IN THE GAUHATI HIGH COURT

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1 Page 1 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 The Secretary to the Government of Assam, Panchayat and Rural Development Department, Dispur, Guwahati The Deputy Secretary, Panchayat and Rural Development Department, Dispur, Guwahati 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.

2 Page 2 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. - Versus - 1. The State of Assam, Represented by the Principal Secretary to the Government of Assam, Transport Department, Assam Secretariat, Dispur, Guwahati The Director, Inland Water Transport, Assam, Guwahati. 3. Executive Engineer, Inland Water Transport Division, Dibrugarh, Assam. 4. Junior Engineer, Inland Water Transport Division, - Petitioner

3 Page 3 Advocates: 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 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. - Petitioner - Versus - 1. The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development Department, Dispur, Guwahati The Director, Panchayat and Rural Development Department,

4 Page 4 \ Advocates: Panzabari, Juripar, Guwahati 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 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. For the Petitioner : Mr. P. P. Baruah, Advocate, Mr. R. Sarma, Advocate, Mr. M. K. Dutta, Advocate, - Respondent

5 Page 5 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, Shri RatneswarTaye, Son of Late AkhayTaye, Lepai Chumoni, Desangmukh, District Sivasagar, Assam. W.P.(C). No. 4321/ Versus - 1. The State of Assam, Represented by the Principal Secretary to the Government of Assam, Transport Department, Assam Secretariat, Dispur, Guwahati 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, - Petitioner

6 Page 6 Advocates: Village Lepai Somuni, P.O. Dishangmukh, P.S. Sivasagar, District Sivasagar, Assam. - Respondents 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 : , and Date of judgment : 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,

7 Page 7 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 , 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 to (ii) The petitioner submitted the tender for the Disangmukh Tekeliphuta Ferryghat. Many other tenderers also submitted tenders and the tenders were opened on Finding that bid amounts were too high, the Sivasagar

8 Page 8 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 (iii) On the strength of the aforesaid order dated , 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 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 , 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 , Disangmukh Tekeliphuta Ferryghat was

9 Page 9 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 , the petitioner deposited an amount of Rs. 2,56,410/- on 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 settling the Disangmukh Tekeliphuta Ferryghat by MAC in favour of respondent No 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/ 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 in respect of the Disangmukh Tekeliphuta Ferryghat pursuant to an NIT floated by MAC on at his tender value of Rs. 2,50,000/-. In this writ petition, the petitioner prays for quashing of the order of settlement dated made in favour of Anjan Taye (writ petitioner in WP(C) No. 3606/2014) issued

10 Page 10 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 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 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,

11 Page 11 for the financial year and , 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 to by an order dated (iii) In terms of the settlement order dated , 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 , 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 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 , inexplicably, Disangmukh-Tekeliphuta Parghat was settled with the respondent No. 7.

12 Page 12 (v) By a letter dated , 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

13 Page 13 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 , 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 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.

14 Page 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.

15 Page 15 (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 , 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 Learned counsel submits that such affidavit cannot be looked into by this Court.

16 Page 16 (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,

17 Page 17 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 , 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

18 Page 18 Majuli Anchalik Panchayat and Anr. Vs. The State of Assam and Ors., decided on ) (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.

19 Page 19 (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-inopposition 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.

20 Page 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 nonobstante 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 Page 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

22 Page 22 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.

23 Page 23 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

24 Page 24 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.

25 Page 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

26 Page 26 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

27 Page 27 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,

28 Page 28 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 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, Provided that recognized non-

29 Page 29 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 Section 20 of the Act is relevant and the same is, to the extent necessary, reproduced herein below:

30 Page 30 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

31 Page 31 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,

32 Page 32 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

33 Page 33 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

34 Page 34 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

35 Page 35 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.

36 Page 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 settlementholder 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-

37 Page 37 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 By filing the additional affidavit, the MAC has brought on record a Notification dated , which is in continuation of the Notification dated , 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 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.

38 Page 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

39 Page 39 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) (3 rd 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.

40 Page 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/ In view of the discussions above, WP(C) 3796/2014 is allowed. The order of settlement dated 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 in favour of writ petitioner in

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