P L D 1963 Dacca 1033 (PLP)

"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 liability to the payment of tolls or other acknowledgement to tire owner of the soil, except where such person happens to be the owner of a port, or has the right to demand .some acknowledgement for the use of the soil in return for some benefit conferred." (The Italicising has been done by us). Paragraph 966 of that book runs thus: "As part of the right of navigation there is the right to load and unload cargo, and to remain on the waterway for any period, so long as the right is not abused so as to work a private injury . . . . ."

23. We may state here that the aforesaid rights do not necessarily extend to the banks which are distinguished from "foreshore".

24. In Tagore Law Lecture, 1889, on "The Law of Riparian Rights", (which is a classical work on this subject), by Lal Mohan Doss (Mr. Justice L. M. Doss, as he then was), the title to the ownership of foreshore has been stated thus at page 59: "This ownership of the Crown is also, as 1 mentioned before, subservient to the public right of navigation, and cannot be used in any way so as to derogate from, or interfere with, such right. The grantees of the Crown, consequently, take subject to this right, and any grant to a subject which interferes with the exercise of this public right is void as to such parts as are open to such objections, if acted upon so as to work an injury to the public right." At page 109 of the above book, ownership of the Crown to the foreshore with regard to tidal navigable rivers has en related thus: "But the question to whom belongs the soil between high and low water mark, is one upon which there has not been a con currence of opinion in the Court;: of the different states. In those states where the Common Law doctrine has been accepted, the soil of the foreshore has, of course been held to belong to the State, and the lands of riparian proprietors, to terminate with the line of ordinary high‑water mark." The test of navigability has been stated at page 110 of this book as follows: "A river has been held to be navigable when it allows of the passage of boats at all seasons of the year, although in hot and cold seasons the water may not be very deep . . . . Accordingly the Privy Council in Doedam Seeb Kristo Banerjee and others v. The East India Company held that the East India Company, as representing the Indian Government, had a freehold in the beds of navigable rivers in India. It may be noted that though the river, in point of fact was also tidal in the locality in question, yet that circumstances did in no way affect their Lordships' judgment." At page 113 of that book it has been observed thus: " . . . . . the question seems now to be concluded by the j following observation of the Privy Council in the case of Nogendra Chandra Ghose v. Mahamad Esof);10 B L R

406. The learned counsel did not contend for a distinction between a tidal river and a navigable river which has ceased to be tidal. Their Lordships have no reason to suppose that in India there is any such distinction as regards the proprietorship‑of the bed of the river." Bearing in mind that banks are distinguished from foreshore, it s has been stated, at pages 115‑116, as to ownership of the banks of navigable rivers and right of the public to tow thereupon, as follows: "In India the banks of public navigable rivers are generally the property of the adjoining landowners, although they are subject to a right of passage over by the public for the purposes of navigation. Section S of Regulation XI of 1825 recognizes the existence of this public right, because it declares that Nothing in this Regulation shall prevent zillah and City Magistrate or any other officers of Government who may be duly empowered for that purpose from removing obstacles which shall in any respect obstruct the passage of boats by tracking on the banks of such rivers of otherwise." The above provisions postulate a public right of navigation in navigable rivers:

25. Rakshit in his book entitled, "The Law of Alluvial Lands and Fishery in India, Pakistan and Burma" which is a book that is constantly referred to in this country, has stated the law on the subject (at pages 68‑69) as follows: "The bed of tidal navigable river belongs to the Crown. The property in the bed of a navigable river is in the Crown Madinapore Zamindary Co. v. Bijoy Singh A I R 1941 Cal.

1. The Crown has a free hold in the bed of navigable river. Nabin Kishore Roy v. Jog.esh Prasad 14 W R 352, Doe Dem Seek Kristo v. East India Co. 6 M I A 267, Ramkripal v. Jankiprosad A I R 1951 Pat.

420. It cannot use it in such a way as to derogate from or interfere with the rights subject to navigation fishery and access. It can grant any portion of the bed subject to the public right of fishery or navigation." (The Italicising has been done by us). " .The public right of navigation or waterway can only be co‑extensive with the right of the Government in the bed, that is to say, with the limits of `ordinary' high tides in the sense defined above, the banks above `ordinary' high water mark remaining private property unaffected by the waterway. The limit is the ordinary high water mark, not the point up to which the Highest water limit might reach. Dawood Hashim Esoof v. C. Tuck Shein 35 C W N 472, Fourcar & Co. v. Sect. of State for India 137 1 C

402. In the case of tidal and navigable river the presumption is that the bed belongs to the Government Sect of State v. Bommdevara 581 C 689 and Harijivandas v. Bulsar Municipality A I R 1941 Bom. 11.

26. As to the bank of navigable river (non‑tidal), the law in respect of ownership and public right of navigation has been stated at page 70 of that book as follows: "The banks of public navigable rivers are generally the property of adjoining landowners, though they are subject to a right to passage over by the public for the purpose of navigation Rooplal Das v. Chairman of Municipal Committee of Dacca 22 W R 276".

27. In the case of Secretary of State v. Chllikcani Rama Rao (AIR 1916 P C 22), the Privy Council, in deciding that the Crown is the owner of the islands formed in the sea in the estuary or mouth of the Godavari, discussed and cited with approval a number of English decision. Lord Shaw, in delivering the opinion of the Board, referred to some English cases which were "more recent examples of contested rights in or over land ex‑adverso of the foreshore." One of the cases so discussed is the case of Lord Fitzhardings v. Purcell ((1908) 2 Ch. D 139), and in the observations of Lord Parker (then Parker, J.) in that case, which were quoted with approval, there occurs the following passage: " . . . The bed of the sea, so far as it is vested in the Crown, and a fortiori the beds of tidal navigable rivers can be granted by the Crown to the subject . . . . . It is true that no grant by the Crown of part of the bed of the sea or the bed of a tidal navigable river can or ever could operate to extinguish or curtail the public right of navigation and rights ancillary thereto Thereafter, while concluding the discussion of English authorities, Lord Shaw states the opinion of the Board in the following terms: "In the opinion of the Board, this is also the law of India .. Decisions like the one in A I R 1916 P C 22, which we have cited above, by necessary implication, recognize a public right of navigation in tidal navigable rivers. A very old Indian decision which is quoted by Ghose in his book "The Law of Alluvion and Diluvion", is a direct authority for the proposition that a navigable river in India is a public highway. At page 40 of the book it is stated: "A navigable stream is a public highway. Hanooman Dass v. Shama Charan Bhatta 1 Hay's Report 426". A Privy Council decision in the case of Doedem Seebkristo v. East India Co. ((1855) 6 Moo. I A1267), is also a direct authority for the proposition that there is a paramount right of navigation in a navigable river. At page 287 of the report it has been observed as follows: "Then the Court discusses the question, whether the East India Company, who must be taken to be the owners of the soil, could properly do this ; the answer is, that they might properly do it except so far as they might interfere with the navigation of the river (which no one seems to have suggested), and except so far as they might interfere with the rights of parties adjoining the river. The older decisions have based the Crown's ownership of the bed of tidal navigable rivers on the analogy of the Common Law of England. Since the promulgation of the Bengal Alluvion and Diluvion Regulation,, 1825 (Regulation XI of 1825), it has been judicially recognised, inferentially from the provisions thereof, that in this country the criterion for ownership of the Crown in ' the bed is not whether the river is tidal or non‑tidal but whether it is navigable or non‑navigable. The ownership of the beds of navigable rivers (both tidal and non‑tidal) has been consistently held to be vested in the Crown. On this point, this is the only distinction between the Common Law of England and that of this country.

28. In the present case we have to deal with tidal navigable rivers since the impugned orders are primarily directed towards the foreshore of the rivers that pass through the district of Faridpur. The second direction, however, seeks to stop totally any right of navigation by the petitioner, so far as the district of Faridpur is concerned. A public right of navigation is implicit in the navigability of the river. It is inherent in the very nature of things.

29. The geographical and physical configuration of East Pakistan is, that it constitutes a delta thrown up by the net‑work of mighty rivers that run across the country. Therefore, from the dawn of human society in this region these rivers have been the life‑line of internal communications. The rivers are to East Pakistan what the public roads and high‑ways are elsewhere. From time immemorial the navigable rivers have been used by the public as a highway and these rivers virtually constitute the only means of communication and intercourse in this country. The origin of the public right of navigation is lost in antiquity. This is a self‑evident geophysical and historical fact which is well known to everybody. It is too late in the day to contend that the navigable rivers, tidal or non‑tidal, in East Pakistan, do not constitute public highways. As long as human memory can cast itself back, our rivers have been the main arteries for commerce and intercourse. When one remembers that such mighty rivers as the Padma, the Arial Khan and Madhumati flow across the district of Faridpur, one is all the more astounded and shocked to hear the argument that these rivers do not constitute public highways.

30. In this context, we repeatedly asked the learned Advocate‑General as to whether the impugned orders were passed in pursuance of any statutory powers or under any pro vision of law or in the exercise of any other right apart from an alleged right which is founded on the mere ownership of the foreshore and the beds of navigable rivers. He definitely and categorically stated each time, that the respondents do not claim to have passed the Impugned orders with reference to any statute or any other provisions of law or in the exercise of any other right apart from what they claim to be the proprietary rights of the owner, namely, the Provincial Government. He has emphasized that the said orders were passed in the interest of the Provincial Exchequer as a measure to argument the finance, of the said Government. The case of the respondents as stated before us may be summed up thus: "The Provincial Government as proprietor of the beds of navigable rivers has the right to forbid any user of the beds, which include the foreshore, for navigational purposes. This right flows from the ownership of the foreshore. Therefore, it was contended that the agent of the Provincial Government has the right to forbid the touching of any foreshore by any boat or launch or to dictate a condition that if the owners of the boats or launches agree to the terms proposed by such agent they will be permitted to exercise a right of navigation."

31. From what we have fully set out above, it is evident that no such orders can be given in the mere exercise of the right of ownership of the foreshore. Such ownership is subservient to the paramount public right of navigation in navigable rivers, which includes the right to touch a foreshore as incidental to such navigational right. The right of navigation is not a proprietary right, but the ownership of the bed is always subservient to such right which is indefeasible except by extinction or control thereof by statute or law. 7 his right is in many particulars similar to an easement, but it is higher than a mere customary right. The nature of the ownership of the Crown in respect of the bed is a beneficial ownership as the repository of public rights and user.

32. It is interesting to note that in the official file, the Member, Board of Revenue (who is a very senior Member of the Civil Service of Pakistan), while dealing with proposals of alike nature, has expressly discountenanced the "indirect pressure" sought to be imposed by a district authorities. In the file produced by the learned Advocate‑General to corroborate the affidavit sworn on behalf of the respondents, the Member Board of Revenue, has noted thus: "I think the whole business has been utterly misunderstood by Collectors, Additional Collectors, Joint Collectors and other Revenue Officials‑

"Where a launch‑owner, without the permission of the Collector disembarks his passengers at any portion of the fore shore in respect of which he has not taken a licence, the course open to the Collector is to declare all such portions as ferries under the Bengal Ferries Act and to enforce compliance by requiring launch‑owners to pay tolls which the Collector should prescribe . . . . . Evidently, this is a case for discussion with the IWTA. (Sd.) S. M. Hasan, 25‑3‑61." Another official of the Board of Revenue has given the following opinion: "It seems, it is better to bring out a fresh legislation authorizing the D. Cs. to exercise control over the plying of launches. (Sd.) Illegible" An Additional Commissioner, Dacca Division, in forwarding a letter in this connection has observed: "Either some sort of direct legislation forcing the launch owner to pay the dues, or indirect action by giving the Collec tors authority to control the plying of launches, would solve the problem . . . . . (Sd.) Illegible." The IWTA has addressed the Additional Deputy Commissioner (Rev.), Faridpur, thus (2) According to the provision laid down in the East Pakistan Inland Water Transport Authority Ordinance, 1958, the IWTA has been empowered to develop maintain and operate river ports, landing ghats and terminal facilities in such ports or ghats . . . . . "It is suggested that you may kindly consult this Authority in future on subjects entrusted to it to avoid complications and confusion. In the meantime your orders referred to above may kindly be withdrawn." The above notings in the official file are in respect of matters connected, directly or indirectly, with the impugned orders. They probably approximate to the correct law except for the "indirect action" suggested by the Additional Commissioner. As will be evident from the affidavit‑in‑opposition filed before us, the impugned orders have been taken as a measure of "indirect action" against the petitioner. It may be that some such action could or might have been taken under the Ferries Actor the Inland Machanically Propelled Vessels Act. An appropriate legislation could have solved the problem, if there was any problem to be resolved. If the objective was that the finances of the Government should be augmented, it could have been proposed that a suitable legislation be passed. But, touching of the "foreshore", loading and unloading of passengers or goods and carrying such passengers or goods are undoubtedly ancillary to, and necessary incidents of, the right of navigation which every member of the public possesses. Such rights are completely independent of ownership. The beds of the navigable rivers (which term includes the "foreshore" of tidal navigable rivers) are owned by the Provincial Government, but, as we have been above, such ownership is subject to the paramount right of the public to navigation and access thereto and the Provincial Government cannot interfere with the right of navigation and rights incidental thereto unless authorised by some statute or any other law of the country. In fact, a substantial legislation exists which can and does regulate and control the exercise of the right of navigation. Apart from law, there can be no interference with such right.

34. Our attention was drawn to sections 53 and 54, amongst other provisions of the Inland Mechanically Propelled Vessels Act, 1917, and also to varlous provisions, including those of sections 15 and 19, of the East Pakistan IWTA Ordinance, 1958. We were also referred to the Ferries Act. It seems to us that the aforesaid legislative measures give ample powers to appropriate authorities to effectively regulate and control the traffic across the rivers and inland water courses of this Province. There are elaborate provisions for collection of taxes and tolls etc., for examining the fitness of vessels, for regulating fares and time tables and for providing comfort and other facilities to passengers. All manner of effective control can be exercised in respect of vessels that navigate in our inland waters.

35. But, no such control, towards which the impugned orders are directed, can be exercised, in derogation of the right of navigation in mere assertion of the right of ownership in the "foreshore" or beds of navigable rivers or by virtue of an un-authorised, unspecified and undefined executive power.

36. It is equally difficult to understand how section 447 of the Pakistan Penal Code can be applied in the present case or how an order for seizing the vessels can be passed. Touching a foreshore in a navigable river by a boat or any other vessel in the course of navigation cannot constitute a "trespass" and, even if it did, it cannot be a criminal trespass within the meaning of section 447 of the Penal Code. The powers of the executive, in the context of the complexities of our contemporary life, are wide, but, they should not be used as instruments of "indirect action". In this connection, it may be permissible to quote the following lines of Shakespeare. "Oh it is excellent. To have a giant's strength, but tyrannous. To use it like a gaint."

37. For reasons stated above, we make the Rule absolute and declare that the impugned orders and notices served upon the petitioner are without lawful authority and are, consequently, of no legal effect. Furthermore, we direct the respondents to refrain from taking any action against the petitioner in pursuance of the said orders and notices and we also direct them to cancel the impugned notices mentioned in the petition, namely, notices dated the 29th of March 1962, 10th of May 1962 and 1st of June 1962. The petitioner is entitled to the costs of this application, which we assess at ten Gold Mohurs. SALAHUDDIN AHMED, J.‑

I agree. S. B./K. B. A. Rule made absolute.