Judgment

MUDHOLKAR, J. : This is an appeal by certificate from the judgment of the High Court of Allahabad reversing the decision of a single Judge of that Court directing the issue of a writ of Mandamus against the respondents under Art. 226 of the Constitution. The points which arise for consideration in the appeal are whether the appellant who was at the relevant time the lessee of a right to collect tolls from persons, vehicles etc., crossing the river by public ferry at Pipraghat, District Ballia was bound to allow State carriage buses belonging to the Government of Uttar Pradesh to cross the river by the ferry without collecting any toll or was entitled to claim abatement of rent from the Government under the proviso to S. 15 of the Northern India Ferries Act, 1878 (hereafter referred to as the Act).

2. In order to appreciate the points a few facts need to be stated. There is a ferry at the village Pipraghat, district Ballia for crossing the river and the right to collect tolls in respect of that ferry is put to public auction annually. The highest bidder at the auction gets the right. The rent or licence fee is collected from him in monthly instalments during the year with respect to which the right was purchased by the licensee. The appellant was the highest bidder for the year 1954 and the licence fee payable by him was Rs. 31,751/-. The practice right upto 1954 was to allow the lessee to collect a toll of Rs. 5-1-0 from every stage carriage bus. Till March 9 of that year only privately owned stage carriage buses used to ply on the route in which the ferry crossing was comprised. Thereafter the route has been taken over by the Roadways Department of the State of Uttar Pradesh. From March 9 to March 16, the appellant realised tolls at Rs. 5-1-0 from the State-owned stage carriage buses when he was informed by a letter by the first respondent that he should allow the Roadways buses to use the ferry for crossing and recrossing the river on credit till March 31, 1954 and should thereafter submit his bill with respect to the tolls to the Roadways Department of the Government. He was also informed that further orders will be issued on April 1, 1954. The appellant accordingly, allowed the Roadways buses to use the ferry for crossing and recrossing the river and submitted his bill to the Roadways Department on March 31, 1954. That bill was, however, not paid.

3. On April 1, 1954 he received two communications from respondent No. 1 by one of which he was informed that no toll is leviable on the Roadways vehicles and by another he was asked to pay the monthly instalment of the licence fee without making any deduction therefor consequent upon the exemption of the Roadways buses from tolls.

4. The appellant had moved the High Court of Allahabad under Art. 226 of the Constitution for the issue of a writ directing the respondent "to refrain from precluding the petitioner from charging tolls from the Roadways buses" to issue a writ commanding the respondents to allow abatement to the appellant and to issue an interim direction to the respondents asking them to refrain from realising the unpaid monthly instalments of the licence fees till the decision was given. Before the petition was decided the appellant s licence had run out and, therefore, at the hearing the appellant confined himself to one relief, that is, commanding the respondents to allow rebate on account of the exemption of the Roadways buses from liability to pay the tolls. The petition was, however, not amended, we may incidentally mention that apart from the reliefs above referred to, the appellant claimed two more reliefs, one of which was to pass any such order and further order as may be deemed fit and proper.

5. The learned single Judge of the High Court who decided the petition in the first instance came to the conclusion that the appellant was entitled to abatement of rent under the third paragraph of S. 15 of the Act and directed the issue of a writ to the respondent