Jharkhand High Court

M/S Jai Bajrang Walee Stone Works vs State Of Jharkhand on 6 October, 2021

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     L.P.A. No.125 of 2021
                                ----

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, P.O. Sakrigali, P.S. Taljhari, Sahebganj, Jharkhand-816115.

                                       ...    ...    Appellant
                             Versus
1.   State of Jharkhand
2.   The Deputy Commissioner, Sahebganj,            Collectorate

office situated at Stadium Rd., P.O. & P.S. Sahebganj, Jharkhand 816109

3. The Joint Transport Secretary, Government of Jharkhand, P.O. and P.S. - Dhurwa, Ranchi

4. Inland Waterways Authority of India, Ministry of Shipping, Govt. of India, Regional Office - Gaighat, P.O. & P.S. Gulzaribagh, Patna-900007, Bihar (Head Office - Noida, U.P.

                                       ...    ... Respondents
                              -------
CORAM :           HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Vimal Kirti Singh, Advocate M/s. Ujjal Choudhary, Siddartha, Rahul Kumar, Ashish Aman, Ms. Stuti Sinha & Aarajita Mallick, Advocates For the State : Mr. P.A.S.Pati, G.A.-II For the Resp. No.4 : Mr. Anshuman Pandey, Advocate

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ORAL JUDGMENT Order No. 03 : Dated 6th October, 2021

With the consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and/or video quality.

2. The instant appeal preferred under Clause 10 of the

Letters Patent is directed against the order/judgment dated

23.02.2021 passed by learned Single Judge of this Court in

W.P.(S) No. 1839 of 2020 whereby and whereunder the

learned Single Judge, dismissed the writ petition and thus, has

refused 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 Deputy Commissioner, Sahibganj

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 as also refused to pass any 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 the law to the

concerned authority.

3. The brief facts of the case as per the pleadings made in

the writ petition which require to be referred herein, are as

under :-

The writ petitioner, namely, M/s Jai Bajrang Walee

Stone Works is engaged in the business of stone materials

and waterways transport on National Waterways No.-1

(hereinafter referred as NW-1) for transporting materials

inter-state through its vessels. The writ petitioner had 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.

The concerned respondent granted 'No Objection Certificate'

in favour of the writ petitioner vide its letter No.45 dated

12.04.2017 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. The Deputy Commissioner, Sahibganj 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, 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 in favour of the writ

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.

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, by virtue of a discussion of a meeting held at

Patna on 11.12.2017 with the officials of the respondent-

IWAI, whereby 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 also 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.

The writ petitioner, in the meanwhile, preferred an

appeal being R.M.A No. 20 of 2018-19 before the

Commissioner, Santhal Pargana Division, Dumka against the

order dated 30.05.2017 passed by the respondent no.2,

which was allowed vide order dated 31.05.2018 holding

therein that the operation of vessels by the petitioner would

be carried out as per the provisions of Inland Waterways

Authority of India Act, 1985 (hereinafter referred as "the Act,

1985"), National Waterways Act, 2016, the Inland Vessels

Act, 1917 (as amended up to date) (in short "the Act, 1917")

etc. as also the applicable laws of the Government of India.

The Commissioner, Santhal Pargana Division, Dumka further

held that the writ 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 directed the writ petitioner

vide order as contained in memo no. 362 dated 21.05.2020,

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 Services 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. The respondent no.2, thereafter, 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

writ petitioner wrote a letter to the respondent no. 2 on

06.06.202 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.

The respondent-IWAI came out with an office order 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. The

Secretary, Transport Department, Government of Jharkhand

received an information 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. As such, 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 therein 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. The respondent no.2, on the

same date, i.e., on 11.06.2020, issued another order as

contained in memo No. 398 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. The petitioner, however, made a

request to the Divisional Commissioner, Santhal Pargana

Division, Dumka vide letter dated 14.06.2020 for directing

the respondent no. 2 to comply with the order dated

31.05.2018 passed by the Divisional Commissioner, Santhal

Pargana Division, Dumka and to allow the writ 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.

The writ petitioner, in that backdrop, had approached

this Court by invoking jurisdiction conferred under Article

226 of the Constitution of India questioning the decision of

the State authorities as contained in memo no. 1541 and

memo no. 398, both issued on 11.06.2020, on the ground

that the writ petitioner is plying its own vessels from its own

private ferry and as such, the application of the provision of

the Bengal Ferries Act, 1885 is highly unwarranted since the

same speaks about the public ferries only and since the writ

petitioner is plying the private ferries and, therefore, there is

no application of the provision of Bengal Ferries Act, 1885.

The further ground has been taken that although, under

Section 22 of the Bengal Ferries Act, 1885 the power has

been conferred upon the authority to make rule to deal with

the private ferries but as yet no rule has been framed and,

therefore, the action of the State authorities by dealing the

vessels of the writ petitioner considering it as public ferries is

absolutely illegal and arbitrary.

The concerned authorities has also not considered the

order passed by the Commissioner, Santhal Pargana Division,

Dumka in RMA No. 20 of 2018-19.

On the other hand, the State of Jharkhand has come

out with a plea that though the writ petitioner obtained NOC

from the respondent IWAI yet the same was subject to

necessary permission from the concerned authorities/bodies,

as required, but the petitioner has neither taken permission

from local administration i.e., respondent no.2 the Deputy

Collector, Sahebganj.

The further ground has been agitated that the writ

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.

The NOC issued by the IWAI for plying of vessels is

being misused by the writ petitioner to avoid taxes to the

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 paid revenue to

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the State Government and, as such, as an administrative

measure, the respondent no. 2 issued order on 30.05.2017 to

the petitioner to stop the movement of vessel/barge on N.W.-

1 between Samda Ghat to Manihari Ghat. However, the

appeal of the petitioner against order dated 30.05.2017 was

allowed by the Commissioner, Santhal Pargana Division,

Dumka, vide order dated 31.05.2018 passed in R.M.A.

no.20/18-19 against which revision was preferred before the

Member Board of Revenue, Government of Jharkhand

registered as Revenue Revision Case No.01 of 2021. It is in

this backdrop, the State authorities have taken a decision by

issuing the impugned orders which suffer from no infirmity.

The IWAI also puts its appearance before the learned

Single Judge and filed counter affidavit taking the ground

inter alia that IWAI issued letter on 12.04.2017 upon request

of the writ 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 decongestion 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

writ petitioner might seek necessary permission from other

concerned authorities/bodies as required.

It has further been agitated that the IWT finds place in

all the three lists i.e., Union List, State List and Concurrent

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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 and as such, the

aforesaid provision concern for 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. According to the

respondent-IWAI, the ferries operations continued to remain

under 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 writ petitioner since

had 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

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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.

The learned Single Judge, after appreciating the

argument advanced on behalf of the parties and taking into

consideration the applicable provision of law, has passed an

order by dismissing the writ petition refusing to interfere with

the impugned orders, which is the subject matter of the

present intra-court appeal.

4. Mr. Vimal Kirti Singh, learned counsel appearing for the

writ petitioner/appellant, has raised the issue of

transgressing the jurisdiction by the State authority as

because the Bengal Ferries Act, 1885 is the Act which

governs the field so far as plying of the vessels is concerned.

According to him, as would appear from the provision of

Bengal Ferries Act, 1885 so far as its applicability in the

given facts is concerned which is not applicable since it is the

admitted case that vessels which are being plied is not the

public ferry rather it is a private ferry and when it is a private

ferry there is no question of applicability of the Bengal Ferries

Act, 1885 which is the main limb of argument advanced on

behalf of the State for defending the action taken by the

administrative authority while issuing the impugned order.

The second argument which has been advanced in

assailing the impugned order that the learned Single Judge

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has considered the fact that the question of revenue is

involved and, therefore, the State was prompted to take such

decision but before touching the issue the learned Single

Judge has failed to appreciate about the applicability of the

provisions of Bengal Ferries Act, 1885.

The third argument which has been advanced that when

under the provision of the Act, 1985 the IWAI is the

competent authority to issue No Objection Certificate, basis

upon which the vessels are being carried out from the private

ferries, it is none of the business of the State authorities to

interfere with the same by applying the provisions of Bengal

Ferries Act, 1885.

The fourth argument that has been advanced for assailing the

impugned order is that the learned counsel appearing the State

has argued that the petitioner is misutilizing the No Objection

Certificate issued by IWAI causing the revenue loss to the

authority. It is urged that once the NOC has been issued by the

competent authority under the IWAI Act, it is none of the

business of the State authorities to go into that aspect of the

matter and if at all there is any grievance, it was incumbent

upon the State authorities to bring it to the notice of the

authorities under the IWAI Act but having not done so, rather

the decision has been taken on their own which is highly

arbitrary and illegal.

The fifth argument has been advanced that the NOC has

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been granted subject to seeking necessary permission from

the other concerned authorities/bodies but such necessary

permission has not been granted. Even accepting for the sake

of argument the aforesaid ground, the impugned order has

not been passed on the said ground rather on different

ground, i.e., loss of revenue and once the ground is not reflected

in the impugned orders, learned State counsel cannot be

allowed to agitate such ground.

The seventh ground has been taken about the order

passed by the Divisional Commissioner, Santhal Pargana

Division, Dumka vide memo no. 04 dated 10.01.2018

whereby and whereunder the concerned authority has been

directed to allow the writ petitioner to carry out the business

in terms of the NOC granted by the competent authority

under the IWAI Act but even the aforesaid order passed by

the Divisional Commissioner, Santhal Pargana Division,

Dumka has not been complied with which is nothing but a

colourable exercise of power on behalf of the Deputy

Commissioner, Sahebganj and the authorities of the

Transport Department.

The last ground has been taken that the Transport

Department of the State of Jharkhand has got no jurisdiction

to interfere in the matter of waterways and thereby also there

is transgression of jurisdiction by the Transport Department

of the State of Jharkhand.

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5. Per contra, Mr. P.A.S. Pati, learned G.A.-II, appearing for

the State of Jharkhand, has submitted that although the

competent authority under the IWAI Act has issued No

Objection Certificate which are subject to seeking necessary

permission from other concerned authorities/bodies but no

such permission has been granted and once the permission

has not been granted, it was the duty of the State authority to

look into that aspect of the matter and considering that

aspect of the matter, the impugned orders have been passed

and, therefore, the same cannot be said to be an unjustified

decision by the authority.

The second ground that has been taken by the State of

Jharkhand defending the order passed by the authority, is

about the loss of revenue and taking into consideration that

aspect of the matter, the impugned decision has been taken

and, as such, the same suffer from no infirmity.

6. The respondent-IWAI has been represented by its

counsel Mr. Anshuman Pandey and by taking aid of the

counter affidavit filed on their behalf before the writ court,

argument has been advanced that the NOC has been granted

in favour of the writ petitioner taking into consideration the

fact that the vessels in question were private vessels but

subject to fulfilment of the conditions of the State authorities.

So far as the allegation, basis upon which the impugned

decision has been passed about the loss of revenue, the State

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Government has not made any complaint before the IWAI

regarding reviewing the decision of issuance of NOC.

7. We, after having heard the learned counsel for the

parties and after perusal of the documents available on

record as also the findings recorded by the learned Single

Judge, deem it fit and proper to refer to the statutory provision

which is important to be discussed for proper adjudication of

the lis.

Since the NOC has been granted by the IWAI which has

acted in pursuance to the provisions of IWAI Act, 1985,

therefore, the said statutory provision is necessary to be

discussed.

The functions and powers of the authority have been

stipulated under Chapter IV as under the provision of Section

14 which reads as under :-

"14. Functions of the Authority.--(1) The Authority may--

(a) carry out surveys and investigations for the development, maintenance and better utilisation of the national waterways and the appurtenant land for shipping and navigation and prepare schemes in this behalf;

(b) provide or permit setting up of infrastructural facilities for national waterways;

(c) carry out conservancy measures and training works and do all other acts necessary for the safety and convenience of shipping and navigation and improvement of the national waterways;

(d) control activities such as throwing rubbish, dumping or removal of material, in or from the bed of the national waterways and appurtenant land, in so far as they may affect safe and efficient, shipping and navigation, maintenance of navigable channels, river training and conservancy measures;

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(e) remove or alter any obstruction or impediment in the national waterways and the appurtenant land which may impede the safe navigation or endanger safety of infrastructural facilities or conservancy measures where such obstruction or impediment has been lawfully made or has become lawful by reason of long continuance of such obstruction or impediment or otherwise, after making compensation to person suffering damage by such removal or alteration;

(f) provide for the regulation of navigation and traffic (including the rule of the road) on national waterways;

(g) regulate the construction or alteration of structures on, across or under the national waterways;

(h) disseminate navigational meteorological information about national waterways;

(i) ensure co-ordination of inland water transport on national waterways with other modes of transport; and

(j) establish and maintain pilotage on national waterways;

1[(k) enter into joint ventures concerning inland shipping by way of equity participation.] (2) The Authority may also--

(a) advise the Central Government on matters relating to inland water transport;

(b) study the transport requirement with a view to co-ordinating inland water transport with other modes of transport;

(c) carry out hydrographic surveys and publish river charts;

(d) assist, on such terms and conditions as may be mutually agreed upon, any State Government in formulation and implementation of scheme for inland water transport development;

(e) develop consultancy services and provide such services, on such terms and conditions as may be mutually agreed upon, in India and abroad in relation to planning and development of waterways for shipping and navigation or any facility thereat;

(f) conduct research in matters relating to inland water transport including development of craft design, mechanisation of country crafts, technique of towage, landing and terminal facilities, port installations and survey techniques;

(g) lay down standards for classification of inland waterways;

(h) arrange programme of technical training for inland water transport personnel within and outside the country; and

(i) perform such other functions as may be necessary to carry out the provisions of this Act.

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(3) Any dispute arising out of or concerning the compensation referred to in clause (e) of sub-section (1) shall be determined according to the law relating to like disputes in the case of land required for public purposes.

(4) Every scheme, prepared by the Authority to carry out functions under sub-sections (1) and (2), involving capital expenditure exceeding the amount as may be prescribed, shall be submitted to the Central Government for approval.

(5) The Central Government may either approve the scheme submitted to it under sub-section (4) without modification or with such modifications as it may consider necessary or reject the scheme with directions to the Authority to prepare a fresh scheme according to such directions."

Section 27 is also relevant and, therefore, the same is

also being referred herein, more particularly, sub-section 2

thereof since the said provision stipulates that the provisions

of the aforesaid Act shall be in addition to the provisions of

the Indian Ports Act, 1908 and the Major Port Trusts Act,

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 as would appear

from provision of Section 27 which reads as under :-

"27. Application, etc., of certain laws.--(1) The provisions of this Act shall be in addition to the provisions of the Indian Ports Act, 1908 (15 of 1908) and the Major Port Trusts Act, 1963 (38 of 1963) and in particular nothing in this Act shall affect any jurisdiction, functions, powers or duties required to be exercised, performed or discharged by--

(a) the conservator of any port or by any officer or authority under the Indian Ports Act, 1908 (15 of 1908), or

(b) the Board of Trustees for any major port or by any officer or authority under the Major Port Trusts Act, 1963 (38 of 1963), in or in relation to any portion of an inland waterway (including the national waterway) falling within the limits of such port or major port.

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(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."

8. It is the contention of the State authority that the action

by the State authority has been taken in pursuance to the

State or Provincial Act which was in force immediately before

the commencement of Act, 1985 which is Bengal Ferries Act,

1885.

The Bengal Ferries Act has been enacted in the year

1885 which extends to the States of West Bengal and Bihar

and to that part of the State of Orissa which on the first day

of August 1885 was in existence.

Part-I of the Act, 1885 deals with the ferries having the

provision of power to declare, establish, define and

discontinue public ferries as under Section 6, Section 7

provides about control of public ferries vested in the

Magistrate of the district, Section 8 provides power of

superintendence of public ferries, Section 12 provides for

recovery of arrears from the lessee, Section 13 provides for

power to cancel lease, Section 14 provides surrender of lease

and Section 15 provides power to make rules in regard to

public ferries. However, Section 16 provides restriction of

plying private ferries within two miles of public ferry without

sanction.

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Part-II of the Act, 1885 stipulates provision for private

ferries which contains a provision as under Section 22 which

speaks about power to make rules in regard to private ferries

which has been conferred upon the Commissioner, who, from

time to time, may make rules consistent with this Act, for the

maintenance of order, and for the safety of passengers and

property, at private ferries situated in his division. Rules

made under this section shall be subject to the control of the

State Government, and shall be published in the Official

Gazette in such manner as the State Government directs, and

shall thereupon have the force of law.

Thus, it is evident that the Bengal Ferries Act, 1885

mainly deals with the public ferries. However, there is a provision

to deal with the private ferries but for that the

power has been conferred upon the Commissioner to make

rules.

9. It is the admitted case of the State respondents that as

yet no rule, in exercise of power conferred under Section 22 of

the Bengal Ferries Act, 1885 has been enacted. Therefore, as

on the date, the Bengal Ferries Act, 1885 is applicable only to

the public ferries.

It is further admitted case of the State respondents, the

vessel which is the subject matter of this lis, which is being

plied by the writ petitioner is not a public ferry, rather it is a

private ferry.

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It is further admitted fact that whatever action has been

taken by the State authority which prompted them to come

out with the impugned decisions, which are impugned in the

writ petition, is in the garb of the provision conferred under

the Bengal Ferries Act, 1885.

10. When the State authorities have not been conferred with

any power under the Bengal Ferries Act, 1885 with respect to

private ferries and no such rule has been framed in exercise

of power conferred under Section 22 of the Bengal Ferries

Act, 1885, the action taken by the State authorities in terms

of the aforesaid provision of law, i.e., the Bengal Ferries Act,

1885, would definitely suffer from jurisdictional error.

11. Therefore, we, on the basis of the discussion made

hereinabove, are of the view that the issue of jurisdiction

which ought to have been taken into consideration by the

learned Single Judge and which is the core question to be

adjudicated, having not done, the order passed by the learned

Single Judge suffers from material irregularity.

12. Since we have already come to conclusion about the

jurisdictional error which vitiates the order passed by the

administrative authority, there is no need of going into the

further issues.

13. The other question which has been raised by the State

authority that there is revenue loss and the NOC, although

has been granted by the IWAI under the provision of Act,

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1985 which was subject to the conditions of State authority

but the aforesaid condition has not been fulfilled by the writ

petitioner and, therefore, the impugned decision has been

passed.

We are not impressed with such argument. It is famous

dictum that power is referable to the actual power which the

authorities have been conferred by Statute etc. Bengal Ferries

Act empowers the State Authorities under Section 22 to

frame rules for the purpose but that having not been done,

such limb of argument would be noted only to be rejected.

Apart from the above, it is well settled proposition of law

that the ground which has not been stated in the impugned

decision, cannot be allowed to be developed by way of an

affidavit. The ground which is the basis of taking such

decision is required to be reflected from the bare reading of

the impugned decision as has been held by the Hon‟ble Apex

Court in Mohinder Singh Gill and another v. The Chief Election

Commissioner, New Delhi and others, [(1978) 1 SCC 405] at

paragraph 8 which reads as under :-

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We

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may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:

―Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of 3 explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.‖ Orders are not like old wine becoming better as they grow older."

We, after having considered the proposition laid down by

Hon‟ble Apex Court in Mohinder Singh Gill (Supra), are of

the view that the said ground is also not available to the State

respondents to be agitated and, therefore, the same is

rejected.

14. Further, even the Divisional Commissioner, Santhal

Pargana, Dumka has passed an order under its revisional

authority, although, revision is said to be pending before the

Member, Board of Revenue. We are not making any comment

on that but the fact remains that nothing survives if original

order itself suffers from irreparable lacuna.

The same cannot be made lawful by subsequent

action/development. Reference in this regard may be made to

the judgment rendered by Hon‟ble Apex Court in Ritesh

Tewari and Another v. State of Uttar Pradesh and Others

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[(2010) 10 SCC 677] wherein at paragraph 32 the Hon'ble

Apex Court has held as under :-

"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits."

In another judgment rendered in State of Orissa and

Another v. Mamata Mohanty [(2011) 3 SCC 436], similar

view has been taken by the Hon'ble Apex Court at paragraph

37 which is being quoted hereunder :-

"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."

Similar view has also been taken by the Hon'ble Apex

Court in Upen Chandra Gogoi v. State of Assam and

Others [(1998) 3 SCC 381].

15. We, after having discussed the things in entirety vis-à-

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vis the provisions of law, have considered the order passed by

the learned Single Judge and found therefrom that the

applicability of the Bengal Ferries Act, 1885 has not been

considered which ought to have been considered as also the

ground which has not been taken in the impugned decision

has been considered ignoring the settled position of law as

rendered by Hon‟ble Apex Court in Mohinder Singh Gill

(Supra). Therefore, according to our considered view, the

impugned order passed by the learned Single Judge suffers

from material irregularity. Accordingly, the same is quashed

and set aside.

16. In the result, the instant Letters Patent Appeal is

allowed. In consequence thereof, the writ petition also stands

allowed and the impugned orders as contained in memo no.