Allowed

Ms Jai Bajrang Walee Stone Works through Its Proprietor Prakash Chandra Yadav v. the State of Jharkhand

Jharkhand HC6 Oct 2021LPA/125/2021

Case brief

AI extract

What is this about?

The High Court of Jharkhand quashed administrative orders restraining a stone company from plying private vessels on National Waterway No. 1, holding the State lacked jurisdiction under the Bengal Ferries Act, 1885 as no rules regulating private ferries were enacted.

What did the court decide?

The impugned orders (Memo No. 1541 and Memo No. 398 dated 11.06.2020) restraining the petitioner from plying vessels are quashed.

Ms Jai Bajrang Walee Stone Works through Its… — Intellectual Property | Jharkhand HC (2021)

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

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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.

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… … Appellant

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Versus

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State of Jharkhand

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The Deputy Commissioner, Sahebganj, Collectorate office situated at Stadium Rd., P.O. & P.S. Sahebganj, Jharkhand 816109

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

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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.

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… … Respondents

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CORAM : HON’BLE THE CHIEF JUSTICE

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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 6^th October, 2021

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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

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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.

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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 :-

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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

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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

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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.

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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 respondentIWAI, 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.

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The writ petitioner, in the meanwhile, preferred an appeal being R.M.A No. 20 of 2018-19 before the

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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

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rules, regulations as well as directives of the respondentIWAI. 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

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MMT, Samda Ghat, Sahibganj.

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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

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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.

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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.

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The further ground has been taken that although, under Section 22 of the Bengal Ferries Act, 1885 the power has

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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.

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The concerned authorities has also not considered the order passed by the Commissioner, Santhal Pargana Division, Dumka in RMA No. 20 of 2018-19.

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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.

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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.

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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.

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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.

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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 7^th 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 .

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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.

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The functions and powers of the authority have been stipulated under Chapter IV as under the provision of Section 14 which reads as under :-

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“14. Functions of the Authority.— ( 1 ) The Authority may —

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( 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;

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

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( 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;

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( 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;

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( 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;

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1[( k ) enter into joint ventures concerning inland shipping by way of equity participation.]

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( 2 ) The Authority may also —

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

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( 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;

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( 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;

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( 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;

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( 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;

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

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( 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.

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( 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.

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( 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.”

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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 :-

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“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 —

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

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( 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),

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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.”

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 :-

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“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:

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―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.‖

¶126

Orders are not like old wine becoming better as they grow older.”

¶127

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.

¶128

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

¶129

24 -

¶130

[ (2010) 10 SCC 677] wherein at paragraph 32 the Hon'ble Apex Court has held as under :-

¶131

“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.”

¶132

In another judgment rendered in State of Orissa and

¶133

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

¶134

view has been taken by the Hon'ble Apex Court at paragraph 37 which is being quoted hereunder :-

¶135

“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.”

¶136

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

¶137

Court in Upen Chandra Gogoi v. State of Assam and Others [(1998) 3 SCC 381] .

¶138

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

¶139

25 -

¶140

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.

¶141

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. 1541 and memo no. 398, both dated 11.06.2020 stand quashed.

¶142

17. Pending interlocuroty application, if any, also stands disposed of.

¶143

(Dr. Ravi Ranjan, C.J.)

¶144

(Sujit Narayan Prasad, J.)

¶145

Birendra/ A.F.R.

Ms Jai Bajrang Walee Stone Works through Its Proprietor Prakash Chandra Yadav v. the State of Jharkhand

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Ms Jai Bajrang Walee Stone Works through Its Proprietor Prakash Chandra Yadav v. the State of Jharkhand

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