WP(C) 2807/2007 BEFORE HON’BLE JUSTICE MR I. A. ANSARI WP(C) No. 2807 of 2007 Sri Bidhan Mudoi, S/o.Chandra Kt. Mudoi, PO.Bongaon, Vill.Mudoichuk, Majuli, Dist. Jorhat, Assam - Petitioner - Versus - 1. The State of Assam, Represented by the Chief Secretary to the Govt. of Assam, Transport Department Dispur, Guwahati. 2. The State of Assam to be represented by Secretary to the Govt. of Assam, Transport Department, Dispur, Guwahati-6. 3. The Director, Inland Water Transport, Guwahati, Assam. 4. The Executive Engineer, Inland Water Transport Division, Dibrugarh, Assam. 5. Prafulla Kr. Das, member, Brahmaputra Enterprise, Dakhinpath satra, Majuli, Jorhat, Assam. 6. Majuli Anchalik Panchayat, Kamalabari, Majuli, Dist. Jorhat, Assam. 7. The Chief Executive Officer & Ex-officio Secretary, Majuli Anchalik Panchayat, Kamalabari, Majuli, Dist.Jorhat, Assam - Respondents For the petitioner : Mr. D. Saikia, Advocate Mrs. A. Verma, Advocate, Mr. R. Baruah, Advocate Mr. B. Gogoi, Advocate Mr. KK Dutta, Advocate For the respondents : Mr. A. K. Bhuyan, Advocate, Mr. B.D. Konwar, Advocate Amicus Curiae : Mr. N. Dutta, Senior Advocate. WP(C) No. 3933 of 2007 Sri Jadav Senapati, S/o.late Sudhir Kr. Senapati, R/O.Guijan Bazar, PO. Rangagorah, Dist. Tinsukia. Assam - Petitioner - Versus - 1. The State of Assam, Represented by the Secretary to the Govt. of Assam, Transport Department Dispur, Guwahati. 2. Secretary to the Govt. of Assam, Transport Department, Dispur, Guwahati-6. 3. The Director, Inland Water Transport, Ulubari, Guwahati, Assam. 4. Kalyan Gogoi, S/o. Shiba Gogoi, Borpathar Bampathar PO.Borpathar, Dist-Dibrugarh. - Respondents For the petitioner : Mr. A. K. Goswami, Senior Advocate Mr. S. Banik, Advocate For the respondents : Mr. A. K. Bhuyan, Advocate, Mr. B. K. Das, Advocate Amicus Curiae : Mr. N. Dutta, Senior Advocate. P R E S E N T THE HON’BLE MR. JUSTICE I A ANSARI Date of hearing : 09.08.2007,25.09.2007, 11.10.2007 & 21.11.2007. Date of Judgment : 08.01.2008. JUDGMENT & ORDER As both these writ petitions involve some common questions of law, both these wr it petitions are being disposed of by this common judgment and order. The facts giving rise to the present two writ petitions may, in brief, be set ou t as under: WP(C) No. 2807 of 2007 (i) By an order, dated 02.06.2006, issued by respondent No.7, namely, Chief Exec utive Officer and Ex-officio Secretary, Majuli Anchalik Panchayat, the said Anch alik Panchayat granted settlement of Dakshinpat Neamati Parghat Ferry service, i n favour of the present petitioner, for a period of one year commencing from 01. 06.2006 and ending on 30.06.2007. On the basis of the settlement so granted, whi le the petitioner was running the ferry service, respondent No.3, namely, Direct or, Inland Water Transport, Guwahati, issued an order, on 05.04.2007, granting t o the respondent No.5 herein settlement in respect of Aphalamukh-Neamati Commerc ial Cargo-cum-Passenger Service for a period of one year with effect from seven days from the date of issue of the said order. The respondent No.5 accordingly s tarted the passenger ferry service at his allotted place. The petitioner’s griev ance is that the order, dated 05.04.2007, issued by the respondent No.3, giving settlement of Aphalamukh-Neamati Commercial Cargo-cum-Passenger Service, in favo ur of respondent No.5, is in violation of Rule 35 of the Control and Management of Ferries (Amendment) Rules, 1976, for, Aphalamukh-Neamati Commercial Cargo-cum -Passenger Service is situated, according to the petitioner, at a distance of ba rely 350 meters from Dakshinpat Neamati Parghat Ferry service, which stands sett led with the petitioner, whereas Rule 35, according to the petitioner, does not permit establishment of ferry service within a distance of 3.5 kilometer from th e limits of another ferry service. The respondent No.3 has, thus, according to t he petitioner, violated the statutory requirements of Rule 35 by allowing a ferr y service to be operated by the respondent No.5 at Aphalamukh-Neamati Commercial Cargo-cum-Passenger Service, which falls within a distance of less than 350 met ers from Dakshinpat Neamati Parghat Ferry service, without any prior sanction of , or notification from, the competent authority and if the impugned order is not set aside, the petitioner will sustain irreparable loss. (ii) While resisting the writ petition, the respondents, though, at one stage, c ontended to the effect that the distance between Dakshinpat Neamati Parghat Ferr y service and Aphalamukh-Neamati Commercial Cargo-cum-Passenger Service is more than 3.2 kilometers, this plea has been abandoned meaning thereby that the dista nce between the two ferry services is, at any rate, less than 3.2 kilometers. T he respondent’s plea is to the effect that the Executive Officer-cum- Secretary of an Anchalik Panchayat is not the competent authority to grant settlement of a ny ferry service, for, the power, if any, to grant such settlement belongs to th e Anchalik Panchayat. It is also the case of the respondents that if the State G overnment does not authorize an Anchalik Panchayat, the Anchalik Panchayat will have no right to run a ferry service. In the present case, it is contended by th e respondents, the State Government has not authorized Majuli Anchalik Panchayat the right to grant settlement of Dakshinpat Neamati Parghat Ferry service and, hence, the settlement, granted in favour of the petitioner by the said Anchalik Panchayat, is without jurisdiction. The respondents also contend that under Sect ion 105 of the Assam Panchayat Act, the power to grant settlement is of the Pres ident of an Anchalik Panchayat and not of its Executive Officer. It is further c ontended by the respondents that a person aggrieved by a settlement of ferry gha t by an Anchalik Panchayat has the right to prefer an appeal to the State Govern ment under Section 106 and as no appeal has been preferred, in the present case, by the writ petitioner, the present writ petition is misconceived inasmuch as t here is a more comprehensive alternative statutory remedy available to the petit ioner and this writ petition may not to be entertained. This apart, according to the respondents, Rule 38 empowers the Directorate of Inland Water Transport Com mercial Service to employ boat or vessels for the purpose of carrying relief or for any other purpose within the jurisdiction of a ferry. The power under Rule 3 8 is, according to the respondents, an all encompassing power and, hence, the se ttlement granted, in favour of the respondent No.5, by the respondent No.3 canno t be said to be without jurisdiction. Rule 38, it is further contended by the re spondents, permits the Directorate to employ any boat or vessel for the purpose of carrying cargo as well as passengers for its commercial service. As the word passenger means and includes a traveler in public conveyance, the effect of Rule 38, according to the respondents, is that the Director, Inland Water Transport, is competent to employ any boat for carrying passengers for the purpose of publ ic conveyance. (iii) The Department of Inland Water Transport, Assam, runs, according to the re spondents, public ferry and also commercial ferry services for carrying passenge rs and cargoes, these services are provided not only for the benefit of the publ ic at large, but also for the augmentation of revenue for the Department of Inla nd Water Transport, Assam, and that the revenue, so collected by the Department, is utilised for the purpose of paying salary to its employees as well as mainte nance of boats and vessels of the Department and, thus, the boats and vessels, e mployed by the Directorate, have a nexus with the affairs of the Department of I nland Water Transport, Assam. WP(C) No. 3933 of 2007 (iv) The writ petitioner made a representation, dated 21.06.2007, addressed to t he respondent No.3, namely, Director, Inland Water Transport, seeking direct set tlement of Guijan Barghuli Via Kabuchapari Commercial cargo-cum-Commercial Servi ce at 20% of the bid value. As the respondent No.3 has settled directly, vide or der, dated 21.06.2007, the said ferry service in favour of respondent No.4, the petitioner, feeling aggrieved, has approached this Court with the help of the pr esent application made under Article 226 of the Constitution of India, the case of the petitioner being, in substance, that the power of making direct settlemen t is vested only in the Secretary of the Department concerned and the Director o f the said Department has no authority to make direct settlement and as the sett lement, in favour of the respondent No. 4, has been directly made by the Directo r of the said Department, the settlement, so granted, is, according to the writ petitioner, wholly without jurisdiction and may be interfered with, particularly , when the respondent No.3 has also declined to make direct settlement in favour of the petitioner by letter, dated 24.07.2007. 2. I have heard Mr. D. Saikia, learned counsel for the petitioner, in WP(C) 2807/2007, Mr. A.K. Goswami, learned Senior counsel, appearing for the petition er in WP(C) 3933/2007, Mr. A.K. Bhuyan, learned counsel, appearing on behalf of the State respondents in both the writ petitions, Mr. B.D. Konwar, learned couns el for the respondent No.5 in WP(C) 2807/2007, and Mr. B.K. Das, learned counsel for the respondent No. 4 in WP(C) 3933/2007. I have also heard Mr. N. Dutta, l earned Senior counsel, who has appeared, in this set of writ petitions, as Amicu s Curiae. 3. Appearing on behalf of the petitioner, in WP(C) 2807/2007, Mr. Saikia su bmits that under Rule 35, Inland Water Transport Department cannot establish fer ry service within a distance of 3.2 kilometers, but in the present case, since t he ferry service, settled in favour of the respondent No.5, is located barely at a distance of 350 metres, the settlement, so granted in favour of the responden t No.5, is without jurisdiction and needs to be interfered with. 4. Opposing the submissions made on behalf of the petitioner, Mr. Bhuyan ha s contended that under Rule 38 of the Control & Management of Ferries Rules, 196 8, the Directorate of Inland Water Transport is competent to run not only public ferries, but also commercial ferry service for carrying passengers and cargos a nd since the settlement, in favour of the respondent No.5, has been made for the benefit of the public at large and for augmentation of the revenue of the Depar tment concerned, the settlement, granted in favour of the respondent No.5, is pr otected under Rule 38. 5. It is also contended by Mr. Bhuyan that respondent No.7 has no authority to grant settlement of ferry service and the settlement, if any, could have bee n granted, under Section 105 of Assam Panchayat Act, not by its Chief Executive Officer, but by the said Anchalik Panchayat itself. It is also contended by Mr. Bhuyan that without the State Government having vested the right to make settlem ent of the said ferry service in favour of the said Anchalik Panchayat, Chief Ex ecutive Officer and Ex-officio Secretary, Majuli Anchalik Panchayat, Kamalabari (i.e., respondent No.7) has no authority to grant settlement in favour of the pe titioner. 6. Appearing on behalf of the writ petitioner in WP(C) 3933/2007, M r. A. K. Goswami, learned Senior counsel, submits that under the provisions of S ub-Rule (2) of Rule 4 of the Control and Management of Ferries Rules, 1968, fram ed under Section 12 of the Northern India Ferries Act, 1878, it is not the Direc tor, but the Secretary to the Government of Assam, Department of Transport, who is, in terms of the provisions of Section 8 of the said Act, the competent autho rity to settle the ferries directly by negotiation. In the case at hand, submits Mr. Goswami, since the settlement, in favour of the respondent No.4, has been m ade by the Director, the settlement is wholly without jurisdiction and needs to be set aside. 7. As far as Mr. B. D. Konwar, learned counsel, appearing for the responden t No.5 in WP(C) 2807/2007, is concerned, he has candidly submitted that the issu e stands settled by the decision in Jayanta Bora Vs. State of Assam, reported in 2006 (3) GLT 844, which has held to the effect that for the purpose of enabling an Anchalik Panchayat to run public ferry, the State Government’s authority is not necessary. As far as Mr. BK Das, learned counsel, is concerned, his submissi on is that the Director of Inland Water Transport Department is competent to gra nt settlement of public ferry and, hence, the settlement made in favour of the r espondent No. 4, in WP(C) 3933/2007, may not be interfered with. 8. While considering the present two writ petitions, it is necessary to poi nt out that New Oxford Advanced Learners Dictionary (Seventh Edition) defines ’f erry’ to mean, boat that carries people, vehicles and goods across a river or a cross a narrow part of the sea . Webster’s Dictionary (New Twentieth Century Edi tion) defines ’ferry’ as a transportation system in which passengers and goods a re carried across a river or other narrow body of water. New Oxford Advanced Lea rners Dictionary (Seventh Edition) defines ’ferryman’ as a man, who is in charge of a ferry across a river. Webster’s Dictionary (New Twentieth Century Editio n) defines a ’ferry man’ as one, who owns, manages or works on a ferry. Advanced Law Lexicon (Volume 2) (3rd Edition, 2005) defines ’ferry’ as a franchise or ex clusive right of carrying passengers, animals or goods across a river or other b ody of water at a particular place and taking a toll for so doing, which is call ed ferriage. Advanced Law Lexicon (Volume 2) (3rd Edition, 2005) defines ’ferr y man’, as a person, who conducts a ferry or is in charge of a ferry. ’Ferry boa t’ has been described, in Oxford Dictionary (7th Edition, 2005), as a boat, whic h is used as a ferry. Advanced Law Lexicon (Volume 2) (3rd Ed ition, 2005) defines ’ferry boat’ as boat used for carrying passengers from the one side of river to another side from any place on the bank. 9. From the definitions of ’ferry’, depicted as above, what becomes clear i s that in ordinary parlance, ’ferry’ means carrying of people or goods by a boat and such boat may be steered with the help of oar used by human beings or run b y mechanical device. In fact, boat is one of the oldest modes of transportatio n of man and material known to the mankind. Historically, therefore, there was no impediment, on the part of a person, to move through the water of a river or sea or narrow body of water from one place to another as well as to carry his me n and materials or any other person or any other person’s men and materials, on hire or for a reward, across the river or narrow body of water or from one place to another through the water of river or sea. 10. For the purpose of resolving the controversies, which the present writ p etitions have raised, it is necessary to ascertain as to when and how the States , in India, happened to acquire the power to operate ferry and how and when it a lso acquired the power to restrain or control private individuals from operating ferry and what are the parameters of such control ? 11. In order to effectively resolve the aforesaid controversies, it is imper ative that the object behind passing of the Northern India Ferries Act, 1878, (i n short, ’the Ferries Act’) be carefully analysed. With this aim in view, the S tatement of Object and Reasons for the enactment of the Ferries Act are reproduc ed hereinbelow: Statement of objects and reasons An Act for the regulation of ferries in the Punjab is much needed. Up to the 1s t June, 1872, when Act No. IV of 1872 (the Punjab Laws Act) came into force, fer ries in the Punjab were governed by Bengal Regulation VI of 1819; but by the Pun jab Laws Act that Regulation was inadvertently repealed, and, no other law being substituted for it, there has, from that date, been no law for the control of f erries in the Punjab. Another result is that, as the law now stands, it would b e difficult for the Local Government to prevent an unlicensed person from settin g up a rival ferry alongside of a Government ferry, and thus materially reducing the income of the latter ferry and the funds available fir its maintenance. To remedy this state of things, and at the same time to provide generally for th e regulation of Government ferries, a Bill to regulate ferries in the Punjab was prepared. About the same time the Lieutenant-Governor of the north-Western Pro vinces and Chief Commissioner of Oudh submitted a draft Bill for the regulation of ferries in the territories under his administration. The Bill, so submitted, and the Bill for the Punjab, as modified and supplemented in accordance with co mmunications subsequently received from the Punjab, were found to differ so litt le that it was thought advisable to amalgamate the two Bills, and accordingly th e present Bill, extending to the Punjab, the North-Western Provinces and Oudh, h as been prepared. The Bill is based upon the Burma Ferries Act, II of 1873, and the provisions of that Act have been followed as closely as the different circumstances and requir ements of the Provinces with which this Bill deals would permit. 12. A patient analysis of the statement of object and reasons of the Ferries Act and the provisions contained therein leave no room for doubt that before th e Ferries Act was brought into force, there was really no impediment to set up a private ferry by a person either to move himself from one place to another thro ugh water or carry his materials or carry passengers or goods on hire or for rew ard. In course of time, Government also started operation of ferry service for the purpose of carrying passengers and/or goods. These Government owned ferries had to sustain losses whenever any person set up a rival ferry service within t he close proximity of the Government’s ferry service. As there was no law gover ning operation of such private ferries or, for that matter, as regards the contr ol of the Government ferries, law had to be enacted to prevent the Government fe rries from running into losses and also to regulate movement of the ferries, in general. This requirement gave birth to the Ferries Act in pre-independent Indi a. No wonder, therefore, that the definition of ’ferry’, occurring in the Ferri es Act, is inclusive inasmuch as the word ’ferry’, according to Section 3 of the Ferries Act, includes also a bridge of boats, pontoons or rafts, a swing-bridge , a flying-bridge and a temporary bridge, and the approaches to, and landing-pla ces of, a ferry. 13. Let me, now, turn to Section 4 of the Ferries Act, which, I notice, read s as under: Section 4. Power to declare, establish, define and discontinue public ferries. - The State Government may from time to time - (a) declare what ferries shall be deemed public ferries, and the respective dist ricts in which, for the purposes of this Act, they shall be deemed to be situate ; (b) take possession of a private ferry and declare it to be a public ferry; (c) Establish new public ferries where, in its opinion, they are needed; (d) define the limits of any public ferry; (e) change the course of any public ferry; and (f) discontinue any public ferry which it deems unnecessary. Every such declaration, establishment, definition, change or discontinuance shal l be made by notification in the Official Gazette: Provided that when a river lies between two States, the powers conferred by this section shall, in respect of such river, be exercised jointly by the State Gove rnment of those States by notifications in their respective official Gazettes. Provided also that, when any alteration in course or in the limits of a public f erry is rendered necessary by changes in the river, such alteration may be made, by an order under his hand, by the Commissioner of the Division in which such f erry is situate, or by such other officer as the State Government may, from time to time, appoint by name or in virtue of his office in this behalf. 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. 15. In the present case, Sections 6, 7 and 7A are of great relevance and are , therefore, reproduced hereinbelow: Section 6. Superintendence of public ferries. The immediate superintendence of every public ferry shall, except as provided in section 7 (and section 7A) be ve sted in the Magistrate of the district in which such ferry is situate, or in suc h other officer as the (State Government) may, from time to time, appoint by nam e or in virtue of his office in this behalf; And such Magistrate or officer shall, except when the tools at such ferry are le ased, make all necessary arrangements for the supply of boats for such ferry, an d for the collection of the authorized tolls leviable thereat. Section 7. Management may be vested in municipality. - The State Government may direct that any public ferry situate within the limits of a town be managed by the officer or public body charged with the superintendence of the municipal arr angements of such town; and thereupon that ferry shall be managed accordingly. Section 7A, in its application to the State of Assam, stands substituted and reads as follows: Section 7A. The State Government may direct that any public ferry wholly or par tly within the area subject to the authority of a Mohkuma Parishad in the State be managed by the Mohkuma Parishad and thereupon that ferry shall be managed acc ordingly. 16. From a dispassionate reading of Sections 6, 7 and 7A as well as their ap plicability to the State of Assam, what becomes transparent is that under Sectio n 6 of the Ferries Act, the superintendence of public ferry stands, ordinarily, vested in the Magistrate of the district. The State Government may, however, un der Section 7 of the Ferries Act, vest, in a municipal authority, the power of s uperintendence and management of a public ferry, which falls within the territor ial limits of such a municipality. Section 7A permits the State Government to d irect, in general, that a public ferry be managed, wholly or in part, by a distr ict council or by a district board or a local board. As regards its application to the State of Assam, Section 7A clarifies that the State Government may direc t that a public ferry, which falls wholly or partly within the area of a Mohkuma Parishad in the State of Assam, be managed by the Mohkuma Parishad and upon suc h a direction being passed by the State Government, such a public ferry shall be managed by the Mohkuma Parishad, Mohkuma Parishad being a statutory creation, w hich came to be, in the course of time, replaced by