WP(C) 3606/2014

WP(C) 3606/2014 with WP(C) 3710/2014 With WP(C) 3796/2014 with WP(C) 4321/2014

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

WP (C) No. 3606/2014 Shri AnjanTaye,

Son of Shri RatneswarTaye, Village – Lepai Somuni, P.O. Desangmukh, P.S. Sivasagar, District – Sivasagar, Assam.

- Petitioner -Versus -

1. The State of Assam, Represented by the Commissioner, Panchayat and Rural Development Department, Assam, Panjabari, Juripar, Guwahati – 781 037.

2. The Secretary to the Government of Assam, Panchayat and Rural Development Department, Dispur, Guwahati – 781 006.

3. The Deputy Secretary, Panchayat and Rural Development Department, Dispur, Guwahati – 781 006.

4. The Deputy Commissioner, Sivasagar District, Sivasagar, Assam.

5. The Chief Executive Officer, Zilla Parishad, Sivasagar, District – Sivasagar, Assam.

6. The Executive Officer & Ex-Officio Secretary, Sivasagar Anchalik Panchayat, Sivasagar Block Development, Sivasagar, Assam.

7. The President, Anchalik Panchayat, Sivasagar, District – Sivasagar, Assam.

8. The Missing Autonomous Council, Office of the Principal Secretary, Mising Autonomous Council, Gogamukh, Dhemaji, District – Dhemaji, Assam.


9. The Principal Secretary, Mising Autonomous Council, Gogamukh, Dhemaji, District – Dhemaji, Assam.

10. Sri Dip Kr. Doley, Son of Late Lakhi Doley, Village and P.O. – Bokulguri, P.S. Dhakuakhana, District – Lakhimpur, Assam. - Respondents

Advocates: For the Petitioner : Ms. N. S. Thakuria, Advocate, Mr. G. K. Thakuria, Advocate, For the Respondents : Mr. U. Rajbongshi, Addl. Advocate General,

Mr. B. J. Talukdar, Government Advocate, Ms. B. Bhuyan,

Standing counsel, IWT Department, Mr. H. Rahman, Advocate, Mr. S. Borthakur, Standing counsel, Mising Autonomous Council,

W.P.(C). No. 3710/2014

Shri Ratneswar Taye, Son of Late Akhay Taye, Resident of Lepai Chumoni, Desangmukh, District – Sivasagar, Assam.

- Petitioner - Versus -

1. The State of Assam, Represented by the Principal Secretary to the

Government of Assam, Transport Department, Assam Secretariat,

Dispur, Guwahati – 781 006. 2. The Director,

Inland Water Transport, Assam, Guwahati. 3. Executive Engineer, Inland Water Transport Division, Dibrugarh, Assam.

4. Junior Engineer, Inland Water Transport Division,


Desangmukh-Matmara Ferry Service. 5. The Mising Autonomous Council,

Represented by its Principal Secretary, Gogamukh, Dhemaji, Assam.

6. The Principal Secretary, Mising Autonomous Council, Gogamukh, Dhemaji,

Assam. 7. Shri Dip Kumar Doley,

Son of Late LakhiDoley, Village & P.O. – Bokulguri, P.S. Dhakuakhana, District – Lakhimpur, Assam.

- Respondents Advocates:

For the Petitioner : Mr. G. N. Sahewalla, Senior counsel, Md. Aslam, Advocate, Mr. D. Senapati, Advocate,

For the Respondents : Mr. U. Rajbongshi, Addl. Advocate General, Mr. B. J. Talukdar, Government Advocate,

Ms. B. Bhuyan, Standing counsel, IWT Department,

Mr. H. Rahman, Advocate, Mr. S. Borthakur, Standing counsel, Mising Autonomous Council,

W.P.(C). No. 3796/2014

Sri Deep Kumar Doley, Son of Late Lakhi Doley, Village and P.O. – Bokulguri, P.S. – Dhakuakhana, District – Lakhimpur, Assam.


1. The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development Department, Dispur, Guwahati – 781006.

2. The Director, Panchayat and Rural Development Department,


Panzabari, Juripar, Guwahati – 781 037.

3. The Deputy Commissioner, Sivasagar, District – Sivasagar, Assam.

4. The Chief Executive Officer, Sivasagar Zilla Parishad, District – Sivasagar, Assam.

5. The President, Sivasagar Zilla Parishad, District – Sivasagar, Assam.

6. The President, Sivasagar Anchalik Panchayat, Sivasagar, District – Sivasagar, Assam.

7. The Director, WPT & BC Department, Dispur, Guwahati – 781 006.

8. The Principal Secretary, Mising Autonomous Council, Gogamukh, Dhemaji, District – Dhamaji, Assam.

9. The Chairman, Mising Autonomous Counsel, Gogamukh, District – Dhemaji, Assam.

10. The Chief Executive Councilor, Mising Autonomous Council, Gogamukh, District – Dhemaji, Assam.

11. Sri Anjan Taye, Son of Sri Ratneswar Taye, Village – Lepai Somuni, P.O. – Disangmukh, P.S. Sivasagar, District – Sivasagar, Assam. - Respondent

\

Advocates:

For the Petitioner : Mr. P. P. Baruah, Advocate, Mr. R. Sarma, Advocate, Mr. M. K. Dutta, Advocate,


For the Respondents : Mr. U. Rajbongshi, Addl. Advocate General,

Mr. B. J. Talukdar, Government Advocate, Ms. B. Bhuyan,

Standing counsel, IWT Department, Mr. H. Rahman, Advocate, Mr. S. Borthakur, Standing counsel, Mising Autonomous Council,

W.P.(C). No. 4321/2014

Shri RatneswarTaye, Son of Late AkhayTaye, Lepai Chumoni, Desangmukh, District – Sivasagar, Assam.


1. The State of Assam, Represented by the Principal Secretary to the

Government of Assam, Transport Department, Assam Secretariat,

Dispur, Guwahati – 781 006. 2. The Director,

Inland Water Transport, Assam, Guwahati.

3. Executive Engineer, Inland Water Transport Division, Dibrugarh, Assam.

4. Junior Engineer, Inland Water Transport Division, Desangmukh Matmara Ferry Service.

5. The Chief Executive Officer, Zilla Parishad, Sivasagar, District – Sivasagar, Assam.

6. The Executive Officer and Ex-Officio Secretary, Sivasagar Anchalik Panchayat, Sivasagar Block Development, District – Sivasagar, Assam.

7. The President, Anchalik Panchayat, Sivasagar, District – Sivasagar, Assam.

8. Shri AnjanTaye, Son of Late Shri RatneswarTaye,


Village – Lepai Somuni, P.O. – Dishangmukh, P.S. – Sivasagar,

District – Sivasagar, Assam. - Respondents

Advocates:

For the Petitioner : Mr. G. N. Sahewalla, Senior counsel, Md. Aslam, Advocate, Mr. D. Senapati, Advocate,

For the Respondents : Mr. U. Rajbongshi, Addl. Advocate General, Mr. B. J. Talukdar, Government Advocate,

Ms. B. Bhuyan, Standing counsel, IWT Department,

Mr. H. Rahman, Advocate,

BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI

Dates of hearing : 22.1.2015, 29.01.2015 and 12.2.2015. Date of judgment : 30.03.2015

JUDGMENT AND ORDER

As the subject matter of WP(C) No. 3606/2014, WP(C) No. 3710/2014,

WP(C) No. 3796/2014 and WP(C) No. 4321/2014 is interconnected, these four

writ petitions had been bunched together and, as agreed to by the learned

counsel for the parties, have been taken up for disposal at the admission

stage.

2. I have heard Mr. G.N. Sahewalla, learned senior counsel appearing for

the petitioner in WP(C) No. 3710/2014 and WP(C) No. 4321/2014; Ms N.S.

Thakuria, learned counsel appearing for the petitioner in WP(C) No.

3606/2014 and Mr. P.P. Barua, learned counsel appearing for the petitioner in

WP(C) 3796/2014. I have also heard Mr. B.J. Talukdar, learned State counsel,


Mr. U. Rajbongshi, learned Additional Advocate General, Assam and standing

counsel, Transport Department, Ms B Bhuyan, learned standing counsel,

Indian Water Transport Department, for short, IWT, Mr. S. Barthakur, learned

standing counsel, Mising Autonomous Council, for short, MAC, and Mr. H

Rahman, learned counsel appearing for the Sivasagar Anchalik Panchayat.

3. At the outset, it will be appropriate to have a brief glimpse of the facts

involved in each of the writ petitions and therefore, an exercise is undertaken

to unfold the facts of the aforesaid writ petitions beginning with WP(C) No.

3606/2014, which is the first in point of time of the four writ petitions.

4. WP(C) No. 3606/2014

(i) The case projected by the petitioner, namely Anjan Taye, in WP(C)

No. 3606/2014 is that on 20.5.2014, the Executive Officer and Ex-Officio

Secretary as well as the President of the Sivasagar Anchalik Panchayat

published a Notice Inviting Tender (for short, NIT) for settlement of “hats,

ghats and beels” in its jurisdiction including Disangmukh Tekeliphuta

Ferryghat for the period from 1.7.2014 to 30.6.2015.

(ii) The petitioner submitted the tender for the Disangmukh Tekeliphuta

Ferryghat. Many other tenderers also submitted tenders and the tenders were

opened on 10.6.2014. Finding that bid amounts were too high, the Sivasagar


Anchalik Panchayat sent a letter to the Chief Secretary to the Government of

Assam with the papers relating the ferry in question to settle the Disangmukh

Tekeliphuta Ferryghat. In the meantime, the previous lessee was allowed to

run the Disangmukh Tekeliphuta Ferryghat temporarily till the new settlement

is made by the Government, by an order dated 2.7.2014.

(iii) On the strength of the aforesaid order dated 2.7.2014, when

Ratneswar Taye, the previous lessee, went to Disangmukh Tekeliphuta

Ferryghat to collect toll, he found the respondent No. 10, Sri Deep Kumar

Doley (Deep Kumar Doley is the writ petitioner in WP(C) No. 3796/2014)

demanding tolls on the strength of an order dated 27.6.2014 issued by the

MAC settling the Disangmukh Tekeliphuta Ferryghat in his favour. There was

altercation in running of the Disangmukh Tekeliphuta Ferryghat in which

Ratneswar Taye was assaulted. With the intervention of the police the

situation was controlled. But on the next day also, similar incident took place.

On 10.7.2014, the Deputy Secretary to the Government of Assam, Panchayat

and Rural Development Department wrote a letter to the Chief Executive

Officer directing him to settle the Disangmukh Tekeliphuta Ferryghat in

accordance with the provision of Assam Panchayat Act, 1994, for short, the

1994 Act, and the Rules framed thereunder. Subsequent to the issuance of

the said letter dated 10.7.2014, Disangmukh Tekeliphuta Ferryghat was


settled with the petitioner, he being the highest tenderer, at his bid value of

Rs. 4,54,700/-. In terms of the order of settlement dated 18.7.2014, the

petitioner deposited an amount of Rs. 2,56,410/- on 19.7.2014 and went to

operate the Disangmukh Tekeliphuta Ferryghat. However, he was prevented

from operating by Deep Kumar Doley.

(iv) By filing the writ petition, the writ petitioner has essentially prayed

for quashing of the order dated 27.6.2014 settling the Disangmukh

Tekeliphuta Ferryghat by MAC in favour of respondent No. 10.

5. As the settlement made in favour of Deep Kumar Doley is the subject

matter of challenge in WP(C) No. 3606/2014, it will be appropriate to now

consider the writ petition filed by Deep Kumar Doley, which is registered as

WP(C) No. 3796/2014.

6. WP(C) No. 3796/2014

The projected case in WP(C) No. 3796/2014, shorn of details, is that

the petitioner was granted settlement by an order dated 27.6.2014 in respect

of the Disangmukh Tekeliphuta Ferryghat pursuant to an NIT floated by MAC

on 16.6.2014 at his tender value of Rs. 2,50,000/-. In this writ petition, the

petitioner prays for quashing of the order of settlement dated 18.7.2014

made in favour of Anjan Taye (writ petitioner in WP(C) No. 3606/2014) issued


by the Sivasagar Zilla Parishad on the ground that Sivasagar Zilla Parishad has

no jurisdiction to settle the Disangmukh Tekeliphuta Ferryghat as it is outside

the jurisdictional area of the Sivasagar Zilla Parisahd as also on the ground

that MAC has absolute jurisdiction and authority to settle the Disangmukh

Tekeliphuta Ferryghat in view of the provisions of Mising Autonomous Council

Act, 1995, for short, MAC Act, as amended.

7. It will now be the turn of the writ petitions filed by Ratneswar Taye and

it is only appropriate to begin with the first of the writ petitions filed by him.

8. WP(C) No. 3710/2014

(i) WP(C) No. 3710/2014 is filed by Ratneswar Taye challenging the

order dated 27.6.2014 issued by MAC in favour of Deep Kumar Doley, who is

arrayed as respondent No. 7 in this writ petition, albeit, on an entirely

different ground.

(ii) The petitioner states that pursuant to an NIT dated 25.3.2013

issued by the Executive Engineer, Inland Water Transport Division, for

settlement of Disangmukh-Matmora Ferry Service, which is a public

ferry,listed at serial No. 9 of Schedule-A of the Control and Management of

Ferries Rules, 1968, for short, the 1968 Rules, framed under Section 12 of the

Northern Indian Ferries Act, 1878, hereinafter referred to as the Ferries Act,


for the financial year 2013-2014 and 2014-2015, the petitioner submitted his

tender for the aforesaid Disangmukh-Matmora Ferry Service and he was

settled with the same for a period of two years with effect from 1.4.2013 to

31.3.2015 by an order dated 6.9.2013.

(iii) In terms of the settlement order dated 13.9.2013, the petitioner

made the requisite deposits and he was handed over the Disangmukh-

Matmora Ferry Service and he started operating the same. While there was

no difficulty in operating the same in the financial year 2013-2014, later on,

the petitioner found Deep Kumar Doley operating a ferry adjacent to the ghat

from where the petitioner had been operating the Disangmukh-Matmora Ferry

Service. Despite the petitioner bringing the aforesaid developments to the

notice of the IWT Department, no effective steps were taken. On further

enquiry, the petitioner had come to learn about the order of settlement of a

ferry by the name of Disangmukh-Tekeliphuta Parghat made in favour of

respondent No. 7, namely, Deep Kumar Doley, by MAC.

(iv) It is stated that the Principal Secretary, MAC issued a Notification

dated 2.6.2014 identifying 73 numbers of ferryghats and notifying them as

Revenue Resources of MAC. Although, Disangmukh-Tekeliphuta Parghat was

not included in the said Notification dated 2.6.2014, inexplicably,

Disangmukh-Tekeliphuta Parghat was settled with the respondent No. 7.


(v) By a letter dated 11.6.2014, the Executive Engineer, IWT had

requested the Principal Secretary, MAC to ensure that at the time of settling

ferries, Rule 35 of the 1968 Rules is not violated. It is stated that

Disangmukh-Tekeliphuta Parghat is within a distance of 3.2 K.M. from

Disangmukh-Matmora Ferry Service and running of the said Disangmukh-

Tekeliphuta Parghat has resulted in losses to the petitioner. It is also stated

that for last many decades Disangmukh-Matmora Ferry Service had been

operating from Tekeliphuta in view of the fact that in the north bank, the

original ferryghat, which was at Matmora, had to be closed down for

protection work carried out by the Water Resources Department to check

heavy erosion and the channel condition became unfit for navigation and

therefore, the IWT shifted the ferryghat from Matmora to Tekeliphuta.

(vi) In the affidavit-in-opposition, filed by the Principal Secretary, MAC,

it is stated that though Tekeliphuta ferryghat is in Lakhimpur district and

Desangmukh ferryghat is in Sivasagar district, both the ferryghats fall within

the jurisdiction of MAC. It was earlier settled by Sivasagar Anchalik Panchayat

though Desangmukh-Tekeliphuta Parghat is not a public ferry within the

meaning of the Ferries Act and that the public ferry in the name of

Desangmukh- Matmora Ferry Service is 5 K.M. away from Desangmukh-

Tekeliphuta Parghat. It is asserted in the said affidavit that MAC has authority


and jurisdiction to settle Desangmukh-Tekeliphuta Parghat and that

Tekeliphuta ferryghat is not within the limit of 3.2 K.M. from Desangmukh-

Matmora Ferry Service.

(vii) An additional Affidavit is filed by the Principal Secretary, MAC

indicating that by a Notification dated 6.6.2014, Tekeliphuta-Desangmukh

Parghat was declared as a Revenue Resource of the MAC. It is further clarified

that Tekeliphuta falls under No. 22 Kherkota-Dangdhara MAC constituency in

Dhakuakhana Sub-Division of Lakhimpur district and Desangmukh falls under

34 Desangmukh Demow Sub-Division in Sivasagar district.

9. WP(C) No. 4321/2014

(i) In WP(C) No. 4321/2014, Ratneswar Taye challenges the order of

settlement dated 18.7.2014 passed by the Sivasagar Zilla Parishad in favour

of Anjan Taye (writ petitioner in WP(C) No. 3606/2014), who is his son, with

a further prayer for a direction to restrain the Panchayat authorities as also

the settlement holder from operating the Tekeliphuta-Desangmukh Parghat

within a distance of 3.2. K.M. from the existing Desangmukh-Matmora Ferry

Service.

(ii) The factual premises in the present writ petition, is more or less

similar to the pleadings offered in WP(C) No. 3710/2014.


10. Mr. G. N. Sahewalla, learned Senior counsel for the petitioner in WP(C)

No. 3710/2014 and WP(C) No. 4321/2014 makes the following submissions:

(A) Desangmukh-Matmora Ferry Service is a public ferry within the

meaning of Section 4 of the Ferries Act. Due to erosion, the Ferry Service is

being operated from Desangmukh to Tekeliphuta instead of Desangmukh to

Matmora for last more than two decades and the IWT has been settling the

Desangmukh-Matmora Ferry Service although, actually, Ferry Service is being

operated from Desangmukh to Tekeliphuta.

(B) Rule 35 of the 1968 Rules, does not permit operation of any ferry

within a distance of 3.2 K.M. from the limits of a public ferry without prior

approval of the competent authority.

(C) The Tekeliphuta-Desangmukh Parghat settled by Sivasagar Anchalik

Panchayat as well as by the MAC are within a distance of 3.2 K.M. from

Desangmukh-Matmora Ferry Service and, therefore, the said two authorities

do not have any authority or jurisdiction to make settlement of the

Tekeliphuta-Desangmukh Parghat. It is submitted that even the question of

distance of 3.2 K.M. will not arise as the very name of Tekeliphuta-

Desangmukh Parghat is suggestive of the fact that the settlement orders,

made by the two authorities, are also in regard to the Ferry Service which the

petitioner is operating.


(D) Section 13 of the Ferries Act also prohibits operation of private ferry

within two miles of the limits of public ferry without sanction.

11. Learned Senior counsel relies upon the decision of this Court in

Padmadhar Das and Ors. vs. State of Assam and Ors., reported in

2011 (2) GLT 762, on the subject of prohibition of operation of a ferry

within a distance of 3.2 K.M. from the limits of a public ferry.

12. Mrs. N. S. Thakuria, learned counsel for the writ petitioner in WP(C) No.

3606/2014 makes the following submissions:

(A) When the NIT was issued by MAC, there was no mention of the

Desangmukh-Tekeliphuta Parghat in the said NIT and, yet, most arbitrarily,

MAC settled the same in favour of the respondent No. 10, namely, Deep

Kumar Doley.

(B) In the affidavit filed by the Council on 01.09.2014, there was no

reference to any notification issued by the MAC indicating that NIT was also

issued for Desangmukh-Tekeliphuta Ferry Ghat though such stand had been

taken by the respondents during the course of hearing, by filing affidavit on

11.02.2014. Learned counsel submits that such affidavit cannot be looked

into by this Court.


(C) MAC does not have the jurisdiction to settle the Tekeliphuta-

Desangmukh Parghat as the same does not fall within the territorial

jurisdiction of MAC and that is the reason why, in the NIT, as originally

published, this particular ferry was not mentioned.

13. Mr. P. P. Baruah, learned counsel for the petitioner in WP(C) No.

3796/2014 makes the following submissions:

(A) Placing reliance on the order of enactment of the MAC Act and the

Assam Panchayat Act, it is contended by Mr. Baruah that having regard to the

provisions contained in Sections 18 and 20 of the MAC Act, this Court,

necessarily, has to interpret the aforesaid two Sections to have impliedly

repealed Section 106 of the 1994 Act conferring power upon Anchalik

Panchayat to settle ferries to the extent the same comes in conflict with the

territorial jurisdiction of MAC. Mr. Baruah has relied upon paragraphs 70 and

71 of the decision of the Gauhati High Court in Jayanta Baruah and Ors.

vs. State of Assam and Ors., reported in 2006 (3) GLT 844.

(B) Though Desangmukh-Matmora is a public ferry, as the same is

being operated by the petitioners in WP(C) No. 3710/2014 and WP(C) No.

4321/2014 from Desangmukh to Tekeliphuta, it loses the status of a public

ferry and, therefore, the embargo imposed by Rule 35 of the 1968 Rules,


prohibiting the operation of another ferry within the distance of 3.2 K.M. from

the limits of a public ferry will not be applicable.

(C) The petitioner in WP(C) No. 3710/2014 and WP(C) No. 4321/2014

being himself a beneficiary of an order of settlement made by the Anchalik

Panchayat, this Court will not take into consideration arguments advanced on

his behalf in connection with Rule 35 of the 1968 Rules as he cannot blow hot

and cold at the same time.

14. Ms B. Bhuyan, SC, IWT, submits as follows:

(A) As there is a notification, dated 03.01.1969, declaring Desangmukh-

Matmora Ferry Service as a public ferry, notwithstanding the fact that the

same is now operated between Desangmukh and Tekeliphuta, it continues to

be a public ferry in terms of the Ferries Act.

(B) Section 90 of 1994 Act delineates the functions and powers of the

Zilla Parishad in respect of matters enumerated therein, which does not

include ferry, and therefore, Zilla Parishad has no authority to settle ferry.

(C) In absence of an order or notification issued by the State

Government empowering the Panchayat authorities to settle a Ferry, an

Anchalik Panchayat or the Zilla Parishad will not have any power to settle a

public ferry. She also refers to the judgment rendered in WA 77/2011 (Ujani


Majuli Anchalik Panchayat and Anr. Vs. The State of Assam and Ors.,

decided on 27.04.2011)

(D) Elaborating on the provision of Section 20 of MAC Act, Ms Bhuyan

contends that as no notification is published in the official Gazette authorizing

collection of tax, MAC cannot collect tax in view of the fact that Section 20

only deals with imposition, levy and collection of taxes and it does not, in any

manner, confer any power upon MAC to distribute largesse by way of inviting

tenders to run a ferry.

15. Mr. U. Rajbongshi, learned standing counsel, Transport submits that the

Government may undertake an exercise to find out the distance of

Tekeliphuta-Desangmukh Parghat from the Desangmukh-Matmora Ferry

Service and may also consider issuing a fresh notification under Section 4 of

the Ferries Act.

16. Mr. S. Borthakur, learned standing counsel, MAC makes the following

submissions:

(A) Referring to Section 4(e) of the Ferries Act and the proviso thereto,

he submits that no notification was issued changing the course of the

Desangmukh-Matmora Ferry Service from Matmora to Tekeliphuta.


(B) He has drawn the attention of the Court to Sections 3, 18(27) and

20 of the MAC Act. It is contended by him that in view of the provisions

contained in Section 18 of the MAC Act which gives overriding executive

power to the General Council of MAC in respect of the subjects mentioned

therein, no separate provision is required to confer any jurisdiction on MAC to

settle or take any action with regard to any of the matters falling within

Section 18. Any interpretation curtailing the power of MAC to make settlement

will negate the very purpose of MAC Act. Further submission is that Section

20(a) is to be read disjunctively and each of the expressions has to be given

independent interpretation and management of a ferry is very much within

the domain of Section 20(a).

(C) Desangmukh-Matmora Ferry Ghat is beyond the distance of 3.2

K.M. from Tekeliphuta-Desangmukh Parghat as reflected in the affidavit-in-

opposition filed on the basis of the report of the Circle Officer.

(D) Mr. Borthakur has placed reliance in the cases of Bidhan Mudoi

Vs. State of Assam and Ors., reported in (2008) 2 GLR 592, Ashad Ali

Mandal Vs. State of Assam and Ors., reported in (2009) 4 GLR 686 and

R.B.I . Vs. Peerless General Finance and Investment Company

Limited and Ors., reported in (1987) 1 SCC 424.


17. Mr. B.J. Talukdar, learned State counsel and Mr. H. Rahman, learned

counsel for Panchayat authorities submit that unless it is a Government ferry,

the Panchayat authorities will be within their jurisdiction to invite tenders in

respect of a ferry under Section 106 of the 1994 Act.

18. In reply, Mr. Sahewalla has submitted that MAC Act having not been

reserved for the assent of the President, Section 18, which starts with a non-

obstante clause, will be limited in its application as any contravention with the

State Act or Central Government Act will make it repugnant. Therefore,

Ferries Act will prevail over MAC Act. It is further submitted that Section 4 of

the Ferries Act speaks about the local government, which means State

Government or the Provincial Government and not a local self-government as

sought to be emphasized by Mr. Borthakur.

19. I have considered the submissions of the learned counsel for the parties

and have perused the materials on record. It is to be noted that the word

‘Desangmukh’ is also used as ‘Disangmukh’ and the word ‘Ferryghat’ is also

used as ‘Parghat’.

20. At the outset, it will be relevant to notice relevant provisions of the

Ferries Act.


21. Ferries Act, in the interpretation clause in Section 3, provides that the

word “Ferry” includes also a bridge of boats, pontoons or rafts, a swing

bridge, a flying-bridge and a temporary bridge and the approaches to, and

the landing places of, a ferry.

22. Section 4 of the Ferries Act reads as under:

“4. Power to declare establish, define and discontinue public ferries. -

The local Government may from time to time (a) declare what ferries

shall be deemed public ferries, and the respective districts in which for

the purpose of this Act, they shall be deemed to be situate; (b) take

possession of a private ferry and declare it to be a public ferry; (c)

establish new public ferries where, in its opinion they are needed; (d)

define the limits of any public ferry; (e) change the course of any public

ferry; and (f) discontinue any public ferry which it deems unnecessary.

Every such declaration, establishment, definition, change or

discontinuance shall be made by notification in the Official Gazette:

provided that, when a river lies between two States, the powers

conferred by the section shall, in respect of such river, be exercised

jointly by the State Government of those States by notifications in their

respective Official Gazettes: provided also that, when any alteration in

course or in the limits of the public ferry is rendered necessary by


changes in the river, such alteration may be made, by an order under

his hand, by the Commissioner of the division in which such ferry is

situate, or by such other officer the State Government may, from time

to time appoint by name or in virtue of his office in this behalf”.

23. Section 6, 7, 7A, 12 and 13 read as follows:

“6. Superintendent of public ferries.- The immediate

superintendence of every public ferry shall, except as provided in

Section 7 (and Section 7A) be vested in the Magistrate of the

district in which such ferry is situate, or in such other officer as

the State Government may, from time to time, appoint by name

or in virtue of his office in this behalf; and such Magistrate or

officer shall, except when the tolls at such ferry are leased, make

all necessary arrangements for the supply of boats for such ferry

and for the collection of the authorized tolls leviable thereat.

7. Management may be vested in Municipality. - The State

Government may direct that any public ferry situate within the

limits of a town be managed by the officer or public body

charged with the superintendence of the municipal arrangements

of such town; and thereupon that ferry shall be managed

accordingly.


7A. Management may be vested in District Council or District or

Local Board. - The State Government may direct that any public

ferry wholly or partly within the area subject to the authority of a

Mohkuma Parishad in the State be managed by the Mohkuma

Parishad and thereupon that ferry shall be managed

accordingly.”(as substituted in its application to the State of

Assam)

12. Power to make rules. - Subject to control of the State

Government, the Commissioner of a division, or such other officer

as the State Government may, from time to time, make rules

consistent with this Act- (a) for the control and the management

of all public ferries (within such division) and for regulating the

traffics at such ferries; (b) for regulating the time and manner at

and in which, and the terms on which, the tolls of such ferries

may be let by auction, and prescribing the persons by whom

auctions may be conducted; (c) for compensating persons who

have compounded for tolls payable for the use of any such ferry

when such ferry has been discontinued before the expiration of

the period compounded for; and (d) generally to carry out the

purpose of this Act; and, when the tolls of a ferry have been let


under section 8, such Commissioner or other officer may, from

time to time, subject as aforesaid, make additional rules

consistent with this Act- (e) for collecting the rents payable for

the tolls of such ferries; (f) in cases in which the communication

is to be established by means of a bridge of boats, pontoons or

rafts, or a swing-bridge, flying bridge or temporary bridge, for

regulating the time and manner at and in which such bridge shall

be constructed and maintained and opened for the passage of

vessels and drafts through the same; and (g) in cases in which

the traffic is conveyed in boats, for regulating (1) the number and

kind of such boats and their dimensions and equipment; (2) the

number of the crew to be kept by the lessee for each boat; (3)

the maintenance of such boats, continually in good condition; (4)

the hours during which, and the intervals within which, the lessee

shall be bound to ply; and (5) the number of passengers, animals

and vehicles, and the bulk and weight of other things, that may

be carried in each kind of boat at one trip.

The lessee shall make such returns of traffic as the

Commissioner or other officer as aforesaid may, from time to

time, require.”


13. Private ferry not to ply within two miles of public ferry

without sanction. - Except with the sanction of the Magistrate of

the district or of such other officer as the State Government may,

from time to time, appoint in this behalf, by name or in virtue of

his office, no person shall establish, maintain or work a ferry to or

from any point within a distance of two miles from the limits of a

public ferry: provided that, in the case of any specified public

ferry, the State Government may, by notification in the Official

Gazette, reduce or increase the said distance of two miles to such

extent as it thinks fit: provided also that nothing herein before

contained shall prevent persons, plying between two places, one

of which is without, and one within, the said limits, when the

distance between such two places is not less than three miles, or

apply to boats which do not ply for hire or which the State

Government expressly exempts from the operation of this

section.”

24. In Bidhan Mudoi (supra), this Court had observed that a conjoint

reading of Sections 4, 6, 7, 7A, 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 even discontinue which it might have created or

declared, as a public ferry. Every ferry, which the State Government has

declared as a public ferry 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.

25. A set of Rules, known as Rules under Section 12 of the Northern Indian

Ferries Act, 1878, for short, 1878 Rules, had also been framed. By Control

and Management of Ferries (Amendment) Rules, 1976, for short, 1976 Rules,

some amendments to the 1968 Rules had been made. Preamble


of 1878 Rules goes to show that the 1878 Rules are meant to apply to only

government ferries, which is defined to mean a public ferry at least one of

whose limits is on a Government Road as defined in the Assam Highways Act,

1928, for short, 1928 Act. Section 2 of the 1928 Act defines Government Road

as a road vested in the Government or under the control and administration

of the State Government and includes, all lands and embankments vested in

Government or under the control and administration of the State Government

and attached to a Government Road. Thus, government ferries are species of

public ferries, which is the genus. In other words, all government ferries are

public ferries but not always vice-versa.

26. The preamble of 1968 Rules refers to six major ferries specified in

Schedule-A therein. Section 2(a) defines “ferry” to mean a “ferry” specified in

Schedule-A appended to the 1968 Rules. There is no Schedule-A in the Rules.

However, there is Appendix-A and for all intents and purposes, Schedule-A

refers to Appendix-A. Over a period of time, new ferries had been included in

Appendix-A and in Appendix-A, presently, Desangmukh-Matmora Ferry

Service is listed in serial 9. As the 1968 Rules are framed in exercise of

powers under Section 12 of the Ferries Act, 1968 Rules will apply only to a

public ferry, as contemplated in section 4 of the Act and therefore, any ferry

which finds place in Appendix-A shall be a public ferry. IWT Department has,


in terms of 1968 Rules, jurisdiction to settle ferries which are placed in

Appendix-A thereof.

27. By substituting earlier Rule 2(b), Rule 4 of the 1976 Rules provides that

‘ferry’ shall mean a ferry as defined and interpreted in Section 3 of the Ferries

Act and include ferries specified from time to time in Appendix-A. By Rule 5,

new Rule 2(e) is inserted in 1968 Rules to introduce the concept of a

recognized non-transport ferry and the said Rule 2(e) reads as follows:

“2(e). Recognized Non-transport Ferry – means and includes a

private ferry or private boat authorized by the competent

authority which are not used on hire for crossing of persons,

animals and goods belonging to the owner of the ferry or boat

without using the approach of any public ferry.”

28. Rule 35 of 1968 Rules was substituted by 1976 Rules. Rule 35, on

which much argument had been advanced, reads as follows:

“Rule 35. - No person shall establish, maintain or work a ferry to

or from any point within a distance of 3.2 K.M. from the limits of

a public ferry without the prior approval of the competent

authority declared by the Government under Section 13 of the

Northern India Ferries Act, 1878. Provided that recognized non-


transport ferry/ferries only can run within the distance of 3.2 K.M.

on either side of the ferry and no tolls shall be levied on

recognized non-transport ferries or on persons, animals or

conveyance crossing by a private boat not used for hire without

using the approaches to the ferry. The lessee shall have no claim

for compensation or remission or refund of kist money on this

account.

Provided also that any private party allowed to operate his

own boats on hire within 3.2 K.M. of any of the points of a public

ferry will be liable to pay for each trip, to the lessee, an amount

equal to the rate fixed for the type of boat used by him, as if

such boat had been supplied for special trips by the lessee

himself, at the rate chargeable therefore as per the toll lists.”

29. Section 18 of the MAC Act provides that notwithstanding anything

contained in any other law or rules for the time being in force, the General

Council shall have the executive powers in relation to the Council Area over

the subjects mentioned thereunder which includes ‘Transport’ at serial No. 27.

30. Section 20 of the Act is relevant and the same is, to the extent

necessary, reproduced herein below:


“Powers to impose, levy and collect taxes.- (1) Subject to the

provisions of any other law for the time being in force, the

General Council shall have the powers to collect within the

Council Area such taxes as are payable under the law for time

being in force in the manner as may be prescribed;

Provided that the tax or taxes as aforesaid shall be

collected from such date as may be appointed by the

Government by notification in this behalf in the official Gazette.

(2) Subject to sub-section (1) and such maximum rates as the

Government may prescribe, the General Council shall-

(a) Levy tolls on persons, vehicles or animals of any class, for

the use of any bridge or road other than kacha road, or ferry

constructed or established and managed by it.”

31. Section 106 of the 1994 Act provides for settlement of public ferries and

distribution of sale proceeds. Section 106(1) provides that all public ferries,

other than Government ferries within the territorial jurisdiction of the Anchalik

Panchayat shall be settled in the manner prescribed for a period coinciding

with and not exceeding one Panchayat financial year by inviting tenders at the

office of the Anchalik Panchayat by its President. In Jayanta Bora (supra), it


was held that there was no requirement of prior vesting of the jurisdictional

public ferry as an essential pre-condition to enable the corresponding Anchalik

Panchayat to award settlement thereon. It was held that Section 106 of the

1994 Act postulates an exclusive dominion over all public ferries, other than

Government ferries within the territorial jurisdiction of the Anchalik Panchayat

concerned.

32. In Bidhan Mudoi (supra) also, it was held 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. It was also held that every individual is free to set up its own ferry

as no legislation exist 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. In Ashad Ali

Mandal (supra), it was reiterated that under the scheme of Section 4 of the

Ferries Act, unless a notification is issued declaring a ferry as a public ferry, a

ferry cannot be regarded as a public ferry within the meaning of Ferries Act.

33. In Padmadhar Das (supra), it was held that Rule 35 of 1968 Rules

does not regulate or control Section 4 of Ferries Act. It was also held that

Section 106 of 1994 Act does not predicate an absolute dominion of the

jurisdiction of the Anchalik Panchayat vis-à-vis a ferry located within its limit,


if it is not a public ferry. It was also held that the Anchalik Panchayat is not

empowered in law to settle a ferry, which is not a public ferry, under 1994

Act.

34. In Ujani Majuli Anchalik Panchayat (supra), the Division Bench

upheld the order of the learned Single Judge rendered in Padmadhar Das

(supra). It was held that in respect of a ferry which is not a public ferry,

applicability of Section 106 and procedures laid down in 1994 Act will not

arise.

35. The case projected by the writ petitioner, Ratneswar Taye, and also

supported by the IWT Department is that in the north bank, the original ghat

point was Matmora. However, due to protection work carried out by the

Water Resources Department to check heavy erosion, the channel condition

became unfit for navigation and the same was closed years back and, as a

result, the ferry ghat had to be shifted from Matmora to Tekeliphuta. It is

apparent that though the IWT Department had settled the ferry by the name

of Desangmukh-Matmora, in reality, ferry service is not operating in between

Desangmukh and Matmora but the ferry service is being operated from

Desangmukh to Tekeliphuta.

36. Section 64 of the 1994 Act provides for establishment of Zilla Parishad

for every district over the entire district excluding such portions of the district


as are included in a municipality or a municipal corporation, as the case may

be, or under the authority of town committee, or sanitary board, or

cantonment area, or any notified area constituted under any law for the time

being in force. Section 31 provides for establishment of Anchalik Panchayat

for every development block excluding such areas, as are excluded from the

Zilla Parishad, from the development block.

37. Desangmukh-Tekeliphuta Parghat is not a public ferry as it is not

included in Appendix-A of the 1968 Rules. Desangmukh-Tekeliphuta Parghat

being not a public ferry, the Anchalik Panchayat could not have settled the

same under the provisions of the 1994 Act. That apart, the materials on

record demonstrate that one point of the aforesaid Desangmukh-Tekeliphuta

Parghat was beyond the jurisdiction of the Anchalik Panchayat or, for that

matter, Sivasagar Zilla Parishad, as Tekeliphuta Parghat is in Lakhimpur

District. Under Section 106 of the Panchayat Act, Anchalik Panchayat has the

jurisdiction to settle all public ferries only within the territorial jurisdiction of

the Anchalik Panchayat.

38. The third proviso to sub-Section (4) of Section 106 of the 1994 Act

provides that the State Government may issue order to Anchalik Panchayat

for settlement of a public ferry falling within the jurisdiction of more than one

Anchalik Panchayat or Zilla Parishad. Thus, even in the case of public ferry


falling within the jurisdiction of more than one Anchalik Panchayat or Zilla

Parishad, it is necessary for the State Government to issue an order to enable

the Anchalik Panchayat to settle such a public ferry. A categorical averment is

made in the writ petition filed by Deep Kumar Doley that Desangmukh-

Tekeliphuta Parghat is outside the jurisdiction of Sivasagar Zilla Parisahad. No

affidavit has been filed by the Sivasagar Zilla Parishad or by the Sivasagar

Anchalik Panchayat controverting such categorical stand. In the facts and

circumstances of the case, the Sivasagar Anchalik Panchayat could not have

settled the Desangmukh-Tekeliphuta Parghat as the same was extending to

an area beyond its jurisdiction. In that view of the matter, the settlement

granted in favour of Anjan Taye cannot be sustained.

39. Section 4(d) of the Ferries Act enables the State Government to define

the limits of any public ferry. Section 4(e) provides that State Government

may from time to time change the course of public ferry and section 4(f)

provides that the State Government may discontinue any public ferry which it

deems necessary. It is, however, provided that any declaration relating to

establishment, definition, change or discontinuance shall be made by

notification in the Official Gazette. It is also provided that when any alteration

in the course or in the limits of a public ferry is rendered necessary by

changes in the river, such alteration may be made by an order under the


hand of the Commissioner of the Division or by such other officer as the State

Government may from time to time appoint by name or by virtue of his office

in this behalf.

40. The IWT Department of the Government of Assam can settle a public

ferry which is specified in Appendix-A of the 1968 Rules if such public ferry is

not falling within the jurisdiction of any Anchalik Panchayat. The learned

counsel for the IWT Department has not been able to place before the Court

any Gazette Notification notifying change of course of Desangmukh-Matmora

Ferry Service or any order by the Commissioner of the Division in which

Desangmukh-Matmora Ferry Service is situate by which the course or the

limits of the same have been altered. When admittedly there is change in the

course as the ferry does not operate to the original point at Matmora but

operates to Tekeliphuta, such ferry, in the considered opinion of the Court,

loses the character of a public ferry. Merely because the authorities had

christened the ferry service in the name as finding place in Appendix-A, would

not make such a ferry a public ferry. On the garb of operating a public ferry,

the IWT Department cannot operate a ferry which is not a public ferry. IWT

Department, in the circumstances, cannot have jurisdiction to operate such a

ferry.


41. Once the conclusion is reached by the Court that settlement by the

name of Desangmukh-Matmora is a misnomer and, in essence, IWT has

settled a ferry service from Desangmukh to Tekeliphuta, which is not a public

ferry, the argument of Mr. Sahewalla that Rule 35 is violated by the

establishment of a ferry to or from within a distance of 3.2 K.M. from the

limits of a public ferry requires no adjudication. It is, however, to be recorded

that none of the parties had placed on record what was the limit of

Desangmukh-Matmora Ferry Service.

42. It is to be noted that Anjan Taye, the petitioner in WP(C) 3606/2014 is

the son of Ratneswar Taye, the writ petitioner in WP(C) 3710/2014 and

WP(C) 4321/2014. It is also on record that Ratneswar Taye was also

operating Desangmukh-Tekeliphuta Parghat while he was still the settlement-

holder of Desangmukh-Matmora Ferry Service.

43. Though Ms. Thakuria had urged that the Tekeliphuta-Desangmukh

Parghat does not fall within the territorial jurisdiction of MAC, no material has

been placed to justify such claim. On the contrary, by way of affidavit filed by

the Principal Secretary, MAC, it is clearly stated that Tekeliphuta falls under

No. 22 Kherkata-Dangdhara MAC Constituency under Dhakuakhana Civil Sub-

Division of Lakhimpur District, and Desangmukh falls under No. 34 Desang-


Dikhow MAC Constituency under Sivasagar (Sadar) Sub-Division of Sivasagar

District.

44. With regard to the submission of Ms. Thakuria that the additional

affidavit filed by the MAC during the course of the hearing should not be

considered, it does not commend for acceptance. The said affidavit was filed

after this Court permitted MAC to file an affidavit by an order dated

29.01.2015. By filing the additional affidavit, the MAC has brought on record

a Notification dated 06.06.2014, which is in continuation of the Notification

dated 02.06.2014, to show that Tekeliphuta-Desangmukh Parghat was also

notified as one of the Revenue Resources of MAC. It is also to be noted that

Deep Kumar Doley, petitioner in WP(C) 3796/2014, was granted settlement in

respect of Desangmukh-Tekeliphuta Parghat by issuing a Notice Inviting

Tender dated 16.06.2014.

45. Now, the question that falls for consideration is whether the MAC Act

authorizes settlement of ferry by the MAC.

46. But, before that it will be appropriate to deal with the contention

advanced by Mr. P. P. Baruah regarding implied repeal of Section 106 of the

1994 Act to the extent the same comes in conflict with Sections 18 and 20 of

the MAC Act.


47. When two Acts are inconsistent or repugnant, the latter will be

construed to have impliedly repealed the earlier. The Legislature must be

presumed to intend to enact consistent laws and, therefore, in absence of any

express or in the least, a clear and unambiguous indication to that effect, the

Courts will not readily proceed to hold that a subsequent legislation has

repealed an existing statute or particular provisions thereof. The Courts,

generally, lean against implying a repeal unless the provisions are such that

they cannot stand together and it is not reasonably practicable to give

meaning to both at the same time.

48. Section 106 of the Panchayat Act has conferred power upon the

Anchalik Panchayat to settle all public ferries other than Government ferries

within the territorial jurisdiction of the Anchalik Panchayat. Sections 18 and

20 of the MAC Act upon which reliance is placed to sustain the plea of implied

repeal, do not, in any way, clothe MAC with the power to settle public ferry.

If there is no power to settle public ferry, where is the repugnancy with

Section 106 of the 1994 Act? The plea of implied repeal must necessarily be

rejected.

49. Though Section 18 of the MAC Act starts with a non-obstante clause, so

far as the present case is concerned, namely, settlement of a ferry on the

strength of Section 20 of the MAC Act, it will be noticed that the provision


makes it abundantly clear that the powers of the General Council in

connection thereto, is subject to the provisions of any other law for the time

being in force and, therefore, this is not an appropriate case to decide the

plea of repugnancy raised by Mr. Sahewalla.

50. As held by this Court in Bidhan Mudoi (supra), unless a Ferry has

been declared or created as Public ferry within the meaning of section 4,

there is no legal impediment under the Ferries Act on any person or authority

establishing, maintaining or running a private Ferry in any part of any river

within the State of Assam and the State Government cannot restrain or

control operation of private ferries except as provided in the Ferries Act or the

Rules framed there-under.

51. The expression ‘Ferry’ is not defined in MAC Act. The New Oxford

Advanced Learners Dictionary (Seventh Edition) defines ‘ferry’ to mean, “boat

that carries people, vehicles and goods across a river or across a narrow part

of the sea”. Webster’s Dictionary (New Twentieth Century Edition) defines

‘ferry’ as a transportation system in which passengers and goods are carried

across a river or other narrow body of water. Advanced Law Lexicon (Volume

2) (3rd Edition, 2005) defines ‘ferry’ as a franchise or exclusive right of

carrying passengers, animals or goods across a river or other body of water at

a particular place and taking a toll for so doing, which is called ferriage.


52. In RBI (supra), it is held by the Apex Court that interpretation must

depend on the text and the context. No part of a statute and word of a

statute can be construed in isolation.

53. Viewed thus, it will be doing violence to Section 20 of the MAC Act if

the Section is interpreted to mean that MAC is only authorized to impose, levy

and collect taxes. The expression “ferry constructed or established and

managed” as appearing in Section 20(2)(a) of the MAC Act has to be

interpreted to mean that MAC is vested with the power to construct, establish

and manage a ferry. Management of a ferry will necessarily include

management by a lessee through a process of settlement by following a

transparent procedure like notice inviting tender.

54. In the instant case, the writ petitioner in WP(C) 3796/2014 was granted

settlement of Desangmukh-Tekeliphuta Parghat by a tendering process after

the same was notified as Revenue Resource of MAC. In that view of the

matter, this Court is of the considered opinion that there is no illegality in the

order of settlement made in favour of the writ petitioner in WP(C) 3796/2014.

55. In view of the discussions above, WP(C) 3796/2014 is allowed. The

order of settlement dated 27.06.2014 passed in favour of Anjan Taye is set

aside and quashed. WP(C) No. 3606/2014 and WP(C) No. 3710/2014,

wherein order of settlement dated 27.06.2014 in favour of writ petitioner in


WP(C) 3796/2014 is challenged, is found to be without any merit and,

accordingly, the same are dismissed. WP(C) No. 4321/2014, wherein order of

settlement dated 27.06.2014 passed in favour of Anjan Taye is under

challenge, has to be allowed, not on the ground on which the writ petition is

structured but because of the fact that the order of settlement is set aside in

WP(C) 3796/2014. No cost.

JUDGE

RK

WP(C) 3606/2014

Documents

Transcript of WP(C) 3606/2014