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HIGH COURT OF CALCUTTA
G. K. Mitter
PURNENDU BIKASH MAITY - Appellant
Versus
CHAIRMAN, DISTRICT BOARD, MIDNAPORE - Respondent
Civil Revn. Case 3564 Of 1958
Decided On : MARCH 28, 1961
FERRY - PRIVATE FERRY - RIGHT TO PLY - TIDAL NAVIGABLE RIVERS - WEST BENGAL ESTATES ACQUISITION ACT, 1953 - SECTION 5 - WHETHER PRIVATE FERRY IS AN INCUMBRANCE - WHETHER RIGHT TO PLY PRIVATE FERRY VESTED IN THE STATE - BENGAL FERRIES ACT, 1885 - SECTION 16 - WHETHER PRIVATE FERRY CAN BE PLIED WITHIN TWO MILES OF A PUBLIC FERRY - RIGHT OF NAVIGATION ON TIDAL NAVIGABLE RIVERS - WHETHER A RIPARIAN OWNER CAN PLY A FERRY FROM HIS OWN LAND - WHETHER A FERRY IS A FRANCHISE - WHETHER A PERSON CAN BE PREVENTED FROM PLYING A FERRY ON THE GROUND THAT HE IS NOT THE HEAD OF AN UNDIVIDED MITAKSHARA FAMILY.
Fact of the Case:
The petitioner, a citizen of India, claimed to be carrying on the business of a private ferry from Bamanchak to Kakdwip on tidal navigable rivers which flow into the Bay of Bengal. He asserted that his grandfather had been plying a similar business for more than 60 years. The petitioner applied to the District Magistrate, Midnapore, for registration of six boats under the Rules framed under Section 22 of the Bengal Ferries Act between certain points in the district of Midnapore and 24 Parganas. The application was rejected on the ground that all private ferries had vested in the State under Section 5 of the West Bengal Estates Acquisition Act.
Finding of the Court:
The court held that the petitioner had a fundamental right to ply his boats or to carry on a business of plying boats for hire on tidal navigable rivers without let or hindrance by anybody whatsoever. The court further held that the petitioner's right to ply a private ferry was not an incumbrance within the meaning of the West Bengal Estates Acquisition Act, 1953 and that the right to ply a private ferry had not vested in the State. The court also held that the petitioner could ply his private ferry within two miles of a public ferry as there was no prohibition in the Bengal Ferries Act, 1885. The court further held that a riparian owner on the bank of a tidal navigable river could ply a ferry from his own land unless there was some other law to prevent him from doing so. The court also held that a ferry was not a franchise and that a person could not be prevented from plying a ferry on the ground that he was not the head of an undivided Mitakshara family.
Issues: 1. Whether the petitioner had a fundamental right to ply his boats or to carry on a business of plying boats for hire on tidal navigable rivers without let or hindrance by anybody whatsoever. 2. Whether the petitioner's right to ply a private ferry was an incumbrance within the meaning of the West Bengal Estates Acquisition Act, 1953. 3. Whether the right to ply a private ferry had vested in the State. 4. Whether the petitioner could ply his private ferry within two miles of a public ferry. 5. Whether a riparian owner on the bank of a tidal navigable river could ply a ferry from his own land. 6. Whether a ferry was a franchise. 7. Whether a person could be prevented from plying a ferry on the ground that he was not the head of an undivided Mitakshara family.
Ratio Decidendi: 1. The right to ply a private ferry is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. 2. A private ferry is not an incumbrance within the meaning of the West Bengal Estates Acquisition Act, 1953. 3. The right to ply a private ferry does not vest in the State under Section 5 of the West Bengal Estates Acquisition Act, 1953. 4. A private ferry can be plied within two miles of a public ferry as there is no prohibition in the Bengal Ferries Act, 1885. 5. A riparian owner on the bank of a tidal navigable river can ply a ferry from his own land unless there is some other law to prevent him from doing so. 6. A ferry is not a franchise. 7. A person cannot be prevented from plying a ferry on the ground that he is not the head of an undivided Mitakshara family.
Final Decision: The Rule was made absolute, but without any order as to costs.
( 1 ) THIS is an application under Article 226 of the Constitution for the issue of a writ in the nature of mandamus directing the opposite party No. 2, District Magistrate, Midnapore, to register a number of ferry boats maintained and/or to be maintained by the petitioner for running a private ferry from Bamanchak in the district of Midnapore to different places in the district of 24-Parganas, namely, Kakdwip and other places, for a similar writ directing the opposite parties Nos. 2 and 4 to cancel the order dated June 16, 1958 in Ferry miscellaneous case No. 1 of 1958 and for other reliefs.
( 2 ) THE respondents are (i) the Chairman, District Board, Midnapore, (2) the District Magistrate, Midnapore, (3) the District Magisrate, 24-Parganas and (4) the State of West Bengal. The petitioner is a citizen of India claiming to be carrying on the business of a private ferry from Bamanchak to Kakdwip on tidal navigable rivers which flow into the Bay of Bengal. He asserts that his grandfather one Gajendra Nath Matty had been plying a similar business for more than 60 years. It is said that the ferry was discontinued after the cyclone in the year 1942 until it was resumed by the petitioner in 1956. On March 26, 1957, the petitioner applied to the District Magistrate, Midnapore, through the Sub-Divisional Officer, Coutai for registration of six boats under the Rules framed under Section 22 of the Bengal Ferries Act between certain points in the district of Midnapore and 24 Parganas. A copy of this application is Annexure to the petition marked "b". On the objection of the Chairman, District Board, Midnapore, to the registration applied for, the Ferry miscellaneous case No. 1 of 1958 was started in the court of the Additional District Magistrate, Midnapore. The sub-divisional officer of Contai in the District of Midnapore as well as the sub-divisional officer of Diamond-harbour appeared to have taken the view that there would be no objection to the registration of the boats or their plying between the two Districts as prayed for. Ultimately the Additional District Magistrate, Midnapore by his order dated June 16, 1958 rejected the petitioner's application on the ground that all private ferries had vested in the State under Section 5 of the West Bengal Estates Acquisition Act.
( 3 ) THE petitioner moved this Court on October 7, 1958 and obtained a rule calling upon the opposite parties to show cause why the write prayed for should not issue. The delay in making the application is sought to be excused on the ground of illness of the petitioner's father and as no point was made about it by the respondents nothing further need be said on this point. The grounds urged in the application are as follows : (a) As a citizen of India the petitioner has a fundamental right to ply his boats or to carry on a business of plying boats for hire on tidal navigable rivers without let or hindrance by anybody whatsoever; (b) The starting point of the petitioner's Ferry is situate on the petitioner's own land held by himself and his family as a raiyat under the State of West Bengal. The said land is recorded in the last settlement records in the name of the petitioner's father Profulla Kumar Maity. The petitioner along with his father and brothers constitute a Hindu Mitakshara joint family and as such the petitioner is an owner of the plot of land which is the starting point of the ferry. The order of the Additional District Magistrate dated June 16, 1958 is misconceived as the petitioner was and is entitled to retain the said plot of land as a raiyat and a ferry business which is to be carried on from such land does not vest in the State of West Bengal.
( 4 ) TWO affidavits in opposition have been affirmed herein, one by the Chairman, District Board, Midnapore and the other by the Additional District Magistrate, Midnapore. The Additional District Magistrate. Midnapore states in his affidavit : (1) The petitioner is not the head of an un
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