Calcutta High Court (Appellete Side)
Nabadwip Jalapath Paribahan ... vs The State Of West Bengal & Others on 1 December, 2017
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
WP 12764 (W) of 2017
Nabadwip Jalapath Paribahan Co-Operative Society Ltd.
Vs
The State of West Bengal & Others
For the Petitioners : Mr. Arabinda Chatterjee, Ld. Sr. Advocate
Mr. Pradyut Saha, Advocate
Mr. Arkadipta Sengupta, Advocate
For the State : Mr. Sadhan Kr. Halder, Advocate
For the Nadia Zilla Parishad : Mr. Amitava Chaudhuri, Advocate
Ms. M. Choudhuri, Advocate
Mr. N. Roy, Advocate
For the Respondent No.7 : Mr. Swapan Kr. Majumder, Advocate
Heard on : 30.06.2017, 29.08.2017, 31.08.2017. Judgment on : December 1, 2017 Samapti Chatterjee, J :-
1. In this case the following issues are to be determined :-
(i) Whether the Ferry Ghat in question is governed by the Rule 281 (i) of the West Bengal Land & Land Reforms Manual 1991 ?
(ii) Whether the Ferry Ghat in question is a Private Ferry Ghat and Rule 281 (iii) of Land & Land Reforms Manual 1991 has no manner of application ?
(iii) Whether the tender should be called for the Ferry Ghat in question after complying all the formalities or the particular Ferry Ghat is restricted among the cooperative of local boatman in that area ?
2. The case of the petition in brief is as follows :-
The petitioner is a Co-operative Society registered under West Bengal Co-
Operative Societies Act. The object of the petitioner society is to provide facilities for operating water transport , boats and other country crafts as well as other public conveyances. The petitioner society since its inception in the year 1982 had been successfully operating and managing the affairs of the Nabadwip Ferry Ghat. Furthermore, since 1991 the lease in respect of operation and management of the affairs of the Nabadwip Ferry Ghat has been granted exclusively in favour of the petitioner society without any interruption or any break whatsoever.
At present management and control of Ferries have been placed and transferred to the concerned Zilla Parishad in terms of Section 155 of Panchayat Act, 1973 and Rule 266 of the West Bengal land & Land Reforms Manual 1991 (hereinafter referred to as the said Manual). It is also the case of the petitioner society that by floating the Notice Inviting Tender (second call) bearing no. 470 (33) N.G.P dated 18th February, 2015 and its corrigendum bearing no. 547 (33) N.G.P dated 24th February, 2015 issued by the respondent no.5 herein , an attempt was made on behalf of the Nabadwip Zilla Parishad to settle the management of the Nabadwip Ferry Ghat by way of auction.
Since the said Act is violative of the relevant statutory provisions of settlement of Ferry Ghat and without jurisdiction, therefore, it was assailed by the petitioner society before the Hon'ble High Court thereby filling a writ petition being W.P No. 6178 of 2015 (Nabadwip Jalapath Paribahan Co-Operative Society Limited vs The State of West Bengal & Ors). That writ petition was dismissed as infractuous vide order dated 31.08.2017 by this Hon'ble Court since subsequent advertisement was issued by the concerned Zilla Parishad for auction of the said Nabadwip Ferry Ghat by Notice Inviting Tender bearing No.2186 (34) N.G.P dated 22nd August, 2016.
Challenging the same again the petition Co-Operative Society filed the present writ petition. This Court again granted an interim order in favour of the petitioner Co-Operative Society thereby restraining the concerned Zilla Parishad not to deal with that Ferry Ghat till disposal of the present writ petition.
Submissions of the Learned Advocates
3. Mr. Arabinda Chatterjee, Ld. Senior Advocate appearing for the petitioner Co-Operative Society vehemently argued that the Zilla Parishad again issued Notice Inviting Tender on 22nd August, 2016 without mentioning any details thereof so as to grant the lease for management of the said Nabadwip Ferry Ghat to their favourite persons.
4. Mr. Chatterjee also strongly submitted that the entire process of notice inviting tender is merely an eye wash exercise just to grant the said tender to the favourite persons of the Zilla Parishad thereby practicing nepotism, favouritism and unfairness.
5. Mr. Chatterjee further contended that instead of floating the tender notice the respondent authority should have settled the said Ferry Ghat in favour of the petitioner society in compliance of the provisions contemplated in the said manual.
6. Mr. Chatterjee further strongly contended that the Zilla Parishad has no authority to invite tender from the public without settling the same in favour of the petitioner Co-Operative Society.
7. Mr. Chatterjee further emphasized his argument thereby submitting that the said Zilla Parishad ought to have settled the said Ferry Ghat in favour of the boatman of that area who are running C0-Operative Society thereby following the said manual, without inviting tender from public. In support of his contention Mr. Chatterjee relied on Rule 28 (iii) of West Bengal Land & Land Reforms Manual 1991. Rule 281 (iii) is quoted below :-
"Section 281- Public ferried and non-public ferried-(iii)-Concession to hereditary patnis-In cases where the highest bid does not exceed Rs.2000.
the settlement may be made in favour of a hereditary patni in preference to the highest bidder if the bid offered by the hereditary patni is not less than 85 per cent of the highest bid."
Relying on this, Mr. Chatterjee also strongly argued that Rule 281 (iii) of the West Bengal land & Land Reforms Manual 1991 is applicable to this Ferry Ghat. This Rule, interalia, stipulates that if there is only one Co-Operative Society of the local boatman in a particular area then the task of providing Ferry service should be entrusted with that Co-Operative Society. Most importantly it also provides that no tender is to be invited for such Ferry Ghat. Furthermore, Mr. Chatterjee submitted the petitioner Co-Operative Society eventually is the only co-operative of local boatman in that area. Therefore, without floating tender for public concerned Zilla Parishad should have settled the said Ferry Ghat in favour of the petitioner.
In support of his contention Mr. Chatterjee relied on an unreported decision of this Hon'ble Division Bench delivered on July 15, 2014(Kalijani Group Samity & Anr. Vs. State of West Bengal & Ors) . Some extract of the decision is quoted below :-
"Considering the submissions of the learned counsel of the respective parties and going through the available records and further considering the provision of Rule 281 (iii) of the West Bengal land and Land Reforms Manual, 1991, we are of the prima facie opinion that the claim of the appellants/petitioners should not be ignored altogether specially when we find that the appellant No.2 is the only partnership firm who applied for the settlement of the concerned ferry service being the partnership firm who applied for the settlement of the concerned ferry service being the partnership firm of the local boatman and hereditary patni. We are also of the opinion that the issues raised herein should be examined in further details after granting opportunity to the parties herein to file affidavits in the matter.
Therefore, liberty is granted to the respondents to file affidavit-in-opposition in connection with this the application within 25th July, 2014. Reply thereto, if any, may be filed within 31st July, 2014.
Let this matter be listed under the heading "Application" on 1st August, 2014".
8. Before parting with his argument Mr. Chatterjee strongly submitted that the impugned notice inviting tender being No.286 (34) /NGP dated 22nd August, 2016 should be quashed and set aside by this Hon'ble Court thus directing the said Zilla Parishad to settle the said Ferry Ghat in favour of the petitioner.
9. Per contra, Mr. Amitava Chaudhuri, learned Advocate appearing for the Nadia Zilla Parishad submitted that the said Land & Land Reforms Manual have no manner of application in the present Ferry Ghat in question, therefore, as per Rule 281 (iii) of the said manual the present Ferry Ghat should be settled in favour of the petitioner Co-Operative Society as has been projected by Mr. Chatterjee cannot be sustained in the eye of law.
10. Mr. Chaudhuri further contended that when the present writ petition was moved before the Hon'ble Justice I.P. Mukerji His Lordship was pleased to pass an interim order , inter alia, "this tender process is to be kept open for the time being. Tenders may be invited but no further action need to be taken in respect thereof. No fresh tender is to be called. "
11. Mr. Chaudhuri further vehemently urged that the Notice Inviting Tender dated 22nd August, 2016 was issued by the District Engineer Nadia Zilla Parishad for free and fair Tender process strictly in compliance with the existing law.
12. Mr. Chaudhuri further submitted that Nabadwip Ferry Ghat was used to run by Nadia Zilla Parishad since 1938, being empowered as per schedule of All Public Work's the District Board of Naida.
13. Mr. Chaudhuri also contended that the provision of Section 6 of the Bengal Ferries Act, 1885, clearly contemplates that a Ferry Ghat became Public Ferry Ghat through a notification by the State Government but the Nabadwip Ferry Ghat is all along a Private Ferry Ghat. No notification was ever issued till date by the State Government to declare the Nabadwip Ferry Ghat as Public Ferry Ghat. Therefore, as such Nabadwip Ferry Ghat is still a Private Ferry Ghat.
14. Mr. Chaudhuri strongly argued that under Section 281 of the West Bengal Land & Land Reforms Manual 1991 it appears in Section 281 (I) "Ferries which have been declared as Public Ferries under the Bengal Ferries Act, 1885, shall be exclusively under the control of the District Magistrate subject to the direction of the commissioner. But other vested and Khasmahal Ferries will be governed by Sub-rules (ii) to (viii) of these rules."
15. Mr. Chaudhuri further contended that the provision for handover of Khas and vested Ferries other than Public Ferries to the Panchayat Bodies in terms of Notifications No.484-L dated 22nd June, 1987 issued by Land & Land Reforms Department as well as the Notifications bearing no.2634(15) GE/(M) dated 7th March 1979 of the office of the Board of Revenue, Government of West Bengal as per Section 155 of the West Bengal Panchayat Act, 1955. Relevant extract of the schedule of All Public Work's subject to the control of or vested in the District Board of Nadia the Notification being No.484 dated 22nd June, 1987 issued by the Secretary to the Government of West Bengal are quoted below:-
"Schedule of all Public works subject to the control of or vested in the District Board of Nadia Prepared under the provisions of section 77 of Bengal Act III of 1885 Revised up to 31st May, 1938 MAIN HEADS I. Works under the control and administration of the District Board.
(a) Works transferred from District Road Committee under Section 73 of Local Self Government Act.
(b) Government works placed under the District Board control in pursuance of section 74 of the Act II. Works vested in the District Board under section 75 & 76 of the Act.
N.B.-These classifications of works have been noted against the name of respective works on the body of the Schedule.
Sub-head of works.
1. Road class I. Metalled Roads {A.-Bridged and drained throughout.
{B-Partially bridged and drained.
II. Unmetalled Roads {A-Bridged and drained throughout {B-Partially bridged and drained.
III. Roads {Banked and surfaced with muram of
similar material, but not drained.
IV. Do {Banked, but not surfaced, partially
bridged and drained.
V. Do. Cleared, partially bridged and drained.
VI. Do Cleared only
2. Road inspection houses and other buildings.
3. Ferries
4. Water Channels
5. Miscellaneous (Railway, Tramway, Water-Works, Tanks, Wells) Sl. No. Name of Number of miles Number and style of boats Yearly Remarks Ferry and name of road maintained and general value(average on which located description of three years
1. Nabadwip In the 6th mile of Five country Boats (30X7'-
Krishnagar-Nadia 6") with bamboo platform to
Road carry 40 passengers per
trip. Two country Boats
having bamboo platform
(16x14) fit for carrying
carts, bullocks, horses and
also for motor car
2. Goari In 1st mile of Two country Boats with
Krishnagar- bamboo platform (28'x7') to
Plassey Road carry 30 passengers per
trip
3. Gholapara At the end of One country boat (30'-7"x6')
Krishnagar- with bamboo platform to
Panshila Road carry 40 passengers per
trip
4. Nidaya One country boat
(30'x7"x6') with bamboo
platform to carry 40
passengers per trip
5. Agradwip Arpara-Khorulpur One country boat (12'x5')
with Patuli L.B. Road with bamboo platform to
carry 40 passengers and 2
country boats having
bamboo platform for
carrying carts and not fit for
carrying motor car.
Government of west Bengal
Land & Land Reforms Department
Land Reforms Branch
Notification
No.484.Ref Dated Calcutta, the 22nd June, 1987.
In exercise of the power conferred by section 13 of the West Bengal Estates Acquisition Act, 19532, (West Bengal Act I of 1954), read with rule 12 of the West Bengal Estates Acquisition Rules, 1954 the Governor has been pleased to order as follows :-
1. All the khas and vested tanks and ferries belonging to the State shall, subject to the directions issued, or may be issued, by the Government from time to time, be managed by the Gram Panchayats under whose respective jurisdictions the said tanks and ferries are located. In case a khas or vested tank or ferry falls under the jurisdiction of more than one Gram Panchayat, the same shall be managed by the Panchayat Samity under whose jurisdiction it falls, and in case such a tank or ferry falls under the jurisdiction of more than one Panchayat Samity, the same shall be managed by the Zilla Parishad.
2. The khas and vested tanks and ferries which are under valid lease or license granted by the Collectors, shall be managed by the Gram Panchayats, Panchayat Samities or Zilla Parishads, as the case may be, on expiry of the existing term of said lease or license.
3. The khas and vested tanks and ferries which were handed over by the Collectors to the Gram Panchayats Panchayat Samities or Zilla Parish ads, as the case may be, in pursuance of the memo no.2634 (15)-GE(M) dated 7th March, 1979 of the Board of Revenue, Government of West Bengal, Shall be deemed to have been always mnaged, and shall continue, to be managed, by the respective Gram Panchayats, Panchayat Samities or Zilla Parishads on and from the date on which the said tanks and ferries were handed over to them by the Collectors.
By order of the Governor, Sd/-B.C. Mukherjee, Secretary to the Govt. of West Bengal."
16. Mr. Chaudhuri further vehemently contended that provision of Section 266 of the West Bengal land & Land Reforms Manual 1991 is not at all applicable regarding settlement of Nabadwip Ferry Ghat and it is crystal clear in Section 281 of the said manual of 1991 that Nabadwip Ferry Ghat is a Non-Public Ferry Ghat i.e. Private Ferry Ghat. In support of the contention that the said Ferry Ghat is a Private Ferry Ghat Mr. Chaudhuri relied on West Bengal Ferries Act, 1885 Sections 5 and 22 which are quoted below :-
"Section-5-In this Act, unless there be something repugnant in the subject or context,-
"Commissioner" means the Commissioner of the Division "Ferry" includes a bridge of boats, pontoons of crafts, a swing-bridge, a flying-bridge, a temporary bridge, and a landing state. "Notification" means a notification published in the official gazette.
"Private Ferries" includes all ferries other than those declared to be public ferries, or established as such, under section 6 of this Act.
Section-22-The Commissioner may from time to time make rules consistent with this Act, for the maintenance of order, and for the safety of passengers and property, at private ferries situated in his division. Rules made under this section shall be subject to the control of the State Government and shall be published in the Official Gazette in such manner as the State Government directs, and shall thereupon have the force of law."
17. Mr. Chaudhuri further emphasized that entire tender process has been started under strict compliance of the provision of law as per notification of Government of West Bengal Land & Land Reforms Department as well as the land manual in respect of Ferries which are under control and supervision of the Zilla Parishad.
18. Mr. Chaudhuri further strongly urged that Nadia Zilla Parishad initiated tender process upon issuing tender notice dated 22nd August, 2016 in compliance of Hon'ble Apex Court order, inter alia the Zilla Parishad Nadia is free to make such arrangement as they deem necessary in respect of the Ferry Ghat and not necessarily vowed to put in auction as ordered by Hon'ble High Court. The extract of the Hon'ble Apex Court order is quoted below:-
"There shall be en interim clarification that the concerned Authorities of the Zila Parishad, Nadia are free to make such arrangement as they deem necessary in respect of the Ferry Ghat and not necessarily bound to put it to auction, as ordered by the High Court, effective from 14th April 1994 onwards, till further orders."
19. Mr. Chaudhuri further contended that vide letter dated 12th March, 2005 the Additional District Magistrate and District Land & Land Reforms Officer Nadia, Krishnagar informed the Additional Executive Officer Nadia Zilla Parishad that the said Ferry Ghat is managed and controlled by Nadia Zilla Parishad. The said Government order dated 28th March, 2005 is quoted below :-
"GOVERNMENT OF WEST BENGAL OFFICE OF THE DIST.LAND 7 LAND REFORMS OFFICER, NADIA ADMINISTRATIVE BUILDING (1ST FLOOR) KRISHNAGAR, NADIA Item No.1697/V/28/Ferry/05 Dated, Krishnagar, the 28.03.2005 From: The Additional Dist. Magistrate and Dist. Land & Land Reforms Officer, Nadia P.O-Krishnagar, Dist.-Nadia.
To: The Additional Executive Officer,
Nadia Zilla Parishad,
P.O. Krishnagar, District-Nadia.
Sub: List of Ferryghats managed and controlled by Nadia Zilla Parishad.
Ref: Your Memo. No.639/XIII dated 07.03.2005 Sir, In connection with Memo. No. under reference as per available documents, this is to inform you that all the vested ferryghats were handed over to the Panchayati Raj Bodies of this district before implementation of the integrated set up of Land Reforms Administration in terms of order No.2634(15) GE (M) dated 07.03.1979 and 5777(18) GE(M) dated 17.05.1979 of the Govt. of West Bengal and since then the maintenance of ferry calendar in the district L.R. Office or sub-divisional L.R. Office is no longer in force.
In view of the above circumstances, after such a long interval of time, no detail/specific information regarding handing over of vested ferry ghats to the Panchayati Raj Bodies is possible to collect and provide for you.
Hence in absence of authentic registers, files, etc. in connection with ferry ghats, this office is not in a position to confirm you the handing over of the management and control of the ferry ghats contained in your said list.
However we are issuing instructions to S.D.L & L.R.Os/B.L & L.R.Os to search out the information of handing over of the vested ferries to the Panchayati Raj Bodies.
Yours faithfully, ADDITIONAL DIST. MAGISTRATE AND DIST.LAND & LAND REFORMS OFFICER, NADIA, KRISHNAGAR, NADIA".
20. Mr. Chaudhuri in respect of settlement of Ferry Ghat under West Bengal Land & Land Reforms Manual 1991 and Rules 250 and 266 relied on a Hon'ble Single Bench decision reported in 2006 (3) CHN Page-475 (Kaljani Group Samity & Anr. Vs State of West Bengal & Ors) Paragraph-31 which is quoted below :-
"Para-31-Furthermore, it is an admitted position that the petitioners accepted the lease knowing the conditions of the grant. As such, the prayer for renewal of the lease and/or extension of the period of lease cannot be granted as it is opposed to public policy. To maintain transparency in the process of selection of the settlee/lessee, selection should be made either by auction or by tender, so that the transparency can be adjudged by the participants themselves. Renewal of lease and/or extension of lease by private negotiation as prayed for, cannot be encouraged particularly in the absence of any provision either for renewal or for extension of lease in the said Manual."
Mr. Chaudhuri also relied on an unreported decision of the Division Bench of this Hon'ble Court delivered on 17th September, 2014 (F.M.A 2264 of 2014- Sitesh Nagar Ferry Service Partnership Concern & Anr. Vs The State of West Bengal & Ors). Some extract of the said decision is quoted below :-
"We have considered the rival contentions. It is true, there is no declaration as to public ferry, however, the principles would definitely apply particularly when the State has declared policy to settle the ferry amongst a particular class of people to provide them means of livelihood. At the same time we must keep in mind the revenue aspect, as the Zilla Parishad would benefited by such licence fee that would be used for public good.
Striking a balance, we feel, an opportunity should be given to the appellants to match the offer of the successful tenderer. Mr. Dhar has already informed this Court, he would be in a position to deposit Rs.5.51 lakhs. Let him do so as a condition precedent to get the permit. The balance sum of Rs.5.24 lakhs in easy equal monthly installments, must be paid during subsistence of the period when the appellants would be holding the permit to run the ferry.
The successful tenderer did not commit any wrong by depositing the money in June 25, 2014. He must be refunded the entire sum forthwith, however, he would be entitled to interest at the rate of 7% per annum on and from June 25, 2014 till September 17, 2014 that would be paid by the appellants within a month from date.
In case of the appellant's failure in paying any of the aforesaid sum this order would stand recalled and the appeal would stand dismissed and the appellants would be obliged to hand-over the ferry to the Zilla Parishad forthwith.
Before we part with, we would be failing in our duty if we do not point out gross irregularity on the part of the State. The State already declared a policy to settle the ferries, fisheries etc, under Rule 266-A of the said Rules and other provisions. At the same time they should declare a particular ferry as a public ferry from time to time. In absence of such declaration it would be difficult for the Local self-government to deal with such ferries. We hope and trust, the State will do the needful immediately.
With these observations, the appeal is disposed of along with the application for injunction, being CAN 9026 of 2014.
There would be no order as to costs."
Urgent certified copy of this order, if applied for, be given to the appellants, on priority basis."
In this connection Mr. Chaudhuri also relied on Finance Department, Government of West Bengal Notification No.2254-F(Y) dated 24th April, 2014, some portion of which is quoted below:-
"Government of West Bengal Finance Department Audit Branch No.2254-F(Y) Dated, 24th April, 2014 NOTIFICATION In exercise of the power conferred by Clause (3) of Article 166 of the Constitution of India, the Governor is pleased hereby to make the following amendments in the West Bengal Financial Rules, Volume-I, as subsequently amended (hereinafter referred to as the said Rules), namely:-
1. Clause (a) of Rule 177 of the said rules is deleted
2. Caluse (c ) of Rule 177 of the said rules is substituted with the following :-
"i. Subject to any special rule or order or procedure that may be prescribed by the Government in respect of a particular department, open tender shall invariably be invited for execution of works worth Rs.1,00,000+oo or more ii. For works valued at Rs.5 lakh and above, e-tendering though the centralized e-Tender Portal [http://wbtenders.gov.in] is mandatory, in addition to publication in print media.
iii. E-Tender documents should be made available only through the State Government e-Tender portal, namely, https://wbtenders.gov.in free of cost.
iv. For works exceeding Rs.10 lakh or for purchasing plant, machinery, etc, of complex and technical nature, bids may be invited in two parts under two-bid system laid down in Rule 47C.
v. Selection of agency should be made on the basis of at least three tenders, which shall be opened in presence of willing agents, if the number of tenders received is less than three, tender should be invited afresh. vi. In case of invitation of tender under two-bid system, if the number of tenderers/bidders qualified in the technical bid is less than three, tender should be invited afresh.
vii. The lowest tender for such works should be accepted as a rule, if for any reason, the lowest tender is not accepted, reference shall be made to Government for orders as to which of the contractors the work should be given viii. Tender notice shall always be given due publication through the leading dailies in English, Hindi and Bengali. Open tender for execution of works worth Rs.1,00,000/- or more shall be invited in the following manner."
21. In conclusion Mr. Chaudhuri submitted that there is no illegality or infirmity or ambiguity in the notice inviting tender which deserves interference by this Hon'ble Court. Mr. Chaudhuri prayed that the writ petition should be dismissed with cost thereby directing the respondent authorities to issue fresh tender for the year 2017-18 in respect of the said Ferry Ghat.
Decision with Reasons
22. Considering the submissions advanced by the learned Advocates appearing for the respective parties and after meticulously perusing the record I find that the petitioner Co-Operative Society have been operating the said Ferry Ghat since 1991 as a monopoly. But from the year 2015 the respondent authority has taken step to lease the said Ferry Ghat through notice inviting tender.
Assailing such notice the petitioner earlier approached before this Hon'ble Court and obtained the stay order. Unfortunately in the year 2016 also by the notice inviting tender dated 22nd August, 2016 being No.2186 (34)/N.G.P the Zilla Parishad again had taken step to settle the management of the Nabadwip Ferry Ghat through tender process.
22. Assailing that notification the petitioner filed the present writ petition. This Court on 16th September, 2016 passed an interim order in favour of the petitioner thereby directing that "the tender process to be kept open for the time being. Tenders may be invited but no further action be taken in respect thereof as well as no fresh tender is to be called." Though it is submitted by Mr. Chatterjee that this Ferry Ghat is controlled under the Rule 281 (iii) of the West Bengal Land and Land Reforms Manual 1991. Therefore 281 (iii) is only applicable to this Ferry Ghat and the concerned Zilla Parishad has no authority to invite tender for operation of the said Ferry Ghat.
23. But I cannot ignore the submission of Mr. Chaudhuri appearing for the concerned Zilla Parishad that the petitioner taking advantage of its status as Co- Operative Society cannot convert the said Ferry Ghat as their monopoly business. In the present case admittedly petitioner's intention is that. It is also evident on record that this Ferry Ghat has been declared as Private Ferries under West Bengal Ferries Act, 1885. Therefore, under Section 5 of the Bengal Ferries Act, 1885 the said Ferry Ghat cannot be considered as Public Ferry Ghat.
24. It is also revealed from Section 22 of the said Bengal Ferries Act 1885 that Commissioner has the power to time to time make rules in regard to the Private Ferries. It is not out of place to mention that by virtue of the order dated 28th March, 2005 issued by Additional District Magistrate and District Land and Land Reforms Officer, Nadia the Additional Executive Officer of Nadia Zilla Parishad directed the respondent to control and manage the said Ferry Ghat.
25. Section 6 of the Bengal Ferries Act 1885 clearly manifests that a Ferry Ghat becomes a Public Ferry Ghat through a notification. But admittedly in respect of the said Nabadwip Ferry Ghat there is no such notification partaining to that effect. Therefore, this Ferry Ghat is being operated all along as Private Ferry Ghat.
26. It is also on record that the other vested and Khasmahal Ferries are governed by Sub Rules (ii) and (viii) of the said Rule 281 of the said manual. Accordingly the possession of other Khasmahal and vested Ferries were handed over to the Panchayat bodies in terms of Notification no.484-L dated 22nd June 1987 issued by Land and Land Reforms Department as well as notification being no. 2634(15) GE/(M) dated 7th March 1979 of the office of Board of Revenue, Government of West Bengal as per Section 155 of the West Bengal Panchayat Act, 1955.
27. Since the said Nabadwip Ferry Ghat is a Private Ferry Ghat, therefore provision of Section 266 of West Bengal Land and Land Reforms Manual 1991 is not applicable in respect of this Ferry Ghat.
28. It is further evident that in previous cases in respect of the said Ferry Ghat the order was passed by the Hon'ble Apex Court on 7th April 1994 directing inter alia, "there shall be an interim clarification that the concerned authorities of the Zilla Parishad Nadia are free to make such arrangement as they deem necessary in respect of Ferry Ghat and not necessarily bound to put it in auction as ordered by Hon'ble High Court effective from 14th April 1994 onwards till further orders."
29. Considering the decision in the case of Kalijani Group (supra) in my opinion to maintain transparency in the process of selection of the settlee/leasee, selection should be made either by auction or by tender so that the transparency can be seen by the participant themselves.
30. Submission of Mr. Swapan Kr. Majumder appearing for the respondent no.7 is also considered. I find no substance in his submission.
31. In the light of the above discussions and perusing the records as well as relevant rules and sections of the Acts, Manual and the decisions relied on by learned Advocates in my considered view since the Nabadwip Ferry Ghat is a Private Ferry Ghat controlled and governed by the Nadia Zill Parishad, therefore, there is no infirmity or illegality or ambiguity in the impugned notice inviting tender dated 22nd August, 2016 which deserves interference by this Hon'ble Court.
The decision relied by Mr. Chatterjee passed by the Hon'ble Division Bench is an interim measure, no issue has been decided.
32. Resultantly, this writ petition stands dismissed without any order as to costs.
33. However, since the petitioner Co-Operative Society has been operating the said Ferry Ghat since 1991 till date therefore I direct the Nadia Zilla Parishad to allow the petitioner Co-Operative Society to run/operate the said Ferry Ghat till 31st March, 2018 provided that they fulfill all requisite formalities. Thereafter the Nadia Zilla Parishad would be at liberty to take steps for issuing fresh notice inviting tender for the said Nabadwip Ferry Ghat post 31st March, 2018. This order will not, however, preclude the petitioner society to participate in future tender.
34. Urgent photostat certified copy of this Judgment, if applied for, be supplied to the parties on priority basis.
(Samapti Chatterjee, J)