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2008 DIGILAW 520 (GAU)

Ashadali Mandal v. State of Assam

2008-07-22

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. I have heard Mr. M.U. Mondol, Learned Counsel for the petitioner in WP(C) No. 2706/2008 and 3035/2008 arid private respondent in WP(C) No. 2976/2008, and Mr. A.K. Bhuyan, learned Standing Counsel, Inland Water Transport Department, Govt. of Assam. I have also heard Mr. H.R.A. Choudhury, Learned Senior Counsel, appearing for the petitioner in WP(C) No. 2976/2008, and private respondent in WP(C) No. 3035/2008, and Ms. H.N. Phookan, learned Govt. Advocate, appearing on behalf of the remaining respondents. 2. By this common judgment and order, I propose to dispose of all these three writ petitions inasmuch as all these writ petitions are inextricably connected with each other and the decision, in any of these writ petitions, would have a bearing on the outcome of the other writ petitions. All these writ petitions have, therefore, been, on the request made by the Learned Counsel for the parties concerned, heard together. WP(C) No. 2706/2008 3. The case of the petitioner, namely, Ashad Ali Mondal, in this writ petition, is as under: Inland Water Transport Department, Government of Assam, ('the IWT') has vide order dated 15.5.2008 settled Oudubi Kheluapara Commercial Cargo-cum-Passenger Ferry Service, in favour of the petitioner, for a period of one year with effect from 1.7.2008 to 3.6.2009. The petitioner deposited the lease money on 17.5.2008 and the operation of the said ferry service was handed over to the petitioner by the IWT on 18.5.2008. 4. Before, however, the ferry service, in question, could be settled by the IWT with the present petitioner, Baitamari Anchalik Panchayat published a notice, on 10.5.2008, inviting tenders for settlement of, amongst others, Oudubi Kheluapara ferry, claiming that the said panchayat has no authority to make settlement of the said ferry. The petitioner, with the help of a writ application, made under Article 226 of the Constitution of India, has sought for issuance of a writ of certiorari setting aside and quashing the impugned NIT, dated 10.5.2008. WP(C) 2976 of 2008 5. The case of this writ petitioner, namely, Abdus Subor, runs as under: Oudubi Kheluapara Ghat (i.e., ferry) is one of the six ferries run and maintained by Baitamari Anchalik Panchayat. Pursuant to the notice, dated 10.5.2008, issued by the said Panchayat, the petitioner and others submitted their tenders. WP(C) 2976 of 2008 5. The case of this writ petitioner, namely, Abdus Subor, runs as under: Oudubi Kheluapara Ghat (i.e., ferry) is one of the six ferries run and maintained by Baitamari Anchalik Panchayat. Pursuant to the notice, dated 10.5.2008, issued by the said Panchayat, the petitioner and others submitted their tenders. The petitioner's bid being the highest, the said ferry was settled by the said Panchayat with the petitioner and the petitioner accordingly deposited the requisite lease money and started running operation of the said ferry with effect from 1.7.2008. On the same day, i.e., 1.7.2008, respondent No. 6 namely, Ashad Ali Mondal, (i.e., the petitioner in WP(C) No. 2706/2008 aforementioned) started operating the said ferry on the strength of a settlement order, dated 17.5.2008, issued by the Director, IWT. 6. As the ferry service, in question, is not a Govt. ferry the same falls within the exclusive jurisdiction, of the Baitamari Anchalik Panchayat and, hence, the IWT has no authority to settle the said ferry by changing its name. The petitioner has accordingly sought for quashing of the settlement made in favour of the respondent No. 6, namely, Ashad Ali Mondal [i.e., the petitioner in WP(C) No. 2706/20081. WP(C) 3035 of 2008 7. The case of this writ petitioner, namely, Ashab Ali Mondal is as follows: Inland Water Transport Department, Government of Assam, (in short, the IWT) has, vide order, dated 15.5.2008, settled Oudubi Kheluapara Commercial Cargo-cum-Passenger ferry service with the petitioner, for a period of one year, with effect from 1.7.2008 to 30.6.2009. The petitioner deposited the lease money on 17.5.2008 and the operation of the said ferry service was handed over to the petitioner by the IWT on 18.5.2008. Before, however, the settlement was so granted in favour of the petitioner, by the IWT by its order, dated 10.5.2008, aforementioned, Baitamari Anchalik Panchayat issued a notice inviting tenders for settlement of, amongst others, Oudubi Kheluapara Parghat (i.e., ferry). By filing a writ petition, which gave rise to WP(C) 2706/2008, this petitioner had challenged the power of the said Anchalik Panchayat to issue NIT for settlement of the said ferry service. By an order, dated 27.6.2008, passed in the said writ petition, the High Court suspended the operation of the NIT, dated 10.5.2008, aforementioned, issued by the said Panchayat, so far as the ferry service, in question is concerned. 8. By an order, dated 27.6.2008, passed in the said writ petition, the High Court suspended the operation of the NIT, dated 10.5.2008, aforementioned, issued by the said Panchayat, so far as the ferry service, in question is concerned. 8. This petitioner's allegation is that it is after passing of the said interim order, dated 27.6.2008, by the High Court that the respondent Panchayat, settled the said ferry ghat, on 4.7.2008, in favour of the private respondent, (i.e., respondent No. 9), namely, Abdus Subor, (i.e., the writ petitioner in WP(C) No. 2976/2008 aforementioned) showing that the settlement had been made, in favour of the respondent No. 9, as far back as on 25.6.2008. The present petitioner claims that since the settlement has been granted by the said Panchayat in favour of the private respondent after the interim order was passed by the High Court in WP(C) No. 2706/2008 (though shown to have been granted before the said interim order) the settlement so made, in favour of the private respondent, namely, Abdul Subor, is illegal, without authority of law and be set aside and quashed. 9. The distinction existing between a 'public ferry' and 'private ferry' and also the distinction between 'public ferry', on the hand, and Government ferry, on the other, have been clearly described in Bidhan Mudoi v. State of Assam and Ors. (2008) 2 GLR 592. The power of the IWT, Govt. of Assam, to settle a ferry service has also been dealt with in Bidhan Mudoi (supra). 10. Having considered the statement of object and reasons of the Northern India Ferries Act, 1878, ('the Ferries Act') and particularly, keeping in view Section 4 thereof, this Court concluded, in Bidhan Mudoi (supra), at para 14 as under: 14. A bare reading of Section 4 makes it clear that the state Government may, by a notification published in the official gazette, declare as to what ferries shall be deemed to be public ferries. Section 4 also empowers the state Government to take, by way of such notification, possession of private ferry and declare the same to be public ferry. Section 4 further empowers the state Government to establish new public ferries and/or define the limits of public ferry, change the course of public ferry and discontinue a public ferry. Section 4 also empowers the state Government to take, by way of such notification, possession of private ferry and declare the same to be public ferry. Section 4 further empowers the state Government to establish new public ferries and/or define the limits of public ferry, change the course of public ferry and discontinue a public ferry. It also clearly follows from the scheme of Section 4 that unless a notification is issued in terms of Section 4, a ferry cannot be regarded as a public ferry within the meaning of the Ferries Act. 11. Having, thus, held that under the scheme of the Ferries Act, a ferry cannot be regarded as a 'public ferry' unless a notification stands issued in terms of Section 4 of the Ferries Act, this Court, upon analyzing not only the provisions of Section 4, but also some other relevant provisions of the Ferries Act, held in Bidhan Mudoi (supra), at para 22, thus: 22. A conjoint reading of Sections 4, 6, 7, 7A, 8, 12 and 13 make it abundantly clear that the state Government can exercise power of control and management only in respect of such a ferry, which, by way of notification, as contemplated in Section 4, has been notified as public ferry. The state Government has the power to either declare a ferry, which has already been in existence, as a public ferry, or it may take over a private ferry and declare the same to be a public ferry. The state Government can create a public ferry, where no ferry exists, it can change the course of a ferry, which it has declared or created as public ferry, or it may oven discontinue, which it might have created or declared, as a public ferry. The state Government can create a public ferry, where no ferry exists, it can change the course of a ferry, which it has declared or created as public ferry, or it may oven discontinue, which it might have created or declared, as a public ferry. Every ferry, which the state Government has declared as a public lorry under Section 4, stands vested in the state Government though the management and superintendence of such a ferry can be vested by the state Government in a municipality or any public body including local bodies, such as, Panchayat, and when the management and superintendence of such a public ferry is vested in any municipality or public body, such a public body would become entitled to settle, for collection of tolls, such a public ferry by public auction with the approval of the commissioner and otherwise than by public auction with the previous sanction of the state Government. 12. This Court further made it clear, in Bidhan Mudoi (supra) at para 24, thus: 24. Necessarily, therefore, unless and until a public ferry, as contemplated in Section 4, is vested in terms of the provisions of Sections 7 and 7A no local-self-Government, such as a Panchayat, will have, under the Ferries Act, the power to operate a ferry, which the state Government has declared or created as a public ferry. Any ferry, which is not a public ferry within the meaning of Section 12, would be a private ferry. Section 13 puts an embargo on the private ferries from being run and operated within the distance of three miles of a public ferry. This distance of three miles may, however, be reduced, in a given case, by the state Government in exercise of its powers under section. 13. Unless, therefore, a ferry has been declared or created as a public ferry within the meaning of Section 4, there is really no legal impediment, under the Ferries Act, on any person establishing maintaining or running a primate ferry in any part of any river within the State of Assam. It further logically follows that the State Government cannot restrain or control operation of private ferries except as provided in the Ferries Act, and/or the rules framed thereunder. 13. Having pointed out the position of law as indicated above, this Court determined the parameters of the power of the IWT, Govt. It further logically follows that the State Government cannot restrain or control operation of private ferries except as provided in the Ferries Act, and/or the rules framed thereunder. 13. Having pointed out the position of law as indicated above, this Court determined the parameters of the power of the IWT, Govt. of Assam, in the following words, at para 28: 28. what, logically follows from the above discussion is that the power of the Department of Inland Water Transport, Government of Assam, to grant settlement of ferries would remain limited to only such a ferry, which has been declared or created as a public ferry under Section 4 of the Ferries Act and has been placed in the Appendix A' to the Ferries Rules, 1968. The Appendix A, originally, included as many as 11 major ferries en the river Brahmaputra. In course of time, some other ferries have been included in this list. 14. What emerges from the discussion, held, as a whole, is this : Unless the Government of Assam declares or creates a public ferry under Section 4 of the Ferries Act and the declaration, so made, is included in Appendix-A to the Ferries Rules, 1968, Department of Inland Water Transport, Govt. of Assam, shall have no jurisdiction or authority to grant settlement of such ferries. In other words, the power of the IWT to grant settlement of ferries would remain limited to only such a ferry, which has been declared or created as a 'public ferry' under Section 4 of the Ferries Act and has been included in Appendix-A to the Ferries Rules, 1968. When, however, jurisdiction or authority of the IWT to make settlement is questioned, the court is bound to ascertain if the ferry, in respect whereof settlement has been made by the IWT, Government of Assam, is or is not a ferry declared or created as a 'public ferry' by the state Government by virtue of the powers vested in it under Section 4 of the Ferries Act. Unless, therefore, there is a ferry declared or created as a 'public ferry' within the meaning of Section 4 of the Ferries Act, there is really no legal impediment, under the Ferries Act, on the part of any person, establishing, maintaining or running a private ferry in any part of any river within the State of Assam. 15. Unless, therefore, there is a ferry declared or created as a 'public ferry' within the meaning of Section 4 of the Ferries Act, there is really no legal impediment, under the Ferries Act, on the part of any person, establishing, maintaining or running a private ferry in any part of any river within the State of Assam. 15. The femes, which form the subject-matter of controversy, in the present three writ petitions, do not, admittedly, find mentioned in Appendix-'A'. As the Inland Water Transpire Department, Government of Assam, has no authority or jurisdiction to make settlement in respect of any ferry, which does not come within the list of the ferries mentioned in Appendix A, there can be no escape from the conclusion that the said Department could not have granted settlement in respect of the ferries aforementioned, in favour of Ashad Ali Mondal, who is the petitioner in two of the writ petitions, namely, WHO Nos. 2706/2008 and 3035/2008. 16. In view of the conclusion reached above that in all the three writ petitions, both the ferries, in question, are not 'public ferries' within the meaning of. Section 4 of the Ferries Act and that the state Government has no authority or jurisdiction to make settlement in respect of any of these ferries, the lease/settlement, granted by the Director, Inland Water Transport Department, Govt. of Assam, in favour of the writ petitioner, namely, Ashad Ali Mondal, in WP(C) Nos. 2706/2008 and 3035/2008, has no legs to stand and must necessarily be set aside. 17. Having thus, pointed out that the department of IWT had no power to make settlement of the ferry, in question, in favour of the petitioner, namely, Ashad Ali Mondal, in WP(C) Nos. 2706/2008 and 3035/2008, let me, now, turn to the question as to whether Baitamari Ancalik Panchayat had the power to make settlement in favour of the petitioner of WP(C) No. 2976/2008, namely, Abdus Subor, who is private respondent in the remaining tow writ petitions, namely, WP(O) Nos. 2706/2008 and 3035/2008. 18. 2706/2008 and 3035/2008, let me, now, turn to the question as to whether Baitamari Ancalik Panchayat had the power to make settlement in favour of the petitioner of WP(C) No. 2976/2008, namely, Abdus Subor, who is private respondent in the remaining tow writ petitions, namely, WP(O) Nos. 2706/2008 and 3035/2008. 18. While considering the above aspect of the case, it is important to note that in Jayant Bora v. State of Assam 2006 (3) GLT 844, the High Court has held that in the light of the provisions of Section 106 of the Assam Panchayat Act, 1994, a 'public ferry' need not necessarily be vested in an Anchalik Panchayat; rather, an Anchalik Panchayat, by virtue of the provisions of Section 106 of the Assam Panchayat Act, 1994, has the exclusive authority to settle, in accordance with the rules framed for the purpose, a 'public ferry' which is not a 'Government ferry', but located within the territorial jurisdiction of the Anchalik Panchayat concerned. 19. What is, now, of utmost importance to note is that under Section 106 of the Assam Panchayat Act, a 'public ferry' other than a 'Government ferry' stands vested in an Anchalik Panchayat within whose local jurisdiction such a ferry falls. This, in turn; shows that no Anchalik Panchayat has the authority or jurisdiction to settle such a 'public ferry', which may have been acquired or established as a 'public ferry', under Section 4 of the Ferries Act, 1878, but one of whose ends meet a Government road, Government land or embankment. If, however, none of the ends of a 'public ferry', established under Section 4 of the Ferries Act, 1978, meets a Government road, Government land or embankment, such a 'public ferry', would stand vested in the Anchalik Panchayat within whose territorial jurisdiction such a public ferry falls, for, such a 'public ferry', would not fall within the ambit of the definition of the 'Government ferry'. 20. Coupled with the above, it is also worth noticing that having considered the case of Jayant Bora (supra), this Court, in Bidhan Mudoi (supra), held: 39. The question, now, is as to whether there is any conflict between the Ferries Act, 1878, and the Assam Panchayat Act, 1994. That the Assam Panchayat Act, 1994, is a valid piece of legislation is not in dispute. The question, now, is as to whether there is any conflict between the Ferries Act, 1878, and the Assam Panchayat Act, 1994. That the Assam Panchayat Act, 1994, is a valid piece of legislation is not in dispute. That the State Legislature was, by virtue of its powers under Entry 13 of the State List, competent to make legislation with regard to the ferries established by it under Section 4 of the Ferries Act, 1878, is not also in dispute. Obviously, therefore, it is in exercise of this legislative authority that the State Government has made provisions, in the Assam Panchayat Act, 1994, as regards automatic vesting of public ferries, other than the Government ferries, in the Anchalik Panchayats. In short, a ferry, other than Government ferry, which the state Government creates under Section 4 of the Ferries Act, gets, automatically, vested in the Anchalik Panchayat in the light of the provisions of the Assam Panchayat Act. So far as the Government ferries are concerned, these ferries would still remain vested in the State Government and the settlement of such ferries can be given by the State Government in terms of the Ferries Rules, 1968, and by none else. I do not find that the conclusions, so reached by me, are, in any way, different from what Jayanta Bora's Case (supra) lays down. Hence, the question as to whether the decision, rendered in Jayanta Bora's case (supra), to the effect that the Ferries Act shall be treated to be impliedly repealed to a limited extent, by virtue of the placation of the Assam Panchayat Act, 1994, is really a question, which is not necessary to be considered for disposal of the present two writ petitions. It would, therefore, be an academic exercise, on the part of this Court, of it endeavors to determine as to whether or not the conclusion, reached in Jayanta Bora's case (supra) that the Ferries Act stands repealed, as indicated hereinabove, is correct or not. Such an academic exercise is neither permissible nor desirable in law. It is trite that any question, which is not imperative for decision in a writ application and which would be purely academic in nature, the court should not embark upon the discussion of such academic issues. Such an academic exercise is neither permissible nor desirable in law. It is trite that any question, which is not imperative for decision in a writ application and which would be purely academic in nature, the court should not embark upon the discussion of such academic issues. In other words, if any particular aspect raised in a writ petition is not necessary to be ascertained for the purpose of disposal of the writ petition, the court should not indulge into the exercise of deciding such an issue. I am guided to adopt this view from the law laid down in State of Bihar v. Rai Bahadur Hurdut Roy Moti Lal Jute Mills AIR 1960 SC 378 , wherein it has been held as follows: In cases where the vires of statutory provisions are challenged on constitutional grounds, it is essential that the material facts should first be clarified and ascertained with a view to determine whether the impugned statutory provisions are attracted; if they are, the constitutional challenge to their validity must be examined and decided. If, however, the facts admitted or proved do not attract the impugned provisions, there is no occasion to decide the issue about the vires of the said provisions. Any decision on the said question would in such a case be purely academic. Courts are and should be reluctant to decide constitutional points merely as matters of academic importance. 21. What, thus, emerges from the discussions, held as a whole, is that a public ferry, other than a Government ferry, created under Section 4 of the Ferries Act, stands vested in an Anchalik Panchayat within whose territorial jurisdiction such a ferry falls and the Anchalik Panchayat has the freedom to settle, in terms of Section 106 of the Assam Panchayat Act, 1994, such a public ferry by inviting tenders. This apart, every Anchalik Panchayat or, for that matter, every individual is free to set up its own ferry, for, no legislation exists stopping an Anchalik Panchayat or any other individual from setting up a ferry, which does not come within the specified distances of a public ferry notified under Section 4 of the Ferries Act: 22. This apart, every Anchalik Panchayat or, for that matter, every individual is free to set up its own ferry, for, no legislation exists stopping an Anchalik Panchayat or any other individual from setting up a ferry, which does not come within the specified distances of a public ferry notified under Section 4 of the Ferries Act: 22. In the backdrop of what has been discussed above, when I revert to the case at hand, what attracts the eyes, most prominently, is that the ferry, in question, in WP(C) No. 2976/2008, is not a ferry created under Section 4 of the Ferries Act, and hence, the State Government or the IWT Department can have no say in the operation, control and management of the said ferry. In short, thus, the ferry, in question, is not a ferry covered by Section 4 of the Ferries Act; rather, it is a 'public ferry', as conceived in Section 106 of the Assam Panchayat Act, 1994. In such circumstances, the Panchayat, whereunder Oudubi Khluapara Ferry Calls, is entitled to settle the ferry. If, in the process of making such settlement, the said Panchayat commits any infraction of the provisions of law, the same may make settlement of the ferry, in question, made by them, open to challenge in a court of law. 23. In view of the fact that this Court has found that the ferry, in question, falls within the jurisdiction of Baitamari Anchalik Panchayat, the power to make settlement by the said Panchayat in favour of Abdus Subor, who is petitioner in WHO No. 2976/2008, cannot be doubted and hence, the settlement, granted by the said Panchayat, in favour of this petitioner cannot be interfered with. If, however, in the process of making settlement in favour of Abdus Subor, the said Panchayat has committed any other contravention of law, the decision, rendered in this writ petition, shall have no bearing and shall not debar any other proceeding, which may be, otherwise, maintainable in law. 24. As Car as the remaining two writ petitions, namely, WP(C) Nos. 2706/2008 and 3035/2008, are concerned, these two writ petitions must fail on account of the fact that the Department of IWT has no authority to settle the ferry, in question. Hence, the settlement, make in favour of the petitioner, Ashad Ali, cannot be maintained. His writ petitions, therefore, fail and the same shall accordingly stand dismissed. 25. 2706/2008 and 3035/2008, are concerned, these two writ petitions must fail on account of the fact that the Department of IWT has no authority to settle the ferry, in question. Hence, the settlement, make in favour of the petitioner, Ashad Ali, cannot be maintained. His writ petitions, therefore, fail and the same shall accordingly stand dismissed. 25. In the result, and for the foregoing reasons, the settlement, make in favour of the petitioner in WHO Nos. 2706/2008 and 3035/2008, is hereby sot aside and the settlement made by the said Panchayat in favour of Abdus Subor is upheld. Upholding of this settlement shall not, however, debar anyone from challenging the settlement made by the said Panchayat in favour of Abdus Subor on any ground, other than the ground of jurisdiction, of the said Panchayat to settle the said ferry. 26. With the above observations and directions, these writ petitions shall stand disposed of. 27. No order as to costs. Petition disposed of.