Sinha. J. - (1.) The facts in this case are shortly as follows: The Rajmahal Manikchowk Ferry, with its subsidiary ferries at Soneghat, and Narainpur, more popularly known as the Rajmahal Ferry is an inter-state ferry, plying between Malda in West Bengal and Rajmahal in Behar. So far as this application is concerned, I have jurisdiction only with regard to that part of the ferry which lies within the State of West Bengal. The West Bengal Government .has made a declaration, under power conferred by d. (a)' of Section 6 of Bengal Ferries Act, 1885, that the ferry known as the "Rajmahal Ferry" on the Ganga at Manikchak Sadarghat within the limits of the Manichak Police Station in the district of Malda, including the subsidiary ferry at Narainpur, shall be deemed to be and to have always been, a public ferry, and that for the purposes of the said Act, the said Ferry shall be deemed to be and to have always been situated in the district of Malda. The fact is that the ferry existed even before the Province of Behar was separated from Bengal, and in the year 1951 the State of West Bengal and the State of Behar have jointly decided that the ferry as a whole would be administered by the District Magistrate of Malda, and the revenue therefrom shall be divided half and half between the two States. This ferry appears to be of some importance, particularly after the partition of Bengal, and it is stated that it is one of the main life-lines, joining, west Bengal with the northern part of this truncated State. In or about 1953, the District Magistrate of Malda advertised that this ferry will be settled by public auction, and it was settled with the petitioner for a period of one year from 1-4-1953. Upon the expiry of the year, it was again leased out to the petitioner for a period -Of two years ending on 31-3-1956, at an annual rental of Rs. 40,000/-. It does appear that the petitioner has been running the ferry very efficiently. He employs two steamers, two flats', 18 boats and a crew of 70. In July 1955, the petitioner applied before the District Magistrate of Malda to extend the period of lease by another three years, and offered to pay an increased rental of Rs. 61,000/-. He also indicated that he had a scheme for further development of the ferry and increased services. The District Magistrate was favourably impressed with the application and sent up his recommendations to the Commissioner of the Presidency Division. The Commissioner on 13-9-1955 requested the District Magistrate to call for sealed tenders for the ferry but he made this concession that the items of improvement offered by the petitioner should form the minimum requirements of the ferry. On 10-11-1955 the petitioner made a written representation directly to the Commissioner requesting him to grant a settlement of the ferry for a period of three years. The Commissioner called for a report from the District Magistrate who submitted his report on or about 23-11-1955 recommending the petitioner in strong terms. On 19-12-1955 the Commissioner directed the District Magistrate to call for sealed tenders as already ordered. The items of improvement offered by the petitioner were directed to be part of the minimum requirements of the ferry. In compliance with the said order the District Magistrate on 6-1-1956 issued a public notice inviting sealed tenders for settlement of the ferry for a period of three years commencing form 1-4-1956. Pursuant to the said notice, six persons including the petitioner, submitted sealed tenders. The petitioner made a tender of RS. 76,525/-. His was actually the fourth highest tender, the hightest being Rs. 1,28,575/-. The District Magistrate carefully went into all these tenders and after giving his exhaustive reasons, on 14-2-1956 accepted the tender of the petitioner, and this was sent to the Commissioner for sanction, I might mention here that the Commissioner had in his turn referred to Government) for the purpose of approval of his direction regarding the calling of scaled tenders. This is of course merely administrative approval, since, as I shall presently show, no such approval is necessary In law. As I have stated above, the District Magistrate accepted the tender of the petitioner on 14-2-1956 & forwarded it to the Commissioner, who appears to have made a note in the files on the very nest day, namely, the 15th, according his sanction. As a matter of fact, on 31-2-1956 he informed one Narbadeswar Prasad Singh that the matter of settlement of the Rajmahal Manikchak Ghat Ferry had already been decided after full consideration and could not be reopened. On 2-3-1956 there came a directive from the West Bengal Government. What had happened was as follows. I have already said that the Commissioner had referred to Government asking for its administrative approval with regard to the direction to the Magistrate to call for tenders. The West Bengal Government having considered the matter was advised that under the Bengal Ferries Act, the only way that a public ferry could be leased out was by public auction land in no other manner. Consequently by a communication issued on or about 2-3-1956, the Commissioner was informed that the calling of sealed tenders was not legal and that the ferry should be settled by public auction. Pursuant to this directive, an auction notice was published on 9-3-1956. Thereafter on 15-3-1956 the petitioner moved a petition before the District Magistrate requesting him to rescind and/or recall the auction notice, but this application was rejected. The auction was for some time postponed, but on or about 7-4-1956 another notice was given that there will be a public auction for the purpose of settling the ferry.
(2.) This rule was issued on 19-4-1956 calling' upon the opposite parties to show cause why a Writ in the nature of Mandamus should not issue directing them to rescind, recall, withdraw and/or forbear from giving effect to the notice of auction mentioned therein, and/or why they should not be directed to act and proceed in accordance with law and for other reliefs. There has been an interim injunction restraining the auction and the petitioner is canying on the ferry in the meanwhile.
(3.) Mr. Gupta appearing on behalf of the petitioner has taken the following points; (1) That the Government of West Bengal has no right to interfere, or to issue any directive, under the Bengal Ferries Act, 1885, (hereinafter called the 'Act') upon the Commissioner. (2) That the respondents have already accepted the tender of the petitioner and are estopped from holding a public auction. (3) That the leasing out by public auction of a public ferry, as enjoined in Section 9 of the Bengal Ferries Act, 1885, is merely directory and not mandatory. (4) That even if it is considered that the holding of a public auction is mandatory, stilt the leasing out by calling public tenders amounts to, or is equivalent to, public auction. The relevant provisions of the said Act are Ss. 7, 8 and 9 arid they are set out below : "7. The control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner. 8. The immediate superintendence of every public ferry shall be vested "in the Magistrate of the district in which such ferry is situated, or in such other officer as the State Government may, from time to time, either by name or by official designation, appoint. And such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arrangements for the supply of boats for such ferry, and for the collection of the authorized tolls leviable thereat. 9. 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 authorized 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. 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 give security for its due fulfilment". ;