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High Court Of Calcutta
Jyotirmay Bhattacharya
KALJANI GROUP SAMITY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 2581 Of 2005
Decided On : 05/17/2005
FERRY LEASE - SETTLEMENT CONDITIONS - WEST BENGAL LAND AND LAND REFORMS MANUAL, 1991 - RULES 250, 266, 266A, 281 - SUMMARY
Fact of the Case:
The petitioner participated in an auction for the settlement of two ferry-ghats for one year. The petitioner was the highest bidder and was granted a lease for the period of one year. The petitioner invested a substantial amount of money in the business but could not take possession of the ferry-ghats on the date of commencement of the lease due to a pending writ petition. The petitioner claimed that they suffered losses due to the delay and sought an extension of the lease for a further period of one year.
Finding of the Court:
The court held that Rule 250 of the West Bengal Land and Land Reforms Manual, 1991, which prescribes the conditions of lease of Ijara settlement, does not apply to the settlement of ferries. The court also held that Rule 266a of the Manual, which deals with the settlement of fisheries, has no application to the settlement of ferries. The court further held that Rule 281 of the Manual, which deals with the settlement of public and non-public ferries, is not directly applicable to the settlement of ferries under the management of the Panchayat, but the procedure laid down therein should be adopted by the Panchayat for settlement of the ferries under its management for maintaining uniformity in the settlement of ferries of various descriptions by different statutory authorities.
Issues: 1. Whether Rule 250 of the West Bengal Land and Land Reforms Manual, 1991 applies to the settlement of ferries? 2. Whether Rule 266a of the Manual applies to the settlement of ferries? 3. Whether Rule 281 of the Manual applies to the settlement of ferries under the management of the Panchayat?
Ratio Decidendi: 1. Rule 250 of the West Bengal Land and Land Reforms Manual, 1991, which prescribes the conditions of lease of Ijara settlement, does not apply to the settlement of ferries because it is included in Chapter XVI of the Manual which deals with the settlement and/or transfer of hats and bazars, and not ferries. 2. Rule 266a of the Manual, which deals with the settlement of fisheries, has no application to the settlement of ferries because it is included in Chapter XVII of the Manual which deals with the management of ferries, fisheries, tanks, and other Khutagari interests, and not the settlement of ferries. 3. Rule 281 of the Manual, which deals with the settlement of public and non-public ferries, is not directly applicable to the settlement of ferries under the management of the Panchayat, but the procedure laid down therein should be adopted by the Panchayat for settlement of the ferries under its management for maintaining uniformity in the settlement of ferries of various descriptions by different statutory authorities.
Final Decision: The writ petition was dismissed as the court held that the impugned notice did not contain any condition that was contrary to the prescribed conditions for the settlement of public and non-public ferries, and that the petitioners had accepted the lease knowing the conditions of the grant.
( 1 ) THE petitioner No. 1 participated in the auction for settlement of the ferry-ghats known as Arampur Ghat and sishabtali Ghat for the period of one year commencing from 1st Baishak, 1411 b. S. ending with the last day of Chaitra, 1411 B. S. The petitioner No. 1 was found to be the highest bidder in the said auction. Accordingly, a lease was granted by the concerned Panchayat Samiti settling the said two ferryghats with the petitioner No. 1 for a period of one year commencing from 1st Baishak, 1411 B. S. ending with the last day of Chaitra, 1411 B. S. for a consideration of rs. 4,75,100/ -.
( 2 ) THE petitioners claim that the petitioners invested a lot of money amounting Rs. 7,00,000/- for the said business.
( 3 ) THE petitioners further claim that though the lease commenced on 1st baishak, 1411 B. S. but the possession of the said ferry-ghats could not be delivered to the petitioners on the date of commencement of the lease because of the pendency of a writ petition being W. P. No. 3562 (W) of 2004 concerning the said ferry-ghats. Thus, the petitioners claimed that the petitioners could not continue for the entire lease period and thereby sustained loss in their business.
( 4 ) THE petitioners thus claim, extension of the said lease at least for a period of further one year under the same terms and conditions for recovering the loss which the petitioners suffered in their business during the said lease period.
( 5 ) WITHOUT considering the petitioners' said prayer for extension of the lease of the said two ferry-ghats for a further period of one year, the concerned authority issued an auction notice on 27th January, 2005 for holding auction for settlement of the said two ferry-ghats on one year lease basis commencing from 1st Baishak, 1412 B. S. ending with the last day of Chaitra, 1412 B. S.
( 6 ) UNDER such circumstances, the instant writ petition was filed seeking necessary direction for grant of extension of lease for a further period of one year on the same terms and conditions and also for restraining the concerned authorities from processing the auction in terms of the auction notice issued on 27th January, 2005 being Annexure P-4' to this writ petition.
( 7 ) A supplementary affidavit has also been filed by the petitioners wherein the petitioners challenged the validity and/or legality of the said auction notice on the ground that the said notice was issued containing terms contrary to the provision for settelement of the ferry-ghats as prescribed in the West Bengal land and Land Reforms Manual, 1991.
( 8 ) THOUGH the basis of the challenge with regard to the validity and/or legality of the said auction notice has been disclosed in the said supplementary affidavit but in fact no relief has been sought for, for quashing and/or setting aside the impugned auction notice.
( 9 ) MR. Ganguly, learned Advocate, appearing for the petitioners, submitted before this Court that when the basis and/or foundation of the challenge has been brought before the Court, this Court is not powerless to give appropriate relief by moulding the prayers to mitigate justice. Thus, Mr. Ganguly submitted that merely because of the technical defect in drafting of this writ petition the relief which is appropriate in the facts of the instant case cannot be denied as the Court's power to grant reliefs by moulding the prayers is well recognised not only by this Court but also by the Apex Court of the land.
( 10 ) MR. Ganguly submitted that the conditions of lease of Ijara settlement have been laid down in Rule 250 of the West Bengal Land and Land Reforms manual, 1991 (hereinafter referred to as "the said Manual". The condition for grant of lease which is relevant for the purpose of determination of the dispute in this writ petition is set out hereunder :"rule 250. Condition of lease of Ijara settlement.- The lease should contain the following conditions : (a) The settlement shall be for a period of three year
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