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Judgment
Aftab Alam, J.—Heard Mr. Gajendra Kumar Jha, Counsel appearing for the petitioners, Mr. AAG I appearing for the State and Mr. Sanjay Kumar appearing for the BhojpurZila Parishad.
The dispute in this case relates to settlement of a ferry, namely, Laxman-Chapra-Bahiyara Ghat. The settlement of the ferry for the year, 2003-04 has been made by the BhojpurZila Parishad in favour of one Suryavansh Rai on the basis of a public auction in which he was the highest bidder making an offer of Rs. 705,000/-against the reserve Jama of the ferry fixed at Rs. 3,85,250/-.
Petitioner No. 1 is a self supporting Co-operative Society of Fishermen and petitioners 2 and 3 are members of the Society. The petitioner Society or its members did not take part in the auction. But, the petitioners insist that as long as the Society was willing to take settlement of the ferry on its reserve Jama, the Zila Parishad was obliged to make the settlement in its favour and it was not open to it to put the settlement of the ferry on auction.
There is no dispute between the parties, including the State, that the Zila Parishad is the competent authority to make the settlement of the ferry. Apart from the provisions of Article 243G and the 11th Schedule of the Constitution, to which AAG I invited my attention, there are the provisions of Sections 71 (22) and (23) of the Bihar Panchayat Raj Act, 1993 and Section 35 of the Bengal Ferries Act, 1885 which is reproduced belows:
"35. Management may be vested in District Board.--It shall be lawful for the Lieutenant Governor to-order that any public ferry situated in any district in which a District Board has been established under the provisions of the Bengal Local Self-Government Act of 1885, or situated, within or adjacent to the limits of any Municipality, shall be managed by such District Board or by the Commissioners of such Municipality as the case may be; and such District Board shall have all the powers vested in the Magistrate of the district under this Act, except the powers specified in Sections 7, 17 and 32 and thereupon such ferry shall be managed accordingly.
"The Lieutenant Governor may, x x x x."
It is common ground that the right to make settlement of ferries is vested in (he District Board by virtue of an order issued u/s 35 of the Bengal Ferries Act and, hence, the right of the Zila Parishad to make the settlement is not under challenge in this proceeding.
Mr. Gajendra Kumar Jha contends that a Fishermen''s Co-operative Society had a preferential claim and as long as the petitioner Society was willing to take the settlement on the reserve Jama fixed for the Ghat, it was not open to the Zila Parishad to make the settlement on the basis of a public auction. Reliance in support of the submission is placed on Section 9 of the Bengal Ferries Act and to be more precise on some later addition by way of proviso to that Section. Section 9 of the Bengal Ferries Act in so far as relevant for the present is reproduced below :
"9. Ferry tolls may be leased by auction.--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. ....."
Then comes the proviso inserted by amendment Act 13 of 1978 which reads as follows :
"PARANTU BHARAT SAKAR YAA RAJYA SARKAR YAA KISI SARKARI UPKARAM YAA NIKAI (YAA BIHAR AUR ORRISA SAHKARI SAMITI ADHINIYAM, 1935 (BIHAR AUR ORISSA ADHINIYAM, 1935) KE ADHIN SAMYAK ROOP SE REGISTRIKRIT NAAWIK SAHKARI SAMITI, JIS CHETRA MAIN PARICHALAN KA CHETRADHIKAR HO, JAHAN NAUGHAT AWASTHIT HO) KE SATH NAUGHATON KE BANDOBAST KE SAMBANDH MAIN YEH AWASHYAK NA HOGAA KI BANDOBAST LOKNEELAM DWARA KIYA JAI TATHA NAUGHAT CHALANE Kl ANUGYA, NEELAM KI AUPCHARIKTAON KE BINA HI; OON NIBANDHNO AUR SHARTON PAR DI JAA SAKE GII JO RAJYA SARKAR VINISCHIT KARE."
A bare perusal of the afore-quoted provisions indicates that it is permissible to make settlement in favour of any Enterprise or agency of the State Government or the Central Government or in favour of a Co-operative Society registered under the Bihar & Orrisa Co-operative Societies Act and in that event the settlement might be made without taking the matter to public auction. In the afore-quoted provision I find it difficult to read that as long as a Co-operative Society is willing to take the settlement on reserve Jama, it is obligatory and mandatory for the authority to make the settlement in its favour.
Apart from the proviso to Section 9 of the Bengal Ferries Act, the petitioners also rely upon certain circulars issued by the Co-operative Department of the State Government, These circulars apparently support the petitioner''s claim that settlement of ferries is to be made in favour of a Co-operative Society on reserve Jama, But the circulars are not issued under the provisions of the Bengal Ferries Act and the directions contained therein are departmental instructions not binding on the Zila Parishad. In fact those circulars were issued when the Panchayat system in this State had become moriband for over two decades and the functions and powers of the Zila Parishad had been taken over, by default, by the State Government. During that period settlements were made by Government Officials to whom those directions were issued. Once the settlement of the ferries is restored to the Zila Parishad, the petitioner cannot take any help or advantage from the circulars issued by the Cooperative Department of the Government.
Coming now to the reasons assigned by the Bhojpur Zila Parishad for making settlement of the Ghat in favour of the highest bidder, it is stated in the counter-affidavit filed on its behalf that its financial position was extremely poor to the extent that it is not even in a position to make regular payment of monthly salary to its employees. The very poor financial state of the Panchayats, including Zila Parishads, in this state is well known and this Court has, therefore, no difficulty in accepting the statement made by the Zila Parishad with regard to its very poor financial state. It is further stated on behalf of the Zila Parishad that in its present financial state, it has to count every penny and it is, therefore, not possible for it to make the settlement of the Ghat only on reserve Jama in favour of the petitioner even though it is a Cooperative Society. It is pointed out that the difference between the reserve jama (Rs. 385,250/-) and the final settlement amount of Rs. 7,05,000/- is very substantial and the difference in financial terms means a lot to the Zila Parishad. Therefore, in the larger interest of the finances of the Zila Parishad, it was not possible for it to make the settlement in favour of the petitioner Society.
On hearing Counsel for the parties and on going through the writ petition and the counter-affidavits filed on behalf of the respondents, I am unable to find any infirmity in the decision of the Zila Parishad to make the settlement of the Ghat in favour of the highest bidder on the basis of a public auction and to my mind no case is made out for any interference by this Court in exercise of its writ jurisdiction. This writ petition is accordingly dismissed.