Narayanapur Ghat Chitouni Navik Samittee Vs. State of Bihar and ors. - Court Judgment

Excerpt:
(a) settlement of ferry - policy decision of government for--implemented by recourse of auction--person offering highest bid--granted right to run ferry--this settlement can be challenged on ground of arbitrariness or malafide or contravention of law or guide lines--in absence of any such ground--such settlement cannot be challenged by person who did not even participate in the auction. [policy decision to run farry--taken by government--can be challenged only on certain grounds].(b) constitution of india, article 226 - writ petition--filed by a, seeking mandamus and relief for b--no relief can be given unless b is made a party. [writ petition--locus standi and relief sought for others--maintainability].(c) industrial disputes act, 1947 section 2(j) - policy decision taken by government with regard to run farry--even if ferry is taken to be 'industry' within the meaning of section 2(j) - relief of reinstatement cannot be given. [policy decision to run farry--relief based on plea of 'industry'--sustainability of]. - - 2. having heard the counsel for the parties, we are satisfied that it is not necessary to decide the said question in c. it appears that various authorities recommended in different manners as to whether the ferry in question should run departmentally or by settlement thereof upon holding auction as allegedly the state was incurring loss. s.b. sinha, n. pandey and shashank k. singh, jj.1. this application along with c.w.j.c. no. 7440 of 1988 has been placed before us for considering the question as to whether the full bench decision of this court in ranjit singh v. state of bihar, reported in 1987 p.lj.r. 230 has correctly been decided or not.2. having heard the counsel for the parties, we are satisfied that it is not necessary to decide the said question in c.w.j.c. no. 1146 of 1989 and, therefore, we are disposing of the matter by this judgment.3. petitioner claims itself to be a co-operative society. according to the petitioner, a policy decision was taken on 27.3.1971 by the state of bihar to run narayanpur ghat chitouni ferry (hereinafter referred to as 'the said ferry, which is contained in annexure-1 to the writ application. pursuant to the said policy decision 16 persons were appointed as boatmen. it appears that various authorities recommended in different manners as to whether the ferry in question should run departmentally or by settlement thereof upon holding auction as allegedly the state was incurring loss. on 26.12.1988, the principal secretary to the chief minister informed the secretary, department of revenue and land reforms that the ferry in question be run by granting settlement. pursuant to the said decision, the collector, west champaran, bettiah published a notice dated 19.12.1988 intimating the concerned persons for participating in the bid scheduled to be held on 31.12.1988 for settlement of the aforementioned ferry for a fixed term of three months. a settlement was made for a period of three months in favour of respondent no. 7. admittedly at that point of time, services of boatmen were terminated petitioner thereafter filed an application on 10.1.1989 asking respondent no.1 to see that the ferry be continued to be run by the state of bihar. it appears further from the counter-affidavit filed on behalf of the state that despite an opportunity granted to the petitioner-society to form a society in order to enable the state to grant settlement in his favour, no step was taken pursuant thereto. it further appears that on 28.1.1989, the petitioner allegedly swore an affidavit before the collector of the district to the effect that the settlement be made in favour of the said society. however, it appears that prior to making of the said offer, the auction in respect of the said ferry had already been held wherein respondent no. 8 became the highest bidder.4. it also now transpires from the records that a registered instrument had also been executed in favour of respondent no. 8 on 2.2.1989. this writ application, however was filed on 25.1.1989, wherein the petition claims, inter alia the following reliefs :that this application has been filed for issuance of a writ in the nature of mandamus or any other appropriate writ/writs commanding the respondents to reinstate the worked man working in narayanpur ghat belonging to the district of bettiah, west champaran as boatman for last eighteen years in pursuant to a government notification dated 27.3.1971 contained in memo no. 8 (52-5/71) and regularise the services of the workman and further for quashing an order dated 31.12.1988 passed by respondent no. 4, collector, bettiah by which the aforesaid narayanpur ghat was settled for negligation with one sri radheshyam dubey in pursuant to the order dated 19.12.1988 passed by respondent no. 4 by which 58 workmen working for last eighteen years without any interruption have been deprived of their services without any notice and as such have been deprived of their livelihood and according lite.5. by an interim order dated 15-4-1989 a division bench of this court passed the following order:until further order, no settlement shall be granted to the newly added respondent, but the state government shall continue to run the ferry.put up along with the record of c.w.j.c. no. 7440 of 1988'. thereafter this application was admitted to hearing on 24.5.1989 by a larger bench to consider the correctness or otherwise of the judgment of this court in ranjit singh v. the state of bihar, reported in 1987 p.lj.r. 230. the matter was thereafter referred to the full bench and by an order dated 14.3.1990 this court observed as follows:heard at some length, . incourse of the respective arguments, while learned counsel for the petitioner on the one hand and learned counsel for the respondents on the other hand, have contested each others contentions they have all submitted that the full bench judgment of this court in ranjit singh v. the state of bihar 1987 p.l.j.r. 230 has not laid down the correct law in one or the other aspect of the provisions in the bengal ferries act and the bihar land reforms act. we are of the opinion that without a reconsideration of the said full bench judgment and the law stated therein by a larger bench the controversy cannot be settled. since we are a bench of concurrent jurisdiction, we do not think it appropriate to enter into the correctness or otherwise of the views expressed in the said case.learned counsel for respondent no. 8 has pressed once again his application for vacating the stay granted by this court. when this case was heard for admission on 15-4-1989 the court ordered :.until further order, no settlement shall be granted to the newly added respondent, but the state government shall continue to run the ferry.the said order was reiterated on 24.5.1989 and on 26.7.1989 this court said :since this application involves quite a few questions of public importance and disposal of (he petition of stay shall require adjudication of at least of some of the issues which have to be finally decided in the writ application, we are not inclined to vacate the interim order of stay.having heard learned counsel for the parties on the question of stay we are of the view that it will be against the public interest to vacate the interim order of stay at this stage. we, however, reiterate the order of this court dated 26.7.1989 to the effect that an earlier hearing of this application may be in the interest of justice. it shall be open to the parties to move hon'ble the chief justice for fixing an early date of hearing.learned counsel for the petitioner, accordingly may file two additional paper books for the use of hon'ble judges.the question as to whether any injury is caused to either party on account of the interim order of stay passed by this court or not and as to whether any party requires to be compensated by the other party or not shall be considered by the bench hearing this application.let this case, accordingly, be referred to a larger bench.however, now it transpires that this matter has been referred to this bench again without placing the matter before a larger bench.6. at the out-set, sri k.n. choubey, learned counsel appearing on behalf of respondent no. 8 raised two preliminary objection to the effect that the petitioner has no locus standi to maintain this writ application and in any event the correctness or otherwise of the decision of the full bench in ranjit singh case (supra) need not to be decided in this case.7. learned counsel appearing on behalf of the petitioner, however, submitted that in terms of the provisions of bengal ferries act, 1885 (hereinafter referred to as 'the said act'), a private ferry belonging to the landlord would also be the ferry within the meaning thereof and thus, no settlement thereof could be made by the collector. it was further submitted that in any event the services of the concerned workmen (who are not the petitioners in this writ application) should have been regularised in view of the fact that they had been working as boatmen under the state of bihar for a period of much more than 240 days.8. in our opinion, if we accept the contention of the learned counsel for the petitioner that despite vesting of ferry in question in the state of bihar, the same would continue to be a private ferry within the meaning of the said act, there does not exist a provision laying down the procedure for settlement of such ferry in terms of the said act. in fact it is not for us to comprehend that at the time when the said act was enacted the legislature could not have considered that the state of bihar after 65 years shall enact bihar land reforms act, 1950.9. in this view of the matter even assuming that the ferry in question is a private ferry within the meaning of the provisions of the said act, it, in our opinion, could be managed by the state of bihar, in any manner either departmentally or by granting settlement thereof. even if the contention of the learned counsel for the petitioner is accepted that such ferry in question is of government under the provisions of the bihar land reforms act, the result, in our opinion, would be same inasmuch as even under the provisions of the said act and the instructions issued by the state of bihar from time to time, the state has the jurisdiction to take a policy decision to run the ferry in question by granting settlement to others. such a settlement, therefore, can be challenged on the ground of arbitrariness or malafide or on the ground that the same contravenes the provisions of law or guidelines/circular issued by the state of bihar in that regard.10. admittedly, the petitioner which claims itself to he a society did not participate in auction. it merely made an offer after the auction has been held, which the collector was not bound to accept. no other illegality or procedural irregularity has been pointed out for setting aside the auction held by the collector in favour of respondent no. 8.11. in this view of the matter, in our opinion, the contention of the learned counsel for the petitioner even if it be accepted to be correct, no relief with regard to issuance of an appropriate writ can be granted to it by quashing the aforementioned settlement made in its favour by this court. so far the question with regard to issuance of a writ of or in the nature of mandamus directing the state to regularise the services of the concerned workmen is concerned, we may mention that the said workmen is not party in this writ application. the petitioner has no locus standi to maintain the writ petition on their behalf, as the question that the services of the said workmen has not rightly been terminated will effect the individual workmen.12. we are informed at the bar that the concerned boatmen have filed separate writ application being c.w.j.c. no. 12122 of 1993, which has already been disposed of. in this view of the matter too we cannot give any direction upon the respondents to regularise the services of the concerned boatmen.13. in any view of the matter, in our opinion, even if it be held that the 'ferry' is industry within the meaning of section 2(j) of the industrial dispute act, such a grievance can only be raised by the concerned workman, the concerned boatmen could not have been directed to be re-instated as the state has taken a policy decision that it would not run the ferry in question departmentally. we may, however notice that in the counter-affidavit it has been contended that the concerned boatmen were casual or part-time workmen.14. for the reasons aforementioned, we have no option but to hold that this application is not maintainable and it is dismissed as such.15. so far as the effect of the interim order dated 15-4-1989 and 24-5-1989 are concerned, we are of the opinion that keeping in view that respondent no. 8 was prohibited from operating the ferry pursuant to the interim order passed by this court, interest of justice shall be sub-served if the state of bihar is directed to refund the entire amount deposited to it by respondent no. 8 with a compound interest @ 12% per annum with six monthly rests. in the alternative if respondent no. 8 deposits a further sum of rs. three lacs apart from the entire amount which is payable in terms of the agreement as contained in annexure-a to the counter-affidavit, the state shall settle the ferry in question in favour of respondent no. 8 for a period of one year from the date of such settlement. respondent no. 8 must exercise his option within one month from today before the collector of the district.

Judgment:

S.B. Sinha, N. Pandey and Shashank K. Singh, JJ.

1. This application along with C.W.J.C. No. 7440 of 1988 has been placed before us for considering the question as to whether the Full Bench decision of this Court in Ranjit Singh v. State of Bihar, reported in 1987 P.LJ.R. 230 has correctly been decided or not.

2. Having heard the counsel for the parties, We are satisfied that it is not necessary to decide the said question in C.W.J.C. No. 1146 of 1989 and, therefore, we are disposing of the matter by this judgment.

3. Petitioner claims itself to be a co-operative society. According to the petitioner, a policy decision was taken on 27.3.1971 by the State of Bihar to run Narayanpur Ghat Chitouni Ferry (hereinafter referred to as 'the said ferry, which is contained in Annexure-1 to the writ application. Pursuant to the said policy decision 16 persons were appointed as Boatmen. It appears that various authorities recommended in different manners as to whether the ferry in question should run departmentally or by settlement thereof upon holding auction as allegedly the state was incurring loss. On 26.12.1988, the Principal secretary to the Chief Minister informed the Secretary, Department of Revenue and Land Reforms that the ferry in question be run by granting settlement. Pursuant to the said decision, the Collector, West Champaran, Bettiah published a notice dated 19.12.1988 intimating the concerned persons for participating in the bid scheduled to be held on 31.12.1988 for settlement of the aforementioned ferry for a fixed term of three months. A settlement was made for a period of three months in favour of Respondent No. 7. Admittedly at that point of time, services of Boatmen were terminated Petitioner thereafter filed an application on 10.1.1989 asking Respondent No.1 to see that the ferry be continued to be run by the State of Bihar. It appears further from the counter-affidavit filed on behalf of the state that despite an opportunity granted to the petitioner-society to form a Society in order to enable the state to grant settlement in his favour, no step was taken pursuant thereto. It further appears that on 28.1.1989, the petitioner allegedly swore an affidavit before the Collector of the district to the effect that the settlement be made in favour of the said society. However, it appears that prior to making of the said offer, the auction in respect of the said ferry had already been held wherein respondent No. 8 became the highest bidder.

4. It also now transpires from the records that a registered instrument had also been executed in favour of Respondent No. 8 on 2.2.1989. This writ application, however was filed on 25.1.1989, wherein the petition claims, inter alia the following reliefs :

That this application has been filed for issuance of a writ in the nature of mandamus or any other appropriate writ/writs commanding the respondents to reinstate the worked man working in Narayanpur Ghat belonging to the District of Bettiah, West Champaran as boatman for last eighteen years in pursuant to a Government Notification dated 27.3.1971 contained in Memo No. 8 (52-5/71) and regularise the services of the workman and further for quashing an Order dated 31.12.1988 passed by Respondent No. 4, Collector, Bettiah by which the aforesaid Narayanpur Ghat was settled for negligation with one Sri Radheshyam Dubey in pursuant to the order dated 19.12.1988 passed by Respondent No. 4 by which 58 workmen working for last eighteen years without any interruption have been deprived of their services without any notice and as such have been deprived of their livelihood and according lite.

5. By an interim order dated 15-4-1989 a Division Bench of this Court passed the following order:

Until further order, no settlement shall be granted to the newly added respondent, but the State Government shall continue to run the ferry.

Put up along with the record of C.W.J.C. No. 7440 of 1988'. Thereafter this application was admitted to hearing on 24.5.1989 by a larger Bench to consider the correctness or otherwise of the judgment of this Court in Ranjit Singh v. The State of Bihar, reported in 1987 P.LJ.R. 230. The matter was thereafter referred to the Full Bench and by an order dated 14.3.1990 this Court observed as follows:

Heard at some length, . Incourse of the respective arguments, while learned Counsel for the petitioner on the one hand and learned Counsel for the respondents on the other hand, have contested each others contentions they have all submitted that the Full Bench Judgment of this Court in Ranjit Singh v. The State of Bihar 1987 P.L.J.R. 230 has not laid down the correct law in one or the other aspect of the provisions in the Bengal Ferries Act and the Bihar Land Reforms Act. We are of the opinion that without a reconsideration of the said Full Bench Judgment and the law stated therein by a larger Bench the controversy cannot be settled. Since we are a Bench of concurrent Jurisdiction, We do not think it appropriate to enter into the correctness or otherwise of the views expressed in the said case.

Learned Counsel for respondent No. 8 has pressed once again his application for vacating the stay granted by this Court. When this case was heard for admission on 15-4-1989 the Court ordered :.

Until further order, no settlement shall be granted to the newly added respondent, but the State Government shall continue to run the ferry.

The said order was reiterated on 24.5.1989 and on 26.7.1989 this Court said :

Since this application involves quite a few questions of public importance and disposal of (he petition of stay shall require adjudication of at least of some of the issues which have to be finally decided in the writ application, we are not inclined to vacate the interim order of stay.

Having heard learned Counsel for the parties on the question of stay we are of the view that it will be against the public interest to vacate the interim order of stay at this stage. We, however, reiterate the order of this Court dated 26.7.1989 to the effect that an earlier hearing of this application may be in the interest of justice. It shall be open to the parties to move Hon'ble the Chief Justice for fixing an early date of hearing.

Learned Counsel for the petitioner, accordingly may file two additional paper books for the use of Hon'ble Judges.

The question as to whether any injury is caused to either party on account of the interim order of stay passed by this Court or not and as to whether any party requires to be compensated by the other party or not shall be considered by the Bench hearing this application.

Let this case, accordingly, be referred to a Larger Bench.

However, now it transpires that this matter has been referred to this Bench again without placing the matter before a larger Bench.

6. At the out-set, Sri K.N. Choubey, learned Counsel appearing on behalf of Respondent No. 8 raised two preliminary objection to the effect that the petitioner has no locus standi to maintain this writ application and in any event the correctness or otherwise of the decision of the Full Bench in Ranjit Singh case (Supra) need not to be decided in this case.

7. learned Counsel appearing on behalf of the petitioner, however, submitted that in terms of the provisions of Bengal Ferries Act, 1885 (hereinafter referred to as 'the said Act'), a private ferry belonging to the landlord would also be the ferry within the meaning thereof and thus, no settlement thereof could be made by the Collector. It was further submitted that in any event the services of the concerned workmen (who are not the petitioners in this writ application) should have been regularised in view of the fact that they had been working as Boatmen under the State of Bihar for a period of much more than 240 days.

8. In our opinion, if we accept the contention of the learned Counsel for the petitioner that despite vesting of ferry in question in the state of Bihar, the same would continue to be a private ferry within the meaning of the said Act, there does not exist a provision laying down the procedure for settlement of such ferry in terms of the said Act. In fact it is not for us to comprehend that at the time when the said Act was enacted the legislature could not have considered that the State of Bihar after 65 years shall enact Bihar Land Reforms Act, 1950.

9. In this view of the matter even assuming that the ferry in question is a private ferry within the meaning of the provisions of the said Act, it, in our opinion, could be managed by the State of Bihar, in any manner either departmentally or by granting settlement thereof. Even if the contention of the learned Counsel for the petitioner is accepted that such ferry in question is of Government under the provisions of the Bihar Land Reforms Act, the result, in our opinion, would be same inasmuch as even under the provisions of the said Act and the instructions issued by the State of Bihar from time to time, the State has the jurisdiction to take a policy decision to run the ferry in question by granting settlement to others. Such a settlement, therefore, can be challenged on the ground of arbitrariness or malafide or on the ground that the same contravenes the provisions of law or guidelines/circular issued by the State of Bihar in that regard.

10. Admittedly, the petitioner which claims itself to he a society did not participate in auction. It merely made an offer after the auction has been held, which the Collector was not bound to accept. No other illegality or procedural irregularity has been pointed out for setting aside the auction held by the Collector in favour of Respondent No. 8.

11. In this view of the matter, in our opinion, the contention of the learned Counsel for the petitioner even if it be accepted to be correct, no relief with regard to issuance of an appropriate writ can be granted to it by quashing the aforementioned settlement made in its favour by this Court. So far the question with regard to issuance of a writ of or in the nature of mandamus directing the state to regularise the services of the concerned workmen is concerned, we may mention that the said workmen is not party in this writ application. The petitioner has no locus standi to maintain the writ petition on their behalf, as the question that the services of the said workmen has not rightly been terminated will effect the individual workmen.

12. We are informed at the Bar that the concerned boatmen have filed separate writ application being C.W.J.C. No. 12122 of 1993, which has already been disposed of. In this view of the matter too we cannot give any direction upon the Respondents to regularise the services of the concerned boatmen.

13. In any view of the matter, in our opinion, even if it be held that the 'Ferry' is industry within the meaning of Section 2(j) of the Industrial Dispute Act, such a grievance can only be raised by the concerned workman, The concerned boatmen could not have been directed to be re-instated as the state has taken a policy decision that it would not run the ferry in question departmentally. We may, however notice that in the counter-affidavit it has been contended that the concerned boatmen were casual or part-time workmen.

14. For the reasons aforementioned, we have no option but to hold that this application is not maintainable and it is dismissed as such.

15. So far as the effect of the interim order dated 15-4-1989 and 24-5-1989 are concerned, We are of the opinion that keeping in view that Respondent No. 8 was prohibited from operating the ferry pursuant to the interim order passed by this Court, interest of justice shall be sub-served if the State of Bihar is directed to refund the entire amount deposited to it by respondent No. 8 with a compound interest @ 12% per annum with six monthly rests. In the alternative if Respondent No. 8 deposits a further sum of Rs. three lacs apart from the entire amount which is payable in terms of the agreement as contained in Annexure-A to the counter-affidavit, the state shall settle the ferry in question in favour of Respondent No. 8 for a period of one year from the date of such settlement. Respondent No. 8 must exercise his option within one month from today before the Collector of the district.