The Obstructions in Fairways Act, 1881

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The Obstructions in Fairways Act, 1881 (Act No. 16 of 1881) dated 15th March, 1881, was an Act of Parliament and was enacted to provide removal of obstructions and stopping of creation of obstructions to navigation in fairways leading to ports comprising of territories before 1st November, 1956 comprising of Part-A States and Part-C States by the Government. The provisions of this Act should not apply to the Vessels which is belonging to or hired under the contract made by the Government.

The Section 2 of the Act provides provisions similar to the object of the Act, saying that the Central Government being entitled to remove or destroy obstruction in fairway, whenever, there is any vessel in sunk, stranded or abandoned, or any fishing-stake, timber or other thing is placed or lift in any fairway leading to any port in the territories comprising in Part-A States and Part-C States before 1st November, 1956. Similarly, Section 3 of the Act empowers the Central Government to receive sums as to expenses incurred in removing such obstructions, after having considered all the circumstances of the matter related to such removal. And any matter of dispute arises regarding such amounts, such disputes, on the applications by either parties, to be determined by the District Magistrate or Presidency Magistrate under whose jurisdiction the matter comes, and the decisions by such authorities should be final. The Act also makes provisions apposite to natural justice under Section 4, where the Central Government is required to give notice of removal of such obstruction. Such notice is to be published by the Central Government in the official Gazette mentioning descriptions of thing to be removed and time and place where such thing is to be removed.

Further, Section 5 of the Act speaks that, if the thing in respect of which the notification in official Gazette was published for removing those things, but the things were remained unclaimed, or if claimed but the person claiming those things failed to pay sums equivalent expenses and/or custom duties if any or any other charges incurred by the Government. In all these situations the Central Government can sell such stuff by way of public auction. Similarly, the expenses or charges, etc. should be deducted from the amount as proceeds realized out of such sell, and the remaining surplus amount as proceeds from sell should be given to owner thereof and if no owner found then to be given to the rightful person, who establishes right thereof, within the period of one year from sell date.

Section 7 of the Act explains the scope of the term ‘Vessel’ within the meaning of the Act, which includes also every article or thing, etc. farming part of tackle, equipment, cargo, etc. of the vessel. Also any proceeds realized out of sell of such vessels should be treated as common fund.

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Similarly, section 8 of the Act empowers the Central Government to make rules for regulating or prohibiting the placing of fishing-stakes, the casting or throwing of ballast, rubbish or any other stuff which likely to give rise to bank or shoal, etc. which can result in obstruction or hazard to navigation in any fairway of aforesaid territory.

Section 9 of the Act, makes penal provisions as to violation of such rules made by the Central Government, wherein it is provided that, a person being guilty of such breaching of such rules made under previous provision, should be tried and liable to be imprisoned for the period extending to 6 months or should be imposed fine, extending up to 500 rupees or even with both.

Moreover, Section 10 is important so far as it relates to payment of compensation for damage caused under this Act. If in case there is any fairway of which the maintenance or creation of an obstruction, has became lawful by long usage or otherwise but such obstruction was removed or destroyed or even its creation was regulated or prohibited by the Central Government, then Section 10 of the Act provides that under such situations that any person who has right to maintain or create such obstruction should be given compensation as a matter of right by against the Central Government.

Further, Section 11 says that, if any action of the Central Government as to removal or destruction of such obstruction or even regulation or prohibition of creation of such obstruction before enactment of this Act, then such actions to be treated as have been done under the authority provided under the provisions of this Act. Similarly, the Central Government is not prevented under the provisions of this Act to exercise any other powers possessed by it respecting the removal, destruction or even of regulation or prohibition of such obstructions or creation of obstructions respectively, besides exercising the powers contained under this Act in this behalf. Moreover, the similar powers and authorities were given to the State Governments in respect of Fairways in Inland waterways as per Section 13 of the Act, from the year 1937.

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by Faim Khalilkhan Pathan.