I have heard Mr. R. Ali v. State of Assam) and W P(C) No. 3933/2007 (Jadav Senapati vs. State & Ors.

I have heard Mr. R. Ali, learned counsel, appearing on behalf of the pet itioner in WP(C) 3555/08, who is respondent No. 8 in WP(C) 3132/09, and Mr. P. R oy, learned Senior Government Advocate, appearing on behalf of the respondent No s. 1, 2 and 4 in WP(C) 3555/08, and respondent Nos. 1, 2, 4, and 5 in WP(C) 3132 /08. Also heard Mr. R. Tanti, learned counsel, appearing on behalf of responden t No. 3 in WP(C) 3555/08, and respondent No. 2 and 3 in WP(C) 3132/08. The controversy, in these two writ petitions is with regard to the settl 3. ement and right of operation of the Kararkur Shawpur Beki Parghat. Pursuant to the N.I.T., dated 02.05.08, issued by the Rupshi Anchalik Panchayat, the said pa rghat (i.e., ferry) has been settled by the said Panchayat by an order, dated 17 .07.08, passed by the Executive Officer-cum-Secretary, Rupshi Anchalik Panchayat , in favour of Abdul Mia, who is the petitioner in WP(C) 3555/08 (i.e., responde nt No. 8 in WP(C) 3132/08). On the other hand, the Director, Inland Water Trans port Department, Assam, has settled, by order, dated 17.07.08, the said ghat in favour of Md. Jel Haque, who is the petitioner in WP(C) 3132/08 (i.e., responden t No. 5 in WP(C) 3555/08.

By making a writ petition under Article 226 of the Constitution of India , which has given rise to WP(C) No. 3555/08, the petitioner therein, namely, Abd ul Mia, has put to challenge the authority of the Director, Inland Water Transpo rt Department, Assam, to make settlement of the said ghat in favour of Md. Jel Haque (i.e., the petitioner in WP(C) 3132/08). At the same time, Md. Jel Haque , i.e., the petitioner in WP(C) 3132/08, has put to challenge the authority of t he said Panchayat to make the settlement of the said ghat (ferry) in favour of t he petitioner in WP(C) 3555/08.

In the backdrop of the facts, as indicated above, the writ petitions hav e been taken up for consideration and the short question, which falls for determ ination in these two writ petitions, is as to whether the ghat (ferry), in quest ion, is a notified ghat (ferry) within the meaning of Section 4 of the Ferries A ct, 1878. To a pointed query, made by this Court, it is, now, submitted, on beh alf of the Director, Inland Water Transport Department, that the said ghat (ferr y) is not a notified ghat (ferry) in terms of Section 4 of the said Act. It is w orth mentioning, in this context, that this Court, while deciding a similar ques tion, in WP(C) No. 2807/2007 (Sri Bidhan Mudoi vs. State of Assam and ors) and W P(C) No. 3933/2007 (Jadav Senapati vs. State of Assam and ors), made it clear th at the settlement of a public ferry, other than a Government ferry, within the m eaning of Section 4 of the Ferries Act, stands vested in an Anchalik Panchayat w ithin whose jurisdiction such a ferry falls and the Anchalik Panchayat has the f reedom to settle, in terms of Section 106 of the Assam Panchayat Act, 1994, such a public ferry (ghat) by inviting tenders.

In the circumstances, as indicated above, neither the State Government n or the Inland Water Transport Department, including the Department of Public Wor ks, Government of Assam, could settle the ghat (ferry), in question, in favour o f Md. Jel Haque (i.e., the petitioner in WP(C) 3132/08, who is the respondent No . 5 in WP(C) 3555/08), inasmuch as the decision taken by them to settle the ghat , in question, is ex facie without jurisdiction and such a decision cannot be a llowed to survive.

Considering, therefore, the matter in its entirety and in the interest o f justice, the impugned order of settlement, dated 17.07.08, made in favour of M d. Jel Haque, by the Director, Inland Water Transport Department, Assam, is here by set aside and quashed. The State respondents, particularly, the respondent N o. 2, namely, the Director, Inland Water Transport Department, Assam (in WP(C) 3 132/08), are hereby directed to refund, within a period of ten days from today, such amount(s) as may be due and payable to Md. Jel Haque on account of the fact that his settlement, by this Court, in the present case, has been set aside.

nd disposed of. With the above observations and directions, this writ petition shall sta

No order as to costs.