ORDER
1. This application by Kumar Arvind Chandra Singh and Arun Chandra Singh under Articles 226 and 227 of the Constitution of India is directed against the auction notice (Annexure 8) published in daily news paper “the Searchlight” of the 17th and 18th February, 1972 that Monghvr Raishat Ferry would be settled for a period of three years on 3rd March, 1972 by oPen public auction. In the application, the petitioners prayed for quashing the said notice (Annexure 8). During the course of arguments Mr. Jagdish Sahay, learned counsel for the petitioners contended that the prayer in the application is not really for quashing the entire auction notice contained in Annexure 8, but it is confined only to the period for which the auction was held. According to him, the period of three years mentioned in Annexure 8 should be deemed to be for a period of nine years. The lease for three years was executed in favour of the petitioners, who were the highest bidder in the said auction. Therefore, the lease in favour of the petitioners should also be deemed to be for nine years, and the original lease for the period of three years in favour of the petitioners was to expire on 31st March, 1975. Therefore, a direction may be issued on respondents Nos. 1 to 3 for execution of further lease in favour of the petitioners for a further period of six years.
2. In order to appreciate the points involved in this application it will be necessary to state briefly the facts. In the district of Monghyr, there is a ferry known and described as Monghvr Rajghat Ferry. The said ferry was declared as a public ferry under Section 6 of the Bengal Ferries Act (Act 1 of 1885) (hereinafter to be referred to as the ‘Act’). The petitioners have stated in paragraph 4 of their application that the ferry business was ancestral business of the petitioners end their ancestors for more than 100 years had specialised themselves in ferry business, and used to take settlement of public ferries in the State of Bihar. In their application, they stated that for the last 35 years the Monghyr Raighat Ferry was being settled each time for a period of nine vears by the District Magistrate of Monghyr and approved by the Commissioner. Bhaealpur Division, as provided under Section 9 of the Act. Due to certain special circumstances of the Monghyr Raighat Ferry, the Model Rules framed by the Government under letter No. 1059 L. S. G. dated the 9th March, 1937, and circulated to all the District Magistrates and Divisional Commissioners, was not adopted by the District Magistrate, Monghyr with the approval of the Commissioner, Bhagalpur Division. In 1954. the said Monghyr Raj-ghat Ferry (hereinafter to be referred to as the ‘Ferry’) was leased under Section 9 of the Act with late Sri Bhagwati Prasad Singh. father of the petitioners for a period of nine years. On expiry of the said lease, he again took lease of the said ferry in 1963 for a period of nine years in public auction which period was to expire on 31st March, 1972. Meanwhile, on 26th December, 1970. the father of the petitioners died and the petitioners as his heirs succeeded to the said ferry with the permission of the District Magistrate. Monghyr for the remaining period of the lease and. accordingly a fresh registered lease was executed for the remaining period. Since the petitioners and their father have been taking on lease the ferry since long, they got the necessary appliances, steam vessels, boats, etc. manned with required number of crews, sarangs and other staff. As the period of lease was going to expire on 31st March, 1972. the District Magistrate fixed the period of settlement for nine vears with effect from 1st April, 1972 and took steps for leasing out the same for another period of nine years beginning from 1st April, 1972 and sometime in May, 1971 forwarded a draft copy of tender notice (Annexure 1) to the Commissioner. Bhagalpur Division for approval under Section 9 of the Act. Shri R. C. Prasad Sinha. the then Commissioner of Bhagalpur Division approved the period of lease of the ferrv for nine years as initiated by the District Magistrate under his letter dated 7th June, 1971 (Annexure 2). Subsequently, the District Magistrate under some misconception requested Shri R. C. Prasad Sinha, the then Commissioner in his letter dated 16th July, 1971 (Annexure 3) to move the Government in the department of Revenue and obtain clarification as to whether the lease for the period of nine years would be valid and if not valid, the settlement should be for a period of three years. The said proposal and the request of the District Magistrate was turned down by Sri R. C. Prasad Sinha under his letter dated 21st July, 1971 (Annexure 4) and directed inter alia that the term of the lease should be for nine vears as approved by him earlier. Shri R. C. Prasad Sinha was transferred from Bhagalpur and Shri M. Alam was posted as Commissioner, Bhagalpur. who under his letter dated 8th November, 1971 (Annexure 5) wrote to the State Government in Revenue Department for clarification and guidance on the question of the period of settlement of the ferrv and suggested. that the lease should be only for three years. In paragraph 17 of the application, petitioners have stated that the Minister of Transport had expressed his views on Annexure 5 that the period for the settlement of the ferry should be nine years. Later petitioner No, 1 represented to the Minister of Transport. Government of Bihar vide copy of his representation (Annexure 6). Subsequently there was President’s Rule in the State of Bihar. The petitioners stated in paragraph 19 of their application that the decision of the Minister of the Transport was not given effect to and ultimately the reference sent by Shri M. Alam was returned with observation that the Government of Bihar had no jurisdiction to give any opinion. The petitioners have further stated in paragraph 20 of their application that on 31st January, 1972, Shri M. Alam. Commissioner of Bhagalpur Division was transferred from Bhagalpur but only three days before i. e., on 29th January 1972, he passed an order directing the then District Magistrate. Monghyr to settle the ferry for a period of three years only. The District Magistrate in pursuance of the order dated the 29th January, 1972 passed by Shri M. Alam published the. public auction notice as mentioned earlier in the daily news paper, the Searchlight of 17th and 18th February, 1972 mentioning therein that Monghvr Raighat Ferrv would be settled for a period of three years on 3rd March, 1972 by open public auction (Annexure 8). Aggrieved by the terms of Annexure 8 with regard to the period of the lease the petitioners came up to this Court and obtained rule by the order dated 24th February, 1972. However, the petitioners’ prayer for staying the operation of the auction notice contained in Annexure 8 was rejected. In that circumstance the petitioners participated in the auction, without prejudice to their claim for settlement for nine years. The petitioners being the highest bidder their bid was accepted and ultimately a lease was executed in their favour for three years.
3. A counter-affidavit has been filed on behalf of the respondents on 12th May, 1972, inter alia supporting the auction of the ferry for a period of three years, and subsequent thereof the execution of the lease only for three years in favour of the petitioners, and submitting therein that the Commissioner had ample jurisdiction to approve the terms of the lease, and to reduce the period from nine to three years. A supplementary affidavit has further been filed on behalf of the petitioners on 19-2-1975 reiterating therein that the petitioners have participated in the auction without prejudice to their claims that the auction ought to have been for a period of nine years, and the lease which was executed in their favour should also, therefore, be for nine years instead of three years.
4. Mr. Jagdish Sahay, learned counsel appearing on behalf of the petitioners, has raised the following points for consideration by us :–
1. The then Collector having passed the order in exercise of his powers contained under Sections 8 and 9 of the Act and the Commissioner, Shri R. C. Prasad Sinha having approved the same for a period of nine years, the succeeding District Magistrate and the Commissioner would not have reviewed the order which had become final.
2. The District Magistrate who had ordered for issuance of auction notice for a period of three vears under Annexure 8 had not applied his mind. He had simplv carried out the order of Shri M. Alam, the then Commissioner who had no jurisdiction to initiate the order.
3. The petitioners are not estopped by their conduct, namely participating in auction which was for a period of three years from challenging now, the period of lease as they had participated in the auction, without prejudice to their claim as mentioned above.
5. It will be convenient to deal with point No. 1 first. Learned Counsel for the petitioners has referred to the relevant provisions of the Act. Firstly he drew our attention to Section 9 which reads as:–
“The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct.
The lessee of the tolls of every ferry which have been leased under this section shall execute a contract, setting forth the conditions on which the tolls of such ferry are to be held and shall sive security for its due fulfilment.”
By reference to Section 9 quoted above. Mr. Sahay pointed out that the District Magistrate has to initiate the terms of the lease which has to be simplv approved by the Commissioner. In the instant case the then District Magistrate had written to the Commissioner as mentioned above that the lease should be for a Period of nine vears, which was approved by Shri R. C. Prasad Sinha in his two successive letters, referred to above Therefore, the decision of the period of lease had become final. According to him. the succeeding Magistrate and the Commissioner had no power to review the same and to reduce the period from nine to three years. In order to find support to his contention he has relied on AIR 1937 PC 27, where it was observed that in a case in which after Government Officials, duly competent and duly authorised in that behalf, had arrived honestly at one decision, their successors in office, after the decision had been acted upon and was in effective operation, could not purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.
In our opinion, the above observation is not applicable in the instant case. It may be noted that the then District Magistrate, who had initiated that the lease should be for nine years was not acted upon on the approval of Shri R.C. Prasad Sinha, the then Commissioner. No auction notice was published on the basis of the said approval. On the contrary. still the matter about the period for the lease, was under consideration as it would be apparent from the facts of the case, which we have enumerated above. Learned counsel for the petitioners has further pointed out that in the instant case, there was a confusion, because in the other districts Model Rules were framed under Section 15 of the Act. Rule 7 of the said Rules mentions that the maximum period for which a lease may be granted shall be not exceeding three years at a time. It has been asserted in the application by the petitioners that the Model Rule is not applicable in the district of Monghyr. In our opinion, that may be so. but that does not preclude the District Magistrate, and the Commissioner to reduce the period of lease in the notice of auction from nine to three years. Besides, what were passing on between the District Magistrate. Commissioner and the State Government were merely departmental communications, with which the petitioners had no concern at that stage, and that those communications would not have conferred any right on the petitioners. Therefore, there is no merit in the contention of the learned counsel for the petitioners under point No. 1.
Now we turn to consider his submissions under point No. 2. On the basis of the provisions contained under Section 9 of the Act. learned counsel emphasised that the initiation for the term of the lease has to come from the District Magistrate whereas the Commissioner has power only of approval. In the instant case, Shri M. Alam, the then Commissioner had in fact initiated the term of the lease from nine to three years and the District Magistrate, without applying his mind, got the auction notice published under Annexure 8. Therefore, he contended that the Commissioner had exceeded his jurisdiction; whereas the District Magistrate has failed to exercise his jurisdiction. In this connection, he drew our attention to the meaning of word ‘approve’ in Chamber’s Twentieth Century Dictionary, Revised Edition at page 49. It means inter alia ‘to confirm’ ‘to sanction or ratify,’ & to think well of, ‘to be pleased with’: ‘to commend’. According to him, the Commissioner under Section 9 of the Act could have either approved or disapproved. He had no jurisdiction to issue direction to reduce the, term of nine years to three vears: as initiated by the District Magistrate. He also in this connection referred to a Full Bench decision in the case of Shakir Hussain v. Chandoo Lal, AIR 1931 All 567 (FB) where their Lordships were pointing out difference between approval and permission. Their Lordships held that ordinarily the difference between the approval and permission was that in the first, the act held good until disapproved. while in the other case it did not become effective, until permission was obtained. But permission subsequently obtained might all the same validate the previous act, Mr. Sahay has further relied on a Bench decision of this Court in R.B. Singh v. District Magistrate, Patna, 1956 BLJR 592 and he drew our attention chiefly to two paragraphs, namely, paragraphs 18 and 75 of the judgment. In paragraph 18 one of the contentions of Mr. Ghose, learned counsel of that case was that the additional Commissioner had no power to direct the District Magistrate to postpone the auction, which was to be held on the 27th December, 1955 and as such the order of the District Magistrate dated 26th December, 1955 postponing the auction was without jurisdiction. Mr. Ghose for his contention had relied in that case on earlier Ram Bharosa Singh’s case, (AIR 1953 Pat 370) in which Jamuar, J., delivering the judgment observed in paragraph 8:–
“…..On the wording of Section 9, it seems to be clear to me that the District Magistrate is not authorised to withdraw the ferry from public auction under orders of the State Government: he can do so on his own initiative, but he must record sufficient reason for doing so.”
Paragraph 75 of the judgment on which reliance was placed on behalf of the petitioner in the present case is as follows:–“But that apart, in my opinion, the Commissioner had no power to revise the order of the District Magistrate passed under the second paragraph of Section 9 of the Act. The Act does not provide for any appeal against the order of the District Magistrate passed under the second paragraph of Section 9 of the Act. Section 7, no doubt, provides that the control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner to review, or set aside the order of the Collector passed under the second paragraph of Section 9 of the Act. Section 7 gives the Commissioner only administrative control in the matter of public ferries, the control of which is vested in the Magistrate of the district.”
Mr. Sahay had laid emphasis on the above observation in the present case in order to find support to his contention that the Commissioner Shri M. Alam could not have directed the District Magistrate to reduce the period of the proposed lease from nine years to three years. According to him, that function was entirely within the jurisdiction of the District Magistrate under Section 9 of the Act.
6. In our opinion the above two observations of the judgment are not applicable in the instant case. It may be noticed that in paragraph 18 their Lordships were dealing with the question of the power of the State Government. In the present case, the State Government had nothing to do with regard to the reduction of the period of the lease. On the contrary, the State Government had clearly stated that that power rested with the Commissioner of the Division. Reference may be made to paragraph 8 of the counter-affidavit filed on behalf of the respondents, the relevant portion of which reads as :
“….. After duly examining the whole matter, however, the Government came to the conclusion that the right to fix the term of lease rested with the Commissioner of the division in accordance with the provisions of the Bengal Ferries Act and that, therefore Government should not interfere in the matter. Accordingly, a reference was made to the Commissioner, Bhagalpur Division, indicating to him that according to the provisions of law the ghat could be settled only through public auction and that it was within his jurisdiction to fix the terms of the lease in so far as the period was concerned”.
The observation contained under paragraph 75, referred to above, is also not applicable in the present case, because in that case the Additional Commissioner had directed the District Magistrate to change the date of the auction as notified, as it is evident from the facts of the judgment stated in paragraph 4. In the present case as mentioned earlier there was no question of notification of the auction. It was merely a stage of dialogue between the District Magistrate, and the Commissioner through various correspondence referred to above.
7. Reliance placed by Shri Sahay, on the Dictionary meaning of the word ‘approval’ occurring under Section 9 of the Act, in our opinion, cannot be a true guide for the interpretation of the said word; nor we can draw any guideline from the difference between ‘approval’ and ‘permission’ pointed out in AIR 1931 All 567 (FB). It is well settled that while construing the word in an Act, meaning of a word cannot be gathered in an abstract. Reference may be made to (1948) 2 All ER 995 at p. 998 where it was observed :–
“The first thing one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take these words in vacuo. so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their moaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which vou may have to displace or modify. It is to read the statute as a whole and ask oneself the question: In this state, in this context, relating to this subject-matter, what is the true meaning of that word ?”
It is equally settled that English words derived colour from those which surrounds them vide 1967 (2) All ER 576 at page 578. It may further be noticed that in 1956 BLJR 592 on which reliance has been placed on behalf of the petitioners. Raj Kishor prasad, J, while delivering the main judgment, has dealt with the power of the Commissioner under Section 9 of the Act and he has interpreted the meaning of the word ‘approval’ occurring in the said Section in Paragraph 21 of the judgment where his Lordship has observed that the Commissioner and in his absence the Additional Commissioner had. therefore the power to direct (that) settlement of the tolls of the ferry would be not for one year only as previously decided but for three years. It was open to the, Additional Collector to direct the public auction notification for the 27th December, 1955 to be postponed in order to enable him to decide finally whether the term of the lease would be for one year only as previously decided or for three years. The Commissioner was the final authority who was to approve the term for which the tolls would be leased out by public auction as provided in the first paragraph of Section 9 of the Act.
8. Therefore, it cannot be urged in the present case that the Commissioner had no power to reduce the term of lease from nine years to three years. It also cannot be urged that the District Magistrate had simply carried out the direction of the Commissioner and the District Magistrate had not applied his mind before getting the notice of auction published under Annexure 8. Therefore, all the contentions of the learned Counsel under point No. 2 fail.
Now we turn to consider submissions of the learned counsel under point No. 3. It may be recalled that the submission of the learned counsel under this head is with regard to the maintainability of the application. A point was raised on behalf of the counsel for the State that the application of the petitioners was not maintainable in view of the fact that they had participated in the auction and. thereby they had also obtained lease in their favour for a term of three years. Therefore, it was not open to them to agitate. In other words, there would be estoppel by conduct. In the view, which we have taken while dealing with the contentions of the learned counsel for the petitioners, under points Nos. 1 and 2. this question becomes academic. Even if it is held that there was no estoppel, as the petitioners had participated in the auction without preiudice to their claim as contended by the learned counsel for the petitioners, the case of the petitioners has failed on merit and it does not therefore call for any decision on this point.
9. In the result, the application is dismissed, and the petitioners are not entitled to any of the reliefs claimed by them. In the circumstances, however there will be no order as to costs.