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In Re: Munshi Abdul Wahab Saheb and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1929)56MLJ277
AppellantIn Re: Munshi Abdul Wahab Saheb and anr.
Excerpt:
- - apart from the difficulty of fitting such a ferry into the definition of a ferry in the act there appear to be two strong reasons against accepting this interpretation of the notification. 3 and so on, that was not clearly stated in the notification. if it had been the intention of the government by that notification to declare the whole of both banks of the river for the distance of 12 miles from razole to narsapur a place at which goods, animals and passengers are conveyed across the river, and still more if it had been their intention, as is contended, to prevent navigation up and down the river between razole and narsapur, then in my opinion the notification would have been clearly ultra vires. the charge of working a ferry in contravention of section 9 is clearly not made out......if the proper construction of the notification is that the conveyance of goods, etc., across the river at narsapur, at sakinetipalli, at appanaramunilanka, at chinchinada and at razole is to be subject to the provisions of the act, it is not ultra vires. for practical purposes it may be inconvenient that the places respectively opposite to the places named are not specified. but the notification would not be ultra vires merely because the government had not chosen to define those opposite places; the result would merely be that any place approximately opposite to any of the named places could be regarded as the other end 'of that particular crossing. in effect the government would have notified five ferries instead of one. if it were permissible to interpret the notification, ex. a, by.....
Judgment:
ORDER

Reilly, J.

1. The two petitioners have been convicted of working a ferry in contravention of Section 9 of the Canals and Public Ferries Act, 1890, and their convictions have been upheld on appeal by the Sessions Judge of West Godavari. The case against the petitioners is that on 20th November, 1926 they carried passengers on the steam launch 'Moulana' across a channel, that is, the Vasistha Godavari River, within the notified limits of a ferry declared by the Government under Section 8 of the Act to be subject to the provisions of the Act. Ex. A, dated 30th December, 1895, has been produced as the notification of the Government, declaring the ferry under the name of the 'The Narsapur Steam Ferry' to be subject to the provisions of the Act and purporting to fix its limits. It is argued for the petitioners (1) that this notification of the Government was ultra vires, and (2) that the petitioners did not work a ferry within the meaning of Section 18 of the Act.

2. The Act is not very easy to understand in some respects. In Section 3 a ferry is defined as 'a place at which goods, animals or passengers are conveyed across a channel by means of vessels.' That is a curious definition and not in accordance with the meaning of a ferry in English Law. And it is almost impossible to reconcile with Section 9 of the Act, which speaks of 'rights of ferry.' But we must take the definition as it stands. It was open to the Government under Section 8 of the Act to declare the place called 'The Narsapur Steam Ferry,' at which goods, etc., were conveyed across the river, to be subject to the provisions of the Act and that is what they must be supposed to have intended to do by the notification, Ex. A. The limits of that place they were also entitled to define under that section. But the limits set out in Ex. A are very surprising. They are shown in the notification as '(1) Narsapur, (2) Sakinetipalli, (3) Appanaramunilanka, (4) Chinchinada, and (5) Razole.' It is admitted that Razole, which is on the left bank of the river, is 12 miles from Narsapur, which is below it on the right bank, and that the other places named are between them, Sakinetipalli and Appanaramunilanka being on the left bank and Chinchinada on the right bank. If the places named are intended to indicate the limits of one ferry, then the upstream limit must be Razole and the downstream limit Narsapur. In that case there is no point in mentioning the intermediate places at all. It would, however, be extraordinary to define the limits of a place where goods, etc., are conveyed across the river so as to include a length of 12 miles on each side of the river. The learned Sessions Judge appears to take the view that the notification defines the ferry as from place No. 1 (Narsapur) to place No. 2 (Sakinetipalli), from place No. 2 to place No. 3 and so on. That would be in effect to declare four successive ferries, two of which would extend four miles up the river besides crossing it. Apart from the difficulty of fitting such a ferry into the definition of a ferry in the Act there appear to be two strong reasons against accepting this interpretation of the notification. Firstly, it is almost impossible to imagine why, if the Government intended to declare a ferry from place No. 1 to place No. 2, another ferry from place No. 2 to place No. 3 and so on, that was not clearly stated in the notification. It is incredible that the Government should go out of their way to make a notification to the public regarding a simple matter unnecessarily obscure or mystifying. Secondly, the succession of places named cannot indicate a succession of ferries between those places, as place No. 2 and place No. 3 are on the same side of the river and under the Act there can be no ferry between two places on the same side of the river. Mr. Ganapathi for the Public Prosecutor has urged that under Section 13 of the General Clauses Act 'place' in the definition must be understood as including places. I do not think that the principle of that section can be applied to the definition in that way. But the suggestion perhaps indicates the way in which the notification should be read as declaring not a single ferry but a group of five ferries, the five places named being mentioned as 'limits' to show where the five crossings of the river are. If the notification is to be read as specifying five places at which goods, etc., are to be conveyed across the river subject to the provisions of the Act, it becomes intelligible though not very explicit, and there is meaning in mentioning the three intervening places. If the proper construction of the notification is that the conveyance of goods, etc., across the river at Narsapur, at Sakinetipalli, at Appanaramunilanka, at Chinchinada and at Razole is to be subject to the provisions of the Act, it is not ultra vires. For practical purposes it may be inconvenient that the places respectively opposite to the places named are not specified. But the notification would not be ultra vires merely because the Government had not chosen to define those opposite places; the result would merely be that any place approximately opposite to any of the named places could be regarded as the other end 'of that particular crossing. In effect the Government would have notified five ferries instead of one. If it were permissible to interpret the notification, Ex. A, by the view which the Government themselves took of it nine years later, it would be useful to notice that the notification Ex. C, dated 1st November, 1905, shows that they were then under the impression that there were five ferries, one at each of the places named.

3. But the contention put forward for the prosecution in this case is that by the notification Ex. A, the whole river from Razole to Narsapur, 12 miles below has been declared to be a ferry subject to the provisions of the Act with the result that no, person not 'duly authorized' may convey goods, animals or passengers across the river at any point in that stretch of 12 miles. I do not think that the power given by Section 8 of the Act to define the limits of a ferry--which, it must be remembered, is by the definition 'a place'--could by any reasonable stretch of language be interpreted so as to enable the Government to include in the place concerned both sides of the river for a distance of 12 miles. It must be remembered that the Act gives to the Government powers very seriously to restrict the liberty of the subject and those powers must be strictly construed. But the prosecution goes, and has to go for the purpose of the case, much further than this. It is contended that the notification Ex. A not only makes it unlawful for any one not 'duly authorised' to convey goods, animals or passengers across the river at any point between Razole and Narsapur, but also makes it unlawful for any one not so authorised to convey goods, animals or passengers up or down the river between Razole and Narsapur. There is nothing in the Act, so far as it deals with ferries, to enable the Government so to restrict the right of navigation along the river. Under Section 4 of the Act the Government may declare the river to be a canal subject to the provisions of the Act and may then under Section 5 require all vessels using the river to be licensed or registered. But it has been stated before me that no notification under Section 4 has been issued in respect of this part of the river. Without a notification under Section 4 the Act gives the Government no power to regulate navigation up and down the river; and the prevention of navigation up and down the river is wholly outside the scope of the Act. It has been suggested in the course of the arguments that, because Razole is on one side of the river and Narsapur, which is reached after going 12 miles down the river and round two semi-circular bends is on the other side, the voyage from Razole to Narsapur can be regarded as one across the river. That argument carries its refutation on its face. To suggest that such a voyage is one 'across' the river is an abuse of language. There is nothing unreasonable or ultra vires in the notification Ex. A, if it is interpreted, as I think it must be interpreted--and as the Government themselves later on interpreted it--as declaring a series of five ferries across the river at the five places named. So interpreted the notification is entirely within the language and scope of the Act. It is not very easy to reconcile the schedule of tolls attached to the notification with that interpretation. But, as the notification purports to have been issued under Section 8 of the Act, I think we are bound to interpret it, so far as possible, in consonance with that section and, if there is anything in the schedule which suggests an interpretation not in consonance with the section, to ignore that for the purpose of interpretation. If it had been the intention of the Government by that notification to declare the whole of both banks of the river for the distance of 12 miles from Razole to Narsapur a place at which goods, animals and passengers are conveyed across the river, and still more if it had been their intention, as is contended, to prevent navigation up and down the river between Razole and Narsapur, then in my opinion the notification would have been clearly ultra vires.

4. This brings me to the second contention of the petitioners. What has been found is that the launch 'Moulana,' owned by petitioner 1 and managed by petitioner 2, on 20th November, 1926, conveyed passengers (on payment of passage money, I understand, though that does not appear in the records before me) from Narsapur to Razole, calling at Sakinetipalli, Appanaramunilanka and Chinchinada on the way. That it is alleged was, 'working a ferry' in contravention of Section 9 of the Act. What Section 9 makes unlawful is conveying goods, animals or passengers, across a channel within the defined limits of a ferry declared under Section 8. The voyage of the 'Moulana' on 20th November, 1926 cannot by any reasonable use of language be described as across a channel (the river is a channel for the purpose of the Act). It was a voyage up the river such as the Government has no power under the Act--and I presume no wish--to prohibit. The charge of working a ferry in contravention of Section 9 is clearly not made out.

5. The convictions and sentences are set aside, and the petitioners are acquitted. The fines, if paid, will be refunded.

6. Cr.R.C. No. 66 of 1928: This is a case similar to Criminal Revision Case No. 65 of 1928. The convictions and sentences are set aside and the petitioners are acquitted. The fines, if paid, will be refunded.


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