Patna High Court
Baban Chaubey And Ors. vs State Of Bihar And Ors. on 17 February, 1989
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. These two writ applications involving common question of law were heard together and are being disposed of by this common judgment.
2. In these writ applications the question involved inter alia, is as to whether the Bengal Ferries (Amendment) Ordinance, 1987, which has been repealed and replaced by the Bengal Ferries Act, 1988 (Act VI of 1988) is ultra vires the Constitution.
3. The petitioner in C.W.J.C. No. 1181 of 1988, has been running a ferry between Buxar Ramrekha Ghat to Ujiar Ghat since 1984.
At all material times, the matter relating to settlement of ferry was and is still regulated and controlled under the Bengal Ferries Act, 1885 (Bengal Act I of 1985). The Ferry in question was declared to be a public ferry in terms of a notification dated the 31st May, 1977, purported to have been issued under Section 6(a) of the said Act. According to the petitioners, the ferry in question is an important one and for management of the same an experience and capable organisation is required with at least 4 big power barges and a number of big boats.
In the year 1977, the aforementioned Bengal Act, 1885 was amended by the Bengal Ferries (Amendment) Act, 1977 whereby and whereunder a proviso to Section 9 was inserted as a result whereof a preferential treatment to Central Government or the State Government or Corporations or Undertakings set up by the said Governments was given by carrying out an exception in respect of settlement of ferries by ordinary method as contemplated under Section 9 thereof.
4. By reason of the impugned Ordinance and/or Act a further amendment has been made to proviso to Section 9 of the Act as a result whereof the preferential treatment extended to the Central Government or the State Government or any Undertaking or bodies thereof has been extended to Boatman's Co-operative Societies duly registered under the provisions of the Bihar and Orissa Co-operative Societies Act.
5. Before proceeding further, it may be mentioned that after the hearing of the writ applications was over it was brought to the notice of this Court that the impugned Ordinance of 1987 has been repealed and replaced by a legislative Act known as Bengal Ferries (Amendment) Act, 1988 which received the assent of the Governor on the 9th February, 1988. The petitioners thereafter filed as application for amendment of the writ applications challenging the provisions of the said Act, 1988 on the self said grounds. As the said Act has been enacted subsequent to the filing of the writ application, in my opinion, the said application for amendment should be allowed and be treated as a part of the writ applications.
6. The Parliament enacted The National Waterway (Allahabad-Holidia Stretch of the Ganga-Bhagirathi-Hooghly River) Act, 1982 (Act 49 of 1982) which received the assent of the President on 18-10-1982. By reason of the provisions of the said Act, the same was to come into force on the day the Central Government notified in the official gazette in this behalf. It is admitted at the bar that, by reason of the notification issued in terms of the provisions of the said Act, the said Act has come into force with effect from the 27th October, 1986.
The Parliament has further enacted National Waterways Authority Act, 1985 (Act 82 of 1985) which received the assent of the President on the 30th December, 1985. The said Act also has come into force in terms of the notification issued by the Central Government as contemplated under Section 1(2) thereof with effect from the 27th October, 1986,
7. The petitioners have stated that the State Government, however, by reason of an order as contained in the letter dated the 3rd February, 1988 (Annexure-2) communicated its decision to the Secretary of the respondent No. 5 Society to the effect that, for the year 1987-88, the settlement in respect of the aforementioned ghat would be made in favour of the said Society. According to the petitioners, the respondent No. 5, Co-operative Society is a bogus body controlled by some contractors and having local political influence and also does not have means to provide the requisite number of boats required for the purpose of operating the ferry in question.
The petitioners have further stated that the Government has not yet laid down terms and conditions as contemplated under the proviso to Section 9 of the Act and, as such, they have no right to take recourse thereto as amended by the Bihar Act VI of 1988. The District Magistrate, Bhojpur at Arrah, by a letter dated the 10th February, 1988, informed the respondent No. 5 that, in anticipation of the approval by the competent authority, it was temporarily being authorised to collect tolls at the prescribed rate for the period 11-2-1988 to 31-3-1988 on the conditions mentioned therein. A copy of the said order is contained in Annexure-3 to the writ application. According to the petitioners, the respondent No. 5 has not even fulfilled the conditions as laid down in the orders as mentioned hereinbefore.
8. In this case, a counter-affidavit has been filed on behalf of the respondent No. 5 wherein it has been stated that the settlement of ferry made in favour of the respondent No. 5, Co-operative Society is legal.
9. Learned counsel appearing on behalf of the petitioners has raised the following contentions in support of the writ applications :-
(a) After the coming into force of Act 49 of 1982 and Act No. 82 of 1985, the Bengal Ferries Act, 1988 must be deemed to have been repealed by necessary implication insofar as the same relates to the waterways falling within the stretch of Allahabad-Haldia Ganga-Bhagirathi-Hooghly river is concerned.
(b) The preferential treatment moted out to Co-operative Societies by reason of the Bihar Act VI of 1988 is ultra vires Articles 14 and 19(1)(g) of the Constitution inasmuch as unreasonable restriction has been imposed on the petitioners' right to carry on business and further the petitioners have been discriminated against vis-a-vis a Cooperative Society which is nothing but a body of citizens who are similarly situated.
(c) In any event, the right of settlement being statutorily vested in the District Magistrate, the said power could not have been exercised by him at the behest of the State of Bihar.
10. The learned counsel appearing on behalf of the respondents, on the other hand, submitted as follows : -
(a) Section 9 of the Bengal Ferries Act is still in force in spite of the enactment of Act 49 of 1982 and Act 82 of 1985.
(b) The right of ferry being subject to the Bengal Ferries Act, 1885 a person has no legal right to carry on business of ferry of his own and, as such, no restriction has been imposed on the petitioners' right to carry on business of taking settlement of ferries. It has further been submitted that the Co-operative Societies registered under the Bihar and Orissa Co-operative Societies Act is class by themselves and, as such, the State Government having made a reasonable classification by reason of the provisions of the impugned Act the same is permissible in terms of Article 14 of the Constitution and, as such, the petitioners cannot complain of any discrimination in this regard.
(c) In terms of the proviso to Section 9 of the Bengal Ferries Act, 1885, the settlement, if any, being subject to the terms and conditions as may be laid down by the State Government, the District Magistrate has not committed any illegality in passing the order dated the 10th February, 1988 (Annexure-3) pursuant to and in furtherance of the direction of the State Government as contained in Annexure-2 thereof.
11. In view of the rival contentions of the parties, as noticed hereinbefore, in my opinion, the following questions emerge for consideration in these writ petitions :-
(1) Whether Section 9 of the Bengal Ferries Act, 1885 survives Acts No. 49 of 1982 and 82 of 1985, in respect of the waterways falling within the stretch of Allahabad-Haldia Ganga-Bhagirathi-Hooghly river ?
(2) Whether the Bengal Ferries (Amendment) Act, 1988 (Act VI of 1988) is ultra vires Articles 14 and 19(1)(g) of the Constitution of India ?
(3) Whether the State of Bihar has the authority or jurisdiction to give direction as contained in Annexure-2 to the writ application in view of the provisions contained in Section 9 of the Bengal Ferries Act?
12. Re : Question No. (1) :-
The answer to the aforementioned question will depend upon the legislative competence in respect of 'Ferry' vis-a-vis 'Navigation' as provided for in the 3 lists contained in the Seventh Schedule of the Constitution of India.
So far as the matter relating to the shipping and navigation is concerned, the same is contained in item Nos. 24 and 30 of the Union List which reads as follows :-
"24. Shipping and navigation, on inland waterways, declared by Parliament by law to be national waterways as regards mechanically propelled vessels; the rule of the road on such waterways,"
"30. Carriage of passengers and goods by railways, sea or air, or by national waterways in mechanically propelled vessels."
Item No. 13 of the State List reads as follows :-
"13. Communications, that is to say, roads, bridges, ferries and other means of communication not specified in List I; municipal tramways, ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.
Item No. 32 of the Concurrent List reads as follows :-
32. Shipping and navigation on inland waterways as regards mechanically propelled vessels, and the rule of the road on such waterways, and the carriage of passengers and goods on inland waterways subject to the provisions of List I with respect to national waterways.
13. From a perusal of the aforementioned entries, it is evident that the Parliament has the exclusive jurisdiction to legislate in respect of shipping and navigation on the national waterways by means of mechanically propelled vehicles. The entry in the Concurrent List although deals with the same subject, but is subject to the provisions of the List I with respect to national waterways.
The State List, inter alia, provides for communications by ferry on inland waterways and traffic thereof subject to the provisions of List I and List III by means of vehicles other than the mechanically propelled vehicles.
14. By reason of the said entries, therefore, the competence of the State Legislature to make any legislation in respect of ferries so as to operate on any inland waterways by the mechanically propelled vessels is excluded.
15. It is now well known that the entries in the different lists should be read together without giving a narrow meaning to any one of them. It is further well known that the power of the Union and the State legislation being both in express and definite terms, a broader interpretation to one power than to another should not be given. It is further well known that, in the case of apparent overlapping between the two entries, the doctrine of 'pith and substance' has to be applied in order to find out as to within which entry the legislation, would fall. It is also well known that where one entry is made subject to another entry by that it means that out of the scope of the former entry the field of legislation covered by the latter entry has been reserved to be specifically dealt with by the appropriate legislation.
From a perusal of the aforementioned entries, it is absolutely clear that the legislative power relating to shipping and navigation on the National Waterways by a mechanically propelled vessels is within the exclusive domain of the Parliament.
16. In the instant case, item No. 13 of the State List is in three parts. The first part relates to means of communication, that is to say, roads, bridges, ferries and other means of communication not specified in List I. It is, therefore, clear that the navigation by ferry comes within the purview of the State List. Further, in terms of the second part of the said entry, 'ferries' are to be operated over inland waterways and traffic thereon, shall be subject to the entries contained in List I and List III with regard to such waterways. In relation to the mode of communication, i.e., vehicles, the owner of the State legislation is excluded so far as the mechanically propelled vehicles are concerned.
17. Turning now to entry No. 32 of the Concurrent List, it is clear that the power of the State and the Centre both extends to the matter relating to navigation on inland waterways as regards mechanically propelled vehicles and the rule of the road on such waterways and the carriage of passengers and goods on inland waterways subject to the provision of List I with respect to the national: waterways. There can, therefore, be no manner of doubt that, in respect of matter of shipping and navigation on National Waterways by a mechanically propelled vehicle comes within the purview of the Union List, once the Parliament enacts legislation falling within one or the other of the entries contained in items 24 and 30 thereof. In this view of the matter, in my opinion, the Bengal Ferries Act cannot have any application so far as the settlement of the ferry on a national waterways by reason of the mechanically propelled vehicles is concerned. In the instant case, there is no dispute that the concerned respondents directed the respondent No. 5 to ferry passengers by reason of mechanically propelled vehicles.
18. Learned Government Advocate, however, submitted that the Constitution makers in their wisdom having chosen to use two different expressions in the State List vis-a-vis the Union and the Concurrent Lists, i.e., 'ferry' and 'navigation', it should be held that where the matter relates to the ferry in respect of passengers and goods the State and the State alone has the jurisdiction with regard thereto.
19. The learned counsel in this connection has placed strong reliance on the meaning of ferry as referred to in Biswas's Encyclopaedia Law Dictionary, 2nd Edition at page 302 which reads as follows :
A place where persons or things are carried across a river or other body of water in a boat, ferry boat; a franchise or right to operate a ferry service across a body of water; an organised service and route for flying airplanes especially across a sea or continent for delivery to the user. A Ferry is a franchise that no one can erect without a licence from, the State. It is in the nature of a highway and is the exclusive right to carry passengers across a river or stream or arm of the sea. It is publici juris and when a ferry is erected, another cannot be erected without an ad quod damnum.
This pasage has been quoted in the aforementioned Dictionary from a decision of the Calcutta High Court in Purnendu Bikash v. District Board .
True it is, the words "ferry", and "navigation" have been used as two different connotations in various Dictionaries. Before, however, adverting to the Dictionary meaning of "ferry", it is necessary to advert to the definition of ferry as contained in Section 5 of the Bengal Ferries Act, 1885 which reads as follows :
"Ferry" includes a bridge of boats, pontoons or rafts, a swing bridge, a flying-bridge, a temporary bridge, and a landing stage.
Similar appears to be the definition of "ferry" as contained in Section 3(2) of the Indian Railway Act, 1890 and Section 3 of the Northern India Ferries Act, 1873 where "ferry" has been defined as follows :
"Ferry" includes a bridge of boats, pontoons or rafts, a swing bridge, a flying bridge and a temporary bridge, and the approaches to, and landing places of, a ferry.
From the aforementioned definitions, it is, therefore, clear that the definition of ferry in the said Act is not comprehensive but an inclusive definition.
"Ferry" has been defined in Stroud's Judicial Dictionary, Fourth Edition, at page 1029 in the following terms :
(1) It is a Highway common to all the Queen's subjects paying the toll...usually across a large and deep river. It is "a liberty by prescription, or the King's grant, to have a boat for passage upon a river for carriage of horses and men for reasonable toll.... Its termination must be in places where the public have rights-as town, or vills, or highways leading to towns or vills...."
(2) As to what is disturbance of a ferry, see Cowes v. Southampton Steam Packet Co. (supra). The construction of a bridge over the same river and near the ferry is not a disturbance of the latter.
(3) A ferry is a Franchise, and, as such, a hereditament as that word is ordinarily used....A private Act authorizing a company to establish a ferry service but not obliging them to do so, was held not to create a franchise of ferry, having the incidents of a monopoly."
(4) A public ferry is a public thoroughfare.
(5) As to when a ferry was 'injuriously affected', within Lands Clauses Consolidation Act, 1845....
In Ballentine's Law Dictionary, Third Edition, at page 466, 'ferry' has been defined as follows :
Verb : To transport persons and their belongings across a river or other body of water. Noun : A place where persons are taken across a river or other body of water in boats or other vessels for hire. A boat, barge, or raft, which, plying back and forth across a stream or other body of water for the conveyance of passengers and their belongings, thereby serves as a connection of the highways located on the opposite banks or shores.... The right or franchise granted by the state or an authorised political sub-division to continue by means of watercraft, an interrupted land highway over interrupting waters and to charge a fee for the use thereof by the public....
In Bouvier's Law Dictionary, Third Revision of the Eight Edition, Vol. I, at page 1208, 'Ferry' has, inter alia, been defined a liberty to have a boat upon a river for the transportation of men, horses and carriages with their contents, for a reasonable toll. The Author, however, says that ferry properly means a place of transit across a river or arm of the sea; but, in law, it is treated as a franchise, and defined as the exclusive right to carry passengers across a river, or arm of the sea, from one vill to another, or to connect a continuous line of road leading from one township or vill to another. It is not a servitude or easement. It is wholly unconnected with the ownership or occupation of land, so much so that the owner of the ferry need not have any property in the soil adjacent on either side. It has further been stated that, in a strict sense a ferry is a continuation of a highway from one side of the water to the other and is for the transportation of passengers, vehicles and other property.
In the Canadian Law Dictionary at page 148, ferry has been defined in the following terms :
A place of transit across a stretch of water, such as a river, lake or arm of the sea. The person who operates a ferry is a ferryman and, under certain circumstances, if he carries goods for hire, would constitute himself a common carrier of goods.
In Black's Law Dictionary, Fifth Edition, at page 558, ferry has been defined as follows :
Commercial transportation of people, vehicles, goods etc., across body of water. Also boat or vessel used in such transportation. In law, it is treated as a franchise, and defined as the exclusive right to carry passengers and freight across a river, lake or arm of the sea, or to connect a continuance line of road leading from one side of the water to the other. Canadian Pac. Ry. Co. v U S., C.C.A, Wash, 73 F. 2d 831, 832.
A continuation of the highway from one side of the water over which it passes to the other, for transportation of passengers or of travellers with their vehicles and such other property as they may carry or have with them, U.S. v. Puget Sound Nav. Co. D. C. Wash, 24 F. Supp. 431, 432....
In Encyclopaedia Britannica (Micropaedia), Vol. IV, at page 109, 'ferry' has been defined as follows :
ferry, boat designed to transport large leads of vehicles and personnel across relatively short spans of water, such as river or bay. It may be self-powered or towed by a cable.
In this connection, it is also useful to refer to Coulson and Farbes on 'water and land Drainage', when the learned author states : "A ferry is the right to keep a boat for the purpose of carrying persons or their goods by water, and to take toll for such carriage, ferry may thus be regarded as a link between two highways on either side of the water, or as part of a ventinuous highway crossing the water.
Reference in this connection may also be made to Hammerton v. Earl of Dysort reported in (1916) 1 A.C. at page 102 (per Lord Sumner).
Even in America, public ferry in exercise of their public functions are subject to control and regulation, and the State has the power to regulate by public ferry operating in and into the State vide Articles 51 and 53 of the American Jurisprudence 2d, Vol. 35. Even in America in respect of the power of regulation in respect of ferry, it has been stated in Article 52 of the American Jurisprudence, 2d, Vol. 35, in the following terms :
52. Federal regulation Congress has the power to regulate and control public ferries engaged in interstate or foreign commerce or navigating the waters of the United States which are common highways of commerce. The power of Congress to regulate and control such ferries in paramount and supersedes state regulations on the same matter. The inclusion of railroad ferries in a federal statute as one of the subjects regulated by that statute is such an extension of the federal authority over the operation by a railway company of a ferry upon a navigable river forming the boundary between two states as to invalidate any regulation under state authority of the rates to be charged by such company for the interstate ferriage of persons, although such regulation relates only to persons other than railroad passengers.
It is, therefore, clear that public ferry is always subject to regulation made by law by the appropriate Government. It is also clear that the State regulation with regard to public ferry is always subject to federal regulation.
20. In Biswas's Encyclopaedia Law Dictionary, Second Edition at page 479, 'navigation' has been defined as follows :
Navigation is the science or art of conducting a ship from one place to another. This includes the supply of necessary implements and skilful mariners. The instruments are useless without the skilful mariners, and conversely; navigation includes two things supply of the instruments or organs of the ship, and the living instruments, or seamen. If either of these is wanting by the negligence of the owner or of those for whom he is responsible, there is 'improper navigation'. The Wadworth, (1884) 9 PD 145.
In Stround's Judicial Dictionary, Fourth Edition, Vol.3 at page 1730, navigation has been denned in the following terms :
Navigation" is "the science or art of conducting a ship from one place to another. This includes the supply of necessary implements and skilful mariners. The instruments are useless without the skilful mariners, and conversely, navigation includes two things- the supply of the instruments or organs of the ship, and the living instruments, or seamen. If either of these is wanting by the negligence of the owner, or of those for whom he is responsible, there is improper navigation.
In Dallentine's Law Dictionary, Third Edition, at page 834 'navigation' has been defined as follows :
The direction of a ship or aircraft in movement; plotting a course and steering by the course plotted, the steering, directing, or managing of a vessel by a person or persons on board.
In Black's Law Dictionary, Fifth Edition, at page 927, 'navigation' has been denned in the following terms :
The act or the science or the business of traversing the sea or other navigable waters in ships or vessels.
In Encyclopaedia Britannica (Micropaedia), Vol. VII, at page 230, 'navigation' has been defined as follows :
the science of conducting a craft or vehicle by the method of determining its position, course, and distance travelled.
The next article covers, in the first section, animal instinct, human art, and the three stages of navigation and, in the second, modern navigation techniques.
At page 258 of the Canadian Law Dictionary, 'navigation' has been denned as follows :
The act or the science or the business of traversing the sea or other waters in ships or vessels. It has relation to water in a condition to bear and freely float upon its surface vessels or floatable substances which are capable of being propelled over or through it, and of moving freely from place to place as directed.
In the Dictionary of English Law by Earl by Jowitt, Vol.2, at page 1211, 'navigation' has been defined as follows :
The right of navigation is the right of the public to use an arm of the sea, a river, or other piece of water, as a highway for shipping, boating, etc., including the right to another in it. It is a right of way and not a right of property, and, therefore, the owner of the bed of a river over which the public have by user acquired a right of navigation may erect and structure on it which does not interfere with the navigation warranted by that user. In the case, however, of estuaries and navigable tidal rivers, the beds of which are prima facie vested, in the crown, the ownership of the soil is wholly subject to the public right of navigation, and no part of it can be used so as to derogate from or interfere with that right....
In Halsbury's Laws of England, it has been made it clear that the Parliament can legislate imposing control upon the public right of navigation on the rivers and inland waterways-vide Para 914 of Halsbury's Laws of England, Fourth Edition, Vol. 49. Similarly, the authorities can give general or special direction as to vehicle, remove obstruction and carry on developmental and conservancing work in the navigable rivers and various other matters.
21. From the aforesaid definitions of the words 'ferry' and 'navigation', there cannot be any doubt that the word 'navigation' is a genus of which the 'ferry' is species in a tidal or navigable river. The right to ferry being a franchise in England had all along been the subject-matter of a grant by the crown. The right to navigate however, is a right of wide amplitude. The right of private ferry and navigation has all along been acknowledged to be a common law right but the right of public ferry and navigation has all along been the subject of a grant. Such a right is undoubtedly to be exercised subject to supervision, control and regulation made by an appropriate legislation.
22. In my opinion, a public ferry be created by a state grant in modern days, can be controlled by the Act of Parliament. In England, it could be acquired by prescription at common law or by proof of facts from which a modern grant can be inferred. In Halsbury's Laws of England, Vol. 21, Fourth Edition, Articles 978 & 980. The law has further been stated in the following terms :
978. Meaning of "ferry" at Common Low.-There are two kinds of ferry which exist at common law : (1) a ferry which is a high way over water uniting two highways on land; and (2) a ferry from town to town. In the case of a highway-to-highway from the termini cannot be varied to any substantial extent, but in a town-to-town ferry the termini can be varied within the boundaries of the town.
A ferry may be created for one way only, the owners of opposite bench such having a ferry. The right to charge tolls is usually incident to a ferry, and a right of ferry is primarily a toll franchise.
A ferry exists in connection with the use of a right of way. There must be a line of way on land, coming to a landing place on the water's edge, or, where the ferry is free from or to a town, from or to one or more landing places in the town."
"980. Creation of ferry by grant or statute.-A. ferry is a franchise and is created by royal grant or by Act of Parliament or was done in the case of the Woolwich ferry. It can be acquired by prescription at common law, which presumes a grant prior to the reign of Richard I (1189), or by proof of facts from which a modern grant can be inferred.
23. However, the position of ferries is not quite the same so far as the United States of America is concerned, although they are controlled by the State (See American Jurisprudence, 2d, Vol. 35, at page 445); Article 1 whereof roads as follows :
The term "ferry" denotes a liberty, privilege, or right to operate a boat, barge, or other similar means of transportation across a body of water in order to carry persons or property for a reasonable toll. In a strictly technical sense a ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for the transportation of passengers or travellers with their teams and vehicles and such property as they may carry or have with them. It has also been defined as a place where persons and property are taken across a river or other stream in boats or other vessels for hire, or as a necessary service by a specially constructed boat to carry passengers and property across rivers or bodies of water from a place on one shore to a point conveniently opposite on the other shore and in continuation of a highway making connections with a thoroughfare at each terminus.
Although the term "ferry" usually implies transportation for a short distance, almost invariably between two points only, which is unrelated to other transportation, a ferry may be a intrastate, interstate, or international. The difference between a "ferry" and an "international ferry' is of degree and not of kind, since a ferry is the same whether it connects villages, states, or nations. A ferry consists of a boat, barge, or raft with its docks or terminals and the operation of such means of transportation across a body of water.
24. However, it appears that there is a divergence of views so far as the High Courts of India are concerned. In Pumendu Bikash v. Chairman, District Board , a Bench of the Calcutta High Court has held that private ferry in India was not considered as franchise in English sense and after the coming into force of the Constitution, there cannot be an embargo on such right. However, a Division Bench of this Court in Kirtyanand Singh Bahadur and Ors. v. Doonandan Prasad and Ors. AIR 1933 Patna 535 proceeded on the basis that the right of ferry can be created by franchise. It states that franchise of ferry is right of public to be carried free one terminus of public highway across river to another and necessarily contemplates right of way to river bank in the public. In the said decision, the law has been stated in the following terms :
Under the circumstances, it becomes unnecessary to consider the question suggested by the defendants that they had by prescription acquired a right to land passengers and other traffic in the plaintiffs' village. Indeed from one point of view had the defendants been driven back to such a case they would meet certainly have failed. Franchise of ferry is in a sense a right of the public to be carried from the terminus of a public highway across the river to the terminus of another; in other words, the passage across the river is a continuation of a public highway. Without the right of way to the river bank the franchise cannot exist.
25. However, in the instant case, we are not concerned with that situation, inasmuch as, in this case, the right of passage by public or the right of private ferry are not in question. In view of the provisions of the Bengal Perries Act, 1885, there cannot be any doubt whatsoever so far as public ferry is concerned, the same can be controlled by the laws made by the appropriate legislation in this behalf. Nobody can claim a right in a public ferry. Nobody also can claim a right to carry on business in public ferry after the amendment in Article 296 by the Constitution Amendment Act, 1956.
From the aforesaid definitions of the words "ferry" and "navigation", there cannot be any doubt that the word "navigation" is a genus of which "ferry" is species. The right to ferry being a franchise in England had all along been the subject-matter of a grant by the Crown. The right to navigate, however, is a right of wide amplitude. The right of private ferry and navigation has all along been acknowledged to a common law right but the right of public ferry and navigation on tidal water and seas has all along been the subject of grant and control.
26. Learned Government Advocate submitted that as normally ferry is erected for the purpose of carrying something only across the river whereas navigation implies traffic along with or against the course of river. The learned Government Advocate, therefore, contends that erection of ferry, which may be a part of the highway, can hardly come in the way of navigation which word must be held to have been used by the legislature as a different connotation and for different purpose. The learned counsel, in this connection, has referred to the decision of the Supreme Court in the case of Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal and has placed strong reliance on para 12 of the judgment which rends as follows :
This Court has consistently taken the view that if there is a prohibition to operate on a notified route or routes no licences can be granted to any private operator whose route traversed or overlapped any part or whole of that notified route. The intersection of the notified route may not, in our view, amount to traversing or overlapping the route because the prohibition imposed applies to a whole or a part of the route on the highway on the same line of the route. An intersection cannot be said to be traversing the same line, as it cuts across it.
In my opinion, the submission of the learned Government Advocate cannot be accepted. As soon hereinbefore, the definition of ferry is wide one and it can be interstate or international. The ferry is not confined only from one side of the one bank to the other bank so as to form a part of highway alone but the same may be from point to point village to village or town to town. In tidal rivers, the Government, as in the instant case, may not only erect ferry by body barges, rafts but also by mechanically propelled vehicles. In U.S.A., such type of ferry is known as stream ferry. While crossing the sea or a big river, the mechanically propelled vessels can be made use of and, as such, in such a situation, the some would amount to navigation. Further, the very fact that like ferry navigation is also possible from one point to another point, one village to another village, one town to another town, the only difference being that such navigation must be done by mechanically propelled vessels.
The Supreme Court in the case of Mysore State Road Transport Corporation (supra), clearly held that in a case of overlapping of the nationalised route or unnationalised route no permit can be granted in respect of the nationalised route or highway. Two routes when intersects with each other at a particular place, such place would form part of both the routes and, in this view of the matter, only the Supreme Court has held that intersection cannot be said to be traversing the same line, as it cuts across the same. However, in the case of navigable river the situation is entirely different. In such a case, a vessel has to traverse the same line for the purpose of going from one point to another or from one town to another. Further, in the case of road, no question of permit or licence for the purpose of crossing the road alone would arise. But, in the case of river, the same does. However, it is not the case of either party that the ferry in question acts as a bridge in relation to the same highway.
Further, it is well known that where a superior Legislature calls and intends to cover the whole field, the enactments of the Legislature whether passed before or after must be held to overborne. As noticed hereinbefore, entry item No. 30 of the State List provides for ferry as a means of communication but so far as the operation of such a communication on an inland waterways and traffic thereon is concerned the same is subject to the provisions of List I and List III and again in respect of the mode of communication with regard to such waterways the right of the State to make legislation is confined only to vehicles other than mechanically propelled vessels.
In substance, therefore, the legislative competence of the State is confined only in respect of ferry as a means of communication on an inland waterways which has not been declared as a national waterways and for which there is no legislation under List III and only user of vehicles other than mechanically propelled vehicles. So far as the Bengal Ferries Act, 1885 read with the notification issued under Section 6 thereof as also the practice prevalent in respect of leasing out of tolls of public ferry is concerned, it must be held that the said Act would be deemed to be an Act made under item No. 32 of the Concurrent List and not under item No. 13 of the State List.
It is well known that certain subjects of legislation which in the first instance belong exclusively to the State become the subjects of legislation exclusively by the Parliament, if a declaration is made as provided in the relevant item of list I. In terms of item No. 24 of List I, the entire Allahabad-Haldia Stretch of the Ganga-Bhagirathi-Hoogly River has been declared to be a national waterway by reason of Section 2 of Act 49 of 1982.
Reference in this connection may be made to item No. 23 of List II and item No. 54 of List I. The Supreme Court, while taking into consideration the aforementioned items, clearly held that to the extent to which a declaration is made by the Parliament, the power of the State Legislature to legislate in respect of the matters in item No. 23 in excluded.
Reference in this connection may be made to the case of Hingir-Rampur Coal Co. Ltd. and Ors. v. State of Orissa and Ors. cited with approval in State of Orissa v. M.A. Tulloch & Co. and Baijnath Kedia v. State of Bihar, 1970 PLJR 661 (SC).
In this connection, reference may also be made to the item No. 24 of List II and Items 7 and 52 of List I. In this view of the matter, it must be held that the Parliament by enacting the aforementioned Act 49 of 1982 and Act 82 of 1985 have taken over the entire field of legislation so far as the national waterways as regards carriage of passengers and goods by mechanically propelled vehicles are concerned. However, it is clear that, in terms of item No. 24 of the Union List, the Parliament, by reason of the aforementiond two Acts, have taken under its control the rule of the road on such waterways which must include the control of the entire traffic whether the same relates to carriage of passengers or goods by mechanically propelled vessels or otherwise.
It is, therefore, clear that the Parliament has the exclusive power to legislate only in respect of shipping and navigation on the inland waterways which has been declared by law to be national waterways as regards mechanically propelled vessels and the rule of the road an such waterways including carriage of passengers and goods by mechanically propelled vessels only. The State's legislative power, therefore, over another part of the same subject meaning thereby carriage of passengers and goods by national waterways as regards vehicles other than mechanically propelled vehicles exists, and, such legislative power, however, as mentioned above, is subject to the rule of the road that may be made in respect of national waterways by the Parliament or in terms thereof. In this connection, reference may be made to the case of The Kerala Electricity Board v. Indian Aluminium Co. , while interpreting Article 246 of the Constitution the Supreme Court held as follows :-
5. In view of the provisions of Article 254, the power of Parliament to legislate in regard to matters in List III, which a re-dealt with by Clause (2), is supreme. The Parliament has exclusive power to legislate with respect to matters in List I. The State Legislature has exclusive power to legislate List II. But this is subject to the provisions of Clause (1) (leaving out for the moment the reference to Clause 2). The power of Parliament to legislate with respect to matters included in List I is supreme notwithstanding anything contained in Clause (3) (again leaving out of consideration the provisions of Clause 2). Now what is the meaning of the words "notwithstanding" in Clause (1) and "subject to" in Clause (3) ? They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the special excludes the general and the general entry in List II is subject to the special entry in List I. For instance, though house accommodation and rent control might fall within either the State List or the Concurrent List, Entry 3 in List I of Seventh Schedule carves out the subject of rent control and house accommodation in cantonments from the general subject of house accommodation and rent control See Indu Bhusan v. Sundari Devi, . Furthermore, the word notwithstanding in Clause (1) also means that if it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which list a particular legislation falls. For deciding under which entry a particular legislation falls the theory of pith and substance has been evolved by the Courts. If in pith and substance a legislation falls within one List or the other but some portion of the subject-matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching. These principles have been laid down in a number of decisions.
27. I am of the view that the right of State Legislature to make an enactment with regard to ferry is confined only when the same is done by means of boat, etc. and not by means of mechanically propelled vessels on such inland waterways which have not been declared to be 'national waterways'.
28. I may now turn in different provisions of the Act for the purpose of showing that the Parliament by enacting two Acts being Acts No. 49 of 1982 and 82 of 1985 has taken over complete control with regard to the right of navigation on a national waterways by means of mechanically propelled vehicles and all other matters incidental thereto or connected therewith.
By reason of Section 2 of the Act No. 49 of 1982, the Parliament declared the Allahabad Haldia Stretch of the Ganga-Bhagirathi-Hooghly river, the limits of which are specified in the Schedule, to be a national waterway. By reason of Section 3 of the said Act, it was further declared that it is expedient in the public interest that the Central Government should take under its control the regulation and development of Ganga-Bhagirathi-Hooghly river for purposes of shipping and navigation on the national waterway to the extent provided for in the Act. By reason of Section 5 of the Act, responsibility for regulation and development of national waterway has been imposed by the Central Government. Section 6 of the said Act, confers wide power on the Central Government which reads as follows :-
(1) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, particularly for the purpose of discharging its responsibility under Section 5, exercise any jurisdiction, right or power with respect to the national waterway or any lands or infrastructure appurtenant thereto which it could have exercised if the national waterway and the lands and infrastructure appurtenant thereto had been vested in that Government by this sub-section.
(2) If any dispute arises as to whether any land or structure is a land or infrastructure appurtenant to the national waterway, the Central Government and the other party or parties to the dispute shall endeavour to resolve the dispute by negotiations or conciliation in such manner as may be prescribed.
(3) Notwithstanding anything contained in Sub-section (2), if the Central Government consider whether before initiating action for resolving a dispute by negotiations or conciliation or at any stage after initiating such action, that the dispute is of such a nature that it is necessary or expedient to refer it to arbitration, the Central Government shall, in such form and in such manner as may be prescribed, refer the matter in dispute to an arbitrator who shall be appointed by the Chief Justice of India.
(4) The arbitrator may appoint two or more persons as assessors to assist him in the proceedings before him.
(5) The decision of the arbitrator shall be final and binding on the parties to the dispute and shall be given effect to by them.
(6) Nothing in the Arbitration Act, 1940 shall apply is any arbitration under this section.
Section 7 of the Act provides that the provisions of the said Act shall be in addition to the provisions of some other Acts.
Section 7(2) of the Act reads as follows :-
Nothing in this Act shall affect the operation of the Inland Vessels Act, 1917 or any Central Act (other than the Major Port Trust Act, 1963) or any State or Provincial Act in force immediately before the commencement of this Act with respect to shipping and navigation on the waterway declared by Section 2 to be a national waterway but any jurisdiction, function powers or duties required to be exercised, performed or discharged by a State Government or any officer or authority subordinate to a State Government under any such Act in so far as such jurisdiction, functions, powers or duties relates or relate to shipping and navigation on the said waterway or any matter incidental thereto or otherwise connected therewith, shall after such commencement be exercised, performed or discharged by the Central Government.
29. The Parliament enacted the Inland Waterways Authority Act, 1885 (Act No. 82 of 1985) to provide for the constitution of an authority for the regulation and development of inland waterways for purposes of shipping and navigation and for matters connected therewith or incidental thereto. By reason of the provisions of the said Act, an Authority known as the Inland Waterways Authority of India was to be constituted. The said Act provides as to how the said authority shall be constituted.
Before adverting to the other provisions of the said Act, the definition of the following words as incorporated in various clauses of Section 2 thereof may be noticed :-
2(c) "channel" means any waterway, whether natural or artificial.
2(d) "conservancy" includes dredging, training, closure, diversion or abandoning channels.
*** *** *** 2(h) "national waterway" means the inland waterway declared by Section 2 of the National Waterway (Allahabad-Haldia Stretch of the Ganga-Bhagirathi-Hooghly River) Act, 1982, to be a national waterway.
2(i) "navigable channel" means a channel navigable during the whole or a part of the year.
In Section 14 of the said Act, the functions and powers of the Inland Waterways Authority India have been laid down. Relevant provisions of Sub-section (1) of Section 14 of the said Act are as follows :-
14(1) The Authority may-
*** *** ***
(b) provide or permit setting up of infrastructural facilities for national waterways;
(c) carry out conservancy measures and training works and do all other acts necessary for the safety and convenience of shipping and navigation and improvement of the national waterways;
*** *** ***
(f) provide for the regulation of navigation and traffic (including the rule of the road) on national waterways;
(g) regulate the construction or alteration of structures on across or under the national waterways;
*** *** ***
(i) ensure co-ordination of inland water transport on national waterways with other modes of transport.
By reason of Sub-section (2) of Section 14 of the said Act, the Authority may also-
(a) advise the Central Government on matters, relating to inland water transport;
(b) study the transport requirement with a view to co-ordinating inland water transport with other modes of transport;
*** *** ***
(g) lay down standards for classification of inland waterways;
*** *** ***
(i) perform such other functions as may be necessary to carry out the provisions of this Act.
30. By reason of the provisions contained in Section 16 of the said Act, the Authority has been empowered to fix maximum and minimum rates for passenger fares and freight for goods.
Section 27, which is important for the purpose of decision in this case reads as follows :
27. (1) The provisions of this Act shall be in addition to the provisions of the Indian Ports Act, 1908, and the Major Port Trusts Act, 1963 and in particular nothing in this Act shall affect any jurisdiction, functions, powers or duties required to be exercised, performed or discharged by-
(a) the conservator of any port or by any officer or authority under the Indian Ports Act, 1908, or
(b) the Board of Trustees for any major port or by any officer or authority under the Major Port Trusts Act, 1963, in or in relation to any portion of an inland waterway (including the national waterway) falling within the limits of such port or major port.
(2) Nothing in this Act shall affect the operation of the Inland Vessels Act, 1917, or any other Central Act (other than the Indian Ports Act, 1908 and the Major Port Trusts Act, 1963) or any State or provincial Act in force immediately before the commencement of this Act, with respect to shipping and navigation on any national waterway but any jurisdiction, functions, powers or duties required to be exercised, performed or discharged by the State Government or any officer or authority subordinate to the State Government under any such Act in so far as such jurisdiction, functions, powers or duties relates or relate to shipping and navigation or such national waterway or any matter incidental thereto or otherwise connected therewith shall, after such commencement, be exercised performed or discharged by the Authority.
Section 29 of the said Act provides for delegation of the power by the Authority to the Chairman or any other member or any officer of the authority.
From a perusal of the provisions of the aforementioned Act 49 of 1982 and Act 82 of 1985, there cannot, therefore, be any doubt whatsoever that the Central Government has taken over the entire control over the entire surface of water in respect of the entire stretch of the Allahabad-Haldia Stretch of Ganga-Bhagirathi-Hooghly river, including the control over the navigation by mechanically propelled vessels. The extent of control can be judged from the fact that it may provide setting up of infrastructural facilities for national water ways which, as per the definition of the word "infra-structural" includes structures such as docks, wharves, jetties, landing stages, lacks, buoys, inland ports, cargo handling equipment, road and rail access and cargo storage spaces. Further, by reason of the provisions of the said Act, the authorities to ensure coordination of inland water transport in national waterways with other modes of transport wherefrom it is clear that it has also taken its fold by entire transport system on national waterways carried out by mechanically propelled vessels.
The extent of regulation can also be viewed from the fact that the authority has the power to provide for the regulation of navigation and traffic (including the rule of the road on the national waterways) which necessarily means and includes the control and regulation for the purpose of ensuing safety, peace, health, and good morals of the public. Such a control extends to the right of passage over the national highway whether undertaken by a private individual or a public undertaking or whether the vehicle is plied for pleasure or for the purpose of trade and business.
31. By reason of the provisions of the said Act, therefore, it is absolutely clear that neither any private individual nor any State or public body can undertake any journey on national waterways without being subject to the control or navigation as may be made in this behalf either by the Central Government or the said authority pursuant to or infurtherence of the aforementioned Acts. It is also pertinent to note that the right of the State Government to use or permit user of mechanically propelled vehicles in terms of the provisions of the Bengal Ferries Act, 1885, or otherwise was responsible to be done in terms of the entry No. 32 of the Concurrent List. At the cost of repetition, it may be stated over here again that the State was not empowered by entry No. 13 of the List II to make any law with regard to "mechanically propelled vehicles". However, as noticed therein before, entry No. 32 of the Concurrent List! being subject to the provisions of List I with respect to national highways, provisions which would be deemed to have been made in the Bengal Ferries Act in terms of the said entry must give way to enactment by the Parliament in exercise of its legislative power contained in entries Nos. 24 and 30 of the Union List. However, Sub-section (2) of Section 7 of the Act 49 of 1982 and Sub-section (2) of Section 27 of the Act 82 of 1985 saves the operation of all the State Acts subject to the condition that any jurisdiction, functions, power or duties required to be exercised performed or was discharged by the State Government or any officer or authority subordinate to State Government any such act in so far as jurisdiction, functions and powers or duties relate to shipping and navigation or such national waterway or any matter incidental thereto or otherwise connected therewith is concerned, the same shall, after the coming into force of the said Acts, can only be exercised or performed or discharged by the Central Government or the said Act, as the case may be depending upon the relevant provisions thereof.
32. In this view of the matter, the jurisdiction of the State or the District Magistrates conferred upon them in terms of the provisions of the Bengal Ferries Act, 1885 could only be discharged or performed either by the Central Government or by the Inland Waterways Authority of India and by no body else. In that view of the matter, in my opinion, there cannot be any doubt that, although operation of Section 9 of the Bengal Ferries Act is in force so far as the ferry of passengers or goods by mechanically propelled vehicles are concerned even after the enactment of the Act of 1982 and Act 82 of 1985 but neither the State Government nor the District Magistrates, after the coming into force of the said Act, namely, 27-10-1986 has got any authority, power or jurisdiction in any matter in relation thereto and all its jurisdiction, functions and powers are to be exercised, performed or discharged either by the Central Government or by the said Authority.
33. It is further held that upon harmonious construction of entry Nos. 24 and 30 of the Union List, entry No. 13 of the State List and entry No. 32 of the Concurrent List, the provisions of the Bengal Ferries Act, 1885 will have no application whatsoever in so far as national waterway in question is concerned save and except under Sub-section (2) of Section 7 of Act 40 of 1982 and Sub-section (2) of Section 27 of Act 82 of 1985.
34. Re : Question No. 2 :-
Section 9 of the Bengal Ferries Act reads as follows :
9. The tolls of any public ferry may, from time to time, be leased by public auction for such terms 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 authorised 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 tells from auction. The lessee of the tolls of every ferry which have been leased under this section shall prosecute a contractor setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfillment.
35. By reason of the Bengal Ferries (Amendment) Act, 1977 (Bihar Act 13 of 1978), a provision was added to Section 9 which is in the following terms :
Provided that in respect of settlement of ferries to Government of India or the State Government or any Government undertaking or body, it shall not be necessary to do it by public auction and permission can be given to run the ferry without undergoing the formalities of auction on such terms and conditions as the State Government may decide.
By the impugned Bihar Act 6 of 1983, the provision has further been amended, which is in the following terms :
In proviso to Section 9 of the Bengal Ferries Act, 1885 (Act 1 of 1885) after the words "or body" the words "or a Boatmen's Co-operative Society, duly registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act 6, 1935) having jurisdiction to operate in the area where ferry is situated shall be inserted.
Now, the amended proviso to Section 9 of the Bengal Ferries Act, 1885, taking together the Bengal Ferries (Amendment) Act, 1977 Bihar Act 13 of 1978) and the Bengal Ferries (Amendment) Act, 1988 (Bihar Act 6 of 1988) will read thus :
Provided that in respect of settlement of ferries to Government of India or the State Government undertaking or body, or a Boatmen's Co-operative Society, duly registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act 6, 1935) having jurisdiction to operate in the area where the ferry is situated, it shall not be necessary to do it by public auction and permission can be given to run the ferry without undergoing the formalities of auction on such terms and conditions as the State Government may decide.
From a perusal of the aforementioned provision, it would be evident that the District Magistrate have been conferred with the power to lease out tolls at any public ferry by public auction with the approved of the Commissioner. By means of the Bihar Act 13 of 1978, if the settlement of ferries is to be made through the Government of India or the State or any Government undertaking or body, the formalities for loading the same out by public auction need not be gone into. However, such settlements have to be made on such terms and conditions as the State Government may decide.
36. For the purpose of construing the proviso appended to Section 9 of the said Act, other relevant provisions of the Bengal Ferries Act, 1885 have got to be taken note of, Section 6 of the said Act provides the power of the State Government to declare, establish, define and discontinue public ferries. In terms of Section 7 thereof, control of public ferries vests in the Magistrate of the district, subject to the direction of the Commissioner. Section 8 stipulates the immediate superintendence of every public ferry shall be vacated in the Magistrate of the district in which such ferry is situated or in such other officer of the State Government may from time to time, either by name or by official designation appoint. It is further provided therein that such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arranged is for the supply of boats for such ferry and for the collection of the authorised tolls leviable thereat.
37. From the aforesaid provisions, therefore, there cannot be any doubt that the control and superintendence of public ferries (in absence of any delegation of power or to any other officer by the State Government) vests absolutely in the District Magistrate. Section 9 of the said Act, therefore, has to be read along with Sections 7 and 8 thereof for the purpose of holding that the ultimate and statutory authority in the matter of control and superintendence and grant of lease of public ferry vests in the District Magistrate and in nobody else. However, in all such matters, the District Magistrates will be guided by the direction of the Commissioner in so far as the control of public ferry is concerned and/or the same is subject to the approval of the Commissioner in so far as the grant of lease of ferry tolls in concerned. The proviso to Section 9, therefore, has to be read along with the main provision itself and not as a separate and distinct provision.
Therefore, the question arises as to how the proviso appended to the Bengal Ferries Act, 1885 is to be construed. In this connection, reference may be made to a well-known decision of the Supreme Court in the case of S. Sundar am v. V.R. Pattaviraman wherein Murtaza Fazal Ali, J. summed up discussion by observing that the proviso may serve four different purpose, namely.
(1) qualifying or excepting certain provision from the impugned main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on the certain mandatory conditions to be fulfilled in order to make the enactment arguable;
(3) it may be embodied in the Act itself as to because an integral part of the enactment and thus require the tenure and colour of the substantive enactment itself; and (4) it may be merely to set as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.
38. In my opinion, reading the proviso harmoniously with the provisions of Section 9 of the said Act, leads to an inference that the District Magistrate only has the discretionary power to make the settlement. It is, therefore, for the District Magistrate to consider as to whether such leases should be made by public auction or to be made to the Government of India or the State Government or any Government undertaking or body. So far as the words "on each terms and conditions as the State Government any decision", are concerned, the same, in my opinion, do not mean that the State Government shall fix the terms and conditions in respect of each and every settlement but only means that on each terms and conditions which may be generally fixed by the State Government in this behalf, i.e., by laying down the general terms and conditions of such lease.
The proviso to Section 9 of the said Act, as mentioned hereinbefore, does not take away entirely the discretion of the District Magistrate. If the State Government decides the terms and conditions on the basis whereof the settlement of ferries can be granted to the Government of India or the State Government or any of its undertakings or bodies, the offer of the Government or its bodies may be considered by the District Magistrate on taking into consideration the revenue of the State, safety of passengers, capability of the persons making such offer and other relevant factors for the purpose of considering as to whether the settlement should be made by holding an auction or to the department/bodies mentioned in the proviso to Section 9 without taking recourse to the formalities of holding "such an auction.
39. To me, it appears further that laying down of such terms and conditions appears to be mandatory before any Government of its undertaking or bodies make its offer for the purpose of taking the lease of tolls of any public ferry. Once such terms and conditions are known, either the Department of Government (the Central Government or the State Government) or any of its undertakings or bodies may give a higher or better offer for detaining lease of such tolls of any public ferry. If such terms and conditions as may be laid down by the State Government are also made known to the general public and person intending to obtain settlement by taking part in the public auction may still make better offers in this regard.
40. The requirement of fixing the terms and conditions by the State Government in terms of the proviso to Section 9 of the said Act is still the mere necessary after the proviso to Section 9 has been amended inasmuch as new even the Co-operative Societies registered under the Bihar and Orissa Co operative Societies Act may compete with the Central or the State Government or their undertakings or bodies as also the public in general for obtaining the settlement of tolls of public ferry.
41. In this view of the matter, in my opinion, the discretionary power of the District Magistrate to grant settlement either by auction or by granting such settlement without undergoing the formalities of auction but subject to the approval by the Commissioner must be held to be absolute one.
In terms of the provisions of the Bengal Ferries Act, 1885, both the State Government and the District Magistrates are statutory functionaries. The State Government, therefore, evidently, cannot interfere with or in any way give direction in the matter of leasing out tolls of public ferry so far as the right whereof is vested in the District Magistrate.
42. In this background, in my opinion, the challenge of the petitioner with regard to the question of the vires of the said provision on the touch stone of Articles 14 and 19 of the Constitution has got to be viewed.
In terms of Article 19(2)(6) of the Constitution, nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. The petitioner, therefore, could not have challenged the vires of the Bengal Ferries Act 1885 as amended by Act 13 of 1978 on the ground that the same is violative of Article 19(1)(g) of the Constitution.
43. True it is that in terms of Article 19(1)(g) of the Constitution, a citizen shall have a right to practise or to carry out any profession or any occupation, trade or business but the right to obtain a lease in respect of tolls of public ferry by itself is not a 'fundamental right'. The petitioner has merely a right to take part in the auction held, if any. The authorities mentioned in the proviso to Section 9 including the Co-operative Societies have been granted certain benefits only to the extent that if the District Magistrate in his discretion thought it fit and proper to grant a lease to such authorities or bodies, it would not be necessary to undergo the formalities of holding a public auction.
44. In this view of the matter, in my opinion, the petitioner cannot make any grievance whatsoever that its right to carry on business under Article 19(1)(g) has been infringed. In other words, by reason of Section 9 of the Act read with the proviso, the petitioner along with others may take part in the public auction provided one is required to be held. In this situation, the question of infringement of the petitioner's fundamental right under Article 19(1)(g) of the Constitution does not arise.
45. So far as the purported challenge made on behalf of the petitioner to the effect that the said proviso as amended by the Bihar Act 6 of 1988 is violative of Article 14 of the Constitution is concerned, in my opinion, the same has also no substance. It is now well known by reason of the various authoritative pronouncements of the Supreme Court that the Legislature in its wisdom may find a purpose for enacting an exemption clause. By reason of such a provision, exemption from the rigour of a separate class or who form a class by themselves. In terms of the provisions contained in Section 2 of the Bihar Act 6 of 1988, the exemption from undergoing the rigours of holding a public auction which had previously been conferred by the Central Government or the State Government or any of its undertakings or bodies has merely been extended to the Boatmen's Co -operative Societies duly registered under the Bihar and Orissa Co-operative Societies Act. The purpose underlining such exemption clause in favour of the Co-operative Societies is to be found from the statements of objects and reasons thereof.
46. So far as the grant of settlement in respect of tolls of ferry is concerned, the exemption of not taking recourse to the rigorous of undergoing public auction, has been given to the Co-operative Societies of which the boatmen are members. Evidently, the membership of boatmen's Cooperative Societies must confine to such persons who are boatmen by profession. When they form such a Co-operative and get themselves registered under the provisions of the Bihar and Orissa Co-operative Societies Act the purpose and object for forming such Co-operative Society and manners and control thereof must contain in the byelaws framed by it which would be subject to checking by the authorities under the said Act. In terms of the provisions of the Bihar and Orissa Co-operative Societies Act, the authorities thereof may also exercise the powers and superintendence in respect of the functioning and management of such Co-operative Societies. There cannot, therefore, be any doubt that such Co-operative Societies must be constituted for specified purpose for fulfilling the object of the impugned Act and must comprise of the members who have gained experience and expertise in the activities relating to profession of beating.
47. Article 14 of the Constitution forbids discrimination which means discrimination amongst persons similarly situated. In other words, Article 14 does not forbid reasonable classification. In view of the various decisions of the Supreme Court, it is not necessary for this Court to embark upon a detailed study as to whether the Co-operative Societies registered under the Co-operative Societies Act form a separate class or not.
48. Reference in this connection may be made to the Hindustan Paper Corporation Ltd. v. Government of Kerala and Ors. , wherein the Kerala Forest Produce (Fixation of Selling Price) Act, 1978 was challenged on similar grounds. In the said decision, it was held as follows :-
9...Even when it is stated that any company owned by the Central Government or the Government of Kerala or a Co-operative Society (subject to the limit as regards the quantity of forest produce to be supplied) may be supplied forest produce without the constraint contained in Section 5 of the Act, it docs not mean that the forest produce would be made available to them at throw-away prices. It is reasonable to expect that the price payable for the forest produce in question by the Government companies or co-operative societies would be determined after negotiations having regard to the public interest. In almost all the statutes by which the fiscal or economic interests of the State are regulated, provision for granting exemption in appropriate cases would have necessarily to be there and the power to grant exemption is invariably conferred, on the Government concerned...."
* * * * * The next question is whether Section 6 of the Act which restricts the power of the Government to grant exemption to companies owned by the Central Government or the Government of Kerala and to co-operative societies only is valid.
10...Hence preference shown to Government companies under Section 6 of the Act cannot be considered to be discriminatory as they stand in a different class altogether and the classification made between the Government companies and others for the purposes of the Act is a valid one.
48. As found hereinbefore that in the instant case also, the District Magistrate is a statutory authority who will exercise his discretion in the matter of granting settlement, the Commissioner of the Division is to grant approval to the action of the District Magistrate in terms of the proviso to Section 9 of the said Act.
No material has been placed before us to show that the grant of exemption in favour of the Co-operative Societies is not in public interest. Further, when a power is vested in a higher authority, it is presumed that the same would be exercised reasonably.
Reference in this connection may be made to R. S. Dass v. Union of India and Ors. 1986 (Supp) SCC 617. In this view of the matter it must be held that the impugned provisions are not unconstitutional.
49. Re : Question No. 3. It is now well settled that the statutory functionary must function within the four corners of the statutes. From a perusal of Annexures-2 and 3, it is evident that the District Magistrate purported to grant settlement in favour of the respondent No. 5, pursuant to or in furtherance of the direction of the State Government. The same was clearly beyond the authority of the State. This aspect of the matter in no longer res integra, as the same is covered by various decisions of the Supreme Court as also of this Court, and other High Courts.
Reference in this connection may be made to Commissioner of Police v, Gobardhandas Bhanji . The Purtabpur Company Ltd. v. Cane Commissioner of Bihar and Ors. AIR 1970 SC 1898; Ram Bharosa Singh v. The Govt. of State of Bihar ; Jagat Singh v. State of Bihar AIR 1953 Patna 483; Rejendra Prasad v. West Bengal State ; The State of Assam and Anr. v. Keshab Pd. Singh ; and Ramphai Singh v. The Govt. of the State of Bihar .
Reference in this connection may also be made to the recent Full Bench decision of this Court in Ranjit Singh v. State of Bihar, 1987 PLJR 230 wherein it was held as follows :-
18. The aforesaid resume makes it manifest that the relevant provisions of the Act and the statutory rules framed thereunder vest the control, leasing and management of the public ferries in the Magistrate of the district subject to the direction of the Commissioner. The State Government as such does not enter into or in any way figure in this statutory scheme. Learned counsel for the petitioner was thus on a somewhat firm footing in his submission that any frontal interference by the State Government in the control management and the settlement of public ferries under the Act is not warranted in the eye of law."
* * * * * "24. Now once it is held as above, that a composit settlement is to be governed exclusively by the provisions of the Act and the Rules, then it is somewhat plain sailing for the petitioner thereafter. Even the learned counsel for the respondent State Mr. J. N. P. Sinha had to fairly concede that in such a situation the State Government does not enter at any stage and cannot interfere with the statutory powers of the District Magistrate and the Commissioner, However, I am not in the least basing myself upon any such concession. Apart principle which has been earlier elaborated, the identical result flows from the binding precedent as well. This issue came up pointedly before the Division Bench in Ram Bharosa Singh v. The Government of the State of Bihar and Ors. wherein it was unequivocally held as under :-
...The learned Advocate General, therefore, argued that, since the State is a party to the agreement which the lessee has to execute, it should be inferred that the State can give directions to the District Magistrate as its agent. I cannot accede to this argument in view of the fact that the Act and the rules framed thereunder give the sole control of the ferries to the District Magistrate, subject only to the direction of the Commissioner, and I do not think that the State Government can give directions to the District Magistrate....
The Division Bench judgment was challenged by the State of Bihar in appeal but the Constitution Bench in the Government of State of Bihar and Ors. v. Ram Bharosa Singh and Anr. , unreservedly recorded that they were in full agreement with the view taken by the High Court and affirmed the same.
It is, therefore, clear that the impugned orders as contained in Annexures-2 and 3 were wholly illegal and without jurisdiction.
51. It is, accordingly, held :-
(a) the Bengal Ferries Act, 1885, survivors in so far as the National Waterways are concerned by reason of Section 7(2) of Act 49 of 1982 and Section 27(2) of Act 82 of 1985 and the jurisdiction, powers and functions of the State Government and/or the District Magistrate thereunder are to be exercised, performed or discharged by the Central Government or the Inland Waterways Authority of India, as the case may be, and, in this view of the matter, the State of Bihar and the District Magistrate now cannot exercise any jurisdiction for grant of settlement of public ferry for tolls of public ferry or any part of the national waterways;
(b) Proviso to Section 9 of the Bengal Ferries Act, 1885, as inserted by the Bihar Act 6 of 1988 is not ultra vires Articles 14 and 19(1)(g) of the Constitution of India; and
(c) The impugned orders as contained in Annexures-2 and 3 to the writ application having been passed at the behest of the State Government by the District Magistrate, the same are wholly illegal and without jurisdiction.
52. In the result, the writ applications are allowed and the orders as contained in Annexures-2 and 3 in C.W.J.C. No. 1181 of 1988 are quashed. However, on the facts and in the circumstances of this case, there shall be no order as to costs.
P.S. Mishra, J.
The judgment by my learned brother is so exhaustive and comprehensive that any foot note thereto shall appear insignificant. Conclusions recorded by brother Sinha are irresistible. I fully concer with them.
53. A note, however, which appears to me germain to the questions considered and fully answered by my learned brother, is that the law made by the Parliament has declared river Ganges as a National Waterways and as such a law has been made in the National Waterways Act, 1982 (Act 49 of 1982) and National Waterways Authority Act, 1985 (Act 82 of 1985). Operation of the State law with respect to that has been excluded. Shipping and navigation of inland waterways declared by the Parliament by law to be national waterways, as regards mechanically propelled vessels, is the subject for the Union. Concurrent list, no doubt, permits States legislation with respect to shipping and navigation on national waterways, as regards mechanically propelled vessels subject to the provisions to list I with respect to national waterways. Ferry excluding shipping and navigation on national waterways, as regards mechanically propelled vessels, however, continue to be a State subject. Bengal Ferries Act may continue to be a valid law so long the Parliament is; not introducing a rule of road to exclude movement of ferries other than of mechanically propelled vessels also.
54. Primarily for the reasons aforesaid, I associate myself with the conclusions recorded by brother Sinha and. hold that the Bengal Ferries Act survives so far as National Waterways are concerned to the extent indicated by brother Sinha in his judgment. Since I am in complete agreement with the views expressed by my learned brother, I record my concurrence thereto.