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2008 DIGILAW 1194 (PAT)

Madhav Kumar Mishra v. State Of Bihar

2008-08-20

RAMESH KUMAR DATTA

body2008
Judgment 1. Heard Mr. Pushkar Narain Shahi learned counsel for the petitioner and learned Government Advocate No. 8, for the State. No one appears for respondent nos. 5 and 6 although notices were duly served upon them. 2. The petitioner has, in this writ petition, sought quashing of the notification dated 23.3.2004 (Annexure-2) issued by the State Government in exercise of powers under Section 6 of the Bengal Ferries Act, 1885 to the extent that it relates to declaration of Manihari Storage and Transshipment Ghat to Khuntagarai Ghat, to be a Public Ferry and the consequential settlement of the said Ferry made by the Collector, Katihar and for further consequential reliefs. 3. The petitioner is a settlee of Manihari Storage and Transshipment Ghat Ferry notified as a public ferry which operates on the river the Ganges between Sahebganj on the southern side (now within the State of Jharkhand) and Manihari Ghat on the northern side, which is in Katihar district of the State of Bihar. The said Public Ferry was notified by the State Government by notification being S.O. No. 315 dated 27.2.1979 before the reorganization of the State of Bihar and the petitioner has been a settlee of the same from time to time for a long period of time except for the years 2006 to 2008, during which period the settlement has been taken in the name of his partner, Maheshanand Jha. Thereafter, for the period 2008 to 2010 it has again been settled with the petitioner. On 23.3.2004, the Government of Bihar came out with a notification (Annexure-2) under Sections 6(a), (e), (f) of the Bengal Ferries Act in which notification several public ferries were notified, one of which was Manihari Storage and Transshipment Ghat to Khuntagarai Ghat. 4. The grievance of the petitioner is that the points between which the said ferry has been established is not clearly specified in the notification dated 23.3.2004. In actual practice however, the said Ghat has been settled with a private party taking it to be the points where the Kachcha road maintained by the petitioner on the northern bank of the river Ganges to the point where it meets the State highway. 5. In actual practice however, the said Ghat has been settled with a private party taking it to be the points where the Kachcha road maintained by the petitioner on the northern bank of the river Ganges to the point where it meets the State highway. 5. It is the contention of learned counsel for the petitioner that the entire stretch of this newly declared public ferry is on the northern bank of the river Ganges and there is no intervening river in between. For the said reason it is submitted that it could not have been declared a public ferry under the provisions of the Bengal Ferries Act and the action of the State Government is wholly misconceived both in fact and in law. The said action of the State Government also adversely affects the petitioners business since tolls are being collected by the vehicles either before they reach the public ferry settled with the petitioner or after they leave the said ferry which reach the State highway and without any justification for the same under the provisions of the Bengal Ferries Act. 6. It is the contention of learned counsel for the petitioner that in order to constitute a ferry the same must be a connection of two points on both sides of the river in order to convey the property or public from one side of the river to the other. In support of the said stand learned counsel relies upon a decision of this Court in the case of Jeobaran Singh and Others V/s. Ramkishun Lal, AIR 1925 Pat 623, wherein after taking into account the definition of ferry given in the Bengal Ferries Act as being only an inclusive one but not actually defining a ferry, a learned single Judge of this Court has referred to the provisions and the accepted legal signification as found in various law dictionaries and after considering the same came to the following conclusion: "In order to constitute a ferry such as is contemplated by the Act in this country it is necessary that there should be two points on both sides of the river so that people and property may be conveyed from one side of the river across the other. It must be connected on both sides with land on the bank of the river. It must be connected on both sides with land on the bank of the river. In order to give full significance to this meaning of the term the Act has included in it "any other appliance by which the water is connected with the land". This purpose may be served by a bridge of boats, pontoons or rafts, etc. In this sense the public ferry is created and leased on behalf of the authorities....." 7. Learned Government Advocate No. 8, on the other hand, supports the stand of the State-Respondents on the basis of the counter affidavit filed on their behalf. In the said counter affidavit it is not denied that the entire stretch of the newly declared public ferry namely, Manihari Storage and Transshipment Ghat to Khuntagarai Ghat is located on the northern bank of the river Ganges alone. However, it is stated that the Kachcha road in question is maintained by the petitioner only for the dry season and the river can reach up to firm bank by bank erosion. In rainy season the river water reaches upto the firm bank where barrier is erected by respondent nos. 5 and 6 to whom the settlement of the newly declared ferry has been made and after the said barrier a district board pucca link road joins the State highway which is maintained by the district authorities and for compensation of the cost in maintenance of pucca link road a toll called butty is collected by the District authorities through settlement. The further contention of the learned counsel for the State is that the path over land in river bed or its catchment areas to connect the firm bank or State Pucca road to water in river is also covered by the term public ferry and accordingly the same has been rightly declared. It is also urged by him that not only the waterway in river is public ferry but the public ferry includes the jetty, plate from approach road and link road for the purpose of that ferry only to reach up to the safe place on the State highway. 8. On a consideration of the aforesaid contention of the parties, this Court does not find any force in the submission of learned counsel for the State. 8. On a consideration of the aforesaid contention of the parties, this Court does not find any force in the submission of learned counsel for the State. It is evident from what has been laid down by this Court in Jeobaran Singhs case (supra) that in order to constitute a ferry in this country there should be two points on both sides of the river for conveying the people and property from one side of the river across the other and the said area must be connected on both sides by the bank of the river. That being the legal position, it would be a misnomer to call the Manihari Storage and Transshipment Ghat to Khuntagarai Ghat as a public ferry and the declaration of the same as a public ferry is beyond the powers of the respondent-authorities under Section 6 of the Bengal Ferries Act, 1885 . Hence, the consequential settlement of the said Ghat is also illegal. 9. In view of what has been discussed above, the writ petition is allowed and the notification dated 23.3.2004 (Annexure-2), in so far as it relates to Manihari Storage and Transshipment Ghat to Khuntagarai Ghat is quashed and further the settlement of the said Ghat with respondent nos. 5 and 6 are also consequently set aside.