Basotev Mondal vs State of West Bengal

Bhagabati Prasad Banerjee, J.—This is an appeal against the order dated March 18, 1993, passed by the learned trial Judge dismissing the writ application under Article 226 of the Constitution of India in which only liberty was given to the Appellant-Petitioner to file a suit. The fact of the case relevant for the purposes of this appeal is that Midnapore Zilla Parishad by notice dated March 26, 1992, invited tenders for auction of Srirampur Ferry Service for a period of one year from Baisakh 1, 1399 B.s. corresponding to April 14, 1992, to Chaitra 30, 1399 B.S. corresponding ta April 13, 1993. The said auction was held for grant of settlement of Srirampur Ferry Ghat and that the Appellant/ Petitioner participated in the said tender and on the basis of which an auction was held on April 10, 1992. It also appears that the said notice inviting tenders dated March 26, 1992, was issued pursuant to judgment and order dated April 11, 1992, passed by Paritosh Kumar Mukherjee J. in CO. No. 7777(W) of 1991. The said order passed by Paritosh Kumar Mukherjee J. was affirmed by the Division Bench of this Court on April 7, 1992, passed in F.M.A.T. No. 965 of 1992.

The Appellant as well as another person participated in the said tender. The Appellant was declared highest bidder by the Midnapore Zilla Parishad authorities and the Appellant''s bid was Rs. 1,93,000 while the bid of the other bidder was Rs. 1,92,700. Accordingly, the Appellant was declared as the highest bidder and the Appellant was directed by Midnapore Zilla Parishad to deposit the entire money on the spot on that date, i.e. April 10, 1992, when the auction was held and, accordingly, the Appellant deposited the sum of Rs. 1,93,000 in cash under a money receipt.

Thereafter, on April 13, 1992, the Appellant was served with a letter dated April 10, 1992, issued by the Secretary, Midnapore Zilla. Parishad, in which the Appellant was informed that the Appellant was appointed as Izaradar of Srirampur Ferry Ghat for a period of one year from Baisakh 1, 1399 B.S. to Chaitra 30, 1399 B.S. corresponding to April 1, 1992 to April 13, 1993, respectively according to English Calendar year. In the said order it was mentioned that the Appellant would be given possession of the said ferry ghat on and from Baisakh 1, 1399 B.s. which corresponds to April 14, 1992. The rate of the toll that was prevailing in the said ferry ghat was revised by the Commissioner of Burdwan Division with effect from Baisakh 1, 1399 B.s. in pursuance of the order dated March 11, 1992, passed by a learned Single Judge of this Court in a writ proceeding and that taking advantage of the said revised rate, some interested persons created disturbances in the said ferry ghat and that apprehending disturbances the Zilla Parishad authorities intimated Sub- division-al Officer, Sabhadhipati, Panchayat Samity, Block Development Officer, Sub-divisional Police Officer and the Police authorities to extend all sorts of help to the Appellant-Petitioner so that the Appellant-Petitioner could collect the revised rate of toll approved by the Government, but nothing were done.

On April 4, 1992, i.e. Baisakh 1, 1399 B.S. the Appellant went to take physical possession of the said ferry ghat pursuant to the letter issued by the Secretary, Midnapore-Zilla Parishad dated April, 10, 1992, and at that time some people under the leadership of the unsuccessful bidder obstructed the Appellant from taking possession of the ferry service and that it is alleged that the people under the leadership of the said unsuccessful bidder and the local M.L.A. started disturbances in running the ferry service and prevented the Appellant from collecting the revised rate. Accordingly, the Appellant informed the higher authorities. It is not necessary to go into the details of this case inasmuch as the Additional District Magistrate, Midnapore, who was also Additional Executive Officer, Midnapore Zilla Parishad informed the Sub-divisional Officer, and the Sub-divisional Police Officer, Tamluk, by radiogram which is as follows:

Shri Basudev Mondal of Srirampore is the legal lessee of Zilla Parishad in respect of Srirampore Ferry Ghat for 1992-93 with effect from 14.4.92 to 13.4.93 (1399 B.S.). It has been reported that some miscreants are creating hindrance and preventing from collecting Ferry Charges (.). The same should be stopped immediately (.). Shri Basudev Mondal should be provided all necessary help in the management of the said Ferry Service (.).

The possession of the said ferry ghat was ultimately obtained by the Appellant only on June 5, 1992, and that because of this Appellant was prevented from collecting the tolls of the said ferry ghat for 53 days. It is alleged that the Zilla Parishad authorities took no effective steps to stop the hooliganism and vandalism in collecting the tolls at Srirampur Ferry Service and also did not take any step to give physical possession of the ferry service to the Appellant till June 5, 1992. The Appellant authorities also did not take any steps for rendering necessary Police help, and that because of the inaction on the part of the Respondents the Appellant had to move this Court by a writ application whereupon Ruma Pal J. passed an order on May 29, 1992, and pursuant to the order passed by Ruma Pal J. by which the Police authorities were directed to implement the order already passed by the S.D.M., Tamluk, for the purpose of rendering necessary Police assistance which was urgently required for the purpose of running the ferry service of the said ferry ghat and because of this thing that has happened the Appellant lost 53 days. It is alleged that the Appellant had to incur loss of Rs. 300 per day for three boats and that the Appellant also incurred loss by paying wages to 11 employees of the ferry ghat without any work for all these workers for 53 days. According to the Appellant, the loss incurred was Rs. 68,317 for which necessary details were disclosed in the petition.

Mr. Kashi Kanta Moitra, learned Advocate appearing on behalf of the Appellant, contended that even though the contract was for 365 days and after the contract was entered into and after the Appellant had paid the said sum of Rs. 1,93,000 for the entire years, it was the duty on the part of the Zilla Parishad authorities to hand over possession to the Appellant and that it was only because of obtaining an order from the criminal Court enforced by the writ Court. The Appellant could not get possession of 53'' days from the date of getting possession and, accordingly, the Appellant was entitled to adequate compensation or, in the alternative, the Appellant should be allowed to run 53 days more, i.e. upto June 5, 1993. Under the contract the period was to expire on April 13, 1993, and that it was further submitted that in the meantime the Zilla Parishad authorities were going on to invite tenders for the purpose of settling the said ferry ghat with effect from April 14, 1993. It was submitted by Mr. Moitra that the writ Court was competent to grant adequate compensation as the Zilla Parishad authorities were public authorities discharging the public duties and that in the facts and circumstances of the case when because of the laches and negligence on the part of the public authorities, the Appellant was deprived of realising 53 days income, the Appellant was bound to be compensated by such public authorities.

Mr. R. C. Das, learned Advocate appearing on behalf of the Respondents Nos. 2 to 5, submitted that the Appellant was not entitled to get compensation from the Zilla Parishad authorities. According to Mr. Das, suit was the only remedy for obtaining compensation. The Supreme Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, '' observed:

The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started very limited scope and suffered from material procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission to review the existing remedies for the Judicial Control of administrative acts and commissions with a view to evolving a simpler and more effective procedure. The Law Commission made their report in March 1976 (Law Com. No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies into one proceeding called Judicial review. Lord Denning explains the scope of this ''Judicial review''.

At one stroke the Courts could grant whatever relief was appropriate. Not only certiorari and mandamus but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the Applicant had to get the leave of a Judge.

The statute is phrased in flexible terms. It gives scope for development. It uses the words ''having regard to''. Those words are very indefinite. The result is that the Courts are not bound hand and foot by the previous law. They are to have regard to it so the previous law as to who are and who are not public authorities is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the Judges can develop the public law as they think best. That they have done and are doing. (See The Closing Chapter by Rt. Hon. Lord Denning, p. 122).

It was further observed at para. 21 in that judgment by the Supreme Court:

Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor D'' Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one impose by statute. It may sufficient for the. duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act, 4th ed., p. 540). We share this view. The Judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ''to reach injustice wherever it is found''. Technicalities should not come in the way of granting that relief under Act. 226. We, therefore, reject the contention urged for the Appellants on the maintainability of the writ petition.

With regard to obligation arising out of contract it is now well-settled that a State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. In this connection a reference may be made to the decision of the Supreme Court in the case of Hindustan Sugar Mills Vs. State of Rajasthan and Others, wherein the Supreme Court held that the Central Government should honour its legal obligation arising out of contract and not drive the citizen concerned to file a suit for recovery of the amount. In a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. It is also settled that in respect of the pure contracts between the parties in private law rights writ petition is not maintainable and that prerogative remedies are not available to control the activities of bodies which derive from jurisdiction solely from contract. There is a distinction to clear between rights derived from contract which are classed as private law rights and derived from public law. By public law rights, the Courts generally mean the ability to invoke the supervisory jurisdiction of the Court to ensure that public authorities perform their statutory duties and properly exercise their statutory powers. Where the contract is entered into by public authorities created by the statutes, the liabilities created under such a contract could not be avoided by such public authorities at will. In this case admittedly the Zilla Parishad is a body created under the statute ; it is discharging public duties under a statute and accordingly the contract entered into by such public authorities in the discharging of its statutory duties are amenable to writ jurisdiction. The settlement of ferry service was made specifically pursuant to the statutory provisions of the Zilla Parishad Act and, accordingly, this Court have jurisdiction over such matter. The next question is whether compensation could be awarded on the writ application. The power of this Court to grant damages as has been approved by the Supreme Court in Anadi Mukta Sadguru (Supra) '' the claim for damages included in a writ application if such claim is made against public authorities discharging public duties. It is also well-settled that the Respondent cannot take advantage of their own laches and negligence or their own wrong and cannot make the other party to suffer. In the instant case, the Zilla Parishad authorities refused to entertain the claim for damages for 53 days loss. Learned trial Judge held that the suit is the appropriate remedy. The claim made by the Appellant is undoubtedly against public authorities who are governed by the public law and in this connection observation of Lord Diplock in the case of O''Reilly v. Madman (1983) 2 A.C. 237 (285) '' is set out:

...as a general rule be contrary to public policy, and as such an abuse of the process of the Court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by Way of ordinary action and by this means to evade the provisions of Or. 53 for the protection of such authorities.

The Supreme Court also in the case of Budal Salt v. State of Bihar AIR 1983 S.C. 1986 '' held that where there was illegal detention even after acquittal in trial apart from release from illegal detention, State was required to repair damages done by its officer to the affected party, and accordingly, the Supreme Court directed payment of monetary compensation in that case. Same view was taken by the Supreme Court in the case of Sastian M. Mongrary v. Union of India AIR 1984 S.C. 1026 as well as in the case of Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, In M.C. Mehta and another Vs. Union of India and others, the Supreme Court held that industries engaged in hazardous or inherently dangerous activity and harm result to anyone on account of any accident in the operation of such hazardous or inherently dangerous activity, industry is liable to compensate affected persons by monetary compensation.

The right of the writ Court to grant compensation was also considered by the Supreme Court in the case of A.S. Mittal and Another Vs. State of U.P. and Others, These cases established the principles that in case of infraction of any right fundamental and/or, otherwise, the writ Court is competent to pass an order for compensation for damages done to its citizen otherwise it would amount to doing mere injustice to the citizen which the State has grossly violated. This principle holds good in case of other cases of damages caused in other spheres by public authorities discharging public duties.

Considering the rival contentions of the parties, we are of the view that the facts and circumstances of the case even though this Court have power to order payment of compensation, it is rather difficult on the part of this Court to determine the amount of damages suffered for which the Appellant was entitled to get compensation. Even if the case is decided by the civil Court, the civil Court would also be handicapped as to quantum of damages to be awarded in the facts and circumstances of the case. Because of the difficulties we are of the view that the problem before us could be solved by simply directing the contractual period to extend for another period of 53 days which was lost by the Appellant because of the inaction on the part of the Respondents and that this would adequately compensate the 53 days'' loss of income and damages. The Respondent Zilla Parishad realised the entire sum of Rs. 1,93,000 for whole of the year but allowed to run the said ferry ghat 53 days short of one year.

Accordingly, we are of the view that the learned trial Judge was wrong in dismissing the writ application summarily and directing the Appellant to file a suit for recovery of damages in the facts and circumstances of the case when admittedly the Appellant lost clear 53 days'' income and suffered damages for all these days for no fault of the Appellant and that the Respondents cannot take advantage of their own wrong and cannot take such a stand. It is the duty on the part of the Respondents to act fairly and reasonably as a public authority discharging public duties in accordance with statutory provisions. Accordingly, the Respondents are directed to allow the Appellant Petitioner to continue to realise the tolls of the ferry ghat under the contract upto June 5, 1993, and that the Respondents authorities would be at liberty to invite tenders for settling the said ferry ghat only with effect from June 6, 1993. The order of the learned trial Judge dated March 18, 1993, is set aside. The appeal is accordingly allowed. There will be no order as to costs.

Let a xerox copy of this judgment be given to the learned Advocates for the parties on usual undertaking.

R. Bhattacharyya, J.: I agree.