S. K. Dhaon, J. - (1.) THE material averments in the memorandum of this petition are these. By a notice dated 16th August, 1990 the Zila Parishad, Budaun, informed the general public that the right to ferry at the Tehra Ghat shall be subject matter of a public auction on 31st August, 1990. THE auction was held on the date fixed and at that auction the petitioner was the highest bidder. THE bid was accepted by the Chairman of the Zila Parishad, Budaun. Full auction money, viz, Rs. 3000/- was deposited by the petitioner with the Chairman of the Zila Parishad. THE petitioner commenced the ferry at the Ghat THE draft of the agreement was forwarded to the Commissioner for approval. Certain persons approached the Chairman of the Zila Parishad. On 1st October, 1990, the Upper Mukhya Adhikari, Zila Parishad, gave a notice that the right to ferry will be put to public auction on 10th October, 1990. A true copy of the notice has been annexed as Annexure 3 to the writ petition. That notice has been illegally issued at the instance of certain interested parties. THE Chairman, Zila Parishad, has acted arbitarily and malafide in issuing the notice. THE petitioners' bid having been accepted and it having deposited the entire amount, fresh auction could not take place.
(2.) WE have gone through the petition carefully more than once It is implicit in the averments made in paragraph 9 of the petition that the approval of the Commissioner was required before the acceptance of the bid by the Zila Parishad could be given the shape of a valid agreement. There is not even a whisper in the memorandum of the petition that any approval was given by the Commissioner before the impugned notice was issued. There is no averment whatsoever that the Commissioner had given his approval. There is also no averment that before issuing the impugned notice of re- auction the Zila Parishad did not afford any opportunity of a hearing to the petitioner. According to the petitioner itself, the Zila Parishad issued the impugned notice before the Commissioner could give his approval. In the absence of an approval, no legal right in favour of the petitioner came into existence even though its bid was the highest and the same had been accepted by the officer conducting the auction. By the notice only a fresh auction is to be held and the petitioner and all other competitors will have a fair opportunity to participate in the auction. Reliance is placed by the learned counsel on a Division Bench decision of this court in the case of Krishna Prasad v. The Notified Area. Obra, Distt, Sonbhadra, 1990 ALJ 581, in support of the proposition that justice and fair play required that the petitioner should have been given an opportunity of a hearing before its bid was cancelled. The material facts in the aforesaid decision are these An auction took place to confer a right to collect Tahbazari within the jurisdiction of the Notified Area, Obra. The petitioner in this court was the highest bidder, he deposited certain amount and the papers were forwarded to the Collector. At the instance of one Jai Prakash Tripathi an order was passed that if he (Sri Tripathi) deposited one-fourth of the offer, his offer would be treated as first bid and a fresh auction should take place. A date was fixed for re-auctioning the right to collect the Tahbazari At that stage the petitioner approached this Court. The contention on behalf of the Notified Area was that the bid required acceptance by the District Magistrate. This contention has been repelled on the ground that no specific rule or bye-law has been placed before the Court in support of this plea. This Court observed :- "For the sake of argument even if it is accepted that the highest bid of the petitioner required acceptance by the Collector, had the Collector rejected the offer suo motu, it could be said that no opportunity to the petitioner was necessary. But, when the Collector rejected the bid of the petitioner on the application of Sri Jai Prakash Tripathi, the minimum requirement from him was to give an opportunity to the petitioner to justify that the auction knocked down in favour of the petitioner was fair and due notice had been given to the persons concerned. Since the Addl. Collector in passing the impugned order dated 14-4-1989 has not observed the rule of fair play and has not afforded reasonable opportunity to the petitioner, we think that the order suffers from patent error of law and deserves to be quashed."
(3.) THIS case is not apposite. We have already indicated that according to the averment made by the petitioner itself in paragraph 9 of the petition the execution of the agreement was subject to the approval of the Commissioner. THIS appears to be the correct legal position also. Section 7-A of the Northern India Ferries Act, 1878 (hereinafter referred to as the Act), inter alia, provides that the State Government may direct that any public ferry, wholly or partly within the area subject to the authority of......in the State be managed by that Board, and thereupon that ferry shall be managed accordingly. It is well known that the Zila Parishad is the successor of the erstwhile District Board It should be presumed that the State Government has issued a direction that the ferry in question should be managed by the Zila Parishad Section 8, inter alia, provides that the tolls of any public ferry may, from time to time, be let by public auction for a term not exceeding five years, with the approval of the Commissioner. Therefore, there can be no difficulty in coming to the conclusion that the requirement of the provisions of the Act is that the right to collect toll, if subjected to a public auction, can be conferred only with the approval of the Commissioner. In Krishna Prasad's case this Court found as a fact that the volte- face of the Collector was at the behest of Jai Prakash Tripathi. In the present petition it is not the case of the petitioner that some one in particular made any application either to the Zila Parishad or to the Commissioner to set at naught the auction held at an earlier date. Presumbly. either the Commissioner or the Zila Parishad acted suo motu in directing a re-auction.;