CHAIRMAN, MIDNAPORE DISTRICT BOARD Vs. MONMOTHA NATH MONDAL

JUDGEMENT

(1.) The Chairman of the District Board of 24-Parganas and the Chairman of the District Board of Midnapore are the respondents in this appeal. The plaintiffs are proprietors of two plots of Garlai Khas Patit (unculturable waste) being C.S. Plots Nos. 122 and 137 of Mauzah Kagdwip appertaining to their Tauzi No. 2732 of the 24-Parganas Collectorate. This title of the plaintiffs is not denied by the defendants; but the latter claim the right to discharge their passengers and cargo of their ferry boats on the said lands. The plaintiffs prayed in this suit for an injunction restraining the defendants from exercising that right. The Courts below have dismissed the suit. Hence this appeal.

(2.) C.S. Plot No. 23 of Mauzah Kagdwip is a District Board Road, with a breadth, it is said, of 8 ft. Until about the year 1931 the ferry boats used to land their passengers and cargo at the mouth of that plot, close to the river: that is the plaintiffs case. Their case also is that since then this right is being exercised at all parts of the two plots in suit. The defendants rely upon a Notification dated 4 October 1916 as conferring on them this right. The Notification defines the limits of the ferry at this place, at any place within half a mile on either side of the District Board Road. The Courts below have held this Notification which was issued under Section 6 of the Perries Act (I.B.C. of 1885) gives the defendants, in whom the management of the ferry is vested by reason of the provision contained in Section 35 of the Act, the right which they have been exercising. Now, a ferry , as defined by Parke B, is a highway for all the Queen's subjects paying toll: North and South Shields Perry Co. V/s. Barker (1848) 2 Ex 136. Lord Parker of Waddington has said: A ferry may be regarded as a link between two highways on either side of the water or as part of the continuous highway crossing the water: Hammerton V/s. Dysart (1916) 1 A C 57.

(3.) A public ferry is a public highway of a special description and its termination must be in places where the public have rights as towns or vills or highways leading to towns or vills. The right of grantee is in the one case an exclusive right of carrying from one point to the other all who are going to the highway to the nearest town or vill to which the highway leads on the other side: Huzzey V/s. Field (1835) 2 Cr M & R 432 at p. 442. In the Act ferry has been defined as including a bridge or boats, pontoons or rafts, a swing bridge, a flying bridge, a temporary bridge, and a landing stage: Section 5. Therefore, a landing stage being part of a ferry must be a highway over which the public can exercise their right of way. The ferry is a toll franchise, and at one time it was thought that there can by law be no good franchise of a ferry unless the owner has the property in the soil on both sides of the water, but that proposition was not countenanced in the case Peter V/s. Kendal (1827) 6 B & C 703. In that case Bayley, J. observed: I am of opinion that it is not necessary that the owner of a ferry should have the property in the soil on either side. He must have a right to land upon both sides but he need not have the property in the soil on either. It is sufficient if the landing place be in a public highway. This is perfectly consistent with the principle laid down in Saville. That principle is that a ferry is in respect of a landing place, and not of the water. But I cannot agree to what is stated as a conclusion resulting from that principle that every owner of a ferry must have the land on both sides of the water, for otherwise he cannot land . The reason given for his having the property in the soil is insufficient for he may have a right to land on both shores without having any property in the soil of either. The original owner of the land may have granted the soil of it, and reserved out of the grant to himself, his heirs and assigns, the right of using the land on both sides for the purpose of embarking and disembarking passengers.