S.N. Jha, J.@mdashThe dispute in this writ petition relates to settlement of Munger Rajghat Ferry for the years 1997 to 1999. The petitioner seeks quashing of the orders as contained in Annexures 6 and 9. By Annexure 6 the Commissioner, Munger Division directed the ferry to be settled with the second highest bidder, i.e. respondent no. 3 Kumar Arun Chandra Singh, on default of the highest bidder, i.e. the petitioner Kumar Arvind Chand Singh, to deposit the bid amount. By Annexure 9 the Commissioner refused to stay his order. The facts so far as relevant to the dispute may briefly be stated as follows. On December 2, 1996 an auction notice was published for auction of Munger Rajghat ferry. The scheduled date of auction was December 16, 1996. As the settlement was subject to the applicants'' making available vessels of the required specification, the date of auction was postponed to December 30, 1996. It is said that the verification was made on December 27, 1996 and report was submitted on the next day. On December 30, 1996 the auction was held. The petitioner bid the highest amount of Rs. 7,89,000/-, per year. The bid of the petitioners was accepted and he was directed to deposit the amount in one lump within 10 days, i.e. by January 9, 1997, failing which the ferry was to be settled with the second highest bidder. It may be stated here that respondent no. 3 had made the second highest bid of Rs. 7,88,000/-.
2. Respondent no. 3 challenged the validity of the auction before the Divisional Commissioner by way of a petition u/s 7(1) of the Ferries Act, which was registered as Case No. 3 of 1997. The petitioner appeared and objected to the maintainability of the petition. The Commissioner by his order dated January 24, 1997 overruled the objection; he nevertheless dismissed the petition and while rejecting the prayer of respondent no. 3 to settle the ferry with him, gave another chance to the petitioner herein to deposit the bid amount within ten days. It may be stated here that in the meantime during pendency of the case before the Commissioner, on January 9, 1997 the petitioner had filed petitions before the Collector seeking his order for deposit of the bid amount after making some adjustment. On February 3, 1997, when the extended period allowed by the Commissioner was to expire, the Additional Collector, Munger allowed further time upto February 10, 1997 for depositing the balance amount and necessary papers. There is dispute as to the circumstances and the competence of the Additional Collector to extend the time for making the deposit. I shall advert to the facts in this regard later in this judgment.
3. The petitioner did not make the deposit even within the said extended period. Respondent no. 3, in the circumstances, filed a petition before the Divisional Commissioner in Case No. 3 of 1996-97 pointing out that the bid money had not been deposited within time allowed by him. The petitioner took the plea that he had not received copy of the aforesaid order dated January 24, 1997, although he had applied for the same. He also relied upon the aforesaid letter of the Additional Collector dated February 3, 1997 allowing him time upto February 10, 1997 pointing out that till date he had deposited sum of Rs. 4,45,875/- including the amount of security of Rs. 1,46,875/-. The Commissioner rejected the plea holding that no officer subordinate to the Commissioner was justified in extending the time beyond February 2, 1997. He in fact directed the concerned officer to submit an explanation in this regard. The Commissioner noticed the terms of the auction notice that the highest bidder shall have to make the deposit within the time allowed, otherwise the settlement of the ferry shall be offered to the next highest bidder and, accordingly, having held that the petitioner had failed to comply with the term of the auction even within the extended period, ordered that the ferry be settled to the next higher bidder, i.e. respondent no. 3 herein. This is one of the orders (Annexure 6) impugned in the writ petition. The petitioner filed petition for stay of the said order which was rejected in February 14, 1997. He filed yet another petition which was also rejected on February 21, 1997. This is the second order (Annexure 9) impugned in the writ petition.
4. In his order dated February 21, 1997, the Commissioner noted the plea of the petitioner that respondent no. 3 did not produce the vessels in time nor the vessels in question were of the specified capacity, and accordingly directed respondent no. 3 to inform the Collector the place where the vessels had been kept, near the Ferry Ghat Munger, whereafter the Collector was to get the vessels verified. If the vessels so produced by respondent no. 3 were found to be of the specified capacity with upto date survey certificates, parwan was to be issued to him. Although there is a dispute as to whether the vessels which were ultimately produced for verification were/are of the specified capacity or not, it is not in dispute that parwana was issued to respondent no. 3 on February 24, 1997 and respondent no. 3 has been running the ferry.
5. This writ petition was filed on March 13, 1997. On March 26, 1997 an interim order was passed to the effect that "plying of the ferry by the petitioner shall not be obstructed unless a formal order is passed and communicated to the petitioner". By memo no. 64 dated April 2, 1997 marked Annexure : E to the counter affidavit filed on behalf of the Collector, the petitioner was informed that in the light of the orders passed by the Divisional Commissioner, the ferry has been settled with the second highest bidder, i.e. respondent no. 3, parwana has been issued to him and he is already plying the ferry ever since.
6. Dr. Sadanand Jha, learned counsel for the petitioner submitted that a number of contentions have been raised at different stages before the authorities below. In the present writ petition, however he would assail the impugned orders of the Commissioner and the consequential settlement of the ferry with the respondent only on two grounds, (i) the Divisional Commissioner had no jurisdiction to entertain the appeal and pass the impugned order which are accordingly void and not est; and (ii) that the vessels in question are not of the specified capacity as per the terms of the advertisement/auction notice. He submitted that the settlement is not in accordance with rule 7 of Model Rules because vessels were not produced within 15 days. He urged that the purported settlement in favour of respondent no. 3 not being in accordance with law, the petitioner may be allowed chance to deposit the balance amount or, in the alternative, a fresh auction may be held. On the question of jurisdiction of the Divisional Commissioner, counsel placed reliance on Ram Bharosa Singh vs. District Magistrate, Patna, 1956, BLJR 592.
7. Mr. T.N. Maitin, learned Government Pleader I, with reference to the bid sheet (Annexure 8 to the counter affidavit) submitted that the petitioner had given a written undertaking at the close of the bid on December 30, 1996 that he would deposit the entire bid amount of Rs. 7,89,000/- in one lump within ten days failing which the ferry may be settled with the second highest bidder. Counsel urged that having given undertaking to that effect, the petitioner is estopped from challenging the settlement made in favour of respondent no. 3. In this connection, he pointed out (vide paragraph 8 of the counter affidavit) that the petitioner did not deposit the bid amount within the time allowed; in fact, he made only part deposit of Rs. 4,46,875/- including the security deposit of Rs. 1,46,875/- and that too only by February 7, 1997 which was beyond the extended time allowed by the Commissioner. As a matter of fact, the first deposit itself was made after expiry of the period stipulated in the settlement, on January 10, 1997. The Govt. pleader also stated that the aforementioned letter of the Additional Collector dated February 3, 1997, marked Annexure 5 to the writ petition, did not have the sanction of the Collector, inasmuch as no such order had been passed by the Collector. The submission of the counsel was that the authority competent to fix/extend the period being the Collector, the Additional Collector was not justified in issuing the said letter.
8. Mr. Ram Balak Mahto, learned counsel for respondent no. 3 referred to various petitions filed by the petitioner before the Collector, marked Annexure 15 series, on January 7, 1997 and February 6, 1997 to point out the dilatory conduct of the petitioner. He stated that respondent no. 3, on the other hand, deposited the entire amount of Rs. 7,88,000/- on February 17, 1997 within the time allowed by the Collector. On the point of jurisdiction of the Commissioner, counsel placed reliance on Section 7 of the Bengal Ferries Act. As regards Rule 7(C) of the Model Rules, it was submitted that the period of 15 days mentioned therein refers to the execution of the contract.
9. As regards the competence of the Divisional Commissioner to pass the impugned orders, from the provisions of the Bengal Ferries Act, it does not appear that the Commissioner is alien to the process of settlement of ferries. Section 7 of the Act lays down that "the control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner". Besides, Sections 9, 14, 15, 18 and 21 of the Act also confer power on the Commissioner of the Division in certain matters specified therein. In view of the above-said provisions this Court in the case of Ram Bharosa Singh (supra) observed, in paragraph 20 of the judgment (at page 597 of the Report).
It will thus be seen that the words ''subject to the direction of the Commissioner'' occur in Section 7. The words ''with the approval of the Commissioner'' occur in the first paragraph of Section 9. These words ''with the approval of the Commissioner'' are to be found also in Sections 14, 15, 18, and 21 of the Act. On reading the above Sections, it is clear that the Commissioner has got the supeintending power of control, but only in respect of those matters, which are specifically mentioned in the aforesaid Sections. The Commissioner, therefore, has locus standi to give direction to the District Magistrate in certain matters.
Counsel for the petitioner, however, placed reliance on the following observations contained in paragraph 75 of the judgment (at page 607 of the Report).
But that apart, in my opinion, the Commissioner has no power to revise the order of the District Magistrate passed under the second paragraph of Section 9 of the Act. The Act does not provide for any appeal against the order of the District Magistrate passed under the second paragraph of Section 9 of the Act. Section 7, no doubt, provides that the control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner, but that does not give any judicial power to the Commissioner to review, or set aside the order of the Collector passed under the second paragraph of Section 9 of the Act. Section 7 gives the Commissioner only administrative control in the matter of public ferries, the control of which is vested in the Magistrate of the district.
10. In the present case respondent no. 3, no doubt, had filed a petition, which was in the nature of appeal, before the Divisional Commissioner challenging the auction/settlement process. But despite over-ruling the objection as to his jurisdiction, to entertain the petition/appeal, the Commissioner ultimately dismissed the petition. If the ferry has been settled with respondent no. 3, it is not really by virtue of the order of the Commissioner dated February 7, 1997, but by virtue of terms of the advertisement/auction itself which laid down in no unmistakable terms that if the higher bidder fails to deposit the amount within the stipulated period, the ferry may be offered to the second highest bidder. The Commissioner merely reiterated the aforesaid terms of the advertisement and auction.
11. I fail to understand as to how in the facts of the case the petitioner can challenge the jurisdiction of the Divisional Commissioner. As a matter of fact, as noticed above, by order dated January 24, 1997 while dismissing the petition filed by respondent no. 3, he had given the petitioner another chance to deposit the amount by extending the period. But for the said order, the petition as stipulated in the terms of the auction would have expired on January 9, 1997 itself. The order dated January 24, 1997 was, therefore, certainly an order in favour of the petitioner. If the petitioner had deposited the balance amount within the extended period, would he have still questioned the competance of the Commissioner to entertain the petition? The answer must be in the negative. In my opinion, therefore, having participated in the proceeding, obtained favourable order at one stage, he cannot question the competence or jurisdiction of the Commissioner mearely because he later passed certain orders which were not palatable to the petitioner. As I have already stated above, by the said subsequent orders dated February 9, 1997 and February 21, 1997 the Commissioner did nothing on his own, he merely refused to grant further time to the petitioner and allowed the Collector to settle the ferry with respondent no. 3, as per the term of the settlement/auction itself. As a matter of fact, by the letter order dated February 21, 1997 he put certain riders regarding the choice of the vessels which cannot be said to be in favour of respondent no. 3 at all. In the above premises, the submission of the counsel for the petitioner regarding jurisdiction of the Commissioner to pass the impugned orders, is wholly misconceived and the same is accordingly rejected.
12. Before adverting to the second point urged on behalf of the petitioner, in fairness to the counsel for the parties, I would like to briefly deal with the submissions made with reference to the aforesaid letter of the Additional Collector dated February 3, 1997 (Annexure 5) purporting to allow further time to the petitioner for making the deposit. The submissions of the State Counsel have been noticed above. I have looked into the relevant file which was produced by him in course of hearing of the case. No order extending the time appears to have been passed by the Collector. It is, therefore, not understandable as to how the Additional Collector, on his own, could have issued the said latter. Even if the Collector had passed any such order, as rightly observed by the Commissioner in his order dated February 7, 1997, no officer subordinate to him could have granted time beyond the time allowed by him i.e. the Commissioner. In any view it is not in dispute that the total deposit made by the petitioner, including the amount of security upto February 7, 1997 was Rs. 4,46,875/-. Such deposit being not in accordance with the terms of the settlement/auction, no error can be attributed to the action of the respondent in settling the ferry with respondent no. 3. The fact that the petitioner was short of money and not in a position to deposit the required amount within the stipulated period is evident from the various petitions filed by him on January 7, 1997 and on subsequent dates, copies whereof have been brought on record by the petitioner himself as Annexure 15 series to the reply-affidavit.
13. Apropos the second point, as per the terms of the advertisement, the bidder was required to offer two vessels, one of 1000 passengers capacity and the other of 300 passengers capacity Counsel for the petitioner referred to the verification report of the Additional District Magistrate, Munger dated February 24, 1997 and the report of the Collector dated June 15, 1997 sent to this Court pursuant to order dated June 5, 1997, and submitted that as is evident from the said report, till date respondent no. 3 had merely given an assurance to produce boat of 1000 capacity. He highlighted the fact that allowing respondent no. 3 to ply smaller vessels, that is, vessel of lesser passenger capacity would be detrimental to the safety of the passengers. Counsel for respondent no. 3 in this connection pointed out that the bigger ship is required only during rainy season i.e. for three months in a year, during the rest of the year, on account of accumulated silt in the river bed, only small boats can be plied.
14. I do not propose to decide the dispute as to whether the vessels in question conform to the terms of the auction notice or not. If they do not, it is always open to the licensing authority i.e. the District Magistrate to pass appropriate order directing respondent no. 3 to substitute the existing vessels by vessels of the required capacity, and in the event he fails to comply with such direction, to take appropriate action to the extent of cancelling the settlement. That however is a matter between respondent no. 3 and the Collector. The petitioner does not come into the picture. It need to be emphasised, however, that while considering this aspect of the matter, the Collector is expected to keep in mind the safety and interests of the passengers, that is, public interest. The petitioner having participated in the settlement process and failed to comply with its terms, cannot claim any legal right for settlement of the ferry with himself. The impugned orders, in the facts and circumstances of the case, do not suffer from any error, and no case has been made out for interference by this Court. This writ petition is accordingly dismissed but without any order to cost.
