Khaja Abdul Ghani and Others vs Emperor

James, J.—The petitioners who are the proprietors of Chota Salkhi village in Purnea District have been each fined fifty rupees u/s 28, Bengal Ferries Act. It appears that up to the beginning of 1928 there were two ferries across the Mahananda river, one of which was the ferry of the petitioners, while the other which belonged to Raja P.C. Lal Chaudhuri had fallen into disuse. Raja P.C. Lal Chaudhuri''s ferry was acquired by the District Board; and by a Government notification of 25th June 1928 it was declared to be public ferry. It appears that nothing was done for some years, until at the end of 1932 the District Board caused notice to be issued on the petitioners to discontinue the working of their ferry while the Board at the same time made arrangements for boats to convey passengers across their own ferry. The petitioners on receipt of the notice from the District Board objected that their ferry was not within two miles of the District Board ferry and continued to work their ferry. This led to a prosecution which resulted in conviction u/s 28, Bengal Ferries Act, though the conviction was ultimately set aside in revision on the ground that the limits of the District Board''s ferry had not been defined. The matter was then again allowed to rest for two years until in August 1935 the present prosecution was instituted. The petitioners objected that the limits of the District Board had not been notified under the Act and that their own ferry was actually not within two miles of the District Board ferry. On these points the finding of the lower Court is against the contention of the petitioners, the finding being that the petitioners ferry is within two miles of the District Board ferry, and that it has not been satisfactorily shown that the limits of the ferry at the time of the notification of 1928 were different from the present limits.

The person who is liable under Sections 16 and 28, Bengal Ferries Act, is the person who conveys passengers for hire. The complainant on behalf of the District Board named as accused in the Magistrate''s Court the proprietors of Chota Salkhi village, with the lessees of the ghat and the boatmen. The Magistrate, regarding the lessees and the boatmen as mere underlings or servants of the proprietors, acquitted them, while he convicted the proprietors who had leased out the ferry. There appears to be nothing in the evidence to indicate that any of these zamindars had actually conveyed passengers for hire or collected tolls from passengers so conveyed; and it appears that the persons really liable under the Act are the lessees or farmers of the ghat who collected tolls and conveyed passengers across the river by means of their hired boatmen. Mr. Manohar Lal on behalf of the District Board suggests that the proprietors who leased out the right to ferry should be regarded as the persons who conveyed passengers for hire within the meaning of Section 16, Ferries Act, relying on the decision in Jeobaran Singh and Others Vs. Ramkishun Lal, In that case the persons convicted were the owners of the steamers which were disturbing the complainant''s right of ferry; and Adami, J. in coming to this decision followed a decision of the Calcutta High Court wherein it was pointed out that the person who maintained a ferry in contravention of Section 16 was the farmer and not the mere servant of the farmer. There is nothing in either of these decisions which would support the view that the person liable to punishment u/s 28 read with Section 16, Ferries Act, is the person who leased out the ferry right. The person made responsible by the Act is the person who conveys passengers for hire; that is to say, the farmer, the thikadar, ghatwala or whatever he may be called. In the present case the farmers have been acquitted and we have only the lessors before us. They have not conveyed passengers for hire; and so they are not liable to punishment u/s 28, Ferries Act Their convictions and sentences must be set aside and their fines if paid must be refunded.

It would be well if this dispute could now be settled. The District Board by the manner in which they have dealt with their ferry after acquisition, have given the petitioners cause to suppose that the right u/s 16, Bengal Perries Act, would not be enforced, possibly because the District Board did not desire to be met with a claim to compensation u/s 17 of the Act. The matter should now be settled and it should be made clear whether the petitioners are to close their ferry and receive compensation u/s 17, Bengal Ferries Act or whether the claim of a monopoly is to be waived and the petitioners are to continue to enjoy their right of ferry.

Varma, J.

I agree.