Calcutta High Court (Appellete Side)
Society Limited vs The State Of West Bengal & Ors on 24 January, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: Hon'ble Justice Shampa Sarkar
WPA 12782 of 2013
With
CAN 2 of 2017 (Old. No.CAN 10688 of 2017)
With
CAN 3 of 2020
With
CAN 4 of 2024
With
CAN 5 of 2024
Nawda Thana Ferry Service Cooperative
Society Limited
Vs
The State of West Bengal & Ors.
with
WPA 9316 of 2022
Murshidabad Patni Cooperative Society Limited
Vs
The State of West Bengal & Ors.
Mr. Shamim Ahmed,
Ms. Gulsanwara Pervin
... for the Petitioner.
(In WPA 12782 of 2013)
Mr. A. Chaudhuri
Ms. D. Banu
... for the Nadia Zilla Parishad
(In WPA 12782 of 2013)
Md. Sarwar Jahan,
Mr. Sirajul Haque Mondal
Ms. Tapati Sarkar
... for the Petitioner.
(In WPA 9316 of 2022)
2
Mr. Lalit Mohan Mahata
Mr. Prasanta Bahari Mahata
...for State
Mr. Amitava Chaudhuri
Mr. N. Roy
... for the Nawda Panchayat Samity
Hearing concluded on : 08.11.2024
Judgment on : 24.01.2025
Shampa Sarkar, J.:-
1. WPA 12782 of 2013 has been filed by a society registered under the
Cooperative Societies Act (hereinafter referred to as the said society). It was
claimed that the society comprised of boatmen and all the members belonged
to the "Patni Community" (boatmen community). That unemployed local youths
belonging to the Patni/Majhi community, who were residing within the Nawda
police station, formed the society. All the members hailed from poor scheduled
caste families. It was the only society formed by hereditary patnis, within the
Nawda block.
2. The subject matter of challenge was the notice issued by the Executive
Officer, Nawda Panchayat Samiti (hereinafter referred to as the Samiti) dated
April 24, 2013. The said notice was the outcome of a resolution of the Artha
Sanstha O Parikalpana Sthayee Samiti of the Nawda Panchayat Samiti
(hereinafter referred to as the Sthayee Samiti). The Samiti had invited bids to
settle 13 ferry ghats under its control, by an auction.
3
3. The society contended that those 13 ferry ghats should be settled in its
favour, on the basis of the notification No.3490-LR/IF 20/01 dated November
26, 2002, issued by the Government of West Bengal, Land and Land Reforms
Department. By the said notification Clause (iii) of Rule 281 of West Bengal
Land and Land Reforms Manual (hereinafter referred to as the said Manual)
was amended. The provision stated that, if there was only one functional
primary fishermen's cooperative society in the locality, settlement of ferry ghats
should be made with that local functional society on the basis of economic rent
determined by the collector on the basis of the 25% of the average of the net
income of preceding three years and tenders were not required to be invited.
According to the writ petitioner, the ferry ghats, namely, (i) Kanainagar
Patikbari (ii) Shibnagar Tiakata (iii) Amtala Fazil Nagar, (iv) Banchadanga
Lalnagar, (v) Narayanpur, (vi) Goghata, (vii) Kanchantala, (viii) Tungi, (ix)
Dhopapara, (x) Bally Kamra, (xi) Bally Bandha, (xii) Balia, and (xiii)
Maniknagar, which were under the control and management of the Samiti,
had been settled in favour of the said society for the past few years, in terms of
the above notification. Such practice continued till April 14, 2013. The letters
issued by the Executive Officer of the Samiti, asking the petitioner to deposit
the lease rent fixed by the Samiti, were proof of such fact. It was further
contended that by a letter dated May 14, 2012, the Executive Officer of the
Samiti informed the petitioner that the Samiti had taken a decision to settle the
ferry ghats as per the rate fixed by the Samiti and the petitioner was asked to
deposit the lease rent in the office of the Samiti. The lease in respect of the
4
ferry ghats expired on and from April 15, 2013. The petitioner requested the
Sabhapati and Executive Officer of the Samiti to renew the lease and settle the
ferry ghats for the year 1420 B.S. The petitioner was assured that the
settlement would be in terms of the Land and Land Reforms Manual, 1991
(hereinafter referred to as the said Maunal).
4. It was urged that by letter dated March 25, 2008, the society requested
the Block Development Officer, Nawda Block, not to act upon the notice
inviting auction dated March 17, 2008, for settlement of the ferry ghats for the
year 2008-2009. The request was honoured. The said society asserted that
from the resolution dated February 27, 2009, it would be evident that the
samiti agreed that in terms of Rule 281 of the Manual, the society would be
entitled to settlement of ferry ghats, being the only boatman's cooperative
society in the block. According to Mr. Bikash Ranjan Bhattacharya, learned
Senior Advocate appearing for the said society, the settlement had been
renewed every year upto April, 2013. All of a sudden, a resolution was adopted
on April 19, 2013 by the Sthayee Samiti and the decision to offer the ferry
ghats by open auction was taken.
5. On April 19, 2013, the petitioner came to know that the Sthayee Samiti
had taken a decision to settle the ferry ghats by open auction and the auction
was to be held on May 3, 2013. The petitioner made a representation, which
was not entertained. A notice was issued on April 24, 2013, for open auction of
those 13 ferry ghats for the year 1420 BS. The reserve prices for each of the
ferry ghats were also notified.
5
6. The moot contention of the said society in the said writ petition was that,
settlement of the ferry ghats should be in terms of the Manual. The question of
an open auction did not arise. Sthayee Samiti did not have any authority under
the law to take a decision in this regard in view of clause (iii) of Rule 281 of the
Manual. Only societies or partnership firms, comprising of local
boatmen/hereditary patnis, could be settled the ferry ghats under the said
Manual. Section 133 of the West Bengal Panchayat Act, 1973 empowered the
Panchayat Samiti to levy tolls in respect of ferries established by it or under its
management. The provisions of the Panchayat Act and the Rules did not
empower the Panchayat Samiti to settle ferry ghats. In all cases, preferences
were to be given to local boatmen's cooperative society or partnership firms on
the basis of economic rent to be determined by the Collector, being 25% of the
net income for the preceding three years.
7. The writ petition was heard by a learned Single Judge of this court. On
the first day, the State Government was asked to take specific instructions as
to whether the notification dated November 26, 2002, had any application in
the facts of the case. The said order was challenged by the said society and the
Hon'ble Division Bench directed the respondents to maintain status quo with
regard to the operation of the ferry ghats till the writ petition was taken up for further consideration by the learned Single Judge. The appeal was disposed of. The learned Single Judge, by order dated May 14, 2013, directed affidavits to be exchanged and further directed that the said society would operate the ferry ghats subject to payment of the reserved price as may be determined by the 6 Panchayat Samiti. The payment was to be calculated with effect from April 15, 2013. On the basis of the said interim order, the said society continued to operate the ferry ghats at the price which was determined in 2012-13.
8. CAN 1 of 2017 old CAN 5537 of 2014 was an application filed by the said society for a direction upon the respondents to accept the reserved price as determined by the Samiti in the impugned notice dated April 24, 2013, with effect from April 15, 2014, till the disposal of the writ petition and to allow the said society to deposit the same. The said application was dismissed by a coordinate Bench on June 20, 2014.
9. CAN 2 of 2017 was a similar application.
10. CAN 3 of 2017 was an application by M/s. Majhi Ferry Service Center and Anita Majhi for being added as respondents. The said CAN was not pursued by the applicants.
11. CAN 4 of 2017 was an application filed by the Nawda Panchayat Samiti and its officials for setting aside and/or vacating, or varying the interim order dated May 14, 2013, which was treated as the affidavit-in-opposition of the Samiti.
12. CAN 5 of 2017, was an application filed by the Nadia Zilla Parishad, to be added in the proceeding. The said application was not pursued.
13. WPA 9316 of 2022 was filed by the Murshidabad Patni Cooperative Society Limited, for a writ of mandamus commanding the respondents, their men, agents and subordinates and each of them to settle the ferry ghats which 7 were under the control and management of the Nawda Panchayat Samiti, through open auction.
14. The prayer was to restrain the Samiti from settling the ferry ghats in respect of any other person or organization, without holding an open auction or calling for tenders.
15. WPA 9316 of 2022, was disposed of by another Coordinate Bench, directing the respondent Nos. 2, 3 and 4 therein, to hold an open auction for settlement of the ferry ghats, strictly in accordance with law at the earliest, but positively within a period of four weeks from the date of communication of the order. The order was challenged before an Hon'ble Division Bench by the said society (writ petitioners in WPA 12782 of 2013) vide MAT 1228 of 2022. The appeal was allowed and the order of the learned Single Judge was set aside. The Hon'ble Division Bench directed hearing of both writ petitions. By order of this court, the said society, that is, Nawda Thana Ferry Service Cooperative Society Ltd., was added as the respondent No.7 in WPA 9316 of 2022.
16. Both the writ petitions involved similar questions and were taken up together.
17. Questions for determination are, whether the notification No.3490-LR/IF 20/01 dated November 26, 2002 and Rule 281 (iii) of the Land and Land Reforms Manual, 1991, would compulsorily apply in case of settlement of ferry ghats by a panchayat samiti and whether the ferry ghats under the control and management of the Nawda Panchayat Samiti, should be settled in favour of the said society, i.e., writ petitioner in WPA 12782 of 2013, or by public auction. 8
18. Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate for the said society submitted that the manual was a special piece of legislation and should take precedence over the Panchayat Act. Article 15(4) of the Constitution of India, permitted the State to make special provisions for the advancement of socially and educationally backward classes of citizens or for scheduled caste and scheduled tribes. The provision was an exception to Article 14 of the Constitution of India. Accordingly, keeping the above provision in mind, protection to weaker sections (hereditary patnis), were incorporated in the said Manual by the Board of Revenue, permitting settlement of ferry ghats without auction, in case there was a single cooperative society or a partnership firm comprising of hereditary patnis, in a particular block or locality.
19. Mr. Bhattacharyya submitted that the said Manual came into force with effect from, January 1, 1992. The writ petitioner in WPA 9316 of 2022, was registered as a cooperative society only in 2021. The said society could not be treated as one formed by hereditary patnis as contemplated under the Manual. Rules 4 and 5 of the Manual, were referred to in support of the contention that all orders, notifications and manuals of the State Government or of the Board of Revenue, which were in force immediately before the commencement of the said Manual, would stand repealed to the extent of them being repugnant to or inconsistent with the provisions of the Manual. The savings clause was also referred to, in support of the further contention that anything done or any action taken in accordance with the provisions of manuals, orders or notifications on or before the date of coming into force of the said Manual 9 would be deemed to be validly done or taken. Section 60 of the West Bengal Land Reforms Act, 1955 conferred power to the State Government to make Rules to carry out the purposes of the said Act. Section 60 (2) provided that the Rules so made would have the effect as if they were incorporated under the said Act. Mr. Bhattacharya submitted that the said Manual had statutory force and would thus, have an overriding effect over the Panchayat Act.
20. It was further contended that the policy should be uniform. The State Government and the Panchayat Samiti could not follow separate sets of policies in respect of settlement of ferry ghats. If the State Government had framed a policy with regard to settlement of ferry ghats which found its expression is a legislation, i.e., the Manual of 1991, the same policy should be followed uniformly by all local bodies including the respondent/Panchayat Samiti. Section 223 of the West Bengal Panchayat Act, empowered the gram panchayats, panchayat samitis and zilla parishads to make their own bye-laws. The Howrah Zilla Parishad had framed its by-laws and made a provision to give preference to local boatmen's cooperative societies or partnership concerns, formed by local boatmen and hereditary patnis, in the matter of settlement of ferries.
21. Apart from Howrah Zilla Parishad, according to Mr. Bhattacharya, the Nadia Zilla Parishad and Jhargram Zilla Parishad also followed a similar system. Thus, no exception could be made by the Nawda Panchayat Samiti, by deviating from the accepted norm followed by the other Zilla Parishads. 10
22. The documents annexed to the affidavit-in-opposition filed to the report of the State Government, were relied upon to show that during the election in 2008, a list of cooperative societies within Nawda block had been prepared and the said list would reflect that only one cooperative society namely, the writ petitioner in WPA 12782 of 2013 was in existence. Therefore, the question of holding an auction for settlement of the ferry ghats in Nawda block, which were being operated by the said society, could not arise. Under the garb of an e- auction, settlement would be made in favour of big businessmen, which was contrary to law and violative of the constitutional mandate. The amendment of the Constitution and the provisions relating to the three tier system of governance, were incorporated to ensure that the income percolated to the lowest level. The ultimate control was with the State Government. Section 20 (2) of the Panchayat Act empowered the State Government to withdraw functions from the gram panchayats in case of any default by the gram panchayats. The Manual, which was framed by the State Government, was binding on all local bodies.
23. Mr. Bhattacharya submitted that even assuming that there was more than one co-operative society comprising of hereditary patnis, but before calling for an auction, the District Magistrate was first required to undertake a survey as to whether other cooperative societies comprising of local boatmen and hereditary patni were in existence within the Nawda block. The open auction should be restricted amongst the cooperative societies or partnership firms 11 comprising of local boatmen and hereditary patnis, if there were more than one such society or partnership firm.
24. Entry 27 of the 11th Schedule of the Constitution was specialy emphasized by Mr. Bhattacharya to substantiate that the ultimate goal for both the State Government and the Panchayat Samiti should be welfare of the weaker sections of the society and such objective should be imbibed in the process of settlement of ferry ghats. Reference was made to the decision in M.P. Oil Extraction and Anr. Vs State of M.P. and Ors., reported in (1997) 7 SCC
592.
25. Mr. Bhattacharya prayed that the said society should be allowed to continue to operate the ferry ghats until there was specific determination and decision by the State Authorities/Administration, that there were more than one cooperative society or partnership firm consisting of hereditary patnis, within Nawda block. The question of holding an open bidding process or an open auction/e-auction and allowing participation of all, did not arise. The Manual prohibited settlement of ferry ghats outside the community of local boatmen and hereditary patnis.
26. Mr. Lalit Mohan Mahata, learned Additional Government Pleader appeared on behalf of the State of West Bengal and filed a report. The said report was prepared by the Block Development Officer of Nawda Development Block, who is also the executive officer of the Samiti. The report stated that 13 ferry ghats were to be settled by auction and accordingly the notification was issued on April 24, 2013. Out of the 13 ferry ghats, two ferry ghats were shared 12 by Nadia Zilla Parishad and Murshidabad Zilla Parishad every alternate year, in terms of Section 161 of the West Bengal Panchayat Act, 1973. For the year 2022-2023 those two ferry ghats had been settled by the Nadia Zilla Parishad through an open auction. The said society, i.e., writ petitioner in WPA 12782 of 2013, had been operating ferry ghats on a year to year lease on the basis of rent determined by the Samiti from 1981 to 1989, before the said Maunal had come into force. The said society had not come into possession of the ferry ghats by way of settlement under the said Manual, but through an auction. On May 29, 2006, a notice for holding open auction was issued by the Executive Officer of the Samiti for auction of 10 ferry ghats under the said Samiti for the period between 1st Ashar, 1413 to 31st Chaitra, 1413, i.e., for the English calendar year 2007, by fixing the lease rent of each of the 10 ferry ghats. The auction was held. A photocopy of the said auction notice had also been annexed to the report.
27. Mr. Mahata drew the attention of the court to the auction notice dated March 17, 2008, issued by the Executive Officer Nawda Panchayat Samiti for auction of 11 ferry ghats for the period 1st Baishakh 1415 to 31st Chaitra 1415, that is, for the calendar year 2008. The lease rent of each of those ferry ghats was also mentioned in the notice. The learned Advocate pointed out the default committed by the said society with regard to payment of lease rent from 1989 to 2007.
28. The attention of the court was further drawn to a notice dated March 20, 2008, issued by the Executive Officer of the Samiti to the society, asking the 13 society to deposit arrear lease rent with interest, in the event the society wanted to participate in the auction which was to be held for the year 2008. Copies of such documents had been annexed to the report filed by the state government. The resolution dated April 1, 2008, which was relied upon by Mr. Bhattacharya, was also discussed in the report. The Executive Officer of the Samiti explained the reason behind the resolution. On account of the panchayat elections for the Bengali year 1415, it was proposed that the ferry ghats should be leased to the said society (existing operators) at the same rate as per the auction held in 2007, corresponding to Bengali year 1414, as it would not be possible to hold the auction in view of the ensuing election. It was further resolved that in future, auction would be held for settlement of the ferry ghats, in accordance with law. The documents annexed to the report were placed in great detail, in order to substantiate that the society had paid rent on a year to year basis from 2009 to 2012, and none of the documents would indicate that the ferry ghats had been settled in favour of the said society under the provisions of Rule 281(iii) of the said Manual.
29. It was further mentioned in the said report that there were other cooperative societies and partnership firms comprising of hereditary patnis and the said cooperative society was not the only hereditary patni in the locality. Applications had been received from other cooperative societies and individuals, namely, Nawda Block Patni Ferry Services, Murshidabad Patni Cooperative Societies Limited, Rahul Mondal, Nasiruddin Biswas, Rajab Mondal, Sukdeb Sarkar and Safiul Islam, requesting settlement of those ferry 14 ghats in their favour. Mr. Mahata further urged before this court that the auction notice dated April 24, 2013 which was under challenge, was in respect of the Bengali year 1420, and the writ petition had since become infructuous.
30. Even assuming that the prayer of the society was allowed in its totality, the said society would be only successful in getting the auction notice for the year 2013 set aside. On the basis of an interim order, the said society continued to run the ferry ghats at very minimum price, for years together. Several defaults were committed. There was huge loss of revenue. The business had become a monopoly of the said society. By virtue of the interim order passed by a learned Single Judge, the said society had practically managed to control those 11 ferry ghats, without having any legal right to prevent public auction.
31. According to Mr. Mahata, e-auction was the best mechanism for settlement of ferries, which were under the control of the panchayat Samiti, in order to ensure transparency and maximization of revenue. Reference was made to several government notifications in this regard. The Department of Panchayats and Rural Development, had also directed that the process of e- tendering should be introduced in case of allotment of works, schemes, etc., by the local bodies.
32. Mr. Mahata referred to the objects and reasons behind the 73rd Amendment of the Constitution, and the need for introduction of Part IX thereof. Article 243 G was placed before the court along with the 11th Schedule. Provisions of section 20, 21(m), 25, 42(b) and 47(ix) of the West Bengal 15 Panchayat Act, 1973, Rule 13 of the West Bengal Panchayat (Gram Panchayat Accounts, Audit and Budget) Rules, 2007 and Rule 31 of the West Bengal Panchayat (Panchayat Samiti Administration) Rules 2008, were relied upon. Mr. Mahata prayed for dismissal of WPA 12782 of 2013.
33. Mr. Amitava Chaudhuri, learned Advocate for the panchayat samiti submitted that the said society was running the ferry ghats by way of lease on a year to year basis from 1981 till 1989. The grant of lease was not governed by the provisions of Rule 281(iii) of the said Manual. The Manual came into effect from 2002. The contention of the said society, that it was granted settlement of the ferry ghats on the strength of the Manual, was erroneous.
34. The society defaulted in payment of the lease rent for the previous years and a notice was issued by the Executive Officer of the Samiti, asking the said society to pay the rent so that it could participate in the auction for the year, 2008. The document which Mr. Bhattacharya relied upon clearly indicated that the resolution dated April 1, 2008 was adopted by the Samiti because the auction could not be held for the Bengali year 1415, due to the Panchayat elections and it was proposed that the existing operator shall be granted the lease at the same rate quoted in the auction held in 2007. The resolution clearly indicated that auction would be held for the following year. The exceptional situation which had been mentioned in the resolution and by virtue of which the settlement continued in favour of the society for the year 2008- 2009, did not create any vested right, entitling the society to operate the ferry ghats for an unlimited period. Even on January 28, 2009, a notice was issued 16 to the said society, by the Executive Officer of the Samiti, asking the said society to deposit the rent for the year 2009. The Executive Officer of the Samiti issued the impugned notice to settle the ferry ghats by open auction. The notice could not be given effect to in view of the interim order permitting the society to continue to run the ferry ghats.
35. The vacating application was referred to in great detail in order to establish that there were other hereditary patnis in the said area and the said society was not the only cooperative society comprising of hereditary patnis. The interim order was passed under an incorrect assumption that the society was the only existing society comprising of hereditary patnis and that the settlement had been made in terms of the said Manual. The arguments advanced by Mr. Bhattacharya as well as the affirmed statement that the said society was the only existing cooperative society comprising of hereditary patnis, were factually incorrect.
36. Mr. Chaudhuri also submitted that e-auction was the mandate of the Government. Settlement of any property under the control of the gram panchayat or the panchayat samiti was to be done by an e-auction, as per the Government notifications and that was the best mechanism for maximization of revenue, by maintaining a transparency in the procedure. Reliance was placed by Mr. Chaudhuri on various decisions of this court to substantiate that, this court had, time and again held that settlement of ferry ghats under the control of the Zilla Parishads, Gram Panchayats and Panchayat Samitis should be done by open auction. The society was running the ferry ghats as a monopoly 17 business. The ferry ghats were settled at a nominal rate and that too several defaults had been committed. At present, an auction would fetch much higher lease rent than what was being paid by the said society, i.e., at the rate quoted in the notice of 2013. That too, the said society had committed several defaults.
37. This court had directed Mr. Choudhury to file an affidavit indicating the dues payable by the said society. An affidavit affirmed by the Sabhapati of the said Samiti on July 22, 2024 had been filed, which indicated that a sum of Rs.13,64,364/- was still payable by the said society. Thus, both Mr. Mahata and Mr. Choudhury urged this court to vacate the interim order, dismiss WPA No.12782 of 2013 and allow WPA No.9316 of 2022, by permitting the samiti to hold an e-auction.
38. Mr. Sarwar Jahan, learned Advocate appeared for the petitioner in WPA 9316 of 2022. He submitted that e-auction was the only mechanism by which the ferry ghats could be settled and hence, the court should vacate the interim order passed in WPA 12782 of 2013, thereby, allowing the prayers made in WPA 9316 of 2022.
39. Mr. Jahan relied on the definition of 'ferry' and "private ferries" under Section 5 of the Bengal Ferries Act, 1885. Section 6 of the Act of 1885 was also relied upon to show that the State Government had the power under the said Act to declare certain ferries to be public ferries. Apart from those ferries which were declared by the State Government under the Bengal Ferries Act of 1885 as public ferries, all other ferries were private ferries. Mr. Jahan urged that the superintendence of every public ferry was vested with the Magistrate of the 18 district in which the ferry was situated and the tolls of such public ferries could be leased by public auction for such term as the Magistrate of the district, in which the ferry was situated, may with the approval of the Commissioner of the Division direct. The lessees were required to execute a contract, setting forth the conditions on which the tolls of such ferries were to be collected and they were also required to give security for due fulfillment. The said Act of 1885 provided that in case of private ferries, the Commissioner of the division could make Rules consistent with the said Act. In the case in hand, the ferries were not declared to be public ferries under the said Act of 1885 and the Commissioner in the Division did not make any rules with regard to these ferries. Under Section 5 of the said Act of 1885, all public and private ferries had vested to the Government.
40. Rule 266 of the said Manual dealt with handing over of lands and interest belonging to or at the disposal of the State Government, to the panchayat institutions. Management of ferries, fisheries, each with water area up to 5 acres, tanks with water area up to 5 acres and other interests had been transferred to the panchayats as per Section 266(2) of the said Manual.
41. Rule 266 (c) of the Manual was placed before the court to assert that tanks and interests transferred to panchayats were to be leased out to the functional fishermen's cooperative societies or fish production groups or self- help groups or individuals or entrepreneurs or government undertakings of fisheries department by a tender committee constituted as per the guidelines of the Panchayat and Rural Development Department.
19
42. According to Mr. Jahan, Rule 281 (iii) would not be applicable in the case of settlement of ferries by the Panchayat Department. The said Rule dealt with the mode of settlement of ferries, which were under the control of the District Magistrate. Rule 281 (iii) could not be read in isolation to Rule 281 (i) and (ii).
43. Having heard the learned Advocates for the respective parties, two contentions of Mr. Bhattacharya have been proven to be incorrect. The Nawda Thana Ferry Service Cooperative Society Limited was not the only boatman's cooperative society or hereditary patni in the locality. There were other boatman's cooperative, partnership firms and individuals belonging to the hereditary patni community. Such fishermen's cooperative and individual hereditary patnis had filed applications before the Samiti, seeking settlement of the ferry ghats and offered a much higher price (lease rent). Secondly, the ferry ghats were not settled in favour of the society by virtue of the provisions of Rule 281(iii) of the Manual, but the ferry ghats were leased out to the said society on a year-to-year basis by public auction. Extension was given for 2008 to 2009 by adopting the provisions of Rule 281(iii), because the auction could not be held for that year, due to the panchayat election. However, the resolution of the Panchayat Samiti clearly reserved a right to the Samiti to hold public auction for the following year, after the elections were over. In any event, the decision to extend the tenure of the said society was under special circumstances. Such decision could not take away the authority of the Panchayat Samiti to settle the ferry ghats under its control by e-auction. The Finance Department's notifications to hold e-auction for settlement of any property of the government, 20 were also made applicable to the local bodies under the Panchayat Department.
44. This court, in Joragachi Lohadaha Ferighat Yatri O Nou Paribahan Samabay Samity Limied & Anr. Vs. State of West Bengal & Ors. decided in W.P.A No. 26138 of 2022 held that, the Manual was applicable to the Land and Land Reforms Department. Even if, the said manual had a statutory flavour, the same could not compulsorily be made binding on the Panchayat Samitis. The concept of Panchayati Raj and the incorporation of the three-tier system of governance by the 73rd amendment of the Constitution which was brought in 1992, was a journey towards independence of the local bodies. Part IX of the Constitution dealt with creation, powers and functions of the panchayats. Enormous powers had been vested with the gram panchayats under the provisions of the Constitution. Article 243-G (b) of the Constitution empowered the panchayats to implement schemes for economic development and to secure social justice in matters relating to the 11th Schedule. Entry 13 of the 11th Schedule dealt with ferry ghats. The fact that the 11 ferry ghats in question, had vested with the Panchayat Samiti and two other ferry ghats were shared by the Murshidabad Zilla Parishad and Nadia Zilla Parishad are not in dispute. The State Government did not have any control over them. The fact that the settlement of the ferry ghats had been done by auction since 1981 is available from the documents annexed to the vacating application and the report of the State Government. The said society has not specifically denied such contentions of the authorities. The society could not produce any 21 document, which would indicate that it was granted settlement of the ferry ghats on the strength of Rule 281 (iii) of the Manual. On the strength of one resolution of the Samiti, by which the Samiti had extended the settlement of the ferry ghats in favour of the society for the year 2008-2009, as auction could not be held due to the panchayat election, such right has been asserted. The resolution could not have created a permanent right in favour of the said society to continue to operate the ferry ghats at such low price, by circumventing a proper bidding process (e-auction). This internal resolution was the only basis for the claim of the society, for settlement of the ferry ghats without any bidding process and at very low price.
45. The Panchayati Raj institutions existed since long. The West Bengal Panchayat Act was promulgated in 1973, but, it was observed that the institutions had not been able to acquire the status and dignity of viable and responsive public bodies, due to a number of reasons, including absence of regular elections, pronounced supersession, insufficient representation of the weaker section, inadequate devolution of powers and lack of financial resources. In the objects and reasons appended to the 72nd Amendment Bill 1991, which was enacted as the 73rd Amendment Act 1992, it had been categorically mentioned that, in the light of the experience which the legislature had in the preceding 40 years and in view of the shortcomings observed, there was an imperative need to enshrine certain basic and essential features of the Panchayati Raj institutions in the Constitution, not only to impart continuity to the institutions, but also to strengthen them. Accordingly, it was proposed that 22 a new part should be added to the Constitution relating to Panchayats. The provisions of Article 40 of the Constitution of India relating to Directive Principle State Policy was sought to be implemented by promulgating the 73rd Amendment Act 1992 and to ensure people's participation in development and democratic decentralization.
46. Devolution of powers and responsibilities on the Panchayats, regarding preparation of plans for economic development, securing social justice and implementation of developmental schemes were the main objectives of such amendment. Accordingly, the Constitution of India was amended by introducing Part IX thereto. Article 243G deals with powers and responsibilities of the Panchayats, which is quoted below:-
243G. Powers, authority and responsibilities of Panchayats Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self- government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to--
(a)the preparation of plans for economic development and social justice;
(b)the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.
47. The fact that the state government had vested the control and management of the concerned ferry ghats with the Samiti, is not in dispute. The report of the State Government clarified the position. The Panchayat authorities have been vested with the powers under Article 243G of the Constitution read with the 11th Schedule, which include settlement of the ferry 23 ghats. Rule 31 of the West Bengal Panchayat (Panchayat Samiti Administration) Rules 2008 empowers the Sthayee Samiti to deal with, manage and control ferries assigned by the Government.
48. The Rule is quoted below:-
31. Subjects and functions assigned to different Stayee Samitis.-The Stayee Samiti specified in the entries in column (1) of the Table hereunder shall deal with and formulate and execute schemes relating to the subjects specified in the corresponding entries in column (2) of the Table.
TABLE Artha Sanstha Unnayan O (1) Finance, (ii) Budget, (iil) Accounts, Parikalpana Sthayee Samiti (iv) Audit,
(v) Levying of rates, fees, duties and toll charges, (vi) Mobilisation of resources, (vii) Administration and establishment, (viii) Co-ordination and monetary supervision of activi-ties of different Sthayee Samitis including the schemes assigned by different departments of Government,(ix) Preparation and implemen-tation, monitoring and evaluation of Panchayat Samiti plans, (x) Employment generating programmes,
(xi) Small savings, (xii) Preparation of resource inventory and data base of Panchayat Samiti planning, (xiii) Management of hat, bazaar, ferry assigned by Government to Panchayat Samiti, (xiv) Issue of licences on behalf of the Panchayat Samiti, (xv) Preparation of socio economic database in a decentralized manner, (xvi) Organizing and managing training of members and functionaries of Gram Panchayat and Panchayat Samiti, (xvii) Any other function not specified for any other Sthayee Samiti, (xviii) Any other matter as may be assigned from time to time, (xix) Implementation of Right to 24 Information Act.
49. The Constitution of India and the West Bengal Panchayat Act, 1973 empower the Panchayat Samiti to establish control and manage ferry ghats, collect tolls and maximize revenue for its best interest. These provisions are in consonance with the constitutional mandate. The Manual cannot have an overriding effect over the above provisions. Rule 6 of the Manual provides as follows :-
"6. Provisions of Acts and Rules will prevail.- Provisions of this Manual shall have effect without prejudice to any provision of an Act or of Rule made thereunder for the time being in force, and nothing in this Manual shall be construed to limit or abridge the operation of any provision of such an Act or Rule."
50. In any event, holding e-auctions will ensure maximization of revenue. The same are being conducted in terms of Memo No. 3060FY dated June 11, 2014, issued by the Principal Secretary to the Government of West Bengal, Finance Department, Audit Branch and Memo No. 3103-F(Y) dated July 27, 2022, issued by the Additional Chief Secretary to the Government of West Bengal, Finance Department, Audit Branch. The Department of Panchayats and Rural Development adopted the provisions of e-auction and e-tender by issuing specific notifications. Thus, the Panchayat Samiti is entitled to grant lease of immovable properties and other assets to ensure maximum profit.
51. The said Manual cannot curb the powers vested in the panchayat samitis under the special Act and the Rules frame thereunder. The functions and duties of the State were transferred to the local bodies. The Manual provides for 25 such transfer. The Manual cannot be made binding on the panchayat authorities.
52. Section 20 of the West Bengal Panchayat Act, 1973 deals with transferred duties of the gram panchayat. Certain duties of the State Government had been transferred to the panchayats. Provisos were incorporated to put a check on misuse of power and/or failure to perform.
53. Such transferred duties include functions which the State Government may by order, transfer to the panchayats or entrust or devolve upon them from time to time, subject to the condition that the State Government may withdraw such power in case of default in performance or inability to perform. Certain provisions were incorporated in the West Bengal Panchayat Act, 1973 bt the West Bengal Panchayat (Third Amendment) Act, 2006. The title of the Principal Act of 1973 was substituted by the West Bengal Panchayat (Third Amendment) Act, 2006 in the following manner:-
"An Act to reorganize, strengthen and expand the activities of Panchayats in rural areas of West Bengal to enable them to act as units of self- government and to strive for socio-economic development and securing social justice for the people and to provide for matters connected therewith."
54. The above discussions clearly demonstrate the independence of the Panchayati Raj institutions to control and manage their properties including ferry ghats which vested in them and were not notified to be public ferries. They are not bound by the provisions of Rule 281 (iii) of the Manual. Interpretation of the government in this case has also been in favour of 26 granting complete independence to the Panchayat Samiti with regard to discharge of its functions within the four corners of the special statute. The State Government has not made the Manual applicable in case of settlement of ferries by the Panchayati Raj institutions.
55. The object of Part IX of the Constitution was to enable the units of the self-government to function independently and in a decentralized manner, in terms of the provisions of the Act. Other Zilla Parishads may have adopted the provisions of Rule 281(iii) voluntarily. It was their independent choice, but the Nawda Panchayat Samiti cannot be compelled to accept the Manual and follow the provisions of Rule 281 (iii) of the Manual. From the very inception, the ferry ghats were settled by way of public auction and even the said society had participated in such auction. Moreover, Rule 281 (iii) has to be read in harmony with Rule 281 (i) and (ii) and (iv to ix).
56. Rule 281 is quoted below :-
"281. Public ferries and non-public ferries.--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. These are now under the administrative control of the Public Works Department.
Other vested and khasmahal ferries will be governed by sub-rules (ii) to(viii) of this rule.
(ii) Procedure for settlement of ferries.-Ferries should be settled by the District Land and Land Reforms Officer by public auction to be held at least three months before the date from which the settlement is to have effect.
Public auction shall remain restricted among cooperative societies or partnership firms as conceived in rule 266A.
(iii) Concession to hereditary patnis.-Preference should be given for settlement of ferries with local Boatmen's Co-operative Society or partnership concern formed of local boatman and hereditary patni. If 27 there is only one such co-operative society or partnership concern in the locality, settlement shall be made with such co-operative society or partnership concern on the basis of economic rent to be determined by the Collector on the basis of 25% of the average of net income of preceding three years and in such event no tender needs be invited.
(iv) Power to sanction settlement of ferries. --The District Land and Land Reforms Officers are empowered to accord sanction to the settlement of ferries with a revenue not exceeding [Rs. 10,000] in each case and the Commissioner is empowered to confirm settlement in a case where revenue does not exceed 4[Rs. 50,000).
(v) Forms of lease of ferries.-The lease for a ferry shall be executed in Form 8 in Appendix IV. The lease will have to be registered.
(vi) Tolls in ferries.-Tolls, according to such rates as may from time to time be fixed by the Collector with the approval of the Commissioner, shall be levied by the lessee on all persons, animals, vehicles or other things crossing the river over the ferry and not employed or transmitted on the public services Board of Revenue may, however, by order exempt any persons, animals, vehicles or other things from payment of such tolls.
(vii) Table of tolls.-The table of tolls, legibly written or printed in Bengali, and also, if the Commissioner so directs, in English shall be affixed at some conspicuous places near the ferry by the lessee. He shall also be bound to produce on demand a list of tolls signed by the Collector or by an officer authorised on his behalf by the Collector.
(viii) Khutagari rights.-Khutagari rights shall be settled in the same manner as ferries. The Khutagari right at the ferry ghat and the ferry right should preferably be settled with the same person. If this does not happen, the Khutagari lessee shall not realise Khutagari fees from the lessee of the ferry for mooring the latter's boat at the ferry ghat.
(ix) Rights of Government over beds of navigable rivers.-Government has absolute right over channels and beds of navigable rivers and foreshores in case of tidal rivers."
57. A meaningful reading of Rule 281 (iii) of the Manual will indicate that the settlement of ferries were to be made to the sole cooperative society or partnership concerned without calling any tender on the basis of economic rent to be determined by the Collector in respect of vested and khas mahal ferries and the District Land and Land Reforms Officer was to discharge such function. The Collector was the authority to determine the economic rent 28 payable. In this case, the records reveal that the rent payable by the said society was determined by the Samiti itself. All the documents relied upon by the said society indicate the same. The Executive Officer of the society (Block Development Officer) had asked the said society to pay up all its dues from time to time, failing which the said society would not be allowed to participate in any public auction. The forms of lease, the provision for fixation of tolls, the procedure for settlement as per the Manual, were never ever applied in respect of the subject ferry ghats.
58. Rule 281(iii) will not have any application in this case. These are all ferry ghats under the control and management of the Samiti. The Manual applies to ferries under the control of State Government and which were settled by the procedure laid down in Rule 281. Rule 281 (iii) cannot be read in isolation to other provisions of the said Rule. The management and control of the subject ferries had been transferred to the panchayati raj institutions and as such the Panchayat Samiti has complete independence to follow the procedure of e- auction for settlement of ferries. The relevant notification is quoted below:-
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 :-29
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 managed, 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."
59. In the decision of Joragachi Lohadaha (supra), this court held as follows:-
"22.The fact that the control and management of the concerned ferry ghat had been with the panchayat authorities for sometime past, is not in doubt or dispute. The panchayat authorities have been vested with powers under Article 243-G of the Constitution of India read with the Eleventh Schedule. The provisions of Sections 20, 21(m), 25, 42(b), and 47(ix), of the said Act and Rule 13 of the West Bengal Panchayat (Gram Panchayat Accounts, Audit and Budget) Rules, 2007, empower the panchayat authorities to establish, control and manage the ferry ghats, collect tolls and maximise revenue for their best interest. These provisions are in consonance with the constitutional mandate. The Manual being a procedural handbook or a guide cannot have any overriding effect over such provisions. Paragraph 6 of the said Manual also provides the same. In any event, holding of public auction is only to 30 maximise revenue. The same are being conducted in terms of Memo No. 3060-F(Y) dated June 11, 2014 issued by the Principal Secretary to the Government of West Bengal, Finance Department, Audit Branch and Memo No.- 3103 - F(Y) dated July 27, 2022 issued by Additional Chief Secretary to the Government of West Bengal, Finance Department, Audit Branch. The gram panchayat, in matters of grant of lease of immovable properties and assets of the state, are bound to ensure that no loss is incurred. Maximisation of revenue must be their goal. Paragraph 266A of the said Manual also provides circumstances under which public auction could be opened up to individual entrepreneurs and not be limited to boatmen's co-operative societies or partnership firms. Such policy of the government was also introduced by amending the earlier paragraph 266A of the manual in the year 2016. Individual entrepreneurs were allowed to participate in public auctions if there were less than three bidders. The said Manual cannot curb the power vested with the gram panchayat in terms of Section 20 of the said Act, read with the constitutional mandate.
23. Section 20 of the West Bengal Panchayat Act, 1973 deals with transferred duties of the gram panchayat. Certain duties of the State Government had been transferred to the panchayats. Provisos were incorporated to put a check on misuse of power and/or failure to perform.
24. Such transferred duties include performance of such functions which the state government may by order transfer to the panchayats or entrust or devolve upon them from time to time subject to the condition that the State Government may withdraw such power in case of default in performance or inability to perform. Section 21 deals with the regulatory duties of the gram panchayat which includes establishment of ferry ghats and management and control of ferries. The state government under Section 22 is obligated to place funds at the disposal of the gram panchayat so that the functions assigned to the gram panchayat may be performed smoothly. These provisions in the said Act were incorporated by the West Bengal Panchayat (Third Amendment) Act, 2006. The title of the Principal Act of 1973 was substituted by the West Bengal Panchayat (Third Amendment) Act, 2006 as follows:-
"An Act to reorganize, strengthen and expand the activities of Panchayats in rural areas of West Bengal to enable them to act as units of self-government and to strive for socio-economic development and securing social justice for the people and to provide for matters connected therewith."
25. The amendment to the title itself indicates that the West Bengal Panchayat Act was an Act to organize, expand and strengthen the activities of panchayats in rural areas of West Bengal and to enable them to act as units of self government and to strive for economic and 31 social development. Following the constitutional mandate of the 73rd amendment, the said Act was amended in the year 2006 and Sections 20 and 21 with regard to transferred duties of the gram panchayats and the regulatory duties of the panchayats had been incorporated by amending the earlier provisions. Therefore, after the constitutional amendment and inclusion of Part -IX and after the amendment of Sections 20 and 21 of said Act of 1973 by the amending Act of 2006, the panchayats have been enabled and empowered to independently manage and control the ferry ghats. The said Manual will not have any application and the panchayat authorities are not bound by the provisions of the paragraph 281(iii) of the said Manual. Interpretation of the government in this regard is also in favour of grant of complete independence to the panchayats authorities to function within the four corners of the Act and Rules and in accordance with law.
26. The object behind incorporation of Part-IX to the Constitution was to enable the Panchayati Raj to function as units of self-government and in order to achieve such object it is essential that the gram panchayats function independently and in a de-centralized manner in terms of the provisions of the Panchayat Act and the Rules framed thereunder. The said Manual which is merely a hand book of procedure for the land and reforms administration cannot have an overriding effect over the West Bengal Pnachayat Act, 1973. The petitioners do not have a right of preference for grant of settlement of the ferry ghat.
27. In the matter of The Goa foundation vs. M/s Sesa Sterlite Limited & ors, [Special Leave to Appeal (Civil) No.32138 of 2015] the Hon'ble Apex Court held that the State was duty bound to adopt the method of auction by giving wide publicity so that all eligible persons could participate in the process. Natural resources could not be alienated by way of largesse and there must be a reciprocal consideration either in the form of earning revenue or sub-serving the common good or both. The State's endeavour must be towards maximization of revenue returns.
28. In the matter of Centre for Public Interest Litigation v. Union of India, reported in (2012) 3 SCC 1, the Hon'ble Apex Court held as follows:-
"95. This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/ instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc. it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution 32 and alienation, which would necessarily result in protection of national/public interest.
96. In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process."
(i) In Nabadwip Jalapath Paribahan Co-operative Society Ltd. vs. The State of West Bengal & Ors. reported in (2018) 2 WBLR (cal) 161, it was held as follows:-
"28. 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.
29. 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."
30. 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.
31. Submission of Mr. Swapan Kr. Majumder appearing for the respondent no.7 is also considered. I find no substance in his submission.
33
32. 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.
33. Resultantly, this writ petition stands dismissed without any order as to costs.
34. 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."
(ii) In Maatara Heridity Patni Ferry Service Co-operative Society Ltd.
vs. State of West Bengal reported in AIRONLINE 2023 CAL 665, the Nadia Zilla Parisad wanted to grant settlement by way of lease of certain ferry ghats by holding open auction process and the said process was upheld by a learned Single Judge of this court.
(iii) Maatara Heridity Patni Ferry Service Co-operative Society Ltd.
vs. The State of West Bengal & Ors. decided in WPA 11688 of 2022, this court held as follows:-
"The Court was of the opinion that to maintain transparency in the process of selection of the settlee/lessee, selection should be made either by auction or by tender so that transparency can be adjudged by the participants themselves.34
The Hon'ble Division Bench in the matter of Kolkata Anti- Corruption Research & Analytical Institute (supra) took note of the fact that open auction will be held for allotment of ferry ghat. In Rajab Mondal (supra), the Court was pleased to hold that Nadia Zilla Parishad may publish the auction notice and fix the date of auction for settling the ferry ghat.
From the submission of the parties and on perusal of the documents placed before this Court, it appears that the whole intention of the Act is to maintain transparency, fairness and uniformity in the process of settling the ferry ghats. The petitioner claims to be a co-operative society of local boatmen. It has been submitted by the learned advocate for the Nadia Zilla Parishad that there are several other co-operative societies who are interested in the open auction process.
Accordingly, there is no reason to restrain Nadia Zilla Parishad to proceed with the open auction. If there are more than one co- operative societies, then decision shall be taken by the Nadia Zilla Parishad to settle the ferry ghat in favour of the highest bidder."
(iv) Amal Kr. Majhi & Ors. vs The State of West Bengal & Ors.
decided in W.P. 16398 (W) of 2018, this court held as follows:-
"This feudal attitude of the petitioners for perpetuating the monopoly on the ferry ghat cannot be encouraged. The Ferry ghat was settled after due process by the appropriate Panchayet Samity and after bidding the highest bid was accepted which is not a bid of the petitioners. That the petitioners have been enjoying a virtual monopoly to ply a ferry ghat for a long time and that it has acquired land on one side of the river cannot sabotage the efforts of the Government to deny the red teeth and claws of capitalism and feudalism to flourish in Bengal Accordingly, since on facts the writ petitioners had on the face of the videographed clip misled the Court, I hold that the writ petitioners are guilty of having come to the writ court with unclean hands.
In that view of the matter, the writ petition stands dismissed. Interim order, if any, stands vacated. The Court records its appreciation of the learned Special Officer, Mr. Sarwar Jahan. I am told that all his expenses and remuneration have been paid. I am 35 not inclined to award exemplary costs against the writ petitioners for having misled the Court on facts but since the writ petition is being dismissed I have chosen to forebear in doing so."
(v) The decision of Union of India and Anr. Vs Ganpati Dealcom Private Ltd. reported in (2023) 3 SCC 315 cited by Mr. Bhattacharya, does not apply in the facts and circumstances because the question to be determined in this case is whether the Land Reforms Manual shall be mandatorily binding on the panchayat samiti. This court is of the view that the West Bengal Panchayat Act, 1973 being a special piece of legislation cannot be held to be subordinate to the provisions of the Manual.
(vi) M.P Oil Extraction and Another (supra) which was also cited by Mr. Bhattacharya does not apply in this case. The exception which have been made out in Paragraph 45 of the said judgment to the general principle of distribution of largesse by inviting open tender or by public auction does not cover the facts and circumstances of the case. The society was granted the settlement of ferry ghats by public auction on a year to year basis. Only one extension was given for the year 2008, when the auction could not be held on account of panchayat election, referring to Rule 281(iii) of the Manual of 1991.
29. The writ petition being No. WPA 12782 of 2013 fails.
30. The writ petition being No. WPA 9316 of 2022 succeeds.
31. The connected applications stand disposed of.
36
32. The Panchayat Samiti is entitled to settle the ferry ghats upon holding e- auction, by following the due procedure.
33. There will be no order as to costs.
34. Parties are directed to act on the server copy of this judgment.
(Shampa Sarkar, J.)