JUDGMENT :

A.K. Rath, J.

This is a plaintiffs’ appeal against affirming judgment. The suit was for declaration that the order dated 25.07.1985 passed by the Collector & District Magistrate, Cuttack, defendant no.2, as null and void and permanent injunction.

2. The plaintiffs instituted a suit in the representative capacity for and on behalf of the Ghatias of Baideswar Ferry Ghat. It was pleaded that the river Mahanadi is flowing from west to east in the Banki Sub-Division near Baideswar. Baideswar is situated in southern side of Mahanadi. Baramba Tahasil is situated opposite to it in the northern side. There is hillock in the river Mahanadi known as Singhanath Mundia. To the south and hillock, jurisdiction of Banki begins. Due to the peculiar geographical situation, different ferry ghats were originated to cross the river from time immemorial. In the southern side of the river Mahanadi from west to east, Baideswar, Sampur, Kurumchain, Ranapur, Bedapur and Karban ferry ghats are existing. All these ghats are private ghats. The same were registered under Sec. 22 under Bengal Ferries Act (Act 1 of 1885) which was published in Calcutta Gazette Part-1-B dated 21.3.1888. Baideswar ferry ghat is a private ferry in Sl. No.1 of the registered maintained in Banki Tahasil office. In the said register the name of forefathers of the plaintiffs are recorded and subsequently some change was made. The area of operation of Baideswar ferry extends from Hati gadani upto Satakhanda on the southern side embankment of river Mahandi. Just on the opposite side the northern embankment of river Mahanadi, area of operation starts from Sankhameri to Bangerisingha. The plaintiffs from the time of their forefathers are operating their country boats within their territorial limits of the private ferry. While matter stood thus, in the year 1982, the defendant no.2 wanted to put Baideswar ferry ghat as well as other ferry ghats of river Mahanadi into auction. Baideswar ferry ghat was not put into auction, since the State Government had not declared the Baideswar ferry ghat as public ferry ghat. Again by order dated 25.07.85, defendant no.2 directed to defendant no.5 to put Baideswar and Gopinathapur ferry ghats to auction in the presence of defendant nos.6 to 8. It was indicated in the order that Baideswar ferry ghat was managed by Gopinathapur G.P., defendant no.7. At no point of time, Baideswar ferry ghat had vested in any G.P. There was no notification under Sec. 6 read with Sec. 22 of Bengal Ferries Act that Baideswar ferry ghat is a public ferry. Challenging the same, the plaintiffs filed an application on 03.09.1985 before defendant no.2 for modification of the order dated 25.07.1985. But no order was passed. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

3. Defendant nos.3 and 6 have filed a written statement denying the assertions made in the plaint. The case of the defendants 3 and 6 is that by order dated 25.7.1985, the Collector, Cuttack put the Gopinathapur ferry ghat of Baramba Block and in another end to Baideswar village of Banki Block in auction. The said order did not relate to Baideswar ghat.

4. Defendant nos.4 and 5 filed a written statement. It was pleaded that Gopinathapur ferry ghat had been transferred to Gopinathapur Gram Panchayat by the S.D.O., Athagarh on 06.03.1969. The said ferry ghat was put to auction every year. The authorised ghatias of Gopinathapur gram panchayat used to ply boats on the ferry ghats over river Mahanadi from village Gopinathapur to Baideswar side. The plaintiffs created disturbance, for which a joint enquiry was made by the S.D.O., Athagarh, S.D.O., Banki and the Collector, Cuttack. Basing on the report, the Collector, Cuttack on 25.07.85 directed that Gopinathapur Gram Panchayat shall maintain both ghats and the income of the ferry ghats shall be apportioned equally between Gopinathpur and Baideswar Gram Panchayat. Twenty per cent of the income shall be invested for maint