Vandrasi Pothanna and another vs State of Andhra Pradesh and others

Bhimasankaram, J.—The 1st petitioner, who is a contractor, doing business at Vijayawada, competed with respondents 4 and 5 at the public-auction held by the Government of the right to collect the tolls of the Krishna Perry for the year 1956-57. The bid of respondents 4 and 5 being the higher was accepted.

For the current year 1957-58 beginning with 1-4-1957 the Government, in view of the fact that very shortly, possibly before the end of the year, the Krishna barrage would be completed and the ferry therefore might be closed, decided not to hold an auction but renew the lease in favour of respondents 4 and 5 for an amount exceeding the last year''s lease amount by Rs. 1200/-.

The ferry was, until 1954, under the management of the Vijayawada Municipality and was taken over by the Government only in that year. The ferry right was being auctioned every year since then. The petitioners assert that the Government were under an obligation to auction the leasehold right and it was not open to them to renew the lease in favour of respondents 4 and 5 as they did.

In any case it is urged that the Government was bound to publish under rule 74 of the Madras Public Works Department Code their intention to adopt a different procedure.

Now, Section 12 of the Madras Canals and Ferries Act, 1890 reads thus:

The State Government or the Managing Authority shall appoint any person to collect tolls or fees payable under this Act. The collection of such tolls or of fees other than licence fees may, under such conditions as the State Government may from time to time prescribe, be leased out and in such cases the lessee and his agents and servants shall be deemed to be so appointed.

Under this provision, the State Government may either directly appoint a person to collect tolls or fees payable under the Act or lease out the collection of such tolls or of fees - in this case we are not concerned with licence fees - subject to such conditions as they may prescribe The statute does not impose any obligation upon the Government to auction the leasehold right.

On the other hand, they are entitled to appoint any person directly to make the collection. But when they lease out the right they are to do so under such conditions as they may from time to time prescribe. There is nothing In the rules either to which my attention has been drawn, which compels the Government to auction the leasehold right every year. No doubt in order that there might be no suspicion of favouritism or nepotism it would be desirable for the Government to auction the right.

But the Legislature has given them the option not to do so. If in a particular case It is established that the officer of the Government entrusted with the option exercised it dishonestly or mala fide then his action will be amenable to correction. But it Is frankly conceded by Mr. V. Venkateswarlu, the learned advocate for the petitioners at the hearing of this petition that he makes no such charge.

Reference has been made in the course of the arguments to the case of K.N. Guruswamy Vs. The State of Mysore and Others, . In that case their Lordships were dealing with the Mysore Excise Act 1901 and the Rules made there under. One of the rules prescribes that the licenses under that Act must either be sold by auction or by such other method as may be notified by the Government.

Instead of disposing of the licences by auction the Deputy Commissioner gave the contract to a particular individual. Their Lordships held that there was no notification. by the Government as prescribed by the rule that they would adopt any method other than that of auction; they pointed out that though the Government had a discretion and could act otherwise if they wished to do so, it was essential that due notice and publicity should be given of that "otherwise" method in a Government notification. Their Lordships also observed that

the Legislature has insisted that,- whenever there is a departure from the methods of auction and tender provided for in the rules, the departure must be sanctioned and that the matter cannot be left to the arbitrary discretion of some lesser authority.

But here in the present case the Legislature did not impose any such restriction and there is nothing in the rules to compel the Government to notify any departure from the method of auction which they had pursued for two years before the current year. Further in the circumstances stated in the counter-affidavit, i. e., having regard to the fact that the ferry - which is stated to be operated about a furlong from where the bridge will soon rise - might be closed at any time during the year, the Government cannot be said to have acted either arbitrarily or improperly, the contractor taking the risk of the ferry right being worth nothing thereafter.

In the special circumstances the Government cannot be said to have acted improperly, even assuming that the Government should be held compellable to auction the leasehold right under S. 12 of the Act above cited. Moreover it cannot be said that the petitioners have suffered any real injury. It is stated that if an auction had been held the petitioners could have participated in it and made much profit. But that, in my opinion, would not suffice to render this petition maintainable.

It is also stated for the Government that the bridge is likely to be completed before the end of the calendar year. Thus there would be no use even if the petitioners succeeded in this petition, because the ferry itself would not be working any longer.

The petition must, in my opinion, fail and it is accordingly dismissed with costs - Advocate''s fee Rs. 100/-