Majnur Ali Vs State of Assam and 6 Ors.

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WA 54/2014
BEFORE
HON’BLE MR JUSTICE A.M.SAPRE, THE CHIEF JUSTICE
HON’BLE MR. JUSTICE UJJAL BHUYAN

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(A.M.Sapre, CJ)

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This is an intra-court appeal under Rule 2(3) of Chapter VA of the Gauhati High
Court Rules filed by the writ petitioner of WP(C) No.6935 of 2013 against the or
der dated 09.01.2014 passed by learned Single Judge.

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By the impugned order, the learned Single Judge disposed of the writ petition in

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the light of the detailed interim order passed on 09.01.2014 in relation to gra
nt of stay. In other words, in the opinion of learned Single Judge, since a deta
il order was already passed on the stay matter on 09.01.2014 and therefore it ha
s virtually resulted in disposal of the writ petition on merits and accordingly
the learned Single Judge disposed of the writ petition finally in the light of o
rder dated 9.1.2014.

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The dispute in the writ petition which has now carried to this appeal relates to
ferry service provided to a ghat known as �Kaplabari point � in River Brahmaputr
a. One of the material question which came up for consideration before the autho
rities concerned and later in the writ petition was what is the distance between

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the two destinations, namely, Larkuchighat and Kaplabari point and secondly bet
ween Mukalmua- Bhanganamari and Kaplabari point. To put it differently, the ques
tion was whether Kaplabari point comes within a distance of 3.2 kilometers from
Larkuchighat and Mukalmua- Bhanganamari ferry service as provided in Rule 35 of
Control and Management of Ferries Rules, 1968.

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Learned Single Judge declined to answer this question in the light of some repor
ts of the authorities on this issue. We also felt that this issue being purely a
question of fact, it cannot be probed in the writ petition.

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We have heard Mr. S. S. Dey, learned counsel for the appellant and Mr. U. Rajban
gshi, learned Standing Counsel, Transport and Mr. S. Katakey, learned counsel ap
pearing for the caveator and have also perused the record of the case with a vie
w to examine as to how effectively the controversy in question can be resolved k
eeping in view the provisions of the Northern India Ferries Act, 1878 and Contro
l and Management of Ferries Rules, 1968 and if so in what manner.

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We are constrained to observe that there are as many as three divergent reports
of different dates by different authorities on the issue of distance between the

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two destinations mentioned above. These reports are dated 19.07.2011, 05.07.201
1 and 07.10.2013 and are submitted by Circle Officer or by Executive Engineer of
the concerned area.

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One thing, which is not in dispute, is that they have given different distances
between the two destinations. We are therefore not inclined to place reliance on

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any of these reports though relied upon by the parties for deciding as to what
is the exact distance of Kaplabari from these two ferry service points. It is fo
r the simple reason that there cannot be variance in distance.

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In our view, this issue has to be decided keeping in view the provisions of the
Northern India Ferries Act, 1878 and in particular Section 13 of the Act which e
mpowers the Magistrate of the district or any such officer as the local Governme
nt may appoint from time to time to deal with issues of this nature.
We, accordingly, direct the Deputy Commissioner of Nalbari to hold an enquiry w
ith the assistance of experts in the field and decide the following :-

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(1)Whether Kaplabari point is within a distance of 3.2 km. from Larkuchi gh
at?

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(2)Whether Kaplabari point is within the distance of 3.2 km. from Mukalmua-
Bhanganamari ferry service?

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(3)What is the exact distance of Kaplabari point to the two points mentione
d in clauses (1) and (2) above?

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Let this enquiry be held by the Deputy Commissioner, Nalbari with the assistance
of experts in the field and accordingly necessary certificate keeping in view t
he provisions of the Northern India Ferries Act, 1878 and Control and Managemen
t of Ferries Rules, 1968 be issued to all authorities/parties and it be then use
d in place of all the previous reports on this sissue.

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Let this enquiry be conducted within a period of one month from the date of subm
ission of this order to the Deputy Commissioner, Nalbari and accordingly necessa
ry steps for awarding ferry service contracts be given to eligible person after
following necessary procedure.

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We also consider it apposite to mention that the present arrangement for the are
a in question be maintained and till report of the Deputy Commissioner is submit
ted and depending upon the certificate issued, the necessary consequential actio
n be taken as stated above immediately thereafter.

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It is with these observations and directions, the appeal succeeds and is allowed
in part. The impugned order is set aside.

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No cost.

Majnur Ali v. State of Assam and 6 Ors.

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Majnur Ali v. State of Assam and 6 Ors.

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