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Petitioner: MUHAMMAD USMAN GHANI VS Respondent: DEPUTY COMMISSIONER, FARIDPUR
P L D 1963 Dacca 1033
P L D 1963 Dacca 1033
Before Murshed and Salahuddin Ahmed, JJ
MUHAMMAD USMAN GHANI---‑Petitioner
versus
DEPUTY COMMISSIONER, FARIDPUR AND ANOTHER
Respondents
Writ Petition No. 183 of 1962, decided on 28th November 1962.
(a) Riparian Rights‑Tidal navigable river‑Bed of, belongs to Crown‑Public right of navigation in such rivers‑Cannot, however, be denied by mere assertion of right of ownership in "foreshore" or beds of such river by virtue of un-authorised, unspecified and undefined executive power‑Words "foreshore"; "high water marks"; "tidal navigable river"; "right of navigation"‑Meaning.
(b) Fundamental Rights‑Invasion not allowable except under law.
Hamidul Huq Chowdhury, D. C. Bhattacharjee, Abdur Rab (1) and H. K. Chowdhury for Petitioner.
Maksum‑ul‑Hakim, A: G. and T. H. Khan for Respondents.
Dates of hearing: 26th, 27th and 28th November 1962.
JUDGMENT
MURSHED, J.‑The petitioner, Mr. Osman Ghani, is the sole proprietor of Messrs Ghani & Brothers and maintains a motor launch service along various rivers including the water‑courses in the Districts of Faridpur and Dacca for carrying passengers and goods and is also a member of the Dacca Motor Launch Owners Association. Along these rivers and watercourses the petitioner plies six motor launches which have been registered under the provisions of the Inland Mechanically Propelled Vessels Act, 1917, and he holds the requisite survey certificates and route permits as required by law. The time‑table and fare tables in respect of the launches plied by the petitioner have been duly approved by the East Pakistan Inland Water Transport Authority (hereinafter called the IWTA) under the provisions of the East Pakistan Inland Water Transport Authority Ordinance, 1958 (hereinafter called the IWTA Ordinance).
2. The petitioner has averred that from time immemorial the said rivers and water‑courses have constituted a public highway wherein the members of the public in general have the right to ply vessels of various descriptions including mechanically propelled vessels, subject to regulation and control by various provisions of law, and that such right of public way includes the right to touch at convenient places any dry portion of the beds of rivers and to carry passengers and goods to and from places along the courses of the said rivers without let or hindrance from any party. It is claimed that the said rivers and water‑courses are navigable. It conceded that as such the beds of the said rivers belong to the Provincial Government (and formerly to the Crown) as part of public domain, but it is reiterated that the public have a right of navigation along the said rivers and water‑courses without any obstruction from any quarter (including the Provincial Govern ment), unless authorised by statutory or any other specific provision of law in the exercise of such right.
6. The petitioner has further stated that there is no "foreshore" in the aforesaid rivers or water‑courses which run through the district of Faridpur. It is contended that the river banks (as distinguished from "foreshore") are owned by private owners.
4. It is stated in the petition that the petitioner was served with an order, dated the 29th of March 1962; from the office of the respondent No. 1, the Deputy Commissioner of Faridpur, asking him: to execute an agreement in favour of respondent No. 2, the Additional Deputy Commissioner (Revenue), Faridpur, in respect of his launches. The said order has been annexed with the petition and has been marked as Annexure A, which reads thus:
"Government of East Pakistan, Office of the Deputy Commissioner, Faridpur
S. A. Department
"Memo. No. 3222‑G. E. Dated 29‑3‑62
"From :‑Capt. K. M. A. Rab; Addl. Deputy Commissioner (Rev.) Faridpur.
"To : --Proprietor of Ganny & Bro thers at 151 Distillery Road, P. O. Faridabad, District Dacca.
"Notice is hereby given to all launch‑owners desirous to ply launch within the jurisdiction of this district, that they will execute the following Agreement before 30‑4‑62 on non‑judicial stamp of Rs. 1‑50 paisa and obtain permission from the un dersigned. If any of the launch‑owners fail to execute the Agreement and obtain permission, none of their launches shall be allowed to touch any foreshore within the jurisdiction of this district and to carry any passenger or goods with effect from 1‑5‑62.
(Sd.) Illegible For Addl. Dy. Commissioner (Rev.) Faridpur.
"AGREEMENT
To :‑The Addl. Deputy Commissioner (Rev.) Faridpur.
"I, the undersigned owner of the Launch/Launches mentioned in Schedule I, hereby apply for kindly according permission for my Launch/Launches to touch the foreshore within the District of Faridpur on the routes mentioned in Schedule I and to carry passengers and goods from one place to another for the year 1369 B. S.
"I do hereby undertake to fulfill the following conditions: --‑
"(1) That my Launch/Launches shall be bound to touch all the Launch‑ghats fixed by you which are either leased out or khas managed by you and I further undertake to pay the toll fixed by you for each ghat and that the toll if not paid msicably shall be realizable as arrears of Land Revenue.
"(2) That I undertake to carry out all directions issued by you for the safety and convenience of the passengers and goods we are to carry.
(3) That the permission accorded by you shall be liable to cancellation on the violation of any of the condition.
"Schedule I ROUTE
`Name of the Launches ---------------------------------- ---------------------------------- From‑---------‑to‑-----------‑‑ 1. 2. 3. 4. -------------------------------- -------------------------------- Attestation of Signature Signature of the Launch by a Magistrate, 1st Class. owner.
Address ‑--------------------‑‑‑‑
5. The substance of the aforesaid order is that it prohibited the petitioner, in the first place, from touching any "foreshore" within the District of Faridpur and, secondly, from carrying any passenger or goods within the said district with effect from the 1st of May 1962, except upon entering into an agreement which has been appended thereto. The said notice was served upon various other launch‑owners as well. The petitioner and the other launch‑owners did not comply with the direction contained in Annexure A and, therefore, they received another notice dated the 10th of May 1962, which is annexed as Annexure B to the petition asking them to show cause why orders should not be issued prohibiting their launches from touching what has been described as "foreshore" and from carrying passengers and goods inasmuch as they had failed to execute the agreement and obtain permission for touching the "foreshore." They were also threatened with seizure of such launches and with prosecution of the serangs, drivers and the proprietors thereof. Annexure B reads thus:
"GOVERNMENT OF PAKISTAN, OFFICE OF THE DEPUTY COMMISSIONER, FARIDPUR
Memo. No. 4773 (25)‑G. E., dated 10‑5‑62.
To : Gunny & Brothers Proprietor of 151 Distillery Road, Faridabad, District Dacca.
Sub :‑Execution of Kabuliyat of the Launch Company for touching foreshore lands.
Ref :--This office memo. No. 3222‑G.E., dated 29‑3‑62.
"He was asked to execute Agreement and obtain permission from the under‑signed by 30‑4‑62 with this office memo under reference but he failed to do the same.
However, he is requested to show cause by 25‑5‑62 positively as to why orders should not be issued prohibiting launches from touching foreshores and carry passengers and goods. If he fails to do the same necessary orders will be issued for seizing such launches and prosecuting Serangs, Drivers and Proprietors.
(Sd.) Illegible For Addl. Dy. Commissioner (Rev.) Faridpur."
It is further stated that thereafter one Mozaffar Ahmed, a member of the Dacca Launch‑Owners' Association, was served with an order dated the 1st of June 1962, prohibiting him from touching the foreshote etc., from the 1st of July 1962, unless he executed the required agreement before the 20th of June 1962, and threatening him to be criminally prosecuted if he violated the said order. The said order is Annexure C to the petition. It is stated that the petitioner came to learn that a similar order wets issued against him but he was not yet got the same. Annexure C runs as follows
"ORDER
Whereas it appears that you were asked to obtain permission from this office for touching the foreshore which is under the management of the Collector and Whereas you did not comply with that order and Whereas you were asked to show cause vide Memo. No. 4773(25), dated 10‑5‑62 as to why you should not be prohibited from touching the foreshore and carrying goods and passengers and Whereas you failed to show cause as required and therefore in order to safeguard the Government interest and in order to safeguard the interest of the members of the travelling public, you are hereby prohibited from touching the foreshore and carrying passengers and goods from the foreshore within the jurisdiction of the district of Faridpur with effect from 1‑7‑62 unless you execute the Agreement before 20‑6‑62. If you violate this order and try to touch the foreshore and carry passengers and goods from the date fixed above you will be criminally prosecuted and the District Police is being instructed accordingly.
(Sd.) K. M. A. Rab, Addl. Dy. Commissioner (Rev.) Faridpur."
This was followed by several criminal prosecutions and further threats by the respondents, who have, in fact, started criminal cases against certain serangs of the launches under the provisions of section 447, of the Pakistan Penal Code.
6. There are various allegations of high‑handed action (which amount to un-authorised and indirect levy upon various launch‑owners) on the part of the respondents. 7 here are also references to certain acts which are highly undesirable. They are, however, not material for the purposes of a decision in this case and we do not propose to set out such averments.
7. The substance of the petitioner's case is that the rivers, which pass along the district of Faridpur, are navigable rivers over which the public has undoubtedly a right of way (a right which has been exercised from time immemorial) and the ownership of the river, which belonged to the Crown, and now to the Provin cial Government or the respondents on its behalf, to interfere with this public right of way.
8. On behalf of the respondents an affidavit‑in‑opposition has been sworn by respondent No. 2, in which the statements in the first paragraph of the petition have not been denied. In fact, the material portions of the petition have not been denied, but the claim of a public right of way (i.e. navigation) over the rivers has been strenuously contested. According to the respondents, the "real controversy" arises out of a dispute between the launch owners and Government Officials over the rate of toll to be paid by such launch‑owners to Government for utilising the Tepokhola Ghat at Faridpur. If that is so, the impugned orders lack good faith and they constitute an indirect pressure upon the petitioner for an extraneous purpose.
9. It is difficult to see why the impugned orders should have been passed if the real dispute was in respect of the Tepokhola Ghat inasmuch as appropriate steps could be taken under the relevant law to enforce any right of the Government with retard to collection of tolls in the said Ghat. It appears from the said affidavit‑in‑opposition that certain ghats on the aforesaid "foreshore "were leased out to various individuals and the petitioner as well as the owners of other launches used to by‑pass such ghats without touching them ii, order to avoid payment of tolls, with the result that the tiara money had to be refunded to the ijaradars. The grievance seems to be that such a course prevents the flow of various sums of money into the exchequer of the Provincial Government.
10. It is unnecessary to go into the details of a rather rambling affidavit‑in‑opposition filed on behalf of the respondents. The substance of the case of the respondents, as stated in the affidavit‑in‑opposition and as argued by the learned Advocate General, seems to be that, inasmuch as the ownership of what is known as foreshore" vests in the Provincial Government, the respondents, in their capacity as managers of governmental estates have a right to forbid the petitioner and other launch‑owners from the use of the foreshores except on terms and conditions dictated by the respondents:
11. It is rather significant that, in spite of references to the Inland Mechanically Propelled Vessels Act, 1917, and IWTA Ordinance, 1958, the respondents have maintained a complete silence with regard to them. Further, the respondents have not made any reference to any law of this country which entitles them to pass the impugned orders.
12. Before discussing the points, in respect of which we are called upon to give a decision, we Would like to repeat again this Court has stated in an curlier occasion. We would refer to the case of Md. Hossain arid others v. General Manager, E. B. Railway, Chittagong and others ((1962) 14 D L R 874). At page 880 of the report this Court has observed:
"Any invasion upon the rights of citizens by anybody, nor matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country; otherwise, such invasion would be illegal and our A Courts would not only subject the same to their scrutiny but would also enforce the rights of citizens whenever there is an encroachment upon such rights without legal jurisdiction."
13. The petitioner obtained a Rule nisi from this Court calling upon the respondents to show cause as to why they should not be directed to cancel and rescind the notices, dated 29th of March 1962, 10th of May 1962, and the 1st of June 1962.
14. The petition contains various matters which would show that the impugned orders not merely lacked good faith but also that they constituted arbitrary and high‑handed action on the part of the respondents. And had it b‑en necessary for us to go into the question of males fide, we would have upheld this contention of the petitioner, but we have refrained from doing so as such a consideration is irrelevant when the respondents' case before us is that they seek to justify the impugned orders, not upon statutory powers conferred upon them, but upon the proprietary rights of the Provincial Government in the beds of navigable rivers.
15. At the hearing of the rule, the material point that was mooted before us is a simple one. It is claimed by the respon dents and admitted by the petitioner that the proprietorship of the bed of a navigable river rests with the Crown, and in this case with the Provincial Government as successor of the Crown. They have contended that, inasmuch as the Provincial Government is the proprietor of the bed, they have a right to prevent anybody from using the bed in the exercise of such proprietary right. Petitioner's contention, on the other hand, is, that navigable rivers, over which the respondents, on behalf of the Provincial Government, can claim proprietorship, undisputedly, public high ways and, therefore, subject to the rights of the public to use the same as highways nor waterways notwithstanding the ownership of the Provincial Government, which cannot claim the right to prevent the use of the said waterways, except in accordance with the provisions of appropriate legislations in this behalf, such as, the Inland Mechanically Propelled Vessels Act, 190, the IWTA Ordinance, 1958, and the Farries Act.
16. It is patent that the impugned orders have put an embargo upon the petitioner to ply his vessels along the river; which pass through the Faridpur district and to touch the "foreshore" of the said rivers, save on conditions dictated by the respondents, The petitioner has been prohibited from "touching the "foreshores". He has been further prohibited from carrying passengers and goods within the district of Faridpur.
17. What then is the meaning of the term "foreshore"? In Stroud's Judicial Dictionary, Third Edition, Volume 2, at page 1138, the word "foreshore" has been defined thus:
"The seashore up to the point of high water of medium tides, between spring and neap tides, is called the foreshore ; and is ordinarily and prima facie vested in the Crown, subject to the rights of the Queen's subjects for fishing and navigation only, A not only in the sea, but in all tidal navigable rivers and of passing ever the foreshore itself; but it may belong to a subject, either by itself, or as part of a manor."
18. In Coulson and Forbes on "Waters and Land Drainage", 6th Edition, at page 22, the definition of "foreshore" has been given in the following terms:
"The sea shore or foreshore may be defined as that portion of the land which is alternately covered and left dry by the ordinary flux and reflux of the tides."
At pages 25‑26 of the said book it has been observed:
"The property in the soil of shore of the sea, of estuaries and arms of the sea and of navigable rivers between high and low water mark, is prima facie vested of common right in the Crown . . . .This ownership of the Crown is for the benefit of the subject, and cannot now be used in any way so as to derogate from or interfere with the public rights of navi gation and fishery. The property in the soil of the bed of all tidal waters within the limits of the kingdom is prima facie vested in the Crown, but, like the foreshore, may be the property of a subject."
19. In the Government Estates Manual, 1958, "foreshore" has been defined thus (para. 209):
"Foreshore is space between the high water and low water marks. The foreshore is, therefore, not a constant site: it may recede with the river or it may infringe on already settled land."
In the same book the expression "high water mark" has been defined thus:
"By high water marks is meant the highest point ever reached by the ordinary spring tides in the course of the year."
It is, therefore, patent that the word "foreshore" is used with regard to tidal navigable rivers which fall into the sea and as a result of the interaction of the tides of the sea. It is thus clear that the word "foreshore" must be confined to tidal navigable rivers. As to non‑tidal navigable rivers, they are contained by the banks and not by the "foreshore" which is an expression peculiar to tidal navigable rivers only.
20. What is a tidal navigable river? In Coulson and Forbes on "Water and Land Drainage" 6th Edition, at page 100 a tidal navigable river has been defined as follows:
"A public navigable river is a river which is actual; navigable, and in which the tide ebbs and flows . . . . ."
At the same page it has been observed:
"A navigable river is a public highway navigable by all. His Majesty's subjects in a reasonable way and for a reasonable purpose. Original Hartlepooi Colleiries v. Gibb (1877) 5 C D 713, Att. Gen. v. Londsdal 1868 L R 7 Eq. 377. The public right of free passage extends to the whole of the navigable channel Att. Gen. v. Terry 1838 L n 6 Ch. D 423, Orr. Ewing v. Colquhoun (1877) 2 A C 839 and Williams v. Wilcox (1838) 8 A & E 314, and includes all such rights as with relation to the circumstances of each river are necessary for the convenient passage of ships such as the right of stopping for a reasonable time to unload and of grounding and anchoring Mayor of Colchestor v. Brooke (1845) 70 B 339 and Gann v. Free Fishers of Whitstable (1865) 11 H C L 192.
As to ownership of the bed of a navigable river, at page 102 of the same book it is stated thus:
"The bed of all tidal rivers where the tide flows and reflows and of all estuaries and arms of the sea is by law vested prima facie in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any way so as to derogate from or interfere with the right of vavigation which belongs by law to the subjects of the realm. Mayor of Colchestor v. Brooke, Williams v. Wilcox (1838) 8 A & E 337; 47 R R 595, Charter v. Murcatt (1768) 4 Burr. 2163, Gann v. Free Fishers of Whitstable, Malcolmson v. O'Dea (1862) 10 H L C 593, Lord Advocate v. Hamilton (1852) 1 Macq. H L C 47 and Seebkristo v. East India Co. (1856) 10 Moo P C 140.
In the next paragraph at page 102 of the same book it has been observed:
"In this country a series of modern decisions has at last settled the law, and confined the prima facie title of the Crown to the soil, and of the public right to fish and navigate to tidal waters."
What is right of navigation? At page 492 of the same book it has been stated thus
"The right of navigation is a right of way which may be enjoyed in the sea, in tidal and in non‑tidal waters; and as such it includes all rights necessary for the full enjoyment and exercise of the rights of convenient passage, such as the right to pass, and, to ground and to anchor, to remain for a reasonable time for the purposes of loading and unloading, or completing repairs; or of waiting till the wind or weather or, probably also, the season permits the ship to leave."
As to tolls it has been observed at page 494 of the same book as follows:
"No tolls are demandable from vessels navigating the sea, save such as are chargeable for the formation of harbours, and the maintenance of bouys, lights, and beacons, which are a good consideration for a toll; It being required' says Hale, that any man who will prescribe for a toll on the sea must allege a good consideration . . . . . Hence no tolls can be taken for anchorage save in a port or harbour."
21. As to right of navigation in tidal waters, it has been observed in the same book at pages 506 and 507 as follows:
"The bed of all navigable rivers, where the tide flows and reflows, and of all estuaries or arms of the sea, is prima facie vested in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subjects of the realm.
"The right of navigation is simply a right of way and the right of navigation in tidal waters is a right of way there over for all the public for all purposes of navigation, trade and intercourse. It is a common law right whose origin is lost in antiquity. It extends prima facie over the whole space over which the tide flows, and is not suspended when the tide is out."
(The Italicising has been done by us).
This right is paramount, and at page 511 it has been stated thus:
"The right of navigation in public tidal waters is a paramount right in all subjects of the realm to pass and repass and to anchor at pleasure, free from toll, unless toll is payable in respect of some of other advantage conferred on them, or at least on the public, at all times and states of the tide, and in all species of vessels, independently of any usage or prescription to that effect. It is a right of free passage over the whole of the navigable channel ; and it appears that a public tidal river may be used by the public as a high way when it suits their convenience, whether such navigation be valuable or not.
The public right includes all such rights as with relation to the circumstances of each river are necessary for the full and convenient passage of vessels along its channel."
At pages 517‑518 of the same book, this has been re‑stated as follows:
"Any grant, therefore, of the Crown which interferes with the public right is void as to such parts as are open to such objection, if acted upon, so as to effect nuisance by working injury to the public right. If, therefore, the Crown grant part of the bed or soil of any estuary or navigable river, the grantee takes subject to the public right; and he cannot, in respect of his ownership of the soil, make any claim or demand even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right."
22. In Halsbury's Laws of England, 2nd Edition (Hailsham Edition) Volume 33, at page 566, paragraph 964, the law is stated thus:
"The right of navigation In tidal waters is a right of way there over for all the public for all purposes of navigation, trade, and intercourse. It is a right given by the Common Law, and is paramount to any right the Crown or a subject may have in tidal waters, except when such rights are created or allowed by the Act of Parliament. Consequently every grant by the Crown in relation to tidal waters must be construed as subject to the public rights of navigation. It is not a right of property; it is merely a right to pass and repass and to remain for a reasonable time."
Paragraph 967 at page 567 of that volume is as follows:
"The public right of navigation has, as incident thereto, the right of anchoring, and of mooring and grounding, in the ordinary course of navigation and that without any…
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