S. B. Sinha, J.

1. These two writ applications involving common question of law were heard together and are being disposed of by this common judgment.

2. In these writ applications the question involved inter aiia, is as to whether the Bengal Ferries (Amendment) Ordinance, 1987, which has been repealed and replaced by the Bengal Ferries (Amendment) Act, 1988 (Act VI of 1988) is ultra vires the Constitution.

3. The petitioner in C. W. J. C. No.1181 of 1988, has been running a ferry between Buxar Ramrekha Ghat to Ujiar Ghat since 1984. At all material times, the matter relating to settlement of ferry was and is still regulated and controlled under the Bengal Ferries Act, 1885 (Bengal Act I of 1885 ). The Ferry in question was declared to be a public ferry in terms of a notification, dated the 31st May, 1971, purported to have been issued under section 6 (a) of the said Act. According to the petitioners, the ferry in question is an important one and for management of the same an experience and capable organisation is required with at least 4 big power barges and a number of big boats. In the year 1977, the aforementioned Bengal 1885 was amended by the bengal Ferries (Amendmend) Act, Act, 1977 whereby and whereunder a proviso to Sec.9 was inserted as a result whereof a preferential treatment to Central government or the State Government or Corporations or Undertakings set up by the said Governments was given by carving out an exception in respect of settlement of ferries by ordinary method as contemplated under Sec.9 thereof.

4. By reason of the impugned Ordinance and/or Act a further amendment has been made to proviso to Sec.9 of the Act as a result whereof the preferential treatment extended to the Central Government or the State Government or any Undertaking or bodies thereof has been extended to Boatmens Co-operative societies duly registered under the provisions of the Bihar and Orissa Co-operative societies Act.

5. Before proceeding further, it may be mentioned that after the hearing of the writ applications was over it was brought to the notice of this Court that the impugned Ordinance of 1987 has been repealed and replaced by a legislative act known as Bengal Ferries (Amendment) Act, 1988 which received the assent of the Governor on the 9th February, 1988. The petitioners thereafter filed an application for amendment of the writ applications challenging the provisions of the said Act, 1988 on the self-said grounds. As the said Act has been enacted subsequent to the filing of the writ application in my opinion, the said application for amendment should be allowed and be treated as a part of the writ applications.

6. The Parliament enacted the National Waterway (Allahabad-Halidia stretch of the Ganga, Bhagirathi, Hooghly River) Act, 1982 (act 49 of 1982)which received the assent of the President on 18-10-1982. By reason of the provisions of the said Act, the sai ne was to corne into force on the day the centra! Government notified in the official Gazette in this behalf. It is admitted at the bar that, by reason of the notification issued in terms of the provisions of the said Act, the said Act his come into force with effect from the 27th October, 1986. The Parliament has further enacted National Waterways Authority Act, 1985 (Act 82 of 1985) which received the assent of the President on the 30th december, 1985. The said Act also has come into force in terms of the notification issued by the Central Government as contemplated under Sec.1 (2)thereof with effect from the 27 the October, 1985.

7. The petitioners have stated that the State Government, however by reason of an order as contained in the letter dated the 3rd February, 1988 (Annexure-2) communicated its decision to the Secretary of the respondent No.5 seciety to the effect that, for the year 1987-88, the settlement in respect of the aforementioned ghat would be made in favour of the said Society. According to the petitioners, the respondent No.5, Co-operative