WA 77/2011 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR HON’BLE MR. JUSTICE A.C.UPADHYAY The appellant is aggrieved by an order dated 18.2.2011 passed by the learned Sin gle Judge in WP(C) No.3172/2010 and WP(C) No.5770/2010. The appellant, Ujani Majuli Anchalik Panchayat (for short the Anchalik Panchayat ) issued an advertisement for settlement of a ferry service called Phuloni Bogo riguri Neamati Ghat Ferry (for short the Phuloni Ferry). This advertisement was challenged in the writ petitions abovementioned and it was held by the learned S ingle Judge that the Anchalik Panchayat did not have the jurisdiction to issue a n advertisement for settlement of the Phuloni Ferry. It is under these circumsta nces that the Anchalik Panchayat is now before us. Earlier, the State Government issued a notification on 1.9.2009 in exercise of p owers conferred by Section 4 of the Northern India Ferries Act (for short the Fe rries Act) declaring the Cinatoli Bogoriguri Neamati Ghat Ferry (for short the C inatoli Ferry) on the river Brahmaputra as a public ferry . A tender was earlier invited by the State Government for operating the Cinatoli Ferry from 1.4.2010 to 31.3.2011 and it appears that tenders will continue to be issued for subsequent years. The consequence of publicly tendering the Cinatoli Ferry is that in terms of Rul e 35 of the Control and Management of the Ferries Rules, 1968 (for short the Fer ries Rules) no person shall establish, maintain or work a ferry to or from any p oint within a distance of 3.2 km from the limits of a public ferry without the p rior approval of the competent authority declared by the Government under Sectio n 13 of the Ferries Act. There is no dispute that the Phuloni Ferry is within the distance of 3.2 km from the Cinatoli Ferry. Therefore the consequence of the notification dated 1.9.200 9 declaring the Cinatoli Ferry as a public ferry (read with Rule 35 of the Ferri es Rules) is that the Phuloni Ferry would effectively have to close down, althou gh it has been operating for about 20 years as claimed by learned counsel for th e Anchalik Panchayat. It is this consequence that has aggrieved the Anchalik Pan chayat. Learned counsel appearing for the Anchalik Panchayat submits that Section 106 of the Assam Panchayat Act, 1994 (for short the Panchayat Act) enables the Anchali k Panchayat to settle a public ferry. This is correct since a perusal of Section 106 of the Panchayat Act makes it clear that all public ferries other than Gove rnment ferries within the territorial jurisdiction of the Anchalik Panchayat sha ll be settled in the manner prescribed by the Panchayat Rules and the Rules fram ed thereunder. But the question before us whether the Phuloni Ferry is a public ferry for the p urposes of Section 106 of the Panchayat Act? It may be recalled that there is no dispute about the fact (and indeed there can not be any such dispute) that Cinatoli Ferry is a public ferry in view of the no tification dated 1.9.2009 issued under the provisions of the Ferries Act. What a bout the Phuloni Ferry - is it a public ferry? Section 106 of the Panchayat Act postulates the existence of two kinds of ferrie s, that is, a public ferry and government ferry. Section 4 of the Ferries Act gi ves the power to declare, establish, define and discontinue public ferries. This section postulates that the State Government may, from time to time, declare wh at ferries shall be deemed public ferries and the respective districts in which they shall be deemed to be situate. Such a declaration, establishment, definitio n and discontinuation of public ferries shall be made by a notification publishe d in the official gazette. There is no notification issued in the official gazet te nor has any order been passed declaring the Phuloni Ferry a public ferry unde r the provisions of the Ferries Act. Consequently, we have to proceed on the bas is that the Phuloni Ferry is not a public ferry, unlike the Cinatoli Ferry. That being so, the provisions of Section 106 of the Panchayat Act would not come to the aid of the Anchalik Panchayat. The provisions of Section 106 of the Panc hayat Act deal with the manner of settlement of a public ferry under the Panchay at Act as well as the Rules framed thereunder. But since the Phuloni Ferry is no t a public ferry, the provisions of Section 106 of the Panchayat Act would be in applicable. Under these circumstances, the logical corollary of the Phuloni Ferry not being a public ferry is that the Anchalik Panchayat would have no jurisdiction to issu e an advertisement for its settlement. The jurisdiction of the Anchalik Panchaya t would arise only when the Phuloni Ferry is declared a public ferry under the Ferries Act. Since that event has not yet occurred, the Anchalik Panchayat has no jurisdiction to award a settlement in relation to it. This is the sum and sub stance of the findings given by the learned Single Judge in the order under appe al and we see no reason to take a different view. In our opinion, the conclusions of the learned Single Judge are completely in co nsonance with the statutory provisions of the India Ferries Act and the Panchaya t Act. Learned counsel for the appellant submits that there appears to be a conflict be tween the view taken by the learned Single Judge in the order under appeal and t he view expressed by a Division Bench in Jayanta Bora vs. State of Assam & Ors., (2006) 3 GLT 844. Learned counsel for the appellant has referred to and relied upon paragraph 33 of the decision particularly the following passage:- 33. A plain reading of the provisions of the [Panchayat] Act as above would un mistakably indicate that it is a complete code by itself, applicability whereof is not subject to the 1878 [Ferries] Act or any other enactment. Apart from the fact that the language employed in Section 106 of the Act is plain and unambiguo us, no requirement of prior vesting of the jurisdictional public ferry as an ess ential pre-condition to enable the corresponding Anchalik Panchayat to award set tlement thereof is discernible. In other words, no independent overt act of the Government vesting the public ferries in the Anchalik Panchayat can be read into the said provision as condition precedent for settlement thereof by it. We do not see any inconsistency in the view taken by the learned Single Judge an d the view expressed by the learned Division Bench in Jayanta Bora. In Jayanta Bora, the Division Bench proceeded on the basis that the ferry was a public ferry and in this context it was held that the Panchayat Act was a comple te code which enabled the Anchalik Panchayat to award settlement of public ferri es. Insofar as the present appeal is concerned, we are required to consider an anter ior question, namely, whether the Phuloni Ferry is in fact a public ferry or not . As we have held above, on an analysis of the provisions of the various statute s, the Phuloni Ferry is not a public ferry. As such, the question of applicabili ty of the procedures as laid down in the Panchayat Act does not arise. The order under appeal and the decision of the Division Bench in Jayanta Bora op erate in two different fields. The order under appeal deals with an anterior iss ue of the existence of a public ferry, while Jayanta Bora deals with a later sit uation, namely, the manner of awarding a settlement in respect of a public ferry . It is in this view of the matter that we do not find any conflict between the order under appeal and Jayanta Bora. No other contention was urged before us. We find no merit in this writ appeal an d it is accordingly dismissed. However, it is made clear that the Anchalik Panchayat is at liberty to move the appropriate authority for declaring the Phuloni Ferry as a public ferry.