Patna High Court
Ramphal Singh vs The Govt. Of The State Of Bihar And Ors. on 28 September, 1953
Equivalent citations: AIR1954PAT235, 1953(1)BLJR686, AIR 1954 PATNA 235
JUDGMENT Ramaswami, J.
1. In this case, petitioner Ramphal Singh has moved this Court for a writ in the nature of mandamus under Article 226 of the Constitution of India commanding the respondents Nos. 3 and 4 to lease the tolls of the Barh-Banarsi-Sultanpore Ferry by public auction and to cancel the private settlement made with the respondents Nos. 5 and 0.
2. The Barh-Banarsi Sultanpore Ferry has been declared by the State Government to be a public ferry under Section 6 of the Bengal Ferries Act. The ferry was managed by the Patna District Board till the year, 1944, but on the 15th of January, 1945, the Government Bihar notified that the ferry would be managed by the Barn Municipality in the district of Patna. In the year 1949, the Municipality was superseded under Section 385 of the Bihar and Orissa Municipal Act. The Municipality was, in consequence, placed under the control and management of the Sub-Divisional Magistrate of Barh who was appointed as the Special Officer of the Municipality. The Special Officer issued a notification that on the 9-1-1953, the tolls of the Barh Benarsi Sulanpore Ferry would be settled by public auction.
3. The date was postponed to the 31st of January, 1953, and again to the 5th of March, 1953, as the bids offered were not adequate. On the 5th of March, 1953, the Sub-Divisional Magistrate held the public auction and the petitioner Ramphal Singh offered the highest bid of Rs. 8,200/-. On that date, the petitioner deposited a sum of Rs. 2,000/- as earnest money. The balance was deposited by the petitioner on the 6th of March, 1953 into the Barh Treasury by means of a chalan. On the 13th March 1953, the petitioner executed a registered Kabuliat and filed it in the Municipal office. The complaint of the petitioner is that on the 29th of March, 1953, the Sub-Divisional Magistrate rejected the petitioner's bid and ordered that the amount paid by the petitioner should be refunded. The Sub-Divisional Magistrate lurther ordered that the ferry would be retained by the Municipality in Khas possession.
On the 7th of April, 1953 however, the Sub-Divisional Magistrate made a private settlement with the respondent No. 5 Suraj Singh and the respondent No. 6 Ram Prasad Singh for a sum of Rs. 12,000/-. The petitioner asserts, that the private settlement made with the respondents Nos. 5 and 6 is null and void and that the Sub-Divisional Magistrate has violated the statute in making the private settlement. The petitioner has therefore moved this Court for grant of writ of mandamus directing the Sub-Divisional Magistrate to make a settlement by public auction and cancel the private settlement.
4. The first question which arises in this case is whether the Sub-Divisional Magistrate has committed any breach of statute in making private settlement of the Barh-Benarsi Sultanpore Ferry with the respondents Nos. 5 and 6. The question involves the interpretation of several sections of the Bengal Ferries Act. Section 6 states that "it shall be lawful for the provincial Government from time to time to declare what ferries shall be deemed public ferries, and the respective districts in which, for the purposes of this Act, they shall be deemed to be situate .....".
Section 7 declares that "the control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner".
Section 8 enacts that "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".
Section 8 further requires that "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."
Section 8 therefore imposes a duty on the Magistrate to make arrangements for the supply of boats and for collection of tolls, in case the tolls are not leased. The duty is imposed on the Magistrate unless he decides to lease the tolls of the ferry. Section 9 enacts in what manner the lease is to be made. Section 9 provides that "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."
Section 9 further states that "the Magistrate of the district or the officer authorised 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,"
If Section 9 is read in the context of Section 8, it is manifest that the Magistrate of the district has the power to manage the public ferry 'Khas' or to lease the tolls of the ferry by public auction. Section 9 imposes a duty on Magistrate to lease the tolls by public auction. It is open to the Magistrate to refuse to accept the offer of the highest bidder for sufficient reason to be recorded in writing.
5. In such a case, the Magistrate may ac-cept any other bid or may withdraw the tolls from auction but the Magistrate has no authority to make a settlement of the tolls by private treaty. The statute authorises the Magistrate to make a settlement of the tolls by public auction alone. This view is supported by Rule 2 of the Model Rules framed by the State Government under Section 15 of the Bengal Ferries Act. Rule 2 states that "every public ferry shall either be held in khas by the Magistrate, or be leased by public auction." Rules 5, 6, 7, 7-A and 7-B relate to the manner in which the public auction is to be held.
In a case of this description, the principle to be applied is clear. This principle is that when a statute directs that a power is to be exercised in a certain manner, that power should be exercised in that particular manner and in no other manner. In other words, the powers of the Sub-Divisional Magistrate are limited to those expressly mentioned in Sections 8 and 9 of the Bengal Ferries Act. The Magistrate is clothed only with those powers specially conferred by statute and with no other powers. To illustrate this principle reference may be made to -- 'Ex parte Stephens', (1876) 3 Ch. D. 659 (A). The question in that case was whether a mere word or distinctive combination of letters was a trade mark within the meaning of the Trade Marks Registration Act 1875. By Section 10 of that Act, it was enacted that a Trade Mark might consist of (among other things) "any special or distinctive combination of letters used as a trade mark 'before' the passing of this Act". It was accordingly held that "a word which had not been used as a trade mark before the passing of the Act could not be used as a trade mark 'after' the passing of the Act."
At page 660, Jessel, M. R. states :
"Here is a power to register a special and distinctive word, if used before the Act, showing that it cannot be registered under the Act. Otherwise it would be contravening the well-known rule, that when there is a special affirmative power given which would not be required because there is a general power, it is always read to import the negative, and that nothing else can be done, so that the power to register a trade mark used before the passing of the Act clearly negatives the conclusion that a distinctive word can be used as trade mark first used after the passing of the Act. A well known illustration of that rule may be derived from the Act which gave power to railway companies to borrow on mortgage or bond.
It was said that, irrespective, of that Act, any corporation might borrow, by common law either on mortgage or otherwise. The answer was, that there being a definite power given, you must import the negative so that the company could only borrow on mortgage or bond. So here, there being power to register a distinctive word used before the Act, it is conclusive to my mind that it cannot be registered if first used after." Adopting this principle in the present case, I hold that the Sub-Divisional Magistrate had no authority under the Bengal Ferries Act to make a private settlement of the tolls of the Barh-Benarsi Sultanpore Ferry with respondents Nos. 5 and 6 and the settlement so made by the Sub-divisional Magistrate on the 7th of April, 1953, is ultra vires and void.
6. In the course of the argument, reference was made by Government pleader to the circular of the Provincial Government No. 40-44 L. S. G. dated the 29th April 1926 addressed to the Commissioners of the Divisions wherein it is stated :
"Section 9 of the Bengal Ferries Act prescribes lease by auction as the normal method of settling public ferries, and I am directed by Government to emphasize this fact and to state definitely that lease by public auction is to be regarded as the ordinary method of settlement in future. If in any case recourse is had to private settlement the special circumstances justifying that course must be reported through the local officers for the information of Government....."
7. The Government pleader based his argument on this Government Circular and contended that it was open, to the Magistrate in exceptional cases to make a private settlement. In my opinion, there is no justification for this argument.
8. The Government Circular embodies the opinion of the Government as to the interpretation of Section 9 of the Bengal Ferries Act. The opinion of the Government cannot control the legal interpretation of Section 9 which is a matter for courts of law to decide. For the reasons which I have expressed, I am of opinion that the interpretation placed by Government as to the powers conferred in Section 9 is not correct and that the Magistrate has no authority to make a settlement of the ferry by private contract.
9. The Government pleader next put forward the submission that the petitioner had no Jegal specific right which entitled him to enforce the performance of the duties imposed upon the Sub-Divisional Magistrate under the statute. It was pointed out that the offer of the petitioner on the 5th of March 1953, was not accepted by the Sub-Divisional Magistrate and until the acceptance of the bid the petitioner had no contractual right. On this point, Mr. Baldeo Sahay, conceded that the Sub-Divisional Magistrate had not accepted the bid of Rs. 8,200/- which the petitioner had offered. But the argument of Mr. Baldeva Sahay is that even if the petitioner had no contractual right, the application for writ under Article 226 of the Constitution was competent. Counsel based his argument on the decision of this Court -- 'Rambharosa Singh v. Govt. of the State of Bihar', AIR. 1953 Pat 370 (B). In my opinion the objection raised by the Government pleader must be overruled.
It is true enough to state as a general Pro position that the advertisement of a sale by public auction does not amount in law to a contract with any one who might act upon the advertisement. The reason is that an advertisement of a sale by public auction is a mere declaration of an intention and does not constitute an offer to the persons who intend to bid at the auction sale. The question at issue in the pre sent case is, however, different. The question is not whether the petitioner has a legal right to enforce the contract. The claim of the Petitioner is not founded on any contractual right.
The petitioner, on the contrary, has based his claim on the breach of statutory obligation imposed upon the Sub-Divisional Magistrate. I think that upon the facts of this case the petitioner has a sufficient legal right--sufficient to prosecute an application for a writ under Article 226.
It is not disputed in this case that the petitioner was a bidder at the auction held on the 5th of March 1953. The petitioner had offered the highest bid of Rs. 8,200/- and had also de-posited a sum of Rs. 2,000/- on the same date, Later on, the petitioner made the deposit of the balance of Rs. 6,200/- and executed a registered Kabuliat in the prescribed form. In view of these facts I think that the petitioner was within the range of those persons to whom the Sub-Divisional Magistrate owned the statutory duty under the Bengal Ferries Act. It follows that the petitioner is competent to maintain this application for a writ. This view is consistent with the decisions reported in the -- 'Queen v. Bowman', (1898) 1 Q B 663 (C); -- 'Rex v. Manchester Corporation', (1911) 1 K B 560 (D) and -- 'Rex v. Speyar', (1916) 1 K B 595 (E).
10. I shall next deal with the argument addressed by the Government pleader that the petitioner has not made a formal demand for performance of duty on the part of the Sub-Divisional Magistrate. It was contended by counsel that the demand for performance and the refusal must be established before any writ of mandamus or any writ in the nature of a mandamus could be granted. In support of the submission, counsel relied on a passage at page 771 of Halsbury's Laws of England 2nd Edn. Vol. 9 :
"As a general rule the writ will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, & it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that such demand was met by a refusal."
The learned counsel referred in this connection to the decision reported in -- 'Surendra Nath v. State of West Bengal', AIR 1951 Cal 396 (F). In my opinion there is no merit in this argument. It is true that there has been no formal demand by the petitioner and no formal refusal by the Sub-Divisional Magistrate.
11. But in the special facts of this case the absence of such formal demand and refusal does not affect the competence of the application for a writ of mandamus. The Sub-Divisional Magistrate made the private settlement with respondents Nos. 5 and 6 on the 7th of April, 1953. By this act, the Sub-divisional Magistrate necessarily placed himself in a position in which he could not have complied with any demand of justice on the part of the petitioner. In view of this circumstance, any formal demand on the part of the petitioner and any formal refusal on the part of the Sub-Divisional Magistrate would be a mere idle ceremony. This view is supported by the decision of the Supreme Court in --'Commissioner of Police, Bombay v. Gordhandas Bhanji', AIR 1952 SC 16 (G), where it was held that "an evasion or shelving of a demand for justice is sufficient to operate as a denial within the meaning of Section 46, Special Relief Act."
In English law, the refusal need not be in so many words. All that is necessary is to show that the party complained of has distinctly determined not to do what is demanded (Halsbury's laws of England 2nd Edn. Vol. 9, page 772). In the United States also, a demand is not required "where it is manifest that it would be but an idle ceremony" (See Ferries Extraordinary Legal Remedies page 281). The argument of the Government pleader on this point must therefore fail.
12. For the reasons which I have attempted to state, I think that the application must be allowed and that a writ should be issued cancelling the order of the Sub-divisional Magistrate of Barh dated the 7th of April, 1953, making private settlement with respondents Nos. 5 and 6, Suraj Singh and Ram Prasad Singh. A writ in the nature of mandamus should also be issued to the Sub-Divisional Magistrate commanding him to hold a public auction after due notice and to lease out the tolls of the Barh Benarsi Sultanpore Ferry according to law. There will be no order as to costs of hearing of the application.
Sinha, J.
13. I agree.