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Kasim Ali and ors. Vs. the Chairman of Municipal Commissioners and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.782
AppellantKasim Ali and ors.
RespondentThe Chairman of Municipal Commissioners and ors.
Cases ReferredHammerton v. Dysart
Excerpt:
bengal municipal act (iii b. c. of 1884), section 155 - 'within a distance of two miles above or below the ferry', meaning of--bengal ferries act (i b. c. of 1885)--'ferry' 'right of ferry', 'ferry boat,' meaning of--municipal right of ferry, invasion of--statutes, construction of words in sections of. - .....have every right to prosecute people who infringe the ferry laws by carrying passengers within the ferry limits either within the sikalbaha canal or alongside the banks of the river kurufali.4. the court of 6rst instance decreed the suit, but that decree was reversed on appeal by the court of appeal below, and the plaintiffs have appealed to this court.5. the decision of the question involved in the case turns upon the construction of section 155 of the bengal municipal act (act iii of 1884). that section runs as follows: no person shall keep a ferry boat for the purpose of plying for hire within a distance of two miles above or below any municipal ferry without the previous sanction of the commissioners, if he plies within the limits of the municipality, of the magistrate of the.....
Judgment:

N.R. Chatterjea, J.

1. The appeal arises out of a suit for an injunction under the following circumstances.

2. There is a Municipal ferry, known as the Autimohanied Pathuriaghat ferry, on the Kurufali river in the town of Chittagong. The ferry was let out by the Chittagong Municipality (the defendant No. 1) to certain farmers who are the other defendants in the suit. The plaintiffs, who are boatmen, allege that they and other boatmen and sampanivallas have been from a long time ferrying passengers in their boats between the Autimohanied and Chaklai Ghats on the river Kurufali and the Kalapal and Jimat All's Pole Ghats on the Sikalbaha Canal, which is connected with, and at right angles to, the Kurufali river, and as the said ghats on the Sikalbaha Canal are not within a distance of 2 miles along the banks of the river Kurufali above or below the Municipal ferry, they are entitled to ferry boats. They further allege that after a criminal case in connection with the ferry had been decided by the High Court, the District Magistrate of Chittagong issued an order upon the Autimahomed Ghat ferry-holder prohibiting the levy of tolls on boats coming through Sikalbaha or Boalkhali, but that, notwithstanding such order, the Municipality and the ijaradars have been constantly harassing the boatmen and sampanwallas, including the plaintiffs by bringing criminal cases against them. The plaintiffs, therefore, brought the present suit for an injunction restraining the defendants from opposing or obstructing the plaintiffs, and other boatmen and sampanwallas in carrying passengers to and from the town of Chittagong through the Sikalbaha Canal or levying tolls from them.

3. The defence shortly stated was that Kalapole and Jimat Ali's Pole on the Sikalbaha Canal are within two miles of the Municipal ferry station, that the Sikalbaha Canal is a part of the river Kurufali, and that the Municipal Commissioners have every right to prosecute people who infringe the ferry laws by carrying passengers within the ferry limits either within the Sikalbaha Canal or alongside the banks of the river Kurufali.

4. The Court of 6rst instance decreed the suit, but that decree was reversed on appeal by the Court of Appeal below, and the plaintiffs have appealed to this Court.

5. The decision of the question involved in the case turns upon the construction of Section 155 of the Bengal Municipal Act (Act III of 1884). That section runs as follows: No person shall keep a ferry boat for the purpose of plying for hire within a distance of two miles above or below any Municipal ferry without the previous sanction of the Commissioners, if he plies within the limits of the Municipality, of the Magistrate of the District, if without such limits, or of the Magistrate of the District and the Commissioners, if one of the two banks between which he plies is within, and the other bank is without, such limits.

This section shall not apply to any private ferry which may be in existence at the commencement of this Act.'

6. It is contended on behalf of the appellants that the words within a distance of two miles above or below the ferry' mean within a distance of two miles above or below the ferry along the banks of the river. On the other hand, it is contended on behalf of the respondents that the words mean within a radius of two miles of the Municipal ferry, and this is the construction which has been placed on the section by the learned District Judge.

7. I am of opinion that the words above or below the ferry' mean above or below the ferry along the banks of the river. That the words above or below' have reference to the banks of the river or stream, appears from the 4th paragraph of the section which refers to sanction of the Magistrate and the Commissioners if one of the two banks between which a private ferryman plies is within and the other bank is without such limits. If it was intended to fix the limits of a Municipal ferry to any point within a distance of two miles in any direction of the ferry station, I do not see the use of the words above or below the ferry.' The Legislature could have clearly expressed such intention by saying from 'any point within a distance of two miles,' as it has done in the Bengal Ferries Act, I of 1885, Section 16 of which runs as follows: 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.'

8. The learned District Judge holds: 'Thus the jurisdiction of a public ferry extends to a radius of two miles from the ferry station. Municipal ferries are simply public ferries administered by the Municipality and surely when they are made over to the Municipality, their jurisdiction does not thereby become more restricted. I think, therefore, that the provisions of the Municipal Act referring to them should be read in the light of the corresponding provisions of the Public Ferries Act.'

9. Section 155 of the Bengal Municipal Act, however, cannot be construed in the light of the provisions of the Bengal Ferries Act (Act I of 1885). Section 4 of Act 1 of 1885 (which is a later Act) lays down that nothing in that Act contained shall apply to any ferry deemed or declared to be a Municipal ferry under the provisions of the Bengal Municipal Act, 1884.

10. The provisions of Section 4 of the Act appear to have been lost sight of by the learned District Judge.

11. Section 2 of Act I of 1866, which related to public ferries and was repealed by Act I. of 1885, contained the words within a distance of two miles above or below the ferry?'

12. The ferry on the Kurufali river was a ' public ferry, and was made over by the Government to the Municipality in the year 1863. Section 14S of Act III of 1884 pro-vides that the Local Government may, with the consent of the Commissioners, make over to them any existing public ferry within or adjacent to the limits of the Municipality to be administered by them until the Local Government shall otherwise direct, and that every ferry while so administered shall be deemed to be a Municipal ferry. It is urged on behalf of the respondents that the words used in defining the limits of a public ferry under Act I of 1866, and the limits of a Municipal ferry under Act III of 1884, were used in the same sense as those in Section 16 of Act I of 1885. But the limits of a public ferry under Section 2 of Act I of 1866 extended, and those of a Municipal ferry under Act III of 1884 extend, only to a distance of two miles above or below the ferry,' and those Acts cannot, as stated above, be construed with reference to a later Act by which the limits of a public ferry were extended to any point within a distance of two miles' and when the later Act expressly provides that nothing in that Act shall apply to any ferry deemed of declared to be a Municipal ferry under the provisions of the Bengal Municipal Act, 1884. The provisions of Act I of 1885 show that the Legislature did not intend to alter the limits of a Municipal ferry, which extend only to two miles above or below the ferry, i. e,, along the banks of the river or stream on which there is a Municipal ferry.

13. The case of the Government of Bengal v. Senayat Ali 27 C. 317 : 4 C.W.N. 348 upon which reliance is placed on behalf of the appellants, does not decide the point under consideration. But after deciding the actual point which arose for decision in that case, the learned Judges proceeded to observe: A ferry, as we understand the meaning of that expression in the Bengal Municipal Act, means the exclusive right to carry passengers across the stream from one bank to the other on payment of certain prescribed tolls, and the object of Section 155 appears to us to be to prevent the crossing of passengers from one bank of the river to the opposite bank by a boat plying for hire without a license within the prescribed limits.' These observations were unnecessary for the decision of the case, but they support the view I have taken.

14. The defendants in their written statement stated that the Sikalbaha Canal is a part of the Kurufali river. But the Munsif points out that 'no attempt was made by the defendants to make out that the Sikalbaha Canal is a part of the river Kurufali itself and that, therefore, the bank of the Sikalbaha canal should be regarded as the bank of the Kurufali itself.'

15. The distance between the Kalapole bridge and the place where the Sikalbaha Canal meets the Kurufali is nearly three-quarters of a mile, but the distances between the Kalapal and Jimat Ali Ghats on the Sikalbaha Canal and the Municipal ferry stations on the Kurufali river have not been found. The learned Pleaders here stated with reference to the map on the record that the distance of one of the ghats on the canal and one of the Municipal ferry stations by the river route is more than two miles, but that the distances between the other ghats is less than two miles. In the view I take of the case, however, an enquiry into the distances is unnecessary.

16. The learned District Judge says: 'Now if the Section 155 be taken to refer strictly only to the actual banks of the river, boatmen could ply between a place one yard down to the Sikalbaha Canal and Autimahomed Ghat without restriction, whereas if the star*ed at a place several miles up the Kurufali river they would have to get permission of the Commissioners, This seems to me to be an absurd construction of Section 1 55 of the Municipal Act and it seems quite clear that the Legislature cannot have intended that it should be so interpreted.' But if, as I think, the words used in the section are plain and construed in their ordinary sense mean that the limits of a Municipal ferry extend to two miles above or below' the ferry along the banks of the river (up stream or down stream), the Court cannot construe the section in a different way merely because the construction .,of the words in their ordinary sense may, in some cases, lead to results which might seem anomalous. As pointed out by Jervis, C.J. in Ably v. Dale 11 C.B. 878 at p. 391 : 20 L.J. C.P. 233 : 87 R.R. 697 : 2 L.M. & P. 433 : 15 Jur. 1012 : 138 E.R. 519: 'if the precise words used are plain and unambiguous in Our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislatures when we depart from the ordinary meaning of the precise words used merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.' It must also be borne in mind that Section 156 imposes a penalty for breach of the provisions of Section 155. It says: Whoever keeps a ferry boat, contrary to the provisions of the last preceding section shall be liable to a fine not exceeding fifty rupees, and to a further fine, not exceeding ten rupees, for each day during which the offence is continued after he has been required by a notice in writing to desist from such offence.'

17. It is unnecessary, however, to consider, in the present case, whether the hypothetical case put by the learned Judge would constitute a substantial infringement of the Statute, as the ghats on the Sikalbatia Canal are at some distance from the junction of the canal with the river.

18. I am of opinion that the words used in the section do not mean within a radius of two miles of the ferry', as held by the Court of Appeal below.

19. The learned District Judge holds that one of the banks between which plaintiffs ply being within Municipal limit, they would, in any case, require the permission of the District Magistrate and of the Commissioners. But the banks referred to in the last clause of Section 155 of Act III of 1884 are banks of the same river, and the clause applies only to cases where one of the two banks of the same river is within and the other -without the limits of the Municipality.

20. The learned Judge is of opinion that the injunction prayed for seems to be unnecessary as it has not been proved that the ferry farmer is at present obstructing the passage of their boats or levying tolls on the plaintiffs and should he do so, he would be liable to prosecution under the provisions of the Indian Penal Code.' But the Court of first instance finds that the evidence adduced by both the parties shows that many sampanwallas, including several of the plaintiffs, were at the instance of the Chittagong Municipality prosecuted for plying boats for hire between Kalapole and Chittagong town.' The Municipality, in their written statement, deny the right of the plaintiffs and state that they rightly prosecuted the 'people including some of the plaintiffs who infringed the ferry laws and committed offences against the same and often got convictions.'

21. Under the circumstances, I think an injunction should be granted. The decree of the Court of Appeal below is accordingly set aside and that of the Court of first instance restored with costs here and in the Court below.

Richardson, J.

22. I have no hesitation in accepting the meaning attributed by the appellants to the words above' and 'below' which occur in Section 155 of the Bengal Municipal Act. These words, as applied to a place upon a river (the ferry in question is on a river), imply a relation up stream or down stream between that place taken as the starting point and other places on the same river; it is impossible to use the words intelligibly or consistently with reference to places on other rivers or streams or khals, whether or not they flow into the river first spoken of. If the words can be used at all in connection with a piece of water (such as a lake) which is not a river, they could only mean places above and below the same piece of water, though it might be more difficult to say what places were above and what were below. For the present purpose we need only consider river ferries.

23. In Act 1 (B.C.) of 1866 relating to public ferries, what may be called the area of protection was defined in the same terms as those used in the Bengal Municipal Act. Act I (B.C.) of 1866 was repealed by the Bengal Ferries Act [Act I (B.C.) of 1885]. Section 16 of the latter Act Jays clown that 'no person shall, except with the sanction of the Magistrate-^ the District, maintain a ferry to or from any point within a distance of two miles from the limits of a public ferry.' Two provisos are added. Under the first the Local Government is empowered in specified cases to reduce or increase the two miles' distance. The second enacts that 'nothing hereinbefore contained shall 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 places is not less than three miles or shall apply to boats which the Magistrate of the District expressly exempts from the operation of this section.'

24. Now, the frame of that section is entirely different from the frame of the corresponding section in the Act of 1866 and in the Municipal Act. In the first place the area of protection was clearly extended. Instead of a distance of two miles above or below the protected ferry, we have a distance or radius of two miles from its limits and no unlicensed ferry is to be maintained to or from any point' within such distance. The stringency of the words to and from any point' is qualified by the second proviso, so that an express rule is laid down on a question on which the other two Acts are silent, namely, to what extent the entry of a ferry boat into the area of protection from outside is to be regarded as an invasion of the protected ferry. The question arises in the present case, but before dealing with it we may dispose of another question which admits of an easy answer.

25. We were asked, on behalf of the respondent Municipality, to adopt the view of the District Judge that Section 155 of the Bengal Municipal Act should be interpreted in the light of Section 15 of the Act of 1885. The argument was that as the Legislature could not have intended by the latter section to enlarge the limits within which protection was previously afforded to public ferries, therefore, the language used in the Act of 1866 and in the Municipal Act must mean the same thing as the language used in the Act of 1885. If such reasoning could be employed, it would seem more appropriate to apply it conversely and to interpret the Act of 18J-5 in conformity with the Act of 1866. But the limits defined in the Act of 1885 are not identical with the limits defined in the earlier Act which it repealed and no construction can make them identical, The Act of 1885, therefore, can afford no assistance in the interpretation of Section 155 of the Municipal Act.

26. Moreover, Section 4 of the Act of 1885 declares that nothing in that Act contained shall apply to any ferry deemed or declared to be a Municipal ferry under the provisions of the Bengal Municipal Act, 1884.' The Legislature did not overlook the existence of Municipal ferries (which it had dealt with in the previous year), but expressly left them untouched and the law relating to them unaltered. The learned District Judge, in the Court of Appeal below, must have overlooked that section when he substituted the language used in the Act of 1885 for that used in the Municipal Act.

27. An elementary canon of construction forbids us from straining the language of the Municipal Act for the purpose of depriving people like the plaintiffs of any rights to which they would otherwise be entitled. In the present case what we are asked to do is not merely to strain the language but to change it into something totally different. To do so would contravene all rule and precedent.

28. We must confine ourselves, therefore, to the Municipal Act, on which alone the rights of the parties depend. That Act prohibits an unlicensed ferry boat from plying for hire within a distance of two miles above or below a Municipal ferry. The only question which remains is as to the protection, if any, this prohibition affords against boats entering the area of protection from outside, either from beyond the two miles limit on the river or by way of a tributory or khal which joins the river within the two miles' limit. The word ferry in the expression Municipal ferry' must denote a place. It is the place where passengers are conveyed by boat from one side of a river to the other. A right of ferry is the right so to convey passengers at such a place. A ferry boat, however, as the term is used, must mean any boat used for the purpose of carrying passengers across the river, whether at that place or some other place. Rivers in this country are often large. It is not easy to give a defined limit to the term ferry boat' and it is unnecessary in the present case to attempt a definition. The parties unite in describing the appellants' boats as ferry boats. Is it then an invasion of a Municipal right of ferry created by the Act for an unlicensed ferry boat to pick up passengers at some place outside the proscribed area of two miles above and below the ferry and without touching at the nearer bank to take them across the river to a point on the further bank within that area or to do the converse? In my opinion, so extended a protection was not contemplated by the Act. To come within the prohibition the terminus a quo and the terminus ad quern of the unlicensed boat must both be within the proscribed area. This is a construction which does no violence to the language used and it is the most reasonable construction. Otherwise there would be no limit to the protection afforded. The prohibition would extend to ferry boats starting at any distance, however great from the Municipal ferry. It would cover a journey between two places both outside the proscribed area provided the river was crossed within, or partly within and partly without, that area.

29. The view indicated receives support from the opinion expressed in Government of Bengal v. Senayat Ali 27 C. 317 : 4 C.W.N. 348 though that expression of opinion was not necessary to the decision of the case.

30. We may add that we have not to consider what, apart from the Act, would amount to an invasion of an established right of ferry created and defined by the Act. Apart from the Act, the owner of a right of ferry might have rights which would be in some respects possibly wider and in others possibly narrower than those which the Act confers upon a Municipality. The question in such a case would be, what in the circumstances are the reasonable limits of the right enjoyed Hammerton v. Dysart (1916) A.C. 57 : 85 L.J. Ch. 33.

31. The learned District Judge considers it absurd to suppose that while a Municipal ferry is protected for two miles above or below it, .no protection is afforded against a ferry boat starting few yards up a k'-al. It is possible that such a device might be regarded as a merely colourable evasion of the Act and, therefore, substantially an infringement of the Municipal right of ferry. But no such point arises here. The appellants' boats start from two places on the Sikalbaha Khal at some distance from its junction with the river within the two miles above the Municipal ferry. They make continuous journeys between those places and their terminus on the other side of the river. It is not suggested that -they pick up passengers at the mouth of the khal and it is not established that the appellants' conduct of this traffic is a merely colourable evasion of the Act.

32. I agree that the appeal should be allowed.


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