JUDGMENT
Mihir Kumar Jha, J.
1. Heard learned Counsel for the petitioner and learned Counsel for the State as well as learned Counsel for Respondent No. 6.
In this writ application a prayer has been made by the petitioner to the following effect:
(i) An appropriate writ order or direction quashing the settlement of ghats mentioned in para 8 below within the area of operation of the petitioner society, made with the respondent No. 6 be issued
(ii) An appropriate writ order or direction commanding the respondent 1st party to make settlement of the three ghats falling within the area of operation of the petitioner society with the petitioner within a time frame, be issued.
Mr. Yogendra Mishra, learned Counsel appearing for the petitioner has firstly submitted that in view of the fact that the impugned settlement with the respondent No. 6 was only for the year 2007-08 which period was to be completed in a month i.e. on 31.3.2008, he no longer intended to assail the order of settlement in favour of respondent No. 6 and that he would be satisfied if only a direction would be given to the authorities to settle the ghat in question for the year 2008-09 onwards by treating the petitioner society to be only society entitled for such settlement in view of the fact that respondent No. 6 no longer remained to be in the society for the area in question. Explaining his aforementioned submission Mr. Mishra had submitted that Respondent No. 6 was a society registered for old muraul Prakhand which got bifurcated into two Prakhands namely Muraul and Bandera and since the ghats in question were situated in Bandera Prakhand for which the petitioner society was the only registered society, any settlement of ghat in terms of proviso to Section 9 of the Bengal Ferries Act 1885 (hereinafter referred to as the Act) could be made only with the petitioner society.
2. Mr. Mishra has further submitted that in any view of the matter this aspect as with regard to the area of operation of bifurcated cooperative society in the matter of preferential settlement had been gone into by this Court in the case of Bhawanipur Fishermen’s Co-operative Society v. State of Bihar and Ors. reported in 1995(1) PLJR 366, wherein a Division Bench of this Court had held that the new society operating in the restricted/reduced area of operation would alone qualify and be entitled for such settlement excluding the right of the old society which was registered for a larger area on the ground that its member no longer continue to the members of the new society.
3. A counter affidavit have also been filed on behalf of the State and the private Respondent No. 6. In the counter affidavit of Respondent No. 2 and 3 it has been stated with support of Annexure A and C that the competent authority in course of considering the grant of settlement of ghats in question had come to a finding that the petitioner society was not eligible for such settlement as it had submitted not only incomplete but also incorrect documents while submitting its offer. Thus, according to Respondent State, a decision had been taken to settle the ghat in question in favour of respondent No. 6 which was eligible being a registered cooperative society with its area of operation in respect of the ghats proposed to be settled. A further plea has been taken in the counter affidavit that the petitioner society being not a registered co-operative society under Bihar and Orissa Co-operative Societies Act 1935 is also not eligible for such settlement of ghat in terms of proviso to Section 9 of the Act. Reliance in this connection has been placed on the judgment of this Court in the case of Gandhi Shramik Swablambi Samiti Limited v. State of Bihar and Ors. reported in 1999(2) PLJR 114.
4. The counsel for the State as also for the Respondent No. 6 have thus submitted that in this writ application this Court should not decide an academic issue as sought to be pressed by the counsel for the petitioner inasmuch as when the counsel for the petitioner in course of making submission had given up the two prayers, the declaration sought by it with regard to the mode, manner and terms of eligibility of settlement of ghat by holding that only the petitioner society would be entitled for settlement of the ghats in question in future by way of excluding all the other society is wholly premature and misconceived and should be left in the hands of authorities so empowered to take such decision in terms of the Act specially when there is a finding to the effect that the petitioner society is itself not eligible for settlement of ghats in terms of proviso to Section 9 of the Act. They had further submitted that in any view of the matter the ratio of the judgment relied by the learned Counsel for the petitioner in the case of Bhawanipur supra would not apply to the facts of the present case inasmuch as there was nothing on record of the present case to demonstrate brought the basis and yard stick of registration of area of operation of the two competing societies i.e. the petitioner and the Respondent No. 6.
5. Having given my anxious consideration to the submission of the parties in the light of the pleadings on record I am the view that as a matter of fact this writ application has become infructuous as the remaining period of settlement in favour of Respondent No. 6 is only a month more i.e. upto 31.3.2008 and thus the whole exercise of quashing of the existing settlement in favour of the Respondent No. 6 and a consequential direction for making settlement for the remaining period of 2007-08 i.e. only a month would be an exercise in futility. Reference in this connection may be made to the judgments of Apex Court in the case of Guruswami v. State of Mysore , Rasbihari v. State of Orissa Jay and Co. v. R.T.A. Madura and Doongaji v. State of M.P. wherein it has been laid down that if the period for which contract is given by the Government, contrary to law, is over or about to be over, the court may not issue a writ of mandamus. As a matter of fact it was in this background that the counsel for the petitioner as noted above had himself given up the two prayers originally made in the writ application.
6. It has thus to be held that this writ application has become infructuous and is fit to be dismissed. This Court therefore is not at all required to issue a futile writ even if the petitioner society had not given up its only two prayers made in the writ application is lieu of a declaration that it alone should be considered for settlement in future years by altogether excluding the Respondent No. 6 from being considered for settlement of ghat(s) in question.
7. Turning now to the relief of declaration orally sought by the counsel for the petitioner that it be held that the petitioner society alone is eligible for preferential settlement of all the ghats in question even in future years commencing from 2007-08 onwards by excluding the Respondent No. 6 and/or any other society on the ground that these ghats are situated only in the area of operation of the petitioner society, cannot be allowed both in view of the absence of such a prayer in the writ application as also because there is nothing on record and/or in the pleadings to show that the ghats in questions sought to be settled in future are situated exclusively and only within the area of operation of the petitioner society.
8. The reliance placed by the counsel for the petitioner on the statements in paragraphs No. 6 and 18 to the writ application in this regard is also totally misplaced because they also do not contain any material fact much has they disclose the basis of registration of area of operation of the petitioner society with reference to the ghats in question. The counsel for the State and the Respondent No. 6 are therefore justified in making their submission that the area of operation of the Respondent No. 6 being a bigger society for the entire old Muraul Prakhand will always include the area of newly truncated area of operation of Bandera Prakhand carved only out of the old Muraul Prakhand, Moreover in paragraph No. 16 of the counter affidavit it has been specifically assorted that there were five ghats in the old Muraul Prakhand out of which only one ghat Tepri Ghat had fallen within the jurisdiction of Bandera Prakhand whereas Dholi Ratwara Ghat, Pilkhi Ghat, Dadaul Ghat and Muraul Ghat which have been settled with the Respondent No. 6 are still under Muraul Prakhand. The submission of learned Counsel for the petitioner to the effect that three out of five ghats namely Ratwara Dholi, Pilki and Tepri were situated earlier within territorial jurisdiction of Muraul Prakhand and now form part of new Bandera Prakhand on the basis of a bold statement in paragraph No. 9 to reply of the counter affidavit of respondent No. 6, also do not inspire confidence as they have not been supported by any documentary evidence and have been also seriously contested and contradicted by both the Respondent State and Respondent No. 6. In fact such a disputed question of fact as with regard to location of ghats and the area of operation of two societies i.e. the petitioner and Respondent No. 6 cannot be adjudicated in a writ application under Article 226 of the Constitution of India.
9. On the basis of the materials on record it has to be also held that the petitioner society itself is not sure of its case as with regard to the geographical placement and topography of the ghats inasmuch as in the original writ petition in paragraph No. 8 it was stated that all five ghats after bifurcation of Muraul Prakhand had fallen within the jurisdiction of the newly carved out of Bendera Prakhand but when the Respondent State filed a counter affidavit and produced documents by way of Annexure B for showing Dholi Ratwara Ghat, Pilki Ghat, Muraul Ghat to be still the part of truncated Muraul Prakhand, a contradictory stand was taken by the petitioner society in reply to the said counter affidavit to the extent that only Ratwara Ghat and Pilki Ghat fall within the jurisdiction of newly carved out Bandera Prakhand.
10. A similar inconsistent stand has been taken by the petitioner society in its reply to the counter affidavit of Respondent No. 6. In that view of the matter also the petitioner society can not succeed for the declaration in its favour of settlement of all the five ghats in future years specially when it is found that the settlement in question which has been done for the year 2006-07 in favour of Respondent No. 6 society is confined to only three ghats i.e. Dholi Ratwara, Pilki and Muraul Ghats which according to the Respondent State still continue to be the part of the truncated Muraul Prakhand also carved out of the old Muraul Prakhand. In that view of the matter, the petitioner society can neither be allowed to assail the settlement of three ghats in question in favour of Respondent No. 6 on geographical basis that they are part of newly carved out Bandera Prakhand nor a declaration can be issued in favour of the petitioner society for their settlement in future years by altogether excluding the claim of settlement in favour of the Respondent No. 6.
11. Thus in my considered opinion that once the petitioner society has given up its main relief of quashing the settlement made in favour of Respondent No. 6 on account of subsequent event and/or coming close to the date of expiry of settlement i.e. 31.3.2008 it cannot be allowed to raise academic question(s) nor this Court would go into the apprehension of the petitioner that in the next year also its document or paper will be found incomplete or wanting in respect of the proposed settlement. All that can be said thus for the present that it is expected that the authority would decide this issue of area of operation in context of the ghats in questions at the time of fresh settlement in future years by giving full opportunity to both the petitioner as well as respondent No. 6 before issuing an order of settlement of these ghats strictly in accordance with law and in particular the provisions of proviso to Section 9 of the Act.
Section 9 of the Act with its proviso inserted by the Bihar Amendment also does not in any way improve the case of the petitioner. Section 9 of the Act reads as follows:
Ferry tolls may be leased by auction – 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 Magistrate of the district or the officer authorities by him to conduct such auction may, for sufficient reason to be recorded in writing refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction.
¼ijUrq Hkkjr ljdkj ;k jkT; ljdkj ;k fdlh ljdkjh midze ¼;k fudk; ;k fcgkj vkSj mM+hlk lgdkjh lfefr vf/kfu;e] 1935 ¼fcgkj vkSj mM+hlk vf/kfu;e 6]1935½ ds v/khu lE;d :i ls jftLVªh ukfod lgdkjh lfefr] ftl {ks= es ifjpkyu dk {ks=kf/kdkj gks] tgka ukS?kkV vofLFkr gks½ ds lkFk ukS?kkVks ds cUnkscLr ds lEcU/k esa ;g vko;’d u gksxk fd cUnkscLr yksd uhyke }kjk fd;k tk; rFkk ukS?kkV pykus dh vuqKk] uhyke dh vkSipkfjdrkvks ds fcuk gh] mu fucU/kuksa vkSj ‘krksZ ij nh tk ldsxh tks jkT; ljdkj fofu’pr djsa A½
12. It would thus appear from the scheme of proviso to Section 9 of the Acts that only a Boatmen co-operative society registered under the Bihar and Orissa Co-operative Societies Act within whose area of operation the ghats are situated is eligible for preferential settlement. Admittedly the petitioner society is not registered under Bihar and Orissa Co-operative Society and its such registration is only under Self Supporting Co-operative Societies Act 1996 and as such it cannot claim the right of preferential of settlement of the ghats in question as has been held by this Court in case of Gandhi Shramik Swablambi Samiti v. State of Bihar reported in 1999(2) PLJR 114 in the following terms :
19. Apart from what has been noticed above, it would appear from the certificate of registration dated 31.12.1998 contained in Annexure-F, that the petitioner society was not registered under the Bihar & Orissa Cooperative Societies Act, 1935 rather it has got registration under the Bihar Self-Supporting Cooperative Societies Act, 1996. As per Rule 11C, only a society registered under the Bihar & Orissa Cooperative Societies Act would be entitled to get preference for settlement of minor mineral under Rule 11A. No material or any provisions of law was produced on behalf of the petitioners society to state that a cooperative society getting registration under the Bihar Self Supporting Cooperative Societies Act, 1996 is also entitled to have preferential right for settlement in terms of Rule 11C of the Rules.
20. Learned Counsel, however, referring to the provisions of the Sections 26 and 27 of the Bihar & Orissa General Clauses Act, 1917, contended that until an amendment of insertion of similar provision to grant benefits to the Cooperative Societies registered under the Bihar Self Supporting Cooperative Societies Act, 1996 under Rule 11C of the Rules, the benefits, which are presently available to a registered society under the Bihar & Orissa Cooperative Societies Act has to be extended to the societies registered under the former Act.
21. In my view, from a bare reference to the provisions referred to above, it would appear that neither the Bihar & Orissa Cooperative Societies Act has been repealed nor enacted so as to incorporate Rule 11C of the Rules. Similar is the effect of insertion of Rule 11C under the Bihar Minor Mineral Concession Rules by S.O. 5572M dated 18.10.1995 whereas the Bihar Self Supporting Cooperative Societies Act, 1996 was introduced in the year 1996. Therefore, unless and until, there is a fresh amendment under Rule 11C of the Rules to extend the benefits to the Cooperative Societies under the Bihar Self Supporting Cooperative Societies Act, 1996, it would not be open to extend such benefits to the petitioner – society.
13. The said judgment rendered in the context of Rule-12 of Bihar Minor Mineral Concession Rules 1972 would also apply with full force in the present case arising out of Section 9 of the Act laying down a similar provision of preferential settlement of a ghat in favour of a boatmen co-operative society registered under Bihar and Orissa Co-operative Societies Act and consequently it has to be held that the petitioner society not being registered boatmen co-operative society under the Bihar and Orissa Co-operative Societies Act is not even qualified for preferential settlement under proviso to Section 9 of the Act and consequently cannot even question the settlement made earlier in favour of the respondent No. 6.
14. Moreover the policy of protection and preferential treatment claimed by the petitioner society in the matter of settlement of ghats in terms of proviso to Section 9 of the Act as brought by the Bihar Amendment Act 13 of 1978 and Act 6 of 1988 would also not be applicable in its case because the proviso to Section 9 of the Act contemplates preferential settlement without holding a bid only if there is one boatmen co-operative society is found eligible or settlement of a particular ghat within its territorial jurisdiction i.e. the area of operation as shown in its bye law and the order of its registration. The concept and purpose of settlement by a comparative and competitive bid as envisaged in the main provision of Section 9 would therefore be better achieved by allowing all such eligible societies to participate in the process of settlement instead of offering such settlement to only one eligible society by excluding the other(s) society. Thus even if it is held for sake of argument that the petitioner society despite its being registered under Bihar Self Supporting Co-operative Societies Act 1996 is eligible for settlement of ghat in terms of proviso to Section 9 of the Act in the future years alongwith the Respondent No. 6 on the basis of area of operation spelt out in their bye laws and their order of registration, the authority will have to hold a bid confined to them alone before passing an order of settlement in favour of the highest bidder. The submission of the petitioner that the moment the new society i.e. petitioner society came to be created for Bandera Prakhand, the right of the respondent No. 6 society even to be considered for such settlement of ghats automatically got wiped out only because it was registered for the old and undivided Muraul Prakhand out of which the new Bandera Prakhand had been carved out is to be noted only for its being rejected for a simple reason that the area of operation of two societies can always overlap specially when there is no law which restricts area of the operation of a society confining it to a particular Prakhand.
15. Preference in the matter of settlement of a ghat under proviso to Section 9 of the Act to a particular boatmen co-operative society registered under Bihar and Orissa Co-operative Societies Act can be given only if there is only one such society in whose area of operation such a ghat is situated but the moment there are more than one eligible society for such settlement, the provision under Section 9 requiring settlement on the basis of an open bid and competition has to prevail over the proviso carved out as an exception. It is a well settled principle of statutory interpretation that the effect of proviso does not automatically override the main provision in a statute in all circumstances. The Apex Court in the case of Virendra Kumar v. Krishi Utpadan Mandi Samiti (1988) 70 STC 360 has held a proviso should be interpreted in a manner which would be in conformity with the intention of the legislature and the object of the Act.
16. Thus when the Act under Section 9 itself envisages the Government/competent authority of the Government to part with its right to lease ferry tolls in respect of its ghat by auction, the operation of proviso of making such a settlement without an open bid by auction can only be enforced if there is only one society eligible on the basis of area of operation for such preferential settlement. The moment there is more than one society eligible on the basis of the area of settlement, the recourse of settlement without auction and/or bid cannot be taken as that would amount to making the main provision under Section-9 of the Act to be totally nugatory. Thus even if the proviso to Section 9 introduces the concept of a preferential settlement without bid in favour of different categories of authorities such as Government of India or State Government or any government undertaking or a local authority or a boatmen cooperative society registered under Bihar and Orissa Cooperative Societies Act 1935, the same can be resorted only if there is only one amongst them eligible for such settlement. The applicability of proviso in context of not holding bid or auction as envisaged under the main provisions of Section 9 of Act would therefore require to be read down by permitting the same category of eligible societies to compete and get settlement by auction/bid confined amongst them in order to save the proviso to Section 9 being declared ultravires Article 14 of the Constitution.
17. In the same vein it has to be also held that the ratio of the judgment of this Court in Bhawanipur case (supra) heavily relied by the counsel for the petitioner is not applicable to the facts of this case because first of all Section 9 of the Act with its proviso was not under consideration in that case. As a matter of fact in Bhawanipur case settlement of ghat/Jalkar was not the issue rather the dispute revolved round the question of membership and registration of the new vis-a-vis the old cooperative society.
18. The Division Bench infact had not even noticed much less addressed itself to a similar provision of settlement of a Jalkar which at the relevant part of time in 1994-95 was also not governed by any statutory provisions like Section 9 of the Act in the present case. Moreover the over emphasized reliance on paragraph No. 7 of the judgment of this Court in Bhawanipur case supra by the learned Senior Counsel for the petitioner seems to be totally misplaced because the Division Bench had only decided the scope of “area of operation” of Bhawanipur Society with reference to their dispute of membership in view of an admitted position on fact that the society’s registration was founded on the geographical limit of a police station namely Sikta P.S. and when the area of Sikta P.S. had been reduced, it was held that the area of operation of the society had automatically got reduced. In fact the following passage of the Bhawanipur case (supra) itself goes to show that area of operation of a society can be co-terminus with the details given either by it in its bye law and the order of registration and it can also be Panchayat wise or village wise in which case the same would not be affected by mere division of a police station or a Prakhand.
As noticed above, the area of operation has been mentioned as Sikta Thana i.e. Sikta Police Station. In other words, when the society was established, its area of operation extended to the entire geographical limits of Sikta Thana as it then stood. It was possible to describe the area of operation by mentioning the Panchayats or the villages comprising Sikta Thana. Had that been the position, the contention that without effecting corresponding amendment in the bye-laws excluding certain panchayats or villages from the area of operation the area could not be reduced, could be accepted. But where the area of operation is described not panchayat wise or village wise but Thana wise and the area of Thana is reduced, it cannot be said that although area of the Thana has been reduced, the area of operation of the society would remain the same, as before. With the change (reduction) in the area of Thana, the area of operation of the society is automatically reduced. In that sense, the area of operation of the society and the area of Sikta Thana would be deemed to be co-terminus. Any other interpretation would be violative of the provisions of Section 8 of the Act. It is true that Section 8 lays down the condition of membership at the time of registration, nevertheless, the provisions as contained therein are enough indication of legislative intent. If the legislative intent is to confine the membership to such persons who reside in the town or village or group of villages (which may be known as Thana), whatever be the unit, if cannot be said that although after change in the area of town, village or Thana the person does not reside in the same town or village or Thana, he will still continue to be member of the society. In my opinion, the situation is covered by the third Paragraph of Clause 10 of the Bye-laws of the Society, by necessary implication. That too will be a case of automatically cessation of membership.
19. This Court thus fails to understand as to how the ratio of judgment of Bhawanipur case rendered in a totally different context pertaining to a dispute of membership of a co-operative society not at all related with the nature of the present controversy of settlement of ghats under the Act, would be applicable ? Only because the issue of the area of operation of a co-operative society was decided in that case will not mean that the said judgment of the division bench is an authority on the scope of proviso to Section 9 of the Act. As noticed above the petitioner has placed nothing on record to show that the area of operation the society Respondent No. 6 was linked with a Thana as was the case of Bhawanipur society. The counsel for Respondent No. 6 has correctly distinguished the Bhawanipur case on facts by stating that the description the area of operation in the order/bye law of registration of the society Respondent No. 6 was on the basis of individual Panchayat(s) and Village(s) of old Muraul Prakhand and as such the formation and registration of the petitioner society under Self Supporting Co-operative Societies Act 1996 in respect of Bandera Prakhand did not affect the area of operation of the Respondent No. 6. Thus even on facts of the present case and in the light of exception carved out in the Bhawanipur case (supra) it has to be held that a mere division of old Muraul Prakhand into two will not adversely affect the area of operation of old and bigger Murual co-operative society so as to make it totally disentitled for being considered for settlement of ghat under proviso to Section 9 of the Act.
20. Be that as it may, these questions have been only answered by this Court as they have been argued by Sri Yogendra Mishra, learned Senior Counsel for the petitioner for seeking and declaration from this Court that the Respondent No. 6 would not be eligible for settlement in future and such settlement of ghats in question must be made only in favour of the petitioner society. It is infact only in that background that it has to be held that the petitioner society being not a boatmen co-operative society registered Bihar and Orissa Co-operative Societies Act is in eligible for settlement of ghat on a preferential basis and that the Respondent No. 6 society being a registered boatmen co-operative society under Bihar and Orissa Co-operative Societies Act 1935 with its area of operation embracing also the ghats in question is eligible for being considered for such settlement in future years.
21. In the result this writ application in its present form with its existing prayer is fit to be dismissed on account of its becoming infructuous. This writ petition has to be also dismissed because the counsel for the petitioner as noted above has himself submitted that he did not intend to press the two reliefs in the prayer portion to the writ application on account of virtual completion of the tenure of settlement of the Respondent No. 6. It however goes without saying that settlement of ghat, even in future will be made in favour the eligible society/person strictly in accordance with law.