Jharkhand High Court
M/S Jai Bajrang Walee Stone Works vs The State Of Jharkhand on 23 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1839 of 2020
M/s Jai Bajrang Walee Stone Works, through its proprietor namely
Prakash Chandra Yadav. Situated at Plot No. 9/P, 10/P, 11/P, 14/P and
17/P, Mouza- Gudwa, Sakrigali, Sahibganj ,
... ... Petitioner
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Sahibganj
3. The Joint Transport Secretary, Government of Jharkhand, Ranchi
4. Inland Waterways Authority of India, Ministry of Shipping,
Government of India, having its head-office at Noida (Uttar Pradesh)
... ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner :- Mr. Vimal Kirti Singh, Advocate
Mr. Sidharth, Advocate
Ms. Stuti Sinha, Advocate
For the State :- Mr. P.A.S. Pati, G.A.-II
For the Resp. no. 4 :- Mr. Anshuman Pandey, Advocate
Mr. Ashish Kumar, Advocate
Order No. 12 Dated: 23.02.2021
The present case is taken up through video conferencing.
2. The instant writ petition has been preferred for quashing and setting
aside the orders as contained in memo no. 1541 and memo no. 398 both
dated 11.06.2020 passed by the Secretary, Department of Transport,
Government of Jharkhand and the Deputy Commissioner, Sahibganj
(respondent no.2) respectively whereby the petitioner has been restrained
from plying vessels between Samda ghat (Sahibganj district) to Manihari
ghat (Katihar district of the State of Bihar) on National Waterway No.-1
(hereinafter to be referred as 'NW-1'). Further prayer has been made for
issuance of direction upon the respondents to immediately and forthwith
grant/issue orders for restarting the operations of the petitioner's vessels
from Samda Ghat at Sahibganj (Jharkhand) to Manihari Ghat at Katihar
(Bihar) and also to allow it to set up its own temporary facility for operations
of loading and unloading at Samda Ghat, Sahibganj on payment of fees, if
any, payable under law to the concerned authority.
3. The factual matrix of the case as stated in the writ petition is that the
petitioner- M/s Jai Bajrang Walee Stone Works is engaged in the business of
stone materials and waterways transport on NW-1 for transporting materials
inter-state through its vessels. The petitioner applied for permission before
the respondent no. 4- Inland Waterways Authority of India (IWAI) to ply its
vessels between Samda Ghat (Sahibganj , Jharkhand) and Manihari Ghat
(Katihar, Bihar) on NW-1 for moving cargo, primarily stone materials and the
competent authority of the respondent no. 4, vide its letter no. 45 dated
12.04.2017, granted 'No Objection Certificate' to the petitioner for the said
purpose with a direction to seek necessary permission from other concerned
authorities/bodies as required and to deposit waterways user charges as per
gazette notification whenever movement takes place. However, the Deputy
Commissioner, Sahibganj (the respondent no. 2) issued an order as
contained in memo No. 464 dated 30.05.2017 restraining the petitioner from
plying its vessels on NW-1 alleging that it was plying vessels on NW-1
illegally without obtaining permission of the said respondent as required
under law and further that the same was also causing loss to the state
revenue. The Member (Traffic) of the respondent-IWAI, vide letter no.
32/2017 dated 28.07.2017, informed the Chief Secretary, Government of
Jharkhand that the permission was already granted by the respondent-IWAI
to the petitioner to ply its vessels for transporting cargo on NW-1 and
requested the Chief Secretary, Government of Jharkhand to issue necessary
directions to the concerned authorities to permit the petitioner to operate its
vessels between Samda Ghat to Manihari Ghat as Roll-on/Roll-off (Ro-Ro)
operation was one of the most crucial and visible components of inland
water transportation and also that Government of India was giving emphasis
on development of inland waterways transport in the country. Thereafter, the
Joint Commissioner, Transport, Government of Jharkhand, vide letter no.
1070 dated 02.08.2017, directed the respondent no.2 to grant necessary
permission to the petitioner for plying its vessels. The Divisional
Commissioner, Santhal Pargana Division, Dumka, vide memo no. 04 dated
10.01.2018, mentioned about discussions in a meeting held at Patna on
11.12.2017 with the officials of the respondent- IWAI, wherein the Project
Oversight Committee constituted for project development of Waterways,
considered the petitioner's request to operate its vessels from private
land/ghat of both sides of river Ganga situated in the State of Bihar and
Jharkhand on payment of requisite fees and accordingly directed the
respondent no. 2 to permit the petitioner to ply its vessels/barges on the
NW-1, i.e. between Samda Nala/Ghat at Sahibganj, Jharkhand and Manihari
Ghat at Katihar, Bihar as well as from Samda Ghat, Sahibganj to different
places in a smooth and effective manner, a copy of which was forwarded to
the Assistant Director of IWAI, Sahibganj , Jharkhand for information and
necessary action. In the meantime, the petitioner preferred an appeal being
R.M.A No. 20 of 2018-19 before the Court of Commissioner, Santhal Pargana
Division, Dumka against the order dated 30.05.2017 passed by the
respondent no. 2. The said appeal was allowed vide order dated 31.05.2018
holding that the operation of vessels by the petitioner would be carried out
as per the provisions of Inland Waterways Authority of India Act, 1985 (in
short, "the Act, 1985"), National Waterways Act, 2016, the Inland Vessels
Act, 1917 (as amended up to date) (in short "the Act, 1917") etc. and the
applicable laws of the Government of India. The Commissioner, Santhal
Pargana Division, Dumka further held that the petitioner could ferry any
number of its vessels/Ro-Ro vessels/barges owned by it or under valid
agreement and directed the respondent no. 2 to ensure and facilitate smooth
and uninterrupted plying of petitioner's vessels on NW-1 between Samda
Ghat (Sahibganj , Jharkhand) to Manihari Ghat (Katihar, Bihar). The
Additional Collector, Sahibganj , vide order as contained in memo no.
362 dated 21.05.2020, directed the petitioner to comply the order of the
Commissioner, Santhal Pargana Division, Dumka. The Collector, Katihar, vide
order as contained in memo no. 722 dated 29.05.2020, directed the
petitioner to take further steps in the light of 'No Objection Certificate'
granted by the respondent no. 4- IWAI as well as the order of the
Commissioner, Santhal Pargana Division, Dumka and Additional Collector,
Sahibganj by following rules, regulations as well as directives of the
respondent-IWAI. The Deputy Director & Officer In-Charge, IWAI, vide letter
dated 05.06.2020, informed the respondent no. 2 stating inter alia that the
permission was granted to three agencies namely M/s. Varcel Shipping Pvt.
Ltd., Delhi, M/s. Cambridge Constructions Ltd., Delhi and M/s Adani Logistics
Ltd., Ahmedabad vide IWAI's letter dated 15.05.2020 to set up, operate
and maintain temporary Ro-Ro facility from the Multi-Modal Terminal (MMT)
of the respondent- IWAI situated at Sahibganj and for loading jetties on NW-
1. Thereafter, the respondent no. 2, vide memo no. 385 dated 05.06.2020,
informed the petitioner as well as other agencies that since the permission
was granted by the respondent-IWAI for plying of vessels only through the
prescribed MMT on NW-1, all the vessels should be operated/ plied
specifically from there and if the vessels were found being operated
from any other terminal except the said MMT, the concerned
Company/Vessel holders would be held responsible and would also be liable
to face the penal consequences under the provisions/laws of the IWAI. The
petitioner wrote a letter to the respondent no. 2 on 06.06.2018 indicating
serious practical difficulties being faced in loading and unloading of stone
materials at MMT, Sahibganj and requested him to permit it to operate the
vessels from its own arranged land situated quite close to MMT, Samda Ghat,
Sahibganj. An office order was issued by the respondent-IWAI on
09.06.2020 instructing all the private agencies involved in the operation of
Ro-Ro from IWAI, MMT, Sahibganj to submit their detailed scheduled plans
regarding movement of the vessels on daily basis. The agencies were further
asked to ensure strict adherence to the Standard Operating Procedure (SOP)
as mentioned in letter dated 18.02.2020. There was intimation to
the Secretary, Transport Department, Government of Jharkhand that in
addition to the settlement holders of operation of ferries between Samda
Ghat, Sahibganj to Manihari Ghat, Katihar, some ferries and vessels were
also being operated by other agencies after obtaining NOC from the
respondent-IWAI. Hence, the Secretary, Transport Department, Government
of Jharkhand, vide letter no. 1541 dated 11.06.2020, instructed the
respondent no. 2 to issue order regarding stoppage of any operation of ferry
other than the settled ferries between aforesaid ferry ghats with immediate
effect as the same involved issue of revenue. It was also stated in the
said letter that if there were other ferry ghats which could be utilized, the
revenue department should send the list of such ferry ghats by making
recommendation. On the same date, i.e., on 11.06.2020, the petitioner
received an order as contained in memo No. 398 issued by the respondent
no. 2 whereby the operation of the vessels of the petitioner was suspended
with immediate effect stating that settlement of the aforesaid ferry ghat
being a matter of revenue, no ferry could operate other than that of the
settlement holders. Thereafter, the petitioner vide letter no. JBSW/20-21/22
dated 14.06.2020 requested the Divisional Commissioner, Santhal Pargana
Division, Dumka for directing the respondent no. 2 to comply with the order
dated 31.05.2018 passed by its court and to allow the petitioner to ply the
Ro-Ro vessels between Samda Ghat at Sahibganj (Jharkhand) and Manihari
Ghat at Katihar (Bihar), however nothing has been done in this regard.
Hence, the present writ petition.
4. The learned counsel for the petitioner submits that after reorganization
of the State of Bihar in 2000, Samda Ghat in Sahibganj became part of the
State of Jharkhand and Manihari Ghat in Katihar fell under the State of Bihar
and therefore the waterways between the two places is now part of inter-
state waterways (National Waterway No. 01). Hence, only the Central
Government and its related departments have got the authority and
jurisdiction to regulate inter-state waterways transportation. The Secretary,
Department of Transport, Government of Jharkhand and the respondent
no. 2 did not have any jurisdiction to issue the impugned orders. It would
reveal from the letter dated 11.06.2020 issued by the respondent-IWAI to
the SDO, Sahibganj that the MMT, Sahibganj was taken over by the
respondent-IWAI and as such no direction, order or any instruction with
respect to the said MMT could have been issued by the said respondents. It
is further submitted that it would be amply clear from perusal of various
provisions of the Bengal Ferries Act, 1885 (in short, "the Act, 1885") that
there is apparent distinction between a "private ferry" and a "public ferry".
The entire Act provides powers to the District Magistrate and the
Commissioner with respect to operation, auction, lease, tolls etc. only for
public ferries. The said Act provides power only to the Divisional
Commissioner with regard to private ferries to the extent that the said
authority may come out with rules for maintenance of order and for safety of
the passengers and property at the private ferries situated in his Division. In
the present case, the respondent no. 2 has restrained the petitioner from
operating its vessels from private Ghat which is clearly without jurisdiction
even as per the Act, 1885.
5. Learned counsel for the petitioner also submits that the respondents
have put reliance on the notification being S.O. 315, dated 27.02.1979
published in Bihar Gazetter, Extraordinary No. 202, meant for control and
management of ferries as well as for declaring them as public ferries under
Section 6 of the Act, 1885 whereby some ferries situated on the river Ganga
and Kosi in Katihar district on the North Bank and Santhal Pargana on the
South Bank were declared to be public ferries and "Sahibganj -Manihari
ferries" was declared as public ferry, however the petitioner has been
granted NOC by the respondent-IWAI for plying vessels not specifically from
any ghat enlisted under the said notification. Moreover, the petitioner plies
its vessels from "Samdaghat Nala Sakri" to "Manihari Ghat" and the same is
not listed under the said notification. Otherwise also, the said notification is
not applicable in the State of Jharkhand in view of Section 85 of the Bihar
Reorganization Act, since the said notification has not been adopted by the
state legislature till date. The entire case of the respondent-State is pivoted
on the contention that the Act, 1917 is not applicable in the jurisdiction of
Santhal Pargana because it is not included in the Schedule of Santhal
Pargana Settlement Regulations, 1872 (in short "the Regulation, 1872"). The
Regulation, 1872 has no force or effect on the operation of the Act, 1917
which is a Central Act and extends to entire India except the State of Jammu
and Kashmir. An Act of Parliament relating to matters with respect to which,
it has exclusive power to legislate overrides any restriction imposed by any
law which was in force before coming into force of the Constitution of India.
Therefore, the restriction provided under regulation 3(2) of the Regulation
1872 to the effect that no Act would apply to the Santhal Parganas unless
those were expressly included therein, has lost its force and effect with
respect to the laws made by the Parliament under Chapter I of Part XI of the
Constitution. Accordingly, a law made by Parliament is fully applicable to the
Santhal Pargana even if the Governor does not direct that it would be so
applicable. The only restriction which the Constitution now provides under
para 5(1) of the fifth schedule is that the Governor can only expressly notify
that any particular Act of Parliament would not apply to a Scheduled Area or
would apply with such exceptions or modifications. However, there is no
such notification of the Governor in the State of Jharkhand with respect to
the Act, 1917. Otherwise also, the Act, 1917 has been enacted primarily for
the survey of a mechanically propelled vessel and every part thereof
including the hull, boilers, engines and other machinery and all equipments.
The provisions of the Act, 1917 are not relevant in the facts of the present
case insofar as it is clear from the impugned orders that the respondents
have not restrained or stopped the operation of the petitioner's vessels for
any alleged violation and non-compliance of the provisions of the said Act.
Moreover the petitioner has necessary documents such as certificate of
registration and certificate of survey granted under the provisions of the said
Act.
6. It is further submitted that the Act, 1985 is squarely applicable to the
facts of the present case. The Act, 1985 came into operation from 1986 to
create an authority which shall have the primary object to regulate and
develop the inland waterways for shipping and navigation. In this regard, it
has been given vast powers, functions and duties in order to secure and
meet its purpose and objectives. To the extent of those functions and
powers, no state government or its officers have any jurisdiction because the
Act, 1985 is a Central Act made under item 24 of the Union List of the
Schedule VII of the Constitution. The petitioner was operating its vessels
from its private ferry after obtaining NOC from the respondent-IWAI and
therefore the respondent no.2 did not have any jurisdiction to stop the
operation of the petitioner's vessels on the ground that it could only ply from
settled ferries and not from any other place. The Central Government has
been emphasizing on developing the Inland waterways transport in
the country as an effective alternate and eco-friendly mode of transport and
has been encouraging agencies to use the national waterways as a means of
transport and for the said reason, the Member (Traffic) IWAI issued a letter
to the Chief Secretary of Jharkhand on 28.07.2017 stating that the district
administration should be directed to permit the petitioner to ply its vessels
on NW-1 for which it had obtained valid permits from the IWAI and
other concerned departments. It would appear from the letter dated
10.01.2018 written by the Divisional Commissioner, Santhal Pargana Division,
Dumka to the respondent no. 2 that the Project Oversight Committee, Patna
had decided after deliberations and discussions to permit the petitioner for
plying its vessels from different places between the ghats of Samda and
Manihari after granting requisite permissions in accordance with law,
however the respondents have acted in the most unreasonable, unfair, and
in high-handed manner without any application of mind and have suspended
the operation of the petitioner's vessels.
7. Learned counsel for the petitioner further submits that from the
objects and reasons of the Inland Waterways Authority of India
(Amendment) Act, 1994, it would appear that the same is limited only to the
issue of settlement of ferries and does not overlap or extend to any other
power or authority of IWAI under the Act, 1985. The said amendment
merely cured the underlying defect caused as per the decision rendered by
the Patna High Court in the case of Baban Choubey and Others Vs. The State
of Bihar (C.W.J.C No. 1181 of 1988) insofar as the said decision was based
on the un-amended section 27(2) of the Act, 1985 which had excluded the
jurisdiction of the State Government and its authorities from the settlement
of public ferries. The said amendment only restored the powers of the State
Government to settle ferries and will not denude the powers of IWAI under
the Act, 1985 with respect to operation and control of private ferries and
other infrastructural facilities as by extending such an interpretation to the
amendment made in Section 27(2) of the Act, 1985 vide Amendment Act,
1994, Sections 2(a), (f) and 14(1)(b) of the Act, 1985 would be rendered
otiose and nugatory. In the present case, the amendment made in Section
27(2) of the Act, 1985 has no relevance as it does not deal with any issue or
any dispute regarding settlement of private ferries. The present case relates
to the matter where the petitioner has requisite permission and NOC from
the competent authority i.e. IWAI to operate its vessels from his own private
place between Samda Ghat and Manihari Ghat. Therefore, the respondent
no. 2 did not have any jurisdiction to stop the operation of the petitioner's
vessels from its private land/ferry. The impugned order passed by the
respondent no.2 is in the teeth of the order dated 31.05.2018 of the
Commissioner, Santhal Pargana Division, Dumka passed in RMA No. 20 of
2018-19 setting aside the order dated 30.05.2017 passed by the respondent
no.2. The learned Commissioner while allowing the appeal of the petitioner
has clearly observed that the petitioner was plying its vessels after obtaining
the permission from the respondent- IWAI and on payment of user charges
under the Act, 1917. The petitioner was plying its private vessels completely
unaffecting the public ferry after obtaining permission from the competent
authority. The Transport Secretary, Government of Jharkhand, also in his
letter dated 02.06.2020 has mentioned that any alteration in the order
passed by the court of Commissioner, Santhal Pargana Division, Dumka in
RMA No. 20 of 2018-19 can only be made by a superior revenue court i.e the
Board of Revenue, Jharkhand, therefore unless the aforesaid order dated
31.05.2018 is quashed and set aside by the superior authority/court of law,
the respondents do not have jurisdiction to pass the impugned orders. The
respondent Sate has filed the revision before the Board of Revenue against
the order dated 31.05.2018 passed by the Commissioner, Dumka in haste
during the pendency of the present writ petition just to save the action of
restraining the petitioner from plying its vessels from its own arranged land.
The respondent no.3 has repeatedly raised the issue of causing revenue loss
by the petitioner to the State for plying vessels, however this aspect is
irrelevant as the petitioner is operating its vessels from its private
land/ferries, the infrastructure for which has been purchased and developed
by the petitioner itself. The Respondents before passing the impugned orders
neither issued any show cause notice to the petitioner nor provided any
opportunity of hearing which is certainly a clear violation of principles of
natural justice, a complete omission to comply the requirements of rule of
audi alteram partem. It is also submitted that the petitioner vide letter no.
JBSW/20-21/21 dated 06.06.2020, informed the respondent no. 2 that it
would suffer inconvenience in loading and unloading of goods (stone
material) from the MMT, Sahibganj and accordingly requested the said
respondent to allow it to operate its vessels from its own arranged land
situated quite near the said terminal. However, the respondent no. 2 did not
permit the petitioner to operate from the private ferry. There is a well-known
legal maxim, 'Lex non cogit ad impossibilia' which means- the law does not
compel a man to do something which he cannot possibly perform.
8. The learned counsel for the petitioner in support of his argument puts
reliance on the judgment of the Hon'ble Supreme Court rendered in the case
of State of Rajasthan Vs. Shamsher Singh reported in (1985) Supp
SCC 416 wherein it has been held that impossibility to comply with a
provision is a just cause to non-compliance and in view of the said ratio, it is
submitted that the respondent no.2 ought to have permitted the petitioner to
use private land for its ferry services after considering its difficulties in
operating the vessels from MMT, Sahibganj.
9. Mr. P.A.S. Pati, learned G.A.-II appearing on behalf of the respondent-
State submits that though the petitioner obtained NOC from the
respondent-IWAI, yet the same was subject to necessary
permission from other concerned authorities/bodies as required, but the
petitioner has neither taken permission from local administration i.e. the
respondent no. 2 or the District Collector, Katihar. Moreover, the petitioner
has not obtained settlement of public ferry service under the Act, 1885 as
well as certificate of registration and certificate of survey of vessels by the
Government of Jharkhand under the Act, 1917. Moreover, it has also not
made any investment for construction of temporary infrastructure to
maintain Ro-Ro operation and for floating jetties on NW-1 in Jharkhand. The
NOC issued by IWAI for plying of vessels was being misused by the
petitioner to avoid taxes to State Government and was also hindering the
operation of valid public ferry service settlement holders permitted by the
competent authority under the Act, 1885 who also paid revenue to the State
Government. Therefore, as an administrative measure, the respondent no. 2
issued the order on 30.05.2017 to stop the movement of vessel/barge on
N.W.-1 between Samda Ghat to Manihari Ghat by the petitioner. Though the
appeal of the petitioner was allowed by the Commissioner, Santhal Pargana
Division, Dumka, vide order dated 31.05.2018 passed in R.M.A. no.
20/18-19, however the State has preferred revision against the same before
the Board of Revenue, Government of Jharkhand which has been registered
as Revenue Revision Case No. 01 of 2021. As per the Act, 1885,
the District Magistrate, Katihar and Deputy Commissioner, Sahibganj are
empowered to settle the ferries on Ganga river. In the year 1987, the Patna
High Court rendered a Judgment in the case of Ranjeet Singh Vs. The State
of Bihar & others (CWJC No. 4881 of 1985) holding inter alia that the
settlement of Sairat & Ghat between Samda Ghat to Manihari Ghat, would be
made by the Deputy Commissioner, Sahibganj and District Collector, Katihar
for a period of two years in rotation and as such the said settlement is being
done rotation wise. It is further submitted that the Joint
Transport Commissioner, Jharkhand, Ranchi, issued letter no. 389 dated
14.05.2018 to the respondent no. 2 annexing a copy of opinion of Law
Department, Government of Jharkhand regarding plying of Ro-Ro vessels by
the petitioner from Samda Nala Ghat to Manihari Ghat wherefrom it would
be clear that Inland Vessels Act, 1917 is not applicable in Santhal Pargana
region. Otherwise also, various provisions of the Act, 1917 make it clear
that the State Government is vested with more power to implement
the provisions of the said Act than the Central Government. In view of
section 27(2) of the Act, 1985, the provisions of the same shall not affect the
provisions of any State or Provincial Act enforced before its commencement
and since the Act, 1885 was enacted much before the Act, 1985, the
settlement of Sairat from Samda Ghat, Sahibganj to Manihar Ghat, Katihar
made as per the provisions of the Act, 1885, is fully legal and justified. It is
also submitted that in view of the provisions of the Act, 1885, the
Commissioner, Santhal Pargana Division, Dumka has also approved the rate
of security deposit regarding settlement of Sairat & Ghat between Samda
nala Ghat to Manihari Ghat for the financial year 2020-21 and 2021-22, vide
letter no. 68 dated 28.05.2020 and as such the respondent no. 2 has rightly
issued order dated 11.06.2020 restraining the petitioner from plying its
vessels from Samda Ghat to Manihari Ghat. The Secretary, Transport
Department, Jharkhand Ranchi, issued letter no. 1541 dated 11.06.2020 to
the respondent no.2 stating that the settlement and operation of
ferry service from Samda Ghat, Sahibganj to Manihari Ghat, Katihar is
a subject of government revenue. Hence, as per law, the operation of ferry
by anyone other than the settlement holder must be stopped. In pursuance
of the aforesaid letter of the Secretary, Department of Transport,
Government of Jharkhand, the respondent no. 2 issued the order as
contained in memo no. 398 dated 11.06.2020 to the petitioner including
other three agencies regarding stoppage of their operation of
ferry services with immediate effect which is legal and proper. It is further
submitted that the respondents have acted as per law, government
guidelines and rules and there is no illegality on their part so as to warrant
any interference of this Court. The respondents have issued the
impugned orders well within their jurisdiction and they have rightly decided
that the vessels can only ply from settled Ghats and not from any other
private ghat. The settlement of ferry ghat is to be made by district
administrations of Sahibganj and Katihar on rotation basis under the Act,
1885 and in such circumstance, operation of private ferry cannot be
allowed. The Bihar Government has also adopted the Act, 1885 vide S.O.
No. 14 dated the 26th March, 2004.
10. Learned G.A.-II further submits that the ferries, inland waterways and
traffic thereon are under exclusive domain of the State legislature. It would
be amply clear that ferries, inland waterways and traffic thereon are the
matters enumerated under item no.13 of list II of 7th Schedule of the
Constitution of India, subject to the provisions of list-I and list-III with regard
to such waterways. Section 14(1)(b) of the Act, 1985 deals with the
condition to provide or to permit setting up of infrastructural facilities for
national waterways but the NoC was issued to set up temporary facility for
development and maintenance of Ro-Ro operation and for floating jetties on
NW-1. The Act, 1885 governs the regulations regarding ferries and traffic
thereof in West Bengal, Jharkhand and Bihar States. The District Magistrate
is the competent authority to decide public ferries and fixation of tariff also.
M/s Varcel Shipping Services Pvt. Ltd., Delhi or other agencies have not
made any investment till date in creating infrastructure on N.W.-1 and they
are trying to misuse the NoCs. to avoid paying revenue to the state
government. It is also submitted that the mud jetties of the petitioner
neither come under the definition of infrastructure nor facilitate national
waterways. It is an admitted fact that Section 14 of the Act, 1985 provides
for functions of the Authority which do not cover ferry services and in fact
Ro-Ro vessels purchased by IWAI are being handed over to the Government
of Jharkhand for operation which is at the final stage of approval as IWAI
has no jurisdiction on ferry services. It is further submitted that notification
no. S.O. 315 dated 27.02.1979 issued in exercise of the power conferred by
Clause (a) of Section 6 of the Act, 1885, the Government of Bihar has
declared certain ferries situated on the river Ganga and Kosi in Katihar
district on the North Bank and Santhal Pargana on the South bank to be
public ferries with the provision to operate powers crafts as well. It would be
evident from Clause (2) of the said notification that there is a list of groups
of public ferries provided for "Sahibganj -Manihari Ferries" wherein at Serial
No. (lxi), "Samdaghatnala Bijli ghat to Manihari ferry ghat" has been
declared as one of the public ferries and no such ferry in the name of
"Samdaghatnala Sakri to Manihari ferry Ghat" exists in the said list.
11. The learned counsel appearing on behalf of the respondent no. 4
submits that the Act, 1985 came into existence on 27th October 1986 for
development and regulation of Inland waterways for shipping and
navigation. The Authority primarily undertakes projects for development and
maintenance of Inland Water Transport (IWT) infrastructure on national
waterways through grant received from Ministry of Shipping, Government of
India. Previously its operations was restricted to a few stretches, however
vide National Waterways Act, 2016, the Union Legislature has declared 111
national waterways including 5 existing national waterways for the purposes
of shipping and navigation under the said Act. The stretch for movement of
vessels from Samda ghat to Manihari ghat is not declared as National
Waterways under the said Act, however the major portion of the said route is
situated under National Waterway No. 1. Thus, IWAI issued letter no.
IWAI/PTN/17(28)/2016-17/45 dated 12-04 2017 upon request of the
petitioner for limited use of National Waterway No.-1 for movement of
vessels by stating therein that IWAI promotes movement of vessels on
National Waterways to utilize the same and help in de-congestion and it had
no objection in plying the vessels by petitioner from Samda ghat to Manihari
ghat in National Waterway No.- 01, for which the petitioner might seek
necessary permission from other concerned authorities/bodies as required. It
is further submitted that the IWT finds place in all the three lists i.e Union
List, State List and Concurrent List of the 7th Schedule of the Constitution of
India. The constitutional provisions for shipping and navigation in the
national waterways with regard to mechanically propelled vessels, fall under
the Union List or List-I and the communications, i.e., roads, bridges, ferries
and other means of communication not specified in the Union List; inland
waterways and traffic thereon, fall under the State List or List-II subject to
the provisions of Union List and Concurrent List with regard to such
waterways. It is also submitted that as per the provisions to make rule on
the subject contained in Union List of the 7th Schedule of the Constitution,
development and regulation with regard to transportation of mechanically
propelled vessels on such waterways which are declared as national
waterways by the Parliament of India, come under the domain of Union
Government while rest of the waterways continue to be under respective
State Governments. The regulation of ferry services is a State subject and
accordingly every State government has formulated rules and regulations for
ferry services and are implementing them. The ferry operations and
regulation thereof continue to remain in the domain of the State
Governments in terms with various provisions of the Act, 1885 which were in
force before commencement of the Act, 1985. The petitioner informed the
respondent no. 4- IWAI that it had taken the vessels tugs etc. on rent and it
was going to operate these vessels to carry stone chips from Samda Nala
Ghat to Manihari Ghat with valid transport challan including the stockiest
licence under minor mineral concessional rules of the respective States and it
owned land nearby river Ganga at both the ends as well as requested to
allow it to operate the above vessels and as such 'No Objection Certificate'
was granted to it for plying the vessels in National Waterway No.-1 vide
letter dated 12.04.2017 subject to seeking necessary permissions from other
concerned authorities/bodies. It is further submitted that as a matter of fact,
the respondent no. 4- IWAI is responsible for development and maintenance
of fairway and to permit setting up of infrastructural facility in National
Waterways for Public usage under Clause 14 (1) of IWAI Act, 1985 but
simultaneously Section 27(2) of the said Act makes it clear that nothing in
the said Act shall affect the operation of the Act, 1917 or any other Central
Act or any State or Provincial Act in force immediately before the
commencement of the same. The authorities of the State are exercising their
power by virtue of the Act, 1885 which is presently applicable and as per
Section 7 of the said Act, the control of all public ferries is vested with the
District Magistrate subject to the direction of the Commissioner and the
involvement of the District Magistrate is necessary for the purpose of
establishment of public ferries and deployment of police officials at ferry
ghats to deal with crowd and also to deal with any other dangerous
conditions.
12. Heard the learned counsel for the parties and perused the materials
available on record. The main contention of the learned counsel for the
petitioner is that the impugned orders have been passed without jurisdiction
as after coming into force of the Act, 1985, only the respondent-IWAI has
the power to regulate the transport on the National Waterways and the
petitioner was plying its vessels after getting necessary permission from the
respondent-IWAI. The learned counsel for the petitioner, by highlighting the
object of introducing the Amendment Act, 1994, has tried to convince this
Court that the said amendment has been introduced only to restore the
power of settlement of ferries to the Deputy Commissioner and as such the
said amendment does not denude the powers of IWAI to operate and control
the private ferries.
13. To appreciate the contention of the learned counsel for the petitioner,
it would be relevant to go through the contents of sub-section (2) of Section
27 of the Act, 1985 which stood prior to the Amendment Act, 1994. The
same is quoted hereinbelow:-
"(2) Nothing in this Act shall affect the operation of the Inland
Vessels Act, 1917 (1 of 1917) or any other Central Act (other
than the Indian Ports Act, 1908 (15 of 1908) and the Major
Port Trusts Act, 1963 [38 of 1963]) or any State or provincial
Act in force immediately before the commencement of this Act
with respect to shipping and navigation on any national
waterway but any jurisdiction, functions, powers or duties
required to be exercised, performed or discharged by the State
Government or any officer or authority subordinate to the
State Government under any such Act in so far as such
jurisdiction, functions, powers or duties relates or relate to
shipping and navigation or such national waterway or any
matter incidental thereto or otherwise connected therewith
shall after such commencement, be exercised, performed or
discharged by the Authority."
14. In the case of Baban Choubey (supra) decided on 17.02.1989, the
learned Division Bench of the Patna High Court while interpreting the
provisions of sub-section (2) of section 27 of the Act, 1985 held as under:-
"31. By reason of the provisions of the said Act, therefore, it is
absolutely clear that neither any private individual nor any
State or public body can undertake any journey on national
waterways without being subject to the control or navigation
as may be made in this behalf either by the Central
Government or the said authority pursuant to or in furtherance
of the aforementioned Acts. It is also pertinent to note that the
right of the State Government to use or permit user of
mechanically propelled vehicles in terms of the provisions of
the Bengal Ferries Act, 1885, or otherwise was responsible to
be done in terms of the entry No. 32 of the Concurrent List. At
the cost of repetition, it may be stated over here again that the
State was not empowered by entry No. 13 of the List II to
make any law with regard to "mechanically propelled vehicles".
However, as noticed therein before, entry No. 32 of the
Concurrent List! being subject to the provisions of List I with
respect to national highways, provisions which would be
deemed to have been made in the Bengal Ferries Act in terms
of the said entry must give way to enactment by the
Parliament in exercise of its legislative power contained in
entries Nos. 24 and 30 of the Union List. However, Sub-section
(2) of Section 7 of the Act 49 of 1982 and Sub-section (2)
of Section 27 of the Act 82 of 1985 saves the operation of all
the State Acts subject to the condition that any jurisdiction,
functions, power or duties required to be exercised performed
or was discharged by the State Government or any officer or
authority subordinate to State Government any such act in so
far as jurisdiction, functions and powers or duties relate to
shipping and navigation or such national waterway or any
matter incidental thereto or otherwise connected therewith is
concerned, the same shall, after the coming into force of the
said Acts, can only be exercised or performed or discharged by
the Central Government or the said Act, as the case may be
depending upon the relevant provisions thereof.
32. In this view of the matter, the jurisdiction of the State or
the District Magistrates conferred upon them in terms of the
provisions of the Bengal Ferries Act, 1885 could only be
discharged or performed either by the Central Government or
by the Inland Waterways Authority of India and by no body
else. In that view of the matter, in my opinion, there cannot be
any doubt that, although operation of Section 9 of the Bengal
Ferries Act is in force so far as the ferry of passengers or
goods by mechanically propelled vehicles are concerned even
after the enactment of the Act of 1982 and Act 82 of 1985 but
neither the State Government nor the District Magistrates,
after the coming into force of the said Act, namely, 27-10-1986
has got any authority, power or jurisdiction in any matter in
relation thereto and all its jurisdiction, functions and powers
are to be exercised, performed or discharged either by the
Central Government or by the said Authority."
15. Subsequently in the year 1994, sub-section (2) of Section 27 of the
Act, 1985 was amended by the Inland Waterways Authority of India
(Amendment) Act, 1994. The object of introducing the said amendment was
given in Bill No. 100 of 1992 which states thus:-
"It has been held by a High Court in a matter relating
to Section 27 of the IWAI Act, 1985 that the authorities
of the State Government cannot exercise powers to
settle ferries across a national waterway. It has been
therefore decided to suitably amend subsection (2) of
Section 27 of the Act, 1985 so as to restore the powers
and functions of the authorities of State Governments
in such matters."
16. After the amendment, now the said sub-section stands as under:-
"(2) Nothing in this Act shall affect the operation of the Inland
Vessels Act, 1917 (1 of 1917) or any other Central Act (other
than the Indian Ports Act, 1908 (15 of 1908) and the Major
Port Trusts Act, 1963 [38 of 1963]) or any State or provincial
Act in force immediately before the commencement of this Act
with respect to shipping and navigation on any national
waterway. "
17. After the amendment made in sub-section (2) of Section 27 of the Act,
1985, now the position is that the provisions of the said Act will not affect
the operation of any Central Act or State Act with respect to shipping and
navigation on any national waterway in force immediately before the
commencement of the said Act.
18. I am of the view that a particular provision of the statute cannot be
interpreted only by going through the object of introducing the said Act
without carefully perusing the particular provision itself. The aims and
objects of any Act merely reflect the brief intention of the legislature for
introducing the same and if the meaning of any particular provision is clear
from its language itself, the same cannot be restricted to the extent of the
language of the aims and objects. Since the amended provision specifically
provides that the provisions of the Act, 1985 will not affect the operation of
any Central or State Act relating to shipping and navigation on any national
waterway which was in force before the commencement of the said Act, the
argument of the learned counsel for the petitioner to the extent that by
virtue of the Amendment Act, 1994 only, the power of the Deputy
Commissioner to settle the ferries has been restored, cannot be accepted.
19. The next limb of the argument of learned counsel for the petitioner is
that the Act, 1885 provides power to the District Magistrate and the
Commissioner with respect to the "public ferries" only and as such the
Deputy Commissioner was not empowered to restrain the petitioner from
plying its vessels from its private ferries. To appreciate the said contention of
learned counsel for the petitioner, I have gone through the provisions of the
Act, 1885. Section 16 of the Act, 1885 provides that no person shall, except
with the sanction of the Magistrate of the District, maintain a ferry to or from
any point within a distance of two miles from the limits of a public ferry. It
has further been provided that the State Government may, for any specified
public ferry, by notification, reduce or increase the said distance of two miles
to such extent as it thinks fit. However, the said condition shall not prevent
persons keeping boats to ply 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 shall apply to the boats which the Magistrate
of the District expressly exempts from the operation of this section. The
petitioner has not specifically averred in the writ petition as to what is the
actual distance between the Samda ghat public ferry and the private ferry of
the petitioner. Moreover, on perusal of Annexure-13 to the writ petition,
which is the letter of the petitioner written to the respondent no.2, it appears
that the petitioner itself has claimed that its private land is very near to MMT
Samda Ghat, Sahibganj. Thus, the argument of the learned counsel for the
petitioner that the respondent no.2 had no jurisdiction to issue the impugned
letter to the petitioner, is not tenable.
20. The learned counsel for the petitioner has assiduously contended that
the petitioner has been granted the required NOC by the respondent- IWAI
to operate its vessels from its own private ghat and as such the respondent-
state authorities has no jurisdiction to stop the said operation.
21. It is evident that the petitioner was plying its vessels from Samda ghat
at Sahibganj to Manihari in Katihar after getting 'No Objection Certificate'
from the respondent-IWAI. The relevant part of the said letter dated
12.04.2017 is quoted hereinbelow:-
"Please refer to your letter dated 12.04.2017 on the above
subject. Inland Waterways Authority of India (IWAI) is
committed for promotion of environment friendly Inland Water
Transport mode. IWAI promotes movement of vessels on
National Waterways to utilize the same and help in
decongestion. Further, IWAI have no objection in plying the
vessels by you from Samdaghat to Manihari in National
Waterway No.-1. However, you may seek necessary permission
from other concerned authorities/bodies as required.
You are requested to deposit Waterways User Charges as per
gazette notification whenever the movement takes place."
22. The respondent no. 2, issued order dated 30.05.2017 stating inter alia
that the petitioner was plying its vessels from the unsettled ghat after
getting permission of the respondent-IWAI, however only the waterway was
mentioned in the said permission without specifying any route and as such
the transportation of the petitioner being illegal was stopped in the interest
of revenue to be paid to the government. In the meantime, the Joint
Transport Commissioner, Jharkhand sought opinion from the Department of
Law and Justice, Government of Jharkhand which opined that the Indian
Vessels Act, 1917 is not applicable in "Santhal Pargana" since the same does
not find mention in the Schedule of the Regulation, 1872. The order dated
30.05.2017 passed by the respondent no.2 was challenged before the
Commissioner, Santhal Pargana Division, Dumka in R.M.A No. 20 of 2018-19
who, vide order dated 31.05.2018, set aside the said order of the respondent
no. 2 observing that the plea of the respondent was completely based on the
opinion of the Department of law and Justice, Government of Jharkhand,
which is in the teeth of the judgment of the Patna High Court delivered in
the matter of Jhaman Mian and Ors. Vs. The State reported in
AIR 1966, Patna 375, wherein it has been held that the restriction was in
conflict with Chapter I of part XI of the Constitution of India. Since the
petitioner has got 'No Objection Certificate' from the IWAI and it has also
paid the charges as certified by IWAI, the order of the Deputy Commissioner
is liable to be set aside.
23. The relevant part of the order dated 31.05.2018 passed by the
Commissioner, Santhal Pargana Division, Dumka is quoted hereinbelow:-
"13. On the basis of discussion, made-above, and
evidence, I have come to a clear conclusion that there is
merit in the appeal and the impugned order dated
30.05.2017 passed by respondent and communicated to
appellant vide memo no. 464 dated 30.05.2017 is liable
to be set aside. In the result, this appeal stands allowed.
The impugned order dated 30.05.2017 passed by
respondent and communicated to appellant vide meo no.
464 dated 30.05.2017 is set-aside. The appellant is
permitted to ply any number of its vessels/Ro-Ro
vessels/Barzs owned by or under valid agreement with
the appellant in National Waterway No. 1 between
Samda Ghat (Sahibganj) to Mahihari Ghat (Katihar,
Bihar). It is made clear that operation of vessels/Barzs
will be done under the Acts/Rules of Union Government
of India relating to Inland water ways transport such as
National water ways Act, 2016. The Inland water ways
authority of India Act, 1985. The Inland Vessels Act,
1917 (as amended upto date) etc. The respondent is
directed to ensure and facilitate the smooth and
uninterrupted plying of vessels of the appellant in
National Waterway No. 1 in general and between Samda
Ghat (Sahibganj, Jharkhand) to Manihari Ghat (Katihar,
Bihar) in particular. "
24. Thereafter, the petitioner plied its vessels for about two years from its
own private ghat on the strength of the NOC granted by the respondent-
IWAI. In the meantime, the respondent-IWAI, vide letter dated 15.05.2020
informed the respondent no. 2 regarding grant of permission to three other
agencies i.e M/s. Varcel Shipping Services Pvt. Ltd. Delhi, M/s. Cambridge
Construction Ltd., Delhi and M/s. Adani Logistics Limited, Ahmedabad to set
up, operate and maintain temporary facilities for Ro-Ro operations and
floating jetties on national waterways as per SOP dated 18.02.2020 and as
such they should be given necessary support to facilitate smooth operations.
However, the said letter was further clarified vide letter dated 05.06.2020
whereby it was informed to the respondent no. 2 that the 'No Objection
Certificate' was given to the said three agencies for operation from Ro-Ro
terminal of IWAI situated at MMT, Sahibganj and it was requested to take
necessary action at the end of the respondent no. 2, so that the aforesaid
permission must be strictly adhered by the respective agencies. Thereafter,
the respondent no. 2 issued letter dated 05.06.2020 to the petitioner as well
as three other agencies by making reference to letter dated 05.06.2020 of
IWAI and directed them to ply the vessels from the MMT terminal, Samda
Ghat, Sahibganj only failing which necessary action would be taken against
them. The petitioner, vide letter dated 06.06.2020, requested the respondent
no. 2 that since loading and unloading was not convenient at MMT terminal,
Sahibganj, it may be permitted to operate its vessels from its own arranged
land which is quite near to MMT Samda Ghat, Sahibganj. It was further
clarified by the respondent- IWAI in the letter dated 11.06.2020 written to
the SDO, Sahibganj, copy of which was also forwarded to the respondent
no.2 stating inter alia that the operation of Ro-Ro service was being provided
from within the area of MMT, Sahibganj as acquired by the IWAI in
coordination with district administration, Sahibganj. Thereafter, Secretary,
Transport Department, Government of Jharkhand, wrote letter dated
11.06.2020 to the respondent no. 2 stating that the settlee of the ferry ghat
from Samda Ghat to Mahihari Ghat had informed that some vessels were
being plied on the basis of the NOC from IWAI and since the said matter
involved revenue, immediate steps should be taken to stop those
transportation of ferries. Thereafter, the impugned order dated 11.06.2020
has been issued by the respondent no. 2 to the petitioner including the three
other agencies to stop transportation of ferries with immediate effect.
25. On perusal of the content of the NOC obtained by the petitioner from
the respondent-IWAI, which has been heavily relied upon by Mr. V.K.Singh,
learned counsel for the petitioner, it appears that the same was issued on
the application of the petitioner to ply its vessels from Samda ghat to
Manihari ghat on National Waterway No.-1 subject to seeking necessary
permission from other concerned authorities/bodies as required. It was not
mentioned in the said NOC that the petitioner was allowed to operate its
vessels from its own private ghat. The petitioner was further directed to
deposit waterways user charges as per gazette notification, whenever
movement takes place. Moreover, it was specified in the NOC itself that the
petitioner would also obtain necessary permission from the authority
concerned.
26. Learned counsel for the petitioner has given stress to the argument
that both the impugned orders dated 11.06.2020 are in utter violation of the
order dated 31.05.2018 passed by the Commissioner, Santhal Pargana
Division, Dumka in R.M.A No. 20 of 2018-19. It is evident from the said order
that the same was passed having taken into consideration that the petitioner
was granted 'No Objection Certificate' from IWAI, as also it had paid
requisite fee for the same. It has however been clarified by the respondent-
IWAI in its counter affidavit that the said 'No Objection Certificate' was
granted to the petitioner as a movement certificate because a large portion
of Samda ghat to Manihari ghat route lies on the NW-1 subject to obtaining
necessary permission from other concerned authorities/bodies. It further
appears from the content of the observation made in para 13 of the said
order of the Commissioner, Santhal Pargana Division, Dumka that the
respondent no. 2 was directed to ensure and facilitate smooth and
uninterrupted plying of vessels of the appellant on the National Waterway
No.1. It was not mentioned in the said order that the petitioner was
permitted to operate its vessels from its own private ghat. Since there was
no specific order conferring right to the petitioner for establishing its own
private ferry ghat, the question of violation of the order dated 31.05.2018
passed by the Commissioner, Santhal Pargana Division, Dumka does not
arise as pursuant to the instruction of the respondent-IWAI, the respondent
no. 2 has issued the impugned letter restraining the petitioner from plying its
vessels from own private ghat. It was not the issue before the Commissioner,
Santhal Pargana Division, Dumka as to whether the petitioner was entitled to
operate vessels from its own/private ghat, rather the Commissioner directed
the respondents to allow the petitioner to ply its vessels on the NW-1 having
taken into consideration of the NOC granted to it and nothing else.
27. The respondent-IWAI has accepted in its counter affidavit that even
after coming into force of the Act, 1985, the Act, 1885 is still in force in view
of the provisions of sub-section 2 of Section 27 of the Act, 1985 and as such
the District Magistrate under the Act, 1885 has power to control the law and
order situation at the ferry ghats. In none of the letters issued either by the
state authorities or by the IWAI, as has been relied upon by the petitioner, it
has been stated that the petitioner was allowed to ply the vessels from
unsettled/private ghat as well as that the charges for the same has been
realised from it.
28. Since a large stretch of Samda ghat to Manihari ghat lies on N.W.-1,
the permission was granted to the petitioner to ply its vessels on N.W.-1.
The impugned orders have been issued against the petitioner only after
receiving instruction from the respondent-IWAI that the plying of vessels was
permissible only from MMT, Sahibganj and the same was to be strictly
adhered to.
29. One of the contentions of the learned counsel for the petitioner is that
the impugned order passed by the respondent no. 2 is without jurisdiction.
In view of the provisions of the Act, 1885, the Deputy Commissioner had the
power to issue the same and the said power has been saved under sub-
section (2) of Section 27 of the Act, 1985. Moreover, the said order has been
issued in conformity with the instruction of the respondent- IWAI whom the
petitioner has accepted to have the power to issue such instruction.
30. Learned counsel for the petitioner has further contended that the
instruction of IWAI was issued only with regard to three other agencies i.e
M/s. Varcel Shipping Services Pvt. Ltd. Delhi, M/s. Cambridge Construction
Ltd., Delhi and M/s. Adani Logistics Limited, Ahmedabad, however the
respondent no.2 has arbitrarily issued impugned notice to the petitioner also
who was plying its vessels after getting NOC from the IWAI as well as in
view of the order dated 31.05.2018 passed by the Commissioner in R.M.A.
No. 20 of 2018-19.
31. On bare perusal of the NOC of the petitioner, it would appear that the
same was issued permitting it to ply its vessels on NW-1, however NOCs to
the three agencies were issued to set up, operate and maintain temporary
facilities for Ro-Ro operations and for floating jetties on NW-1 which was
later on clarified by IWAI to the effect that plying of vessels was permissible
only from MMT, Sahibganj. Since the petitioner has failed to show any
specific permission from IWAI allowing it to ply its vessels from its own/
private ghat, the argument of the learned counsel for the petitioner is not
tenable.
32. The other limb of the argument of the learned counsel for the
petitioner is that since no Ro-Ro facilities are available in the MMT,
Sahibganj, it is impossible for the petitioner to ply its vessels from that
terminal and any direction issued to it to operate its vessels from the MMT,
Sahibganj will virtually amount to do an impossible act. I am of the view that
the said fact itself does not entitle the petitioner to any relief in view of the
fact that the petitioner by paying requisite fee may apply before the
concerned authority to permit it for setting up temporary jetties at the said
MMT, Sahibganj for plying of its vessels.
33. Further contention of the learned counsel for the petitioner is that the
impugned orders have been passed in utter violation of the principles of
natural justice as no opportunity of hearing was provided to it before passing
of such orders.
34. In the case of Municipal Committee, Hoshiarpur Vs. Punjab
State Electricity Board and Others reported in (2010) 13 SCC 216, the
Hon'ble Supreme Court has held as under:-
"31. The principles of natural justice cannot be applied in a
vacuum without reference to the relevant facts and
circumstances of the case. Thus, they cannot be put in a
straitjacket formula.
"13. ... Natural justice is [not an] unruly horse, no
lurking landmine, nor a judicial cure-all. If fairness is
shown by the decision-maker to the man proceeded
against, the form, features and the fundamentals of such
essential processual propriety being conditioned by the
facts and circumstances of each situation, no breach of
natural justice can be complained of."
32. The two rules of natural justice, namely, nemo judex in
causa sua, and audi alteram partem now have a definite
meaning and connotation in law and their contents and
implications are well understood and firmly established; they
are nonetheless non-statutory. The court has to determine
whether the observance of the principles of natural justice was
necessary for a just decision in the facts of the particular case.
(Vide Board of Mining Examination and Chief Inspector of
Mines v. Ramjee [(1977) 2 SCC 256] , SCC p. 262, para
13; Union of India v. Tulsiram Patel [(1985) 3 SCC 398] ;
and ECIL v. B. Karunakar [(1993) 4 SCC 727] .)
33. There may be cases where on admitted and undisputed
facts, only one conclusion is possible. In such an eventuality,
the application of the principles of natural justice would be a
futile exercise and an empty formality. (Vide State of
U.P. v. Om Prakash Gupta [(1969) 3 SCC 775], S.L.
Kapoor v. Jagmohan [(1980) 4 SCC 379] and U.P. Junior
Doctors' Action Committee v. Dr. B. Sheetal Nandwani [(1990)
4 SCC 633].)
35. In the case of Dharampal Satyapal Limited Vs. Deputy
Commissioner of Central Excise and others reported in (2015) 8 SCC
519, the Hon'ble Supreme court has held as under:-
"39. We are not concerned with these aspects in the present
case as the issue relates to giving of notice before taking action.
While emphasising that the principles of natural justice cannot be
applied in straitjacket formula, the aforesaid instances are given.
We have highlighted the jurisprudential basis of adhering to the
principles of natural justice which are grounded on the doctrine
of procedural fairness, accuracy of outcome leading to general
social goals, etc. Nevertheless, there may be situations wherein
for some reason--perhaps because the evidence against the
individual is thought to be utterly compelling--it is felt that a fair
hearing "would make no difference"--meaning that a hearing
would not change the ultimate conclusion reached by the
decision-maker--then no legal duty to supply a hearing arises.
Such an approach was endorsed by Lord Wilberforce
in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All
ER 1278 (HL)] , who said that: (WLR p. 1595 : All ER p. 1294)
"... A breach of procedure ... cannot give [rise to] a remedy in
the courts, unless behind it there is something of substance which
has been lost by the failure. The court does not act in vain."
Relying on these comments, Brandon L.J. opined
in Cinnamond v. British Airports Authority [(1980) 1 WLR
582(WLR p. 593 : All ER p. 377)
"... no one can complain of not being given an opportunity to
make representations if such an opportunity would have availed
him nothing."
In such situations, fair procedures appear to serve no purpose
since the "right" result can be secured without according such
treatment to the individual.
45. Keeping in view the aforesaid principles in mind, even
when we find that there is an infraction of principles of natural
justice, we have to address a further question as to whether any
purpose would be served in remitting the case to the authority to
make fresh demand of amount recoverable, only after issuing
notice to show cause to the appellant. In the facts of the present
case, we find that such an exercise would be totally futile having
regard to the law laid down by this Court in R.C. Tobacco [(2005)
7 SCC 725].
47. In Escorts Farms Ltd. v. Commr. [(2004) 4 SCC 281] , this
Court, while reiterating the position that rules of natural justice
are to be followed for doing substantial justice, held that, at the
same time, it would be of no use if it amounts to completing a
mere ritual of hearing without possibility of any change in the
decision of the case on merits. It was so explained in the
following terms: (SCC pp. 309-10, para 64)
"64. Right of hearing to a necessary party is a valuable
right. Denial of such right is serious breach of statutory
procedure prescribed and violation of rules of natural justice.
In these appeals preferred by the holder of lands and some
other transferees, we have found that the terms of
government grant did not permit transfers of land without
permission of the State as grantor. Remand of cases of a
group of transferees who were not heard, would, therefore,
be of no legal consequence, more so, when on this legal
question all affected parties have got full opportunity of
hearing before the High Court and in this appeal before this
Court. Rules of natural justice are to be followed for doing
substantial justice and not for completing a mere ritual of
hearing without possibility of any change in the decision of
the case on merits. In view of the legal position explained by
us above, we, therefore, refrain from remanding these cases
in exercise of our discretionary powers under Article 136 of
the Constitution of India."
36. The principles of natural justice cannot be applied in straitjacket
formula. There is no legal obligation to provide opportunity of hearing in a
situation where the same will not change the final conclusion to be arrived at
by the decision-maker. A breach of procedure cannot give rise to a remedy in
the courts unless there is something of substance behind it which would be
lost by such failure. The court has to determine whether the observance of
the principles of natural justice was necessary for a just decision in the facts
of a particular case. There may be cases where on admitted and undisputed
facts, only one conclusion is possible. In such an eventuality, the application
of the principles of natural justice would only be a futile exercise and an
empty formality.
37. It is an admitted position in this case that the petitioner was plying the
vessels from its own arranged land without any permission either from the
respondent-IWAI or by the State authorities, rather the same appears to be
in violation of the instruction of the respondent-IWAI specifically issued to
the agencies to setup temporary infrastructure for floating jetties. The said
agencies were also allowed to ply their vessels only from the MMT, Sahibganj
and the respondent no. 2 was requested to ensure strict compliance of the
same. Under such circumstance, I am of the considered view that the
opportunity of hearing to the petitioner would have made no difference in
the decision of the concerned respondents. Moreover, the petitioner has also
failed to show any material fact before this Court which could have affected
the decision of the authorities if the opportunity of hearing was provided to
it.
38. In view of the aforesaid factual and legal position, I do not find any
ground to interfere with the orders as contained in memo no. 1541 and
memo no. 398 both dated 11.06.2020 passed by the Secretary, Department
of Transport, Government of Jharkhand and the respondent no.2 respectively
39. The writ petition is, accordingly, dismissed. However, the petitioner
may apply before the concerned authority of the State permitting it to set up
temporary jetties at MMT, Sahibganj for plying its vessels after paying the
requisite fee for the same.
(Rajesh Shankar, J.)
Ritesh/AFR
