1. This is an application in revision by four persons, Kunwar Chandra Bali Praaad, Kunwar Ambika Prasad, Kunwar Madho Ram and Kunwar Raghuraj Prasad who have been convicted under Section 23, Northern India Ferries Act, and sentenced to pay a fine of Rs. 40/- each.
2. The facts are that there exists a ferry known as Aira Ferry in the district of Kheri. This is used by persons desirous of crossing the river Drra. Formerly the river Urra flowed through the portions of village Aira and Nawapur. Now, however, by a change in its course the river flows only through village Nawapur. Mansadin, contractor who obtained the contract for Aira Ferry from the Aira Estate, continued to ply this ferry and used the land of village Nawapur on both banks of the river Urra for the purposes of the ferry. A suit was consequently brought against him and others in the civil Court, claiming possession of the land in village Nawapur, for mesne profits and an injunction directing Mansadin not to ply the ferry. On 30-9-1946, the claim was decreed but, an appeal having been filed in the Chief Court, proceedings in execution of the decree were stayed.
3. On 1-11-1946, the applicants, who are the proprietors of village Nawapur, started plying their own boat alongside the boat of Masadin, consequently Mansadin filed a complaint against them in the Court of the Sub-Divisional Magistrate, Nighawan in the district of Kheri, in which after giving the facts he prayed that the present applicants and one other, namely, Kunwar Har Nandan Prasad, who is now dead, should be punished for having infringed the provisions of Section 13, Northern India Ferries Act.
4. Both the lower Courts have convicted the applicants but the conviction is under Section 19 read with Section 23 of that Act because the complaint itself disclosed that the ferry in question was not a public ferry to which Section 13 applies but a private ferry. The Courts below have based their decisions upon the fact that the Commissioner of the Lucknow Division has made a rule to the following effect:
'No person shall establish, maintain or work a private ferry to and from any point within a distance of two miles from the limits of existing private ferries.'
This rule purports to have been made by virtue of the authority conferred upon the Commissioner by Section 19 of the Act which provides as follows:
'The Commissioner of the division may, with the previous sanction of the Provincial Government from time to time, make rules for the maintenance of order and for the safety of passengers and property at ferries other than public ferries.'
5. This section clearly restricts the right of the Commissioner, to make two classes of rules only, namely, maintenance of order, and (2) safety of passengers and property at ferries. Thus any rule which does not come within these two classes is beyond the powers of the Commissioner. Mr. Akhtar Husain counsel for the opposite-party, Mansadin, contends that Section 19 merely puts in a very concise form the powers conferred by Section 151 in respect of public ferries. This contention cannot be accepted because, had the Legislature meant the same powers to be conferred upon the Commissioner, in respect of public and private ferries there would have been nothing easier for it than to make Section 12 applicable to private ferries also but it has not done so. This cannot be merely accidental and there must be some reason for it. We are not concerned here with the reasons but it does appear that the Legislature has not conferred the same powers upon the Commissioner with regard to the making of rules for private ferries as it has conferred upon the Commissioner, with regard to public ferries.
6. It was also contended by Mr. Akhtar Husain that this rule is a rule for the maintenance of order so as to avoid disputes with regard to the working of ferries. This contention also cannot be accepted because the rule-making power is limited to the maintenance of order at the ferry and it cannot empower the Commissioner to prohibit the establishment of another ferry. Thus the rule made by the Commissioner is ultra vires and cannot form the basis of any conviction.
7. This application is, therefore, allowed and the conviction and sentences passed on the applicants are set aside. The fine, if already realised, will be refunded.