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2008 DIGILAW 518 (GAU)

Hanif Uddin v. State of Assam

2008-07-22

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. I have heard Mr. M.U. Mondal, learned Counsel for the Petitioner, and Ms. H.N. Phukan, learned Govt. Advocate, appearing on behalf of the state Respondents. I have also heard Mr. H.R.A. Choudhury, learned senior Counsel, appearing for the private Respondent, and Mr. A.K. Bhuyan, learned Standing Counsel, IWT. 2. Goalerchar Commercial Cargo cum Passenger Ferry Service, i.e., Goalerchar Gaurang ghat, is settled with the Petitioner by order, dated 23.6.2008, issued by the IWT and its operation is claimed to have been handed over to the Petitioner by completing all formalities on 26.6.2008 and the Petitioner claims to have been running the ghat, i.e., ferry, accordingly. The Petitioner's grievance is that Nayer Alga Anchalik Panchayat has settled the said ferry service with the Respondent No. 8, namely, Sayed Ali, by order, dated 9.7.2008, without issuing any tender notice and in violation of the provisions of Northern Indian Ferry Act, 1878, Assam Panchayat Act, 1994, and Assam Panchayat (Financial) rules, 2002. The Petitioner accordingly seeks a writ of certiorari setting aside and quashing the impugned order, dated 9.7.2008, whereby settlement has been made, in favour of the Respondent No. 8, by the said Panchayat. 3. What, now, needs to be pointed out is that this writ petition has been heard along with WP(C) Nos. 2706/2008, 2976/2008 and 3035/2008 and it is no longer in dispute that the questions of law, which were raised and answered in the said three writ petitions, cover the present case too. 4. Because of the fact that the ferry, in question, in the present writ petition, is not a ferry covered by Section 4 of the Assam Panchayat Act, 1994, the IWT has, in the light of the discussions held in WP(C) 2706/2008 and 3035/2008, no authority to settle the said ferry. Hence, the settlement order, dated 23.6.2008, issued by the Director, IWT, has no force of law and this order cannot deprive the private Respondent from operating the ferry, in question, inasmuch as the ferry, in question, falls within the jurisdiction of Nayer Alga Anchalik Panchayat. 5. In other words, the ferry, in question, having been settled by Nayer Alga Anchalik Panchayat in exercise of the powers vested in it under Section 106 of the Assam Panchayat Act, 1994, in favour of the private Respondent, the private Respondent is entitled to operate the ferry. 6. 5. In other words, the ferry, in question, having been settled by Nayer Alga Anchalik Panchayat in exercise of the powers vested in it under Section 106 of the Assam Panchayat Act, 1994, in favour of the private Respondent, the private Respondent is entitled to operate the ferry. 6. Before parting with this writ petition, it is, however, clarified that though the writ Petitioner has contended that the settlement, in favour of the private Respondent, has been made without following any process of selection, what needs to be borne in mind is that the resistance to the operation of the ferry by the private Respondent is posed, in this writ petition, on the ground that the ferry, in question, stands settled by the IWT in favour of the writ Petitioner. In view, therefore, of the fact that the IWT has been found to have no authority to make settlement, the Petitioner cannot be held entitled to the relief, which he has claimed in the present writ petition. This shall not, however, debar the Petitioner or any other person, who may have been interested in obtaining settlement of the ferry, in question, from the said Anchalik Panchayat, from challenging settlement of the said ferry, in favour of the private Respondent on any ground other than the ground that Nayer Alga Anchalik Panchayat has no authority to make settlement of the said ferry nor shall any person stand debarred from challenging the settlement, made in favour of the private Respondent, on the ground that while having jurisdiction to make settlement of the ferry, in question, the said Panchayat has acted illegally, arbitrarily or mala fide in making the settlement of the said ferry in favour of the private Respondent. If such a question is raised, the fact that this Court has not interfered with the settlement made in favour of the private Respondent, in the present case, shall not create any bar to the maintainability of the writ petition if such a writ petition is, otherwise, found maintainable in law. 7. With the above observations and directions, this writ petition shall stand disposed of. 8. No order as to costs.