SECY OF STATE Vs. KAMESHWAR SINGH BAHADUR

JUDGEMENT

(1.) This appeal is by the Secretary of State for India in Council against the decree of the Officiating Subordinate Judge of Purnea in favour of the Maharajadhiraja of Darbhanga for Rs. 9,180, and costs as compensation for loss of income of a ferry possession of which was taken by Government under Section 6(b), Ferries Act (Act I (B.C.) of 1885). The facts are that the Magistrate of Purnea recommended to the Commissioner of Bhagalpur Division that the Dhamdaha ferry of that district, which was a private ferry of the plaintiff should be taken possession of by Government and managed by the District Board and that the Maharajadhiraja be given compensation of Rs. 3,870, being ten times the average estimated fair profit made by him from the ferry during the previous five years. He had held after enquiry that the actual average annual income of the plaintiff, which the mustajir of the ferry paid to him, during the period in question was Rs. 928, but having found that the ferry only worked for five months in the year and for the remaining period the mustajir (lessee), who obtained settlement at auction, extorted the toll even from persons who crossed the river on foot or took their carts across it without using the boats, he took into account only the income of the five months and recommended that only ten times five-twelfths of Rs. 928 be paid to the plaintiff. The Commissioner accepted the recommendation of the Magistrate that the ferry be taken possession of and under the power delegated to him by the local Government under Section 36, Ferries Act, directed that the ferry in question be taken possession of and be declared to be a public ferry and further directed that it be managed by the District Board of Purnea. He however, held that the number of months during which the ferry worked was not five but four, and accordingly directed payment of Rs. 2,980 only being ten times four-twelths of Rs. 918.

(2.) It is to be noted that while the Magistrate took the total average annual receipt to be Rs. 928, as mentioned in his letter (Ex. A), the Commissioner's calculation is by some mistake based upon an average annual income of Rs. 918 only. When the Commissioner's award was offered to the plaintiff his Chief Manager refused to accept it and intimated that the Raj would seek its remedy in the civil Court, and the plaintiff instituted the present suit against the Secretary of State for India in Council and the Chairman of the District Board of Purnea for recovery of Rs. 13,770, being fifteen times the average income for the previous five years, the maximum compensation permissible under Section 17, Ferries Act. He took the annual income to be Rs. 918, as the Commissioner had done. The defendants contested the suit, and their main defence was that the plaintiff had no cause of action and that the civil Court had no jurisdiction to entertain the suit. They also contested the amount of the annual income as alleged by the plaintiff. The learned Subordinate Judge decreed the suit against defendant 1, the Secretary of State for India in Council, and exonerated defendant 2, the Chairman of the Purnea District Board. He has given the plaintiff a decree for ten times the average annual income as alleged by the plaintiff, namely, Rs. 918, and disallowed the remainder of the claim at fifteen times the average annual income. The Secretary of State, as I have stated, has preferred this appeal. There is a cross- objection on behalf of the plaintiff in respect of the Rs. 4,590 disallowed by the learned Subordinate Judge. The main contention of the defendant is that the plaintiff has no cause of action and that the civil Court has no jurisdiction to entertain the present suit. In order to decide the question of the right of the plaintiff to sue in the civil Court it will be necessary to examine the position of the Government in respect of the ferries in this province. The earliest legislation, which authorised the resumption of ferries is Regn. 19 of 1816. This Regulation provided for fixing of tolls on ferries and prescribed rules for management and collections through the collectors of land revenue. Section 9 of that Regulation provides that: In the event of its appearing that the profits derived from any resumed ferry may have been included in the permanent settlement of the estate to which it has heretofore been annexed, the Board or Commissioner, under whose orders the enquiry may be conducted, shall report the circumstance, with an opinion on the merits of the claim, for the consideration and orders of the Governor-General in Council; and the Courts of judicature shall not take cognizance of any claims to deductions or, compensations on account of the tolls levied at any ferry or ghaut.

(3.) This Regulation was repealed by Regn. 6 of 1819, by which the management of the ferries was transferred from the Collector to the Magistrate. Section 3, Clause (1), describes the ferries which were to be considered public ferries. They were those that were situated at or near the sudder stations of the several Magistrates or joint Magistrates, or such as might intersect the chief military routes or other much frequented roads, or such as from special considerations it might appear advisable to place it under the more immediate management of the Magistrates and Joint Magistrates. Clause (2) of this section ran thus: The Government reserves to itself the power of determining, from time to time, what ferries shall under the preceding rule, be deemed public ferries and as such shall be subject to the immediate control of the Magistrates and joint Magistrates; and no Magistrate or joint Magistrate shall without previous authority from Government, assume the management of any ferry which may not have been let in farm or held khas, or otherwise subjected to assessment by the Collectors, under the provisions of Regn. 19 of 1816.