exceeding three years at a public auction held under the provisions of the Act; but that does not amount to an extension of the lease: it will be a fresh lease. I do not think, therefore, that the withdrawal of the settlement of the tolls of the ferry from public auction by the District Magistrate under the orders of the State Government or the extension of the lease in favour of opposite party no. 5 can be held to be legal.

Sir Sultan Ahmad also contended that the present application was not maintainable, inasmuch as the withdrawal of the settlement of the tolls of the ferry from public auction by the District Magistrate did not affect any interest of the petitioner, and that, therefore, the petitioner was not entitled to make an application under Article 226 of the Constitution. Mr. P.R Das conceded to the argument that there must reside in the petitioner a legal right to the per-3 formance of a legal duty by the party against whom, a writ of mandamus is sought to be issued under Article 226 of the Constitution. In the present case, I have found that the act of the District Magistrate in withdrawing the settlement of the tolls from public auction at the instance of the State Government was in breach of a statutory duty cast upon him under the Bengal Ferries Act, and that his further action to extend the lease in favour of opposite party no. 5 was also illegal. The petitioner was an intending bidder, and had come to Patna to bid at the proposed auction to be held on the 22nd December, 1952. As I have already stated, he had also filed an application before the District Magistrate offering Rs. 1,05,000 as the annual rental, if the tolls of the ferry were leased to him. In these circumstances, the petitioner has a right to vindicate a public matter, and he has sufficient interest to make this application. Sir Sultan Ahmad cited the case of The Queen v. The Guardians of the Lewisham Union wherein it has been held that the petitioner must have a legal specific right in himself before he can make an application for the writ of mandamus. Several English decisions were cited at the Bar on behalf of both the parties. Whether a person has a legal right to make an application for the issue of a writ of mandamus must depend, in my view, upon the facts of each case, and I do not think it would be right to lay down a hard and fast rule enumerating the circumstances under which such a right can be said to exist. In my opinion, in the present case before us, the petitioner should be found to have a legal right in himself to ask for a writ of mandamus.

Sir Sultan Ahmad also contended that no writ of mandamus can issue against opposite party no. 5 himself, and that, therefore, he ought not to have been made a party to this application. He is right to this extent that no order need be passed against opposite party no. 5 giving him any directions; but the order against the other members of the opposite party ought to be passed in the presence of opposite party no. 5 in whose favour an extension of the lease has been granted without holding a public auction. I think, therefore, that opposite party no. 5 is a proper party to this application.

For these reasons, I think that this application must be allowed, and that a writ should be issued cancelling the order of the District Magistrate of Patna, dated the 19th December, 1952, withdrawing the public auction and all further proceedings of the District Magistrate subsequent to the cancellation of the public auction including settlement of the tolls of the public ferry to the opposite party no. 5 by a private treaty. A writ in the nature of mandamus will also be issued to the District Magistrate commanding him to issue a fresh notification for holding a public auction and to lease out the tolls of the Patna-Ganges Ferry according to law. There will be no order for costs of the hearing of the application.

Ramaswami, J.:— In the course of the argument there was much discussion as to the question whether the petitioner could maintain this application for a writ in the nature of mandamus. The contention of Dr. Sultan Ahmad was that the petitioner had no legal specific right which entitled him to enforce the performance of the duties imposed under the statute in question. The argument of learned counsel is based on the fact that at common law the advertisement of the sale by auction does not amount to a contract with any one who might act upon the advertisement; nor does it amount to a warantee that all the articles advertised would be put up for sale. Dr. Sultan Ahmad relied in this connection upon Harris v. Nickerson. The proposition upon which Dr. Sultan Ahmad relies is undoubtedly correct. It is well-settled that an advertisement of a sale by public auction is a mere declaration for an intention and does not constitute a contract with the persons who intend to bid at the proposed auction sale. The question at issue in the present case is however of a] different description. The question is not whether the petitioner has a legal right to enforce a contract. The case of the petitioner is not founded on any contractual right. The petitioner, on the contrary, bases his claim on the breach of statutory obligation imposed on the District Magistrate. I agree with my learned brother that upon a proper construction of the relevant provisions of the Bengal Ferries Act the conclusion must be drawn that the District Magistrate is bound to settle the tolls of Patna-Ganges Ferry by a public auction if the District Magistrate does not choose to hold the ferry ‘khas’. If this interpretation is correct, the statute imposes a duty upon the District Magistrate in the matter of settlement of the public ferry. The contention of Dr. Sultan Ahmad is, however, that the petitioner was only an intending bidder at the public auction and that there was no sufficient legal right which entitled the petitioner to prosecute this case. In my opinion this argument is not correct. I think that upon the facts admitted in the present case the petitioner had a sufficient legal right which entitles him to ask the Court to issue a writ, under Article 226 so that the District Magistrate who is clothed with certain statutory powers does not exceed those powers. It is not disputed that the petitioner was an intending bidder and that he had come to Patna to bid at the proposed auction to be held on the 22nd December, 1952. He had also filed an application to the District Magistrate offering Rs. 1,05,000 as annual rental if the tolls of the ferry were leased to him. In view of these facts I think that the petitioner in this case was within the range of those persons to whom the District Magistrate owed statutory duty. There is, I think, sufficient legal interest vested in the petitioner which entitles him to maintain the present application. This opinion is consistent with the decision's reported in The Queen v. Bowman, The King v. Manchester Corporation and The King v. Speyer.

I agree that the application of the petitioner ought to be allowed and that a writ ought to be issued against the District Magistrate of Patna in the terms proposed by my learned brother.

K.D

Application allowed.