Dismissed

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

Jharkhand HC23 Feb 2021WPC/1839/2020

Case brief

AI extract

What is this about?

Vessel operations from a private ghat were restrained despite an IWAI no-objection certificate for movement on National Waterway No. 1. The court upheld the State authorities' jurisdiction and rejected the natural-justice challenge. It dismissed the petition, while permitting an application to establish temporary jetties at MMT, Sahibganj.

What did the court decide?

Liberty to apply to the concerned State authority for permission to set up temporary jetties at MMT, Sahibganj, on payment of the requisite fee.

Ms Jai Bajrang Walee Stone Works through Its Proprietor Prakash Chandra Yadav Vs the State of Jharkhand — Jharkhand HC (2021) — LawSathi Research

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 1839 of 2020

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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, Sahibganj ,

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... … Petitioner

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Versus

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The State of Jharkhand

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The Deputy Commissioner, Sahibganj

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The Joint Transport Secretary, Government of Jharkhand, Ranchi

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Inland Waterways Authority of India, Ministry of Shipping, Government of India, having its head-office at Noida (Uttar Pradesh) … …Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner	:- Mr. Vimal Kirti Singh, Advocate Mr. Sidharth, Advocate Ms. Stuti Sinha, Advocate
For the State	:- Mr. P.A.S. Pati, G.A.-II
For the Resp. no. 4	:- Mr. Anshuman Pandey, Advocate
	Mr. Ashish Kumar, Advocate

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Order No. 12 Dated: 23.02.2021

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The present case is taken up through video conferencing.

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2. The instant writ petition has been preferred for quashing and setting aside 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 (respondent no.2) 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 (hereinafter to be referred as ‘NW-1’). Further prayer has been made for issuance of 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 law to the concerned authority.

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3. The factual matrix of the case as stated in the writ petition is that the petitioner- M/s Jai Bajrang Walee Stone Works is engaged in the business of stone materials and waterways transport on NW-1 for transporting materials inter-state through its vessels. The petitioner applied for permission before

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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 and the competent authority of the respondent no. 4, vide its letter no. 45 dated 12.04.2017, granted 'No Objection Certificate' to the petitioner 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. However, the Deputy Commissioner, Sahibganj (the respondent no. 2) 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 that 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 to the 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 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. Thereafter, 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, mentioned about discussions in a meeting held at Patna on 11.12.2017 with the officials of the respondent- IWAI, wherein 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

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Ghat at Katihar, Bihar as well as 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. In the meantime, the petitioner preferred an appeal being R.M.A No. 20 of 2018-19 before the Court of Commissioner, Santhal Pargana Division, Dumka against the order dated 30.05.2017 passed by the respondent no. 2. The said appeal was allowed vide order dated 31.05.2018 holding that the operation of vessels by the petitioner would be carried out as per the provisions of Inland Waterways Authority of India Act, 1985 (in short, “the Act, 1985”), National Waterways Act, 2016, the Inland Vessels Act, 1917 (as amended up to date) (in short “the Act, 1917”) etc. and the applicable laws of the Government of India. The Commissioner, Santhal Pargana Division, Dumka further held that the 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 , vide order as contained in memo no. 362 dated 21.05.2020, directed the petitioner 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 rules, regulations as well as directives of the respondent-IWAI. 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 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 NW1. Thereafter, the respondent no. 2, 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

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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 petitioner wrote a letter to the respondent no. 2 on 06.06.2018 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 MMT, Samda Ghat, Sahibganj. An office order was issued by the respondent-IWAI 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. There was intimation to the Secretary, Transport Department, Government of Jharkhand 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. Hence, 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 in the said letter 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. On the same date, i.e., on 11.06.2020, the petitioner received an order as contained in memo No. 398 issued by the respondent no. 2 whereby the operation of the 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. Thereafter, the petitioner vide letter no. JBSW/20-21/22 dated 14.06.2020 requested the Divisional Commissioner, Santhal Pargana Division, Dumka for directing the respondent no. 2 to comply with the order dated 31.05.2018 passed by its court and to allow the petitioner to ply the

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Ro-Ro vessels between Samda Ghat at Sahibganj (Jharkhand) and Manihari Ghat at Katihar (Bihar), however nothing has been done in this regard. Hence, the present writ petition.

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4. The learned counsel for the petitioner submits that after reorganization of the State of Bihar in 2000, Samda Ghat in Sahibganj became part of the State of Jharkhand and Manihari Ghat in Katihar fell under the State of Bihar and therefore the waterways between the two places is now part of interstate waterways (National Waterway No. 01). Hence, only the Central Government and its related departments have got the authority and jurisdiction to regulate inter-state waterways transportation. The Secretary, Department of Transport, Government of Jharkhand and the respondent no. 2 did not have any jurisdiction to issue the impugned orders. It would reveal from the letter dated 11.06.2020 issued by the respondent-IWAI to the SDO, Sahibganj that the MMT, Sahibganj was taken over by the respondent-IWAI and as such no direction, order or any instruction with respect to the said MMT could have been issued by the said respondents. It is further submitted that it would be amply clear from perusal of various provisions of the Bengal Ferries Act, 1885 (in short, “the Act, 1885”) that there is apparent distinction between a “private ferry” and a “public ferry”. The entire Act provides powers to the District Magistrate and the Commissioner with respect to operation, auction, lease, tolls etc. only for public ferries. The said Act provides power only to the Divisional Commissioner with regard to private ferries to the extent that the said authority may come out with rules for maintenance of order and for safety of the passengers and property at the private ferries situated in his Division. In the present case, the respondent no. 2 has restrained the petitioner from operating its vessels from private Ghat which is clearly without jurisdiction even as per the Act, 1885.

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5. Learned counsel for the petitioner also submits that the respondents have put reliance on the notification being S.O. 315, dated 27.02.1979 published in Bihar Gazetter, Extraordinary No. 202, meant for control and management of ferries as well as for declaring them as public ferries under Section 6 of the Act, 1885 whereby some ferries situated on the river Ganga and Kosi in Katihar district on the North Bank and Santhal Pargana on the South Bank were declared to be public ferries and “Sahibganj -Manihari

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ferries” was declared as public ferry, however the petitioner has been granted NOC by the respondent-IWAI for plying vessels not specifically from any ghat enlisted under the said notification. Moreover, the petitioner plies its vessels from “Samdaghat Nala Sakri” to “Manihari Ghat” and the same is not listed under the said notification. Otherwise also, the said notification is not applicable in the State of Jharkhand in view of Section 85 of the Bihar Reorganization Act, since the said notification has not been adopted by the state legislature till date. The entire case of the respondent-State is pivoted on the contention that the Act, 1917 is not applicable in the jurisdiction of Santhal Pargana because it is not included in the Schedule of Santhal Pargana Settlement Regulations, 1872 (in short “the Regulation, 1872”). The Regulation, 1872 has no force or effect on the operation of the Act, 1917 which is a Central Act and extends to entire India except the State of Jammu and Kashmir. An Act of Parliament relating to matters with respect to which, it has exclusive power to legislate overrides any restriction imposed by any law which was in force before coming into force of the Constitution of India. Therefore, the restriction provided under regulation 3(2) of the Regulation 1872 to the effect that no Act would apply to the Santhal Parganas unless those were expressly included therein, has lost its force and effect with respect to the laws made by the Parliament under Chapter I of Part XI of the Constitution. Accordingly, a law made by Parliament is fully applicable to the Santhal Pargana even if the Governor does not direct that it would be so applicable. The only restriction which the Constitution now provides under para 5(1) of the fifth schedule is that the Governor can only expressly notify that any particular Act of Parliament would not apply to a Scheduled Area or would apply with such exceptions or modifications. However, there is no such notification of the Governor in the State of Jharkhand with respect to the Act, 1917. Otherwise also, the Act, 1917 has been enacted primarily for the survey of a mechanically propelled vessel and every part thereof including the hull, boilers, engines and other machinery and all equipments. The provisions of the Act, 1917 are not relevant in the facts of the present case insofar as it is clear from the impugned orders that the respondents have not restrained or stopped the operation of the petitioner’s vessels for any alleged violation and non-compliance of the provisions of the said Act. Moreover the petitioner has necessary documents such as certificate of

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registration and certificate of survey granted under the provisions of the said Act. 6. It is further submitted that the Act, 1985 is squarely applicable to the facts of the present case. The Act, 1985 came into operation from 1986 to create an authority which shall have the primary object to regulate and develop the inland waterways for shipping and navigation. In this regard, it has been given vast powers, functions and duties in order to secure and meet its purpose and objectives. To the extent of those functions and powers, no state government or its officers have any jurisdiction because the Act, 1985 is a Central Act made under item 24 of the Union List of the Schedule VII of the Constitution. The petitioner was operating its vessels from its private ferry after obtaining NOC from the respondent-IWAI and therefore the respondent no.2 did not have any jurisdiction to stop the operation of the petitioner’s vessels on the ground that it could only ply from settled ferries and not from any other place. The Central Government has been emphasizing on developing the Inland waterways transport in the country as an effective alternate and eco-friendly mode of transport and has been encouraging agencies to use the national waterways as a means of transport and for the said reason, the Member (Traffic) IWAI issued a letter to the Chief Secretary of Jharkhand on 28.07.2017 stating that the district administration should be directed to permit the petitioner to ply its vessels on NW-1 for which it had obtained valid permits from the IWAI and other concerned departments. It would appear from the letter dated 10.01.2018 written by the Divisional Commissioner, Santhal Pargana Division, Dumka to the respondent no. 2 that the Project Oversight Committee, Patna had decided after deliberations and discussions to permit the petitioner for plying its vessels from different places between the ghats of Samda and Manihari after granting requisite permissions in accordance with law, however the respondents have acted in the most unreasonable, unfair, and in high-handed manner without any application of mind and have suspended the operation of the petitioner's vessels.

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7. Learned counsel for the petitioner further submits that from the objects and reasons of the Inland Waterways Authority of India (Amendment) Act, 1994, it would appear that the same is limited only to the issue of settlement of ferries and does not overlap or extend to any other

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power or authority of IWAI under the Act, 1985. The said amendment merely cured the underlying defect caused as per the decision rendered by the Patna High Court in the case of Baban Choubey and Others Vs. The State of Bihar (C.W.J.C No. 1181 of 1988) insofar as the said decision was based on the un-amended section 27(2) of the Act, 1985 which had excluded the jurisdiction of the State Government and its authorities from the settlement of public ferries. The said amendment only restored the powers of the State Government to settle ferries and will not denude the powers of IWAI under the Act, 1985 with respect to operation and control of private ferries and other infrastructural facilities as by extending such an interpretation to the amendment made in Section 27(2) of the Act, 1985 vide Amendment Act, 1994, Sections 2(a), (f) and 14(1)(b) of the Act, 1985 would be rendered otiose and nugatory. In the present case, the amendment made in Section 27(2) of the Act, 1985 has no relevance as it does not deal with any issue or any dispute regarding settlement of private ferries. The present case relates to the matter where the petitioner has requisite permission and NOC from the competent authority i.e. IWAI to operate its vessels from his own private place between Samda Ghat and Manihari Ghat. Therefore, the respondent no. 2 did not have any jurisdiction to stop the operation of the petitioner’s vessels from its private land/ferry. The impugned order passed by the respondent no.2 is in the teeth of the order dated 31.05.2018 of the Commissioner, Santhal Pargana Division, Dumka passed in RMA No. 20 of 2018-19 setting aside the order dated 30.05.2017 passed by the respondent no.2. The learned Commissioner while allowing the appeal of the petitioner has clearly observed that the petitioner was plying its vessels after obtaining the permission from the respondent- IWAI and on payment of user charges under the Act, 1917. The petitioner was plying its private vessels completely unaffecting the public ferry after obtaining permission from the competent authority. The Transport Secretary, Government of Jharkhand, also in his letter dated 02.06.2020 has mentioned that any alteration in the order passed by the court of Commissioner, Santhal Pargana Division, Dumka in RMA No. 20 of 2018-19 can only be made by a superior revenue court i.e the Board of Revenue, Jharkhand, therefore unless the aforesaid order dated 31.05.2018 is quashed and set aside by the superior authority/court of law, the respondents do not have jurisdiction to pass the impugned orders. The

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respondent Sate has filed the revision before the Board of Revenue against the order dated 31.05.2018 passed by the Commissioner, Dumka in haste during the pendency of the present writ petition just to save the action of restraining the petitioner from plying its vessels from its own arranged land. The respondent no.3 has repeatedly raised the issue of causing revenue loss by the petitioner to the State for plying vessels, however this aspect is irrelevant as the petitioner is operating its vessels from its private land/ferries, the infrastructure for which has been purchased and developed by the petitioner itself. The Respondents before passing the impugned orders neither issued any show cause notice to the petitioner nor provided any opportunity of hearing which is certainly a clear violation of principles of natural justice, a complete omission to comply the requirements of rule of audi alteram partem. It is also submitted that the petitioner vide letter no. JBSW/20-21/21 dated 06.06.2020, informed the respondent no. 2 that it would suffer inconvenience in loading and unloading of goods (stone material) from the MMT, Sahibganj and accordingly requested the said respondent to allow it to operate its vessels from its own arranged land situated quite near the said terminal. However, the respondent no. 2 did not permit the petitioner to operate from the private ferry. There is a well-known legal maxim, 'Lex non cogit ad impossibilia' which means- the law does not compel a man to do something which he cannot possibly perform. 8. The learned counsel for the petitioner in support of his argument puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of State of Rajasthan Vs. Shamsher Singh reported in (1985) Supp SCC 416 wherein it has been held that impossibility to comply with a provision is a just cause to non-compliance and in view of the said ratio, it is submitted that the respondent no.2 ought to have permitted the petitioner to use private land for its ferry services after considering its difficulties in operating the vessels from MMT, Sahibganj. 9. Mr. P.A.S. Pati, learned G.A.-II appearing on behalf of the respondentState submits that though the petitioner obtained NOC from the respondent-IWAI, yet the same was subject to necessary permission from other concerned authorities/bodies as required, but the petitioner has neither taken permission from local administration i.e. the respondent no. 2 or the District Collector, Katihar. Moreover, the petitioner

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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. Moreover, it has also not made any investment for construction of temporary infrastructure to maintain Ro-Ro operation and for floating jetties on NW-1 in Jharkhand. The NOC issued by IWAI for plying of vessels was being misused by the petitioner to avoid taxes to 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 also paid revenue to the State Government. Therefore, as an administrative measure, the respondent no. 2 issued the order on 30.05.2017 to stop the movement of vessel/barge on N.W.-1 between Samda Ghat to Manihari Ghat by the petitioner. Though the appeal of the petitioner was allowed by the Commissioner, Santhal Pargana Division, Dumka, vide order dated 31.05.2018 passed in R.M.A. no. 20/18-19, however the State has preferred revision against the same before the Board of Revenue, Government of Jharkhand which has been registered as Revenue Revision Case No. 01 of 2021. As per the Act, 1885, the District Magistrate, Katihar and Deputy Commissioner, Sahibganj are empowered to settle the ferries on Ganga river. In the year 1987, the Patna High Court rendered a Judgment in the case of Ranjeet Singh Vs. The State of Bihar & others (CWJC No. 4881 of 1985) holding inter alia that the settlement of Sairat & Ghat between Samda Ghat to Manihari Ghat, would be made by the Deputy Commissioner, Sahibganj and District Collector, Katihar for a period of two years in rotation and as such the said settlement is being done rotation wise. It is further submitted that the Joint Transport Commissioner, Jharkhand, Ranchi, issued letter no. 389 dated 14.05.2018 to the respondent no. 2 annexing a copy of opinion of Law Department, Government of Jharkhand regarding plying of Ro-Ro vessels by the petitioner from Samda Nala Ghat to Manihari Ghat wherefrom it would be clear that Inland Vessels Act, 1917 is not applicable in Santhal Pargana region. Otherwise also, various provisions of the Act, 1917 make it clear that the State Government is vested with more power to implement the provisions of the said Act than the Central Government. In view of section 27(2) of the Act, 1985, the provisions of the same shall not affect the provisions of any State or Provincial Act enforced before its commencement

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and since the Act, 1885 was enacted much before the Act, 1985, the settlement of Sairat from Samda Ghat, Sahibganj to Manihar Ghat, Katihar made as per the provisions of the Act, 1885, is fully legal and justified. It is also submitted that in view of the provisions of the Act, 1885, the Commissioner, Santhal Pargana Division, Dumka has also approved the rate of security deposit regarding settlement of Sairat & Ghat between Samda nala Ghat to Manihari Ghat for the financial year 2020-21 and 2021-22, vide letter no. 68 dated 28.05.2020 and as such the respondent no. 2 has rightly issued order dated 11.06.2020 restraining the petitioner from plying its vessels from Samda Ghat to Manihari Ghat. The Secretary, Transport Department, Jharkhand Ranchi, issued letter no. 1541 dated 11.06.2020 to the respondent no.2 stating that the settlement and operation of ferry service from Samda Ghat, Sahibganj to Manihari Ghat, Katihar is a subject of government revenue. Hence, as per law, the operation of ferry by anyone other than the settlement holder must be stopped. In pursuance of the aforesaid letter of the Secretary, Department of Transport, Government of Jharkhand, the respondent no. 2 issued the order as contained in memo no. 398 dated 11.06.2020 to the petitioner including other three agencies regarding stoppage of their operation of ferry services with immediate effect which is legal and proper. It is further submitted that the respondents have acted as per law, government guidelines and rules and there is no illegality on their part so as to warrant any interference of this Court. The respondents have issued the impugned orders well within their jurisdiction and they have rightly decided that the vessels can only ply from settled Ghats and not from any other private ghat. The settlement of ferry ghat is to be made by district administrations of Sahibganj and Katihar on rotation basis under the Act, 1885 and in such circumstance, operation of private ferry cannot be allowed. The Bihar Government has also adopted the Act, 1885 vide S.O. No. 14 dated the 26th March, 2004.

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10. Learned G.A.-II further submits that the ferries, inland waterways and traffic thereon are under exclusive domain of the State legislature. It would be amply clear that ferries, inland waterways and traffic thereon are the matters enumerated under item no.13 of list II of 7^th Schedule of the Constitution of India, subject to the provisions of list-I and list-III with regard

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to such waterways. Section 14(1)(b) of the Act, 1985 deals with the condition to provide or to permit setting up of infrastructural facilities for national waterways but the NoC was issued to set up temporary facility for development and maintenance of Ro-Ro operation and for floating jetties on NW-1. The Act, 1885 governs the regulations regarding ferries and traffic thereof in West Bengal, Jharkhand and Bihar States. The District Magistrate is the competent authority to decide public ferries and fixation of tariff also. M/s Varcel Shipping Services Pvt. Ltd., Delhi or other agencies have not made any investment till date in creating infrastructure on N.W.-1 and they are trying to misuse the NoCs. to avoid paying revenue to the state government. It is also submitted that the mud jetties of the petitioner neither come under the definition of infrastructure nor facilitate national waterways. It is an admitted fact that Section 14 of the Act, 1985 provides for functions of the Authority which do not cover ferry services and in fact Ro-Ro vessels purchased by IWAI are being handed over to the Government of Jharkhand for operation which is at the final stage of approval as IWAI has no jurisdiction on ferry services. It is further submitted that notification no. S.O. 315 dated 27.02.1979 issued in exercise of the power conferred by Clause (a) of Section 6 of the Act, 1885, the Government of Bihar has declared certain ferries situated on the river Ganga and Kosi in Katihar district on the North Bank and Santhal Pargana on the South bank to be public ferries with the provision to operate powers crafts as well. It would be evident from Clause (2) of the said notification that there is a list of groups of public ferries provided for “Sahibganj -Manihari Ferries” wherein at Serial No. (lxi), “Samdaghatnala Bijli ghat to Manihari ferry ghat” has been declared as one of the public ferries and no such ferry in the name of “Samdaghatnala Sakri to Manihari ferry Ghat” exists in the said list. 11. The learned counsel appearing on behalf of the respondent no. 4 submits that the Act, 1985 came into existence on 27th October 1986 for development and regulation of Inland waterways for shipping and navigation. The Authority primarily undertakes projects for development and maintenance of Inland Water Transport (IWT) infrastructure on national waterways through grant received from Ministry of Shipping, Government of India. Previously its operations was restricted to a few stretches, however vide National Waterways Act, 2016, the Union Legislature has declared 111

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national waterways including 5 existing national waterways for the purposes of shipping and navigation under the said Act. The stretch for movement of vessels from Samda ghat to Manihari ghat is not declared as National Waterways under the said Act, however the major portion of the said route is situated under National Waterway No. 1. Thus, IWAI issued letter no. IWAI/PTN/17(28)/2016-17/45 dated 12-04 2017 upon request of the 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 de-congestion 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 petitioner might seek necessary permission from other concerned authorities/bodies as required. It is further submitted that the IWT finds place in all the three lists i.e Union List, State List and Concurrent 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. It is also submitted that as per the provisions to make rule on the subject contained in Union List of the 7^th Schedule of the Constitution, 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, come under the domain of Union Government while rest of the waterways continue to be under respective State Governments. The regulation of ferry services is a State subject and accordingly every State government has formulated rules and regulations for ferry services and are implementing them. The ferry operations and regulation thereof continue to remain in 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 petitioner 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

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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 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. It is further submitted that as a matter of fact, the respondent no. 4- IWAI is responsible for development and maintenance of fairway and to permit setting up of infrastructural facility in National Waterways for Public usage under Clause 14 (1) of IWAI Act, 1985 but simultaneously Section 27(2) of the said Act makes it clear that nothing in the said Act shall affect the operation of the Act, 1917 or any other Central Act or any State or Provincial Act in force immediately before the commencement of the same. The authorities of the State are exercising their power by virtue of the Act, 1885 which is presently applicable and as per Section 7 of the said Act, the control of all public ferries is vested with the District Magistrate subject to the direction of the Commissioner and the involvement of the District Magistrate is necessary for the purpose of establishment of public ferries and deployment of police officials at ferry ghats to deal with crowd and also to deal with any other dangerous conditions.

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12. Heard the learned counsel for the parties and perused the materials available on record. The main contention of the learned counsel for the petitioner is that the impugned orders have been passed without jurisdiction as after coming into force of the Act, 1985, only the respondent-IWAI has the power to regulate the transport on the National Waterways and the petitioner was plying its vessels after getting necessary permission from the respondent-IWAI. The learned counsel for the petitioner, by highlighting the object of introducing the Amendment Act, 1994, has tried to convince this Court that the said amendment has been introduced only to restore the power of settlement of ferries to the Deputy Commissioner and as such the said amendment does not denude the powers of IWAI to operate and control the private ferries.

¶48

13. To appreciate the contention of the learned counsel for the petitioner, it would be relevant to go through the contents of sub-section (2) of Section 27 of the Act, 1985 which stood prior to the Amendment Act, 1994. The

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same is quoted hereinbelow:-

¶51

“(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 but any jurisdiction, functions, powers or duties required to be exercised, performed or discharged by the State Government or any officer or authority subordinate to the State Government under any such Act in so far as such jurisdiction, functions, powers or duties relates or relate to shipping and navigation or such national waterway or any matter incidental thereto or otherwise connected therewith shall after such commencement, be exercised, performed or discharged by the Authority.”

¶52

14. In the case of Baban Choubey (supra) decided on 17.02.1989, the learned Division Bench of the Patna High Court while interpreting the provisions of sub-section (2) of section 27 of the Act, 1985 held as under:-

¶53

“31. By reason of the provisions of the said Act, therefore, it is absolutely clear that neither any private individual nor any State or public body can undertake any journey on national waterways without being subject to the control or navigation as may be made in this behalf either by the Central Government or the said authority pursuant to or in furtherance of the aforementioned Acts. It is also pertinent to note that the right of the State Government to use or permit user of mechanically propelled vehicles in terms of the provisions of the Bengal Ferries Act, 1885, or otherwise was responsible to be done in terms of the entry No. 32 of the Concurrent List. At the cost of repetition, it may be stated over here again that the State was not empowered by entry No. 13 of the List II to make any law with regard to "mechanically propelled vehicles". However, as noticed therein before, entry No. 32 of the Concurrent List! being subject to the provisions of List I with respect to national highways, provisions which would be deemed to have been made in the Bengal Ferries Act in terms of the said entry must give way to enactment by the Parliament in exercise of its legislative power contained in entries Nos. 24 and 30 of the Union List. However, Sub-section (2) of Section 7 of the Act 49 of 1982 and Sub-section (2) of Section 27 of the Act 82 of 1985 saves the operation of all the State Acts subject to the condition that any jurisdiction, functions, power or duties required to be exercised performed or was discharged by the State Government or any officer or authority subordinate to State Government any such act in so far as jurisdiction, functions and powers or duties relate to shipping and navigation or such national waterway or any matter incidental thereto or otherwise connected therewith is concerned, the same shall, after the coming into force of the said Acts, can only be exercised or performed or discharged by the Central Government or the said Act, as the case may be depending upon the relevant provisions thereof. 32. In this view of the matter, the jurisdiction of the State or

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the District Magistrates conferred upon them in terms of the provisions of the Bengal Ferries Act, 1885 could only be discharged or performed either by the Central Government or by the Inland Waterways Authority of India and by no body else. In that view of the matter, in my opinion, there cannot be any doubt that, although operation of Section 9 of the Bengal Ferries Act is in force so far as the ferry of passengers or goods by mechanically propelled vehicles are concerned even after the enactment of the Act of 1982 and Act 82 of 1985 but neither the State Government nor the District Magistrates, after the coming into force of the said Act, namely, 27-10-1986 has got any authority, power or jurisdiction in any matter in relation thereto and all its jurisdiction, functions and powers are to be exercised, performed or discharged either by the Central Government or by the said Authority.”

¶56

15. Subsequently in the year 1994, sub-section (2) of Section 27 of the Act, 1985 was amended by the Inland Waterways Authority of India (Amendment) Act, 1994. The object of introducing the said amendment was given in Bill No. 100 of 1992 which states thus:-

¶57

“It has been held by a High Court in a matter relating to Section 27 of the IWAI Act, 1985 that the authorities of the State Government cannot exercise powers to settle ferries across a national waterway. It has been therefore decided to suitably amend subsection (2) of Section 27 of the Act, 1985 so as to restore the powers and functions of the authorities of State Governments in such matters.”

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16. After the amendment, now the said sub-section stands as under:-

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17. After the amendment made in sub-section (2) of Section 27 of the Act, 1985, now the position is that the provisions of the said Act will not affect the operation of any Central Act or State Act with respect to shipping and navigation on any national waterway in force immediately before the commencement of the said Act.

¶61

18. I am of the view that a particular provision of the statute cannot be interpreted only by going through the object of introducing the said Act without carefully perusing the particular provision itself. The aims and objects of any Act merely reflect the brief intention of the legislature for introducing the same and if the meaning of any particular provision is clear

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from its language itself, the same cannot be restricted to the extent of the language of the aims and objects. Since the amended provision specifically provides that the provisions of the Act, 1985 will not affect the operation of any Central or State Act relating to shipping and navigation on any national waterway which was in force before the commencement of the said Act, the argument of the learned counsel for the petitioner to the extent that by virtue of the Amendment Act, 1994 only, the power of the Deputy Commissioner to settle the ferries has been restored, cannot be accepted. 19. The next limb of the argument of learned counsel for the petitioner is that the Act, 1885 provides power to the District Magistrate and the Commissioner with respect to the “public ferries” only and as such the Deputy Commissioner was not empowered to restrain the petitioner from plying its vessels from its private ferries. To appreciate the said contention of learned counsel for the petitioner, I have gone through the provisions of the Act, 1885. Section 16 of the Act, 1885 provides that no person shall, except with the sanction of the Magistrate of the District, maintain a ferry to or from any point within a distance of two miles from the limits of a public ferry. It has further been provided that the State Government may, for any specified public ferry, by notification, reduce or increase the said distance of two miles to such extent as it thinks fit. However, the said condition shall not prevent persons keeping boats to ply between two places, one of which is without, and one within, the said limits, when the distance between such two places is not less than three miles, or shall apply to the boats which the Magistrate of the District expressly exempts from the operation of this section. The petitioner has not specifically averred in the writ petition as to what is the actual distance between the Samda ghat public ferry and the private ferry of the petitioner. Moreover, on perusal of Annexure-13 to the writ petition, which is the letter of the petitioner written to the respondent no.2, it appears that the petitioner itself has claimed that its private land is very near to MMT Samda Ghat, Sahibganj. Thus, the argument of the learned counsel for the petitioner that the respondent no.2 had no jurisdiction to issue the impugned letter to the petitioner, is not tenable. 20. The learned counsel for the petitioner has assiduously contended that the petitioner has been granted the required NOC by the respondent- IWAI to operate its vessels from its own private ghat and as such the respondent-

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state authorities has no jurisdiction to stop the said operation.

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21. It is evident that the petitioner was plying its vessels from Samda ghat at Sahibganj to Manihari in Katihar after getting ‘No Objection Certificate’ from the respondent-IWAI. The relevant part of the said letter dated 12.04.2017 is quoted hereinbelow:-

¶67

“Please refer to your letter dated 12.04.2017 on the above subject. Inland Waterways Authority of India (IWAI) is committed for promotion of environment friendly Inland Water Transport mode. IWAI promotes movement of vessels on National Waterways to utilize the same and help in decongestion. Further, IWAI have no objection in plying the vessels by you from Samdaghat to Manihari in National Waterway No.-1. However, you may seek necessary permission from other concerned authorities/bodies as required. You are requested to deposit Waterways User Charges as per gazette notification whenever the movement takes place.”

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22. The respondent no. 2, issued order dated 30.05.2017 stating inter alia that the petitioner was plying its vessels from the unsettled ghat after getting permission of the respondent-IWAI, however only the waterway was mentioned in the said permission without specifying any route and as such the transportation of the petitioner being illegal was stopped in the interest of revenue to be paid to the government. In the meantime, the Joint Transport Commissioner, Jharkhand sought opinion from the Department of Law and Justice, Government of Jharkhand which opined that the Indian Vessels Act, 1917 is not applicable in “Santhal Pargana” since the same does not find mention in the Schedule of the Regulation, 1872. The order dated 30.05.2017 passed by the respondent no.2 was challenged before the Commissioner, Santhal Pargana Division, Dumka in R.M.A No. 20 of 2018-19 who, vide order dated 31.05.2018, set aside the said order of the respondent no. 2 observing that the plea of the respondent was completely based on the opinion of the Department of law and Justice, Government of Jharkhand, which is in the teeth of the judgment of the Patna High Court delivered in the matter of Jhaman Mian and Ors. Vs. The State reported in AIR 1966, Patna 375 , wherein it has been held that the restriction was in conflict with Chapter I of part XI of the Constitution of India. Since the petitioner has got ‘No Objection Certificate’ from the IWAI and it has also paid the charges as certified by IWAI, the order of the Deputy Commissioner is liable to be set aside.

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23. The relevant part of the order dated 31.05.2018 passed by the Commissioner, Santhal Pargana Division, Dumka is quoted hereinbelow:-

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“13. On the basis of discussion, made-above, and evidence, I have come to a clear conclusion that there is merit in the appeal and the impugned order dated 30.05.2017 passed by respondent and communicated to appellant vide memo no. 464 dated 30.05.2017 is liable to be set aside. In the result, this appeal stands allowed. The impugned order dated 30.05.2017 passed by respondent and communicated to appellant vide meo no. 464 dated 30.05.2017 is set-aside. The appellant is permitted to ply any number of its vessels/Ro-Ro vessels/Barzs owned by or under valid agreement with the appellant in National Waterway No. 1 between Samda Ghat (Sahibganj) to Mahihari Ghat (Katihar, Bihar). It is made clear that operation of vessels/Barzs will be done under the Acts/Rules of Union Government of India relating to Inland water ways transport such as National water ways Act, 2016. The Inland water ways authority of India Act, 1985. The Inland Vessels Act, 1917 (as amended upto date) etc. The respondent is directed to ensure and facilitate the smooth and uninterrupted plying of vessels of the appellant in National Waterway No. 1 in general and between Samda Ghat (Sahibganj, Jharkhand) to Manihari Ghat (Katihar, Bihar) in particular. “

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24. Thereafter, the petitioner plied its vessels for about two years from its own private ghat on the strength of the NOC granted by the respondentIWAI. In the meantime, the respondent-IWAI, vide letter dated 15.05.2020 informed the respondent no. 2 regarding grant of permission to three other agencies i.e M/s. Varcel Shipping Services Pvt. Ltd. Delhi, M/s. Cambridge Construction Ltd., Delhi and M/s. Adani Logistics Limited, Ahmedabad to set up, operate and maintain temporary facilities for Ro-Ro operations and floating jetties on national waterways as per SOP dated 18.02.2020 and as such they should be given necessary support to facilitate smooth operations. However, the said letter was further clarified vide letter dated 05.06.2020 whereby it was informed to the respondent no. 2 that the ‘No Objection Certificate’ was given to the said three agencies for operation from Ro-Ro terminal of IWAI situated at MMT, Sahibganj and it was requested to take necessary action at the end of the respondent no. 2, so that the aforesaid permission must be strictly adhered by the respective agencies. Thereafter, the respondent no. 2 issued letter dated 05.06.2020 to the petitioner as well

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as three other agencies by making reference to letter dated 05.06.2020 of IWAI and directed them to ply the vessels from the MMT terminal, Samda Ghat, Sahibganj only failing which necessary action would be taken against them. The petitioner, vide letter dated 06.06.2020, requested the respondent no. 2 that since loading and unloading was not convenient at MMT terminal, Sahibganj, it may be permitted to operate its vessels from its own arranged land which is quite near to MMT Samda Ghat, Sahibganj. It was further clarified by the respondent- IWAI in the letter dated 11.06.2020 written to the SDO, Sahibganj, copy of which was also forwarded to the respondent no.2 stating inter alia that the operation of Ro-Ro service was being provided from within the area of MMT, Sahibganj as acquired by the IWAI in coordination with district administration, Sahibganj. Thereafter, Secretary, Transport Department, Government of Jharkhand, wrote letter dated 11.06.2020 to the respondent no. 2 stating that the settlee of the ferry ghat from Samda Ghat to Mahihari Ghat had informed that some vessels were being plied on the basis of the NOC from IWAI and since the said matter involved revenue, immediate steps should be taken to stop those transportation of ferries. Thereafter, the impugned order dated 11.06.2020 has been issued by the respondent no. 2 to the petitioner including the three other agencies to stop transportation of ferries with immediate effect. 25. On perusal of the content of the NOC obtained by the petitioner from the respondent-IWAI, which has been heavily relied upon by Mr. V.K.Singh, learned counsel for the petitioner, it appears that the same was issued on the application of the petitioner to ply its vessels from Samda ghat to Manihari ghat on National Waterway No.-1 subject to seeking necessary permission from other concerned authorities/bodies as required. It was not mentioned in the said NOC that the petitioner was allowed to operate its vessels from its own private ghat. The petitioner was further directed to deposit waterways user charges as per gazette notification, whenever movement takes place. Moreover, it was specified in the NOC itself that the petitioner would also obtain necessary permission from the authority concerned.

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26. Learned counsel for the petitioner has given stress to the argument that both the impugned orders dated 11.06.2020 are in utter violation of the order dated 31.05.2018 passed by the Commissioner, Santhal Pargana

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Division, Dumka in R.M.A No. 20 of 2018-19. It is evident from the said order that the same was passed having taken into consideration that the petitioner was granted ‘No Objection Certificate’ from IWAI, as also it had paid requisite fee for the same. It has however been clarified by the respondentIWAI in its counter affidavit that the said ‘No Objection Certificate’ was granted to the petitioner as a movement certificate because a large portion of Samda ghat to Manihari ghat route lies on the NW-1 subject to obtaining necessary permission from other concerned authorities/bodies. It further appears from the content of the observation made in para 13 of the said order of the Commissioner, Santhal Pargana Division, Dumka that the respondent no. 2 was directed to ensure and facilitate smooth and uninterrupted plying of vessels of the appellant on the National Waterway No.1. It was not mentioned in the said order that the petitioner was permitted to operate its vessels from its own private ghat. Since there was no specific order conferring right to the petitioner for establishing its own private ferry ghat, the question of violation of the order dated 31.05.2018 passed by the Commissioner, Santhal Pargana Division, Dumka does not arise as pursuant to the instruction of the respondent-IWAI, the respondent no. 2 has issued the impugned letter restraining the petitioner from plying its vessels from own private ghat. It was not the issue before the Commissioner, Santhal Pargana Division, Dumka as to whether the petitioner was entitled to operate vessels from its own/private ghat, rather the Commissioner directed the respondents to allow the petitioner to ply its vessels on the NW-1 having taken into consideration of the NOC granted to it and nothing else.

¶78

27. The respondent-IWAI has accepted in its counter affidavit that even after coming into force of the Act, 1985, the Act, 1885 is still in force in view of the provisions of sub-section 2 of Section 27 of the Act, 1985 and as such the District Magistrate under the Act, 1885 has power to control the law and order situation at the ferry ghats. In none of the letters issued either by the state authorities or by the IWAI, as has been relied upon by the petitioner, it has been stated that the petitioner was allowed to ply the vessels from unsettled/private ghat as well as that the charges for the same has been realised from it.

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28. Since a large stretch of Samda ghat to Manihari ghat lies on N.W.-1, the permission was granted to the petitioner to ply its vessels on N.W.-1.

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The impugned orders have been issued against the petitioner only after receiving instruction from the respondent-IWAI that the plying of vessels was permissible only from MMT, Sahibganj and the same was to be strictly adhered to.

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29. One of the contentions of the learned counsel for the petitioner is that the impugned order passed by the respondent no. 2 is without jurisdiction. In view of the provisions of the Act, 1885, the Deputy Commissioner had the power to issue the same and the said power has been saved under subsection (2) of Section 27 of the Act, 1985. Moreover, the said order has been issued in conformity with the instruction of the respondent- IWAI whom the petitioner has accepted to have the power to issue such instruction.

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30. Learned counsel for the petitioner has further contended that the instruction of IWAI was issued only with regard to three other agencies i.e M/s. Varcel Shipping Services Pvt. Ltd. Delhi, M/s. Cambridge Construction Ltd., Delhi and M/s. Adani Logistics Limited, Ahmedabad, however the respondent no.2 has arbitrarily issued impugned notice to the petitioner also who was plying its vessels after getting NOC from the IWAI as well as in view of the order dated 31.05.2018 passed by the Commissioner in R.M.A. No. 20 of 2018-19.

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31. On bare perusal of the NOC of the petitioner, it would appear that the same was issued permitting it to ply its vessels on NW-1, however NOCs to the three agencies were issued to set up, operate and maintain temporary facilities for Ro-Ro operations and for floating jetties on NW-1 which was later on clarified by IWAI to the effect that plying of vessels was permissible only from MMT, Sahibganj. Since the petitioner has failed to show any specific permission from IWAI allowing it to ply its vessels from its own/ private ghat, the argument of the learned counsel for the petitioner is not tenable.

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32. The other limb of the argument of the learned counsel for the petitioner is that since no Ro-Ro facilities are available in the MMT, Sahibganj, it is impossible for the petitioner to ply its vessels from that terminal and any direction issued to it to operate its vessels from the MMT, Sahibganj will virtually amount to do an impossible act. I am of the view that the said fact itself does not entitle the petitioner to any relief in view of the fact that the petitioner by paying requisite fee may apply before the

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concerned authority to permit it for setting up temporary jetties at the said MMT, Sahibganj for plying of its vessels.

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33. Further contention of the learned counsel for the petitioner is that the impugned orders have been passed in utter violation of the principles of natural justice as no opportunity of hearing was provided to it before passing of such orders.

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34. In the case of Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and Others reported in (2010) 13 SCC 216 , the Hon’ble Supreme Court has held as under:-

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“31. The principles of natural justice cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. Thus, they cannot be put in a straitjacket formula.

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“13. … Natural justice is [not an] unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.”

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32. The two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non-statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. (Vide Board of Mining Examination and Chief Inspector of Mines v. Ramjee [(1977) 2 SCC 256] , SCC p. 262, para 13; Union of India v. Tulsiram Patel [(1985) 3 SCC 398] ; and ECIL v. B. Karunakar [(1993) 4 SCC 727] .)

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33. There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality. (Vide State of U.P. v. Om Prakash Gupta [(1969) 3 SCC 775], S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] and U.P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani [(1990) 4 SCC 633].)

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35. In the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise and others reported in (2015) 8 SCC

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519 , the Hon’ble Supreme court has held as under:-

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“ 39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action.

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While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason—perhaps because the evidence against the individual is thought to be utterly compelling—it is felt that a fair hearing “would make no difference”—meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that: (WLR p. 1595 : All ER p. 1294)

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“… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”

¶100

Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582(WLR p. 593 : All ER p. 377) “… no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.”

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In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual.

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45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco [(2005) 7 SCC 725].

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47. In Escorts Farms Ltd. v. Commr. [(2004) 4 SCC 281] , this Court, while reiterating the position that rules of natural justice are to be followed for doing substantial justice, held that, at the same time, it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. It was so explained in the following terms: (SCC pp. 309-10, para 64)

¶104

“64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a

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group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.”

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36. The principles of natural justice cannot be applied in straitjacket formula. There is no legal obligation to provide opportunity of hearing in a situation where the same will not change the final conclusion to be arrived at by the decision-maker. A breach of procedure cannot give rise to a remedy in the courts unless there is something of substance behind it which would be lost by such failure. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of a particular case. There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would only be a futile exercise and an empty formality.

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37. It is an admitted position in this case that the petitioner was plying the vessels from its own arranged land without any permission either from the respondent-IWAI or by the State authorities, rather the same appears to be in violation of the instruction of the respondent-IWAI specifically issued to the agencies to setup temporary infrastructure for floating jetties. The said agencies were also allowed to ply their vessels only from the MMT, Sahibganj and the respondent no. 2 was requested to ensure strict compliance of the same. Under such circumstance, I am of the considered view that the opportunity of hearing to the petitioner would have made no difference in the decision of the concerned respondents. Moreover, the petitioner has also failed to show any material fact before this Court which could have affected the decision of the authorities if the opportunity of hearing was provided to it.

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38. In view of the aforesaid factual and legal position, I do not find any ground 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

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of Transport, Government of Jharkhand and the respondent no.2 respectively 39. The writ petition is, accordingly, dismissed. However, the petitioner may apply before the concerned authority of the State permitting it to set up temporary jetties at MMT, Sahibganj for plying its vessels after paying the requisite fee for the same.

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(Rajesh Shankar, J.)

¶113

Ritesh/AFR

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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