1. The facts in this case are shortly as follows: The Rajmahal Manikchowk Ferry, with its subsidiary ferries at Soneghat, and Narainpur, more popularly known as the Rajmahal Ferry is an inter-state ferry, plying between Malda in West Bengal and Rajmahal in Behar. So far as this application is concerned, I have jurisdiction only with regard to that part of the ferry which lies within the State of West Bengal. The West Bengal Government .has made a declaration, under power conferred by d. (a)' of Section 6 of Bengal Ferries Act, 1885, that the ferry known as the 'Rajmahal Ferry' on the Ganga at Manikchak Sadarghat within the limits of the Manichak Police Station in the district of Malda, including the subsidiary ferry at Narainpur, shall be deemed to be and to have always been, a public ferry, and that for the purposes of the said Act, the said Ferry shall be deemed to be and to have always been situated in the district of Malda. The fact is that the ferry existed even before the Province of Behar was separated from Bengal, and in the year 1951 the State of West Bengal and the State of Behar have jointly decided that the ferry as a whole would be administered by the District Magistrate of Malda, and the revenue therefrom shall be divided half and half between the two States. This ferry appears to be of some importance, particularly after the partition of Bengal, and it is stated that it is one of the main life-lines, joining, west Bengal with the northern part of this truncated State. In or about 1953, the District Magistrate of Malda advertised that this ferry will be settled by public auction, and it was settled with the petitioner for a period of one year from 1-4-1953. Upon the expiry of the year, it was again leased out to the petitioner for a period -Of two years ending on 31-3-1956, at an annual rental of Rs. 40,000/-. It does appear that the petitioner has been running the ferry very efficiently. He employs two steamers, two flats', 18 boats and a crew of 70. In July 1955, the petitioner applied before the District Magistrate of Malda to extend the period of lease by another three years, and offered to pay an increased rental of Rs. 61,000/-. He also indicated that he had a scheme for further development of the ferry and increased services. The District Magistrate was favourably impressed with the application and sent up his recommendations to the Commissioner of the Presidency Division. The Commissioner on 13-9-1955 requested the District Magistrate to call for sealed tenders for the ferry but he made this concession that the items of improvement offered by the petitioner should form the minimum requirements of the ferry. On 10-11-1955 the petitioner made a written representation directly to the Commissioner requesting him to grant a settlement of the ferry for a period of three years. The Commissioner called for a report from the District Magistrate who submitted his report on or about 23-11-1955 recommending the petitioner in strong terms. On 19-12-1955 the Commissioner directed the District Magistrate to call for sealed tenders as already ordered. The items of improvement offered by the petitioner were directed to be part of the minimum requirements of the ferry. In compliance with the said order the District Magistrate on 6-1-1956 issued a public notice inviting sealed tenders for settlement of the ferry for a period of three years commencing form 1-4-1956. Pursuant to the said notice, six persons including the petitioner, submitted sealed tenders. The petitioner made a tender of RS. 76,525/-. His was actually the fourth highest tender, the hightest being Rs. 1,28,575/-. The District Magistrate carefully went into all these tenders and after giving his exhaustive reasons, on 14-2-1956 accepted the tender of the petitioner, and this was sent to the Commissioner for sanction, I might mention here that the Commissioner had in his turn referred to Government) for the purpose of approval of his direction regarding the calling of scaled tenders. This is of course merely administrative approval, since, as I shall presently show, no such approval is necessary In law. As I have stated above, the District Magistrate accepted the tender of the petitioner on 14-2-1956 & forwarded it to the Commissioner, who appears to have made a note in the files on the very nest day, namely, the 15th, according his sanction. As a matter of fact, on 31-2-1956 he informed one Narbadeswar Prasad Singh that the matter of settlement of the Rajmahal Manikchak Ghat Ferry had already been decided after full consideration and could not be reopened. On 2-3-1956 there came a directive from the West Bengal Government. What had happened was as follows. I have already said that the Commissioner had referred to Government asking for its administrative approval with regard to the direction to the Magistrate to call for tenders. The West Bengal Government having considered the matter was advised that under the Bengal Ferries Act, the only way that a public ferry could be leased out was by public auction land in no other manner. Consequently by a communication issued on or about 2-3-1956, the Commissioner was informed that the calling of sealed tenders was not legal and that the ferry should be settled by public auction. Pursuant to this directive, an auction notice was published on 9-3-1956. Thereafter on 15-3-1956 the petitioner moved a petition before the District Magistrate requesting him to rescind and/or recall the auction notice, but this application was rejected. The auction was for some time postponed, but on or about 7-4-1956 another notice was given that there will be a public auction for the purpose of settling the ferry.
2. This rule was issued on 19-4-1956 calling' upon the opposite parties to show cause why a Writ in the nature of Mandamus should not issue directing them to rescind, recall, withdraw and/or forbear from giving effect to the notice of auction mentioned therein, and/or why they should not be directed to act and proceed in accordance with law and for other reliefs. There has been an interim injunction restraining the auction and the petitioner is canying on the ferry in the meanwhile.
3. Mr. Gupta appearing on behalf of the petitioner has taken the following points;
(1) That the Government of West Bengal has no right to interfere, or to issue any directive, under the Bengal Ferries Act, 1885, (hereinafter called the 'Act') upon the Commissioner.
(2) That the respondents have already accepted the tender of the petitioner and are estopped from holding a public auction.
(3) That the leasing out by public auction of a public ferry, as enjoined in Section 9 of the Bengal Ferries Act, 1885, is merely directory and not mandatory.
(4) That even if it is considered that the holding of a public auction is mandatory, stilt the leasing out by calling public tenders amounts to, or is equivalent to, public auction. The relevant provisions of the said Act are Ss. 7, 8 and 9 arid they are set out below :
'7. The control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner.
8. The immediate superintendence of every public ferry shall be vested 'in the Magistrate of the district in which such ferry is situated, or in such other officer as the State Government may, from time to time, either by name or by official designation, appoint.
And such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arrangements for the supply of boats for such ferry, and for the collection of the authorized tolls leviable thereat.
9. The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct.
The Magistrate of the district or the officer authorized by him to conduct such auction may for sufficient reason to be recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction.
The lessee of the tolls of every ferry which have been leased under this section shall execute a contract setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfilment'.
4. Having regard to the provisions of the said Act, I think that so far as the Government of West Bengal is concerned, it has no loous standi to issue a directive calling upon the Commissioner to lease out the ferry in any particular manner. As will appear from the sections quoted above, the control of public ferries is vested in the Magistrate of the district, subject to the direction of the Commissioner. Immediate superintendence of the public ferry is vested in the Magistrate of the district in which such ferry is situated or in such other officer as the State Government may appoint. Now, the Magistrate for such other officer' as is appointed as aforesaid) has got two alternatives. Firstly, he can carry on the ferry in khas, that is to say, he can himself make all necessary arrangements for the supply of boats and for the collection of authorized tolls. He has however another alternative, that is to say, he can lease out the ferry. How the ferry is to be leased out is mentioned in Section 9. It is laid down that the tolls of any public ferry may, from time to time, be leased by 'public auction,' for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct. The word 'may' has apparently caused a great deal of confusion. It is argued that this word 'may' has made the provision directory & not mandatory. In other words, it is argued that the District Magistrate may lease out the ferry by public auction or in some other manner, subject of course to the approval of the Commissioner. This construction has been encouraged by the interpretation put upon the section not only by the Government of Bengal but also by the Government of Bihar. For example, in a notification issued by the then Government of Bengal in November 1929 issued to Commissioners, it was stated as follows :
'Government had been advised that the provision of Section 9 of the Act is permissible, not obligatory, and that the local body is not precluded from settling ferries under its own management otherwise than by public auction. At the same time the advantages of settlement by public auction as a formal procedure are so obvious that in the opinion of the Government it must be considered incompatible with the responsibilities of the Commissioner under Section 7 to permit settlements otherwise than by public auction except with his approval ................ '.
It is stated in the Bihar Ferries Manual, Part I, at page 7, as follows :
'Section 9 of the Bengal Ferries Act prescribes lease by auction as the normal method of settling public ferries, and I am directed by Government to emphasize this fact and to state definitely that lease by public auction is to be regarded as the ordinary method of settlement in future. If in any case recourse is had to private settlement the special circumstances justifying that course must be reported through the local officers for the information of Government at the earliest possible opportunity'. The matter is now covered by several judgments of the Patna High Court, which has held that the proper procedure to lease out a public ferry is by public auction, and since the Act requires; it, it is not permissible to take recourse to other means of settling the same, for example, by private arrangement. The Patna High Court has also decided that the Government has no locus standi to, interfere in the matter, since under the Ferries Act, it was the Magistrate and the Commissioner who were the persons entrusted by law to control and lease out the ferries. With respect, I agree with both these views. The first case to be considered is 'Rambharosa Singh v. Govt. of the State of Bihar, : AIR1953Pat370 . This was a case which dealt with the Patna-Ganges Ferry, a ferry which had been declared to be a public ferry under the Bengal Perries Act, 1885. The District Magistrate of Patna advertised to the public for holding a public auction, for the lease of the tolls of the ferry, for a period of three years. The Government however issued a directive to revoke the public auction end to extend the term of the existing lessee. A person who wanted to bid at the public auction made an application under Article 226. Jamuar, J., said as follows :
'The learned Advocate-General therefore argued that, since the State is a party to the agreement which the lessee has to execute, it should be inferred that the State can give directions to the District Magistrate as its agent. I cannot accede to this argument in view of the fact that the Act and the Rules framed thereunder give the sole control of the ferries to the District Magistrate, subject only to the direction of the Commissioner. & I do not think that the State Government can give directions to the District Magistrate. The learned Advocate-General also suggested that an extension of the lease is permissible under Rule 7 (d). I have already stated that R. 7 (d) fixes the maximum period for which a lease may be granted as net exceeding three years at a time. I cannot read into this rule the power to extend a lease. It may be that the previous lessee may again be granted a lease for a period not exceeding three years at a public auction , held under the provisions of the Act: but that does not amount to an extension of the lease : it will be a fresh lease. I do not think, therefore, that the withdrawal of the settlement of the tolls of the ferry from public auction by the District Magistrate under the orders of the State Government or the extension of the lease in favour of opposite party No. 5 can be held to be legal.'
5. The next case to be cited is -- 'Ramphal Singh v. Govt. of the State of Bihar,' : AIR1954Pat235 . This case dealt with the Barh-Banarasi-Sultanpur Perry, a ferry declared by the State Government to be a public ferry. In this case, the ferry was first of all put up for public auction but subsequently the auction was cancelled and the S. D'. M. made a private settlement with one Suraj Singh and Ram Prosad Singh. An application was made to set aside this private settlement. Ramaswami, J., dealing with Sections 7, 8 and 9 of the Ferries Act stated as follows:
'In a case of this description, the principle to be applied is clear. This principle is that when a statute directs that a power is to be exercised in a certain manner, that power should be exercised in that particular manner and in no other manner. In other words, the powers of the Sub-Divisional Magistrate are limited 'to those expressly mentioned in Ss. 8 and 9 of the Bengal Ferries Act. The Magistrate is clothed only with those powers specially conferred by statute and with no other powers.................. Adopting this principle in the present case, I hold that the Sub-Divisional Magistrate had no authority under the Bengal Ferries Act to make a private settlement of the tolls of the Barh-Banarsi-Sultanpur Ferry with respondents Nos. 5 and 6 and the settlement so made by the Sub-Divisional Magistrate on the 7th of April 1953 is ultra vires and void'
6. In this case, the notification of the Government of Bihar stating that a lease by auction was the normal method of settling public ferries, was canvassed. The learned Judge rightly decided that the circular contained the opinion for the Government as to the interpretation of Section 9 of the Bengal Ferries Act, but such opinion was not binding and would not control the legal interpretation of S. 9.
7. The nest case is -- 'Jagat Singh v. State of Bihar,' (S) AIR 1955 Pat 463 CO. In this case, the lease of the tolls of 25 ferries in Bihar were concerned. There was a public auction and the petitioner Jagat Singh came to bid but was prevented from doing so. Singh J., said as follows:
'As stated earlier, the powers exercisable by the Magistrate of a district under this Act have been conferred upon the District Board under R. 35 of the Act. Two options are open to the Chairman, District Board. He may manage the ferry khas or he may settle them with any person. When he decides to lease the tolls of the ferries, he has to proceed under S. 9 which lays' down the manner in which the lease is to be made.
The settlement of the ferries has to be made by public auction and not by private treaty. Section 9, no doubt, vests in the District Board a discretion to refuse to accept the offer of the highest bidder and to accept' any other bid or to withdraw the tolls from auction, but this he can do only when there is sufficient reason which must be recorded in writing. These powers, though very wide, come into play only after the auction is held. Section 9 or, for the matter of that, any provision of the Bengal Ferries Act, does not confer any power upon the District Board to debar any person from bidding at the auction. .......... ............ ........
Where any enactment is made, by the legislature with respect to the State revenue, It is clear that the procedure specified in the enactment should be strictly followed'.
8. My attention has been drawn to the fact that there is-even a later case, -- 'Amarendra Narain Singh v. District Magistrate of Monghyr', (Appeal No. 55 of 1954 of the Supreme Court) In which a point had been taken which goes nearest to the facts of this case. Apart from the other points mentioned above, it was urged that the leasing out by calling of public tenders is equivalent to public auction. The matter is now pending before the Supreme Court. The application was however dismissed by the Patna High Court on the ground that the petitioner had no subsisting legal status. It is doubtful therefore whether this particular point will at all be decided.
9. Mr. Majumdar has drawn my attention to the well-known case of -- 'Nazir Ahmad v. King-Emperor , where Lord Roche stated that where a power was given to do a certain thing in a certain way in a statute, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
10. The position therefore appears to be as follows :
1. Under the Act, the control of public ferries is vested in the Magistrate of the district (or such other officer as may be appointed by the State Government for that purpose) in whom also the immediate superintendence is vested.
2. The Magistrate (or such other officer) is only subject to the direction of the Commissioner.
3. The Magistrate (or such other officer) can elect to run a public ferry under khas management, by making arrangements for the supply of boats and for the collection of, the authorized tolls, But he has an alternative, namely to grant a lease thereof. The lease of course is granted in the name of the Government.
4. If a public ferry is leased out, it can only be done by public auction, on such terms as the Magistrate (or such other officer) may, with the approval of the Commissioner, direct. It cannot be leased out in any other manner.
5. The Magistrate (or such other officer) or the officer authorised by him to conduct such auction may, for sufficient reason to be recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid or may withdraw the toils form auction.
11. Applying these principles, we find that In the present case, the authorities concerned had no right to lease out a public ferry otherwise than by public auction, and the bid that is to be accepted although it may not be the highest bid, must be a bid at such an auction. The Government has no locus stand to interfere in the matter or to give any directive to, either the Magistrate or the Commissioner, with regard to the control, superintendence and leasing out of public ferries. The Government has no right, or power to interpret the law, and the notifications and circulars issued in the past contrary to the principles adumbrated above, are all invalid and of not effect.
12. The only point that remains to be considered is the question that has been raised by Mr. Gupta, namely, that the calling for public tenders is equivalent to public auction, within the meaning of the words as used in Section 9 of the Act. For this purpose Mr. Gupta relies upon two English cases The First case is -- 'Edward Barlow v. Edward Com Osborne', (1858) 10 ER 1412 (E). In that case, a property was directed to be sold by the Court of Chancery. The advertisement announcing the same, described it as a sale by private contract, but subject to certain conditions, namely, that the intending purchasers were to send sealed tenders, which would be opened by the Chief clerk, who would certify as to who was the ultimate purchaser. The Lord Chancellor held that these conditions made the sale more like an auction than a sale by private contract strictly so called. He said as follows :
'Upon that point, I confess, that after having had some fluctuation of opinion upon that subject, I have come to the conclusion that there is no difference whatever in principle. Observe, there had been attempts, which we need not advert to, in preceding years to sell this estate by auction. For some reason or other the estates were not sold...................Now what sort of sale was this? It is described as a sale by 'private contract' but we must not make ourselves, or consider that other persons can properly be made, the slaves of words. That which is called a sale by private contract is, when yon look at the description of what are the things to be done, to all intents and purposes a sale by auction. I believe the word auction has been always understood to be derived from 'augendo'; it means that you are to bid. This is not exactly a sale by auction in this sense, that when I hear that A has bid 10,000, I make an advance upon it and say I will give 11,009, but it is a sale at which everybody is privately to communicate what he will give, and then if a sufficient sum had been offered upon a certain day, he who has offered the most is to be declared the purchaser. That is the nature of the sale'.
Lord Brougham however stated that he did not quite agree with this view regarding auction and sealed tenders as being more or less identical.
'I should say upon the whole', said the learned Judge 'with all possible respect to my noble and learned friend's opinion, that I should rather be disposed to consider 'sealed tenders' and 'auction' as things not only identical but rather contrasted, the one with the other'.
13. The second case cited by Mr. Gupta is --'Waterhouse v. Wilkinson', (1864) 71 ER 278 (P). This was also a sale by Court. In my opinion, these cases do not decide the exact point raised here. The real point in Osborne's case (E), was as to whether the sale was a sale by private contract or by auction. It was held that the conditions of sale, made It more like an auction than a sale by private contract. It is quite obvious that there is a vital difference between a sale by public auction and a sale by calling tenders, and the difference has really been point-ted out by the Lord Chancellor himself. At a public auction, the bidders are all present and are able to see and hear the biddings. There is a sense of rivalry, and often this kind of competition amongst the rival bidders, pushes the price up, to the advantage of the seller. This is not an advantage of a minor description, it is true that in a written tender, intending buyerst do make bids. But they are unaware of the bids of one another, and it is impossible to raise the bid. Therefore, in my opinion, it would be impossible to 'say that a public auction is the same as a disposition of a property by the calling of tenders. It is easy to see how a public auction, where there are a number of bidders, each trying to out-bid the other, would be to the benefit of the seller by pushing up, the price. It Is next argued that under the Act the authorities are not compelled to accept the highest bid and therefore it is no good pushing up, the price. Again I do not agree. It is quite clear why this particular, safeguard has been introduced. The authorities are not compelled to accept the highest bid because it may well be that the highest bidder is a person of straw, and that it would not be to the ultimate advantage of the public revenue to lean upon such a frail reed,
14. In this particular case, the District Magistrate has repeatedly recommended the petitioner but it is significant that in spite of this,, the petitioner is afraid to face a public auction. I Cannot blame the respondents for arguing that there must be some reason for this. If the petitioner is the most competent person to be granted the lease, then the holding of a public auction will not prejudice him and he may still obtain the lease. I do not see however why the statutory procedure should not be followed, it might be that such a public auction might attract a party, who not only ig able to bid higher than the petitioner but might turn out to be equally if not more efficient. There can be no question of estoppel because there cannot be an estoppel against a statute.
15. Lastly I must refer to a point made' by Mr. Majumdar that inasmuch as the ferry is an inter-state ferry, the provisions of the Bengal Ferries Act do not apply, but that the Government is entitled to give administrative directions. A I have pointed out above, the Rajmahal ferry has been declared as a public ferry by the Government of West Bengal, and so far as this Court is concerned, it is this public ferry so declared by Government that is being dealt with, and will be affected by my decision. Naturally; I cannot make any order about any ferry plying outside my jurisdiction. The authorities responsible for leasing out of ferry, have been following a course not warranted by law. The Government has blundered into giving a direction, which turns out to be the proper and legal view of the matter. It is therefore not possible to Accede to the petitioner's application and make an order directing ,the authorities not to take recourse to a procedure which is the only procedure warranted by law. This will mean the perpetuation of something which is contrary to law, and indirectly preventing the respondents from carrying out their duties enjoined by law. This cannot be done.
16. The result is that this application must be dismissed. The Rule must be discharged. All interim orders must stand vacated. But I make no order as to costs.