WP(C) 3172/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The proceedings witness a tussle for dominion over settlement right of ferry gha ts nomenclatured as Cinatoli Bogoriguri Neamatighat (for short hereafter referre d to as the Cinatoli Ghat) and Phuloni Bogoriguri Neamati Ghat (for short hereaf ter referred to as the Phuloni Ghat). The legal bout was initiated with the inst itution of WP(C) 3172/2010 laying the challenge to the Notice Inviting Tender da ted 10/5/2010 issued by the President of the Ujani Majuli Anchalik Panchayat (fo r short referred to as the Anchalik Panchayat) initiating thereby a process amon gst others for settling the Phuloni Ghat claiming it to be located within the te rritorial limits of Ratanpur Gayan Gaon Panchayat under it for the period 1/7/20 10 to 30/6/2011. By order dated 4/6/2010, this Court while issuing notice of mot ion, the respondent No. 6 therein namely the President/Chairperson of the Ujani Majuli Anchalik Panchayat, Jorhat, was in the interim permitted to receive the t ender papers in response to the impugned NIT but was restrained from opening the same until further orders. 2. Misc. Case 2106/2010 is registered on an interlocutory applicati on by the aforementioned respondent No. 6 seeking vacation and/or alteration and /or modification of this restraint. The parties have exchanged pleadings in this misc. case. By order dated 3/9/2010 passed in WP(C) 3172/2010, this Court, on a prima facie analysis of the issues involved, required the Sub-Divisional Office r (C), Majuli, Garamur, to submit a fresh report on the physical location of the Cinatoli Ghat and the Phuloni Ghat for an appropriate adjudication thereof. A r eport dated 22/9/2010 was accordingly submitted by the aforementioned State auth ority. 3. It was thereafter that WP(C) 5770/2010 was instituted by the Anc halik Panchayat and its President seeking annulment of the notification No. TWT- 20/2008/102 dated 1/9/2009 issued by the Principal Secretary to the Government o f Assam, Transport Department, declaring inter alia the Cinatoli-Bogoriguri Neam ati Ghat to be a public ferry in exercise of powers conferred under section 4 of the Northern India Ferries Act, 1878 as well as the order dated 17/3/2010 of th e Deputy Secretary to the Government of Assam, Transport Department, settling th e aforementioned ferry service in favour of Shri Padma Dhar Das (writ petitioner in WP(C) 3172/2010) for a period of one year w.e.f. 1/4/2010 to 31/3/2011. 4. This Court issued notice of motion on 12/10/2010 and in the inte rregnum directed that the petitioners therein would be allowed to operate the Ph uloni-Bogoriguri Neamati Ghat in accordance with law. The petitioner in WP(C) 31 72/2010 has by his interlocutory application registered as Misc. Case 3505/2010 sought for vacation, modification and alteration of this interim order as well. The Sub-Divisional Officer (C), Majuli, thereafter by his order dated 26/10/2010 permitted the Inland Water Transport Department, Assam and the Anchalik Panchay at to ply their ferries on alternate days on roster basis. 5. I have heard Mr. P. Pathak, Sr. Advocate assisted by Ms. P. Barm an and Ms. Changkakoti, Advocates for the writ petitioner in WP(C) 3172/2010 and respondent No. 9 in WP(C) 5770/2010, Mr. A. Bhuyan and Mr. U. Rajbongshi, Advoc ates appearing for the Inland Water Transport Department, Government of Assam, a nd Mr. D. Saikia, Advocate appearing for the Anchalik Panchayat in both the proc eedings. For the sake of convenience, the writ petitioner in WP(C) 3172/2010 wou ld be referred to as the petitioner while traversing the pleadings on record. 6. The recorded case of the petitioner is that he is a Class-I Cont ractor registered with the various departments of the State of Assam. The Govern ment of Assam in the Transport Department vide notification No. IWT-20/2008/102 dated 1/9/2009 in exercise of powers under section 4 of the Northern India Ferri es Act, 1878 (for short hereafter referred to as the Act) had declared 26 major ferries on the river Brahmaputra, Barak and its tributaries covering several Dis tricts as public ferries including Cinatoli Bogoriguri Neamatighat (for short he reafter referred to as the Cinatoli Ghat situated in the District of Jorhat. The Executive Engineer in the IWT Division, Dibrugarh, Assam, issued a Notice Invit ing Tender bearing No. ESF 18/2009-10 dated 19/12/2009 for settlement of various ferry services for the financial year 2010-2011 including Cinatoli Bogoriguri N eamatighat Ferry Service (for short hereafter referred to as the Cinatoli Ferry Services). The petitioner responded thereto for the aforenamed ferry service and was eventually settled therewith at his bid of Rs. 1,25,000/- w.e.f. 1/4/2010 t o 31/3/2011 under Rule 19(b) of the Control and Management of Ferry Rules, 1968 (for short hereafter referred to as the Rules). Pursuant to the order of settlem ent dated 17/3/2010 issued by the Deputy Secretary to the Government of Assam, T ransport Department, he made necessary deposits as required, executed a lease ag reement and completed all other formalities and was thereafter handed over the p ossession of the said Ferry Service on 22/4/2010 whereafter, he had been operati ng it in full compliance of the terms and conditions prescribed therefor. 7. It was at that stage that the Anchalik Panchayat by the impugned NIT dated 10/5/2010 (Annexure G to the writ petition) invited tenders for the s ettlement inter alia of the Phuloni Ghat for the term 1/7/2010 to 30/6/2011. Acc ording to the petitioner, the Phuloni Ghat offered for settlement is one and the same settled with him for the ferry service by the IWT with a little variation in the name. He has assailed this initiative on the part of the Anchalik Panchay at to be lacking in jurisdiction and also in contravention of the Act as well as Rule 35 of the Rules (as amended in 1976) in particular and thus unconstitution al, null and void. The respondents have not filed their pleadings in the writ pe tition. 8. The Anchalik Panchayat in its interim application while refuting the assailment has averred that the Phuloni Ghat is a very old ferry service si tuated at Cinatoli, Majuli under the Ratanpur Gaon Panchayat and for the last tw o decades had been settled by it by annual tenders. According to it, this Ghat, was earlier nomenclatured as Phuloni Neamati Ghat, which since 2006-2007 has bee n re-christened as Phuloni Bogoriguri Neamati Ghat. With reference to the contem poraneous records, it has insisted that the Phuloni Ghat had been settled by it through successive processes since 2002 without any break, the last of the settl ements being by order dated 29/6/2009 for the term July 2009 to June 2010. It, h owever, admitted that the IWT, Assam, had by the aforementioned notification dat ed 1/9/2009 declared the Cinatoli Ghat as a public ferry on the Brahmaputra Rive r whereafter through a process initiated by the NIT dated 19/12/2009, the Cinato li Ferry Service had been settled with the writ petitioner for the financial yea r 2010-2011 and that he after taking possession thereof on 22/4/2010 has started operating it. 9. The Director, IWT Department, had issued a settlement order bein g IWT123/03/6 dated 11/8/2003 for the operation of commercial passenger and carg o ferry service from Phulani (Majuli) to Neamati (Jorhat) in favour of one Shri Lalit Das on experimental basis. The settlement was challenged before this Court in WP(C) 7945/2003 by one Shri Jayanta Bora who was the settlement holder of Ph uloni-Neamati Ghat for the period 1/7/2003 to 30/6/2004 issued by the Anchalik P anchayat. The impugned order of settlement dated 11/8/2003 was stayed by this Co urt whereafter at the instance of Shri Lalit Das and following a scrutiny of the feasibility of a new ferry ghat from Bogoriguri to Neamati, a report was submit ted on 9/1/2004 by the Commercial Officer, IWT Commercial Service, Dibrugarh, to the Director, IWT, Assam, disclosing that there was no passenger and cargo ferr y service within 3.8 kms. distance and that therefore the Bogoriguri to Neamati Ferry Ghat might be allotted to Shri Lalit Das. The Anchalik Panchayat therefore maintained that Shri Lalit Das thereafter was allowed to operate the Bogoriguri -Neamati commercial cargo cum passenger ferry service for a period of three mont hs on experimental basis and the term was extended thereafter from time to time till 2008. 10. The Anchalik Panchayat has maintained that the Cinatoli Ferry Se rvice and the Phuloni Ferry Service are two different Ferry Services operating f rom two different Ghats, namely Cinatoli Ghat and Phuloni Ghat. It has admitted as well that the Cinatoli Ghat is under the control of the IWT, Assam, and it is competent to offer settlement thereof by annual tenders. It, however, has claim ed exclusive right to offer settlement of Phuloni Ghat as it had been doing for the last few decades. According to it, the notification dated 1/9/2009 does not mention about the closure of the Phuloni Ferry Service controlled by it under th e provisions of the Assam Panchayat Act, 1994 (for short hereafter referred to a s the Panchayat Act). It has asserted that the distance between the Phuloni Ferr y Service and the Cinatoli Ferry Service is almost 6 k.m.s and is no way less th an 3 kms as mentioned in Rule 35 of the Rules. In endorsement of this averment, the Anchalik Panchayat has referred to a report submitted by the Circle Officer, Majuli Revenue Circle, Kamalabari on 6/8/2008 to the Sub-Divisional Officer (C) , Majuli, Garamur, to the effect that the distance between the Phuloni Ghat and Cinatoli Ghat is about 6.2 k.m.s. While pleading its absolute dominion over the Phuloni Ghat/Ferry Service in the matter of control and settlement thereof, it h as asserted against authority of the Transport Department to interfere with its affairs pertaining thereto. Vacation and/or modification and/or alteration of th e interim interdiction by order dated 4/6/2010 have thus been sought for on this contention. 11. The writ petitioner in his affidavit in the misc. application th ough admitted the existence of the Phuloni Ghat till 2008-09 has insisted that w ith the notification dated 1/9/2009, the same had become nonest and thus the Anc halik Panchayat has no jurisdiction to invite tenders to settle the Phuloni Ferr y Service. According to him, the Phuloni Ghat lies within a distance of 1 k.m fr om the Cinatoli Ghat as per the report of the Lat Mandal and Kanungo submitted f rom the Office of the Circle officer, Majuli Revenue Circle, Kamalabari, on 11/6 /2010. It has maintained that though the Anchalik Panchayat had been operating t he Phuloni Ghat with the declaration of the Cinatoli Ghat to be a public ferry b y the Transport Department of the State in exercise of powers under section 4 of the Act, the operation of Phuloni Ferry Service within the distance of 3.2 k.m. s on either side thereof is prohibited under Rules. 12. The IWT has admitted as well that Cinatoli Ferry Service and Phu loni Ferry Service are two distinct services but separated by a distance of 1 k. m. only. While denying the correctness of the report dated 6/8/2008 of the Circl e Officer, Majuli Revenue Circle, Kamalabari, (Annexure L to the interim appli cation of the Anchalik Panchayat), the answering respondent has relied on the ce rtificate dated 11/6/2010 of the Circle Officer, Majuli Revenue Circle, Kamabari , as referred to by the writ petitioner to contend that the distance between Phu loni Ghat and Bogoriguri Ghat is about one k.m. It has further clarified that th e Cinatoli Ghat is located between Phuloni Ghat and Bogoriguri Ghat. Referring t o Rule 35 of the Rules, the answering respondent has pleaded that with the decla ration of the Cinatoli Ghat to be a public ferry under section 4 of the Act, it is impermissible for the Anchalik Panchayat to operate any other ferry service w ithin 3.2 k.m.s. thereof. According to it, even under section 106 of the Panchay at Act, an Anchalik Panchayat can settle a public ferry other than a Government ferry located within its territorial jurisdiction. The IWT has thus sought to re inforce the contentions of the writ petitioner in its challenge to the impugned NIT. 13. The department has maintained that the Cinatoli-Bogoriguri Neama ti Ghat was notified to be a Government Ferry vide notification dated 1/9/2009 w hich was published in the official gazette. It has asserted that this Court in i ts verdict rendered in WP(C) 2807/2007 and WP(C) 3933/2009 (provide the dates) h ad adjudged that qua public ferries established or created under section 4 of th e Northern India Ferries Act, 1878 (for short hereafter referred to as the Act) whose one of the ends met a Government road or Government land or embankment, no Anchalik Panchayat would have the authority to make the settlement thereof. Acc ording to it, there is nothing on record to demonstrate that at any point of tim e, the Anchalik Panchayat had awarded settlement of the Phuloni Ghat following t he mandatory provisions of the Anchalik Panchayat Act 1994 (for short hereafter referred to as the Panchayat Act) more particularly section 106 thereof. 14. The Anchalik Panchayat in its endeavour to annihilate the notifi cation dated 1/9/2009 and the settlement of the Cinatoli Ghat in favour of the p etitioner has in its writ petition asserted on oath that the said Ghat had not b een declared as yet a Government Ferry. It has in addition averred that vide the said notification, the Cinatoli Ghat has been for the first time declared to be a public ferry on the river Brahmaputra. The impugned notification is in contra vention of Rule 35 of the Control and Management of Ferries Rule 1968 (for short hereafter referred to as the Rules) as thereunder no person can establish, main tain or work a ferry to or from any point within a distance of 3.2 k.m. from the limits of a public ferry without prior approval of the competent authority decl ared by the Government under section 13 of the Act. It has contended that as it had been settling the Phuloni Ghat since two decades in terms of section 106 of the Panchayat Act without a complaint/objections from any quarters, the Transpor t Department of the State ought to have taken a prior approval of such competent authority before notifying the Cinatoli Ghat as a public ferry, the same being located within a distance of 3.2 k.m.s of the Phuloni Ghat. While pleading that the income from the settlement of the Phuloni Ghat constitutes a prior source of revenue for it to conduct its activities, it has impeached the notification dat ed 1/9/2009 to be obviously illegal and nonest in law. 15. A departure in the response of the Transport Department of the S tate in its pleadings in WP(C) 5770/2010 is noticeable. It has categorically ave rred that the Anchalik Panchayat had been settling the Phuloni Ghat in violation of the provisions of the Panchayat Act and the Assam Panchayat (Financial) Rule s 2002. It has denied the Anchalik Panchayat’s contention of contravention of Ru le 35 in the publication of the notification dated 1/9/2009 and has asserted it to be in deference to the adjudication made by this Court in WP(C) 2807/2007 and WP(C) 3933/2009. 16. The petitioner in his counter in WP(C) 5770/2010 has stated that the notification dated 1/9/2009 though duly marked to the President, Zila Paris had, Jorhat, no objection thereto was raised at any point of time and that, ther efore, the IWT, Government of Assam, issued a tender notice on 19/12/2009 for se ttlement of the Cinatoli Ghat and on the completion of the process, the same was awarded to him. He has questioned the bonafide of the challenge in WP(C) 5770/2 010 and has contended estoppel against the Anchalik Panchayat, Phuloni Ghat bein g located within 3.2. k.m.s. of the Cinatoli Ghat declared to be a public ferry by the notification under section 4 of the Act. Referring to section 106(4) of t he Panchayat Act as well it has been pleaded that the impugnment of the notifica tion dated 1/9/2009 is misconceived. The petitioner has repudiated the arrangeme nt effected by the Sub-Divisional Officer (C), Majuli, on 26/27/7/2010 permittin g the IWT Department, Assam, and the Anchalik Panchayat to ply their ferries on the alternative days and has contended it to be in violation of the interim orde r dated 4/6/2010 passed in WP(C) 3172/2010. 17. Mr. Pathak has urged that with the declaration of the Cinatoli F erry Service to be a public ferry, the Phuloni Ferry Service, even in existence prior thereto had been rendered nonest and thus the impugned NIT is patently wit hout jurisdiction and is liable to be adjudged as such. Even otherwise as it is apparent on the face of the records that the Phuloni Ghat lies within a distance of 3.2 k.m.s. from the Cinatoli Ghat, in terms of rule 35 of the Rules, the Anc halik Panchayat even under the Panchayat Act has no competence to initiate a pro cess for settlement as endeavoured by the impugned NIT. 18. Mr. Saikia per contra has argued that the proclamation of the Ci natoli Ferry Service to be a public ferry by the IWT, does not ipso facto efface the existence of Phuloni Ferry Service, a distinctly different and independent entity in existence for several decades. Referring to the annexure to the interi m application of the Anchalik Panchayat, the learned Counsel has sought to impre ss upon this Court that the fact that the Anchalik Panchayat had been settling t he Phuloni Ghat through annual tenders from 2002-2010 is an impeachable testimon y thereof. While contending that under section 106 of the Panchayat Act, the Anc halik Panchayat, is the supreme authority to the exclusion of all concerned to c onduct the affairs of the Phulani Ghat as well as to offer its settlement, the c hallenge laid is wholly misconceived. Relying on the certificate dated 6/8/2008 issued by the Circle Officer, Majuli Revenue Circle, Kamalabari, the learned Cou nsel has argued that even on the norm of distance as prescribed by Rule 35, the Anchalik Panchayat cannot be debarred from settling the Phuloni Ghat and thus no t only the interim restraint ought to be vacated, the writ petition also is liab le to be rejected. The learned Counsel emphasised that the settlement of the Phu loni Ghat by the Anchalik Panchayat over the years had been to the knowledge of the IWT, Assam, as the copies of the orders to that effect had always been marke d to it. In order to underline the primacy of the Anchalik Panchayat the learned Counsel has indicated that the settlement of the Cinatoli Ghat awarded to Lolit Das had been on experimental basis and stood modified in view of the challenge made in WP(C) 7945/2003 by the settlement holder of Phuloni Ghat for the year 20 03-04. As the facts and circumstances of the case substantiate that the Cinatoli Ferry Service located within 3.2 k.m. of the Phuloni Ghat Ferry is sought to be assigned the status of a public ferry without obtaining approval of the compete nt authority under Rule 35 of the Rules, it is non-existent for all intents and purposes, he urged. According to him, the notification dated 1/9/2009, is void a s it tends to establish a new public ferry without the approval of the competent authority under Rule 35 of the Rules. In support of his above pleas, Mr. Saikia has placed reliance on the decision of this Court in Jayanta Bora and others ve rsus State of Assam and others, 2006(3) GLT 844 19. Referring to Section 31 and 106 of the Panchayat Act, Mr. Bhuyan has urged that if one end of a ferry ghat land within or touches a municipal ar ea it (ferry ghat) would slip beyond its (Anchalik Panchayat) jurisdiction. Whil e reiterating that the materials on record do not justify that the Anchalik Panc hayat had been settling the Phuloni Ghat in accordance with the provisions of th e Panchayat Act and the Assam Panchayat Financial Rules, 2002, the learned Couns el, however, admitted the permissibility of co-existence of two ferries within 3 .2. km of each other with the approval of the competent authority as sanctioned by Rule 35 of the Rules. He endorsed the pleas raised on behalf of the petitione r and urged in favour of the validity of the notification dated 1/9/2009. 20. The pleadings of the parties and the arguments developed on the basis thereof have been duly analysed. Significantly the existence of two separa te ferry ghats/services namely Phuloni Ghat/Ferry Service and Cinatoli Ghat/Ferr y Service prior to the issuance of the notification dated 1/9/2009 is a demonstr ated fact. That the aforementioned notification declaring Cinatoli Ghat to be a public ferry has been published in exercise of powers under section 4 of the Act is also a matter of record. The pleadings of the Anchalik Panchayat and the doc uments in supplementation thereof establish the factum of settlement of Phuloni Ghat by it from the year 2002 till June 2010. The last settlement for the term J uly 2009 to June 2010 therefore spans beyond the date of the impugned notificati on i.e. 1/9/2009. The materials on record testify the consensus of the IWT and t he Anchalik Panchayat about the settlement of the aforementioned two ferry servi ce respectively by them for successive terms before the issuance of the aforemen tioned notification. The factual background therefore attests the existence of t he said two ferry ghat/service till after the notification atleast upto 30/6/201 0. 21. The impugned NIT dated 10/5/2010 floated by the Anchalik Panchay at for settlement of Phuloni Ghat for 2010-2011 reinforces its assertion of the existence thereof as a ferry ghat/service independent of the Cinatoli Ghat/Servi ce. As evinced by the rival pleadings and the contentions advanced whereas the p etitioner seeks invalidation of the NIT dated 7/5/2010 in the teeth of declarati on of Cinatoli Ghat to be a public ferry under section 4 of the Act and the loca tion of the Phuloni Ghat within a distance of 3.2. KM therefrom being violative of the prescription of Rule 35, the Anchalik Panchayat has impeached the validit y of the notification dated 1/9/2009 being bereft of the obligatory compliance o f the prior approval of the competent authority under section 13 thereof (Northe rn India Ferries Act, 1878). This insistence is heuristic of its (Anchalik Panch ayat) acceptance of the distance of separation between the two ferry ghat/servic e to be less than 3.2 K.M. as contemplated in Rule 35. 22. The Act, a legislation to regulate ferry in Northern India envis ages public ferries as well as private ferries. Ferry as defined in section 3 is of inclusive disposition and envisions within its domain a bridge of boats, pon toons or rafts, a swing bridge, a flying bridge and a temporary bridge, and the approaches to, and landing places of, a ferry. Government Ferry as defined in the Rules framed under section 12 of the Northern India Ferries Act, 1878, means a public ferry at least one of whose limits is on a Government road as defined in the Assam Highways Act, 1928. Section 4 of the Northern India Ferries Act, 18 78, empowers the Provincial Government amongst others to declare what ferries sh all be deemed public ferries and the respective districts in which, for the purp ose of this Act, they shall be deemed to be situated. The Provincial Government thereunder may take possession of a private ferry and declare it to be a public ferry, establish new public ferries, define the limits of any public ferry and d iscontinue any public ferry which it deems unnecessary. Every such declaration, establishment, definition, change or discontinuance shall be made by