P L D 1952 Lahore 360 (PLP)

MUHAMMAD MUNIR, C. J.‑This is a certified appeal under clause 10 of the Letters Patent from the judgment of a learned judge of this Court. The appellant is the District Board of Montgomery, one of the two defendants to a suit instituted by respondent Abdullah for a declaration that the warrant issued against him by the District Magistrate, Montgo mery, for the recovery of certain arrears under section 9 of the Northern India Ferries Act, XVII of 1878, could not be executed. The respondent took from the appellant on lease for the year 1940‑41 the tolls of the public ferry at Chichawatni for a sum of Rs. 5,

500. He paid Rs. 3,109 and the appellant sought to recover the balance through the District Magistrate, Montgo mery as arrears of land revenue under section 9 of the Ferries Act. The respondent denied the liability, pleading that no money was due, and alleged that the District Magistrate had no jurisdiction to recover the amount as arrears of land revenue under section

9. The suit was dismissed by the trial Court and the dismissal was affirmed by the District judge on appeal. On second appeal to this Court, the learned Judge took the view that the summary remedy of realising the arrears under section 9 was not available to the appellant. He, there fore, accepted the appeal and decreed the suit. The learned judge has held that section 9 only applies to arrears due by the lessees of those public ferries which are under the supperin tendence of the District Magistrate and not those which have been let out on lease to District Boards. To consider whether this view of the law is correct, it is necessary to refer to the relevant provisions of the Northern India Ferries Act, XVII of 1878. By section 6 of that Act the superintendence of every public ferry, subject to the provisions of section 7 and sec tion 7‑A, vests in the Magistrate of the district in which such ferry is situate or in such other officer as the Provincial Government may appoint by name in virtue of his office. By section 7‑A the Provincial Government has the authority to direct that any public ferry wholly or partly within the area subject to the authority of a district board be managed by that board and on such direction being made the ferry shall be managed by such board. Section 8 permits the letting out of the tolls of any public ferry for a term not exceeding five years with the approval of the Commissioner. Then comes section 9 which provides that all arrears due by a lessee of the tolls of a public ferry may be recovered from the lessee or his surety by the Magistrate of the district in which such ferry is situate as if they were arrears of land revenue. The point involved in the present appeal is whether section 9 is applicable to the three kinds of public ferries which are mentioned in sections 6 and 7‑A or only to such ferries as are mentioned in" section

6. A public ferry may be under the superintendence of three different authorities (1) under the superintendence of the Magistrate of the district (2) under the superintendence of some other officer appointed by the Provincial Government and (3) under the management of the District Board. It is conceded by the learned counsel for the respondent and has been so found by the learned judge, that where the tolls of a public ferry have been let out by the Magistrate of the district or by some other officer appointed by the Provincial Govern ment to superintend it, the arrears due by the lessee may by recovered under section 9 by the Magistrate of the district as if they were arrears of land revenue. It is, however, con tended that the position is different where the management of a ferry has been made over to a District Board under section 7A and that Board has let but the tolls to a lessee by public auction. No warrant for this distinction is to be found in the terms of section 9 which on the face of it is applicable to arrears due from the lessee of the tolls irrespective of whether the superintendence or management of the ferry vests in the District Magistrate or in some other Officer appointed by the Provincial Government or in the District Board. The learned judge has held that the arrears due by the lessee of a public ferry, where the management of the ferry vests in a District Board, are not moneys which can be recovered under section 58 (b) or section 70 of the District Boards Act. This is correct, but this is not the point. The question is whether the right to recover such arrears can be given to the District Board by some other Act and has been so given by section 9 of the Ferries Act. The learned Judge thinks that it cannot be and has not been done, but we can discover no principle on which the Legislature, if it so likes, cannot confer this right on a District Board by some legislation independently of the District Boards Act. In the present case, the Legislature has provided by section 9 of the Northern India Ferries Act that all arrears due by the lessee of a public ferry may be recovered by the Magistrate of the district as if they were arrears of land revenue. The provision is not subject to any qualifications and if the arrears are due the Magistrate of the district has the discretion to recover them, whether for Govern ment or for some other officer in whom the superintendence of the ferry is vested, or for the District Board to whose charge the management of the ferry has been committed by the Provincial Government. The ferry in question is a public ferry; its management was entrusted by the Provincial Government to the District Board, Montgomery ; the District Board let the tolls of the ferry by public auction to the respondent ; and the arrears have been found to be due. Section 9 of the Act is, therefore, fully applicable and the arrears can be recovered by the Magistrate of the district as if they were arrears of land revenue. We, therefore, differ from the learned Single judge, reverse his judgment decreeing the suit and restore the decree of the District judge dismissing the suit. Costs of this Court will be borne by the parties. A. H. Appeal accepted.