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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 :

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.

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.

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 :