JUDGMENT
Jyotirmay Bhattacharya, J.
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 ferry-ghats 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 settlement 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 years and on expiration of the said period the settle shall be entitled to the option of successive renewals for the same period if other conditions are then fulfilled.
…
11. Mr. Ganguly submitted that when the Rule prescribes for grant of lease for a period of three years with the option of successive renewals for the same period subject to fulfilment of the requisite conditions, the concerned authority cannot refuse to allow the petitioners’ prayer for renewal and/or extension of lease for another year.
12. Mr. Ganguly further submitted that even the holding of auction for settlement of the ferry-ghats by the concerned authority for a period of one year only is contrary to the aforesaid provision of the Manual as the said provision prescribes for settlement by way of lease for a period of three years.
13. By drawing my attention to the Rule 266 of the said Manual, Mr. Ganguly submitted that the management of the ferry with water area upto 5 acres has been transferred to the Panchayats by the order of the Board of Revenue under Chapter XVII of the said Manual. According to Mr. Ganguly, the Panchayat authority while in course of management of the said ferry settles the ferry by lease, the Panchayat authority is required to follow the provision regarding the grant of such lease as contained in Rule 250 of the said Manual.
14. Ultimately, Mr. Ganguly submitted that since the Panchayat authority has not followed the provision contained in Rule 250 of the said Manual by issuing notice for holding auction in a manner which is apparently contrary to Rule 250 of the said Manual, the impugned notice being Annexure ‘P-4’ to this writ petition cannot be sustained.
15. Mr. Rabilal Maitra, learned Government Pleader, appearing for the respondent Nos. 6 and 7, refuted the said submission of Mr. Ganguly by drawing my attention to sub-rule (ii) to Rule 281 of the said Manual wherein the procedure for settlement of ferries has been prescribed as follows :
281. (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 co-operative societies or partnership firms as conceived in Rule 266A.
Rule 281(v) prescribes the forms of lease of ferries. The said sub-rule prescribes that the lease for a ferry shall be executed in Form 8 in Appendix IV. The lease shall have to be registered.
By referring to the Form. No. 8 in Appendix IV, Mr. Maitra submitted that even the said form prescribes for grant of lease of ferry for a period of one year only.
16. Thus, Mr. Maitra submitted that when Rule 281 read with the relevant form of the lease prescribes grant of lease of a ferry for one year only, the notice for holding auction for settlement of the said ferries for one year, cannot be held to be illegal.
17. Mr. Maitra further submitted that when the petitioners accepted the settlement of the ferry for a year by accepting the terms of the said settlement, the petitioners can neither challenge the terms of such settlement nor can pray for extension of such term on any ground whatsoever far less on the ground of their investment for the said business pursuant to the lease.
18. Accordingly, Mr. Maitra submitted that the writ petition deserves no merit for consideration, particularly in view of the fact that no relief has been sought for by the petitioners for quashing the impugned notice being Annexure ‘P-4’ to this writ petition.
19. Heard the learned Advocates for the parties. Considered the materials-on-record.
Let me now consider the submissions of the learned Advocates of the respective parties, as indicated above.
20. Rule 250 which prescribes the conditions of lease of Ijara settlement, is included in Chapter XVI of the said Manual which deals with settlement and/ or transfer of hats and bazars. The conditions for settlement of ferry have not been prescribed under Chapter XVI of the said Manual.
Accordingly, I hold that Rule 250 of the said Manual cannot regulate the conditions for settlement of ferries by way of lease.
21. The management of ferries, fisheries each with water area upto 5 acres, tanks each with water area upto 5 acres and other Khutagari interests which has been transferred by the Government to the Panchayat by the order of the Board of Revenue, West Bengal is included in Chapter XVII of the said Manual.
22. Rule 266 of the said Manual though provides for transfer of interest in land belonging to or at the disposal of the State Government including that of hat, bazar, ferries etc. and the management thereof to the Panchayat but the said Chapter does not prescribe the modalities of settlement of the ferries by the Panchayat.
23. Mr. Ganguly, however, referred to Rule 266A of the said Manual to show that the modalities of settlement of hat, bazar, ferries, etc. have been prescribed therein.
24. On careful consideration of the provision of Rule 266A of the said Manual, I do not find any relevance and/or application thereof to the settlement of the ferry. The said provision deals with settlement of the fisheries. As such, the said provision has no manner of application in the instant case.
25. Mr. Rabilal Maitra strongly relied upon Rule 281 of the said Manual and the form of lease as prescribed in Form 8 in Appendix IV to show that the lease of ferry can be granted only for a year. On perusal of the said provision, it appears that Rule 281 deals with settlement of both public ferries and non-public ferries.
26. On consideration of the said provision read with the prescribed form of lease, it further appears to this Court that even the said Rule does not regulate the conditions for grant of lease under the management of the Panchayat. The said Rule prescribes the procedure for settlement of ferries which have been declared as public ferries under the Bengal Ferries Act, 1885. The procedure for settlement of non-public ferries, viz., other vested and khasmahal ferries has also been prescribed in the said Rule. The said Rule has not prescribed any provision relating to settlement of ferry under the management of the Panchayat. In fact, no specific Rule has been provided in the said Manual prescribing the modalities regarding settlement of ferry by the Panchayat.
27. Since no specific Rule has been prescribed for settlement of the ferry under the management of the Panchayat, in my view, the Panchayat authority can fix its own procedure for settlement of the ferry under its control. While formulating the procedure for settlement of ferry under the management of the Panchayat, the concerned Panchayat should not deviate from the procedure laid down for settlement of public ferries and non-public ferries under the said Manual for maintaining uniformity in settlement of ferries of any description by different statutory bodies.
28. Thus, I hold that though Rule 281 is not directly applicable for settlement of the 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.
29. Since I find that the impugned notice does not contain any condition, which is contrary to the prescribed conditions for settlement of the public and non-public ferries, I decline to interfere with the impugned notice.
30. this Court, of course, has no quarrel with the said submissions of Mr. Ganguly regarding the Court’s power to mould the relief in appropriate cases, as the Court’s power to mould the relief in appropriate cases, is well recognised. Reference may be made in this regard to the decision of the Hon’ble Supreme Court in the case of Union of India v. S.B. Vohra, , wherein it was held as follows:
In Comptroller and Auditor General of India v. K. S. Jagannathan, it was held that: (SCC p. 691, para 18)
Article 226 is designedly couched in a wide language in order not to confine the power conferred by it on the High Courts only to the power to issue prerogative writs as understood in England. The High Courts exercising jurisdiction under Article 226 can issue directions, orders or writs so as to enable the High Courts to beach injustices wherever it is found and to mould the reliefs to meet the particular and complicated needs of the country.
But in the facts of the instant case, even by moulding the prayer, relief cannot be given to the petitioners.
31. Furthermore, it is an admitted position that the petitioners accepted the lease knowing the conditions of the grant. As such, the prayer for renewal of the lease and/or extension of the period of lease cannot be granted as it is opposed to public policy. To maintain transparency in the process of selection of the settle/lessee, selection should be made either by auction or by tender, so that the transparency can be adjudged by the participants themselves. Renewal of lease and/or extension of lease by private negotiation as prayed for, cannot be encouraged particularly in the absence of any provision either for renewal or for extension of lease in the said Manual.
32. Under such circumstances, I find no merit in this writ petition. The writ petition, thus, stands rejected.
33. There will be, however, no order as to costs.
34. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.