Calcutta High Court (Appellete Side)
Society Limited vs The State Of West Bengal & Ors on 24 January, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: Hon'ble Justice Shampa Sarkar
WPA 12782 of 2013
With
CAN 2 of 2017 (Old. No.CAN 10688 of 2017)
With
CAN 3 of 2020
With
CAN 4 of 2024
With
CAN 5 of 2024
Nawda Thana Ferry Service Cooperative
Society Limited
Vs
The State of West Bengal & Ors.
with
WPA 9316 of 2022
Murshidabad Patni Cooperative Society Limited
Vs
The State of West Bengal & Ors.
Mr. Shamim Ahmed,
Ms. Gulsanwara Pervin
... for the Petitioner.
(In WPA 12782 of 2013)
Mr. A. Chaudhuri
Ms. D. Banu
... for the Nadia Zilla Parishad
(In WPA 12782 of 2013)
Md. Sarwar Jahan,
Mr. Sirajul Haque Mondal
Ms. Tapati Sarkar
... for the Petitioner.
(In WPA 9316 of 2022)
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Mr. Lalit Mohan Mahata
Mr. Prasanta Bahari Mahata
...for State
Mr. Amitava Chaudhuri
Mr. N. Roy
... for the Nawda Panchayat Samity
Hearing concluded on : 08.11.2024
Judgment on : 24.01.2025
Shampa Sarkar, J.:-
1. WPA 12782 of 2013 has been filed by a society registered under the
Cooperative Societies Act (hereinafter referred to as the said society). It was
claimed that the society comprised of boatmen and all the members belonged
to the "Patni Community" (boatmen community). That unemployed local youths
belonging to the Patni/Majhi community, who were residing within the Nawda
police station, formed the society. All the members hailed from poor scheduled
caste families. It was the only society formed by hereditary patnis, within the
Nawda block.
2. The subject matter of challenge was the notice issued by the Executive
Officer, Nawda Panchayat Samiti (hereinafter referred to as the Samiti) dated
April 24, 2013. The said notice was the outcome of a resolution of the Artha
Sanstha O Parikalpana Sthayee Samiti of the Nawda Panchayat Samiti
(hereinafter referred to as the Sthayee Samiti). The Samiti had invited bids to
settle 13 ferry ghats under its control, by an auction.
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3. The society contended that those 13 ferry ghats should be settled in its
favour, on the basis of the notification No.3490-LR/IF 20/01 dated November
26, 2002, issued by the Government of West Bengal, Land and Land Reforms
Department. By the said notification Clause (iii) of Rule 281 of West Bengal
Land and Land Reforms Manual (hereinafter referred to as the said Manual)
was amended. The provision stated that, if there was only one functional
primary fishermen's cooperative society in the locality, settlement of ferry ghats
should be made with that local functional society on the basis of economic rent
determined by the collector on the basis of the 25% of the average of the net
income of preceding three years and tenders were not required to be invited.
According to the writ petitioner, the ferry ghats, namely, (i) Kanainagar
Patikbari (ii) Shibnagar Tiakata (iii) Amtala Fazil Nagar, (iv) Banchadanga
Lalnagar, (v) Narayanpur, (vi) Goghata, (vii) Kanchantala, (viii) Tungi, (ix)
Dhopapara, (x) Bally Kamra, (xi) Bally Bandha, (xii) Balia, and (xiii)
Maniknagar, which were under the control and management of the Samiti,
had been settled in favour of the said society for the past few years, in terms of
the above notification. Such practice continued till April 14, 2013. The letters
issued by the Executive Officer of the Samiti, asking the petitioner to deposit
the lease rent fixed by the Samiti, were proof of such fact. It was further
contended that by a letter dated May 14, 2012, the Executive Officer of the
Samiti informed the petitioner that the Samiti had taken a decision to settle the
ferry ghats as per the rate fixed by the Samiti and the petitioner was asked to
deposit the lease rent in the office of the Samiti. The lease in respect of the
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ferry ghats expired on and from April 15, 2013. The petitioner requested the
Sabhapati and Executive Officer of the Samiti to renew the lease and settle the
ferry ghats for the year 1420 B.S. The petitioner was assured that the
settlement would be in terms of the Land and Land Reforms Manual, 1991
(hereinafter referred to as the said Maunal).
4. It was urged that by letter dated March 25, 2008, the society requested
the Block Development Officer, Nawda Block, not to act upon the notice
inviting auction dated March 17, 2008, for settlement of the ferry ghats for the
year 2008-2009. The request was honoured. The said society asserted that
from the resolution dated February 27, 2009, it would be evident that the
samiti agreed that in terms of Rule 281 of the Manual, the society would be
entitled to settlement of ferry ghats, being the only boatman's cooperative
society in the block. According to Mr. Bikash Ranjan Bhattacharya, learned
Senior Advocate appearing for the said society, the settlement had been
renewed every year upto April, 2013. All of a sudden, a resolution was adopted
on April 19, 2013 by the Sthayee Samiti and the decision to offer the ferry
ghats by open auction was taken.
5. On April 19, 2013, the petitioner came to know that the Sthayee Samiti
had taken a decision to settle the ferry ghats by open auction and the auction
was to be held on May 3, 2013. The petitioner made a representation, which
was not entertained. A notice was issued on April 24, 2013, for open auction of
those 13 ferry ghats for the year 1420 BS. The reserve prices for each of the
ferry ghats were also notified.
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6. The moot contention of the said society in the said writ petition was that,
settlement of the ferry ghats should be in terms of the Manual. The question of
an open auction did not arise. Sthayee Samiti did not have any authority under
the law to take a decision in this regard in view of clause (iii) of Rule 281 of the
Manual. Only societies or partnership firms, comprising of local
boatmen/hereditary patnis, could be settled the ferry ghats under the said
Manual. Section 133 of the West Bengal Panchayat Act, 1973 empowered the
Panchayat Samiti to levy tolls in respect of ferries established by it or under its
management. The provisions of the Panchayat Act and the Rules did not
empower the Panchayat Samiti to settle ferry ghats. In all cases, preferences
were to be given to local boatmen's cooperative society or partnership firms on
the basis of economic rent to be determined by the Collector, being 25% of the
net income for the preceding three years.
7. The writ petition was heard by a learned Single Judge of this court. On
the first day, the State Government was asked to take specific instructions as
to whether the notification dated November 26, 2002, had any application in
the facts of the case. The said order was challenged by the said society and the
Hon'ble Division Bench directed the respondents to maintain status quo with
regard to the operation of the ferry ghats till the writ petition was taken up for
further consideration by the learned Single Judge. The appeal was disposed of.
The learned Single Judge, by order dated May 14, 2013, directed affidavits to
be exchanged and further directed that the said society would operate the ferry
ghats subject to payment of the reserved price as may be determined by the
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Panchayat Samiti. The payment was to be calculated with effect from April 15,
2013. On the basis of the said interim order, the said society continued to
operate the ferry ghats at the price which was determined in 2012-13.
8. CAN 1 of 2017 old CAN 5537 of 2014 was an application filed by the said
society for a direction upon the respondents to accept the reserved price as
determined by the Samiti in the impugned notice dated April 24, 2013, with
effect from April 15, 2014, till the disposal of the writ petition and to allow the
said society to deposit the same. The said application was dismissed by a
coordinate Bench on June 20, 2014.
9. CAN 2 of 2017 was a similar application.
10. CAN 3 of 2017 was an application by M/s. Majhi Ferry Service Center
and Anita Majhi for being added as respondents. The said CAN was not
pursued by the applicants.
11. CAN 4 of 2017 was an application filed by the Nawda Panchayat Samiti
and its officials for setting aside and/or vacating, or varying the interim order
dated May 14, 2013, which was treated as the affidavit-in-opposition of the
Samiti.
12. CAN 5 of 2017, was an application filed by the Nadia Zilla Parishad, to be
added in the proceeding. The said application was not pursued.
13. WPA 9316 of 2022 was filed by the Murshidabad Patni Cooperative
Society Limited, for a writ of mandamus commanding the respondents, their
men, agents and subordinates and each of them to settle the ferry ghats which
7
were under the control and management of the Nawda Panchayat Samiti,
through open auction.
14. The prayer was to restrain the Samiti from settling the ferry ghats in
respect of any other person or organization, without holding an open auction or
calling for tenders.
15. WPA 9316 of 2022, was disposed of by another Coordinate Bench,
directing the respondent Nos. 2, 3 and 4 therein, to hold an open auction for
settlement of the ferry ghats, strictly in accordance with law at the earliest, but
positively within a period of four weeks from the date of communication of the
order. The order was challenged before an Hon’ble Division Bench by the said
society (writ petitioners in WPA 12782 of 2013) vide MAT 1228 of 2022. The
appeal was allowed and the order of the learned Single Judge was set aside.
The Hon’ble Division Bench directed hearing of both writ petitions. By order of
this court, the said society, that is, Nawda Thana Ferry Service Cooperative
Society Ltd., was added as the respondent No.7 in WPA 9316 of 2022.
16. Both the writ petitions involved similar questions and were taken up
together.
17. Questions for determination are, whether the notification No.3490-LR/IF
20/01 dated November 26, 2002 and Rule 281 (iii) of the Land and Land
Reforms Manual, 1991, would compulsorily apply in case of settlement of ferry
ghats by a panchayat samiti and whether the ferry ghats under the control and
management of the Nawda Panchayat Samiti, should be settled in favour of the
said society, i.e., writ petitioner in WPA 12782 of 2013, or by public auction.
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18. Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate for the said
society submitted that the manual was a special piece of legislation and should
take precedence over the Panchayat Act. Article 15(4) of the Constitution of
India, permitted the State to make special provisions for the advancement of
socially and educationally backward classes of citizens or for scheduled caste
and scheduled tribes. The provision was an exception to Article 14 of the
Constitution of India. Accordingly, keeping the above provision in mind,
protection to weaker sections (hereditary patnis), were incorporated in the said
Manual by the Board of Revenue, permitting settlement of ferry ghats without
auction, in case there was a single cooperative society or a partnership firm
comprising of hereditary patnis, in a particular block or locality.
19. Mr. Bhattacharyya submitted that the said Manual came into force with
effect from, January 1, 1992. The writ petitioner in WPA 9316 of 2022, was
registered as a cooperative society only in 2021. The said society could not be
treated as one formed by hereditary patnis as contemplated under the Manual.
Rules 4 and 5 of the Manual, were referred to in support of the contention that
all orders, notifications and manuals of the State Government or of the Board
of Revenue, which were in force immediately before the commencement of the
said Manual, would stand repealed to the extent of them being repugnant to or
inconsistent with the provisions of the Manual. The savings clause was also
referred to, in support of the further contention that anything done or any
action taken in accordance with the provisions of manuals, orders or
notifications on or before the date of coming into force of the said Manual
9
would be deemed to be validly done or taken. Section 60 of the West Bengal
Land Reforms Act, 1955 conferred power to the State Government to make
Rules to carry out the purposes of the said Act. Section 60 (2) provided that the
Rules so made would have the effect as if they were incorporated under the
said Act. Mr. Bhattacharya submitted that the said Manual had statutory force
and would thus, have an overriding effect over the Panchayat Act.
20. It was further contended that the policy should be uniform. The State
Government and the Panchayat Samiti could not follow separate sets of policies
in respect of settlement of ferry ghats. If the State Government had framed a
policy with regard to settlement of ferry ghats which found its expression is a
legislation, i.e., the Manual of 1991, the same policy should be followed
uniformly by all local bodies including the respondent/Panchayat Samiti.
Section 223 of the West Bengal Panchayat Act, empowered the gram
panchayats, panchayat samitis and zilla parishads to make their own bye-laws.
The Howrah Zilla Parishad had framed its by-laws and made a provision to give
preference to local boatmen’s cooperative societies or partnership concerns,
formed by local boatmen and hereditary patnis, in the matter of settlement of
ferries.
21. Apart from Howrah Zilla Parishad, according to Mr. Bhattacharya, the
Nadia Zilla Parishad and Jhargram Zilla Parishad also followed a similar
system. Thus, no exception could be made by the Nawda Panchayat Samiti, by
deviating from the accepted norm followed by the other Zilla Parishads.
10
22. The documents annexed to the affidavit-in-opposition filed to the report
of the State Government, were relied upon to show that during the election in
2008, a list of cooperative societies within Nawda block had been prepared and
the said list would reflect that only one cooperative society namely, the writ
petitioner in WPA 12782 of 2013 was in existence. Therefore, the question of
holding an auction for settlement of the ferry ghats in Nawda block, which were
being operated by the said society, could not arise. Under the garb of an e-
auction, settlement would be made in favour of big businessmen, which was
contrary to law and violative of the constitutional mandate. The amendment of
the Constitution and the provisions relating to the three tier system of
governance, were incorporated to ensure that the income percolated to the
lowest level. The ultimate control was with the State Government. Section 20
(2) of the Panchayat Act empowered the State Government to withdraw
functions from the gram panchayats in case of any default by the gram
panchayats. The Manual, which was framed by the State Government, was
binding on all local bodies.
23. Mr. Bhattacharya submitted that even assuming that there was more
than one co-operative society comprising of hereditary patnis, but before calling
for an auction, the District Magistrate was first required to undertake a survey
as to whether other cooperative societies comprising of local boatmen and
hereditary patni were in existence within the Nawda block. The open auction
should be restricted amongst the cooperative societies or partnership firms
11
comprising of local boatmen and hereditary patnis, if there were more than one
such society or partnership firm.
24. Entry 27 of the 11th Schedule of the Constitution was specialy
emphasized by Mr. Bhattacharya to substantiate that the ultimate goal for both
the State Government and the Panchayat Samiti should be welfare of the
weaker sections of the society and such objective should be imbibed in the
process of settlement of ferry ghats. Reference was made to the decision in M.P.
Oil Extraction and Anr. Vs State of M.P. and Ors., reported in (1997) 7 SCC
592.
25. Mr. Bhattacharya prayed that the said society should be allowed to
continue to operate the ferry ghats until there was specific determination and
decision by the State Authorities/Administration, that there were more than
one cooperative society or partnership firm consisting of hereditary patnis,
within Nawda block. The question of holding an open bidding process or an
open auction/e-auction and allowing participation of all, did not arise. The
Manual prohibited settlement of ferry ghats outside the community of local
boatmen and hereditary patnis.
26. Mr. Lalit Mohan Mahata, learned Additional Government Pleader
appeared on behalf of the State of West Bengal and filed a report. The said
report was prepared by the Block Development Officer of Nawda Development
Block, who is also the executive officer of the Samiti. The report stated that 13
ferry ghats were to be settled by auction and accordingly the notification was
issued on April 24, 2013. Out of the 13 ferry ghats, two ferry ghats were shared
12
by Nadia Zilla Parishad and Murshidabad Zilla Parishad every alternate year,
in terms of Section 161 of the West Bengal Panchayat Act, 1973. For the year
2022-2023 those two ferry ghats had been settled by the Nadia Zilla Parishad
through an open auction. The said society, i.e., writ petitioner in WPA 12782 of
2013, had been operating ferry ghats on a year to year lease on the basis of
rent determined by the Samiti from 1981 to 1989, before the said Maunal had
come into force. The said society had not come into possession of the ferry
ghats by way of settlement under the said Manual, but through an auction. On
May 29, 2006, a notice for holding open auction was issued by the Executive
Officer of the Samiti for auction of 10 ferry ghats under the said Samiti for the
period between 1st Ashar, 1413 to 31st Chaitra, 1413, i.e., for the English
calendar year 2007, by fixing the lease rent of each of the 10 ferry ghats. The
auction was held. A photocopy of the said auction notice had also been
annexed to the report.
27. Mr. Mahata drew the attention of the court to the auction notice dated
March 17, 2008, issued by the Executive Officer Nawda Panchayat Samiti for
auction of 11 ferry ghats for the period 1st Baishakh 1415 to 31st Chaitra 1415,
that is, for the calendar year 2008. The lease rent of each of those ferry ghats
was also mentioned in the notice. The learned Advocate pointed out the default
committed by the said society with regard to payment of lease rent from 1989
to 2007.
28. The attention of the court was further drawn to a notice dated March 20,
2008, issued by the Executive Officer of the Samiti to the society, asking the
13
society to deposit arrear lease rent with interest, in the event the society
wanted to participate in the auction which was to be held for the year 2008.
Copies of such documents had been annexed to the report filed by the state
government. The resolution dated April 1, 2008, which was relied upon by Mr.
Bhattacharya, was also discussed in the report. The Executive Officer of the
Samiti explained the reason behind the resolution. On account of the
panchayat elections for the Bengali year 1415, it was proposed that the ferry
ghats should be leased to the said society (existing operators) at the same rate
as per the auction held in 2007, corresponding to Bengali year 1414, as it
would not be possible to hold the auction in view of the ensuing election. It was
further resolved that in future, auction would be held for settlement of the ferry
ghats, in accordance with law. The documents annexed to the report were
placed in great detail, in order to substantiate that the society had paid rent on
a year to year basis from 2009 to 2012, and none of the documents would
indicate that the ferry ghats had been settled in favour of the said society
under the provisions of Rule 281(iii) of the said Manual.
29. It was further mentioned in the said report that there were other
cooperative societies and partnership firms comprising of hereditary patnis and
the said cooperative society was not the only hereditary patni in the locality.
Applications had been received from other cooperative societies and
individuals, namely, Nawda Block Patni Ferry Services, Murshidabad Patni
Cooperative Societies Limited, Rahul Mondal, Nasiruddin Biswas, Rajab
Mondal, Sukdeb Sarkar and Safiul Islam, requesting settlement of those ferry
14
ghats in their favour. Mr. Mahata further urged before this court that the
auction notice dated April 24, 2013 which was under challenge, was in respect
of the Bengali year 1420, and the writ petition had since become infructuous.
30. Even assuming that the prayer of the society was allowed in its totality,
the said society would be only successful in getting the auction notice for the
year 2013 set aside. On the basis of an interim order, the said society
continued to run the ferry ghats at very minimum price, for years together.
Several defaults were committed. There was huge loss of revenue. The business
had become a monopoly of the said society. By virtue of the interim order
passed by a learned Single Judge, the said society had practically managed to
control those 11 ferry ghats, without having any legal right to prevent public
auction.
31. According to Mr. Mahata, e-auction was the best mechanism for
settlement of ferries, which were under the control of the panchayat Samiti, in
order to ensure transparency and maximization of revenue. Reference was
made to several government notifications in this regard. The Department of
Panchayats and Rural Development, had also directed that the process of e-
tendering should be introduced in case of allotment of works, schemes, etc., by
the local bodies.
32. Mr. Mahata referred to the objects and reasons behind the 73rd
Amendment of the Constitution, and the need for introduction of Part IX
thereof. Article 243 G was placed before the court along with the 11th Schedule.
Provisions of section 20, 21(m), 25, 42(b) and 47(ix) of the West Bengal
15
Panchayat Act, 1973, Rule 13 of the West Bengal Panchayat (Gram Panchayat
Accounts, Audit and Budget) Rules, 2007 and Rule 31 of the West Bengal
Panchayat (Panchayat Samiti Administration) Rules 2008, were relied upon.
Mr. Mahata prayed for dismissal of WPA 12782 of 2013.
33. Mr. Amitava Chaudhuri, learned Advocate for the panchayat samiti
submitted that the said society was running the ferry ghats by way of lease on
a year to year basis from 1981 till 1989. The grant of lease was not governed by
the provisions of Rule 281(iii) of the said Manual. The Manual came into effect
from 2002. The contention of the said society, that it was granted settlement of
the ferry ghats on the strength of the Manual, was erroneous.
34. The society defaulted in payment of the lease rent for the previous years
and a notice was issued by the Executive Officer of the Samiti, asking the said
society to pay the rent so that it could participate in the auction for the year,
2008. The document which Mr. Bhattacharya relied upon clearly indicated that
the resolution dated April 1, 2008 was adopted by the Samiti because the
auction could not be held for the Bengali year 1415, due to the Panchayat
elections and it was proposed that the existing operator shall be granted the
lease at the same rate quoted in the auction held in 2007. The resolution
clearly indicated that auction would be held for the following year. The
exceptional situation which had been mentioned in the resolution and by virtue
of which the settlement continued in favour of the society for the year 2008-
2009, did not create any vested right, entitling the society to operate the ferry
ghats for an unlimited period. Even on January 28, 2009, a notice was issued
16
to the said society, by the Executive Officer of the Samiti, asking the said
society to deposit the rent for the year 2009. The Executive Officer of the Samiti
issued the impugned notice to settle the ferry ghats by open auction. The
notice could not be given effect to in view of the interim order permitting the
society to continue to run the ferry ghats.
35. The vacating application was referred to in great detail in order to
establish that there were other hereditary patnis in the said area and the said
society was not the only cooperative society comprising of hereditary patnis.
The interim order was passed under an incorrect assumption that the society
was the only existing society comprising of hereditary patnis and that the
settlement had been made in terms of the said Manual. The arguments
advanced by Mr. Bhattacharya as well as the affirmed statement that the said
society was the only existing cooperative society comprising of hereditary
patnis, were factually incorrect.
36. Mr. Chaudhuri also submitted that e-auction was the mandate of the
Government. Settlement of any property under the control of the gram
panchayat or the panchayat samiti was to be done by an e-auction, as per the
Government notifications and that was the best mechanism for maximization of
revenue, by maintaining a transparency in the procedure. Reliance was placed
by Mr. Chaudhuri on various decisions of this court to substantiate that, this
court had, time and again held that settlement of ferry ghats under the control
of the Zilla Parishads, Gram Panchayats and Panchayat Samitis should be
done by open auction. The society was running the ferry ghats as a monopoly
17
business. The ferry ghats were settled at a nominal rate and that too several
defaults had been committed. At present, an auction would fetch much higher
lease rent than what was being paid by the said society, i.e., at the rate quoted
in the notice of 2013. That too, the said society had committed several defaults.
37. This court had directed Mr. Choudhury to file an affidavit indicating the
dues payable by the said society. An affidavit affirmed by the Sabhapati of the
said Samiti on July 22, 2024 had been filed, which indicated that a sum of
Rs.13,64,364/- was still payable by the said society. Thus, both Mr. Mahata
and Mr. Choudhury urged this court to vacate the interim order, dismiss WPA
No.12782 of 2013 and allow WPA No.9316 of 2022, by permitting the samiti to
hold an e-auction.
38. Mr. Sarwar Jahan, learned Advocate appeared for the petitioner in WPA
9316 of 2022. He submitted that e-auction was the only mechanism by which
the ferry ghats could be settled and hence, the court should vacate the interim
order passed in WPA 12782 of 2013, thereby, allowing the prayers made in
WPA 9316 of 2022.
39. Mr. Jahan relied on the definition of ‘ferry’ and “private ferries” under
Section 5 of the Bengal Ferries Act, 1885. Section 6 of the Act of 1885 was also
relied upon to show that the State Government had the power under the said
Act to declare certain ferries to be public ferries. Apart from those ferries which
were declared by the State Government under the Bengal Ferries Act of 1885
as public ferries, all other ferries were private ferries. Mr. Jahan urged that the
superintendence of every public ferry was vested with the Magistrate of the
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district in which the ferry was situated and the tolls of such public ferries
could be leased by public auction for such term as the Magistrate of the
district, in which the ferry was situated, may with the approval of the
Commissioner of the Division direct. The lessees were required to execute a
contract, setting forth the conditions on which the tolls of such ferries were to
be collected and they were also required to give security for due fulfillment. The
said Act of 1885 provided that in case of private ferries, the Commissioner of
the division could make Rules consistent with the said Act. In the case in
hand, the ferries were not declared to be public ferries under the said Act of
1885 and the Commissioner in the Division did not make any rules with regard
to these ferries. Under Section 5 of the said Act of 1885, all public and private
ferries had vested to the Government.
40. Rule 266 of the said Manual dealt with handing over of lands and
interest belonging to or at the disposal of the State Government, to the
panchayat institutions. Management of ferries, fisheries, each with water area
up to 5 acres, tanks with water area up to 5 acres and other interests had been
transferred to the panchayats as per Section 266(2) of the said Manual.
41. Rule 266 (c) of the Manual was placed before the court to assert that
tanks and interests transferred to panchayats were to be leased out to the
functional fishermen’s cooperative societies or fish production groups or self-
help groups or individuals or entrepreneurs or government undertakings of
fisheries department by a tender committee constituted as per the guidelines of
the Panchayat and Rural Development Department.
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42. According to Mr. Jahan, Rule 281 (iii) would not be applicable in the case
of settlement of ferries by the Panchayat Department. The said Rule dealt with
the mode of settlement of ferries, which were under the control of the District
Magistrate. Rule 281 (iii) could not be read in isolation to Rule 281 (i) and (ii).
43. Having heard the learned Advocates for the respective parties, two
contentions of Mr. Bhattacharya have been proven to be incorrect. The Nawda
Thana Ferry Service Cooperative Society Limited was not the only boatman’s
cooperative society or hereditary patni in the locality. There were other
boatman’s cooperative, partnership firms and individuals belonging to the
hereditary patni community. Such fishermen’s cooperative and individual
hereditary patnis had filed applications before the Samiti, seeking settlement of
the ferry ghats and offered a much higher price (lease rent). Secondly, the ferry
ghats were not settled in favour of the society by virtue of the provisions of Rule
281(iii) of the Manual, but the ferry ghats were leased out to the said society on
a year-to-year basis by public auction. Extension was given for 2008 to 2009
by adopting the provisions of Rule 281(iii), because the auction could not be
held for that year, due to the panchayat election. However, the resolution of the
Panchayat Samiti clearly reserved a right to the Samiti to hold public auction
for the following year, after the elections were over. In any event, the decision to
extend the tenure of the said society was under special circumstances. Such
decision could not take away the authority of the Panchayat Samiti to settle the
ferry ghats under its control by e-auction. The Finance Department’s
notifications to hold e-auction for settlement of any property of the government,
20
were also made applicable to the local bodies under the Panchayat
Department.
44. This court, in Joragachi Lohadaha Ferighat Yatri O Nou Paribahan
Samabay Samity Limied & Anr. Vs. State of West Bengal & Ors. decided
in W.P.A No. 26138 of 2022 held that, the Manual was applicable to the Land
and Land Reforms Department. Even if, the said manual had a statutory
flavour, the same could not compulsorily be made binding on the Panchayat
Samitis. The concept of Panchayati Raj and the incorporation of the three-tier
system of governance by the 73rd amendment of the Constitution which was
brought in 1992, was a journey towards independence of the local bodies. Part
IX of the Constitution dealt with creation, powers and functions of the
panchayats. Enormous powers had been vested with the gram panchayats
under the provisions of the Constitution. Article 243-G (b) of the Constitution
empowered the panchayats to implement schemes for economic development
and to secure social justice in matters relating to the 11th Schedule. Entry 13
of the 11th Schedule dealt with ferry ghats. The fact that the 11 ferry ghats in
question, had vested with the Panchayat Samiti and two other ferry ghats were
shared by the Murshidabad Zilla Parishad and Nadia Zilla Parishad are not in
dispute. The State Government did not have any control over them. The fact
that the settlement of the ferry ghats had been done by auction since 1981 is
available from the documents annexed to the vacating application and the
report of the State Government. The said society has not specifically denied
such contentions of the authorities. The society could not produce any
21
document, which would indicate that it was granted settlement of the ferry
ghats on the strength of Rule 281 (iii) of the Manual. On the strength of one
resolution of the Samiti, by which the Samiti had extended the settlement of
the ferry ghats in favour of the society for the year 2008-2009, as auction could
not be held due to the panchayat election, such right has been asserted. The
resolution could not have created a permanent right in favour of the said
society to continue to operate the ferry ghats at such low price, by
circumventing a proper bidding process (e-auction). This internal resolution
was the only basis for the claim of the society, for settlement of the ferry ghats
without any bidding process and at very low price.
45. The Panchayati Raj institutions existed since long. The West Bengal
Panchayat Act was promulgated in 1973, but, it was observed that the
institutions had not been able to acquire the status and dignity of viable and
responsive public bodies, due to a number of reasons, including absence of
regular elections, pronounced supersession, insufficient representation of the
weaker section, inadequate devolution of powers and lack of financial
resources. In the objects and reasons appended to the 72nd Amendment Bill
1991, which was enacted as the 73rd Amendment Act 1992, it had been
categorically mentioned that, in the light of the experience which the legislature
had in the preceding 40 years and in view of the shortcomings observed, there
was an imperative need to enshrine certain basic and essential features of the
Panchayati Raj institutions in the Constitution, not only to impart continuity to
the institutions, but also to strengthen them. Accordingly, it was proposed that
22
a new part should be added to the Constitution relating to Panchayats. The
provisions of Article 40 of the Constitution of India relating to Directive
Principle State Policy was sought to be implemented by promulgating the 73rd
Amendment Act 1992 and to ensure people’s participation in development and
democratic decentralization.
46. Devolution of powers and responsibilities on the Panchayats, regarding
preparation of plans for economic development, securing social justice and
implementation of developmental schemes were the main objectives of such
amendment. Accordingly, the Constitution of India was amended by
introducing Part IX thereto. Article 243G deals with powers and responsibilities
of the Panchayats, which is quoted below:-
243G. Powers, authority and responsibilities of Panchayats
Subject to the provisions of this Constitution the Legislature of a State
may, by law, endow the Panchayats with such powers and authority and
may be necessary to enable them to function as institutions of self-
government and such law may contain provisions for the devolution of
powers and responsibilities upon Panchayats, at the appropriate level,
subject to such conditions as may be specified therein, with respect to–
(a)the preparation of plans for economic development and social justice;
(b)the implementation of schemes for economic development and social
justice as may be entrusted to them including those in relation to the
matters listed in the Eleventh Schedule.
47. The fact that the state government had vested the control and
management of the concerned ferry ghats with the Samiti, is not in dispute.
The report of the State Government clarified the position. The Panchayat
authorities have been vested with the powers under Article 243G of the
Constitution read with the 11th Schedule, which include settlement of the ferry
23
ghats. Rule 31 of the West Bengal Panchayat (Panchayat Samiti
Administration) Rules 2008 empowers the Sthayee Samiti to deal with, manage
and control ferries assigned by the Government.
48. The Rule is quoted below:-
31. Subjects and functions assigned to different Stayee Samitis.-The
Stayee Samiti specified in the entries in column (1) of the Table
hereunder shall deal with and formulate and execute schemes relating to
the subjects specified in the corresponding entries in column (2) of the
Table.
TABLE
Artha Sanstha Unnayan O (1) Finance, (ii) Budget, (iil) Accounts,
Parikalpana Sthayee Samiti (iv) Audit,
(v) Levying of rates, fees, duties and
toll charges, (vi) Mobilisation of
resources, (vii) Administration and
establishment, (viii) Co-ordination and
monetary supervision of activi-ties of
different Sthayee Samitis including
the schemes assigned by different
departments of Government,(ix)
Preparation and implemen-tation,
monitoring and evaluation of
Panchayat Samiti plans, (x)
Employment generating programmes,
(xi) Small savings, (xii) Preparation of
resource inventory and data base of
Panchayat Samiti planning, (xiii)
Management of hat, bazaar, ferry
assigned by Government to Panchayat
Samiti, (xiv) Issue of licences on behalf
of the Panchayat Samiti, (xv)
Preparation of socio economic
database in a decentralized manner,
(xvi) Organizing and managing
training of members and functionaries
of Gram Panchayat and Panchayat
Samiti, (xvii) Any other function not
specified for any other Sthayee Samiti,
(xviii) Any other matter as may be
assigned from time to time, (xix)
Implementation of Right to
24
49. The Constitution of India and the West Bengal Panchayat Act, 1973
empower the Panchayat Samiti to establish control and manage ferry ghats,
collect tolls and maximize revenue for its best interest. These provisions are in
consonance with the constitutional mandate. The Manual cannot have an
overriding effect over the above provisions. Rule 6 of the Manual provides as
follows :-
“6. Provisions of Acts and Rules will prevail.- Provisions of this
Manual shall have effect without prejudice to any provision of an Act or
of Rule made thereunder for the time being in force, and nothing in this
Manual shall be construed to limit or abridge the operation of any
provision of such an Act or Rule.”
50. In any event, holding e-auctions will ensure maximization of revenue.
The same are being conducted in terms of Memo No. 3060FY dated June 11,
2014, issued by the Principal Secretary to the Government of West Bengal,
Finance Department, Audit Branch and Memo No. 3103-F(Y) dated July 27,
2022, issued by the Additional Chief Secretary to the Government of West
Bengal, Finance Department, Audit Branch. The Department of Panchayats
and Rural Development adopted the provisions of e-auction and e-tender by
issuing specific notifications. Thus, the Panchayat Samiti is entitled to grant
lease of immovable properties and other assets to ensure maximum profit.
51. The said Manual cannot curb the powers vested in the panchayat samitis
under the special Act and the Rules frame thereunder. The functions and
duties of the State were transferred to the local bodies. The Manual provides for
25
such transfer. The Manual cannot be made binding on the panchayat
authorities.
52. Section 20 of the West Bengal Panchayat Act, 1973 deals with
transferred duties of the gram panchayat. Certain duties of the State
Government had been transferred to the panchayats. Provisos were
incorporated to put a check on misuse of power and/or failure to perform.
53. Such transferred duties include functions which the State Government
may by order, transfer to the panchayats or entrust or devolve upon them from
time to time, subject to the condition that the State Government may withdraw
such power in case of default in performance or inability to perform. Certain
provisions were incorporated in the West Bengal Panchayat Act, 1973 bt the
West Bengal Panchayat (Third Amendment) Act, 2006. The title of the Principal
Act of 1973 was substituted by the West Bengal Panchayat (Third Amendment)
Act, 2006 in the following manner:-
“An Act to reorganize, strengthen and expand the activities of Panchayats
in rural areas of West Bengal to enable them to act as units of self-
government and to strive for socio-economic development and securing
social justice for the people and to provide for matters connected
therewith.”
54. The above discussions clearly demonstrate the independence of the
Panchayati Raj institutions to control and manage their properties including
ferry ghats which vested in them and were not notified to be public ferries.
They are not bound by the provisions of Rule 281 (iii) of the Manual.
Interpretation of the government in this case has also been in favour of
26
granting complete independence to the Panchayat Samiti with regard to
discharge of its functions within the four corners of the special statute. The
State Government has not made the Manual applicable in case of settlement of
ferries by the Panchayati Raj institutions.
55. The object of Part IX of the Constitution was to enable the units of the
self-government to function independently and in a decentralized manner, in
terms of the provisions of the Act. Other Zilla Parishads may have adopted the
provisions of Rule 281(iii) voluntarily. It was their independent choice, but the
Nawda Panchayat Samiti cannot be compelled to accept the Manual and follow
the provisions of Rule 281 (iii) of the Manual. From the very inception, the ferry
ghats were settled by way of public auction and even the said society had
participated in such auction. Moreover, Rule 281 (iii) has to be read in
harmony with Rule 281 (i) and (ii) and (iv to ix).
56. Rule 281 is quoted below :-
“281. Public ferries and non-public ferries.–i) Ferries which have
been declared as public ferries under the Bengal Ferries Act, 1885, shall
be exclusively under the control of the District Magistrate subject to the
direction of the Commissioner. These are now under the administrative
control of the Public Works Department.
Other vested and khasmahal ferries will be governed by sub-rules (ii)
to(viii) of this rule.
(ii) Procedure for settlement of ferries.-Ferries should be settled by the
District Land and Land Reforms Officer by public auction to be held at
least three months before the date from which the settlement is to have
effect.
Public auction shall remain restricted among cooperative societies or
partnership firms as conceived in rule 266A.
(iii) Concession to hereditary patnis.-Preference should be given for
settlement of ferries with local Boatmen’s Co-operative Society or
partnership concern formed of local boatman and hereditary patni. If
27
there is only one such co-operative society or partnership concern in the
locality, settlement shall be made with such co-operative society or
partnership concern on the basis of economic rent to be determined by
the Collector on the basis of 25% of the average of net income of
preceding three years and in such event no tender needs be invited.
(iv) Power to sanction settlement of ferries. –The District Land and
Land Reforms Officers are empowered to accord sanction to the
settlement of ferries with a revenue not exceeding [Rs. 10,000] in each
case and the Commissioner is empowered to confirm settlement in a
case where revenue does not exceed 4[Rs. 50,000).
(v) Forms of lease of ferries.-The lease for a ferry shall be executed in
Form 8 in Appendix IV. The lease will have to be registered.
(vi) Tolls in ferries.-Tolls, according to such rates as may from time to
time be fixed by the Collector with the approval of the Commissioner,
shall be levied by the lessee on all persons, animals, vehicles or other
things crossing the river over the ferry and not employed or transmitted
on the public services Board of Revenue may, however, by order exempt
any persons, animals, vehicles or other things from payment of such
tolls.
(vii) Table of tolls.-The table of tolls, legibly written or printed in
Bengali, and also, if the Commissioner so directs, in English shall be
affixed at some conspicuous places near the ferry by the lessee. He shall
also be bound to produce on demand a list of tolls signed by the
Collector or by an officer authorised on his behalf by the Collector.
(viii) Khutagari rights.-Khutagari rights shall be settled in the same
manner as ferries. The Khutagari right at the ferry ghat and the ferry
right should preferably be settled with the same person. If this does not
happen, the Khutagari lessee shall not realise Khutagari fees from the
lessee of the ferry for mooring the latter’s boat at the ferry ghat.
(ix) Rights of Government over beds of navigable rivers.-Government
has absolute right over channels and beds of navigable rivers and
foreshores in case of tidal rivers.”
57. A meaningful reading of Rule 281 (iii) of the Manual will indicate that the
settlement of ferries were to be made to the sole cooperative society or
partnership concerned without calling any tender on the basis of economic rent
to be determined by the Collector in respect of vested and khas mahal ferries
and the District Land and Land Reforms Officer was to discharge such
function. The Collector was the authority to determine the economic rent
28
payable. In this case, the records reveal that the rent payable by the said
society was determined by the Samiti itself. All the documents relied upon by
the said society indicate the same. The Executive Officer of the society (Block
Development Officer) had asked the said society to pay up all its dues from
time to time, failing which the said society would not be allowed to participate
in any public auction. The forms of lease, the provision for fixation of tolls, the
procedure for settlement as per the Manual, were never ever applied in respect
of the subject ferry ghats.
58. Rule 281(iii) will not have any application in this case. These are all ferry
ghats under the control and management of the Samiti. The Manual applies to
ferries under the control of State Government and which were settled by the
procedure laid down in Rule 281. Rule 281 (iii) cannot be read in isolation to
other provisions of the said Rule. The management and control of the subject
ferries had been transferred to the panchayati raj institutions and as such the
Panchayat Samiti has complete independence to follow the procedure of e-
auction for settlement of ferries. The relevant notification is quoted below:-
Government of West Bengal
Land & Land Reforms Department
Land Reforms Branch
NotificationNo. 484. Ref Dated Calcutta, the
22nd June, 1987In exercise of the power conferred by section 13 of the West Bengal Estates
Acquisition Act, 19532, (West Bengal Act I of 1954), read with rule 12 of the
West Bengal Estates Acquisition Rules, 1954 the Governor has been pleased to
order as follows :-
29
1. All the khas and vested tanks and ferries belonging to the State shall,
subject to the directions issued, or may be issued, by the Government
from time to time, be managed by the Gram Panchayats under whose
respective jurisdictions the said tanks and ferries are located. In case a
khas or vested tank or ferry falls under the jurisdiction of more than one
Gram Panchayat, the same shall be managed by the Panchayat Samity
under whose jurisdiction it falls, and in case such a tank or ferry falls
under the jurisdiction of more than one Panchayat Samity, the same
shall be managed by the Zilla Parishad.
2. The khas and vested tanks and ferries which are under valid lease or
license granted by the Collectors, shall be managed by the Gram
Panchayats, Panchayat Samities or Zilla Parishads, as the case may be,
on expiry of the existing term of said lease or license.
3. The khas and vested tanks and ferries which were handed over by the
Collectors to the Gram Panchayats Panchayat Samities or Zilla Parish
ads, as the case may be, in pursuance of the memo no.2634 (15)-GE(M)
dated 7th March, 1979 of the Board of Revenue, Government of West
Bengal, Shall be deemed to have been always managed, and shall
continue, to be managed, by the respective Gram Panchayats, Panchayat
Samities or Zilla Parishads on and from the date on which the said tanks
and ferries were handed over to them by the Collectors.
By order of the Governor,
Sd/-B.C. Mukherjee,
Secretary to the Govt. of West Bengal.”
59. In the decision of Joragachi Lohadaha (supra), this court held as
follows:-
“22.The fact that the control and management of the concerned ferry
ghat had been with the panchayat authorities for sometime past, is not
in doubt or dispute. The panchayat authorities have been vested with
powers under Article 243-G of the Constitution of India read with the
Eleventh Schedule. The provisions of Sections 20, 21(m), 25, 42(b), and
47(ix), of the said Act and Rule 13 of the West Bengal Panchayat (Gram
Panchayat Accounts, Audit and Budget) Rules, 2007, empower the
panchayat authorities to establish, control and manage the ferry ghats,
collect tolls and maximise revenue for their best interest. These
provisions are in consonance with the constitutional mandate. The
Manual being a procedural handbook or a guide cannot have any
overriding effect over such provisions. Paragraph 6 of the said Manual
also provides the same. In any event, holding of public auction is only to
30maximise revenue. The same are being conducted in terms of Memo No.
3060-F(Y) dated June 11, 2014 issued by the Principal Secretary to the
Government of West Bengal, Finance Department, Audit Branch and
Memo No.- 3103 – F(Y) dated July 27, 2022 issued by Additional Chief
Secretary to the Government of West Bengal, Finance Department, Audit
Branch. The gram panchayat, in matters of grant of lease of immovable
properties and assets of the state, are bound to ensure that no loss is
incurred. Maximisation of revenue must be their goal. Paragraph 266A of
the said Manual also provides circumstances under which public auction
could be opened up to individual entrepreneurs and not be limited to
boatmen’s co-operative societies or partnership firms. Such policy of the
government was also introduced by amending the earlier paragraph 266A
of the manual in the year 2016. Individual entrepreneurs were allowed to
participate in public auctions if there were less than three bidders. The
said Manual cannot curb the power vested with the gram panchayat in
terms of Section 20 of the said Act, read with the constitutional mandate.
23. Section 20 of the West Bengal Panchayat Act, 1973 deals with
transferred duties of the gram panchayat. Certain duties of the State
Government had been transferred to the panchayats. Provisos were
incorporated to put a check on misuse of power and/or failure to
perform.
24. Such transferred duties include performance of such functions
which the state government may by order transfer to the panchayats or
entrust or devolve upon them from time to time subject to the condition
that the State Government may withdraw such power in case of default
in performance or inability to perform. Section 21 deals with the
regulatory duties of the gram panchayat which includes establishment
of ferry ghats and management and control of ferries. The state
government under Section 22 is obligated to place funds at the disposal
of the gram panchayat so that the functions assigned to the gram
panchayat may be performed smoothly. These provisions in the said Act
were incorporated by the West Bengal Panchayat (Third Amendment)
Act, 2006. The title of the Principal Act of 1973 was substituted by the
West Bengal Panchayat (Third Amendment) Act, 2006 as follows:-
“An Act to reorganize, strengthen and expand the activities of
Panchayats in rural areas of West Bengal to enable them to act as units
of self-government and to strive for socio-economic development and
securing social justice for the people and to provide for matters
connected therewith.”
25. The amendment to the title itself indicates that the West Bengal
Panchayat Act was an Act to organize, expand and strengthen the
activities of panchayats in rural areas of West Bengal and to enable
them to act as units of self government and to strive for economic and
31
social development. Following the constitutional mandate of the 73rd
amendment, the said Act was amended in the year 2006 and Sections
20 and 21 with regard to transferred duties of the gram panchayats and
the regulatory duties of the panchayats had been incorporated by
amending the earlier provisions. Therefore, after the constitutional
amendment and inclusion of Part -IX and after the amendment of
Sections 20 and 21 of said Act of 1973 by the amending Act of 2006, the
panchayats have been enabled and empowered to independently manage
and control the ferry ghats. The said Manual will not have any
application and the panchayat authorities are not bound by the
provisions of the paragraph 281(iii) of the said Manual. Interpretation of
the government in this regard is also in favour of grant of complete
independence to the panchayats authorities to function within the four
corners of the Act and Rules and in accordance with law.
26. The object behind incorporation of Part-IX to the Constitution was
to enable the Panchayati Raj to function as units of self-government and
in order to achieve such object it is essential that the gram panchayats
function independently and in a de-centralized manner in terms of the
provisions of the Panchayat Act and the Rules framed thereunder. The
said Manual which is merely a hand book of procedure for the land and
reforms administration cannot have an overriding effect over the West
Bengal Pnachayat Act, 1973. The petitioners do not have a right of
preference for grant of settlement of the ferry ghat.
27. In the matter of The Goa foundation vs. M/s Sesa Sterlite
Limited & ors, [Special Leave to Appeal (Civil) No.32138 of 2015]
the Hon’ble Apex Court held that the State was duty bound to adopt the
method of auction by giving wide publicity so that all eligible persons
could participate in the process. Natural resources could not be
alienated by way of largesse and there must be a reciprocal
consideration either in the form of earning revenue or sub-serving the
common good or both. The State’s endeavour must be towards
maximization of revenue returns.
28. In the matter of Centre for Public Interest Litigation v. Union of
India, reported in (2012) 3 SCC 1, the Hon’ble Apex Court held as
follows:-
“95. This Court has repeatedly held that wherever a contract is to be
awarded or a licence is to be given, the public authority must adopt a
transparent and fair method for making selections so that all eligible
persons get a fair opportunity of competition. To put it differently, the
State and its agencies/ instrumentalities must always adopt a rational
method for disposal of public property and no attempt should be made
to scuttle the claim of worthy applicants. When it comes to alienation of
scarce natural resources like spectrum, etc. it is the burden of the State
to ensure that a non-discriminatory method is adopted for distribution
32and alienation, which would necessarily result in protection of
national/public interest.
96. In our view, a duly publicised auction conducted fairly and
impartially is perhaps the best method for discharging this burden and
the methods like first-come-first-served when used for alienation of
natural resources/public property are likely to be misused by
unscrupulous people who are only interested in garnering maximum
financial benefit and have no respect for the constitutional ethos and
values. In other words, while transferring or alienating the natural
resources, the State is duty-bound to adopt the method of auction by
giving wide publicity so that all eligible persons can participate in the
process.”
(i) In Nabadwip Jalapath Paribahan Co-operative Society Ltd. vs.
The State of West Bengal & Ors. reported in (2018) 2 WBLR (cal)
161, it was held as follows:-
“28. Since the said Nabadwip Ferry Ghat is a Private Ferry Ghat,
therefore provision of Section 266 of West Bengal Land and Land
Reforms Manual 1991 is not applicable in respect of this Ferry
Ghat.
29. It is further evident that in previous cases in respect of the
said Ferry Ghat the order was passed by the Hon’ble Apex Court
on 7th April 1994 directing inter alia, “there shall be an interim
clarification that the concerned authorities of the Zilla Parishad
Nadia are free to make such arrangement as they deem necessary
in respect of Ferry Ghat and not necessarily bound to put it in
auction as ordered by Hon’ble High Court effective from 14th April
1994 onwards till further orders.”
30. Considering the decision in the case of Kalijani Group (supra)
in my opinion to maintain transparency in the process of selection
of the settlee/leasee, selection should be made either by auction or
by tender so that the transparency can be seen by the participant
themselves.
31. Submission of Mr. Swapan Kr. Majumder appearing for the
respondent no.7 is also considered. I find no substance in his
submission.
33
32. In the light of the above discussions and perusing the records
as well as relevant rules and sections of the Acts, Manual and the
decisions relied on by learned Advocates in my considered view
since the Nabadwip Ferry Ghat is a Private Ferry Ghat controlled
and governed by the Nadia Zill Parishad, therefore, there is no
infirmity or illegality or ambiguity in the impugned notice inviting
tender dated 22nd August, 2016 which deserves interference by
this Hon’ble Court.
The decision relied by Mr. Chatterjee passed by the Hon’ble
Division Bench is an interim measure, no issue has been decided.
33. Resultantly, this writ petition stands dismissed without any
order as to costs.
34. However, since the petitioner Co-Operative Society has been
operating the said Ferry Ghat since 1991 till date therefore I direct
the Nadia Zilla Parishad to allow the petitioner Co-Operative
Society to run/operate the said Ferry Ghat till 31st March, 2018
provided that they fulfill all requisite formalities. Thereafter the
Nadia Zilla Parishad would be at liberty to take steps for issuing
fresh notice inviting tender for the said Nabadwip Ferry Ghat post
31st March, 2018. This order will not, however, preclude the
petitioner society to participate in future tender.”
(ii) In Maatara Heridity Patni Ferry Service Co-operative Society Ltd.
vs. State of West Bengal reported in AIRONLINE 2023 CAL 665,
the Nadia Zilla Parisad wanted to grant settlement by way of lease of
certain ferry ghats by holding open auction process and the said
process was upheld by a learned Single Judge of this court.
(iii) Maatara Heridity Patni Ferry Service Co-operative Society Ltd.
vs. The State of West Bengal & Ors. decided in WPA 11688 of
2022, this court held as follows:-
“The Court was of the opinion that to maintain transparency in the
process of selection of the settlee/lessee, selection should be made
either by auction or by tender so that transparency can be
adjudged by the participants themselves.
34
The Hon’ble Division Bench in the matter of Kolkata Anti-
Corruption Research & Analytical Institute (supra) took note of the
fact that open auction will be held for allotment of ferry ghat.
In Rajab Mondal (supra), the Court was pleased to hold that Nadia
Zilla Parishad may publish the auction notice and fix the date of
auction for settling the ferry ghat.
From the submission of the parties and on perusal of the
documents placed before this Court, it appears that the whole
intention of the Act is to maintain transparency, fairness and
uniformity in the process of settling the ferry ghats.
The petitioner claims to be a co-operative society of local boatmen.
It has been submitted by the learned advocate for the Nadia Zilla
Parishad that there are several other co-operative societies who are
interested in the open auction process.
Accordingly, there is no reason to restrain Nadia Zilla Parishad to
proceed with the open auction. If there are more than one co-
operative societies, then decision shall be taken by the Nadia Zilla
Parishad to settle the ferry ghat in favour of the highest bidder.”
(iv) Amal Kr. Majhi & Ors. vs The State of West Bengal & Ors.
decided in W.P. 16398 (W) of 2018, this court held as follows:-
“This feudal attitude of the petitioners for perpetuating the
monopoly on the ferry ghat cannot be encouraged. The Ferry ghat
was settled after due process by the appropriate Panchayet Samity
and after bidding the highest bid was accepted which is not a bid
of the petitioners. That the petitioners have been enjoying a virtual
monopoly to ply a ferry ghat for a long time and that it has
acquired land on one side of the river cannot sabotage the efforts of
the Government to deny the red teeth and claws of capitalism and
feudalism to flourish in Bengal Accordingly, since on facts the writ
petitioners had on the face of the videographed clip misled the
Court, I hold that the writ petitioners are guilty of having come to
the writ court with unclean hands.
In that view of the matter, the writ petition stands dismissed.
Interim order, if any, stands vacated. The Court records its
appreciation of the learned Special Officer, Mr. Sarwar Jahan. I am
told that all his expenses and remuneration have been paid. I am
35not inclined to award exemplary costs against the writ petitioners
for having misled the Court on facts but since the writ petition is
being dismissed I have chosen to forebear in doing so.”
(v) The decision of Union of India and Anr. Vs Ganpati Dealcom
Private Ltd. reported in (2023) 3 SCC 315 cited by Mr.
Bhattacharya, does not apply in the facts and circumstances because
the question to be determined in this case is whether the Land
Reforms Manual shall be mandatorily binding on the panchayat
samiti. This court is of the view that the West Bengal Panchayat Act,
1973 being a special piece of legislation cannot be held to be
subordinate to the provisions of the Manual.
(vi) M.P Oil Extraction and Another (supra) which was also cited by Mr.
Bhattacharya does not apply in this case. The exception which have
been made out in Paragraph 45 of the said judgment to the general
principle of distribution of largesse by inviting open tender or by
public auction does not cover the facts and circumstances of the case.
The society was granted the settlement of ferry ghats by public
auction on a year to year basis. Only one extension was given for the
year 2008, when the auction could not be held on account of
panchayat election, referring to Rule 281(iii) of the Manual of 1991.
29. The writ petition being No. WPA 12782 of 2013 fails.
30. The writ petition being No. WPA 9316 of 2022 succeeds.
31. The connected applications stand disposed of.
36
32. The Panchayat Samiti is entitled to settle the ferry ghats upon holding e-
auction, by following the due procedure.
33. There will be no order as to costs.
34. Parties are directed to act on the server copy of this judgment.
(Shampa Sarkar, J.)
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