Dharmeswar Kalita vs Ahmed and Others

G. Mehrotra, J.—This is a petition under Article 226 of the Constitution. The facts arc that the tolls of Kakila-mukh-Neamati-Kamalabari Ferry were put to public auction on the 22nd March 1961 with a view to let it out for the year 1961-62. The petitioner Dharmeswar Kalita offered the highest bid of Rs. 61,400/-. The auction sale was conducted by Sri A. Ahmed, Additional Deputy Commissioner, Sibsagar who has been impleaded as opposite party No. 1 to the present petition. The petitioner after his bid had been accepted by the Additional Deputy Commissioner (hereinafter called ''the conducting officer'') deposited the requisite money as prescribed under the rules.

The conducting officer sent the proposal for acceptance of the petitioner''s bid to the Chief Engineer who is impleaded as respondent No. 2 in the present petition, for approval. The Chief Engineer did not approve of the settlement with the petitioner and ordered settlement with one Shankha-dhar Bora who has been impleaded as respondent No. 3 in the present petition, at Rs. 61,300/-. The petitioner has filed as annexure B to his affidavit, a copy of the telegram purported to have been sent by the Chief Engineer on the 24th April 1961: to the Executive Engineer, Jorhat intimating to him that the offer of Shankhadhar Bora for Rs. 61,300/-has been accepted and that the lcase should be executed in his favour after he has deposited the necessary security.

A counter-affidavit has been filed on behalf of respondent No. 3 and Anr. by respondent No. 2 the Chief Engineer. According to the counter-affidavit filed by the Chief Engineer the ferry was put up for auction for eleven months from 1st May 1961 to 31st March 1962. It is stated in the counter-affidavit that the settlement was made with the respondent No. 3 in accordance with Section 8 of the Northern India Ferries Act, 1878 (hereinafter called ''the Act'') read with Rs. 19, 19 (a) and 19 (b) of the Rules framed under the Northern India Ferries Act (hereinafter called ''the Rules'').

It is stated in paragraph 6 of the counter-affidavit filed by the Chief Engineer that on the 24th April 1961 he passed the order giving reasons why he could not approve the proposal for settlement with the petitioner and directed that the settlement'' be made with respondent No. 3. A copy of the said order is submitted herewith as annexure I, of his affidavit.

The present petition under Article 226 of the Constitution has been filed for issue of a writ or a direction to the opposite parties to show cause why the order of settlement by the Chief Engineer should not be set aside and after hearing the par-ties to make the rule absolute. The remedy provided under Article 226 of the Constitution is an extra-ordinary remedy available to a citizen and it is essential that the direction or the relief which the petitioner is seeking should be clearly and specifically mentioned in the petition.

A general prayer that a writ in the nature of certiorari or mandamus be issued as against the opposite parties calling upon them to show cause why the order complained of should not be set aside, to my mind, does not conform to the requirement of the rules of this court. It is necessary that the direction which the petitioner prays for should be specifically mentioned in the relief.

It is true that the direction which the petitioner on the facts of the case is entitled to, will not be refused to him on the ground that he has not specifically asked for a particular direction, but the Constitution has been invoked for over ten years now and it is time that the litigants should realise that this extra-ordinary jurisdiction of the court requires that the prayer should be specifically set out in the petition.

The question which falls for consideration having regard to the relief claimed by the petitioner that the order of the settlement by the Chief Engineer should be set aside, is how far that order is valid.

Dr. Medhi has contended that the order is invalid as the provisions of the rules under which it is purported to have been passed are ultra vires. He has further contended that even if the provisions of the rules are held to be valid, the order is not in conformity with the provisions of the said rules. It was contended by Dr. Medhi that there was no order of the Chief Engineer under Rule 19 (b) of the rules. In the counter-affidavit the order passed by the Chief Engineer has been annexed and the contention raised by the counsel for the petitioner is that this order was prepared for the purposes of the case.

In examining the first contention of the petitioner it will be necessary to refer to some of the provisions of the Act. Section 3 of the Act defines the word ''ferry'' as including also a bridge of boats, pontoons or rafts. Section 4 gives power to the State Government from time to time to declare what ferries shall be deemed public ferries and their limitation. Section 6 provides that the immediate superintendence of every public ferry shall; except as provided in Section 7 and Section 7-A be vested in the Magistrate of the district in which such ferry is situate or in such other officer as the State Government may, from time to time, appoint by name or in virtue of his office in this behalf.

Such Magistrate or officer shall, except when the tolls at such ferry are lcased, make a I necessary arrangements for the supply of boals J or suffers Section 7 provides that any public ferry may be managed by officer or public body charged with the superintendence of the municipal arrangements of municipal areas. Section 7-A then provides that a public ferry may be directed to be managed by the authority of the District Council or the District Board. Section 8 which is the relevant section, reads as follows:

The tolls of any public terry may, from time to time, be let by public auction for in term not exceeding five years with the approval of the Commissioner, or by public auction, or otherwise than by public auction, for any term with the previous sanction of the State Government.

The lessee shall conform to the rules made under this Act for the management and control of the ferry, and may be called upon by the officer in whom the immediate superintendence of the ferry is vested, or, if the ferry is managed by a municipal or other public body u/s 7 or Section 7-A, then by that body, to give such security for Ms-good conduct and for the punctual payment of the rent as the officer or body, as the case may be, thinks fit.

When the tolls are put up to public auction, the said officer or body, as the case may be, or the officer conducting the sale on his or its behalf, may, for reasons recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the lolls from auction.

The relevant provisions of Section 12 are as follows:

Subject to the control of the State Government the Commissioner of a division, or such other officer as the State Government may, from time to time, appoint in this behalf by name or in virtue of his office, may from time to time, make rules consistent with this Act --

(a) for the control and the management of all public ferries within such division and for regulating the traffic at such ferries;

(b) for regulating the time and manner at and in which, and the terms on which, the tolls of such ferries may be let by auction, and prescribing the persons by whom auctions may be conducted;

(c) for compensating persons who have compounded for tolls payable for the use of any such ferry when such ferry has been discontinued before the expiration of the period compounded for; and

(d) generally to carry out the purposes of this Act;

and, when the tolls of a ferry have been Jet u/s 8, such Commissioner or oilier officer may from time to time (subject as aforesaid), make additional rules consistent with this Act, ....

Section 14 says that whoever uses the approach to or landing-place of a public ferry is liable to pay the toll payable for crossing such ferry.

Rules have been framed in pursuance of the power conferred u/s 12 of the Act. The rules consist of a number of parts. Part I is headed as -- "For the control and management of, and for regulating the traffic at all Government ferries other than Steam and Motor launch ferries.� The heading of Part II is as follows :

For regulating the time at which, the -manner in which the term on which, and the persons by whom, the tolls of Government ferries, major hand-driven, major power-driven, minor hand-driven or minor power-driven may be let by auction; and for collecting the rent payable for the tolls of such ferries.

Part II therefore has been enacted in pursuance of the power conferred on the authority u/s 12 (b) of the Act. It should however, be pointed out at this stage that even if the rule purports to have been framed under the particular provision of Section 12, if it comes within the ambit of the power conferred under Anr. provision of the said sec-lion the rule cannot be struck down on the ground that it purports to have been made under a particular sub-section of the section and it does not come within the ambit of that particular sub-section. Rule 13 provides that--

All Government ferries shall generally be let by public auction, provided that, for special reasons to be recorded in writing, the Executive Engineer or Sub-divisional Officer, Public Works Department, may reserve any ferry from lcase and may work it direct. Collection of tolls by departmental agency will only be resorted to when absolutely unavoidable.

Rule 14 provides as follows :

The period for which any ferry shall be lcased will be fixed by Chief Engineer, Assam and shall be exhibited in the public notice to be issued under the rules following.

Rule 16 reads as follows:

Bids for all ferries lcased for a period not exceeding five years needs the approval of the Chief Engineer, Assam. No bid for any ferry provisionally accepted by the officer conducting the sale shall be considered to be final unless it is approved by the Chief Engineer u/s 8 of the Northern India Ferries Act.

Rule 18 reads as follows :

The auction sale shall be held by the Deputy Commissioner/Sub-divisional Officer or some officer deputed by him for the purpose.

Rules 19, 19(a) and 19(b) read as follows:

The sale shall generally be by auction to the highest bidder. The Officer conducting the sale for sufficient reason recorded in writing under his hand may refuse to accept the offer of the highest bidder or any bid. The Officer shall in accepting the bid consider the following factors among Ors. --

(i) whether the bidder is a native or domicile or an outsider.

(ii) Whether the bidder has experience, of the ferry business.

(iii) Whether he has landed property in his own name within the district or State, can speak the regional language, is financially sound and of good conduct, etc.

19.(a) In accepting the first instalment of bid money from the highest bidder or any other bidder whose bid is accepted by the officer conducting the sale, the bidder shall be informed in writing in the form shown in Appendix G by the officer conducting the sale that the sale is subject to the approval'' of the Chief Engineer, Assam.

19(b) In approving of the sale the Chief Engineer shall consider among Ors. whether the officer, conducting the sale has taken into account and considered all the factors mentioned in Rule 19 above., The Chief Engineer may for reasons recorded in writing disapprove of the bid accepted by the officer conducting the sale and direct hire to settle it with any other bidder. The direction of the Chief Engineer and his decision in this respect will be final and binding on all concerned and the officer conducting the sale shall be required to act accordingly.

Rule 16 to my mind clearly lays down that no bid for any ferry will become final unless it has been approved by the Chief Engineer. Till the bid has been approved by the Chief Engineer, it only is provisionally accepted by the officer conducting the sale. Rule 19 in effect reiterates the powers given to the conducting officer u/s 8 Clause 3 of the. Act. It further lays down certain matters which have got to be taken into consideration by the conducting officer in accepting the bid. These conditions however, are not exhaustive as the language of the rule itself says that ''the following factors amongst Ors. are to be considered''.

In approving the bid sent up to die'' Chief Engineer for approval or otherwise, the Chief Engineer has also to consider amongst Ors. the conditions which are set out in 11. 19. Rule 19 (b) further provides that the Chief Engineer may for reasons recorded in writing disapprove of the bid accepted by the officer conducting the sale and direct him to settle it with any other bidder. The direction of the Chief Engineer is to be final and binding on all concerned. Rules 19 and 16 which lay down that the bid accepted by the conducting officer will only be provisional and will not be final, are, to my mind, within the ambit of the power conferred on the rule making authority u/s 12 (b) of the Act. Section 12 (b) which I have already quoted, gives power to the rule-making authority to lay down the terms on which the ferries are to be let by auction. The terms do not necessarily mean the period only.

It connotes the condition on which the settlement is to be made by public auction and one on the conditions of the public auction is that it will not be finalised till the bid has been approved by the Chief Engineer. The approval forms part, to my mind, of the entire process of auction sale and is one of the terms on which the toll is to be let by auction. The rule therefore is covered by the provisions of Section 12 of the Act. No doubt the rules cannot go beyond the provisions of the Act and that they have got to be consistent with the provisions of the Act.

If it is found that these rules are inconsistent with or repugnant to the provisions of the Act, the rules have got to be struck down. If there is a conflict between the provisions of the Act and the rules, the provisions of the Act must prevail, as the authority of the rules is derived from the Act itself. But if the rules are within the ambit of the rule-making power, they cannot be struck down simply on the ground that the Act itself does not make provision for the matter with which the rules deal.

It also cannot be doubted that the courts will be reluctant to strike down a rule which is within the competence of the rule-making authority and the courts will make every effort to reconcile the provisions of the rule to that of the Act. With these general principles in mind and having held that the rules come within the ambit of Section 12 (b) of the Act, the only question which falls for consideration is whether these rules can be said to be consistent with the provisions of the Act.

Two grounds have been urged to show that the rules are inconsistent with the provisions of the Act. Firstly it is urged Section 8, Clause 1 (I am constrain ed to call it as the first clause as the clauses are not separately numbered) does not provide that the auction is to have the approval of the Chief Engineer before it can be finally accepted and if the rules provide any such procedure and lay down any such condition that the auction will not be finalised till the bid receives the approval of the Chief Engineer, it will be deemed to be inconsistent with the provisions of the first, clause of Section 8.

Even accepting the argument of the petitioner that Section 8 does not lay down any condition that the approval of the Chief Engineer is required before the acceptance of the bid becomes final, it does not necessarily follow that the rules which lay down such a condition even if they are within the ambit of the power of the rule-making authority, will be inconsistent with the provisions of S...8. Unless there is some implied prohibition to be read in Section 8 to that effect, the rules cannot be regarded as inconsistent with Section 8 and thus ultra vires. In this view of the matter it may not be necessary to examine the rival contentions of the parties with regard to the interpretation of Section 8.

Dr. Medhi however, has contended very strenuously that Section 8 has got to be interpreted in-order to fully appreciate the point raised by him and has urged for a detailed examination of the provisions. Firstly he contends that the Chief Engineer has not only exercised his powers if refusal under Rule 19 (b), but he has also purported to exercise the power u/s 8 and thus it becomes necessary to examine whether the Chief Engineer has any such power u/s 8. Secondly he has contended that Rule 16 also lays down that no bid for any ferry provisionally accepted by the officer conducting the sale shall be considered to be final unless it is approved by the Chief Engineer u/s 8 of the Act.

It is argued from the language of Rule 16 that the power of approval which the Chief Engineer exercises under Rule 19 is not any independent power, but it is a power conferred on him u/s 8. may be that the power so exercised by the Chief Engineer is one which he purports to exercise u/s 8 or it may be that the power which is conferred under Rule 19 on him, is a power which is in consonance with the power conferred on him u/s 8. But it does not necessarily mean that the rule has been framed in the exercise of any power conferred u/s 8 and if no such power exists u/s 8, the rule is ultra vires.

On the merits however, in my opinion Section 8, Clause 1, makes the letting by public auction for a term not exceeding live years subject to the approval of the Commissioner. Grammatically it is argued by Dr. Medhi that the words ''with the approval of the Commissioner'' qualify the words ''for a term not exceeding five years''. His contention therefore, is that the approval is required for the term and not for letting. I do not think that this contention should be accepted. If the approval is required for the term, then there must be some different authority which has got power to fix the period which will be final only on the approval given by the Chief Engineer.

If the Chief Engineer himself is the authority which fixes the period then the question of any approval will be redundant. If the legislature intended in effect to lay down under this clause that the fixation of the term will be made by the Chief Engineer, it would have used a different language. It should be pointed out at this stage that the word ''Commissioner'' in Section 8 is to be substituted by the words ''Chief Engineer'', for the purpose of the present case.

Dr. Medhi''s argument is that the term is to be fixed by the officer under whose superintendence the ferry is to be settled and that has got to be approved by the Commissioner or the Chief Engineer. The contention of the other party is that the words ''with the approval of the Commissioner'' govern the entire previous sentence including the words be let by public auction.''

The other argument of Dr. Medhi is that if the interpretation put by the State is accepted, then it brings about inconsistency between the first part of this clause and the second part of this clause. The second part gives power to the State Government by previous sanction to direct the letting of the ferry by public auction for any term or otherwise. It is urged that if the period is fixed by the State Government in the exercise of its powers which is more than five years, the auction bid will not require any approval by the Chief Engineer but if the period is less than five years, it will require the approval of the Chief Engineer. Such an intention cannot be attributed to the legislature.

I do not think that any such anomally will arise. The second part of Clause 1 deals with a different contingency from the one contemplated under the first part of the clause. The second part specifies the previous sanction of the State Government to letting of ferry tolls by public auction or other-wise than by public auction, for any term. But the first part only comes into operation after the period has been fixed and the term has been sanctioned by the State Government. Thereafter when the auction takes place, it cannot be finalized (sic)It receives the approval of the Chief Engineer.

There is Anr. way of looking at the whole thing. Section 8 provides that if it is an auction for a term not exceeding five years, the approval of the Commissioner or the Chief Engineer is necessary. Rules 16 and 19 which are framed u/s 12, clearly lay down that no bid Will be final unless approved by the Chief Engineer The Chief Engineer''s approval though in cases where the auction is for a term less than five years, is necessary by virtue of Section 8 Clause 1, a similar approval is necessary in respect of all the bids by virtue of Rules 16 and 19 which have otherwise been validly enacted u/s 12(b). Thus no such astounding result is to follow if Section 8 is to be interpreted as contended for by the counsel for the State. Moreover, the intention of the legislature is to be gathered from the language and the difficulties pointed out by the petitioner cannot alter the plain meaning of the words of the statute.

Reference is also, made to the old Section 8, which has been replaced by the present section by Amendment Act of 1886. The section prior to amendment read as follows :

The tolls of any public ferry may, from time to time, be let by the public auction for such term, not exceeding five years, as the Magistrate of the District, subject to the approval of the Commissioner of the Division in which, such ferry is situated, may deem expedient.

It is contended that this section shows that the approval was to the term and not to the letting. The entire section has been recast and the language of the original section clearly shows that the section itself has pointed out the authority which had the power to fix the period, which required the approval of the Commissioner. In the pre sent section the authority is not pointed out. Obviously the intention of the legislature was to enlarge the ambit of Section 8 and to place not only the terms subject to the approval of the Commissioner but the entire letting. The period is left to be fixed by the Commissioner under Rule 14.

This interpretation has been accepted by this Court in a series of decisions which may be referred to at this stage. Jonab Fazilatdin v. Lakhinath Das, ILR (1954) 6 GAU 502 , Kailash Prosad Singh and Another Vs. Deputy Commissioner and Others, , Biswanath Singh Vs. Additional Chief Engineer (R. and B.) Wing P.W.D. and Others, and Purna Kanta Saikia Vs. State of Assam and Others, In the case reported in ILR (1954) 6 GAU 502 the tolls of a ferry was put up for auction. The highest bid of one Jonab Fazilatdin was provisionally accepted by the Sub-divisional Officer who conducted the sale. The bid sheet was sent to the Chief Engineer. The Chief Engineer forwarded the list for confirmation to the Minister-in-charge along with the petition from Anr. bidder. The order was passed by the Government directing settlement with Anr. bidder and it was that settlement which was challenged before this Court under Article 226 of the Constitution. The State counsel in defence of the action of the State Government relied upon Rule 19(c) It was urged that there was ample power in the State Government to direct settlement with any of the bidders. This contention was repelled and the peittion was allowed. Dealing with the inter pretation of Section 8 it was observed as follows at page. 505.

Section 8 regulates the manner of the letting out of ferry tolls by auction or otherwise by authorities subordinate to the Provincial Government. Letting out without auction or for a term exceeding five years are exception to the general rule. In such cases the previous sanction of the Government is necessary. The authorities competent to do the letting can do so by public auction for any term not exceeding five years under the section. Alter the auction, the approval of the Chief Engineer is necessary for the finalisation of the arrangement. This section does not deal with or describe the authorities which are charged with the: duty of letting under any part of the section. It does not divide or distribute powers between the Commissioner or the Chief Engineer on one side and the provincial Government on the other it merely lays down the manner of letting out and so far as that is concerned, a distinction is made between letting by public auction and for a term not exceeding five years and cases of letting not falling under this category. The lcase in question is for a term not exceeding five years. It requires the approval of the Chief Engineer. In cases not covered by Clause (1) of Section 8 it is the previous sanction of the Government that is needed. This must: be distinguished for subsequent approval in cases covered by the first clause which requires merely the approval of the Chief Engineer."

The view expressed in this passage is that the two parts of Clause 1 of Section 8 deal with two different categories. The first part of clause I deals with the category of the ferries which are to be let by auction for a period less than five years. The second part of clause I deals with the categories of ferries which are lcased either by auction or by private treaty or otherwise for a period exceeding five years. In the first class of cases letting is not complete unless there is a subsequent approval by the Chief Engineer. In the second category of cases the previous sanction of the State Government is required. It is further pointed out in this case that Section 8 does not deal with the persons who have got to let the ferry tolls but it lays down the procedure or the manner of letting down the ferry tolls.

The next case is reported in AIR 1959 Assam 107. In this case the question which came up for consideration was whether the power of the Chief Engineer could be delegated to the Additional Chief Engineer by a notification and it was said that it could be done. The following observation at page 108 of the report is apposite:

In the present case settlement was made for a term not exceeding five years. Therefore, under the provisions of Section 8 of the Act, approval to the settlement had to be given by the Commissioner. Under the provisions of Sections 3(1) of the Assam Commissioner''s (Transfer of Powers) Act (Assam Act 12 of 1947), by a notification dated 20-5-54, the power exercised by the Commissioner u/s 8 of the Northern India Ferries Act were transferred to the Additional Chief Engineers.

The next case is reported at page 169 of the same volume, (AIR 1959 Assam) in which it was held that the Government had the right initially u/s 8 of the Act to, make direct settlement of the right to collect tolls but once having chosen to sell the ferry by public auction it could not change its mind and adopt a new procedure which had the effect of circumventing the order of the Court.

The last case in this volume is reported at page 209 (of AIR 1959 Assam) in which it was laid down that the general principle laid down by Section 8 seems to be that for any period lesser than five years, the settlement of the tolls of any public ferry should normally be by public auction subject to the approval of the Commissioner or the Chief Engineer.

But in cases of some emergency or for special reasons, the Government might take the case out of the general rule of settlement by public auction. What is required u/s 8 is that the Government should decide earlier as to the method of the proposed settlement if they want to take the case out of the general rule and the procedure should be sanctioned by it in advance. This interpretation was given by this Court on consideration of the terms of Section 8 of the Act. This has clearly been the view of this Court that if the ferry toll is to be settled by public auction for a period less than five years, the approval of the Commissioner was required to finalise it.

Dr. Medhi contends that in none of these cases the interpretation of Section 8 directly arose for consideration. That Section 8 provides for the approval of the Chief Engineer in cases where the ferry toll is auctioned for a period less than five years was assumed in these cases. I do not think that the submission can be accepted. It is true that the point did not arise in those cases in the way in which it has arisen in the present case. But the observation are based on the interpretation of the language of Sec 8 and unless some cogent reasons are pointed out, I see no reason to differ from the view expressed in the earlier cases referred to by me.

The second line of argument is that Rules 16 and 19 are repugnant to Section 8 Clause 3 of the Act which provides that:

When the tolls are put up to public auction, the said officer or body, as the case may be, or the officer conducting the sale on his or its behalf, may, for reasons 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 contention is that if the power of acceptance of the bid has been given to the officer conducting the sale, any provision in the rule which makes that acceptance conditional on the approval by the Chief Engineer will be repugnant to Clause 3 of Section 8- It is emphasised that in this clause power has been given to the conducting officer to refuse to accept the highest bid for reasons recorded in writing and if he does not choose to do so, he is to accept the highest bid and on his acceptance the, auction becomes complete.

Any provision thus in the rule making such an acceptance conditional on the approval by the Chief Engineer, will be inconsistent. It is further pointed out that this clause shows that the settling authority is the officer conducting the sale. He has got the absolute right to let the ferry toll and this absolute power given to the conducting officer cannot be fettered by the rules. I do not think that any such inconsistency arises and to my mind there is no repugnance between Rules 16 and 19 on the one hand and Clause 3 of Section 8 on the other. Clause 3 of Section 8 only confers a power on the officer conducting the sale to refuse to accept the highest bid for reasons recorded. But if there is any other provision in the rules made within the ambit of the rule making power u/s 12(b) of the Act requiring the approval by the Chief Engineer of the acceptance by the conducting officer, such a provision could not be said to be inconsistent with the conferment of power to accept. The terms of the auction may be to the effect that the bid will be accepted by the officer conducting the sale but the acceptance at the initial stage will be provisional and it will be subject to the approval by the Chief Engineer. The provision of approval may be an additional safeguard or may be considered as an additional condition of the auction, but it cannot be regarded as repugnant to the provisions of Clause 3 of Section 8.

In this connection reference may also be made to the earlier observation of this Court which I have already mentioned in the case reported in ILR (1954) 6 Assam 502 (ibid),) in which it was said that the section only deals with the matter of letting and does not specify the authority which has to let the ferry toll. If the exercise of the power by the conducting officer is made subject to the approval by the Chief Engineer, it: cannot be said that such a provision is inconsistent with the exercise of the power itself.

There is no substance also in the contention that if the condition had to be imposed on the exercise of the power conferred on the conducting officer u/s 8 Clause 3, such a condition should necessarily have been imposed by the said clause itself. As I have already observed if the ride is otherwise within the ambit of the powers conferred on the rule making authority u/s 12, merely because it makes the exercise of power u/s 8 conditional, it cannot be said to be inconsistent with the exercise of such a power.

In the case of Nuruddin Ahmed Vs. State of Assam and Others, the matter which came up for consideration was the validity of Rule 12 of the Fishery Rules which gave unrestricted power to the State Government to make settlement. It was held by this Court that the rule was ultra vires inasmuch as it was inconsistent with the provision of Section 16 of the Land Revenue Regulation. The contention which was accepted by this Court is set out at page 50 of the report:

Mr. Ghose''s contention is that the State Government has assumed the power to settle fisheries direct and otherwise than by sale and has also invested its orders with finality. The rule to the extent that it confers on the Stale an unrestricted power to make settlements otherwise than in accordance with the rules, vests the State with arbitrary and unrestricted power and it is repugnant to Section 16 of the Land Revenue Regulation.

This argument was countered by the counsel for the State as noted in the judgment in the following term:

Mr. Lahiri has argued that the rule is not in excess of the rule making power that the GOVernment possessed. It does not conflict with any requirement of Section 16 and is therefore valid. He has also raised the question that petitioner has (sic) ''locus standi'' to challenge the vires of the rule.

This court had accepted the contention of the petitioner in that case and held that Rule 12 although it was a rule made in the exercise of the power conferred u/s 155, Land Revenue Regulation, it was repugnant to Section 16 of the Land Revenue Regulation as it gave unfettered power to the State Government to direct settlement. This view was repelled by their Lordships of the Supreme Court in the case of Ganga Ram Das Vs. Tezpur Kaibarta Co-operative Fishery Society Ltd., Dealing with the reasoning of this Court if was observed by their Lordships of the Supreme Court at page 380 of the repast as follows:

The only relevant enquiry is whether there was any rule validly enacted u/s 155 which enabled the State Government to settle the fishery otherwise than by sale by making an individual settlement thereof with Respondent No. 1 or the appellant in the manner in which it was done There is absolutely nothing in the provisions of Section 16 which would go to show what are the principles on which such rules for the acquisition of fishery right by the public or any person have to be made nor is there anything therein to indicate any policy which has to guide the State Government in the making of such rules.

The whole thing is left to the discretion of the State Government which is empowered by Section 155, inter alia, to make rules relating to the granting of the licenses and the fanning of the right to fish in fisheries proclaimed u/s 16 consists with the Regulation. No doubt the State Government would also be bound by such rules and would not be entitled to make any settlement of fishery rights unless and until there was a rule made in that behalf u/s 155. It would not be open to the State Government to contend that it had absolute property in these fishery rights and it was therefore, entitled to settle them in any manner whatever.

Unless, therefore, the action of the State Government could be justified by reference to anyrule made under Sec 155 it would not avail the appellant.

Their Lordships further held that it could not however be said that. Rule 12 was in conflict with the provisions of Section 16 of the Land Revenue Regulation. I have only referred to this case to show that the relevant consideration is whether the provisions of the ride which make the acceptance by the conducting officer provisional, can be said to be inconsistent with the provision which give power of acceptance to the conducting officer, even though such rule is within the ambit of the rule making power.

In my judgment therefore, the first part of see lion 8 clearly provides that the approval of the

Chief Engineer Is necessary for the letting of levy toll by auction for a period less than five years and even if it is accepted that no such procedure is provided under Sec 8, the rules which are made in the exercise of powers conferred u/s 12 of the Act, cannot be said to be inconsistent with Section 8 Clause 1. I am further of opinion that the rules providing for the approval by the chief Engineer of the bid accepted by the conducting other are not repugnant to or inconsistent with the provision of Clause 3 of Section 8 and thus arc not ultra vires. The rules only lay down the terms on which the auction is to be held and such a power is contained in Sections 12(b) and (d) of the Act.

The next question which however, arises is whether there has been non-compliance with the provisions of Rules 19, 19(a) and 19(b), in the present case. I have already referred to Rule 19(i). Dr. Medhi argument is two-fold in this connection, lie firstly contends that the general rule as provided under Rule 19 is that the ferry toll is to be let by public auction to the highest bidder. In exceptional cases however, power has been given to the conducting officer to accept any other bid after giving his reasons in writing. Even when approving, the Chief Engineer; Has ordinarily to accept the highest bid-But if he does not propose to approve of the bid accepted by the conducting officer, he has to record his reasons in writing, for disapproving tire said bid. In the present case no reasons were recorded in writing.

He contends that the only order which he got was the telegraphic communication sent from the Chief Engineer to the Executive Engineer. That communication contains no reasons. He has further urged that the copy of the order which is now relied upon was never supplied to him when his client applied for a certified copy of the order-Even if the copy was not supplied to him it can at the utmost create some suspicion about the existence of the order on the date when it purports to have been passed. But it does not establish that there is no order passed by the Chief Engineer giving reasons for his disapproval.

His second line of argument is that the reasons which arc embodied in the so-called order now filed by the other side, are no reasons at all for disapproval of the acceptance of the highest bid by tire conducting officer. It only gives reasons if at all, for preferring respondent No. 8 to the petitioner. He further contends that the grounds on Which the Chief Engineer could approve or disapprove a particular bid accepted by the conducting officer are to be found in Rule 19.

He has lastly contended that when the reasons are embodied in the order,'' this Court can examine the reasons and can come to its own different conclusion if they are arbitrary. If this court-comes to the conclusion that the reasons are arbitrary, they are no reasons in the, eye of law. This court can issue a mandamus directing the opposite parties to act according to the provision of Rule 19(b). Dr. Medhi also tried to contend that because, reasons have got to be recorded, the Chief Engineer when approving or disapproving of the bid acts judicially and his order is examinable by this Court under Article 226 of the Constitution and a writ of certiorari, lies against such an order.

I do not think that because, reasons are to be recorded in writing in approving or disapproving a bid, the Chief Engineer acts in a quasi-judicial capacity. It is enough to refer in this connection to the case of Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, and the Special Bench decision of this Court reported in AIR 1958 GAU 70, Harinath Das v. State of Assam-This however does not; mean that in suitable cases even an administrative order cannot be interfered with by this court. The order passed by the Chief Engineer runs as follows:

Considering the importance of the ferry the difference being not much it is considered desirable to settle with the party with experience, so it is to be settled with Shri S. Bora at Us. 61,300/-Inform accordingly that settlement with Shri Bora (a) Rs. 61,800/- has been approved.

Sd. K. Barua.

22-4-01.

The petitioner has set out certain facts in his petition to show that there is no reason to prefer respondent No. 3 to the petitioner and regard him as more experienced than the petitioner. It is however not necessary for us to examine this question and to sit as a court of appeal and inquire into the correctness of the various allegations and counter-allegations of fact.

In the case of ''Karanpura Development Co. Ltd. v. Kamakshya Narain Singh'' reported in 1956 SCR 325: ((S) AIR 1956 SC 446) the question which came up for consideration was what were the contents on which the exercise of the power by the court of wards u/s 18 of the Guardians and Wards Act could be impugned in any court of law. It was observed at page 337 of SCR): (at p. 452 of AIR) as follows:

That being the true scope of the power conferred by Section 18, what are the grounds on which the exercise of such a power could be impugned in a court of law? It can be attacked on the ground that the Court of Wards did not act bona fide and in the interests of the ward, and that its action amounted to a fraud on the power. It can also be attacked on the ground that the Court of Wards did not, in fact, apply its mind to the question whether the act was for the benefit, of the property or the advantage of the ward and that though it purported to exercise the power under Sec, 18, it did not, in fact, come to a judgment as required by the section. But where it has applied its mind and given thought to the question whether the act is for the benefit of the property or the advantage of the ward and comes to an honest judgment in the matter, its decision is not liable to be questioned on the ground that it was erroneous on the merits, or that it was reached without considering some aspects which ought to have been considered, unless the failure to consider them is of such a character as to amount to there being no exercise of judgment at all.

Their Lordships then quoted with approval the following passage from the observation of Lord Bramwell in the case of All croft v. Lord Bishop of London, reported in 1891 AC 666:

Then it was said that there was something he had considered which he ought not to have considered, and something he had not considered which he ought to have, and so he had ml not considered the whole circumstances and them only. It seems to me that this is equivalent to saying that his opinion can be reviewed. 1 am clearly of opinion it cannot be. If a man is to form an opinion and his opinion is to govern, he must form it himself on such reasons and grounds as seem good to him.

Lord Herschell observed in the same case as follows:

It is impossible to read the Bishop''s statement without seeing that he has honestly considered what appeared to him to be all the circumstances bearing on the question whether the proceedings should be allowed to go on. That being so, it is not for your Lordships, on this application for a mandamus, to consider whether the bishop''s reasons are good or bad; whether they ought or ought not to have led him to form the opinion he did.

Reliance was placed by Dr. Medhi on the following observations of this Court in the case reported in AIR 1959 Assam 107 at page 108:

The obvious reason behind this rule, is that the officer conducting the sale has to take into account certain specific matters, and the Chief Engineer when giving his approval or disapproval to the sale, has also to apply his mind to those very considerations. If lie intends to reject the highest bid, he must place his reasons for so doing on the record. It is not a discretion to be exercised arbitrarily. It would be against public policy to allow any such arbitrary discretion to the Chief Engineer. If the reasons are recorded by the Chief Engineer, they may be examined by this Court under Article 226 of the Constitution.

In the present case, it is conceded that there are no reasons recorded in writing by the Additional Chief Engineer and the only writing is a telegram which was sent by the Additional Chief Engineer to the Executive Engineer, Tezpur Division. That, in our opinion, is not a compliance with the provisions of Rule 19(b) and cannot be said to be recording reasons for disapproval of the bid accepted by the officer conducting the sale. Apart from this rule, Section 8 of Act 17 of 1878 also points to the same conclusion.

These observations do not lay down that this Court under Article 226 of the Constitution has to examine the reasons if recorded in writing by the Chief Engineer, as a court of appeal and come to its own conclusion whether the reasons are, erroneous or correct. What these observations mean is that the discretion which the Chief Engineer exercises under Rule 19(b) of the rules cannot be exercised arbitrarily and when the reasons are recorded, they can be examined by this Court in order to decide whether the exercise of the discretion by the Chief Engineer can be said to be arbitrary, or, in other words, it can be said as if he has given no reasons and that he has not considered all the relevant materials which are necessary for him to consider before he is exercising his discretion under the aforesaid rule.

For that limited purpose the reasons are examinable. As I have already referred to the observations of their Lordships of the Supreme Court, this Court can issue mandamus directing the opposite parties not to give effect even to the administrative decisions provided this Court comes to the conclusion that the exercise of the discretion is beyond the provisions of the rule under which it is purported to have been exercised or that it can be said to be no exercise of discretion at all or that it is arbitrary, or that it has been exercised by an authority other than the one empowered to do so.

After carefully reading the order passed by the Chief Engineer, I am of opinion that it does not embody the reasons which he is required to give under the provisions of Rule 19(b). As I have already indicated, Rule 19(b) requires the Chief Engineer to give reasons for disapproving a particular bid accepted by the conducting officer and not to decide the respective merits of the bidders and then make its own preference. It is also clear that all the necessary factors which have got to be considered by the Chief Engineer before disapproving a particular bid have also not been considered by him. The order appears to be arbitrary and it was no exercise of the discretion at all by the Chief Engineer.

It was further contended by Dr. Medhi, that the Rule 19(b) which lays down that after disapproving any particular bid the Chief Engineer can direct settlement with any of the bidders is ultra vires inasmuch as it confers a power of settlement on the Chief Engineer though the Act has conferred such a power an the conducting officer. It is further urged that this part of Rule 19(b) is against the provisions of Section 8 Clause 1 also. The mode of letting out the ferry toll has to he laid down by the Government.

The Government can by previous sanction either direct the letting out of the ferry toll by public auction or otherwise, but if under Rule 19(b) power is given to the Chief Engineer to direct settlement with any of the bidders, the Chief Engineer adopts a method of settlement at his own discretion without previous sanction of the State Government. In that view of the matter this rule is repugnant to Clause 1 of Sec 8.

Mr. Chose who appears for respondent No. 3, has contended that the power of approval is an administrative power and in exercising such an administrative power if the Chief Engineer recommends the name of some Other bidder, such a recommendation cannot be called in question by a petition under Article 226 of the Constitution. Reliance is placed on the Full Bench decision of this Court reported in AIR 1958 Assam 70. As I am inclined to hold that the order of the Chief Engineer disapproving the bid of the petitioner is erroneous, it is not necessary to examine the validity of the contentions raised by either parties on this behalf.

The State counsel has also contended that when Section 12 gives power to the rule making authority to lay down the terms of an auction, it is open to provide in a rule framed in the exercise of the power conferred u/s 12, that the final selection of the bidders for the, settlement of the ferry toll should be left with the Chief Engineer and if the rule only leaves the final settlement with the Chief Engineer, such a provision is neither inconsistent with the power conferred on the conducting officer under Clause 3 of Sec 8. nor does it lay down any mode of settlement different from the one sanctioned by the State Government. As I have already indicated, in view of my decision that the order passed by the Chief Engineer is Beyond the scope of Rule 19(b), it is not necessary to consider these matters. I am therefore of opinion that the order of the Chief Engineer disapproving the bid of the petitioner as submitted to him by the conducting officer is invalid.

Before I take up the question as to what relief the petitioner is entitled to, I might refer to Anr. case strongly relied upon by Dr. Medhi. He has referred to the case of The Government of State of Bihar and Others Vs. Ram Bharosa Singh and Another, wherein the decision of the Patna High Court has been affirmed by their Lordships of the Supreme Court. He has drawn our attention to the fact that the provision of the Bengal Ferries Act which was the subject-matter of interpretation by their Lordships of the Supreme Court is in pari materia with the provisions of the Northern India Ferries Act. Even assuming that to be correct, this case to my mind, is not at all helpful in deciding the point which has arisen before us for consideration. In this case certain ferry was notified by the District Magistrate for being let on a public auction.

It was notified that the lcase will be granted for a period of three years. Later the Magistrate withdrew the tolls from public auction as it was decided to extend the terms of the existing lcase. A fresh lcase was executed in favour of the existing lessees for a period of two years. It was this order which was challenged by the highest bided of the auction by means of a petition. It was held by their Lordships of the Supreme Court that it is no doubt true that the Magistrate is empowered to refuse to accept the highest bid and accept any other bid or even withdraw the tolls from auction, but this does not mean that the process of holding an auction and ascertaining the bids could be abandoned altogether and that it is open to the District Magistrate to extend the term indefinitely and at his sweet will and pleasure.

This case therefore, has no relevance. The power which is conferred on the conducting officer to accept any bid if exercised at the instance of some other authority, will be no exercise of the power at all by him and his discretion in these circumstances may be liable to be quashed. But if there is other valid provision of law which lays down that the exercise of the power will be conditional on approval by Anr. authority, it cannot be held that such a provision is inconsistent with the conferment of power on the conducting officer

The next question which falls for consideration is what is the relief which should be granted. Dr. Medhi contends that having held that the disapproval was not proper, it is open to this Court under Article 226 of the Constitution to direct the conducting officer to accept the highest bid. I do not think that this Court in the exercise of its powers under Article 226 of the Constitution can direct the conducting officer to exercise his powers in a particular manner, particularly when there is a valid provision requiring approval by the. Chief Engineer. Nor can this Court direct the Chief Engineer to discharge his administrative function in a particular manner. We can only direct the Chief Engineer to act according to the provision of Rule 19(b).

In the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, the matter which came up for consideration was the validity of an order passed by the Commissioner of Police, Bombay cancelling a cinema license at the instance of the Government. Their Lordships of the Supreme Court held that if the statute expressly authorised the Commissioner of Police to issue the license, it could not be exercised at the instance of the Government. Such an exercise was no exercise of the power at all and thus the order cancelling the licence was held to be invalid. While dealing with the matter of relief which could be granted their Lordships observed as follows at page 22:

"The High Court directed the Commissioner of. Police to ''withdraw the order of cancellation passed by him.'' We have held that he did not make the order and that even if he did, a direction of that sort would not lie because of the discretion vested in him by Rule 250. The following will accordingly be substituted for what the High Court has ordered:

The Commissioner of Police be directed to consider the requests made to him for cancellation of the license sanctioned by his letter dated 14-16-7-47 and, after weighing all the different aspects of the matter, and after bringing to bear his own unfettered judgment on the subject, himself to issue a definite and unambiguous order either cancelling or refusing to cancel the said license in the exercise of the absolute discretion vested in him by Rule 250 of the Rules for Licensing and Controlling Theatres and other places of Public Amusement in Bombay City, 1914.

The following observation in the case of Veerappa Pillai Vs. Raman and Raman Ltd. and Others, at page 195 are apposite:

Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.

Mr. Daphtary, who appeared for the respondent, said nothing to controvert this position. His argument was that if all along the authorities and the Government had proceeded upon a particular footing and dealt with the rights of the parties or that basis, it was not open to them afterwards to change front and give the go-by altogether to the conception of the rights of parties entertained by them till then. According to him, there was manifest injustice to his client in allowing them to do so and this was the reason which impelled the High Court to make the order which is the subject-matter of challenge in this appeal.

I would therefore, grant a mandamus to the petitioner directing the opposite parties not to give effect to the order of the Chief Engineer dated 22nd April 1961 and further direct the Chief Engineer to consider the proposal sent up by the conducting officer of the highest bidder in accordance with the provision of Rule 19(b). He would consider the conditions laid down in Rule 19 alter applying his mind to the circumstances of the case and come to his own conclusion whether the petitioner''s bid should or should not be accepted. After having considered the whole matter he will pass orders under Rule 19(b) clearly setting out the reasons for disapproving the bid accepted by the con-ducting officer.

It should be however pointed out that under the scheme of the rules ordinarily the highest bidder is entitled to settlement, It will only be for the Chief Engineer to disapprove: the highest bid if cogent and valid reasons exist. It is pointed out by Dr. Medhi that sufficient period has already expired and no useful purpose will be served by sending back the matter to the Chief Engineer but as pointed out by their Lordships in the case which I have already referred to, the discretion vests in the Chief Engineer to approve or to disapprove a particular bid and we cannot substitute our own discretion to that of the Chief Engineer. Any relief under Article 226 of the Constitution is discretionary and if at all, the difficulty pointed out by Dr. Medhi disentitles the petitioner to any relief.

The bid of the petitioner was more than that of the respondent No. 3 by Rs. 100/- only. Therefore there is no question of any loss to revenue. As regards the inconvenience to the public I do not think that any such inconvenience will be caused to the public. The respondent No. 3 was the sitting lessee and it cannot be said that any particular inconvenience will be caused to the public if the ferry toll is collected by the respondent No. 3. After having held that the Chief Engineer has not exercised his discretion properly, the only course left is to ask him to exercise his discretion again properly as indicated above. In the result I would allow this petition in the terms as indicated above.

DUTTA, J.

In my view a writ of Mandamus should be issued by this Court directing that the ferry be settled with the petitioner.

The facts of this case are briefly as follows; The Kokilanmukh-Neamati-Kamalabari ferry is a State public ferry governed by the Northern India Ferries Act of 1878 (hereinafter called the Act) and the Rules made thereunder. This ferry was put to public auction on the 22nd of March, 1961 for letting out for the year 1961-62. The petitioner gave the highest bid of Rs. 61,400/- and this was accepted by the Additional District Magistrate who conducted the auction. Thereafter the bid list was sent to the Chief Engineer for approval, but the Chief Engineer did not approve the settlement with the petitioner and directed that the ferry was to be settled with opposite party No. 3 whose bid was Rs. 61,300/- only.

The petitioner''s contention, inter alia, is that the acceptance of the bid by the Additional District Magistrate was final and no approval of the Chief Engineer was necessary under the Act. This contention is based on the interpretation of Section & of the Act. This section runs as follows:

The tolls of any public ferry may, from time to time be let by public auction for a term not exceeding five years with the approval of the Commissioner, or by public auction, or otherwise than by public auction, for any term with the previous sanction of the Provincial Government.

The lessee shall conform to the rules made under this Act for the management and control of the ferry, and may be called upon by the officer in whom the immediate superintendence of the ferry is vested, or, if the ferry is managed by a municipal or other public body u/s 7 or Section 7-A, then by that body, to give such security for his good conduct and for the punctual payment of the rent as the officer or body, as the case may be, thinks fit.

When the tolls are put up to public auction, the said officer or body, as the case may be, or the officer conducting the sale on his or its behalf, may, for reasons 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.

It may be noted here that the powers of the Commissioner under the section have been transferred to the Chief Engineer.

Dr. Medhi, appearing on behalf of the petitioner, submits the following interpretation of the first paragraph of this section. This paragraph, forms two parts. According to him, the first part means that the authority letting out the ferry is to fix the period of the lcase with the approval of the Chief Engineer provided the said period does not exceed five years. The second part of the section means that the authority letting out the ferry can let it out for any period at a public auction or otherwise with the previous sanction of the Government. There is no controversy with regard to the second part of the paragraph.

But the learned Government Advocate as well as the learned Counsel Mr. Ghose, appearing on behalf of opposite party No. 3, submits that the first part of the above paragraph means that the approval of the Chief Engineer is necessary to the settlement of a ferry with any individual in case of a lcase for not more than five years. Thus according to Dr. Medhi, the officer conducting the sale should send his acceptance of a bid to the Chief Engineer not for approving the acceptance of the bid but for approval of the period of the lcase proposed which must not exceed five years whereas according to the learned Government advocate and Mr. Ghosh approval of the Chief Engineer is necessary to the settlement itself.

It may be noted that Rules have been framed u/s 12 of the Act by the Chief Engineer, Assam on the assumption that his approval is necessary to the settlement of a ferry. Thus it has been laid down by Rule 14 that the period of the lcase will be fixed by the Chief Engineer. Rule 16 provides that bids for all ferries not exceeding five years will need the approval of the Chief Engineer. Rule 19 says that the person whose bid is accepted at the auction should be informed that the acceptance is provisional. This rule also provides that the Chief Engineer cannot only disapprove of the bid accepted by the officer conducting the sale but may also direct him to settle the ferry with any other bidder.

All these rules will, however, be inconsistent with Section 8 of the Act if the interpretation of Dr. Medhi of the said section is accepted. Mr. Ghose submits that Rules made under an Act should not be easily rejected and that a struggle should be made to give such a construction to the sections of the Act so as to bring the rules within the ambit of these sections. This is true, but at the same time it should be remembered that in that struggle such a tortuous course should not be adopted so as to evade the intention of the legislature. The present Sec, 8, of the Act was substituted for the original section by the Northern India Ferries Amendment Act, 1886. The original section ran thus:

The tolls of any public ferry may, from time to time, be let by the public auction for such term, not exceeding five years, as the Magistrate of the District, subject to the approval of the Commissioner of Division in which such ferry is situate, may deem expedient. The lessee shall conform to the rules made under this and may be called upon by the officer conducting the auction to give such security for his good conduct and for the punctual payment of the rent as such officer thinks fit.

Such officer may, for sufficient reason recorded in writing under his hand, refuse to accept the offer of the highest bidder, and may accept any other, bid, may withdraw the tolls from auction.

It is apparent that the first paragraph of the original section clearly meant that the approval of the Commissioner (now the Chief Engineer) was necessary only to the period of the lcase which could not exceed five years in any case. To my mind the intention of the legislature was not to change the approval of the period to approval of the settlement by means of the amendment. It appears that the amendment was introduced only to enable the authority letting out the ferry to let out the same for any period i.e., even for more than five years or his some manner other than public auction, with the previous sanction of the Government. Moreover, if the interpretation given by the learned Counsel for the opposite parties is accepted, there may arise an anomalous situation.

If the Government sanction a proposal to let out a ferry by public auction for more than five years the settlement made at such an auction will be final. As the first part of paragraph 1 of Section 8 will not apply to such a settlement, it will not require the approval of the Chief Engineer. So the result will be that the settlement of a ferry at a public auction for five years or less will require the approval of the Chief Engineer, whereas a settlement for more than five years will not require any such approval. In interpreting any statute the intention of the legislature should be presumed within reasonable bounds and in my view it could never be the intention of the legislature, that the settlement of a ferry for a longer term would not need the approval of the Chief Engineer whereas settlement for a shorter term would do so. Moreover Paragraph 3 of Section 8 shows that the acceptance of the bid is absolute and there is nothing in that paragraph to suggest that the acceptance is only provisional. It is argued that paragraph 3 must be read with paragraph 1 of Section 8 and that if it is done so, the presumption will follow that the acceptance of the bid at the auction is only provisional. I am unable to accept this contention.

If from paragraph 1 it was clear on the very lace of it that the settlement required the approval of the Chief Engineer, it could be said that acceptance under paragraph 3 was only provisional. This being not so, the absence of anything in paragraph 3 to show that the acceptance is Provisional, only goes to strengthen the argument that the said acceptance is absolute and not subject to any approval of the Chief Engineer.

The learned Government advocate argues that if Dr. Medhi''s interpretation is accepted it will lead to certain difficulties. He submits that a public auction can be conducted by a subordinate officer and in such a case his acceptance of a bid should not be final and hence approval by the Chief Engineer is provided- I find no force in such arguments. Section 6 of the Act provides that the superintendence of every public ferry shall be vested in the District Magistrate or such other officer as the Government may appoint.

Section 7 provides that the Government may direct that any public ferry situated within the limits of a town be managed by the officer or public body charged with the superintendence of municipal arrangements of such town. Section 7A provides that the management of a public ferry may be vested in a District Council or a District or Local Board Paragraph 3 of Section 8 provides that the sale will be conducted by the said officer or body or by somebody on his or its behalf. Therefore, the acceptance by the bid at the public auction will be an acceptance by the said officer or Board-'' In the present case the Additional District Magistrate conducted the sale on behalf of the District Magistrate.

When the Act provides that the superintendence of a public ferry is vested in the District Magistrate, or an officer appointed by the Government and when the sale is to be conducted by the District Magistrate or the said officer or somebody on his behalf, it will not be reasonable to presume that the sale will be conducted by such a subordinate officer that there will be risk if the approval of the settlement is not obtained from the Chief Engineer. Moreover; there is provision in paragraph 3 of Section 8 for the officer conducting the sale to record reasons if he does not accept the highest bid, So the legislature has taken due precaution and there will be no risk if the acceptance by an officer conducting the sale is interpreted as final.

For the above reasons I find that no approval of the Chief Engineer for settlement of a ferry with any particular individual is necessary under the Act. The Chief Engineer''s approval is necessary only for fixing the period of the lcase if the lcase is not for more than five years. A ferry can be let out for more than five years only with the previous sanction of the Government. The acceptance of a bid at a public auction is final. In this view of tine matter, the various rules that have been 1 rained for obtaining the approval of the Chief Engineer to the settlement of a ferry are to my mind invalid.

The petitioner also points out that under Rule 19(b) the Chief Engineer must record reasons for disapproving a bid accepted by the officer con-ducting the sale. It is contended that for real compliance with Rule 19(b) the reasons should be sufficient. In view of my interpretation of Section 8 of the Act it is not even necessary for me to go into this question.

It will suffice to say that when the order pass-ed by the Chief Engineer does not disclose, any valid reason for rejecting the highest bid, the order is without jurisdiction and must be sot aside. In the present case the Chief Engineer passed a laconic order rejecting the highest bid on the ground that the second bidder was a party with experience. He did not apply his mind as to whether the highest bidder had also experience. It cannot therefore be said that there was sufficient compliance with Rule 19(b) when the Chief Engineer passed his order. I

may only add that an order rejecting the highest bid affects public revenue and it should not be allowed to lapse into something which is of casual nature.

In the result therefore, the settlement of the ferry with opposite party No. 3 should be quashed and settlement should be made with the petitioner. Mandamus should be issued directing opposite parties Nos. 1 and 2 to settle the ferry accordingly.

DEKA, C. J. :

I have had the advantage of perusing the judgments prepared by my learned brOrs. and since they have taken enough pains to deal with the facts in detail, I do not consider it necessary to discuss the facts in my judgment over again.

There are two main contentions raised on behalf of the petitioner. One is that Section 8 of the Northern India Ferries Act 1878 (Act 17 of 1878), which for the sake of shortness will be hereafter referred to as the. "Act", does not provide for any approval of the Commissioner or the Chief Engineer, as it now stands, to cover individual cases of settlement. In case his interpretation is accepted, the rules framed under the Act relating to the approval of the Commissioner in the individual cases become automatically ultra vires. The second contention is that even if the rules are intra vires, Rule 19 and more particularly Rule 19(b) framed under the Act have not been complied with and the order directing settlement with the Respondent No. 3 dated 22-4-1901 passed by the Chief Engineer is bad and it should be set aside. For the purpose of easy reference, I am reproducing below the law, i.e. the relevant portion of Section 8 of the Act.

The tolls of any public ferry may, from time to time be let by public auction for a term not exceeding five years with the approval of the Commissioner, or by public auction, or otherwise can by public auction, for any term with the (sic) sanction of the State Government. * * * *

When the tolls are put up to public auction, the said officer or body, as the case may be, or the officer conducting the sale on his or its behalf may, for reasons 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 contention raised in this particular case is as to the construction of the first paragraph of Section 8 which reads: "The tolls of any public ferry may, from time to time be let by public auction for a term not exceeding five years with the approval of the Commissioner.... " Dr. Medhi for the petitioner argues that the Commissioner or the Chief Engineer to whom the power of the Commissioner has been transferred has the right of approval only in regard to the term for which the public ferry may be let by public auction and his right and the power of approval given to him do not refer to the act of letting; out to any particular bidder.

The contention on behalf of the State Government as well as Respondent No. 3 is that the approval is not confined to the term alone, but it refers to the act of letting out also. Dr. Medhi challenges this construction on two grounds. The first argument is that the second part of para 1. which speaks of the previous sanction of the State Government, makes no provision for approval by the Chief Engineer where the letting out is for a period exceeding five years, which would not have been the case if the intention of the Legislature was to have the sale approved when it was for a period even less than five years.

The second argument is that in para 3 of Section 8, which I have already quoted, the Officer or body conducting the sale or any other officer conducting the sale on his or on behalf of the body (as mentioned in Section 7 of the Act), is given the power to accept the bid, whether it is the highest bid or any other bid or to withdraw the tolls from auction. Dr. Medhi''s contention is that in this para, there is no mention about the Commissioner''s power of approval either of acceptance of the bid or as to the withdrawal of the tolls from auction. This paragraph, according to Dr. Medhi''s contention, would only go to show that the power of the officer or the body conducting the sale is complete or final as to the acceptance or the rejection of the bid or the withdrawing of the tolls from auction and any power given to the Commissioner under the Rules in derogation of this statutory provision is ultra vires.

He further argues that it is clear from this paragraph that a bid accepted by a public body or anybody on its behalf is final and there is no provision for approval by the Chief Engineer. Similarly, when the same power is exercised by an officer conducting the sale on behalf of the State Government, he must also be considered to have the same right and the acceptance need not wait till it is approved by the Chief Engineer.

The point came up for consideration in several cases before this High Court and there are at least four decisions reported in ILR (1954) 6 Assam 502; AIR 1959 Assam 107; AIR 1959 Assam 169 and AIR 1959 Assam 209. In all these cases, the first paragraph of Section 8 had been construed by Division Benches and the construction accepted was that the letting out to individual persons of any public ferry by public auction for a period of less than five years was subject to the approval of the Chief Engineer.

But, it is also a fact that this point was not directly in issue in any of these cases nor was it argued on behalf of any of the parties that that construction was not correct. It was not argued in those cases either that paragraph 3 of Section 8 would not favour that construction. It was because of its newness that the case was referred to a Special Bench for consideration as to what would be the correct interpretation of the first paragraph of Section 8 of the Act. I for myself expressed the view in AIR 1959 Assam 209 at page 210 as under:

A perusal of the Section would indicate that a public ferry has to be normally let by public auction, and when so done for a term not exceeding five years, the settlement should get the approval of the Commissioner (or the Chief Engineer by virtue of the Commissioner''s Transfer of Power Act) and this approval is chronologically subsequent to the proposed settlement by some other officer holding or conducting the sale who might be named or authorised under the rules framed u/s 12 of the Act.

But the Government is left with the power to sanction, some other course of settlement either by public auction or otherwise than by public auction for any term, namely, it might exceed the period of five years or may be for a short term. The general principle laid down by the section seems to be that for any period lesser than five years, the settlement should normally be by public auction subject to the approval of the Commissioner or the Chief Engineer, but in case of some emergency or for special reasons, the Government might take the case out of the general rule of settlement by public auction.

What is required u/s 8 is that the Government should decide earlier as to the method of the proposed settlement if they want to take the case out of the general rule and the procedure should be sanctioned by it in advance. In the present case, the settlement was for a period of six months'' and the Government indicated by its notification dated 27-8-1958 that they would accept tenders and make the settlement also. The only point, therefore, is whether the Government could grant'' settlement at their own option in any manner they liked without having it done by some other subordinate agency subject to their approval.

48 Even after consideration of the objections raised by Dr. Medhi as to the correctness of this interpretation, I prefer to adopt the same construction to the words in the statute as contained in paragraph 1 of Section 8 of the Act. In case Dr. Medhi''s contention would have been sound, namely to the effect that the approval of the Chief Engineer refers only to the term (not exceeding five, years), the sentence would have been like this "The tolls of any public ferry may, from time to time, be let out by public auction for a term not exceeding five years as may be approved by the Chief Engineer." In that case, it would be clear that the term had to be approved by the Commissioner as was contained in the section earlier to the amendment in 1886. The original section ran thus:

The tolls of any public ferry may, from time to time, be let by the public auction for such term, not exceeding five years, as the Magistrate of the District subject to the approval of the Commissioner of the Division in; which such ferry is situate, may deem expedient.

As the amended section runs counter to what was stated therein earlier, and for last seventy-five years there has been no change, -- the obvious intention seems to be that the act of letting out of the public ferry by public auction has to be done with the approval of the Chief Engineer, as contended on the part of the Respondents. Even paragraph 3 of Section 8 on which Dr. Medhi has laid much emphasis does not militate with this interpretation of the first paragraph of Section 8 in case of public ferries run under the management of the State.

In case the period alone had to be approved by the Chief Engineer, -- in advance, -- the word ''previous'' was likely to have been affixed to the word approval, as in the second part of the sentence. I am not prepared to adopt any other interpretation on mere hypothetical difficulties that are likely to arise in case this construction is put. In case we adopt the interpretation which I have given in the case of AIR 1959 Assam 209, the rules relating to the power of the Commissioner to his approval become intra vires and applicable.

In regard to the second contention raised on behalf of the petitioner, I am, however, of the opinion that the provisions of Rule 19 as well as Rule 19(b) were not respected by the Chief Engineer. It will be useful to quote both these rules:

The sale shall generally be by auction to the highest bidder. The Officer conducting the sale for sufficient reason recorded in writing under his hand may refuse to accept the offer of the highest bidder or any bid. The Officer shall in accepting the bid consider the following factors among Ors. :--

(i) Whether the bidder is a native or domicile or an outsider.

(ii) Whether the bidder has experience of the ferry business.

(iii) Whether he has landed property in his own name within the district or States, can speak the regional language, is financially sound and of good conduct, etc.

* * * * *

19(b). In approving of the sale, the Chief Engineer shall consider among Ors. whether the officer conducting the sale has taken into account and considered all the factors mentioned in Rule 19 above. The Chief Engineer may for reasons re-corded in writing disapprove of the bid accepted by the officer conducting the sale and direct him to settle it with any other bidder. The direction of the Chief Engineer and his decision in this respect will be final and binding on all concerned and the officer conducting the sale shall be required to act accordingly.

Rule 19 says that the sale shall generally be by auction to the highest bidder and the officer conducing the sale is given power to reject this bid only on assignment of sufficient reasons in writing. Rule 19(b) provides that the Chief Engineer shall consider among other things as to whether the officer conducting the sale has taken into account and considered all the factors mentioned in Rule 19 quoted above.

The Chief Engineer may only for reasons recorded in writing disapprove of the bid accepted by the officer conducting the sale and not otherwise, -- that is, he cannot exercise his powers or choice arbitrarily or capriciously. In this particular case, the pertinent order was in the form as given below:

Considering the importance of the lorry the difference being not much it is considered desirable to settle with the party with experience, so it is to be settled with Shri S. Bora at Rs. 61,300/-. Inform accordingly that settlement with Shri Bora at Rs. 61,300/- has been approved.

The order does not disclose as to why the person giving the highest bid and whose bid was accepted by the officer conducting the sale, was considered unfit to hold this settlement of the ferry. The petitioner makes it clear in his application to this Court that he had long previous experience in working of public ferries. Annexure ''C'' to this petition discloses that the petitioner was the lessee of Sadiya Saikhowa P. W. D. Ferry service for the years 1949-50 and 1950-51. He has also stated that, ho is a man of sufficient means.

There is no denial of this statement on behalf of the State Government. Respondent No. 3, who has filed Anr. affidavit, does not deny the correctness of this statement, but he says that he is not prepared to accept it. The Government was in the better know of things and since there is no denial of this averment in their counter affidavits, we must take it that the petitioner had actually plied the Sadiya-Saikhowa P W, D. Kerry Service in the Brahmaputra for the years 1949-50 and 1950-51.

The Chief Engineer does not refer to this experience of the petitioner which he presumably knew of but he points out only to the experience of Respondent No. 3. The Rule requires the Chief Engineer to give reasons for disapproving the bid accepted by the officer conducting the sale and then only, he can proceed to make Anr. choice if of course the power under the Rule would extend to give directions for settlement with some other bidder. Since the Chief Engineer failed to comply with the requirements of the Rule, the order has perforce to be set aside, on the ground that it goes counter to what is provided under Rules 19 and 19(b).

The next question, therefore, would be whether we should send the matter back to the Chief Engineer for reconsideration of the proposal afresh, as submitted by the officer conducting the sale or we should direct him to issue such instructions as is considered just and proper under the circumstances. It is patent that though the settlement was with effect from May, 1961, two months in the meantime have elapsed and the plying of the ferry would be now only for a period of nine months, and if the matter be sent back again and it is held up for some time as is likely, -- it might inconvenience the public its well as the parties.

Moreover, I am inclined to hold that there has been absence of good faith in passing the order by the Chief Engineer, since he failed to take into account the requirements of Rule 19 as well as the comparative merits of the petitioner. He failed to refer to the experience of the petitioner as a ferry-lessee but emphasised only the experience of Respondent No. 3, whose bid was the second in order. An inspection of the order sheet on which the order of the Chief Engineer was passed on the 22nd April, 1961, would go to show that the order was passed on extraneous considerations and not on the materials pertinent to Rule 19. I consider the order to be fraught with mala fides and a reference back fruitless, and dilatory.

In the circumstances of the case, I agree with my learned brOrs. that the order of settlement in favour of Respondent No. 3, should be quashed and the proper course would be, as in the opinion of Dutta, J., to direct the Chief Engineer to send instructions to settle the ferry with the petitioner.

BY THE COURT

In view of the decision of the majority, the order of the Chief Engineer dated the 22nd June, 1961 be quashed and direction be issued to Respondents 1 and 2 to settle the ferry with the highest bidder, the petitioner, at his bid of Rs. 61,400/. The rule is made absolute. Hearing fee is assessed at Rs. 200/- payable by Respondents 2 and 3 equally.

The prayer as made by Mr. Ghose appearing on behalf of Respondent No. 3 for leave to appeal to the Supreme Court is rejected. In our opinion, there is no interpretation of the Constitution as such and the prayer for leave under Article 132 of the Constitution of India cannot be entertained.