WP(C) 2976/2008 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI I have heard Mr. MU Mondol, learned counsel for the petitioner in WP(C) Nos.2706 /2008 and 3035/2008 and private respondent in WP(C) No.2976/2008, and Mr.A.K. Bh uyan, learned Standing Counsel, Inland Water Transport Department, Govt. of Assa m. I have also heard Mr. HRA Choudhury, learned Sr. counsel, appearing for the petitioner in WP(C) No.2976/2008 and private respondent in WP(C) No.3035/2008, a nd Ms.H.N. Phookan, learned Govt. Advocate, appearing on behalf of the remaining respondents. 2. By this common judgment and order, I propose to dispose of all these thr ee writ petitions inasmuch as all these writ petitions are inextricably connecte d with each other and the decision, in any of these writ petitions, would have a bearing on the outcome of the other writ petitions. All these writ petitions ha ve, therefore, been, on the request made by the learned counsel for the parties concerned, heard together. WP(C) No.2706/2008 3. The case of the petitioner, namely, Ashad Ali Mondal, in this writ petit ion, is as under: Inland Water Transport Department, Government of Assam, (in short, ’the IWT’) ha s, vide order, dated 15.05.2008, settled Oudubi Kheluapara Commercial Cargo-cum- Passenger Ferry Service, in favour of the petitioner, for a period of one year, with effect from 01.07.2008 to 03.06.2009. The petitioner deposited the lease mo ney on 17.05.2008 and the operation of the said ferry service was handed over to the petitioner by the IWT on 18.05.2008. 4. Before, however, the ferry service, in question, could be settled by the IWT with the present petitioner, Baitamari Anchalik Panchayat published a notic e, on 10.05.2008, inviting tenders for settlement of, amongst others, Oudubi Khe luapara Ferry, claiming that the said Panchayat has no authority to make settlem ent of the said ferry. The petitioner, with the help of a writ application, made under Article 226 of the Constitution of India, has sought for issuance of a wr it of certiorari setting aside and quashing the impugned NIT, dated 10.05.2008. WP(C) 2976 OF 2008 5. The case of this writ petitioner, namely, Abdus Subor, runs as under: Oudubi Kheluapara Ghat (i.e., ferry) is one of the six ferries run and maintaine d by Baitamari Anchalik Panchayat. Pursuant to the notice, dated 10.05.2008, iss ued by the said Panchayat, the petitioner and others submitted their tenders. Th e petitioner’s bid being the highest, the said ferry was settled by the said Pan chayat with the petitioner and the petitioner accordingly deposited the requisit e lease money and started running operation of the said ferry with effect from 0 1.07.2008. On the same day, i.e., 01.07.2008, respondent No.6, namely, Ashad Ali Mondal, (i.e., the petitioner in WP(C) No.2706/2008 aforementioned) started ope rating the said ferry on the strength of a settlement order, dated 17.05.2008, i ssued by the Director, IWT. 6. As the ferry service, in question, is not a Govt. ferry, the same falls within the exclusive jurisdiction of the Baitamari Anchalik Panchayat and, hence , the IWT has no authority to settle the said ferry by changing its name. The pe titioner has accordingly sought for quashing of the settlement made in favour of the respondent No.6, namely, Ashad Ali Mondol (i.e., the petitioner in WP(C) No .2706/2008). WP(C) 3035 OF 2008 7. The case of this writ petitioner, namely, Ashad Ali Mondal, is as follow s: Inland Water Transport Department, Government of Assam, (in short, ’the IWT’) ha s, vide order, dated 15.05.2008, settled Oudubi Kheluapara Commercial Cargo-cum- Passenger Ferry Service with the petitioner, for a period of one year, with effe ct from 01.07.2008 to 30.06.2009. The petitioner deposited the lease money on 17 .05.2008 and the operation of the said ferry service was handed over to the peti tioner by the IWT on 18.05.2008. Before, however, the settlement was so granted, in favour of the petitioner, by the IWT by its order, dated 10.05.2008, aforeme ntioned, Baitamari Anchalik Panchayat issued a notice inviting tenders for settl ement of, amongst others, Oudubi Kheluapara Parghat (i.e., ferry). By filing a w rit petition, which gave rise to WP(C) No.2706/2008, this petitioner had challen ged the power of the said Anchalik Panchayat to issue NIT for settlement of the said ferry service. By an order, dated 27.06.2008, passed in the said writ petit ion, the High Court suspended the operation of the NIT, dated 10.05.2008, aforem entioned, issued by the said Panchayat, so far as the ferry service, in question , is concerned. 8. This petitioner’s allegation is that it is after passing of the said int erim order, dated 27.06.2008, by the High Court that the respondent-Panchayat se ttled the said ferry ghat, on 04.07.2008, in favour of the private respondent, ( i.e., respondent No.9), namely, Abdus Subor, (i.e., the writ petitioner in WP(C) No.2976/2008 aforementioned) showing that the settlement had been made, in favo ur of the respondent No.9, as far back as on 25.06.2008. The present petitioner claims that since the settlement has been granted by the said Panchayat in favou r of the private respondent after the interim order was passed by the High Court in WP(C) No.2706/2008 (though shown to have been granted before the said interi m order) the settlement so made, in favour of the private respondent, namely, Ab dul Subor, is illegal, without authority of law and be set aside and quashed. 9. The distinction existing between a ’public ferry’ and ’private ferry’ an d also the distinction between ’public ferry’, on the one hand, and Government f erry, on the other, have been clearly described in Bidhan Mudoi Vs. State of Ass am and others, reported in (2008) 2 GLR 592. The power of the IWT, Govt. of Assa m, to settle a ferry service has also been dealt with in Bidhan Mudoi (supra). 10. Having considered the statement of object and reasons of the Northern In dia Ferries Act, 1878, (in short, ’the Ferries Act’) and, particularly, keeping in view Section 4 thereof, this Court concluded, in Bidhan Mudoi (supra), at par a 14, as under: 14. A bare reading of Section 4 makes it clear that the State Government may , by a notification published in the official gazette, declare as to what ferrie s shall be deemed to be public ferries. Section 4 also empowers the State Gove rnment to take, by way of such notification, possession of private ferry and dec lare the same to be public ferry. Section 4 further empowers the State Governm ent to establish new public ferries and/ or define the limits of public ferry, c hange the course of public ferry and discontinue a public ferry. It also clearly follows from the scheme of Section 4 that unless a notification is issued in te rms of Section 4, a ferry cannot be regarded as a public ferry within the meanin g of the Ferries Act. 11. Having, thus, held that under the scheme of the Ferries Act, a ferry can not be regarded as a ’public ferry’ unless a notification stands issued in terms of Section 4 of the Ferries Act, this Court, upon analyzing not only the provis ions of Section 4, but also some other relevant provisions of the Ferries Act, h eld, in Bidhan Mudoi (supra),at para 22, thus: 22. A conjoint reading of Sections 4, 6, 7, 7A, 8, 12 and 13 make it abundan tly clear that the State Government can exercise power of control and management only in respect of such a ferry, which, by way of notification, as contemplated in Section 4, has been notified as public ferry. The State Government has the power to either declare a ferry, which has already been in existence, as a publi c ferry or it may take over a private ferry and declare the same to be a public ferry. The State Government can create a public ferry, where no ferry exists, it can change the course of a ferry, which it has declared or created as public fe rry, or it may even discontinue, which it might have created or declared, as a p ublic ferry. Every ferry, which the State Government has declared as a public fe rry under Section 4, stands vested in the State Government, though the managemen t and superintendence of such a ferry can be vested by the State Government in a municipality or any public body including local bodies, such as, Panchayat, and when the management and superintendence of such a public ferry is vested in an y municipality or public body, such a public body would become entitled to settl e, for collection of tolls, such a public ferry by public auction with the appr oval of the Commissioner and, otherwise than by public auction, with the previou s sanction of the State Government. 12. This Court further made it clear, in Bidhan Mudoi (supra), at para 24, t hus : 24. Necessarily, therefore, unless and until a public ferry, as contemplated in Section 4, is vested in terms of the provisions of Sections 7 and 7A, no loc al-self-Government, such as a Panchayat, will have, under the Ferries Act, the p ower to operate a ferry, which the State Government has declared or created as a public ferry. Any ferry, which is not a public ferry within the meaning of Sect ion 12, would be a private ferry. Section 13 puts an embargo on the private ferr ies from being run and operated within the distance of three miles of a public f erry. This distance of three miles may, however, be reduced, in a given case, by the State Government in exercise of its powers under Section 13. Unless, there fore, a ferry has been declared or created as a public ferry within the meaning of Section 4, there is really no legal impediment, under the Ferries Act, on any person establishing, maintaining or running a private ferry in any part of any river within the State of Assam. It further logically follows that the State Go vernment cannot restrain or control operation of private ferries except as provi ded in the Ferries Act and/or the Rules framed thereunder. 13. Having pointed out the position of law as indicated above, this Court de termined the parameters of the power of the IWT, Govt. of Assam, in the followin g words, at para 28: 28. What, logically follows from the above discussion is that the power of t he Department of Inland Water Transport, Government of Assam, to grant settlemen t of ferries would remain limited to only such a ferry, which has been declared or created as a public ferry under Section 4 of the Ferries Act and has been pla ced in the Appendix ’A’ to the Ferries Rules, 1968. The Appendix A, originally, included as many as 11 major ferries on the river Brahmaputra. In course of tim e, some other ferries have been included in this list. 14. What emerges from the discussion, held, as a whole, is this: Unless the Government of Assam declares or creates a public ferry under Section 4 of the Fe rries Act and the declaration, so made, is included in Appendix-A to the Ferries Rules, 1968, Department of Inland Water Transport, Govt. of Assam, shall have n o jurisdiction or authority to grant settlement of such ferries. In other words, the power of the IWT to grant settlement of ferries would remain limited to onl y such a ferry, which has been declared or created as a ’public ferry’ under Sec tion 4 of the Ferries Act and has been included in Appendix-A to the Ferries Rul es, 1968. When, however, jurisdiction or authority of the IWT to make settlement is questioned, the Court is bound to ascertain if the ferry, in respect whereof settlement has been made by the IWT, Government of Assam, is or is not a ferry declared or created as a ’public ferry’ by the State Government by virtue of the powers vested in it under Section 4 of the Ferries Act. Unless, therefore, ther e is a ferry declared or created as a ’public ferry’ within the meaning of Secti on 4 of the Ferries Act, there is really no legal impediment, under the Ferries Act, on the part of any person, establishing, maintaining or running a private f erry in any part of any river within the State of Assam. 15. The ferries, which form the subject-matter of controversy, in the presen t three writ petitions, do not, admittedly, find mentioned in Appendix ’A’. As t he Inland Water Transport Department, Government of Assam, has no authority or j urisdiction to make settlement in respect of any ferry, which does not come with in the list of the ferries mentioned in Appendix A, there can be no escape from the conclusion that the said Department could not have granted settlement in res pect of the ferries aforementioned, in favour of Ashad Ali Mondal, who is the pe titioner in two of the writ petitions, namely, WP(C) Nos.2706/2008 and 3035/2008 . 16. In view of the conclusion reached above that in all the three writ petit ions, both the ferries, in question, are not ’public ferries’ within the meaning of Section 4 of the Ferries Act and that the State Government has no authority or jurisdiction to make settlement in respect of any of these ferries, the lease /settlement, granted by the Director, Inland Water Transport Department, Govt. o f Assam, in favour of the writ petitioner, namely, Ashad Ali Mondal, in WP(C) No s. 2706/2008 and 3035/2008, has no legs to stand and must necessarily be set asi de. 17. Having, thus, pointed out that the department of IWT had no power to mak e settlement of the ferry, in question, in favour of the petitioner, namely, Ash ad Ali Mondal, in WP(C) Nos.2706/2008 and 3035/2008, let me, now, turn to the qu estion as to whether Baitamari Anchalik Panchayat had the power to make settleme nt in favour of the petitioner of WP(C) No.2976/2008, namely, Abdus Subor, who i s private respondent in the remaining two writ petitions, namely, WP(C) 2706/200 8 and 3035/2008. 18. While considering the above aspect of the case, it is important to note that in Jayant Bora Vs. State of Assam, reported in 2006(3) GLT 844, the High Co urt has held that in the light of the provisions of Section 106 of the Assam Pan chayat Act, 1994, a ’public ferry’ need not necessarily be vested in an Anchalik Panchayat; rather, an Anchalik Panchayat, by virtue of the provisions of Sectio n 106 of the Assam Panchayat Act, 1994, has the exclusive authority to settle, i n accordance with the rules framed for the purpose, a ’public ferry’, which is n ot a ’Government ferry’, but located within the territorial jurisdiction of the Anchalik Panchayat concerned. 19. What is, now, of utmost importance to note is that under Section 106 of the Assam Panchayat Act, a ’public ferry’, other than a ’Government ferry’, stan ds vested in an Anchalik Panchayat within whose local jurisdiction such a ferry falls. This, in turn, shows that no Anchalik Panchayat has the authority or juri sdiction to settle such a ’public ferry’, which may have been acquired or establ ished as a ’public ferry’ under Section 4 of the Ferries Act, 1878, but one of w hose ends meet a Government road, Government land or embankment. If, however, no ne of the ends of a ’public ferry’, established under Section 4 of the Ferries A ct, 1978, meets a Government road, Government land or embankment, such a ’public ferry’ would stand vested in the Anchalik Panchayat within whose territorial ju risdiction such a public ferry falls, for, such a ’public ferry’ would not fall within the ambit of the definition of the ’Government ferry’. 20. Coupled with the above, it is also worth noticing that having considered the case of Jayant Bora (supra), this Court, in Bidhan Mudoi (supra), held : 39. The question, now, is as to whether there is any conflict between the Fe rries Act, 1878, and the Assam Panchayat Act, 1994. That the Assam Panchayat Act , 1994, is a valid piece of legislation is not in dispute. That the State Legisl ature was, by virtue of its powers under Entry 13 of the State List, competent t o make legislation with regard to the ferries established by it under Section 4 of the Ferries Act, 1878, is not also in dispute. Obviously, therefore, it is in exercise of this legislative authority that the State Government has made provi sions, in the Assam Panchayat Act, 1994, as regards automatic vesting of public ferries, other than the Government ferries, in the Anchalik Panchayats. In shor t, a ferry, other than Government ferry, which the State Government creates unde r Section 4 of the Ferries Act, gets, automatically, vested in the Anchalik Panc hayat in the light of the provisions of the Assam Panchayat Act. So far as the G overnment ferries are concerned, these ferries would still remain vested in the State Government and the settlement of such ferries can be given by the State Go vernment in terms of the Ferries Rules, 1968, and by none else. I do not find t hat the conclusions, so reached by me, are, in any way, different from what Jaya nta Bora’s Case (supra) lays down. Hence, the question as to whether the decis ion, rendered in Jayanta Bora’s case (supra), to the effect that the Ferries Act shall be treated to be impliedly repealed to a limited extent, by virtue of the application of the Assam Panchayat Act, 1994, is really a question, which is no t necessary to be considered for disposal of the present two writ petitions. It would, therefore, be an academic exercise, on the part of this Court, if it end eavours to determine as to whether or not the conclusion, reached in Jayanta Bor a’s case (supra), that the Ferries Act stands repealed, as indicated hereinabove , is correct or not. Such an academic exercise is neither permissible nor desir able in law. It is trite that any question, which is not imperative for decisio n in a writ application and which would be purely academic in nature, the Court should not embark upon the discussion of such academic issues. In other words, if any particular aspect raised in a writ petition is not necessary to be ascert ained for the purpose of disposal of the writ petition, the Court should not ind ulge into the exercise of deciding such an issue. I am guided to adopt this vie w from the law laid down in State of Bihar v. Rai Bahadur Hurdut Roy Moti Lal Ju te Mills, (AIR 1960 SC 378), wherein it has been held as follows: In cases where the vires of statutory provisions are challenged on constitutio nal grounds, it is essential that the material facts should first be clarified a nd ascertained with a view to determine whether the impugned statutory provision s are attracted; if they are, the constitutional challenge to their validity mus t be examined and decided. If, however, the facts admitted or proved do not att ract the impugned provisions, there is no occasion to decide the issue about the vires of the said provisions. Any decision on the said question would in such a case be purely academic. Courts are and should be reluctant to decide constit utional points merely as matters of academic importance. 21. What, thus, emerges from the discussions, held as a whole, is that a pub lic ferry, other than a Government ferry, created under Section 4 of the Ferries Act, stands vested in an Anchalik Panchayat within whose territorial jurisdicti on such a ferry falls and the Anchalik Panchayat has the freedom to settle, in t erms of Section 106 of the Assam Panchayat Act, 1994, such a public ferry by inv iting tenders. This apart, every Anchalik Panchayat or, for that matter, every i ndividual is free to set up its own ferry, for, no legislation exists stopping a n Anchalik Panchayat or any other individual from setting up a ferry, which does not come within the specified distances of a public ferry notified under Sectio n 4 of the Ferries Act. 22. In the backdrop of what has been discussed above, when I revert to the c ase at hand, what attracts the eyes, most prominently, is that the ferry, in que stion, in WP(C) No.2976/2008, is not a ferry created under Section 4 of the Ferr ies Act, and, hence, the State Government or the IWT Department can have no say in the operation, control and management of the said ferry. In short, thus, the ferry, in question, is not a ferry covered by Section 4 of the Ferries Act; rath er, it is a ’public ferry’ as conceived in Section 106 of the Assam Panchayat Ac t, 1994. In such circumstances, the Panchayat, whereunder Oudubi Kheluapara Ferr y falls, is entitled to settle the ferry. If, in the process of making such sett lement, the said Panchayat commits any infraction of the provisions of law, the same may make settlement of the ferry, in question, made by them, open to challe nge in a court of law. 23. In view of the fact that this Court has found that the ferry, in questio n, falls within the jurisdiction of Baitamari Anchalik Panchayat, the power to m ake settlement by the said Panchayat in favour of Abdus Subor, who is petitioner in WP(C) No.2976/2008, cannot be doubted and, hence, the settlement, granted by the said Panchayat, in favour of this petitioner cannot be interfered with. If, however, in the process of making settlement in favour of Abdus Subor, the said Panchayat has committed any other contravention of law, the decision, rendered in this writ petition, shall have no bearing and shall not debar any other proce eding, which may be, otherwise, maintainable in law. 24. As far as the remaining two writ petitions, namely, WP(C) Nos.2706/2008 and 3035/2008, are concerned, these two writ petitions must fail on account of t he fact that the Department of IWT has no authority to settle the ferry, in ques tion. Hence, the settlement, made in favour of the petitioner, Ashad Ali, cannot be maintained. His writ petitions, therefore, fail and the same shall according ly stand dismissed. 25. In the result, and for the foregoing reasons, the settlement, made in fa vour of the petitioner in WP(C) Nos.2706/2008 and 3035/2008, is hereby set aside and the settlement made by the said Panchayat in favour of Abdus Subor is uphel d. Upholding of this settlement shall not, however, debar anyone from challengin g the settlement made by the said Panchayat in favour of Abdus Subor on any grou nd, other than the ground of jurisdiction, of the said Panchayat to settle the s aid ferry. 26. With the above observations and directions, these writ petitions shall s tand disposed of. 27. No order as to costs.